The Supreme Court gave its ruling on the status of the Ghana's electoral roll last week but there is debate over the exact orders of the apex court.

Please read below some essential portions of the judgment as delivered by Justice Gbadegbe.

GBADEGBEJSC:

On or about February 25, 2016 the plaintiffs issued a writ before us seeking the following reliefs:

1.     “A declaration that upon a true and proper interpretation of article 45(a) of the constitution of the Republic of Ghana, 1992 (hereinafter, the “constitution”), the mandate of the Electoral Commission of Ghana to compile the register of voters implies a duty to compile a reasonably accurate and credible register.

2.     A declaration that the current register of voters which contains the names of persons who have  not established qualification to be registered is not reasonably accurate or credible and therefore inconsistent with article 45(a) of the constitution thereby making same unconstitutional, null and void of no effect.

3.     A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible and is therefore inconsistent with article 45(a) of the constitution thereby making same unconstitutional, null and void of no effect.

4.     (a)  An order setting aside the current register of voters and compelling the Electoral Commission to compile a fresh register of voters before the conduct of any new public election or referendum in Ghana;

Or in the alternative,

(b)    An order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register

i.      To delete the names of unqualified persons and deceased persons and

ii.     To provide each validated registration with biometric evidence thereof and

iii.     To strike out the names of those persons who fail to validate their voter validation within the stipulated period

Before the conduct of any new registration exercise or public election or referendum in Ghana.”

In our view, looked at from this standpoint, the plaintiffs action seeks to give teeth and meaning to articles 42 and 45(a) of the constitution by ensuring that names of ineligible person, minors and decedents are deleted from the register before the upcoming public elections.The pivotal nature of the right to vote has been  pronounced upon by this court in a collection of cases including Tehn Addy v Electoral Commissioner [1996-97] SCGLR 589; Ahuma Ocansey v Electoral Commission; Center for Human Rights and Civil Liberties (CHURCIL) v Attorney-General [2010] SCGLR575. Accordingly, the objection to our jurisdiction, which is raised by the defendants in their respective statements of case is hereby dismissed; we hold that this court has jurisdiction under articles 2(1) and 130(1) of the 1992 Constitution to inquire into the issues raised in the action”‹ herein."

The agreed issues set out in the memorandum filed on April 14, 2016 are as follows:

“1.    Whether or not the original jurisdiction of this court has properly been invoked by the Plaintiffs

2.     Whether or not the presence of names of ineligible persons on the Current Register of voters renders same not reasonably accurate or credible and therefore inconsistent with article 45 (a) of the constitution.

3.     Whether or not the presence of names of deceased persons on the Current Register of voters renders same not reasonably accurate or credible and therefore inconsistent with article 45(a) of the constitution.

4.     Whether or not the decision by 1st Defendant not to use the record validation process to revise the current register of voters is unreasonable and inconsistent with articles 23 and 296 of the constitution.

5.     Whether the court has jurisdiction and authority to make orders compelling 1st defendant to discharge its functions in a particular manner.

6.     Whether Plaintiffs suit falls for determination within the exclusive jurisdiction of the court.

7.     Whether plaintiffs have proved the extent to which the register of voters is inaccurate as for it to be unreasonable within the meaning of article 45(a) of the 1992 Constitution.

8.     Whether or not a Party is entitled to an order from the court to compel 1st defendant to carry out its constitutional function of compiling and revising the register of voters in a particular way, form or manner?

9.     Whether or not 1st defendant is bound by suggestions from citizens and other stakeholders as to how 1st defendant must carry out its constitutional function of compiling and revising the register of voters?”

The first issue concerns the invocation of our original jurisdiction by the plaintiffs. In view of the discussions had previously about the jurisdictional point, we think that the question raised by issue (1) receives an affirmative answer.

We next proceed to consider issues (2) and (3). The said issuesconcern the question whether by the  continued presence on the current register of voters of ineligible persons as declared in the  Abu Ramadan case (supra) and deceased persons, the register can be said not to be reasonably accurate or credible and therefore inconsistent with  article 45 (a) of the 1992 Constitution. As the two issues raise common questions of law turning on undisputed facts, weshall consider them conjunctively. In ouropinion, death being an inevitable occurrence in the life of any human being should have had very clear provisions made in relation thereto for the purpose of deleting such names from the register by for example, requiring the Births and Death Registry to forward at specified intervals to the first defendant through its district offices for deletion. The unhappy situation, however is that the system of registration of births and deaths in the country is woefully behind current trends in development. This has the effect of rendering the current register of voters not reasonably accurate or credible. We do not; however think that the defect is so extensive in nature to result in an inconsistency with article 45(a) of the constitution as the existing law has made ample provisionsfor such names to be deleted when the provisional register is exhibited before it is certified under regulation 27 of CI 91 as the existing register. We think that the elaborate scheme provided the law is sufficient to address the presence on the register of voters of names of persons who might have died since the last registration exercise. Although the issues for our determination have not included minors, we think that names of such persons can also be deleted using the processes provided for in the law. From the complaint madein relation to deceased persons, there is an implied admission that at the time of their registration they were alive and eligible to be registered.  There is also the added mechanism of biometric registration which when enforced will prevent people impersonating such deceased persons as the fingerprints and photo identifications will not match.

Turning to the presence on the register of voters’ of ineligible persons who must have utilized cards for their registration, it appears from the proceedings herein that that the exact numbers are not known. This creates some difficulty in determiningthe actual percentage in order to answer the question posed whether the registermay on such ground only be said not to be reasonably accurate or credible.However, that should not present us with an insurmountable problem. In our view, following the previous decision of this court in the Abu Ramadan case (supra)by which the use of the cards for registration was declared unconstitutional, the continued presence of names on the register that derive their identification from the said cards rendersthe registernot reasonably accurate or credible. In coming to this view of the matter, we are not disregarding the report of the panel which is part of the processes before us in these proceedings as exhibit “ABU6” that the register of voters is bloated, a fact which is not controverted by the defendants.We are in a great difficulty, however agreeing with the plaintiffs that by virtue only of the said infraction, the entire register has the attribute of unconstitutionality.The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As theregistrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically render them void. The legitimate way of treating them is to have them deleted by means of processes established under the law. In view of the fact that these registrations were not effected in breach of the law, the persons affected thereby cannot be said to be benefiting from their own wrong such as to be deprived of their registration withoutbeing given the opportunity of being heard.As the said registrations were done before the declaration of unconstitutionality in the Abu Ramadan case (supra) to have their names deleted will have the effect of disenfranchising persons affected by it.This approach enables us to do justice in a manner that preserves the rule of law and a stable constitutional order without affecting acts and or things which were previously ordered on the legality of the impugned provision in the Abu Ramadan case. We think that any person whose registration is affected by the decision in the Abu Ramadan case (supra) be given the opportunity to go through the process of registration to establish his eligibility or otherwise in order that the appropriate remedies provided under the law may be applied. There being no credible dispute that the current register of voters was compiled under legal provisions deriving their legitimacy from the primary legal source, the entire register of voters cannot be said to have been compiled unconstitutionally.Accordingly, by way of answerto issues (2) and (3) we are of the opinion that although the presence of the names of ineligible and deceased personson the register of voters renders same neither reasonably accurate nor credible, the register is not thereby rendered inconsistent with article 45(a) of the constitution.

 Issue (4) raises the question of validation, which from the processes filed before us was suggested by some stakeholders as a means of deleting or “cleaning” as it is popularly called, ineligible names from the register of voters but rejected by the Electoral Commission. It appears from the case of the plaintiffs that had the first defendant made an accession to this proposal, there would not have been the need for the instant action to be initiated before us. While there appears to be some reason in the proposal for validation, it is without statutory authority and seeks to introduce a mechanism that the lawmaker did not make provision for to be utilized in deleting the names of ineligible and deceased persons from the register of voters.   In carrying out its function under the law, the Electoral Commission cannot employ non-statutory remedies, as the law does not give it that mandate. It is observed that it is unreasonable to demand from a public officer whose authority is derived from the law, performance that is not authorized by law and its effect is that non-compliance with the proposal of validation does not constitute any inconsistency with articles 23 and 296 of the constitution.

The result is that we proceed to grant the following reliefs:

  1. That upon a true and proper interpretation of article 45 (a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate and credible register.
  2. A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible.
  3. A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible.
  4. Reliefs (4) (a) and (b) are dismissed in their entirety.

In the exercise of the power conferred on us under article 2(2) of the constitution, we make the following orders:

  1. That the Electoral Commission takes steps immediately to delete or as is popularly known ‘clean” the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana;

 That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law.

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