There has been a controversy over the Supreme Court Decision on the above Matter dated June 25, 2020. This controversy is on who won the case: National Democratic Congress or the Electoral Commission (EC) and or the Republic (hereinafter referred to as The State or The Republic).

The State won the case. NDC Lost it. This is our grounds for the assertion:

  1. What was the NDC case before the Court?
  2. What was the State case before the Court?
  3. What was the decision by the Court?
  4. What was the reasoning of the Court backing their Decisions?
  5. What were the Orders of the Court?

This paper shall proceed to state the answers from the record secured from the Registry of the Supreme Court under the hands of the Registrar of the Court, Mr Matthew Antiaye.

NDC CASE BEFORE THE COURT

It ought to be noted that NDC Case as presented before the Supreme Court in this Matter is being taken from NDC’s own reliefs or remedies or requests from the Court. In other words what NDC asked the Court to do for her. These requests or reliefs are as follows:

  1. A declaration that upon a true and proper interpretation of Articles 45(a) of the 1992 Constitution, 2nd Defendant has the constitutional power to, and can, compile a register of voters only once, and thereafter revise it periodically, as may be determined by law. Accordingly, 2nd defendant can only revise the existing register of voters, for the conduct of the December 2020 Presidential Election.

It must be noted that relief one as stated above, was withdrawn by NDC herself from the Court. Consequently, as at the time the Supreme Court sat to deliver her decision, this particular relief was no longer before her for a decision to be made on it.

Supreme Court stated on this relief in the Justices own words thus:

“RELIEF ONE already struck out as withdrawn”

OR IN THE ALTERNATIVE

  • A declaration that upon a true and proper interpretation of the provision of the Constitution, specifically article 51 read conjointly with article 42 of the Constitution, the power of the 2nd Defendant to compile and review the voter’s register must be exercised subject to respect for and the protection of the right above;

This relief was granted subject to C.I. 126 and regulation by EC. The Supreme Court in their own words stated as follows:

“This relief is granted subject to the fact that all eligible voters must make themselves available for registration as directed by the Electoral Commission pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C. I. 126.”

Under the C.I. 126, there is no mentioning of existing Voters I.D. being one of the documents for registration as a voter.

  • A declaration that upon a true and proper interpretation of the provision of the Constitution, particularly article 42, upon the registration of and issuance of a voter identification card to a person, the person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner;

This relief was granted in part subject to C.I. 126. This is what Supreme Court said:

“This relief is granted subject to the Voter Registration card issued to an eligible voter under the prevailing constitutional Instrument C. I. 126.”

Once again under the C.I. 126, the existing Voters ID is not one of the documents that prevails and could be used for registration as a voter. It thus means that it is the Voter ID that would be issued under the C.I. 126 that would assume the accrued right to the holder into future registration.

  • A declaration that upon a true and proper interpretation of the provision of the Constitution, particularly Article 42 of the Constitution, all existing voter identification cards duly issued by the 2nd Defendant to registered voters are valid for purpose of identifying such persons in the exercise of their right to vote;

This relief was dismissed. The Court said:

“RELEIF FOUR Dismissed”

It must be noted that Relief Four is the clearest of the Reliefs on existing Voters ID being requested by NDC as a valid Voter ID that must be used for the 2020 Electoral Register of Ghana. This relief was dismissed by the Court.

  • A declaration that upon a true and proper interpretation of the Constitution, specifically Article 42, the 2nd Defendant’s purported amendment specifically of regulation 1 sub-regulation 3 of the Public Elections (Registration of Voters) Regulation, 2016 (C.I 91) through the Public Elections (Registration of Voters)(Amendment) Regulations, 2020 to exclude existing voter identification card as proof of identification to enable a person to apply for registration as a voter is unconstitutional, null and void and of no effect whatsoever;

This Relief was also dismissed. The Court said:

“RELEIF FIVE Dismissed”

Once again, it must be noted that this relief contains two most important elements of NDC requests: the existing Voters ID and part of the C.I. 126. The request being that once the existing Voters ID is not being considered as one of the documents for the 2020 Ghana Electoral Register, then the said part of C.I. 126, that is the first regulation, ought to be declared null and void. This relief was rejected. The C.I. 126 stands good and must be employed wholly to compile a new voter register for the Republic.

  • A declaration that the 2nd Defendant, in purporting to exercise its powers pursuant to Article 51 of the 1992 Constitution to exclude the existing voter identification cards from the documents required as proof is of identification to enable a person register as a voter without any justification arbitrary, capricious, unreasonable and contrary to article 296 of the 1992 constitution;

This Relief was dismissed. The Court said:

“RELEIF SIX is Dismissed

We however reiterate the decision of this Court in Abu Ramadan & Nimako (No.2) v Electoral Commission & Attorney-General (No.2) [2015-2016] 1 SCGLR 1 where the court per Benin JSC stated:

If the law provides for alternative ways of performing the task, the discretion is vested in the actor in deciding within the limits imposed by article 296 of the Constitution as to which one of them would best suit the task on hand.”

The court continued by re-emphasising the fact that the Electoral Commission in exercising their discretion in the discharge of their constitutional mandate in cleaning the voters Register should be deemed as authorised to be acting within the law and the regulations therein, and cannot be faulted even if it is considered that there is a more efficient mode or method available.”

The Court refused NDC assertion that refusal of using the existing Voter ID for registration amounts to arbitrariness, inter alia.

  • A declaration that upon a true and proper interpretation of the Constitution specifically Article 42 of the 1992 Constitution, proof of identification for registration as a voter should not be limited by the provision of public Election (Registration of Voters) (Amendment) Regulation, 2020;

This relief was dismissed as well subject to C.1.26. The Court said:

“RELIEF SEVEN

It is dismissed subject to the provisions contained in C. I. 126.”

The Court refused to agree with NDC on this assertion and endorsed the limitation stated in the law of C.I. 126.

  • An order directed at the 2nd Defendant to include all existing voter Identification cards duly issued by the 2nd Defendant as one of the documents serving as proof of identification for registration as a voter for the purpose of public election;

The Court refused to grant this Relief as well. Supreme Court stated:

“RELIEF EIGHT

It is refused and we also reiterate our decision in Abu Ramadan (No.2) supra where this court held that the Electoral Commission in performing their mandate under Article 45 of the Constitution 1992 cannot be compelled to act in a particular manner unless there is clear evidence that they have acted unconstitutionally.”

The Supreme Court refused to order the Electoral Commission to allow all existing Voters ID to be used for the 2020 Electoral Register for the Republic of Ghana.

  • Any other order or orders as this Honourable Court would deem fit in the circumstances.

There was no comment on this relief. It was thus refused.

THE CASE OF THE REPUBLIC

The State of Ghana represented by the Attorney General and the EC as a state institution created by the Constitution itself made the following before the Supreme Court:

  1. The C.I. 126 is valid and has not sinned against the Constitution in any way and therefore C.I. 126 or any part of it ought not to be declared null and void.

The Supreme Court agreed with the Republic on this request.

  • The Republic further argued that the existing Voter ID ought to be excluded from the documents required to be used for the compilation of 2020 Electoral Voters Register.

The Supreme Court agreed with the Republic on this argument.

  • That the EC ought not to be ordered and or compelled to accept the existing Voter ID as one of the documents as proof of citizenship for the purposes of registration as a voter on the 2020 Ghana Electoral Voter Register. 

The Supreme Court agreed with the Republic on this request and refused to compel the EC to accept the existing Voter ID as proof of Ghanaian citizenship for the purposes of 2020 Ghana Electoral Register.

CONSEQUENTIAL ORDERS MADE THE SUPREME COURT IN THE MATTER

It must be noted that generally, the enforceable element in every decision of the court lies in the orders the court makes at the end of her ruling or judgment. The Supreme Court made the following orders in the Matter:

“CONSEQUENTIAL ORDERS

In the exercise of the powers conferred on us under Article 2 (2) of the Constitution 1992, we hereby make the following orders:-

  1. It is hereby ordered that all stakeholders and the Ghanaian eligible voters are directed to comply with Articles 42 and 45 of the Constitution and the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C.I. 126 as regulated by the Electoral Commission i.e.  2nd Defendants in Suit No. J1/9/2020 and 1st Defendants in J1/12/2020 in carrying out their constitutional mandate in the compilation of a new voters register.
  2. By this decision, the Electoral Commission i.e. 2nd Defendants in Suit No. J1/9/2020 and 1st Defendants in Suit No. J1/12/2020 is hereby directed to commence the compilation of the voter registration exercise as scheduled.
  3. By these decisions and, by virtue of Article 130 (2) of the Constitution any court in which same or similar action is pending or yet to be filed shall apply the decision rendered by the Supreme Court in these consolidated suits.”

Conclusion:

NDC went to court seeking to have: one, the existing Voter ID as one of the documents as proof of Ghanaian Citizenship for the purposes of registration in the 2020 Ghana Electoral Register, this was refused. NDC desired the Supreme Court to order and or compel the EC to accept the existing Voter ID for the exercise under reference that was also refused. They also wanted the Supreme Court to declare part of the C.I. 126 as null and void, this one too was refused.

On the contrary, the Republic got all that they wanted from the Court: C.I. 126 was endorsed as valid and constitutional in its entirety. The EC was not compelled by the Court to accept any other document as proof of citizenship for the purposes of registration onto the electoral roll, inter alia. On this score, this Center finds it necessary to state thus: NDC lost the case and the Republic won.

The entire nation who qualify to register and vote is thus encouraged to do so as directed by the Supreme Court of the Republic of Ghana.

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