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Opinions of Wednesday, 29 July 2020

Columnist: Osman N. Alhassan

Credibility of the new voters register

File Photo: The EC is registering all eligible voters File Photo: The EC is registering all eligible voters

It is my view that, the current voter registration exercise, and the register compiled so far lacks more credibility and integrity than the previous one. The irregularities and legal infractions surrounding or even underpinning the exercise are too gravious for public silence. This would be demonstrated in due course.

It is clear from the recent Supreme Court Judgment in EC v. NDC that the old voter register and ID cards have been "rejected" for want of credibility or integrity. The Supreme Court endorsed the compilation of a completely new voter register because the legitimacy of the process that led to the previous register and registration cards was doubtful.

The reasons given by the Supreme Court for deciding as such are: 1) that the national health insurance cards which were not meant for only Ghanaians, were used for registration under C.I 72; and 2) that a directive contained in the EC's voter registration manual at the time, made proof of voter eligibility not mandatory. In their opinion, the said directive influenced the EC officials and offered an opportunity for non-eligible voters to register. As a result, a voter register compiled, and voter ID cards issued at a huge cost to the state have been jettisoned for good.

With such a decision from the appex court, I think the people of Ghana have a legitimate expectation of the EC, not to conduct another registration exercise that allows or offers an opportunity for minors and non-citizens of Ghana to register as voters. In fact, the Supreme Court categorically held that, it is the duty of the Electoral Commission to keep off non-eligible voters and ensure that only eligible voters under article 42 of the constitution are registered.

Under article 42 of the constitution, a person is qualified to vote if: a) he is a citizen of Ghana; b) he is 18 years of age or above; and c) he is of sound mind. I think soundness of mind here refers to mental health. Obviously, good mental health is the presumed norm in society. Some special incident must exist or occur to put us on inquiry about a person's mental health. Untill the occurrence of that special incident, I don't think mental health of every applicant for voter registration must be proved. Citizenship and age however must be proved in order to register and vote.

In my view, the duty of the EC, as underscored by the Supreme Court, implies that, the EC must apprise its officials of the requirements of voter qualification under our laws, and demand the facts and evidence that are legally necessary for identifying a qualified voter in Ghana. Once citizenship and age is what must be proved, I think the EC derelicts this duty, if it fails or neglects to demand facts and evidence from prospective voter registrants, that are necessary for identifying a minor or a citizen of Ghana.

But what are the facts and evidence that are required for identifying a minor or  a citizen of Ghana under our Law? With regards to age, I think there are no complex requirements of proof. One simply needs the birth certificate to prove his age. Unfortunately, the Supreme Court dismissed the birth certificate as a needed document in the voter registration exercise. I hope to make a brief comment on this subsequently.

Now, Let's consider citizenship. Citizenship is the most complex aspect of voter qualification to prove in Ghana. Citizenship is a matter of law. The law prescribes the facts that must be proven or established of a person before that person can be identified as a citizen of Ghana. Determination of citizenship can therefore not be done by a person without legal knowledge. Citizenship is determined by a person with legal knowledge. He does that by taking information, comparing the information with requirements of the citizenship law, and arriving at the legal conclusion whether or not the bearer of the information is a Ghanaian. A person is not necessarily a citizen of Ghana because he says so.

Under our Law, citizenship is either by birth, registration, or naturalization. Citizenship by registration or naturalization can easily be proven by presentation of a certificate of registration or naturalization. However, citizenship of Ghana by birth cannot yet be proven by the production of any single certificate or document.

The facts about a person, that need be proven to ascertain his citizenship of Ghana are provided by the constitution and the citizenship Act, 2000 (Act 591). In effect, the combined force of article 6 of the constitution and Act 591, has given relevance to all our historical citizenship laws dating from the 1992 constitution to the British Nationality Act of 1948. I must state that Dr. Abdul Basit took the wind out of my sail when he published an article on 1st July, 2020, beautifully tracing and explaining the history of citizenship laws in this country. I will therefore not belabor it. I will rather concentrate on few examples from Act 591 and the constitution to demonstrate that the EC is currently generating an incredible voter register.

For example, article 6(1) of the constitution provides that, "Subject to the provisions of this Constitution, a person born in or outside Ghana after the coming into force of this Constitution, shall become a citizen of Ghana at the date of his birth if either of his parents or grandparents is or was a citizen of Ghana." this means that, to identify a Ghanaian by birth under this provision, one needs know where a person was born (whether in or outside Ghana); the date he was born (Whether before or after the coming into force of the 1992 constitution); and whether, at least, one of his parents or grandparents is a citizen of Ghana. But how do we know if a parent or grandparent of this person is a citizen of Ghana? This question then drives us with iron necessity right into Act 591.

Act 591 provides the requirements of citizenship by birth according to dates and places of birth of persons, their parents, grandparents, and/or great grand parents. For instance, Section 3 of Act 591 provides as follows:

(1) A person born before 6th March 1957 is a citizen of Ghana by birth if—

(a) he was born in Ghana and at least one of his parents or grandparents was born in Ghana; or

(b) he was born outside Ghana and one of his parents was born in Ghana.

Section 4 of the act also provides thus:

"(1) A person born on or after 6th March 1957 and before 22nd August 1969 is a citizen of Ghana by birth if—

(a) he was born in or outside Ghana and either of his parents, and also one at least of his grandparents or great-grandparents, was born in Ghana; or

(b) in the case of a person born in Ghana neither of whose parents was born in Ghana, at least one of his grandparents was born in Ghana.

(2) A person is not a citizen of Ghana for the purpose of subsection (1) of this section if at the time of his birth the parent, grandparent or great-grandparent through whom the citizenship is claimed has lost his citizenship of Ghana.

(3) A person born on or after 6th March 1957 and before 22nd August 1969 is a citizen of Ghana by birth if—

(a) he was born in Ghana and at the time of his birth either of his parents was a citizen of Ghana by registration or naturalisation; or

(b) he was born outside Ghana and at the time of his birth both of his parents were citizens of Ghana by registration or naturalisation.

From the above provisions of the law therefore, it's impossible to identify any person as a citizen of Ghana by birth without information about the place and date of his birth; the place and date of birth of his parents and/or grandparent and/or great grandparent; or the registration or naturalization certificate of his parent, grandparent, or great grandparent. It is actually a breach of Act 591 to declare someone a citizen of Ghana without the information or proof of the facts required by the Act. On top of the above information, one will need to know, if any of the persons above, renounced the citizenship any time before the applicant’s application to register.

Having noted the above, it is my humble opinion that, not only does the curent voter registration exercise constitute a dereliction of the EC's duty as stated by the Supreme Court, but it also violates several laws of Ghana, and will definitely, as a result, yield a far worse register than the old one.

These are my reasons:

1. The information requested of applicants by the EC under C.I 126 and on its voter registration form (form 1A) does not satisfy the conditions of citizenship required under the law. The form merely requests applicant's name, surname, residence, date of birth, age, parents' full names, village/town, district. No evidence, whatsoever is required by the EC to verify these particulars. The EC or any body for that matter cannever determine Ghanaian citizenship, or identify a Ghanaian based on the information requested on the said form. To the extent that, the EC requested information for voter registration that is insufficient to enable it determine whether or not an applicant for registration is a Ghanaian, it has derelicted its duty. Moreover, the qualification and registration by the EC of any person as a voter in Ghana based on that information is in breach of the citizenship laws of Ghana.

2. I think the voter registration identification guarantee form 1A is illegal on various grounds.

a) It breaches the citizenship Act because it seeks to substitute citizenship requirements of the Act with a declaration of persons who register with the EC. Such people may not even know the guaranteed person. Majority of such people, most likely, have no knowledge of the citizenship law. They have no information whatsoever of the guaranteed applicant to be able to determine his citizenship.

b) I think the guarantee form is also inconsistent with the statutory declaration Act. Section 2 of the Statutory declaration Act provides that a person wishing to depose to any fact that is not related to a matter in Court may do so by a statutory declaration. Section 3 of the Act provides for the form a statutory declaration must take. Section 4 of the Act provides the procedure for making a statutory declaration. It says every magistrate, a notary public, a commissioner of Oaths or any person authorized by law to administer oaths may take the statutory declaration of any person voluntarily making it before him, and shall satify it under his signature.

Although the form requires depositions of facts outside court, it is obviously not in the legally prescribed form of a statutory declaration. The depositions are not taken by any of the authorities mentioned in the law above. It is not satified under the signature of any such authorities. This, in my opinion, is illegal.

c) contrary to what the form seeks to do or ought to be doing, it actually requires the guarantor to depose to matters of Law. The guarantor is required by the form to vouch for the qualification of a person to register and vote. "qualification to register and vote" is, however, a bundle of matters of law. These include citizenship. A non-lawyer cannot vouch for the accuracy of Law or a legal position. Not even under oath. To the extent that the guarantee form requires people to vouch for matters of Law without legal knowledge, it is illegal.

d) The guarantee form and the manner of its administration also violates the Oaths Decree, 1972 (NRCD 6). At the end of the guarantee form, it is clear that the guarantor is made to swear an oath. Section 5 of the oaths Decree mandatorily prescribes the manner an oath ought to be taken. Just like Statutory declarations, oaths must be admistered by specified authorities in the Oaths Decree. Section 9 of the Act expressly mentions officials who are authorized to administer oaths. However, The guarantee form of the EC is not administered by any of those authorities, and it is not administered in the manner prescribed by section 5 of the Act. On that account, I am of the view that the guarantee form and its administration is illegal, and offers a greater opportunity for unqualified people to get into the voter register.

3. I am also of the view that the NIA card and the passport cannot be valid proofs of citizenship because of the information based on which they were issued. It is not clear why the EC has by C. I 126 prefers the NIA cards and passport to the exclusion of driving license and all ID cards which duly have the nationality of their bearers on their faces. It however appears that such ID cards were excluded because they were issued based on information that was insufficient to determine citizenship. If that is actually the position of the EC, the Passport and NIA cards are not any better in that regard. The information taken by both the NIA and passport office on their application forms is woefully inadequate to establish citizenship of Ghana. They merely required applicants to state their nationality on the form. Infact, section 4 of the NIR act as amended is emphatic that the NIA will merely record what it collects from applicants. Neither the Passport office nor NIA required the date and place of birth of the applicant’s parents, grand parents, or great grand parents. They did not require the naturalization or registration certificates of the applicant's parents, grandparents, or Great grand parents. As argued earlier, the above particulars are what the citizenship laws of our country require to be proven before one can identify a citizen of Ghana.

In addition to that, neither of them required information that could reveal renunciation or otherwise, of the citizenship any time before the application to register and vote. To the extent that the NIA and passport office did not request the legally required information before labeling people Ghanaians, the documents they issue cannot prove citizenship of Ghana.
They also cannot and should not be used for registration to vote. The acceptance of such documents as evidence of citizenship by the EC violates the citizenship laws of Ghana and is therefore illegal and inconsistent with article 42 of the constitition.

4. Moreover, I think the indication of nationality on the face of the NIA card, is inconsistent with NIA's own regulation. The National Identification registar regulation, 2012, (L.I 2111) has, by its regulation 5, categorically, expressly, and mandatorily stated what should be on the face of the NIA card. It did not include citizenship or nationality of the holder. It means the nationality of the NIA card's holder should not have been stated on the card.This is properly so because the framers of L.I 2111 acknowledged that the information taken by NIA before issuing the cards is insufficient for determining citizenship. It is also properly so because, just like the National Health insurance card, non-citizens are also permitted by the NIR Act to register and issued the card. The NIA cannot be expected to know the citizenship laws of all countries in the world. It is therefore clear that the intention of the NIA is not to establish citizenship. It is also clear that the NIA card is intended by law to be exactly like the National Health Insurance card. Let me be quick to add that, section 1 of the National Identification register (amendment) Act, 2017, (Act 950) which includes nationality as part of personal data of applicants to be recorded in the register, does not affect L.I 2111. To the extent that the NIA card defy L.I 2111, it is again illegal, and accepting it as proof of citizenship in the EC's registration exercise is also illegal.

It is my humble opinion that the birth certificate would have been helpful to a large extent in verifying some particulars of voter qualification. It is the primary and most reliable evidence of a person's age. It is also the primary and most reliable source of its bearer's date and place of birth. The absence of the bearer's photograph on the birth certificate does not in any way detract from its relevance, admissibility, and evidentiary value in the EC's registration process.

All that needed be done was allow its presentation to the EC officials together with any ID card containing the name and photograph of the applicant. Such ID card could be used to identify the applicant with his birth certificate by comparing the name on the ID card with that on the birth certicate. As simple as that! It is therefore unfortunate and astounding that the appex court of our land could so comfortably hold that birth certificate could not be used to identify a voter registration applicant because it has no photograph of the applicant on its face. This is more so when both the passport and national Identification register Acts required birth cirtificates before issuing their respective documents. If it is impossible to identify a person with his birth certificate, how on earth did the NIA and the passport office do it? It simply means the age indicated on passports and the NIA cards were not verified and cannot be relied upon by the EC.

For the above reasons, I think the current voter registration exercise is another waste of the tax payer's money, which will yield a worse voter register and ID cards than what they seek to replace. I think the same and more reasons exist for the new register to be set aside by any consistent Court of justice. Lawyers and stakeholders of the Electoral process should be silent about it.

We hope for a better tomorrow.