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Opinions of Saturday, 27 June 2020

Columnist: Kofi Ata, Contributor

NDC v EC judgement: did supreme court confuse NDC?


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The Supreme Court (SC) on Thursday pronounced its judgement on the case of the National Democratic Congress (NDC) versus the Electoral Commission (EC) and Mark Takyi-Banson versus the EC, challenging the EC from excluding the existing Voters’ ID and birth certificates from the Public Elections Registration of Voters (Amendment) Regulations, 2020, Constitutional Instrument 126 (C I. 126).

NDC sought eight reliefs in total from the SC, the first of which was withdrawn on the advice of the SC and seven related to the inclusion or exclusion of the existing Voters ID, whilst Plaintiff Takyi-Banson sought five reliefs including the interpretation of Article 45(a) to compel EC from compiling a new voters’ register and to include birth certificates in the C.I 126. Unfortunately, all but two of NDC’s reliefs were granted but with caveats that rendered them null and void. These were reliefs two and three. That set in motion confusing both NDC and media houses in Ghana.

NDC’s Relief Two stated, “A declaration that upon a true and proper interpretation of the provisions of the Constitution, specifically article 51 read conjointly with Article 42 of the Constitution, the power of the 2nd Defendant (EC) to compile and review the voters register must be exercised subject to respect for and the protection of the right to vote; Relief three: A declaration that upon a true and proper interpretation of the provisions of the Constitution, particularly Article 42, upon the registration of and issuance of a voter identification card to a person, that person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner”.

The SC ruled as follows, ”This relief is granted subject to the fact that all eligible voters must make themselves available for registration as directed by the Electoral Commission pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C. I. 126”.

NDC’s Relief Three stated, ”A declaration that, upon a true and proper interpretation of the provisions of the Constitution, particularly article 42, upon the registration of and issuance of a voter identification card to a person, that person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner”.

The SC ruled, “This relief is granted subject to the Voter Registration card issued to an eligible voter under the prevailing constitutional Instrument C. I. 126”.

Immediately after the judgement, there was jubilation amongst NDC leadership, members, supporters and followers with the General Secretary, Mr Asiedu Nketia claiming victory and vindication because the SC had ruled that the EC should include the existing Voters’ ID in CI 126. I received a weblink of Peaceonline’s report confirming Asiedu Nketia’s claims.

The same was posted by the Daily Graphic online, so I also forwarded the weblink to others with my own opinion that it was a positive constitutional development.

Shortly after this, I received Word and pdf documents of the SC summary judgement and I wondered why NDC jubilated because by the caveats in the language of the SC, the two reliefs were not granted as they were still subject to the CI 126 presented to parliament and has matured. The granted reliefs did not amend CI 126 in any form or shape.

The key words in the grated relief two were, “pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C. I. 126” and equally the key words in the granted relief three were, “under the prevailing constitutional Instrument C. I. 126”.

I do not know whether NDC did not read these keywords or they did not understand their implications. Was this a question of not understanding simple English or legal phraseology? In fact, some Ghanaians including Prof H Kwasi Prempeh, Executive Director of the of Ghana Center for Democratic Development (CDD-Ghana), have questioned the language used by the SC to grant the two reliefs (see, “Judges must learn to write and speak in plain English - H. Kwasi Prempeh”, Ghanweb, June 25, 2020).

The question is, was the SC by using this double edged sword language engaging in an act of judicial deception or just appeasing NDC in an erroneous way? Why would the SC grant reliefs and at the same time nullify them with caveats? Does this approach make sense?

The reality is that none of NDC’s seven remaining reliefs were granted and NDC came out with nothing. The whole exercise served no constitutional development, except the EC’s constitutional duty to compile a new voters’ register as and when the EC deemed it fit.

I agree with that decision and do not even understand why NDC challenged that because since the inception of the Fourth Republic, at least three new registers have been compiled by the EC, so why challenge it this time?

The SC judgement is this case, particularly the granting of two reliefs with caveats that nullified them at the same time raises more questions than answers. Is it constitutional or rational? Some have argued that it was because the EC is independent so the SC did not want to interfere with the EC’s independence.

I totally disagree with such an explanation because the EC’s independence is subject to the Constitution and therefore its actions and omissions are subject to interpretation by the judiciary. The courts have been given judicial authority to ensure that all actions and omissions of the EC are within the spirit of the Constitution and if they are not, to direct the EC to do so in accordance with the Constitution. That is not interference.

I believe that the exclusion of birth certificates from CI 126 is problematic and wrong but this will be discussed in my next article. Again, to accept the EC arguments that all previous Constitutional Instruments used to compile previous voters’ registers were not in compliance with the Constitution and therefore the existing voters’ ID must be excluded in CI 216 is also problematic because it means that all previous elections and referenda were unconstitutional.

That is dangerous because such a legal argument as accepted by the SC means that the late president Prof Attah-Mills, presidents John Dramani Mahama and Nana Akufo-Addo were not legally elected and that is not only absurd but madness.

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