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Opinions of Tuesday, 16 June 2020

Columnist: Kofi Ata

Has EC’s legal arguments nullified 2008, 2012 and 2016 elections?

Electoral Commission Chairperson, Jean Mensah Electoral Commission Chairperson, Jean Mensah

I have had the opportunity of reading and analysing the legal arguments the EC presented to the Supreme Court as justification for the exclusion of the current Voters’ ID card in the just matured Constitutional Instrument (CI. 126) or the Public Election (Registration) Regulations, 2020. This brief article is some of the observations from the analysis.

To be honest, I thought I was day-dreaming whilst reading EC’s 31-page legal arguments. I just couldn’t believe the claims and conclusions the EC made in its legal arguments. In fact, I was so shocked that I had to check the EC’s website to find out the EC says about itself. To put it simple and blunt, the EC claimed that the Constitutional Instruments (CI.12. CI.72 and CI.91) used for 2008, 2012 and 2016 presidential and parliamentary elections as well as the 2019 referendum were all unconstitutional because they did not comply with Articles 6 and 42 of the 1992 Constitution. For the avoidance of any doubt, Article 6 defines who is a Ghanaian citizen and Article 42 is the right to vote and who qualifies to register to vote.

The EC’s legal arguments were that, if the Voters’ ID cards were procured through the above Constitutional Instruments (that were unconstitutional) are transferred onto the new register, then the new register would also be unconstitutional, therefore the reason for the exclusion. The EC stated a number of authorities or case laws, including the Abu Ramadan versus EC Supreme Court case to buttress their arguments.

This line of reasoning is not only bizarre and absurd but also dangerous because it invalidates and nullifies the 2008, 2012, 2016 Presidential and parliamentary elections, including the 2019 referendum on the creation of the new regions. The explanations are given by the EC for this irrational conclusion is that during the preparation of voters’ register for all those elections, registrants were not asked to prove their eligibility to register and vote as required under Article 42 (that is, must be a Ghanaian, of 18 years and above and of sound mind). The EC further claimed that there was no indication on the existing register (Form A) to verify which documents were used by registrants to satisfy Article 42 requirements, so they did not qualify to be registered to vote.

What is worrying is that the EC did not provide any documentary evidence by way data from the register or that during those three registrations, the EC management went around polling stations across the country and saw registration centres and officers registering people without proof of their eligibility under Article 42. It also failed to show that it had conducted a survey of voters or the public which showed that they were not asked to provide their eligibility to register to vote during the registration exercise for all the three presidential and parliamentary elections. So, the EC’s conclusions that those Voters’ Registers are unconstitutional was simply based on the fact that the existing register which also emanated from previous ones didn’t indicate which eligible identity was used by registrants as required under Article 42. This is purely either speculation, an inference or conjecture that has no basis for constitutional jurisprudence.

Another example that the EC gave as proof of their conclusion that the existing Voters’ Register is unconstitutional was that EC’s 2016 Training Manual for the registration stated that, demanding registrants to prove that they were eligible to register and vote was not “mandatory”. Yes, this is true, and I have no reason to doubt the EC because they quoted from the training manual. But and is a big but, is that what really happened at registration centres across the country? My answer is emphatically, No. Because EC again has no verifiable evidence to prove that registrants throughout the country were not asked to provide evidence of their eligibility to register and vote either by way of data from the existing register showing how many did not meet the requirements, how many did; personally observing such non-compliance from the field during the registration exercises or a survey results carried out by the EC as proof of their conclusion.

It is my candid opinion that the EC is totally wrong to conclude that because the training manual contained wrong information, then that is what really happened. I say EC is wrong because there were challenges to some of those who either attempted to register or be registered. Such challenges were because they were either suspected of or actually did not meet the eligibility requirements under Article 42. Again, the challenges were resolved to rely on Article 42 requirements. Therefore, EC’s conclusion falls flat on the face of the evidence.

What is also irrational is that the EC excluded birth certificates from CI. 126 but included passports and the National Identification Authority’s Ghana Card. The fact is, both the Passports Office and NIA accept birth certificates as proof of Ghanaian citizenship and eligibility to hold a passport and or the Ghana Card. The question is, why would the EC accept passports and Ghana Cards procured with birth certificates as meeting Article 42 requirements but exclude the same birth certificates from CI. 126? It doesn’t make sense and it’s illogical.

The EC also heavily relied on the Abu Ramadan Supreme Court case to support its irrational legal arguments that the existing register was worst than Coronavirus. It claims that because the Supreme Court described the register as being “reasonable, not credible” in its ruling on the Abu Ramadan case, it continues to be reasonable not credible. The EC has forgotten that the case was about the presence of those who registered with NHIS cards and not about the totality of the register and those three words (reasonable, not credible) is what is known in law as “orbiter dictum” (expression of opinion in a written judgement which is not essential to the ruling and therefore not legally binding. Moreover, the EC does not appreciate that it was directed by the Supreme Court to delete all those who registered with the NHIS Cards and re-register them with other eligible forms of identity, which the EC complied with and therefore made the register reasonably credible before the 2016 presidential and parliamentary elections. To my surprise, the EC now claims that the Supreme Court directives were not complied with. In effect, the EC is saying and admitting that it committed contempt of court or perjury. It’s madness.

In fact, the argument the EC made on this matter is to such an extent that the EC is now admitting that it agrees with the plaintiff in that case. So, EC lied at the Supreme Court with its defence in that case. This is unbelievable. The current EC management does not understand that painting everything under the previous administrations affects the EC as a whole. How can the EC make such claims and draw the conclusion that all elections were unconstitutional, yet claim on its Twitter account that it’s one of the best in the world? How could the EC claim that all past presidential and parliamentary elections were unconstitutional when they were declared as free and fair by the international community and the EC is regarded as international best practice when it comes to the organisation and management of general elections?

Another legal argument the EC presented was that it wants to break from the past. Where in the 1992 Constitution, any Act/s of Parliament or Decree/s or case law/s in Ghana is the EC relying on to break from the past? Its answer is that the pasts Constitutional Instruments that were used to prepare Voters’ Registers were so tainted and contaminated that they must be exorcised from the yet to be prepared Voters’ Register. This is what made me look at the EC’s website to find out what it says about itself.

The website was under maintenance, but their Twitter page came up and guess what it said, and I quote. “A world Class Management body reputed for conducting one of the world’s best organised and most transparent elections”. The EC claims the past elections were unconstitutional. Does that make sense? EC’s legal arguments are simply not credible. They are absurd and crazy.

In my view, I strongly believe that the real reason why the EC made such ridiculous legal arguments to condemn what was done in the past and pronounce them as unconstitutional is that, the current EC management does not want to inherit anything from the Afari Gyan and Charlotte Osei led EC so they concocted such irrational stories to justify the unjustifiable and to defend the indefensible.

The EC must not forget that governance and development are continuous. One of the problems why Ghana’s development has been slow is the lack of a continuous approach to governance and development. Every government that assumes power (whether military or constitutional) abandons projects started by the previous one and begins their own projects. The disease has continued from independence till today and is the case under the Fourth Republic. Such an approach is not only expensive but retrogressive and the EC should not be allowed to throw away whatever they met, just in the name of “breaking with the past”.

What are the implications of EC illogical legal arguments? First, the EC has unconstitutionally clothed itself with the powers of the Supreme and pronounced past elections as unconstitutional because the CIs did not comply with Articles 6 and 42 of the 1992 Constitution. The EC has almost committed a treasonable crime by usurping the powers of the Supreme with its pronouncement.

If the EC’s legal arguments are accepted, it means all presidents and parliamentarians elected in 2008, 2012 and 2016, were not validly elected and any decisions and actions taken by them are null and void. This will create serious and dangerous consequences for Ghana as all agreements (bilateral and international) would be declared null and void. Can EC really say that Presidents Prof Attah Mills, John Mahama and Nana Akufo-Addo were not validly elected?

If so, what about the 2019 referendum that created the six new regions? The referendum was also conducted using the existing Voters’ Register, which the EC has pronounced as unconstitutional? The EC does not answer this question in its legal arguments.

Another question is, when did the current management of EC realise that the exiting Voters’ Register was unconstitutional? Was it prior to or after it relied on the same unconstitutional register to organise the referendum and described the results as credible, free and fair? If it was prior to, then why did it use it? The simple answer is that the EC is simply telling “Kwaku Ananse” legal fables after 28 years of constitutional democracy.

In conclusion, the right to vote enshrined in Article 42 of the 1992 Constitution is not only a right but also fundamental human rights that cannot be left to the current EC management’s whims and caprices to toil with. It is too fundamental to a constitutional democracy that should not be left to the baseless and disturbing speculation, inferences and conjecture by the EC because it threatens the very foundations of Ghana’s democratic dispensation. One of EC’s role is to promote and protect the right to vote under Article 42 and not to disenfranchise citizens for the simple reason that, it wants to break with the past.