Go ahead with new voters’ register …without old voter ID card – Supreme Court rules

By a unanimous decision, the Supreme Court (SC) has directed the Electoral Commission (EC) to go ahead and compile a fresh electoral roll for the December 7, 2020 general elections.

A seven-member panel of judges presided over by the Chief Justice, Justice Kwasi Anin Yeboah gave EC the greenlight to commence the voters registration exercise as scheduled, after it dismissed two consolidated suits brought against the EC by the National Democratic Congress (NDC) and one Mark Takyi-Banson, a Ghanaian citizen.

The court further made consequential orders to the effect that the decision of the court affects similar action which is pending or yet to be filed in any court.

“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.”

The court ordered all stakeholders and the Ghanaian eligible voters to comply with Articles 42 and 45 of the Constitution and the Public Elections (Registration) (Amendment) Regulations, 2020 C.I. 126 as regulated by the EC in carrying out their constitutional mandate in the compilation of a new voters’ register.

Per the decision of the apex court, only the National Identification Card and passport are the two eligible documents that would be accepted in the upcoming mass registration exercise which commences on Tuesday, June 30, 2020.

The court dismissed the argument of the NDC asking it to order the EC to include all existing voters’ identification cards in the exercise.

The Chief Justice who read the judgement said the decision by the court to refuse the inclusion of the existing voters’ identification in the upcoming registration exercise was affirmed in the Abu Ramadan No.2 case where the SC held that the EC 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 court, however, granted reliefs two and three of the NDC which relates to the fact that all eligible voters must make themselves available for registration as directed by the EC pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C.I. 126.

Among the reliefs which were dismissed by the court were the invitation on the court to declare that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution, the EC 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.

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

An order of the court directed at the EC to include all existing voter identification cards duly issued by the EC as one of the documents serving as proof of identification for registration for the purposes of public elections.

That the court should hold that, upon a true and proper interpretation of the provisions of the Constitution, particularly article 42, upon the registration of and issuance of a voter identification card to a person, that person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner.

Prior to the judgement, the SC on Wednesday, June 24, dismissed an amicus brief filed by some civil society organisations including Imani Africa, which seeks to provide expert knowledge to enable the court to determine the case.

In dismissing the brief, the court said it was of the considered opinion that the application was not supported by law.

Ahead of the judgement, there was a tight security of police personnel drawn from four different units including the Counter Terrorism Unit of the Ghana Police Service who were sent to maintain law and order.

Other members of the panel were Justices Jones Dotse, Nasiru Sule Gbadegbe, Paul Baffoe-Bonie, S.K Marful-Sau, Nene A. Amegatcher and Professor N.A Kotey.

On March 26, 2020, the National Democratic Congress (NDC) dragged the Attorney-General and the EC to the apex court over the decision by the Commission to compile a fresh electoral roll for the December 7, 2020 polls.

The EC had stated that it would compile a new voters’ register for the presidential and parliamentary elections because the existing register was incurably defective for the purpose.

But the NDC, the biggest opposition political party in Ghana  insisted that the exclusion of  existing voters’ ID card as a form of identification to obtain a new voters’ ID card was unconstitutional. 

A declaration that upon a true and proper interpretation of the provisions of the Constitution particularly Article 42 of the Constitution, all existing voter identification cards duly issued by the EC to registered voters are valid for purposes of identifying such persons in the exercise of their right to vote.

Mr Godfred Yeboah Dame,  a Deputy A-G stated that the reliefs endorsed on the plaintiff’s writ of summons are not only procedurally incompetent, but also not cognisable as reliefs that may properly  be applied for pursuant “to this Court’s original jurisdiction  under articles 2(1) and 130(1) of the Constitution, and therefore ought to be struck out.

The defendant contended that the instant action  neither raises any real issue(s) for constitutional interpretation  nor properly invokes the enforcement jurisdiction of the court.

“Further, we find support in the prohibition contained in the rules of this Court for a relief pursuant to this Court’s original jurisdiction, to be nebulous and argumentative.”

The defendant argued that  the first palpable absurdity with the plaintiff’s difficult endeavour to raise a strained constitutional issue “in this matter is the plaintiff’s proposition that the words “….at such periods as may be determined by law” in article 45(a) apply to only the revision of the voters register, and not its compilation.”

Justin Amenuvor, counsel for the EC asked the court to dismiss the case of the NDC as it was without merit.

He contended that any Ghanaian who is 18 years and above must comply with the new law to obtain the voters’ identification card.


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