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Opinions of Friday, 27 May 2016

Columnist: Asare, Kwaku S.

Matters arising from the Ramadan case

I find it necessary to comment briefly on what the Supreme Court said about the National Health Insurance Cards (NHIC) in the Ramadan case. According to the Court,

“The legitimate way of treating them [NHIC] is to have them deleted by means of processes established under the law. … We think that any person whose registration is affected by the decision in the Abu Ramadan case 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.”

The Court anchored this position on two premises, as follows:

1. “As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically render them void.”

2. “In our opinion and as part of our function to declare what the law is, the above words which are unambiguous insulate the Electoral Commission from any external direction and or control in the performance of the functions conferred on it under article 45. ... A careful scrutiny of the constitution reveals that its function under article 45(a) is not subject to any other provision, therefore in performing the said function, we cannot make an order compelling the Commission to act in a particular manner.”
It is beyond serious dispute that the Court’s foundational premises are fatally flawed. Contrary to premise 1, the unconstitutionality of the use of the cards automatically renders them void. The Court, in doing its job, is bound by the Constitution. Article 1(2) of that Constitution provides that, “the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” If the law that permitted the use of the NHIC is inconsistent with the Constitution, then that law and its fruits (NHIC) are void!

Contrary to premise 2, the Electoral Commission is not insulated from direction from the Court. It is trite law that the Court can direct the Electoral Commission and all the independent organs of the State to perform their functions in the constitutionally permissible way. Article 2(2) of the Constitution provides that, “The Supreme Court shall for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made. Further Article 2(3) provides that “Any person or group of persons of whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.” Thus, to the extent that the Commission has exceeded its constitutional authority or taken actions that are inconsistent with the Constitution, the Supreme Court cannot only declare the actions unconstitutional but also can direct the Commission in any way that the Court deems appropriate to effectuate the Court's declaration. Thus, it is palpably problematic and a gross faux pas for the Court to assert that it "cannot make an order compelling the Commission to act in a particular manner."

It follows that the Court’s position is anchored on questionable grounds and cannot withstand serious scrutiny. That is, the opinion is per incuriam! Nevertheless, let us play ostrich and assume the Court’s position is built on something to allow us to explore the meaning of “The legitimate way of treating them [NHIC] is to have them deleted by means of processes established under the law.”

The Electoral Commission (EC) and several commentators have assumed that the process established by law is to remove these NHIC registrants using the exhibition method. Those who hold this view assume that the exhibition process is the only one legitimate way of deleting registrants from the voters’ register. As such, the EC must use the exhibition process to remove dead, underage, noncitizens, NHIC and other unqualified registrants from the register.
I demur! To understand the process for cleaning the register, one must distinguish between disqualifying information unknown and unavailable to the EC and those that are known and available to the EC. The current regulation allows the EC to use different processes for addressing the two types of information.

The purpose of the exhibition process is to allow the public to bring disqualifying information that is otherwise unknown and unavailable to the EC to its attention. This then allows the EC to ascertain the veracity of the information, give the affected person a hearing and to remove the registrant’s name but only if it is proven that the registrant is unqualified to be on the register. As an example, unknown to the EC, Kwaku Mensah registers to vote. Kwaku is 16. During the exhibition, Kwaku’s twin brother protests using the processes established by the EC, leading to the removal of Kwaku from the list. Kwaku has also committed an election offense and is liable on conviction of a fine or to imprisonment or both and could be disqualified from being registered as a voter or voting in future elections. In effect, the purpose of the exhibition of the voters’ register is to allow the EC to elicit information, which is unknown and unavailable to it, from the general public. The general public has superior information about who is dead, underage, non-citizen, etc. than the EC, hence the rationality of such an exhibition.

If the EC is aware or knows that someone is not qualified to be on the register, then the EC, sua sponte, can proceed to take steps to remove that name. It will be puerile for the EC to wait for an exhibition for someone to tell the EC what the EC already knows. This is why the EC routinely uses deduplication software to remove names from the register. Similarly, the EC's biometric software allows it to detect and automatically remove instances of multiple registration.

Understanding this analysis is critical to figuring out the “legitimate means” to remove NHIC registrants. NHIC registrants are known to the EC because they provided that information on Form 1. Thus, it is the EC, rather than the general public, that is in a position to identify them. In fact, exhibiting the register to identify NHIC registrants is an entirely worthless exercise because the public has no knowledge of registrants who used the NHIC. Given that (i) the Court has established that such registrants are disqualified and (ii) the EC knows who these registrants are, the law allows the EC to automatically remove them from the register subject, of course, to their being notified.

To illustrate, Akua Mensah uses the NHIC card to register. The Registration Assistant captures details of the NHIC card on Form 1. The Ramadan case tells the EC that Akua has not established her right to be on the register. The EC should "deregister" Akua because it has already been established that Akua does not belong on the register. However, Akua, unlike Kwaku, has not committed an election offense. Her predicament arises from an unconstitutional law. She should be notified that she has been “deregistered” and given an opportunity to show that she is qualified to register. Notice that exhibiting the voters' register is entirely useless and unnecessary in this case! The EC has superior information on Akua's use of the NHIC card than Akua's twin sister. Contrast that to who has superior knowledge on Akua's age or citizenship.

This then brings me to the second part of the Court position, which is to the effect that “We think that any person whose registration is affected by the decision in the Abu Ramadan case 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.”
How can people who are already registered be given the opportunity to go through the process of registration? It only makes sense because the EC has information on such registrants, is assumed to “deregister them,” which it can do under the law because the EC is aware that these people have not established their qualification to be on the register. Of course, because such people could be qualified, the Court is simply saying that they should be given an opportunity to register again, if they can indeed establish that they are qualified.

To sum up, the Court’s position is built on flawed foundations. The Court’s order to the EC simply means it should identify and delete NHIC registrants from the voters’ register but give them an opportunity to register anew if they can show they are qualified. Thus, the EC is required to automatically delete these registrants and to actively notify then of the flaw in their registration to allow them to, where possible, regularize their registration. In effect, NHIC registrants are to automatically deleted from the register but not automatically disqualified from registering anew. Another practical way to achieve the same goal is to notify NHIC registrants to “validate” their registration as a condition precedent to being kept on the register! The notification requirement is not onerous and can be done by placing the register online, which will also allow the EC to comply with its own regulation!

Da Yie!