By Kofi Ata, Cambridge, UK 20 May 2016

The Electoral Commission(EC) issued a statement yesterday claiming that it will not remove names of voters who used the NHIS cards to register from the Voters’ Register as ordered by the Supreme Court in its ruling of May 5, 2016 in the case of “Abu Ramadan and Evans Nimako versus The Electoral Commission and The Attorney- General” (see, “Names of NHIS card registrants won't be removed from register – EC”, Myjoyonline/Ghanaweb, May 19, 2016). I was shocked when I read the news, the EC’s statement and its interpretation of the ruling. This article is a brief analysis of the Supreme Court ruling within the context of EC’s interpretation.

The actions and omissions of Ghana’s Electoral Commissioner, Mrs Charlotte Osei, remind me of my secondary school days in Ghana, especially in Cape Coast where some students were so pampered at home that, often their language, actions and omissions clearly showed that they were not living in the real world. We called them, “Dadaba”. They came across as either naive, spoilt or simply arrogant and that is exactly how Mrs Charlotte Osie behaves. She is dismissive on and trivialises very serious national issues through her language, actions and omissions. For example, she once described letters sent to her by the main opposition party, NPP as “love letters”. When the EC officially launched its new, bizarre and plagiarised logo, she described it as “mine is nicer, we saw it and we love it”. If she is a dadaba or mamaba, she must grow up because she is being childish, arrogant and disrespectful to Ghanaians.

I have had the opportunity to read the Supreme Court’s written judgement of May 5, 2016 and was disappointed but not surprised to read that the EC and Attorney General had the audacity to argue before the Supreme Court that it did not have jurisdiction to hear the case because the EC is an independent constitutional body. What an insult? It beggars belief that Mrs Osei, who is lawyer thinks that the constitutional independence of the EC means the EC is above the Supreme Court. If that was not absurdity and arrogance, what was it? Not even the Legislature is above the authority of the judiciary.

For the avoidance of any doubt, I quote the reliefs granted by the Supreme Court on this matter.

“The result is that we proceed to grant the following reliefs: (1) That upon a true and proper interpretation of article 45(a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate and credible register;
(2) A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible and;
(3) A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible”.

The Supreme Court did not stop there but in addition made the following orders. “In the exercise of the power conferred on us under article 2(2) of the constitution, we make the following orders:

(a)That the Electoral Commission takes steps immediately to delete or as is popularly known “clean" the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana; and (b) That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law”.

It must be pointed out that for the orders to be effected and operationalised fully by the EC, the reliefs granted and the orders made must be read and interpreted together.

What are the applicable laws of Ghana when it comes to the Voters’ Register? The first is the 1992 Constitution, followed by valid Constitutional Instruments issued by the EC to regulate the organisation and management of elections and finally secondary legislation (case laws) regarding election disputes (that is, electoral disputes rulings by the High, Appeal and Supreme Courts).

The Supreme Court also made reference to and relied on an earlier decision of the same court which ruled the use of NHIS cards as proof of Ghanaian Citizenship or established qualification to register, unconstitutional. In other words, these are registered voters who are described by the Supreme Court as “the names of persons who have not established qualification to be registered” as contained in relief (2) above. They are the same registered voters that directive (a) above applies to because they used the NHIS cards to establish qualification to be registered and indeed registered which earlier has been ruled unconstitutional.

It is therefore illogical for the EC to claim that the Supreme Court did not order the removal of people who registered with the NHIS cards from the voters’ register. No rational human being after reading and interpreting the reliefs granted, the orders made and the earlier Supreme Court ruling on the use of NHIS cards will come to the conclusion by the EC. In fact, the EC’s interpretation of the Supreme Court ruling amounts to contempt of court. Indeed, the words used in order (a) above are, “the Electoral Commission takes steps immediately to delete….”. This is very clear and unambiguous.

In any case, who gave the EC the authority to interpret judgement of the Supreme Court? Only the judiciary has the constitutional mandate to interpret Supreme Court judgements. If the EC is in doubt as to the accurate interpretation of the reliefs granted and the orders made by the Supreme Court, it must go back to the same court or High Court for the accurate interpretation and not usurp judicial powers. This is the arrogance of Mrs Charlotte Osie who in her deluded mind believes that her actions and omissions are not subject to the judicial review by the courts, including the Supreme Court, simply because the EC is an independent constitutional body. The independence of the EC is as far as its acts and omissions are within the 1992 Constitution and not above and therefore subject to a review by the judiciary.

For the EC to avoid contempt of court charges for failure to delete the name of those who used the NHIS cards to register as voters, the following steps must be taken by the EC immediately and without any further delay:

EC must identify all names/voters that used the HNIS card to register, delete them from the Voters’ Register and make a separate register of the deleted names to be exhibited throughout the country (at national, regional, district, constituency and electoral area levels);

EC must notify all such names/voters by letter, phone or public announcement on radio, television and EC website that their names have been deleted from the Voters’ Register because they used NHIS card to register and in accordance with the Supreme Court Orders.

EC must inform all such voters the steps they should take to re-register within a specified period;

The EC must publish and announce the steps it will take to re-register the affected voters.

The EC must provide a list of all such names/voters to all registered political parties;

The EC must inform all registered political parties of the steps it will take to re-register names deleted from the Voters’ Register;

The re-registration should take place across the country at national, regional, district, constituency and electoral area levels), etc.

The EC does not require any new Constitutional Instrument to undertake the above because it is acting on the orders of the Supreme Court and therefore within the 1992 Constitution and the applicable laws of Ghana.

Failure to take immediate steps to delete names of voters who used NHIS cards to register from the Voters’ Register as ordered by the Supreme Court will be unconstitutional and clear contempt of court that should require a custodial sentence of the EC Chair and all Commissioners. Mrs Charlotte Osei should be told in plain language and action that she is not above the law. Immediately following their trial and custodial sentence for contempt of court, the processes for their removal from office must be initiated. Enough is enough from this arrogant and disrespectful Electoral Commissioner.

Kofi Ata, Cambridge, UK