Supreme Court’s decision upholds independence of EC
The judgement by the Supreme Court which upheld the Electoral Commission ‘s decision to compile a new voters’ register with the Ghana Card and the Ghanaian passport as the source documents, has been praised and criticised by many.
One particular argument canvassed by the critics is why the Supreme Court would allow the EC to reject an existing voter ID card as a prerequisite for the registration, when in the Abu Ramadan vs Attorney General case in 2016, the court ruled that a voter ID card is a prima facie proof of citizenship.
It is their contention that per Article 42 of the 1992 Constitution, only citizens of Ghana are allowed to register as voters and also to vote., and therefore, a voter ID card ought to be included as one of the proof of identification for the registration.
EC’s independence
I am not a lawyer, but what I have observed as a journalist who covered the Abu Ramadan case and the recent case by the National Democratic Congress (NDC) is that hardly will the Supreme Court tamper with the independence of the EC.
Article 45 of the 1992 Constitution gives the EC the power to conduct public elections, and also to compile a voters’ register and revise it periodically.
It is instructive to note that in the performance of its functions, Article 46 of the 1992 Constitution makes the EC an independent body and insulates it from the control of anybody or authority.
That was the position of the Supreme Court in the Abu Ramadan case and also in its decision in the suit filed by the NDC. According to court, it would not interfere with the independence of the EC unless the EC acts unconstitutionally.
Unconstitutional act
That was why in the Abu Ramadan (No 2) case, the court ordered the EC to delete from the electoral roll the names of those who registered with National Health Insurance (NHI) cards.
The Supreme Court took this position because it is not only Ghanaians who can acquire NHI cards. Foreigners can also acquire them, and, therefore, allowing NHI cards as one of the documents needed to acquire a voter ID card would be a sin against Article 42 of the 1992 Constitution which explicitly states that only citizens of Ghana can obtain a voter ID card.
It, therefore, shows that in the Abu Ramadan case, the EC had acted unconstitutionally, and therefore, the Supreme Court disregarded its independence and compelled it to act in conformity with the 1992 Constitution.
NDC suit was different
However, this is not the same in the case filed by the NDC which was seeking the inclusion of an existing voter ID card as part of the source documents for the registration exercise.
There are many documents which are prima facie evidence of citizenship. These include the Ghana Card, the Ghanaian passport, a voter ID card. Such documents are expected to be acquired by only Ghanaians, and therefore, whoever has them is presumed to be a citizen of Ghana.
My understanding of the Supreme Court’s decision is that the court took the position that it is not part of its constitutional mandate to tell the EC how it should compile an electoral roll, and therefore, to the extent, what documents the EC should use as source documents for the registration.
Therefore, it is not the duty of the court to direct the EC to use only Ghana Card and Ghanaian passport or to include an existing voter ID card as the documents a Ghanaian need in order to register as a voter. Such a decision is at the discretion of the EC.
The Supreme Court deciding for the EC would have meant an interference with the operations of the EC which would have been a clear violation of the independence of the EC as stipulated in Article 46 of the 1992 Constitution.
However, in deciding how to compile a new register which includes the documents a qualified Ghanaian need in order to register as a voter, the EC must ensure that the documents are prima facie evidence of citizenship in conformity with Article 42 of the 1992 Constitution.
Failure to do that would mean the EC had acted unconstitutionally. Such a move would be an invitation to the Supreme Court to disregard the EC’s independence and interfere in its operations just as it did in the Abu Ramadan case when it ordered the EC to delete the names of those on the electoral who registered with NHI cards because NHI card is not a prima facie evidence of citizenship.
In the NDC suit, the apex court reiterated that position when it dismissed relief eight of the NDC’s suit which was urging the court to order the EC to accept an existing voter ID card as part of the documents one needs in order to register during the voters’ registration exercise.
“The Electoral Commission in performing their mandate under Article 45 of the 1992 Constitution cannot be compelled to act in a particular manner unless there is clear evidence that they have acted unconstitutionally,” the court held.
Did the EC act arbitrary?
Per Article 296 of 1992 Constitution, a person or body vested with discretionary power must not exercise that power in an arbitrary or capricious manner.
In relief 6 of the its suit, the NDC wanted the apex court to declare the EC’s decision to exclude an existing voter ID card as a form of identification for the registration as “arbitrary, capricious” and therefore a violation of Article 296 of 1992 Constitution.
Although, the reasons of the apex court are not yet out, I am of the strong believe that the fact that the EC had made it possible for people without a passport or Ghana card to register through the guarantee system means that it had not acted arbitrarily as it had taken steps to ensure that no one would be disenfranchised during the exercise.
In dismissing relief six, the apex court once again reiterated its position in the Abu Ramadan’s case and held that it could not force the EC to exercise its discretion in a particular way.
According to the court, it is up to the EC to decide how to best exercise its discretion.
“If the law provides for alternative ways of performing the task, the discretion is vested in the actor in deciding within the limits imposed by Article 296 of the Constitution as to which one of them would best suit the task at hand,” the court held as stated in the Abu Ramadan case.
The court even went further to state that the EC in exercising its discretion to perform its constitutional mandate, would be deemed to be acting within the confines of the law, “and cannot be faulted even if it is considered that there is a more efficient mode or method available.”
It is based on this position that the Supreme Court did not prescribe the method the EC should use in deleting the names of those who register with NHI cards even though the order for the deletion was by the apex court.
The judgment by the Supreme Court can, therefore, be summed up as a decision that affirms the independence of the EC as guaranteed by the 1992 Constitution.
Writer’s email: emma.hawkson@graphic.com.gh