IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF GHANA ACCRA-AD 2016

Transcription

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF GHANA ACCRA-AD 2016 WRIT TO INVOKE ORIGINAL JURISDICTION ARTICLES 2(1) AND 2(2) AND 130(1) OF THE 1992 CONSTITUTION RULE 45 OF THE SUPREME COURT RULES, 1996 (C.I. 16) BETWEEN Suit No: 1. ABU RAMADAN H/NO TH ABEKA KWAME STREET ABEKA-LAPAZ, ACCRA 2. EVANS NIMAKO H/NO. AP174 APLAKU-ISRAEL BORTIANOR-ACCRA PLAINTIFFS AND 1. THE ELECTORAL COMMISSION SIXTH AVENUE RIDGE ACCRA DEFENDANTS 2. THE ATTORNEY GENERAL MINISTRY OF JUSTICE MINISTRIES, ACCRA

2 STATEMENT OF THE PLAINTIFFS CASE RULE 46 OF THE SUPREME COURT RULES, 1996 (C.I. 16) MAY IT PLEASE MY LORDS, 1.0 INTRODUCTION 1.1 This Suit invokes the original jurisdiction of this court for the reliefs endorsed on the Writ of Summons which we shall soon refer to. In a suit such as this instant one, the rules require that the Plaintiff who has invoked its original jurisdiction completes the process of invoking the original jurisdiction of this Court by filing a statement of his or her case subsequent to filing the Writ of Summons. This statement can either be filed together with the Writ of Summons by virtue of which such a Plaintiff has invoked the original jurisdiction of this Court or filed within fourteen (14) days after filing of the writ. See rule 46(1) of C.I The requirement that the person who invokes the original jurisdiction of this court has an obligation to file a statement of his case is mandatory. Where the Plaintiff fails to comply with this rule of Court the Respondent has an option to strike out the Plaintiff s Writ of Summons. See rule 46(3) of C.I This Statement of Case is filed in compliance with rule 46(1) of the rules of this Court, the Supreme Court Rules, 1996 (C.I. 16) which requires the Plaintiff to complete the process of invoking the original jurisdiction of this Court by filing a statement of case. For the sake of convenience we crave the indulgence of this court to refer to the rules of this court hereinafter simply as C.I. 16 or the Rules. 2

3 1.4 Rule 46(2) of the Rules sets out the contents of the Statement of Case as follows: The facts and particulars that the Plaintiff before this court relies upon as forming the basis of his action. Rule 46(2) (a) of C.I. 46. The facts and particulars relied upon by the Plaintiff must be verified by Affidavit. Rule 46(2) (b) of C.I. 46. The list of witnesses, if any that the Plaintiff intends to call. Rule 46(2) (b) of C.I. 16. The list of decided cases as well as statutes that the Plaintiff relies upon Rule 46 (2) (c) of C.I Before stating the facts and particulars upon which the Plaintiffs in this case rely upon, we think it necessary to make a little point about the requirement that the Plaintiffs verify the facts and particulars to be relied upon by affidavit. 1.6 A reading of Rule 46 (2) (a) of the rules of this Court gives the impression that the affidavit in verification of the facts recited in the statement is to be part of the statement. We have, however, observed from practice that the affidavit is usually embodied in a separate document or process annexed to and filed with the Statement of Case. In terms of compliance with this rule, therefore, we have observed this practice. For this reason, Plaintiffs affidavit verifying the facts relied upon in this suit is annexed to and filed with this Statement of Case. Exhibited to the affidavit are the documents referred to in the facts and particulars relied upon by Plaintiffs. 1.7 The introductory part of this Statement of Case will, among others, state the facts relied upon by the Plaintiffs in this suit as required by the Rules in so far as the action before this Court is concerned. After doing this, we list the statutes, if any, and cases relied upon by 3

4 Plaintiffs. Following this, we summarise the case of the Plaintiffs and present the legal arguments supporting Plaintiffs case before addressing this Court on the circumstances under which the original jurisdiction of the Court to entertain the present action may be legitimately invoked. 1.8 The reason for which we crave your Lordships indulgence to permit us address this Court on the issue of jurisdiction is that, in suits of this kind before this Court, it is very frequent for parties or even this Court, suo motu, to raise the issue of jurisdiction. It is our view therefore that it is incumbent on a party invoking the original jurisdiction of this Court to satisfy this Court that from the facts and particulars that have been set out as providing the cause of action and the reliefs sought in the Writ, such a party is genuinely convinced that the original jurisdiction of this Court has been properly invoked. 1.9 We shall therefore proceed to set out the facts and particulars relied upon by Plaintiffs in this suit. 2.0 FACTS AND PARTICULARS RELIED ON BY PLAINTIFFS IN THIS SUIT 2.1 The Plaintiffs are citizens of Ghana and bring this action pursuant Article 2(1) of the Constitution of the Republic of Ghana, 1992 (hereinafter referred to as the Constitution ). 2.2 The 1st Defendant is the Electoral Commission. 2.3 The 2nd Defendant is the Honorable Attorney-General of the Republic of Ghana. 4

5 2.4 Sometime in May 2014, the 1st Defendant gave notice that it was going to embark on a revision of the voters register, which was used in the 2012 General Elections (the 2012 registration of voters and the 2014 limited registration exercise are hereinafter collectively referred to as, the Current Voters Register ). 2.5 The revision, according to the 1st Defendant, was to be a limited voter registration exercise intended to offer Ghanaians who had attained the voting age of 18 since the last registration in 2012 and those who were above 18 years but could not, for various reasons, take advantage of the opportunity to register as voters during the last registration exercise. Among the identification documents that were required to show proof of eligibility to be registered as a voter was the National Health Insurance Card (hereinafter referred to as the NHIS Card ). 2.6 The Plaintiffs herein on June 25, 2014 issued a Writ and a Statement of Case out of the registry of this honourable Court against the Defendants herein claiming the reliefs endorsed thereon (hereinafter referred to as the Abu Ramadan Case ). 2.7 A separate Writ with Suit No. J1/9/14 was also issued out of the registry of this same Court by Kwasi Danso Acheampong against the same Defendants namely the Electoral Commission and the Honourable Attorney General for the determination of the same central constitutional question, which said question was in relation to the constitutionality of Regulation 1(3) (d) of the Public Elections (Registration of Voters) Regulations, 2012 (C.I 72). 2.8 Based on the commonality between the Suit No. J1/11/2014 and J1/9/2014, this Court on July 24, 2014 suo moto consolidated the said Suits. 5

6 2.9 The kernel of the Plaintiffs action in the Abu Ramadan Case was that since citizenship and nationality is critical per Article 42 of the Constitution, the NHIS Card was not an appropriate form of establishing constitutional qualification to be registered to vote pursuant to Article 42 of the Constitution as Regulation 1(3)(d) of C.I.72 purportedly allowed. My Lords, the position of the Plaintiffs therein was that, before a person s name is included in the register of voters in Ghana, he or she must be qualified as laid down in Article Plaintiffs contended that the NHIS Card did not distinguish a Ghanaian from a non- Ghanaian when he or she proposed to have his or her name added to the voter s register. It was the Plaintiffs case that indeed, the identification of a person in terms of Article 42 is not as important as the qualification of a person. While the NHIS Card identifies persons it doesn t establish qualification in terms of Article This Court rightly observed that the NHIS Card was the only document listed under Regulation 1(3) of C.I 72 that did not provide undoubted information on the holder s qualification to register and also noted that it was not exclusive to only Ghanaians. The Court therefore in the light of Article 42 declared Regulation 1(3)(d) unconstitutional and void as it failed to meet the constitutionality test Plaintiffs will contend that if the law allowing the use of the NHIS Card to register is void then all registrations founded on same is equally void and of no effect whatsoever Notwithstanding this Court s decision on July 30, 2014 and the legal effect thereof, 1 st Defendant in August 2014, defended the register on radio as credible and genuine and contained no anomalies and 6

7 further that all names not meant to be on the register had been identified and removed Following the event in paragraph 2.11 supra, Plaintiffs on December 22, 2014 caused their lawyers to write to the 1 st Defendant requesting the 1 st Defendant to take steps to audit the Current Voters Register in order to ensure that those persons who registered as voters using the NHIS Card as proof of qualification to register are removed from the Register of Voters Plaintiffs contended that given the judgment in the Abu Ramadan Case which enforced Article 42 of the Constitution, and affirmed that the NHIS Card does not establish proof of qualification to register, rendering its use unconstitutional, those who registered with same cannot be said to have established qualification to register. Attached hereto and marked as Exhibit ABU1 is a copy of the said letter In a reply dated December 29, 2014, written by Lynes Quarshie-Idun &Co. on behalf of the 1 st Defendant it was stated therein thus: 1 st our client categorically denies that the Voters Register established in 2012 is bloated and tainted with unqualified names and that it constitutes a serious blot on the integrity of any future elections in Ghana. Defendant further added that; our client maintains that the request made in the second paragraph of your letter under reply is unnecessary, unjustified and inappropriate. Attached hereto and marked as Exhibit ABU2 is a copy the said reply letter On March 5, 2015, Plaintiffs again caused their lawyers to write a follow up letter to the 1st Defendant seeking clarification and details of 1 st Defendant s assertion in Exhibit ABU2 that the Current 7

8 Voters Register established in 2012 is not bloated and tainted with unqualified names By the said letter Plaintiffs sought to know from the 1 st Defendant whether any person used the NHIS Card to register as a voter during the 2012 voters registration exercise and if so: the number of such persons; whether or not 1 st Defendant has a record that reflects the names of persons who registered with the said NHIS Card; whether or not the 1 st Defendant has deleted from the register the names of persons who registered with the NHIS Card pursuant to the judgment in the Abu Ramadan Case; and whether or not the 1 st Defendant can otherwise identify persons who registered with the NHIS Card. Attached hereto and marked as Exhibit ABU3 is a copy of the said letter Plaintiffs say that till date, the 1 st Defendant has woefully failed, refused and neglected to react or respond to the Exhibit ABU Furthermore, Plaintiffs will contend that the failure on the part on 1 st Defendant to respond or react to Exhibit ABU3 is itself an admission by conduct that there still remains in the Current Voters Register, the names of persons who used the NHIS Card to register as voters Plaintiffs will contend that the presence of the names of persons on the Current Voters Register who do not qualify to register is in breach of Article 45(a) and Article 42 of the Constitution My Lords, there is no doubt that some persons used the NHIS Card to register in 2012 and indeed took part in the voting exercise during the 2012 Presidential and Parliamentary elections. They have also participated in the various by-elections and district level elections that have since been conducted. 8

9 2.23 The State itself speaking through the 2 nd Defendant during the Abu Ramadan Case on at least two occasions submitted as follows: It is submitted that to remove the [NHIS] Card from the list in Regulation 1(3) of C.I.72 will amount to depriving a broad section of Ghanaians of their right to vote. The 2 nd Defendant also argued that possession of the NHIS Card was more widespread than the other documents listed in Regulation 1(3) of CI72. Again, the 2 nd Defendant also submitted that to eliminate the use of the [NHIS] Card in Regulation 1(3) of C.I.72 will mean to disenfranchise majority of potential voters (see pages 6 and 15 of the 2 nd Defendant s Statement of Case therein which has been attached hereto as Exhibit ABU 4 ). Both of these submissions by the 2 nd Defendant were concurred in by the 1 st Defendant Again, on July 23, 2015, the 1 st Defendant s Director of Public Affairs, Christian Owusu Parry in an interview with Joy News Editor Dzifa Bampoh maintained that the names of persons who used the NHIS Card to register as voters in 2012 will not be expunged from the current Voters Roll. Despite the Abu Ramadan Judgment, he categorically stated that the Commission s position remains the same, it has not changed. The register is very, very credible and fit to be used for any election in this country. Attached hereto and marked as Exhibit ABU5 is a copy of a printout from myjoyonline which published the said story On July 25, 2015, the largest opposition party, the New Patriotic Party (NPP) wrote to the 1st Defendant requesting a new voters register to be compiled on grounds inter alia that because the Supreme Court in the Abu Ramadan Case has declared the use of the NHIS Card unconstitutional, void and of no effect, the names of persons who 9

10 used same to register ought not to remain on the Current Voters Register At an Inter-Party Advisory Committee (IPAC) meeting which was held on August 21, 2015, stakeholders were told to submit their positions on the status of the Current Voters Register by September 22, This was occasioned by petitions and calls by some political parties, civil society groups and a number of Ghanaians for a new register or audit of the existing one all aimed at ensuring a credible register for a credible general election this year. The issue now turns on whether to compile a new register or audit/clean up the existing register to make it credible. It is obvious then that all parties agree that the register as currently constituted is not credible On September 22, 2015, the 1 st Defendant set up a Panel chaired by His Lordship Justice VCRAC Crabbe, former Supreme Court Judge (hereinafter the Crabbe Committee ) to evaluate all submissions received by the 1 st Defendant and examine all the allegations arising therefrom. Furthermore, a two-day public forum was organized for each stakeholder who had presented a petition to make public its case On December 30, 2015 the 1 st Defendant made public the report it had received and adopted from the Crabbe Committee (hereinafter the Crabbe Report ) as well as the 1 st Defendant s response to the NPP s letter mentioned paragraph 2.25 supra (hereinafter the EC Reponse ). Attached hereto and marked as Exhibit ABU6 and ABU7 are copies of the Crabbe Report and the EC Reponse respectively The 1st Defendant s answer in the EC Reponse to the issue raised by the NPP regarding the illegality of maintaining the Current Voters 10

11 Register which bears millions of names of persons who registered in 2012 with the NHIS Card as proof of constitutional qualification was that this Court refused to strike out from the Current Voters Register, the names of persons who used the NHIS Card to register and, further, that the challenge procedures under C.I. 72 are sufficient to deal with of those who used the NHIS Card to register. It bears pointing out that this court never refused to strike out any names. This was not an issue for the court to determine in the Abu Ramadan Case The 1 st Defendant s own Crabbe Committee estimates that nearly 600,000 names of dead people would remain on the current Voters Register by November The Crabbe Report estimates the number of eligible voters going into this year s general election to be 15,504,207, after the intended limited registration of March Out of this, it calculates the number of living people on the register, once fully compiled, to be not more than 14,535,987 a difference of 584,892 making up the deceased persons The Crabbe Report makes the clear finding that the Current Voters Register is bloated, making the case that even if Ghana were to achieve the statistical improbability of a one hundred percent registration of every eligible Ghanaian, the Current Voters Register should not exceed 13,50,237 names The Crabbe Report also establishes that the 13,650,237 figure does not take into account those who used the NHIS Card to register in

12 2.34 The Crabbe Report makes it absolutely clear that the 1 st Defendant does not have an effective system to remove the names of unqualified and deceased persons from the Current Voters Register More importantly, the Crabbe Report indicates that the presence of ghost names on our voters list is by far the most critical both in terms of magnitude and copulative effect, and implications for the credibility of the electoral process. Death is expected and could have been dealt with more perceptibly in the legal frameworks and system design, yet there appears not to have been the necessary consideration given to how the names of such can be purged from the Register of Voters in some regular fashion It is as clear as day light that the current Voters Register is bloated as same is riddled with the names of persons who are not qualified but registered to vote using the NHIS Card as well as names of dead people. The negative implication of this for the next elections cannot be gainsaid or ignored The Crabbe Committee makes a strong case in its report for what is termed validation, which would require all eligible citizens who wish to remain registered voters to report to their polling stations within a stipulated period to validate their registration by way of both facial and biometric verification The Crabbe Committee suggests that those who do not show up to be validated or whose registration cannot be verified should not be maintained on the register of voters The Current Voters Register was used for the conduct of the 2015 District Assembly and Unit Committee Elections. Several by-elections have been conducted with the said voters register with latest being 12

13 the Amenfi West Constituency parliamentary by-elections which was held on December 15, The 1 st Defendant has evinced an intention to willy-nilly maintain the Current Voters Register even though the 1 st Defendant is very much aware that some registered voters failed to establish constitutional qualification. We annex herewith as exhibits, copies of the Budget Statement for the 2016 Elections and the Cash Requirement and Breakdown by Month for the 2016 General Elections. These are marked, Exhibits ABU8 and ABU9 respectively. A careful perusal of Exhibits ABU8 and ABU9 shows that the 1 st Defendant has no intention of taking any steps to ensure that the names of all persons who used the NHIS Card are removed from the current Voters Register. Neither has the 1 st Defendant made any provision for the preparation of a fresh voters register. What is evident in Exhibits ABU8 and ABU9 are projections of intended voters registration exercises The 1st Defendant has at all times material maintained that the Voters register is not bloated. Dr. Kwadwo Afari-Gyan, the former Chairman of the 1 st Defendant during the Maiden Edition Series of the National Commission for Civic Education (NCCE) Dialogue which was held in Accra on Thursday June 5, 2014 under the theme; Beyond August 29 Verdict: Lessons and Path Ahead, reacting to calls by some civil society organisations and political parties that the 1 st Defendant to audit the voters register before the limited voters registration exercise which was scheduled for June 20 to was conducted because the said register is bloated with unqualified names said that: I don t think the register is bloated, besides I don t know what auditing of register means. Attached hereto and marked 13

14 as Exhibit ABU10 is a copy of a print out from Graphic Online which published the story In the EC Response the 1 st Defendant has admitted that Ghana s voter population of 56.2% of the total population of Ghana is exceedingly high The 1 st Defendant states in the EC Response that there are no automatic linkages of voter registration to the births and deaths registry in Ghana, hence a high number of deceased persons still on the register thereby admitting that the Current Voters Register is bloated with the names of dead people The Crabbe Report makes the point that the challenge mechanism during the exhibition of the voters register under C.I. 72 is not a viable approach to and is not effective in achieving the elimination of invalid records from the Current Voters Register and same must be reconsidered The 77-page Crabbe Report does not consider the effect of the judgment in the Abu Ramadan Case on the Current Voters Register nor does it specifically deal with the issue of persons who used the NHIS Card to register at all Plaintiffs will contend that 1 st Defendant has evinced by word and conduct an interpretation of Article 45(a) of the Constitution which is inconsistent with a true and proper interpretation of same Plaintiffs will contend further that to the extent that the Current Voters Register contains the names of unqualified and deceased persons same cannot be said to be credible and accurate or consistent with Article 45(a) of the Constitution. 14

15 st Defendant is bent on protecting and safeguarding the highly discredited voters register despite the Abu Ramadan Judgment and the overwhelming revelations from the 1 st Defendant s own committee that show the current Voters Register is constitutionally defective, all because to the 1 st Defendant, people who do not possess a National ID, Passport or Driver s License will be disenfranchised. In the 1 st Defendant s view compiling a new voters register would mean that we are going to end up with a register that is very elitist and excludes the large majority of citizens. The 1 st Defendant made this disclosure through its Chairperson in an interview on Joy Fm s News File programme on Saturday January 9, Attached hereto and marked as Exhibit ABU11 is a print out of the said publication The Chairperson also said, bizarrely, that a new voter ID might worsen fears expressed by political parties that there are minors and foreigners on the electoral roll because everybody would rush to obtain one, even if they are not eligible to vote. We are going to bring back all the Togolese and minors in, she noted Plaintiffs contend that the 1 st Defendant s position is in clear contravention of Article 45(a) because only persons who have proved qualification per Article 42 must be allowed on the voters register. The issue is not only that non-citizens have been registered, the issue is also that even the citizens who registered as voters through the use of NHIS Card failed to prove that they were Ghanaians and this makes the presence of their names in the Current Voters Register unconstitutional Plaintiffs will again contend that the 1 st Defendant cannot identify and isolate the persons who used the NHIS Card to register. 15

16 st Defendant has publicly declared its intention to conduct what it terms a limited registration exercise from April 28 to May 8, Attached hereto and marked as Exhibit ABU 12 is a publication of the said declaration One of the ways in which a person can establish qualification to register under CI 72 is to provide a completed Voter Register Identification Guarantee Form (Form 1 to the Schedule to CI 72) signed by two registered voters pursuant to Registration 1(3)(f) of CI 72. Attached hereto and marked as Exhibit ABU 13 is a copy of the guarantee form The Current Voter Register contains the names of person whose registrations as voters are void on account of their use of the NHIS Card to register. Such persons though not qualified as a matter of law may nonetheless guarantee the qualification of others to register so long as their names remain in the Current Voters Register and they hold Voter ID Cards Plaintiffs will contend that the guarantee of qualification of another to register by a person whose registration as a voter is itself void is unconstitutional per se and same gives further impetus for the Current Voters Register to be changed The Crabbe Report is emphatic that the names of dead persons remaining on the Current Voters Register can be used to manipulate and change election results Plaintiffs will contend that elections being about numbers and even one vote being able to make a difference and change electoral 16

17 outcomes, it is imperative that the register of voters conform to and comply with Article 45(a), truly and purposively interpreted, by being as reasonably accurate and credible as possible at any given time The 1 st Defendant has in the past set aside existing voters registers and compiled entirely new ones for various reasons and such is nothing new or extraordinary Plaintiffs will contend that 1 st Defendant has a duty to ensure that the Current Voters Register is fit for purpose and has the authority and obligation under law to either change same or take steps to clean it up to make it fit for purpose and constitutionally complaint Plaintiffs will further contend that the process of record validation which is used in the United Kingdom to keep its voters register accurate and credible and which was used in Nigeria to clean up Nigeria s voter register prior to the conduct of its highly regarded 2015 elections can be used to clean the Current Voters Register to ensure its reasonable accuracy and credibility. Attached hereto and marked Exhibit ABU 14 is a copy of the relevant United Kingdom law dealing with the record validation process Plaintiffs will contend that unless this Supreme Court intervenes 1 st Defendant is poised to use the Current Voters Register with all of its flaws and inconsistency with the Constitution to conduct public elections in this country, including the upcoming by-election for Abuakwa North Constituency (following the death of the incumbent member of parliament and the general elections of

18 3.0 LIST OF AUTHORITIES PLAINTIFFS INTEND TO RELY ON 3.1 The Plaintiffs shall at the hearing seek to rely on the following decided cases: Republic v High Court (Fast Track Division) Accra; Ex Parte Commission on Human Rights and Administrative Justice (Richard Anane Interested Party) [ ] SCGLR 213 Danso-Acheampong & Abodakpi v Attorney-General [2009] SCGLR 353 Republic v Vebbi & Aralifo [2000] SCGLR 149; Appiah Ampofo v Commission on Human Rights and Administration Justice [ ] SCGLR 227; Omabue III v Attorney-General & Lands Commission [ ] SCGLR 579; Ghana Lotto Operations Association v National Lottery Authority [ ] 2 SCGLR Asare v Attorney-General [ ] 2 SCGLR 823 TehnAddy v Electoral Commission [ ] SCGLR 589 Aduamoa II v Twum II (2000) SCGLR 165 Awoonor-William v Gbedemah(1969) 2G & G 438 at 439,(1970) CC 18 Sam (No2) v Attorney-General ( ) 2 GLR 343 Nartey v Attorney-General & Justice Adade [ ] SCGLR 63 Amidu v President Kufour, Supreme Court, Civil Motion 8/2001, 25 April, 2001 to be reported in ( ) SCGLR 86 Tufuor v Attorney General [1980] GLR 637 Martin Amidu v The Attorney-General, Isofoton SA & Forson [ ] 1 SCGLR 167 (a.k.a The Isafoton case) Martin Amidu v Attorney-General, Waterville Holdings (BVI) Ltd & Woyome [ ] 1 SCGLR 112, (a.k.a Woyome case) Bielbiel v Daramani [2011]1 SCGLR 132 J. H. Mensah v. Attorney-General [ ] GLR 320) 18

19 3.2 The Plaintiffs shall at the hearing seek to rely on the following laws and treatises: The 1992 Constitution of the Republic of Ghana Supreme Court Rules, 1996 (C.I.16) C (Public Election (Registration of Voters) Regulations, 2012) C.I. 12 (Public Elections (Registration of Voters) Regulations, 1995) National Health Insurance 2012 (Act 852) National Health Insurance Regulations, 2004 (L.I 1809) Citizenship Act, 2000(Act 591) 4.0 PRECIS 4.1 In this part Plaintiffs will summarize the essence of their case before your Lordships in order to provide a clear framework for the legal arguments that are made in this Statement of Case. 4.2 The Plaintiffs make a case that upon a true and proper interpretation of Article 45(a) the responsibility entrusted to the 1 st Defendant to compile a register of voters is a mandate to compile a reasonably accurate register to the fullest extent possible at any point in time. A corollary to this argument is that not just any register will do and the mandate is not to compile just any register as long as it can be used in some fashion to conduct public elections and referenda. 4.3 It is contended that ordinarily the declaration being sought by Plaintiffs under Relief 1 of the Writ would seem obvious, however, the facts are that 1st Defendant has by word and conduct 19

20 demonstrated that in its view a bloated register which contains the names of persons deemed not to have established qualification to register and of deceased persons on the Current Voters Register is nonetheless consistent with its mandate under Article 45(a). 4.4 Plaintiffs have, on the other hand, insisted that the presence of those who used the NHIS Card to register and persons who are deceased on the Current Voters Register makes the register not credible or reasonably accurate st Defendant having used the Current Voters Register to conduct various elections, in spite of same not being reasonably accurate or credible, evinces a determination that as long as there is a register, any register, same would be consistent with the requirements of Article 45(a). 4.6 Plaintiffs, therefore, believe that an unequivocal declaration from this constitutional court on the purposive, true and proper interpretation to be placed on the words to compile the register of voters contained in Article 45(a) in terms of the nature and quality of such a register and against the background core values and spirit of the constitution provisions relating to the purpose and conduct of elections would be necessary. 4.7 Plaintiffs take the view the the register of voters provided for in Article 45(a) must be construed to require a reasonably accurate and credible register. Plaintiffs argue that the compilation of the register of voters must be discharged against the implied mandatory requirement of Article 42 in Article 45(a): that only those who meet the constitutional qualification tests should be registered and remain on the register. Thus, a reference to the register being reasonably 20

21 accurate and credible is a reference to only those meeting the delimiting qualification tests of Article 42 being present thereon. 4.8 Plaintiffs contend that this Court has consistently construed the literal reading of constitutional provisions in a manner that avoids absurdity and/or undesirable public policy consequences pursuant to the objective-purposive approach to interpretation. In a long line of cases this court has refused to limit itself to the Constitution s literal texts and their mechanical interpretations where to do so would conflict with the core values of the Constitution and ignore the spirit the framers intended to bestow on it. 4.9 Thus, in similar vein, Article 45(a) must be construed to require reasonable accuracy and credibility against the background qualification tests provided for in Article 42. The delimiting qualification tests of Article 42 provide the standard by which this court can determine whether a register of voters is reasonably accurate or credible. Otherwise, a literal reading of Article 45(a), which does not contain any adjectives to describe the nature and quality of the voters register 1 st Defendant is required to compile, would lead to a totally undesirable public policy and practical outcome such as Plaintiffs contend we have on our hands with the Current Voters Register: a register which is bloated and flawed and which compromises the realization of a core value of holding credible and fair elections It is Plaintiffs case that for the Current Voters Register to be said to be properly compiled, consistent with Article 45(a), only those who qualify under Article 42 of the Constitution should be on the register. This means only persons who have proven that they are Ghanaians, eighteen years of age and above and of sound mind can be on the 21

22 register. If the register contains the names of persons who do not qualify, ipso facto, its compilation cannot be said to be consistent with Article 45(a) of the Constitution. Plaintiffs also argue that the presence of deceased persons names on the register renders same not reasonably accurate or credible. Plaintiffs will argue that to the extent of such inconsistency the said register is unconstitutional, null, void and of no effect. This is the impetus for Plaintiffs Reliefs 2 and Black s Law Dictionary, Ninth Edition (2009) defines a registered voter as a person who is qualified and whose name is recorded. Obviously such a person must be alive if the register is to be reasonably accurate and credible and certainly unqualified persons cannot be recorded on the register if same is to be credible and accurate Plaintiffs contention on the above point is succinctly captured as follows: a. Article 45(a) mandates and obligates 1 st Defendant to compile the register of voters. b. Compilation of the register of voters referred to in Article 45(a) is directly referable to the right to be registered as a voter under Article 42 of the Constitution which provides qualification tests. c. Implicit in that mandate is that the register of voters as compiled by the 1 st Defendant must be reasonably accurate and credible with reference to satisfaction of the Article 42 delimiting qualification tests. 22

23 d. The presence of the majority of potential voters who are ineligible and unqualified on the register of voters as well as names of deceased persons renders same not reasonably accurate nor credible and therefore inconsistent with the Constitution Plaintiffs make the case that the entire register is constitutionally suspect simply because in its current form, there are present thereon those persons who used the NHIS Card to register. Those registrations are unlawful and unconstitutional. In addition, Plaintiffs contend that the majority of potential voters that 2 nd Defendant has said used the NHIS Card to register cannot be identified or isolated by 1 st Defendant and therefore their names are not distinguishable from the names of persons who duly established a constitutional right to be on the register. These factors completely taint the Current Voters Register as inconsistent with a credible and reasonably accurate register The 1st Defendant acknowledges in the EC Response that the Current Voters Register should be purged of the names of all those who registered using NHIS cards. However, the 1st Defendant s view that the current challenge procedures under CI 72 are sufficient does not support its own admission that it does not have an effective way of challenging illegal registrations. It also shifts the burden of searching and identifying those who registered using NHIS Cards from itself to political parties and ordinary citizens. But, political parties or ordinary citizens do not have access to 1st Defendant s database and certainly do not have custody of the two forms which voters fill at the point of registration, namely, Forms 1A and 1C. It is the sole responsibility of the 1st Defendant to adhere to the Supreme Court decision and purge the register of all such illegal entries before giving those who are eligible to vote another opportunity to register 23

24 legally or regularise their inclusion on the register. Again, the Crabbe Report is also clear that the exhibition and challenge process is not a viable approach to cleaning up the register The 1st Defendant s point in the EC Response that such voters must also be given the opportunity to present additional proof of citizenship if available, before they are struck off the register, is unrealistically presumptive. It presupposes the 1st Defendant has: (a) an effective means of searching and identifying every single one of those who registered using NHIS cards; (b) an effective means of making the search and identification process transparent to all major stakeholders; (c) an effective way of informing every single one of those who registered using NHIS cards aware of their current unconstitutional status on the voter list; (d) an effective way of publicising and facilitating a special registration or validation window for all such people to regularise the voter status by presenting a lawful identification and qualification document to maintain their names on the register. It also erroneously presumes that those who used the NHIS Card to register have some accrued rights. This is a legal misconception. Void registrations do not give rise to any rights Plaintiffs also argue that the presence of the names of such a huge number of deceased persons is a dangerous recipe for disaster, in particular for the manipulation of electoral results. Indeed, the Crabbe Report makes it abundantly clear that having nearly 600,000 deceased persons on the Current Voters Register is too wide a margin to entertain and that four percent of eligible voters constituting deceased persons on the register is too wide beyond the tolerance limit, given that presidential elections are won by a much narrower margin. 24

25 4.17 Plaintiffs fully agree with the Crabbe Report when it states that the human factor can lead to multiple ballot papers being given to a single verified voter by an unscrupulous election officer or results changed on paper either at the polling station or collation centre Plaintiffs contention is that 1 st Defendant s lack of a viable and effective means of removing the names of deceased persons from the Current Voters Register renders same incurably flawed in its current form and totally inconsistent with Article 45(a) In the result, Plaintiffs are asking that the Current Voters Register in its current form be set aside as inconsistent with the Constitution and not fit for purpose and a new register compiled Plaintiffs, however, are asking for an order, as an alternative to setting aside the Current Voters Register, compelling the 1 st Defendant to conduct a validation exercise which would lead to the Current Voters Register being cleaned up and rendered fit for purpose without the compilation of an entirely new register. This would be consistent with what the Crabbe Committee refers to as a middle ground between a completely new register and the maintenance of the current unconstitutional register Plaintiffs argue that the current challenge mechanism under C.I 72 is inadequate to rid the register of unwanted names and endorse the reasons advanced by the Crabbe Committee on the ineffectiveness of the challenge mechanism as well as the lack of any viable process under C.I 72 to audit and clean the register. In the result, Plaintiffs argue that the middle ground advanced by the Crabbe Committee could satisfactorily revise the register to make same constitutionally compliant to the fullest extent possible. 25

26 4.22 A successful validation exercise would result in the removal of names of deceased persons who would not show up to validate their registrations as well as confirm the qualification to register of those persons who had previously used the NHIS Card to register by requiring that validation include establishing qualification to remain on the register in the first place. Those who do not show up or cannot establish qualification to remain on the register would have their names struck off The system of validation is used in many other jurisdictions prior to a potential voter establishing his or her right to vote in impending elections even though they may have voted in previous elections. In the United Kingdom, such is the law and in the Nigerian elections of 2015, a validation exercise saw the removal of fourteen million ineligible, multiple and ghost names from the register, thereby ensuring a much more credible election than had been previously conducted. 5.0 LEGAL ARGUMENTS 5.1 The Constitutional Requirement for a Reasonably Accurate and Credible Register of Voters to the Fullest Extent Possible At Any Time Article 45(a) of the Constitution is expressed in the following terms: 45. The Electoral Commission shall have the following functions- (a) to compile the register of voters and revise it at such periods as may be determined by law; 26

27 5.1.2 According to the Attorney-General in the Abu Ramadan Case, the Current Voters Register contains the names of a broad section of Ghanaians and majority of potential voters who used the NHIS Card to register to vote. The judgment of this Court in the Abu Ramadan Case is that the law which allowed persons to register to vote using the NHIS Card as proof of qualification to do so is unconstitutional null and void. The clear legal effect of this Court s declaration of voidness for unconstitutionality is that the registrations and the voter ID cards derived from such registrations are also void and of no effect Notwithstanding the legal position that the names of persons who registered with the NHIS Card ought not to be included in the Current Voters Register, such names nonetheless remain thereon st Defendant initially took the position in their counsel s reply to Plaintiffs dated December 29, 2014 that there were no unqualified names on the Current Voters Register in spite of the legal effect of the Abu Ramadan Case and have loudly touted the credibility of the register in subsequent public pronouncements. Indeed, the Current Voters Register, which undoubtedly includes the names of thousands of deceased persons as well as the millions of people who used the NHIS Card to register has been used by 1 st Defendant to conduct elections since the General Elections of 2012 and the judgment in the Abu Ramadan Case The fact that the Current Voters Register is bloated as a result of the presence thereon of unqualified names and too many deceased persons has been admitted by 1st Defendant and has been unequivocally stated in the Crabbe Report as well. Yet, the 1 st Defendant continues to make the case that the register is credible and fit for purpose. We are entitled to ask whether a bloated 27

28 register can be described as a credible and accurate register. In our view, the answer is an emphatic no! There is now no question that the current register is unacceptably bloated. The Crabbe Committee, which the 1 st Defendant itself commissioned, and which included a renowned statistician, in its analyses, compared three key indicators: estimated voter population, registered voters and estimated deceased persons in the voters register from 2010 to Its findings are that the number of names on the voters register is unacceptably more than the total estimate of people eligible to register to vote in Ghana The Crabbe Report, using data from both the 1 st Defendant and the Ghana Statistical Service, is of no doubt that the Current Voters Register is bloated. It makes the case that even if Ghana was able to achieve the statistical improbability of a 100 percent registration of every eligible Ghanaian, the 2012 register should not have exceeded 13,650,237 names. This figure is nearly 14 percent smaller than the voters list used in 2012 and does not take into account those who registered illegally using NHIS Cards. Also, this was the register that the 1 st Defendant itself admits now that the AFIS software was not good enough to undertake any meaningful de-duplication in In the words of the Crabbe Report, The other element of the bloated register is the situation with the names of the deceased remaining on the register. This, by far, appears to be the most critical both in terms of magnitude and copulative effect, and implications for the credibility of the electoral process The Crabbe Report makes the calculations and concludes: Further analysis of data, based on the reported number registered in 2012 and 2014, shows that as many as 584,892 estimated number of voter deaths would have occurred cumulatively by the 2016 elections and may well remain in the register of voters. What the Crabbe Committee did was to isolate, first, the 28

29 number of the population who are 18 years and above, then, reduce it by the number of foreigners, reduce it further by the estimated number of dead people who were eligible to vote, to come at the total estimate of people eligible to register. It bears mentioning that not even Australia, where voting is compulsory, can boast of 100 percent voter registration Plaintiffs agree with the Crabbe Committee s view that having nearly 600,000 dead people on the 2016 register is too wide a margin to entertain. This constitutes about 4 percent of the eligible voters on the register, which, in the words of the Committee, is too wide beyond the tolerance limit, given that presidential elections are won by a much narrower margin. They have expressed concerns that the human factor, as they put it, can, for example, lead to multiple ballot papers being given to a single voter by an unscrupulous election officer or results changed on paper either at the polling station or collection centre The whole purpose of a voters register is to have an accurate record of those persons who are eligible to cast votes at elections as determined by the constitutional delimiting qualification tests. This further ensures that an election has a strong likelihood of credibility and acceptance by those for whose benefit it is conducted. It has often been said that the voters register is the bedrock of a credible and transparent election. It beggars belief, therefore, that in spite of the Current Voters Register being bloated, not credible or accurate, 1 st Defendant continues to tout it as credible and fit for purpose. This obviously violates the spirit of the Constitution which requires that elections within our democratic system be fair and credible in all aspects of the process. 29

30 Plaintiffs contend that it is clear from the words and conduct of 1 st Defendant that as far as it is concerned and as long as there is a register of voters the dictates of Article 45(a) are satisfied. In other words, any register of voters will be Article 45(a) compliant no matter the nature or quality of the said register. We cannot disagree more strongly with the 1 st Defendant s position which we view as a recipe for electoral disaster. To state and behave as though, in spite of the register being bloated, it is credible shows clearly that in 1 st Defendant s view such a register nonetheless passes constitutional muster While it may be true that given present circumstances, a one hundred percent accurate register is not possible, especially given the fact that people die everyday and may escape attention for the time being, it is unacceptable to take the position that in spite of 1 st Defendant s knowledge that millions of people, as stated by no less a person than the 2 nd Defendant, have not established qualification to register and thousands still are deceased and should not remain thereon, the register is still credible and fit for purpose Plaintiffs contend that there are levels of inaccuracy such as the present circumstances which would clearly render any voters register constitutionally suspect. It is significant that 1 st Defendant s own panel of experts, the Crabbe Committee, found four percent of deceased persons on the register to be intolerable and too wide a margin to entertain since it can be the basis for rigging and manipulating an election Plaintiffs contend further that to the extent that the Current Voters Register is bloated same cannot be said to be consistent with Article 45(a). Though Article 45(a) does not use the words credible 30

31 or accurate, a purposive interpretation of same cannot but endorse the position of the Plaintiffs on this point. To hold otherwise would mean an endorsement of the 1 st Defendant s position that even a bloated register complies with Article 45(a) of the Constitution. That could never be the intendment of the framers of the Constitution and can never reflect the spirit of the Constitution What is the construction to be placed on Article 45(a) of the Constitution. How are the words compile a register of Voters as appears in Article 45(a) to be construed? Should the words be construed literally such that the mere compilation of any register, whether credible or reasonably accurate or not will suffice to discharge the mandate imposed on 1 st Defendant by Article 45(a)? 1 st Defendant takes the point that notwithstanding the presence of unqualified persons and deceased persons on the Current Voters Register, same is very very credible and fit for purpose and Plaintiffs argue that the register must be reasonably accurate (taking into account the consistency of death in society and also of inadvertent errors or undetected fraud) and credible in order to confirm to the requirements of the Constitution Plaintiffs will contend that a mechanical literalist approach to interpreting Article 45(a) could lead to the situation that Plaintiffs say now exists: a register which is not reasonably accurate nor credible, yet is being used for the conduct of elections with all the attendant dangers. Plaintiffs argue that in determining just what kind of register Article 45(a) contemplates, recourse must be had to the core or foundational values underpinning the Constitution, such as probity and accountability, justice, equity and fairness, and it will be clear that whether in terms of the subjective or the objective purpose of Article 45(a), only a credible and reasonably accurate register 31