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Politics of Sunday, 31 May 2020


EC refusing to file defense lawsuit against new voters' register

Jean Mensa, EC Chairperson Jean Mensa, EC Chairperson

Osei Kwame Griffiths, former boss of the National Identification Authority (NIA) under the John Mahama administration, has hauled the Electoral Commission (EC) before an Accra High Court, over its decision to procure items for the compilation of a new voters' register for the December 2020 presidential and parliamentary polls.

The suit, according to his lawyers, Aziz Bamba and Associates, is seeking six reliefs, including “a declaration that the decision of the Respondent to compile a new voters register for the December 2020 Parliamentary and Presidential Elections is arbitrary, unreasonable, without any lawful justification or otherwise not in accordance with law and contrary to article 23, 45 (1) and 296 of the 1992 Constitution read together with the Public Election (Registration of Voters) Regulations 2016 (CI91)”.

But quite strangely, the lawyers for the EC headed by its chairperson, Jean Mensa, who is also a lawyer, have failed to file their defence despite reliable information that the electoral body has appropriately been served the legal documents.

This is the second lawsuits against the EC this month, over its resolve to at all cost compile a new register despite stiff opposition by many civil society groups and political parties including popular think tank group, IMANI Africa and the National Democratic Congress (NDC) and other political parties.

The NDC had filed one against the same voter register compilation, praying the Supreme Court for an order 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 as a voter for the purposes of public elections.

Mr Griffiths’ court documents filed on May 8, 2020, and sighted by The Herald, wants a declaration that procurement of the Biometric Voter Management System (BVMS) was carried out unlawfully contrary to the provisions of the Public Procurement Act 2003 (Act 663) as amended, particularly sections 2, 20D, 20E, 59 and/ or 74 thereof;

He also praying for “A declaration that the Biometric Voter Management System (BVMS) Contract (Hardware) entered into between the Respondent and the Thales Digital Identity Solutions (DIS) shall not come into operation unless it is approved by Parliament or is null, void and of no effect for being inconsistent with article 181 (5) of the 1992 Constitution;

Additional relief sought by Mr. Griffiths is an order for the Court to set aside the award of the BVMS Contract to the Thales Digital Identity Solutions (DIS) and also wants, “an order of perpetual injunction restraining the Respondent from proceeding in any way whatsoever or taking any step preliminary or incidental to the performance of its obligations under the award of the said BVMS Contract;

Mr. Griffiths, who is an ICT expert with expertise in IT Operations, Systems Development, IT Security, Business Analysis and Design, Business Process Re-engineering, IT User Training and Support among others, in an affidavit, explained that as a citizen of Ghana, he has the constitutional duty “Pursuit to article 4 (b) and (f) of the 1992 Constitution of Ghana “uphold and defend th[e] Constitution and the law” to protect and preserve public property and expose and combat misuse and waste of public funds and property”.

“I am also personally committed to the entrenchment and consolation of the Rule of Law in Ghana in an atmosphere of probity, transparency, accountability, legality and due process”, in his exparte motion, said.

The 38-points affidavit in support of the instant application for judicial review continued by saying “That I bring the instant action to defend and ensure compliance with the laws of Ghana, particularly articles 23, 41(b) and (f) of the 1992 Constitution of Ghana read in conjunction with the provision of the Public Procurement Act 2003 (Act 663) as amended, particularly sections 2, 20D, 20E, 59 and 74 thereof;

Mr Griffiths argued that the Respondent breached the laws referenced in paragraph 2 above and the materiality of the issues raised herein become obvious and manifest when a historical perspective is taken of the matters that form the thrust of the instant action.

He continued “That after the 2008 Presidential and Parliamentary Elections the Respondent embarked on major electoral reforms, including the use of biometric technology for registration and verification of voters before voting in public elections.

The main policy rationale for the deployment of biometric technology for voter registration and verification was that biometric technology based on fingerprint modality would cure the need to change voter registers every 8 or 10 years and save the country money since fingerprints were permanent and almost unchangeable in course of a registered voter’s life”.

The Applicant argued that the EC in a similar litigation exercise at the Supreme Court between 2014 and 2016, was ordered to remove names of voters who registered with the National Health Insurance cards, saying since that period, the electoral body, has not raised any issue as far as the integrity of the register is concerned.

“That between 2014 and 2016, the current voter register was the subject of litigation in the Supreme Court of Ghana resulting in the deletion of names of persons in the voters' register who had registered with National Health Insurance cards and since then, the Respondent has not publicly raised any questions about the credibility, integrity or accuracy of the current voters' register.

That pursuant to the Respondent’s well-founded belief that the current voters register is credible and usable, the Respondent embarked on an extensive and elaborate process of revisiting the voter’s register.

It is common knowledge that in 2012, the Respondent spent huge sums of money top conduct limited registration exercise in areas to be affected by the creation of the six new regions namely, Oti, Savannah, North East, Ahafo, Western North, and Bono East and revised the current voters register accordingly. Again, in 2019 the Respondent conducted limited registration exercises to allow Ghanaian citizens who had attained voting age since the last elections in 2016 to register and have their names included in the current voters' register”.

Part of the Applicant’s Affidavit went on to argue saying “That the above-referenced activities of the Respondent together with the huge sums of taxpayer’s money spent on the improvement, updating and revisiting the current voters register and the policy rationale assigned by the Respondent for the introduction of the current biometric voter register in 2012, created a litigation expectation in the minds of citizens that the current voters' register would be used for the 2020 Presidential and Parliamentary Elections, not only because it was credible but also because it was the lawful, sensible, rational and economically prudent thing to do”.

Lawyers for the Applicant produced a press statement by the EC making a case for a New Biometric Voter Management System and New Voters Register as an “exhibit”.

In a related development, the NDC in a writ invoking the original jurisdiction of the court, in the second suit, is seeking a true and proper interpretation of Article 45(a) of the 1992 Constitution, on whether 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”.

It is also further seeking a declaration on whether the EC “can only revise the existing register of voters, and lacks the power to prepare a fresh register of voters, for the conduct of the December 2020 Presidential and Parliamentary Elections”.

The NDC holds that “declaration that upon a true and proper interpretation of the provisions of the Constitution, specifically article 51 read conjointly with article 42 of the Constitution, the power of the EC to compile and review the voters’ register must be exercised subject to respect for and the protection of the right to vote”.

It is also seeking a “declaration 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”.