Parliament Cannot Compel The European Commission To Adopt A Guarantor System - Yaw Baah

Yaw Baah, a constitutional jurist and former Member of Parliament for Kumawu, has criticized the procedure used by Parliament to make the guarantor system one of the means by which Ghanaians can register to vote.

According to him, the legislature cannot compel the Electoral Commission (EC) to include the guarantor system in the (CI) for continuous voter registration that the EC intends to present to the House.

At best, he stated that Parliament's decision for the EC to include the guarantor system in the C. was premature.I was a suggestion that the electoral management body was not required to follow by law.

"If Parliament contends that its decision for the EC to include the guarantor system is binding, then its March 31 vote recommending that the EC include the guarantor system was unconstitutional.

"The recommendation is a legislative opinion," he explained.

Mr. Baah based his argument on Article 11(7) of the Constitution of 1992, the constitutional provision on subsidiary legislations, and the Supreme Court decision in Nii Tetteh Oppongreh v. EC and A-G, which interprets and enforces said provision.

In that case, the Supreme Court, through Justice Sulemana Gbadegbe, made a clear distinction between Article 11 (7), which restricts Parliament's authority over subsidiary legislation, and Article 106(6), which gave Parliament the authority to amend any substantive legislation.

Annulment

In an exclusive interview with the Daily Graphic, Mr. Baah, a former chairman of the Legal, Constitutional, and Parliamentary Affairs Committee of Parliament, stated that, according to Article 11(7) of the 1992 Constitution, only subsidiary legislations, including CIs, could be repealed by the legislature.

He stated that Parliament's recommendations regarding subsidiary legislations were persuasive but not binding on the entity sponsoring the legislations.

In accordance with Article 11 (7) of the Constitution of 1992, the EC seeks to bring before Parliament a CI to regulate continuous.

According to Article 11(7), the CI, which seeks, among other things, to make the Ghana Card the sole identification document for the exercise and the only means for registration, will enter into force 21 days after it is laid before Parliament, unless it is repealed by a vote of at least two-thirds of all Members of Parliament (MPs).

Mr. Baah stated that in the case of Nii Tetteh Oppong-Opremreh v. EC and A-G, the Supreme Court, in interpreting and applying Article 11(7) of the Constitution, held that other acts by Parliament, such as amendment, variation, or change in subsidiary legislation, were unconstitutional.

According to him, Parliament's insistence that the EC include the guarantor system before considering the C.I was not an annulment, and so technically the House lacked the authority to force it down the EC's throat, as that would violate Article 11(7) of the 1992 Constitution, as interpreted by the Supreme Court in Nii Tetteh Opremreh v EC and A-G.

"The Supreme Court has ruled that if Parliament does not exercise its power of annulment under Article 11(7) of the Constitution of 1992, it cannot do anything else that binds the body that introduced the subsidiary legislation.

"The Supreme Court made it abundantly clear that when it comes to subsidiary legislation, Parliament is merely a conduit through which constitutional bodies with power can bring subsidiary legislation into effect," he said.

Pre-laying

Parliament, as part of the pre-laying procedure for the Public Elections (Registration of Voters) Regulation, 2023, rejected the EC's decision to make the Ghana Card the sole registration method.

Before the EC could present the CI for consideration, the House unanimously recommended that the guarantor system be included.

Legislators believed that using the Ghana Card as the sole means of voter registration would have a negative impact on the electoral roll and prevent some otherwise qualified individuals from registering to vote unless and until the challenges surrounding the issuance of the Ghana Card were addressed.

The House made the decision after adopting the report of the Whole Committee on the proposed CI.

The report was endorsed by the Chairman of the Whole Committee, who is also the Speaker of the House of Representatives.

Soon after the House adopted the report of the Committee of the Whole, the Speaker announced that the House would no longer rely on assurances from the EC or NIA, but that "we are now contributing to the preparation of the CI."

No legal effect

Mr. Baah, who is also a former Chairman of the Judicial Committee and former Vice Chairman of the Subsidiary Legislation Committee of Parliament, was of the opinion that while Parliament had the right to go through a pre-laying procedure for the CI, the decision made during the pre-laying procedure had no legal effect.

In light of this, he stated that the report of the House Committee on the Whole and the subsequent adoption of that report by the House for the EC to incorporate the guarantor system were not binding.

"The current case law regulating subsidiary legislations is Article 11(7) as interpreted and enforced by the Supreme Court in Nii Tetteh Opremreh v. EC and A-G.

Since there would be no legal ramifications, it was unnecessary for the Parliament to engage in any activity relating to its unanimous approval for the EC to incorporate the guarantor system.

He also questioned why Parliament voted unanimously to recommend to the EC that the guarantor system be included when the CI had not been adequately presented to the chamber.

Mr. Baah stated that if Parliament was dissatisfied with the exclusion of the guarantor system from the CI, the correct procedure was for the House to allow the EC to lay the CI and then annul it with a two-thirds majority, as required by Article 11(7) of the Constitution and interpreted in Nii Tetteh Opremreh v. EC and A-G.

"If Parliament insists that its decision for the EC to include the guarantor system is binding, then its March 31 vote recommending that the EC include the guarantor system was unconstitutional."