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Opinions of Saturday, 6 June 2020

Columnist: Agyei Willliams

Has the Electoral Comission commissioned any citizenship slaughterhouse?

According to Sir Salmond Williams on Jurisprudence, if we ask, what is the title of citizenship no general answer will be possible unless a particular legal system is referred to.

USA law claims as subjects all who are born within the territory of the Country whilst French Law attaches French citizenship to French blood and their descent irrespective of place of birth.

Historically or in its primitive form, we may say that citizenship was by way of men united by common blood and descent, and by various bonds such as common speech, religion, and many others.

A right is either vested or contingent. A right is said to be vested if that right is already perfect but a right is considered as contingent if it is yet imperfect but capable of becoming perfect upon the fulfillment of some conditions.

Chapter 3 of the Ghana constitution when read, will suggest that citizenship is by way of blood except under special circumstances stated by the same constitution.

Article 42 states that “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”
Now the obligation imposed on the Electoral Commission is to ensure that any person falling under article 42 is registered to exercise the right to vote.
Now under article 51, it states that “The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

It is the function and duty of the EC to register voters and conduct public elections. All that it means is that the right to vote as a Ghanaian is not absolute or perfect until you have met the conditions precedent set out by the EC.

These conditions precedent use to include the acquiring of voter’s ID card. It is never in the contention that the EC cannot set the rules of the game however, the recent hullaballoo is the exclusion of one of the rules of the game which is the voter’s ID card in favor of National identification card or passport.

Another rule of the game which is very important but has received less attention is the vouching process which is the building blocks of all proofs be it an ID card or otherwise.

It is argued that the conduct of the EC to exclude the voter's ID card amounts to disenfranchising Ghanaians. This school of thought further argues that, even if the EC believes that the voter’s Register has become so corrupt, the decision to expunge it will still amount to disenfranchising the majority of Ghanaians by excluding the voter's ID card completely from the register.

This school of thought proceeds with the idea that the voter's ID card has become a prima facie evidence of satisfying the conditions precedent to exercising the right to vote, therefore, such right has now become absolute and that, a whole group cannot be punished just because few people in the group have not satisfied the conditions more especially when we are looking at a personal right instead of community right. The germane of this argument is the lack of opportunity given to genuine Ghanaians, who are holders of the now expunged ID card to be heard before its replacement.

This is a fundamental rule of law that declares that before a person can be condemned, he or she ought to be given the opportunity to make his case before an independent arbiter (Judiciary).

The popular Abu Ramadan case observed this principle of law. In that case, the NHIA card as a proof to vote was declared ineligible. Now the court in Ramadan v Electoral Commission(2016) reasoned that the NHIA card was obtained in good faith and under the authority of parliament, therefore, the subsequent declaration of the said Card as ineligible or the said authority as unconstitutional by the judiciary should not by automatic render them void because of its retrospective effect of punishing people for an act, which was not illegal at the time it was done and through no fault of the holders of such cards and particularly, the lack of opportunity given them to be heard.

The court resolved this injustice through Justice Gbadegme in the following words; “We think that any person whose registration is affected by the decision in the Abu Ramadan case (supra) be given the opportunity to go through the process of registration to establish his eligibility or otherwise in order that the appropriate remedies provided under the law may be applied.”

We now turn our attention to the replacement of the voter’s ID card. There is no doubt that the voter's ID card is legal but what is in doubt is whether the EC can by extrajudicial force expunged such proof and replace it? The clear answer is NO! but is it an extrajudicial force exercised by the EC?
It appears no because the constitution is the supreme law of the land and the watchman of this constitution is the supreme court. Therefore, any meaning given to the constitution appears to be superior to the ordinary text contained in it.

By the Abu Ramadan (2016) case per Gbadegbme; it appears that people through no fault of theirs could still have their eligibility re-tested by the EC so far as such test is reasonable and in the interest of the country.

The main question then is, is it reasonable to exclude voters' ID cards and whether or not the likely affected persons would be given a liberal opportunity to reassert their eligibility to vote?

As far as you have a right to vote, the EC has to ensure that you vote. But it doesn’t end there for the EC, the EC has an extra duty to ensure that the right persons vote. It is one of the core duties of the EC to ensure that only the citizens of Ghana determine who governs them.

If the EC fails on this mandate, it has failed all Ghanaians and the constitution just the same way the EC will fail an individual, if that single Ghanaian is disenfranchised in the process of ensuring that only Ghanaians truly determine who governs them.

These two objectives appear paradoxical. In an attempt to ensure that Ghanaians become in charge of who governs them, the EC appears to impose a higher duty on the citizens to arrive at that goal. This balancing act cannot only be a legal task but a policy consideration as well.

What the Court in my view ought to be concerned about is whether or not the new duty is too burdensome such that the risk of disenfranchising Ghanaians through the new conditions outweighs its benefits?

The court may then have to assess the following;

1. the procedures in acquiring a passport

2. the procedures in acquiring the national identification card

3.the procedure in the vouching process

4. Finally, the procedures used in acquiring the voter's ID card

In my opinion, both procedures in acquiring national identification cards and the voter's register are not too different.

Now, If the EC has the duty to ensure that the power of government is emanated from only Ghanaians, then the EC must have the power to vary the conditions precedent to the exercise of the right to vote but in a very reasonable manner.

I am not convinced that the replacement of the voter’s ID card and the register is reasonable but I am convinced that the EC has the power to effect all those changes reasonably

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