The Supreme Court, voters register and NHIS cards (1)

It has taken quite some time, and the advise of well meaning persons to convince me to pen this article. The last time I wrote a series of newspaper articles was exactly a decade ago. Incidentally, they were on a similar subject matter as this one.

Two of the articles, titled: “The Road to ’96” and “The Road to ’96 II”, published in the March 24-30, 1996 and the April 21-27, 1996 editions of The (Catholic) Standard newspaper, a newspaper with remarkable resilience, are particularly relevant here.

Roll forward 10 years and the ruling of the Supreme Court in the Abu Ramadan and Evans Nimako V. The Electoral Commission and The Attorney General has come, but has refused to go. In my experience, no judgment of our Supreme Court has received more wrongful interpretations of its meaning as this judgment. Among these utterly wrong interpretations are the following:

1. The Plaintiffs won their case.

2. The Supreme Court has declared the register of voters unconstitutional, null and void, and therefore of no effect.

3. The Supreme Court has by its judgment deleted the names of all persons on the voter register who registered with the National Health Insurance Scheme (NHIS) identity card as a means of identification.

4. The Supreme Court has ordered the Electoral Commission to automatically delete the names of all persons on the voter register who registered with the NHIS identity card as a means of identification.

5. The Supreme Court has ordered the Electoral Commission to validate the Voters Register.

As a teacher of the law, I consider it my civic duty to provide some clarity to what the Supreme Court said on May the 5, 2016 in the year of our Lord. Having attended mission schools in northern Ghana, I did not benefit from Nkrumah’s free high school education policy for that area. I nevertheless, consider it a good thing to use what knowledge of the law I have in service of mother Ghana as often as I can.

Contrary to what I have mostly heard in the media by way of interpretation of the Supreme Court judgment in the recent Abu Ramadan case:

1. The plaintiffs LOST their substantive case.

2. The Supreme Court DID NOT declare the register of voters unconstitutional, null and void, and therefore of no effect.

3. The Supreme Court DID NOT order that the names of all person on the register of voters, who registered with the NHIS identity card as a means of identification stand deleted.

4. The Supreme Court DID NOT order the Electoral Commission to automatically delete the names of all person on the voter register who registered with the NHIS identity card as a means of identification.

5. The Supreme Court DID NOT order the Electoral Commission to validate the voter register.

6. The Supreme Court UNDERLINED the Constitutional independence of the Electoral Commission.

The Supreme Court made these six key holdings in its 45 paged judgment. In the rest of this article, I underline each of those holdings, and reproduce the portions of the judgment that support those holdings. This will ensure that any doubting Thomases are fully convinced that what I say the Supreme Court said, is indeed what the Supreme Court said.

1. The plaintiffs lost their case

The Plaintiffs lost the case since none of their substantive reliefs was granted. Effectively, the plaintiffs sought from the Supreme Court a declaration that the current voters register (the Register) is unconstitutional, null and void and of no effect because it contains the names of persons not qualified to vote and persons who are deceased.

They further requested the Supreme Court to set aside the register and order the Electoral Commission to EITHER compile a fresh register OR audit the current register of voters through the validation of the registration of each person currently on the register. None of these reliefs sought by the plaintiffs was granted. What the Supreme Court granted the plaintiffs were declarative reliefs to the effect that the current register is not accurate.

Witness the words of the Supreme Court at pages 32-33 of the judgement:
“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) [THE SUBSTANTIVE RELIEFS SOUGHT BY THE PLAINTIFFS] are dismissed in their entirety.”

Justice Benin in his concurring judgment was more explicit about the fact that the plaintiffs had lost their case. At pages 44-45, he said,
“…I fully agree with the decision reached in this case that the plaintiffs’ action be dismissed in so far as it seeks an order to compel the 1st defendant to compile a fresh voters register or to use the validation process to clean the existing register.”

It is clear that the plaintiffs lost the case.

2. The Supreme Court did not declare the register of voters unconstitutional, null and void, and therefore of no effect.

The second key decision of the Supreme Court was to decline to declare the register of voters unconstitutional, null and void, and therefore of no effect. At page 20 of the judgment, the Supreme Court acknowledged that the register was not perfect and contains the names of persons who should not be on it. The Court, however, declined to declare the register unconstitutional:

“We do not; (sic) 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 provisions for 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 [in] 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…”

At pages 22 to 23 the Court continued:

“Accordingly, by way of answer to issues (2) and (3) we are of the opinion that although the presence of the names of ineligible and deceased persons on 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.”

3. The Supreme Court did not order automatic deregistration of persons who registered with NHIS identity cards.

4. The Supreme Court did not ordered the electoral commission to automatically delete the names of all person on the voter register who registered with the NHIS identity card as a means of identification.

The Supreme Court did not order that persons who registered with the NHIS identity cards ARE or SHOULD BE automatically deregistered by the Electoral Commission. What the Court said is that such an exercise must be done according to law, in this case, the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91). From the very mouth of the Court and at pages 21-22 is the following:

“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 renders the register not 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.

The writer is a Senior Lecturer, School of Law, University of Ghana &Team Leader, Law and Development Associates