Unwelcome dumsor bye bye NDC

My lack of affection for the NDC Government is nothing new. I don’t like their policies, I don’t like the lying and I don’t appreciate the lack of foresight. To cap it all, I don’t believe in social democracy, whatever it means.

I well and truly do not think much of the President and the person who used to be my buddy and very good confidant when he was deputy minister has turned coat and become the least respected financial person in my closet of professional associates.

I have said many times before that this Government will never fix dumsor.

There are congenital liars in the NDC Government. There are NDC persons whose first statements in any situation is to spin a lie and then blame it on the collective failure of the people of this country. And it is always someone else’s fault, never their policies and programs.

As I sit in darkness again writing this, I wonder why I should not start a massive campaign with dumsor in centerfold, letting the people of this country understand that this incompetence is an acquired skill.

Our Government is incompetent to perfection. Nothing anybody can say or do will convince me otherwise and our ministers and executive are a mess of Ananse story tellers.

I don’t want a continuous power crisis in my life, so please join in and let’s rid this country of this political party for the last time.

Let dumsor turn around and make a beeline for some other country’s grid and let the NDC government leave this office and never show its face here again.

Here is what has occupied my mind all week. I didn’t write this but I was educated after I read it. I am passing it on with permission.

“There are two fundamental problems with the EC’s position. The first is that they are stretching “not automatically void” to absurd and illogical conclusions to suit their ends. The basic question is whether those NHIS registrants are lawfully on the register, whether their registrations were automatically void or not. The only reasonable interpretation of that statement by the court is that the registrations were voidable because of certain unique circumstances, notably the fact that they were made under a law deemed valid at the time.

They would have been automatically void if the used documents that the law didn’t allow at all, like a birth certificate or baby-weighing card. However, the court having previously declared the use of the cards unconstitutional, the registrations cannot be said to accrue any rights at all. Robert Clegg is simply wrong on that point.

The simple reason is that in order to accrue rights under article 42 you must establish that you qualify to register. No matter how anyone looks at it, those who used the NHIS cards to register have not established qualification and therefore cannot have acquired any rights capable of maintenance. How does the use of a void card give anyone any rights?

The accrual of rights argument is poor and does not take into proper consideration, the constitutional precondition to the acquisition of those same rights.

The judgment is clear that the presence of the NHIS registrants on the register makes the register not credible or accurate. I would go on to say that a true and proper interpretation of the 2014 judgment would mean that the presence of those names on the register is unconstitutional even if the whole register is not. This is why the court ordered their removal and the court could do so because the order was consequential upon the judgment of 2014 as well as the declarations of 2016!

. The second problem with the EC’s position is this reliance on the court’s statement that the legitimate way to treat those NHIS people is to have them removed by established legal processes and the court’s affirmation of the EC’s independence.

On those bases, the EC is saying that they are to determine how to remove those names with reference to their known processes. This is also a flawed argument. First of all the court also affirmed its power to “correct” the EC when it goes wrong notwithstanding its independence. This point is such a key feature of judicial review jurisprudence that it need not be debated.

Now, if we look at the processes in place for the EC to delete names, which the EC itself refers to as the Exhibition and challenge process, where can it be said that the situation of the NHIS registrants may properly be dealt with? The court says delete and give opportunity to those who qualify to register again. Where in the current law does it say when a name is deleted that person must be given the opportunity to register again? Nowhere!

This is because a category of persons constituted by the NHIS registrants was not contemplated by the law. I am referring to Ghanaians who otherwise qualify but used the NHIS card to register. If you are a foreigner or a minor or dead person and your name is deleted you cannot have any opportunity to re-register as contemplated by the Supreme Court order (b) for obvious reasons. So clearly there is no current EC process that allows total compliance with the orders of the court. Clearly then, the court, when referring to legitimate legal processes could not have been referring to those existing processes. It’s a fallacy to claim otherwise. Rather, the lawful processes would include orders of the Supreme Court under article 2(2). Does the EC have power to delete names from the register?

The answer is yes, following a review of a challenge by the EC itself or a third party. My contention is that if it is a power the EC has under law, whether statutory or constitutional, then the Supreme Court can order the EC to do so.

As an aside, let’s remember that under article 45(a) of the constitution, the EC is empowered to revise the register at such periods as may be determined by law. Let’s also remember that the Supreme Court’s orders constitute law.

Now, under the relevant constitutional instrument, the EC can delete names following a review and the court has done such a review through the proceedings in this case and has come to the conclusion that notwithstanding any good faith registration under a law that was then in force or whatever, the continued presence on the register of the NHIS registrants is not proper. I would argue, is unconstitutional because it is clearly inconsistent with the constitution even if the whole register is not thereby rendered unconstitutional. Having completed its review of the registrations of that category of persons, the court now says EC should go and delete those names pursuant to its powers under article 2(2). The court never ordered the EC to go and do so using its so-called existing legal processes.

That would be absurd especially since those processes would clearly not achieve the aim of the orders. I have already demonstrated why this is so. My view is that the court declined to say that the NHIS registrations were not “automatically” void (emphasis on the word automatically) because to do so would put the 2012 elections in jeopardy and the court had to skillfully find a way around that, in spite of all the previous relevant authorities holding the contrary view. It has nothing to do with any accrual of rights!

We must always bear in mind that this case is a constitutional case involving interpretation and enforcement of constitutional provisions. It is not about the enforcement of the EC rules under constitutional instruments. The reliefs granted and orders made were only in respect of the constitutional issues before the court and the court has spoken.

If the law upon which the registrations were based is void, how can the registrations and the cards have any legitimacy? This position flies in the face of the courts own jurisprudence in a long line of cases, which the principles of equity cannot overcome.

However, in this case, the court says the continued presence of such names on the register is unreasonable and renders the register not reasonably accurate or credible and has therefore ordered their deletion

Bye bye NDC.

Ghana, Aha a y? din papa. Alius atrox week advenio. Another terrible week to come!

Columnist: Sydney Casely-Hayford | sydney@bizghana.com