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Opinions of Tuesday, 9 March 2004

Columnist: Asare, Kwaku S.

The EC must respect our Tehn Addy Rights

The Electoral Commissioner (EC) has set aside March 15 to March 29 to compile the Voters? Register for the impending elections in December 2004. According to the EC, the current register will replace the 2000 register, which turned out to be pregnant with errors. In turn, the 2000 register replaced the 1996 register, which replaced the 1992 register. Like the 2000 register, the 1996 and 1992 registers were replaced because they, too, were bloated.

It is estimated that the 2004 register will cost over ?80B ($10,000,000). My guess is the 1992, 1996 and 2000 bloated registers were equally costly. In most countries, a full parliamentary inquiry would have followed the 1992 fiasco to examine what went wrong so as to avoid repeating the problems in the future. But not in Ghana, where, we are constantly being told that democracy is expensive and we must applaud these expenditures.

The purpose of this essay, however, is not to discuss cost. My purpose here is to discuss two issues raised by Mr. Okyne, Director of Public Relations at the Commission (see Ghanaian Chronicle of March 3, 2004). The first issue deals with whether persons who miss the tight and unreasonable two week window can vote. The second issue deals with selective registration of Ghanaians abroad. For both issues, I believe the EC?s position is untenable and I draw my conclusion from article 42 (?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?), as interpreted by the Supreme Court (SC) in Tehn Addy v. Electoral Commission.

According to Mr. Okyne, it is imperative for Ghanaians to understand that a person who fails to register during the registration window gives up his right to vote during the upcoming general election. Mr. Okyne also contends that a facility would be provided for Ghanaians working in Ghana?s foreign missions, students on government scholarships abroad and Ghanaians working with international organizations recognized by the country, to register in their country of residence. Both positions have been reiterated by other officers of the EC. I find the positions taken by the Commission to be rather unfortunate, especially in light of the Supreme Court holding in Tehn Addy v. Electoral Commission (Judgment delivered on 26 March 1997).

In that case, the EC declared October 1995 as the registration window for eligible voters intending to vote in the 1996 general elections. Mr. Addy, a 57 year old pastor, was at that time on a pastoral visit to the ARS Church, in Toronto, Canada. When Mr. Addy returned to Ghana, he wrote a letter, dated 27th March 1996, to the EC demanding that he be registered. The EC did not acknowledge or respond to his letter. When the EC opened the supplementary register from 1st June to 9th June 1996 to register Ghanaians who had attained the age of 18 since the close of the October registration window, a determined Mr. Addy showed up to register. The EC failed or refused to appear at the designated place to register him. Mr. Addy sued the EC and the Attorney General at the Supreme Court seeking:

(1) a declaration that the conduct of the EC in failing or refusing to register him as a voter is inconsistent with and in contravention of articles 42, 45 and 46 of the constitution.

(2) A declaration that the EC, having exercised its discretion to register voters between 1st and 9th June 1996, is bound to register or fix a new period for the registration of Mr. Addy as a voter in accordance with articles 42, 45 and 46 of the constitution.

(3) An order of perpetual injunction restraining the EC from certifying the provisional register until Mr. Addy has been registered as a voter. Although the EC conceded the substance of Mr. Addy?s claim, he responded that he had to put off the supplementary registration exercise because of a pending suit against the EC (The NPP and PCP filed a suit in the high court for a declaration that the June 1st to June 9th supplementary compilation was illegal).

The issue was whether the EC could refuse to register Mr. Addy where the latter failed to register during the October registration window but subsequently attempted to register through the March 1996 letter and showing up at a designated registration center during the supplementary period.

A unanimous Court held that the EC could not refuse to register Mr. Addy and ordered the EC to register him. The Court reasoned that the right to vote is a constitutional right, derived from article 42, therefore no qualified citizen of Ghana can be denied of it, since the constitution is the supreme law of the land. The Court also noted that there are significant disabilities attached to non-registration. For instance, one who is not registered is disqualified from being a member of Parliament (MP) (see article 94(1)(a). And one who cannot be an MP is disqualified from holding many public positions including a minister of state (see article 78(1)); a member of the EC (see article 44(1)); president or Vice President (see article 62(c)); a member of the Public Services Commission (see article 194(3)(a)); and a member of the National Commission for Civic Education (see article 232(3)).

The Court found those disabilities onerous and noted that the EC has a heavy responsibility under article 45 to ensure that all eligible Ghanaians have exercised this right to register. In the words of the Court, ?the exercise of this right of voting, is therefore indispensable in the enhancement of the democratic process, and cannot be denied in the absence of a constitutional provision to that effect.?

Tehn Addy stands for the proposition that the EC should desist from arbitrary, unreasonable and inflexible registration procedures that disenfranchise eligible voters. Further, the EC?s procedures must be inclusive rather than exclusive and the EC must resist the temptation to issue decrees that disenfranchises eligible voters. As the most precious right in a free country, the denial of that right renders all rights illusory. Applying the Tehn Addy rule, it is manifestly clear that the statements by Mr. Okyne cannot pass constitutional muster.

With respect to the 2 weeks registration window, it is totally unreasonable for the EC to expect to register over 6 million people in 2 weeks using 2,000 cameras. Most people would have to give up productive activity to stand in needless queues. Further, there are many Ghanaians who for one reason or the other may not be available during that period. After all, do we expect people to abandon long laid down business and social plans just because the EC, who had 4 years to do a job but failed to do it, declares a 2 weeks inflexible registration window? The subtle message in Tehn Addy is that the EC must plan ahead to maximize the number of eligible voters not create a panic situation where the nation is given a 2 weeks window to register or lose the precious right to vote. Thus, the EC?s plan to shut the door on those who fail to register during his registration window is probably unconstitutional.

Turning now to the selective registration of Ghanaians overseas, it is clear, from the principles of Tehn Addy, that it is also unconstitutional. In Tehn Addy, the EC opened the supplementary register for Ghanaians who had turned 18 but not for others. The Court rejected the selective registration and held that Mr. Addy should be registered. Mr. Okyne contends that a facility would be provided for Ghanaians working in Ghana?s foreign missions, students on government scholarships abroad and Ghanaians working with international organizations recognized by the country, to register in their country of residence. That is the type of selective registration that was rejected by the Court. Having found a way to register some Ghanaians resident overseas, the EC is bound by the constitution to extend that facility to all eligible Ghanaians. It is way beyond the bounds of constitutional propriety for the EC to determine who can and who cannot register. Being an 18 year old sane Ghanaian is the only criteria for registration! To register some eligible voters resident overseas, but not others, would be to create a two-tier system of constitutional rights, a system of constitutional caste that is manifestly contrary to article 42, that ignores the holding in Tehn Addy, and that does irreparable harm to the excluded class.

I do not work in a Ghanaian mission; I am not a student on government scholarship; and I do not work with an International Organization. Nevertheless, I fully intend to register at the embassy when the window is opened. In this vein, I am calling on the EC to make the overseas registration process, including the registration window, as transparent as possible. I am also calling on eligible voters everywhere to contact their respective embassies and to insist on their right to be registered. We derive our rights from the constitution but the constitution is not self-enforcing. Accordingly, we must insist on our Tehn Addy rights.

To conclude, the EC needs to shape up. We have had enough of the arbitrariness.


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