There have been several comments misrepresenting what happened on Wednesday when I rose in Court to apply, to apply on behalf of a number of Civil Society Organisations, for leave to submit an Amicus Brief in the Electoral Commission matters then before the Supreme Court.
Misrepresentations and deliberate falsehoods have been peddled far and wide by persons who have limited understanding of what happens in court. Sometimes, it is simply not worth the effort to attempt to stem such disinformation when it has already become rampant on social media. But comments repeating the allegations on Newsfile have compelled me to attempt to set records straight.
Firstly, we did not say that we were not conversant with the proceedings already underway in the Supreme Court. We prepared our application for leave to submit our brief before the last supplementary filings were made. As late as the day of the hearing, the proceedings were still in flux. We had had to amend the headers of our motions twice already. This was an extremely fast-evolving situation. So, obviously, at the time I rose to my feet it was evident that the last submissions to the Court, especially those by the Attorney General dealing with the demographic characteristics of the voters’register had not been fully assimilated by my team.
But these were highly secondary matters.
The key point that I sought to make is that the CSOs brief was NOT LIMITED to the legal matters before the court. And my clients’ standing as civil society leaders and public policy experts gave them a completely different capacity and standing before the Court regardless of whatever legal arguments the lawyers for the parties, who were representing political parties and a single citizen, were canvassing.
No one before the Court had drawn its attention to the fact that throwing away the old cards could cost as much as $17 million. Or that international treaties to which Ghana is a signatory, as well as international comparative practices in civil identification, frown on the direction the EC wants to take the country. Or that it is the duty of other administrative agencies to protect the forensic integrity of the register, not the EC.
So the CSOs, my clients, were definitely not in the forum to merely repeat the claims being made by the other parties.
At any rate, our argument on discretion was also novel.
We were reflecting on the storied holding in Ransford France that Article 296(c) of the Constitution does not apply by default to administrative bodies in the exercise of their discretion
We submitted clearly that the narrow window that Justices Ansah and Atuguba carved in the Ransford France case applies, quite fascinatingly, to determinations of citizenship because one of the few actions that are actually quasi-judicial per our argument (following various Supreme Court precedents) is the determination of citizenship.
Hence, in exercising discretionary power to determine who meets the citizenship bar, 296(c), not just 296(a) and 296(b), must by clear judicial precedent apply. So, unlike the boundary demarcation discretion in Ransford France, the citizenship determination provision in CI 126 is not sufficiently detailed to attain the constitutional threshold set by 296(c). Not in the absence of objectively reasonable guidelines set out in regulations as to why birth certificates, the only foundation document for applying for the key citizenship attesting documents in this country could be outlawed by the EC, for instance.
That matter had not, at the time of our intervention, and even subsequently, been sufficiently addressed to the Court. That was the value of the Amicus brief that the Court unfortunately failed to see.
This was written by Joe Debrah, Counsel for the CSOs that attempted to file the Amicus brief.