I am confused

A very senior and respectable member of the legal fraternity at a Book Launch at the Teachers Hall in Accra in his remark as the Guest of Honour stated without mincing words that most judgments being delivered by our Superior Courts currently are not worth reporting.

He further stated that he would not appear in any Court in Ghana again and true to his word I have not sighted this respectable, principled senior member of the legal fraternity in Court for over two years now.

What has compelled me to name this senior member of the legal fraternity in this article is the chess game being played with the judgments of the Supreme Court in respect of the use of the National Health Insurance Card to register as a Voter.

I was the 1st Plaintiff with ABU RAMADAN as the 2nd Plaintiff in the consolidated case of Writ Nos. J1/92014 and J1/11/2014 which challenged the use of the NHIS Card to register as a Voter.

The Supreme Court Coram: MRS WOOD, C.J (Presiding), MRS ADINYIRA, DOTSE ANIM YEBOAH, GBADEGBE, BENIN and AKRAMBA all Justices of the Supreme Court unanimously granted our reliefs one and held as follows;

“A declaration that upon a true and proper interpretation of ARTICLE 42 of the 1992 Constitution the use of the National Health Insurance Card to register as a voter pursuant to Regulate 1 (3) d of the Public Election (Registration of Voters) Regulations C.I. 72 is inconsistent with ARTICLE 42 of the 1992 Constitution and is to the extent of this inconsistency VOID. Accordingly by virtue of the powers conferred on this Court by ARTICLE 2 (2) of the 1992 Constitution, the said Regulation 1 (3) d of C.I.72 is struck down”.

We hereafter as Plaintiffs prayed the Court to order E.C to remove the names of all who got their names on the Voters Register using NHIS Card.

The Court refused our prayer on grounds that those who registered with NHIS card have not been heard even though Regulation 1 (3) d of C.I. 72 per which they registered had been struck down for being VOID.

My humble understanding of the Court’s refusal of our prayer was that those who registered using NHIS Card had acquired protectable rights under the VOID Regulation 1 (3) d of C.I. 72.

Fellow members of the legal fraternity, is it not trite learning that no right is acquired under a void law. In my confused state, I am consoled by the article written by PROFESSOR S. KWAKU ASARE and in all humility I totally agree with the learned PROFESSOR when he stated in his article in The New Statesman, dated Friday May 13, 2016 edition among other as follows;

“It is a proposition of law that has been affirmed everywhere and too often that “an Unconstitutional Act, Regulation, Statutory or Constitutional Act, Regulation, Statutory or Constitutional Instrument though having the form and name of law is, in reality no law, but wholly void and ineffective for any purpose. Further the unconstitutionality dated from the time of the enactment and not merely from the date of the decision so branding it. An unconstitutional law is as inoperative as if it had never been passed. Thus an unconstitutional law cannot and does not impose duties, confers no rights, creates no office, bestows no power or authority on anyone. It is therefore untrue that the impugned registration were made under law that was then in force. The law was never in force, if it was unconstitutional as the Supreme Court tells us. It follows that the right the law conferred was conferred unconstitutionally and carries no legal weight”.

The rhetorical question is who in the legal fraternity disagrees with the foregoing statement of Professor Asare. While at home recuperating from food poisoning I had on 9th May 2016, I heard from Dr. Atuguba on the Joy FM News file that the Supreme Court has overruled its decision that Regulation 1 (3) d of C.I.72 was void and that the Court’s position in ABU RAMADAM & NIMOKO case is that Regulation 1 (3) d of C.I.72 is rather voidable.

I had earlier, when watching ADOM Okyere’s Good Evening Ghana heard him use the word “voidable” when he took time to explain the Supreme Court’s latest decision in ABU RAMADAN & NIMOKO’S case and the state of confusion I find myself in respect of the Supreme Court’s latest pronouncement hugely got worse.

In all humility, I want somebody to show me the article that says a law that is found to be inconsistent with any provision of the 1992 Constitution is VOIDABLE. OH – GHANA. For the benefit of those who do not have a copy of the 1992 Constitution I want to quote Articles 1 and 2 of the Constitution:

ARTICLE 1 (1) says

“The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution

. (2) This 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 (emphasis mine).

2 (1) A person who alleges that –

an enactment or anything contained in or done, under the authority of that or any other enactment; or any act or omission of any person is inconsistent with or is in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect. (2) 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”

I submit pursuant to the quoted articles and clauses that Regulation 1 (3) d contained in C.I.72 which is a provision contained in C.I.72 enactment having been found to be inconsistent with ARTICLE 42 of the 1992 Constitution to the extent of the inconsistency is VOID and not VOIDABLE, period; and any attempt to read ambiguity into the said articles and clauses will not lend itself to merit but mischief and let us remind ourselves that Ghana is part of the Common Law countries and not an Island to itself. The world is keenly watching us and we should avoid making ourselves a laughing stock in the application of fossilised legal principles.

The bane of governance trouble in Africa is the failure of our governance institutions to perform their functions in accordance with the law that created them.

The 1992 Constitution under Article 191 enjoins all members of the Public Services listed under Article 190 (1) including, the Judiciary, the Police and all other security institutions and E.C., to mention just a few, to discharge their duties faithfully in accordance with the Constitution, in the result, members of the public services have been given ample protection against, dismissal, removal from office, reduction in rank or any punishment without just cause.

Our public institutions have failed to perform their duties in accordance with the Constitution simply because most members are unable to separate the performance of their functions from their political beliefs and inclinations. As human beings, it is just and right to be political but that should never make a public officer to be partisan in the performance of one’s constitutional or statutory function.

The difference between public institutions in advanced democracies and that of most countries in Africa and in particular Ghana, is that, the allegiance of members of their public institutions is to their constitutions, written or not, that define their functions and not to their political affiliations and appointors.

Partisanship like bribery and corruption as described in Exodus 23:8 blinds the clear sighted and subverts the cause of the just.

The role of Chief Justice Marshall who was the last Secretary of State of President Adams in the USA but had become the Chief Justice when William Murbury who had been given a midnight appointment letter as a justice of peace by President Adams but had not been given his commission at the time Jafferson took over from Adams, went to the Supreme Court presided by Marshall for mandamus to compel Mr. Madison the new Secretary of State to issue his commission.

Despite the fact that Murbury was appointed by President Adams under whom Chief Justice Marshall served as the Secretary of State, Murbury’s application was refused. Justice Marshall proved in this case that a person can discharge his constitutional or statutory duties non-partisanly though he is politically inclined.

Justice Marshall is commended to all public officers including members of the Bench in particular.

Where are you my Good Old Professor KOFI KUMADO who taught me constitutional law some twenty five years ago, for your former humble student is “constitutionally confused”.

In my state of confusion I, respectfully, call on members of the public services including the Judiciary, the Police and other Security bodies, and E.C. to mention just a few to rise up and as patriots, work non-partisanly despite your political preferences to save Ghana from becoming a failed state due to public institutions’ failure to perform mandated functions non-partisanly.

I cannot delude myself in underestimating the arduous task imposed on members of the bench operating in our part of the world where every facet of our lives has been reduced to naked partisan politics and it is in such environment that in the interest of our solemn declaration and affirmation of our commitment to Freedom, Justice, Probity, Accountability and Rule of Law, all members of our public service, in particular our Judges mindful of their judicial oath, must strive against all odds to perform their judicial duties in non-partisan manner despite their political leanings if any.

GOD has obligated humanity in Genesis 1:28 to subdue the part of the world we find ourselves and live in peace and that obligation cannot be ameliorated by fasting and prayers as our modern day preachers tend to mislead the people to believe, in the result, let us apply the Wisdom of God to our variously acquired knowledge to re-build our nation to the best of our abilities.

IN HUMILITY TO ALL – ADIEU