Abu Ramadan v EC: Which is the problem, the judgment, its interpretation or both?

Law Yers Judges

Mon, 23 May 2016 Source: Samson Lardy ANYENINI

The other day I asked Nana Asante Bediatuo (lawyer the Plaintiffs) if his Entry of Judgment will include anything but the orders (or + the reliefs granted).

There is no mention of NHI card registrants in the orders or the reliefs granted. But the big question may be whether or not the Judgment is an integral part of the orders, i.e. the orders being a summary of the Judgment, or whether the orders alone are truly unclear.

A victorious party is required by the rules of court to file an Entry of Judgment quoting the specific orders (not the judgment) and requiring the defeated party to pay up, give up possession, do or refrain from doing something.

Okay, let's try a common sense question, but the answer may not be sacrosanct. Which category of voters when deleted should be afforded the opportunity to re-register not using the unconstitutional NHI cards as ordered by the court - minors, the dead, foreigners or NHI registrants? Re-register law-breakers?

It is noted the answer may not be one. A minor at 2012 may be of majority age in 2016, and a foreigner may have naturalised or acquired dual citizenship. But both would have offended the law in 2012 because it is only those who used the now declared unconstitutional NHI card as identification document for registration who didn't break any law at the time in 2012.

This might help in decoding the controversial issue. If you were a minor or a foreigner registering at the time, you were committing an offence punishable by up to two years in jail and after serving the sentence, you get five years ban from being registered or voting in public elections and referenda.

So, these could be qualified for registration but perhaps only by 2018 if they had been convicted in 2012. But if they were found out now and convicted in 2016, they potentially could be qualified to register sometime in 2021 or soon thereafter if handed the ultimate sanction.

Here are the reliefs granted and orders made suo motu by the court: "The result is that we proceed to grant the following reliefs: 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.

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.

A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible. Reliefs (4) (a) and (b) are dismissed in their entirety.

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; (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."

Judgment confirms status quo? The EC, ultimately, says these orders merely confirm the status quo when it said in its statement thus: “…For persons who registered with NHIA cards, such registrations were lawful at the time of registration, and the subsequent declaration of unconstitutionality in the earlier Abu Ramadan case, does not ‘automatically render them void’. Such a position according to the Supreme Court, “would have the effect of disenfranchising the persons affected.

Such registrations should only be deleted by means of processes established under the law…

The Judgment of the Supreme Court affirms the Commission’s consistent position on the status of the current Voters’ register and the mechanisms for cleaning it…

It must be noted that the EC by itself, has no power under any law currently in force, to unilaterally delete the names of persons from the register… Similarly, for persons who are already on the Provisional Register, the law requires that an objection is made during the exhibition process either by a registered voter or an official of the Commission...”

Delete NHI registrants in accordance with law? Check this critical portion of the judgment touching directly on NHI registrants to determine whether it is the reason for the present confusion or disagreement, and answer also whether it is really fair to fault the EC's understanding of the judgment requiring deletions/cleaning in accordance with processes established by law?:

"Turning to the presence on the register of voters’ of ineligible persons who must have utilized cards for their registration, …In our view, following the previous decision of this court in the Abu Ramadan case (supra) by which the use of the cards for registration was declared unconstitutional, the continued presence of names on the register that derive their identification from the said cards renders the register not reasonably accurate or credible.

In coming to this view of the matter, we are not disregarding the report of the panel which is part of the processes before us in these proceedings as exhibit “ABU6” that the register of voters is bloated, a fact which is not controverted by the defendants.

We are in a great difficulty, however agreeing with the plaintiffs that by virtue only of the said infraction, the entire register has the attribute of unconstitutionality. The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections.

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.

The legitimate way of treating them 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 (supra) 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." [Emphasis added]

So, did the court say these should be deleted, and by what means, and is there presently a law on how deletion of this category should be done? Unlike laws, judgments almost always, loosely speaking, have retrospective effect in the sense of correcting the wrong necessitating the suit. But the court is abundantly clear here in absolving this category of registrants of any punishment.

The EC agrees the court ordered deletion of NHI card registrants. But the EC insists the only known lawful mechanism to do that must be through the upcoming exhibition of the provisional register.

Okay, should the court have said: …amend C.I 91 within ...days from today to provide for a mechanism to clean the register. You shall within ... days thereafter delete names of minors, the dead, foreigners and NHI registrants, or except NHI registrants, where the understanding is that the EC does not agree it has been so ordered to delete NHI registrants?

Contempt and High Crime? If the Plaintiff can prove (and the degree required here is proof beyond reasonable doubt because contempt is quasi criminal) that the EC has sinned against the Supreme Court, how is article 2(5) of the Constitution to be activated to convict the EC commissioner of high crime for which she will be liable to up to ten years in jail, and thereafter disqualified from an elective office or for appointment to any public office for ten years? But is this the best solution instead of an application to the court to clarify its judgment or orders?

But could the parties in the case not agree to rather read the orders of the court to unmistakably imply a lawful directive to immediately delete NHI registrants not using the said exhibition process, but rather doing so on the orders (law [i.e word/instruction]) of the court? Might the court’s order (a) be read like this:“…delete or … “clean” the current register … to comply with the provisions of the 1992 Constitution [so it will contain only persons correctly identified as eligible Ghanaians per article 42], and applicable laws of Ghana;[esp C.I 91 which does not admit NHI cards for identification for registration], so the register becomes reasonably accurate or credible?

It is possible for them to resort to and take a cue from pages 20 and 21 of the July 2014 judgment that declared the NHI cards unconstitutional, to agree that the court does not expect the deletion or cleaning to be done via the exhibition process?

The court had rejected an argument of the underling philosophy of the challenge or complaint mechanism in very hash words cautioning that “an unhealthy reliance on the challenge and complaints tier is bound to generate chaos, confusion and anarchy at registration and polling centres…it does not promote excellence in work ethic and same ought to be rejected.

It dignifies mediocrity, which certainly is not a value that we in this court should endorse nor promote.” [emphasis added]

May the parties find wisdom to resolve their differences in a fashion that does not throw the elections calendar out of gear, and/or work to further polarise the country to disturb the peace.

The court, having made a finding of fact that the register is incontrovertibly bloated and not “reasonably accurate or credible”, the disagreements ought to be resolved in a manner that does not give room to a bad loser to contest the outcome of the elections on the basis non compliance or breach of the orders of the court for a “reasonably accurate or credible” register for the 2016 Presidential and Parliamentary Elections.

I am extremely busy this Friday [May 20] afternoon as I begin my preparations for NewsFile tomorrow, but I feel this urge to contribute here in a way I am not exactly expected to do, particularly on issues such as this when moderating the show.

Columnist: Samson Lardy ANYENINI