|
Constitutional law
-Interpretation - Article 45(a)
of the constitution -
Whether or not the original
jurisdiction of this court has
properly been invoked - Whether
or not the presence of names of
ineligible persons on the
Current Register of voters
renders same not reasonably
accurate or credible - Whether
the court has jurisdiction and
authority to make orders
compelling 1st defendant to
discharge its functions in a
particular manner - Whether or
not a Party is entitled to an
order from the court to compel
1st defendant to carry out its
constitutional function of
compiling and revising the
register of voters in a
particular way, form or manner -
Whether the independent status
of the first defendant d makes
it immune from action for the
purpose of declaring that it has
exceeded its authority
HEADNOTES
In their statement of case, the
plaintiffs place great reliance
on their right to relief in the
action herein on a previous
decision of this court In the
judgment in the said case, the
use of National Health Insurance
Identification Cards to
establish qualification for
registration was declared
unconstitutional. The plaintiffs
contend that following the
declaration of the
unconstitutionality of the use
of the said cards, names of
persons who used it in the
registration process conducted
under CI 72 cannot continue to
remain on the register of voters
for them to exercise their
franchise in any public
elections or referenda to be
held within the jurisdiction.
The plaintiffs also complain
about the names of several
minors and decedents (deceased
persons) which continue to be on
the electoral roll without being
deleted and contend that it is
of great constitutional
importance that the a
fore-mentioned categories of
registered voters be deleted
from the register as their
continued presence on it tends
to render the register of voters
bloated and consequently devoid
of reasonable accuracy and or
credibility and contrary to the
provisions of the constitution.
In the view of the plaintiffs,
if the issues raised in the
matter herein are not
adjudicated upon by this court
in the exercise of its exclusive
original jurisdiction under
articles 2(1) and 130(1) of the
1992 Constitution, it will
result in ineligible persons
continuing to remain as
registered voters contrary to
article 42 of the constitution.
the first defendant contends
that the action herein raises no
real interpretative or
enforcement issue within the
meaning of articles 2(1) and
130(1) of the 1992 Constitution.
The first defendant further
contends that the real
intendment of the instant action
is to enforce what the
plaintiffs perceive to be the
right interpretation of the
court’s previous decision in the
case The second defendant
similarly contends that the
claim herein raises no issue
that is properly cognizable by
this court under the exclusive
original jurisdiction conferred
on it under articles 2 and 130
of the 1992 Constitution.
.HELD
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,
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, 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.
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; 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.
STATUTES REFERRED TO IN JUDGMENT
PUBLIC ELECTIONS (REGISTRATION
OF VOTERS) REGULATIONS 2012 C.I.
72
PUBLIC ELECTIONS (REGISTRATION
OF VOTERS) REGULATIONS, 2016 C
I 91
Supreme Court Rules, CI 16.
High Court ( Civil Procedure)
Rules Order 4 rule 5(2)
Evidence Act, 1975 (NRCD 323)
CASES REFERRED TO IN JUDGMENT
Sumaila Bielbiel v Dramani
[2011] 1 SCGLR 132, 143- 145.
Emmanuel Noble Kor
v Attorney-General and Another,
Suit Number JI/16/2015 dated
March 10, 2016 SC
Abu Ramadan and Another v The
Electoral Commission and
Another; JI/11/2014 and JI/9/2014
S C
Kwasi Danso Acheampong v The Electoral
Commission and Another, an
unreported dated July 30, 2014 S
C
Tehn Addy v Electoral Commissioner
[1996-97] SCGLR 589;
Ahuma Ocansey v Electoral Commission;
Center for Human Rights and
Civil Liberties
Ballmos v Mensah [1984-86] 1 GLR 724,
(CHURCIL) v Attorney-General
[2010] SCGLR575.
Vandervell Trustees Ltd v White [1970]
3 All ER 16,
Blunt v Blunt [1943] AC 517
Marbury v Madison, 5 U.S. 137 (1803).
CHEVRON
USA, INC vs. NATURAL RESOURCES
DEFENSE COUNCIL, INC., 467 US
817 (1984);
UNITED
STATES vs. O’HAGAN, 138 L ED
(2d)724 (1997).
CITIZENS TO PRESERVE OVERTON PARK, INC
vs. VOLPE, 401 US 402 (1971).
BOOKS REFERRED TO IN JUDGMENT
Works of Thomas Jefferson 310-31
(1897
DELIVERING THE LEADING JUDGMENT
GBADEGBE,
COUNSEL
NANA ASANTE BEDIATUO WITH HIM
MISS OFOSUA AMAGYEI FOR THE
PLAINTIFFS.
THADDEUS SORY FOR THE 1ST
DEFENDANT.
MRS. AFRIYIE ANSAH ( CHIEF STATE
ATTORNEY) WITH HER MISS. IVY
VANDERPUIJE (SENIOR STATE
ATTORNEY) FOR THE 2ND
DEFENDANT
GBADEGBE
JSC:
On or about February 25, 2016
the plaintiffs issued a writ
before us seeking the following
reliefs:
1. “A
declaration that upon a true and
proper interpretation of article
45(a) of the constitution of the
Republic of Ghana, 1992
(hereinafter, the
“constitution”), the mandate of
the Electoral Commission of
Ghana to compile the register of
voters implies a duty to compile
a reasonably accurate and
credible register
2. 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 and therefore
inconsistent with article 45(a)
of the constitution thereby
making same unconstitutional,
null and void of no effect.
3. A
declaration that the current
register of voters which
contains the names of persons
who are deceased is not
reasonably accurate or credible
and is therefore inconsistent
with article 45(a) of the
constitution thereby making same
unconstitutional, null and void
of no effect.
4. (a) An
order setting aside the current
register of voters and
compelling the Electoral
Commission to compile a fresh
register of voters before the
conduct of any new public
election or referendum in Ghana;
Or in the
alternative,
(b) An order
compelling the Electoral
Commission to audit the current
register of voters through the
validation of the registration
of each person currently on the
register
i. To delete
the names of unqualified persons
and deceased persons and
ii. To
provide each validated
registration with biometric
evidence thereof and
iii. To strike
out the names of those persons
who fail to validate their voter
validation within the stipulated
period
Before the conduct of
any new registration exercise or
public election or referendum in
Ghana.”
A statement of case that
provided both the factual basis
of the action and the applicable
law on which the claim was
planked accompanied the writ.
Also filed by the plaintiffs, as
part of the processes initiating
the action herein is a verifying
affidavit. We wish to state at
once that the practice by which
the plaintiffs exhibited
documents to the statement of
case is inappropriate; the
better practice is that such
documents be exhibited to an
affidavit in the form of a
verifying affidavit as
stipulated in rule 46( 2) of the
supreme Court Rules, CI 16. The
issue of procedure turning on
the rule has been the subject of
previous decisions of this court
and it is expected that in
future parties would endeavor to
comply with its requirements. As
the action herein raises
matters, which require to be
dealt with expeditiously, we
have enabled the action to
proceed to trial notwithstanding
the said procedural lapse but
hope that this indulgence will
not be construed as a relaxation
of the rules of procedure.
In their statement of case, the
plaintiffs place great reliance
on their right to relief in the
action herein on a previous
decision of this court in a
consolidated action numbered as
JI/11/2014 and JI/9/2014 and
entitled Abu Ramadan and
Another v The Electoral
Commission and Another; and
Kwasi Danso Acheampong v The
Electoral Commission and
Another, an unreported
judgment of this court dated
July 30, 2014. In the judgment
in the said case, the use of
National Health Insurance
Identification Cards
(hereinafter for convenience
referred to as “cards”) to
establish qualification for
registration was declared
unconstitutional. The plaintiffs
contend that following the
declaration of the
unconstitutionality of the use
of the said cards, names of
persons who used it in the
registration process conducted
under CI 72 cannot continue to
remain on the register of voters
for them to exercise their
franchise in any public
elections or referenda to be
held within the jurisdiction.
The plaintiffs also complain
about the names of several
minors and decedents (deceased
persons) which continue to be on
the electoral roll without being
deleted and contend that it is
of great constitutional
importance that the a
fore-mentioned categories of
registered voters be deleted
from the register as their
continued presence on it tends
to render the register of voters
bloated and consequently devoid
of reasonable accuracy and or
credibility and contrary to the
provisions of the constitution.
The plaintiffs further allege
that subsequent to the
declaration of the
unconstitutionality of the use
of the cards for registration in
the Abu Ramadan case (supra),
they made several efforts to
persuade the Electoral
Commission to take steps to
delete names of persons who used
them for registration under CI
72 before the decision of the
Supreme Court. A similar
complaint regarding the presence
of minors and deceased persons
on the current register of
voters was also made but the
first defendant refused and will
not have those names deleted
from the register of voters
before the holding of the 2016
presidential and parliamentary
elections notwithstanding the
fact that a committee it had set
up, the Crabbe Committee came to
the conclusion that the current
register of voters is bloated.
It seems that in bringing the
action herein the plaintiffs
seek the intervention of the
Supreme Court in directing the
first defendant to have the
names of ineligible and deceased
persons deleted from the
register before the holding of
the upcoming national elections.
In the view of the plaintiffs,
if the issues raised in the
matter herein are not
adjudicated upon by this court
in the exercise of its exclusive
original jurisdiction under
articles 2(1) and 130(1) of the
1992 Constitution, it will
result in ineligible persons
continuing to remain as
registered voters contrary to
article 42 of the constitution.
The said article of the
Constitution provides:
“Every citizen of
Ghana of eighteen years of age
or above and of sound mind has
the right to vote and is
entitled to be registered as a
voter for the purpose of public
elections and referenda”
The above words are free from
any disputation as to their true
meaning, the corollary of which
is that persons who are not
Ghanaians though resident in the
jurisdiction do not qualify to
be registered as voters and that
any such registration violates
the 1992 Constitution. So
stated, it appears that the
plaintiffs in taking out the
action herein have been driven
by a desire to resist the
inclusion of non- Ghanaians on
the register of voters contrary
to article 42 of the
constitution.
In answer to the plaintiffs’
claim, the first defendant
contends that the action herein
raises no real interpretative or
enforcement issue within the
meaning of articles 2(1) and
130(1) of the 1992 Constitution.
The first defendant further
contends that the real
intendment of the instant action
is to enforce what the
plaintiffs perceive to be the
right interpretation of the
court’s previous decision in the
case of Abu Ramadan and Another
v The Electoral Commission and
Another (supra). The second
defendant similarly contends
that the claim herein raises no
issue that is properly
cognizable by this court under
the exclusive original
jurisdiction conferred on it
under articles 2 and 130 of the
1992 Constitution.
Our first task in the light of
the said objections is to
consider whether we have the
jurisdiction to inquire into the
plaint herein. The central
questions for our narrow
decision regarding the
jurisdictional point is whether
the action herein raises any
question of interpretation or
enforcement of the constitution.
In our view, the jurisdiction
conferred on the court in its
original jurisdiction may relate
to either its interpretative or
enforcement function as was
decided in the case of
Sumaila Bielbiel v Dramani
[2011] 1 SCGLR 132, 143- 145.
See also: Emmanuel Noble Kor
v Attorney-General and Another,
an unreported judgment of the
Supreme Court in Suit Number
JI/16/2015 dated March 10, 2016.
For the purpose of the
jurisdictional question, the
question is whether the matter
raises a fair case of
interpretation or enforcement
and the court at this stage is
not required to decide on the
merits if the case is weak and
or sustainable. In the Sumaila
Bielbiel case (supra), it was
observed on the jurisdictional
point at page 144 thus:
“At this point we
need not inquire into whether or
not the case of the plaintiff is
weak or one that is likely to
succeed. It is sufficient if it
raises a case though weak, that
might proceed to trial.”
Applying the decision in the
above cases to the action
herein, it seems that it raises
for our decision the question
whether having regard to the
previous decision in the Abu
Ramadan case (supra), the
current register of voters which
includes names of persons who
utilized cards to be registered
as voters and continues to have
on the voters roll names of
minors and deceased persons can
be said to be reasonably
accurate and credible such as to
satisfy the requirement imposed
upon the Electoral Commission
under article 45 ( a) of the
1992 Constitution “to compile
the register of voters and
revise it at such periods as may
be determined by law.”
The plaintiffs by the action
herein may be said to be crying
out regarding the failure of the
first defendant to delete the
names of minors and deceased
persons as well as those whose
registration as voters was
facilitated by cards for our
determination in the exercise of
its power of judicial review.
The question that arises in view
of the presence of those
objectionable names on the
register is whether the first
defendant has properly exercised
his functions under articles 42
and 45(a) to register qualified
Ghanaians as voters and to
compile the register of voters
subject to revisions at
statutory specified intervals.
It seems that this is a fair
invitation to urge on us in
order to give effect to the
fundamental right conferred on
Ghanaians of age 18 and above
under article 42 of the
constitution to be registered as
voters in order that they might
exercise the franchise in public
elections and referenda. The
importance of this right cannot
be brushed aside particularly
when being entered on the
register of voters is an
essential pre-requisite for
contesting parliamentary and
presidential elections and
indeed, being appointed to
certain positions such as a
minister of state. The right to
vote cannot thus be taken for
granted; for it gives a
registered voter certain rights
that are unavailable to
non-Ghanaians. The concern,
which fairly emerges from the
allegation of the violation of
the fundamental right provided
under article 42, is that it
erodes its availability to only
Ghanaians with the requisite
qualifications. Of this
fundamental right, Wood (Mrs.)
CJ observed in the Abu Ramadan
case (supra) as follows:
“If the right to vote
is important in participatory
democracy, the right to register
is even more fundamental and
critical. It is the golden key
that opens the door to
exercising the right to vote.”
In our view, looked at from this
standpoint, the plaintiffs
action seeks to give teeth and
meaning to articles 42 and 45(a)
of the constitution by ensuring
that names of ineligible person,
minors and decedents are deleted
from the register before the
upcoming public elections. The
pivotal nature of the right to
vote has been pronounced upon
by this court in a collection of
cases including Tehn Addy v
Electoral Commissioner
[1996-97] SCGLR 589; Ahuma
Ocansey v Electoral Commission;
Center for Human Rights and
Civil Liberties (CHURCIL) v
Attorney-General [2010]
SCGLR575. Accordingly, the
objection to our jurisdiction,
which is raised by the
defendants in their respective
statements of case is hereby
dismissed; we hold that this
court has jurisdiction under
articles 2(1) and 130(1) of the
1992 Constitution to inquire
into the issues raised in the
action herein. It being so, we
turn our attention to examining
the claims herein on the merits.
However, in the course of the
hearing of the action, we
dismissed two interlocutory
applications on March 3, and
April 21, 2016, but reserved our
reasons to be incorporated in
the judgment in the substantive
action. The first application
sought an order of interlocutory
injunction restraining the
first defendant whether by
itself, its agents, assigns,
privies servants and whomsoever
of whatever description from
conducting a limited or other
voters registration pending the
final determination of the
action herein. In the supporting
affidavit, the
plaintiffs-applicants relied
substantially on the complaints
relating to the current register
of voters which form the basis
of the instant action. The
application was opposed by the
first defendant-respondent. The
reasons for our refusal of the
application are as follows.
In the first place as the
issues on which the right of the
plaintiffs- applicants to the
interlocutory order of
injunction involved the same
considerations as those which we
have to decide in the main
action we thought that in order
not to prejudice a fair hearing
of the action the requirements
of justice would be better
served if we expedited the
hearing of the substantive
matter. Again, the
registrations in respect of
which the order of interlocutory
injunction was sought is a
constitutional function of the
first defendant contained in
article 45 (a) of the
constitution to “compile the
register of voters and revise it
at such periods as may be
determined by law” and to
accede to the order at that
stage of the application when
the plaintiffs-applicants right
to the reliefs claimed in the
substantive action had not been
finally determined would result
in greater inconvenience to the
first defendant in the event of
those reliefs not being granted
at the end of the day. Further,
as the registration exercise
concerned persons who had turned
18 years of age and were
utilizing the opportunity to
register for the first time, an
order of restraint would have
deprived them of the fundamental
right to register and vote
subsequently at public elections
and referenda.
In relation to that part of the
application which sought to
restrain the first defendant
from holding any public election
or referenda pending the final
determination of the action
herein, we were of the opinion
that to accede to the
application would as regards the
bye-election which was about to
be held in the Akim-Abuakwa-
North Constituency in the
Eastern Region to fill a vacancy
that had occurred following the
death of the member of
Parliament, not only deprive the
members of the constituency of a
representative in Parliament,
who are not parties to the
action but that the constituents
would be greatly inconvenienced
by a grant of the application.
We also took into account the
fact that in view of the relief
(4) sought by the plaintiffs in
the action herein namely
setting aside the voters
register or in place thereof
validating the voters register
to ensure that only eligible
persons remain on the it, the
applicants were not likely to
suffer any irreparable hurt or
loss if either the limited
registration or bye-election in
the Akim-Abuakwa North
Constituency were to be
proceeded with and they succeed
in the action herein as the
mischief which the action seeks
to obviate and for which the
interlocutory injunction was
applied for would effectively
have been cured by the grant in
their favour of either of the
alternative reliefs. On the
whole as regards the application
for interlocutory injunction,
applying the test of relative
convenience and or
inconvenience, we came to the
view that the balance tilted in
favour of its dismissal.
The second application concerned
an application at the instance
of the People’s National
Convention Party for joinder as
third Plaintiff. The reasons for
our decision are provided
shortly as follows. In our view,
the applicant does not come
within the designation of “a
party” within the meaning of
rule 45(a) of the Supreme Court
Rules. The said rule provides as
follows:
“The Court may, on
its own motion or on the
application of a party order
that any other person shall be
made a party to the action in
addition to or in substitution
for any other party.”
The above rule appears to be
narrower in scope than the
formulation contained in Order
4 rule 5(2) of the High Court (
Civil Procedure) Rules by which
the application for joinder is
authorised to be made not only
by parties to the action but “
on application” presumably of
any person. As rule 45 (2) only
authorizes an order for joinder
in the exercise of our original
jurisdiction to be made either
at our own instance or on the
application of a party to a
pending matter, which the
applicant unfortunately is not,
the applicant lacked the
requisite capacity to bring the
application for joinder.
Although the reasons provided in
the preceding paragraph are
sufficient to dispose of the
application made to us under
rule 45 (2) of CI 16, it appears
from the processes filed in
regard to the said application
that the applicant’s interest
in the matter is not
coterminous with that of the
plaintiffs to whom it seeks to
be added. Again, a careful
examination of the processes
before us in the matter herein
reveal that the applicant is not
a person who ought to have been
joined as a party or whose
presence is necessary for the
effectual and complete
adjudication of all the matters
in dispute in the action
herein. We think that this is
the overriding principle in
applications for joinder which
an applicant must satisfy. In
the case of Vandervell
Trustees Ltd v White [1970]
3 All ER 16, 24 Dilhorne LJ in
the course of his judgment
observed as follows:
“… I cannot construe
the language of the rule as
meaning that a party can be
added whenever it is just or
convenient to do so. That could
have been simply stated if the
rule was intended to mean that.
However wide an interpretation
is given, it must be an
interpretation of the language
used. The rule does not give
power to add a party whenever it
is just or convenient to do so.
It gives power to do so only if
he ought to have been joined as
a party or if his presence is
necessary for the effectual and
complete adjudication on all
matters in dispute in the cause
or matter”
We are of the opinion that the
issues raised for adjudication
in the action herein can be
effectively and completely
adjudicated without the presence
of the applicant herein, the
People’s National Convention
Party. It was for these reasons
that we declined to have the
applicant joined to the action
herein.
We open the merit consideration
of the action herein by
observing that under the 1992
constitution, this court and
none other has the onerous
responsibility of determining
whether an act, legislation and
or any act( conduct) is within
the boundaries of the
constitution as provided for in
articles 2(1) and 130(1).
Article 2(1) of the Constitution
provides:
“A person who alleges
that-
(a) an
enactment or anything contained
in or done under the authority
of that or any other enactment;
or
(b) any act or
omission of any person is
inconsistent with, or in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
Article 130(1) of the
constitution also provides as
follows:
“ Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme court shall have
exclusive original jurisdiction
in-
(a) all matters
relating to the enforcement or
interpretation of this
Constitution; and
(b) all matters
arising whether an enactment was
made in excess of the powers
conferred on Parliament or any
other authority or person by law
or under this Constitution.”
The essence of the jurisdiction
conferred on us under the said
articles is to enable us
intervene in appropriate
instances to declare and enforce
the law regarding the extent and
exercise of power by any person
or authority. Although the said
constitutional provisions have
not used the words “judicial
review”, their cumulative effect
is to confer on us the
jurisdiction to declare what the
law is and to give effect to it
as an essential component of the
rule of law. The nature of the
court’s obligation it to measure
acts of the executive and
legislative bodies to ensure
compliance with the provisions
of the constitution, but the
jurisdiction does not extend
beyond the declaration,
enforcement of the constitution
and where necessary giving
directions and orders that may
be necessary to give effect to
its decision as contained in
article 2(2) of the
constitution. The court’s
original jurisdiction thus
enables it to determine the
limits of the exercise of the
repository’s powers.
It is observed that in the
exercise of the court’s original
jurisdiction, it is not
permissible for the court to
substitute its own decision for
that of the body or persons
exercising a discretion
conferred on it by the
constitution. This is necessary
to keep the court itself within
its proper limits in order to
give effect to the supremacy of
the law, which appears to be the
foundation of the original
jurisdiction. The court’s
function is to set limits on the
exercise of the discretion,
which by the constitution has
been vested in an institution or
body of persons, and a decision
made within these boundaries
cannot be impugned. We think the
situation that confronts us in
the matter herein may be likened
to an appeal from the exercise
of a discretion by trial courts.
In such cases the question for
determination by the appellate
court is whether the discretion
was exercised properly having
regard to the available
materials and not to substitute
the discretion of the appellate
court for that of the trial
judge even though the justices
may hold a different view on the
discretion so exercised. In the
case of Ballmos v Mensah
[1984-86] 1 GLR 724, 731, Osei
Hwere JA (as he then
was)emphasized the settled
principle in such cases when he
approved a statement made in the
head note to Blunt v Blunt
[1943] AC 517, 518 as follows:
“An appeal against
the exercise of the court’s
discretion may succeed on the
ground that the discretion was
exercised on wrong or inadequate
materials if it can be shown
that the court acted under a
misapprehension of fact in that
it either gave weight to
irrelevant or unproved matters
or omitted to take relevant
matters into account., but the
appeal is not from the
discretion of the court to the
discretion of the appellate
tribunal.”
In our opinion, it is important
that this caveat be borne in
mind as we proceed to consider
the issues raised for our
determination in the action
herein.
The exercise of the original
jurisdiction requires us to
deliver credible decisions in
order to enhance public
confidence in the administration
of justice as an independent
decision making body with the
sole responsibility of having a
monitoring role over acts of the
legislature and the executive
for the purpose of ensuring
observance with the
constitution. The situation with
which are concerned in these
proceedings is not new and our
courts have exercised their
original jurisdiction over the
years properly drawing
inspiration from the landmark
case of Marbury v Madison,
5 U.S. 137 (1803). The previous
decision of this court in the
Abu Ramadan case (supra), like
many others to which reference
has been made in the course of
this judgment is a testimony to
the court’s robust commitment to
ensure compliance with the
constitution in terms of our
oath of office. Having disposed
of the preliminary legal
objection to our jurisdiction,
we now turn our attention to the
issues for determination that
were contained in a joint
memorandum filed by the parties
to the action herein. The agreed
issues set out in the memorandum
filed on April 14, 2016 are as
follows:
“1. Whether or
not the original jurisdiction of
this court has properly been
invoked by the Plaintiffs
2. Whether or not the
presence of names of ineligible
persons on the Current Register
of voters renders same not
reasonably accurate or credible
and therefore inconsistent with
article 45 (a) of the
constitution.
3. Whether or not the
presence of names of deceased
persons on the Current Register
of voters renders same not
reasonably accurate or credible
and therefore inconsistent with
article 45(a) of the
constitution.
4. Whether or not the
decision by 1st Defendant not to
use the record validation
process to revise the current
register of voters is
unreasonable and inconsistent
with articles 23 and 296 of the
constitution.
5. Whether the court has
jurisdiction and authority to
make orders compelling 1st
defendant to discharge its
functions in a particular
manner.
6. Whether Plaintiffs
suit falls for determination
within the exclusive
jurisdiction of the court.
7. Whether plaintiffs
have proved the extent to which
the register of voters is
inaccurate as for it to be
unreasonable within the meaning
of article 45(a) of the 1992
Constitution.
8. Whether or not a
Party is entitled to an order
from the court to compel 1st
defendant to carry out its
constitutional function of
compiling and revising the
register of voters in a
particular way, form or manner?
9. Whether or not 1st
defendant is bound by
suggestions from citizens and
other stakeholders as to how 1st
defendant must carry out its
constitutional function of
compiling and revising the
register of voters?”
The first issue concerns the
invocation of our original
jurisdiction by the plaintiffs.
In view of the discussions had
previously about the
jurisdictional point, we think
that the question raised by
issue (1) receives an
affirmative answer.
We next proceed to consider
issues (2) and (3). The said
issues concern the question
whether by the continued
presence on the current register
of voters of ineligible persons
as declared in the Abu Ramadan
case (supra) and deceased
persons, the register can be
said not to be reasonably
accurate or credible and
therefore inconsistent with
article 45 (a) of the 1992
Constitution. As the two issues
raise common questions of law
turning on undisputed facts, we
shall consider them
conjunctively. In our opinion,
death being an inevitable
occurrence in the life of any
human being should have had very
clear provisions made in
relation thereto for the purpose
of deleting such names from the
register by for example,
requiring the Births and Death
Registry to forward at specified
intervals to the first defendant
through its district offices for
deletion. The unhappy situation,
however is that the system of
registration of births and
deaths in the country is
woefully behind current trends
in development. This has the
effect of rendering the current
register of voters not
reasonably accurate or credible.
We do not; however think that
the defect is so extensive in
nature to result in an
inconsistency with article 45(a)
of the constitution as the
existing law has made ample
provisions for such names to be
deleted when the provisional
register is exhibited before it
is certified under regulation 27
of CI 91 as the existing
register. We think that the
elaborate scheme provided the
law is sufficient to address the
presence on the register of
voters of names of persons who
might have died since the last
registration exercise. Although
the issues for our determination
have not included minors, we
think that names of such persons
can also be deleted using the
processes provided for in the
law. From the complaint made in
relation to deceased persons,
there is an implied admission
that at the time of their
registration they were alive and
eligible to be registered.
There is also the added
mechanism of biometric
registration which when enforced
will prevent people
impersonating such deceased
persons as the fingerprints and
photo identifications will not
match.
Turning to the presence on the
register of voters’ of
ineligible persons who must have
utilized cards for their
registration, it appears from
the proceedings herein that that
the exact numbers are not known.
This creates some difficulty in
determining the actual
percentage in order to answer
the question posed whether the
register may on such ground only
be said not to be reasonably
accurate or credible. However,
that should not present us with
an insurmountable problem. 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. In view of the
fact that these registrations
were not effected in breach of
the law, the persons affected
thereby cannot be said to be
benefiting from their own wrong
such as to be deprived of their
registration without being given
the opportunity of being heard.
As the said registrations were
done before the declaration of
unconstitutionality in the Abu
Ramadan case (supra) to have
their names deleted will have
the effect of disenfranchising
persons affected by it. This
approach enables us to do
justice in a manner that
preserves the rule of law and a
stable constitutional order
without affecting acts and or
things which were previously
ordered on the legality of the
impugned provision in the Abu
Ramadan case. 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. There being no
credible dispute that the
current register of voters was
compiled under legal provisions
deriving their legitimacy from
the primary legal source, the
entire register of voters cannot
be said to have been compiled
unconstitutionally. Accordingly,
by way of answer to issues (2)
and (3) we are of the opinion
that although the presence of
the names of ineligible and
deceased persons on the register
of voters renders same neither
reasonably accurate nor
credible, the register is not
thereby rendered inconsistent
with article 45(a) of the
constitution.
Issue (4) raises the question
of validation, which from the
processes filed before us was
suggested by some stakeholders
as a means of deleting or
“cleaning” as it is popularly
called, ineligible names from
the register of voters but
rejected by the Electoral
Commission. It appears from the
case of the plaintiffs that had
the first defendant made an
accession to this proposal,
there would not have been the
need for the instant action to
be initiated before us. While
there appears to be some reason
in the proposal for validation,
it is without statutory
authority and seeks to introduce
a mechanism that the lawmaker
did not make provision for to be
utilized in deleting the names
of ineligible and deceased
persons from the register of
voters. In carrying out its
function under the law, the
Electoral Commission cannot
employ non-statutory remedies,
as the law does not give it that
mandate. It is observed that it
is unreasonable to demand from a
public officer whose authority
is derived from the law,
performance that is not
authorized by law and its effect
is that non-compliance with the
proposal of validation does not
constitute any inconsistency
with articles 23 and 296 of the
constitution.
This leads to issue (5), which
concerns the question whether
the court has jurisdiction to
make orders compelling the first
defendant to discharge its
functions in a particular way.
In our view, our jurisdiction in
so far as the action herein goes
is only to determine the limits
within which the first defendant
as a repository of
constitutional authority can
lawfully exercise its functions.
By article 46, the first
defendant is endowed with
independence in the performance
of its functions including the
initiation, regulation and
conduct of elections in the
country as follows:
“Except as provided
in this Constitution or in any
other law not inconsistent with
this Constitution, in the
performance of is functions, the
Electoral Commission, shall not
be subject to the direction or
control of any other body.”
In our opinion and as part of
our function to declare what the
law is, the above words which
are unambiguous insulate the
Electoral Commission from any
external direction and or
control in the performance of
the functions conferred on it
under article 45 in the
following words:
“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;
(b) to demarcate the
electoral boundaries for both
national and local government
elections;
(c) to conduct
and supervise all public
elections and referenda;
(d) to educate
the people on the electoral
process and its purpose
(e) to undertake
programmes for the expansion of
the registration of voters; and
(f) to
perform such other functions as
may be prescribed by law.”
A fair consideration of the
functions of the first defendant
reveals that the demand which
was made on it by the plaintiffs
regarding the presence of
ineligible and deceased persons
and the latter’s refusal to
acquiesce in the said demands
which provoked the action herein
relates to its mandate under
article 45 (a) “to compile the
register of voters and revise it
at such periods as may be
determined by law”. In order to
determine if the performance of
the function conferred on it
under article 45(a) is subject
to any other constitutional
provision, we have to read the
constitution in its entirety
paying particular attention to
the various provisions in order
to find out if there are any
exceptions to its independence.
Then we have to turn to our
electoral laws and embark on the
same journey to discern if there
are any limitations imposed on
its independence that to be good
must not be inconsistent with
the constitution. A careful
scrutiny of the constitution
reveals that its function under
article 45(a) is not subject to
any other provision, therefore
in performing the said function,
we cannot make an order
compelling the Commission to act
in a particular manner.
We think that the independence
of the Commission is crucial for
the success of any election. If
the Commission is perceived
otherwise, there is little
prospect of the electoral
administration on Election Day
being perceived as transparent
and fair. If we are to
consolidate our democracy, it is
incumbent on us all to defend
and protect its independence as
provided for in the
constitution. We think that in
the circumstances when a
specific complaint is made
regarding the performance of any
of the functions of the
Commission, it is our duty to
inquire into it and ask if there
is by any provision of the
constitution or any other law
which detracts from the
presumption of independence that
article 46 bestows on it. If
there is no such constitutional
or statutory provision then what
it means is that the matter is
entirely within its discretion
and not subject to the control
of any other authority including
the court. As the plaintiffs
have not disclosed any vitiating
circumstances such as
illegality, irregularity,
unfairness or failure to satisfy
an essential pre-requisite to
the making of a decision that
may justify our intervention to
set any such discretion aside,
the decision as to what to do is
properly in the domain of the
first defendant.
In further consideration of
issue (5), we would like to
refer to some specific
provisions of the constitution
that have placed a fetter on the
exercise of the independence
bestowed on the first defendant
by article 46.By article 48(1)
its decision regarding the
demarcation of boundaries may be
appealed to a special tribunal
constituted by the Chief Justice
with a further right of appeal
to the Court of Appeal being
provided for in article
48(2).Similarly, in its function
relating to the demarcation of
the country into constituencies,
the constitution has made
specific provisions in article
47 to regulate its exercise.
There are other exceptions
provided for in article 49 of
the constitution, which regulate
its function relating to the
conduct of elections in the
following words;
49(1)” At any public
election or referenda, voting
shall be by secret ballot
(2) Immediately
after the close of the poll, the
presiding officer shall, in the
presence of such of the
candidates or their
representatives and their
polling agents as are present,
proceed to count, at the polling
station, the ballot papers of
that station and record the
votes cast in favour of each
candidate or question.
(3) The presiding
officer, the candidates or their
representatives and in the case
of a referendum, the parties
contesting or their agents and
the polling agents if any, shall
sign a declaration stating-
(a) the polling
station; and
(b) The number
of votes cast in favour of each
candidate or question,
And the presiding
officer shall, there and then,
announce the results of the
voting at that polling station
before communicating them to the
returning officer.”
The effect of these specific
provisions is that where the
constitution intended the
exercise of any of the functions
conferred on the Commission to
be subject to any other person
or law, it is so provided.
Accordingly, where no such
provisions have been
specifically made, the effect is
that the constitution intended
the commission to exercise its
discretion without the control
or direction of any person or
authority. This court being the
ultimate judicial authority in
the country must endeavor to
respect the boundaries of the
jurisdiction conferred on it in
order to give effect to the
supremacy of the constitution.
To accede to the demand made on
it in the action herein would
amount to subverting the plain
constitutional provisions. The
result is that issue (5)
receives an answer in the
negative.
However, before we end the
consideration of the independent
status of the Electoral
Commission, we wish to say that
the independent status of the
first defendant does not make it
immune from action for the
purpose of declaring that it has
exceeded its authority or acted
in a manner that having regard
to its unreasonableness,
irrationality or unfairness
cannot be accorded the sanction
of legality in view of articles
23 and 296 of the constitution.
We do not agree with the
contention pressed on us by the
first defendant that the 1992
Constitution “forbids any
control or direction of the 1st
defendant as to how to
accomplish its work.” Plainly,
the said statement is erroneous
as article 46 itself recognises
that its independence may be
derogated from either in the
constitution or by any other law
including but not limited to the
instances referred to in regard
to articles 48(1), and 49(1).
There is also the point that as
a creature of article 43, the
Electoral Commission is subject
to the constitution; to deny
that it is so subject is to
misconstrue the nature of the
independence bestowed on it in
relation to our exclusive
jurisdiction, which is critical
to effectuating the supremacy of
the law. We make reference to
the observation of Marshall CJ
in the landmark case of
Marbury v Madison (supra):
“It is emphatically
the province and duty of the
Judicial Department (judicial
branch) to say what the law
is……..”
In our view having gone beyond
the jurisdictional point, there
is before us a justiciable cause
of action which we have to
inquire into by virtue of
article 125 of the constitution
in order that the matters in
dispute in the action herein may
be completely and effectively
decided. That is the essence of
judicial power as conferred on
the judiciary in article 125(5)
in the words that follows:
“The Judiciary shall
have jurisdiction in all matters
civil and criminal, including
matters relating to this
Constitution, and such other
jurisdiction as Parliament may,
by law, confer on it.”
The correct position is that the
courts as constituted under the
1992 constitution may intervene
in acts of the first defendant
to ensure that it keeps itself
within the boundaries of the law
and also to give effect to
provisions of the constitution.
This is a jurisdiction that our
courts have always exercised in
relation to the first defendant
of which the recent decision in
the Abu Ramadan case (supra) is
an example. In that case, one of
the orders made by the court
following the declaration was
“an order of perpetual
injunction restraining the
Electoral Commission from using
the National Health Insurance
Card in its present form and a
voter identification card other
than as explained under relief
(2) for the purposes of
registering a voter under
article 42 of the 1992
Constitution.” The said order
clearly was a direction which
affected the first defendant, of
whom we observe complied
therewith by excluding the
utilization of the card as
qualification to register in
regulation 1 (3) of the Public
Elections (Registration of
Voters) Regulations, 2016 (CI
91.)
Again, in the Tehn Addy case
(supra), the essence of the
declaration granted against the
Electoral Commission was an
intervention by the Supreme
Court to set aside its exercise
of discretion in purporting to
suspend the registration of
voters; a situation that
emphasises that in appropriate
cases the first defendant is
subject to the control and or
direction of this court. We make
bold to say that had the
Commission not complied with the
terms of the judgment in the Abu
Ramadan case (supra), it would
have opened itself up to the
sanctions provided in article 2
(3) and (4 relating to a high
crime. We do not think that our
intervention was unwarranted by
the constitution. On the
contrary, it was justified by
the provisions of article 2(1)
and 130 (1) of the 1992
Constitution which are intended
to give effect to the supremacy
of the constitution contained in
article 1(2). The first
defendant’s independence is also
subject to the High Court’s
exercise of its supervisory
jurisdiction under article 141
of the constitution and actions
in which questions may be raised
whether in carrying out its
functions, it has exceeded the
authority conferred on it in
specified statutes; in such
cases the High Court has the
jurisdiction to determine
whether it has acted intra
vires.
Regarding issue (6), we think
that the answer to issue (1)
adequately takes care of the
considerations that are raised
by it and accordingly, no useful
purpose will be served by
considering it again.
Then there is issue (7) which
raises the question whether the
plaintiffs before us have proved
the extent to which the register
of voters is inaccurate for it
to be unreasonable within the
meaning of article 45(a) of the
constitution. The said article
deals with the obligation of the
Electoral Commission to compile
the register of voters for use
in public elections and
referenda in the country. In
considering the point, which
arises under this issue, we wish
to take judicial notice of the
fact that since the delivery of
judgment in the Abu Ramadan case
(supra) names that were entered
on the register with the
utilization of cards during the
registration exercise conducted
under the repealed legislation,
C.I. 72, have not been deleted
from the register of voters. The
continued presence of such names
being derived from a
constitutionally declared wrong
offers sufficient proof of the
extent of the inaccuracy of the
current register of voters and
can therefore be said to be
unreasonable. We are of the
opinion that any public document
required to be compiled under
statutory authority that
contains entries, which are
instances of non- compliance
with mandatory constitutional
provisions as is the case with
the current register of voters
has the attribute of
unreasonableness. The
presumption being that the law
is intended to be reasonable;
any act that is derived from
unconstitutionality must be
deemed unreasonable.
Accordingly, issue (7) is
answered in the affirmative.
Turning our attention to issue
(8), we note that it concerns
substantially the same question
that has been previously
discussed and resolved in this
delivery as issue (5) and so
there is no need for the court
to consider the same question
again. This leaves us with the
determination of issue (9)
regarding whether the first
defendant is bound by
suggestions from citizens and
stakeholders in carrying out its
constitutional mandate. While
conceding that there is no law
that obliges the first
defendant, it seems to us that
in order to render its work
acceptable to Ghanaians, it may
engage in consultation and
collaboration with citizens and
stakeholders that are intended
to deepen the participation of
the citizenry in the electoral
process. Listening to others
takes nothing from the Electoral
Commission but on the contrary,
it has the effect of engendering
public confidence in the
electoral process and trust in
the outcome. Accordingly, issue
(9) receives an answer in the
negative.
The result is that we proceed
to grant the following reliefs:
(1)
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.
(2)
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.
(3)
A declaration that the current
register of voters which
contains the names of persons
who are deceased is not
reasonably accurate or credible.
(4)
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.
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
CONCURRINIG OPINION
BENIN,
JSC:-
I have
had the priviledge of reading
the well-reasoned opinion just
delivered by my able brother
Gbadegbe JSC and I am in entire
agreement with it. However, I
have decided to say a few words
about some aspect of the case
which borders on the rule of
law. I should say, by way of
introductory remark, that having
fashioned a Constitution unto
ourselves to govern our actions
and direct our path to liberty
and progress, it is the duty of
every person, human as well as
corporate, to keep in mind that
the rule of law is indispensable
in all our actions and
behaviour. And when a person is
acting within the confines and
limits of the law, none can
compel him to act in a
particular way to suit that
person’s desire. That explains
the oath of office that notable
state actors take on assumption
of office to perform the
functions attributed to them
without fear or favour,
affection or ill-will. Article
46 of the Constitution has
reinforced these principles by
granting the 1st
defendant independence in the
performance of its functions,
subject only to the Constitution
and to any other law for the
time being in force. And once
they are acting within the law,
no authority or power can compel
them to act in a different way.
As observed by Warren E. Burger
in his address at the Law Day
Service at St. John’s Cathedral
in Jacksonville, Florida on June
15, 1973, “the (rule of law)
places restrictions on
individuals and on governments
alike. This is a delicate, a
fragile balance to maintain. It
is fragile because it is
sustained only by an ideal that
requires each person in society,
by an exercise of free will, to
accept and abide the restraints
of a structure of laws. ”In the
lead opinion, my brother
Gbadegbe, JSC has set out some
areas in which the powers of the
1st defendant have
been restricted in one way or
the other by the Constitution so
I will not dwell on it. He has
also set out the facts and the
issues so I will not repeat
them. In this piece I will focus
on the exercise of discretionary
power in the performance of the
1st defendant’s core
mandate as set out in Article 45
of the Constitution.
For the
purpose of the views I am about
to express I will reproduce
issues 4, 5, 8 and 9 set down in
the memorandum of issues. They
provide:
4.
Whether or not the decision by 1st
Defendant not to use the record
validation process to revise the
current voters register is
unreasonable and inconsistent
with Articles 23 and 296 of the
Constitution.
5.
Whether this Court has the
jurisdiction and authority to
make orders compelling 1st
defendant to discharge its
function in a particular manner.
8.
Whether or not a party is
entitled to an order from this
Court to compel 1st
defendant to carry out its
constitutional function of
compiling and revising the
voters register in a particular
way, form or manner.
9.
Whether or not 1st
defendant is bound by
suggestions from citizens and
other stakeholders as to how 1st
defendant must carry out its
constitutional function of
compiling and or revising the
voters register.
These
issues have arisen from the
plaintiffs’ case that the
current voters register contains
the names of persons who used
the National Health Insurance
card as identification to
establish nationality under the
repealed CI 72, which this court
in its decision of 30th
July 2014 in Abu Ramadan case,
referred to in the lead opinion,
declared unconstitutional. It
is the plaintiffs’ case further
that the 1st
defendant has since that
decision not taken any steps to
remove the names of all those
affected by that decision. Also
the names of several dead
persons are on the register;
these factors do not make the
register credible within the
meaning of Article 45(a) of the
Constitution. The plaintiffs
claim they have made several
efforts to get the 1st
defendant to perform their
constitutional mandate but
without success. Other
stakeholders and citizens of
this country have played similar
roles all to no avail. The
plaintiffs have therefore
approached this court to compel
the 1st defendant to
either compile a fresh voters
register or to embark upon a
validation exercise to clean up
the existing register, in order
to render same reasonably
accurate and credible.
The
defendants seriously challenge
this on ground that the 1st
defendant cannot be compelled to
act in a particular manner. They
claim they will not be able to
identify those who used the NHI
card to register. Hence the four
issues set down above. These
issues together have the same
effect; that the court should be
able to give effect to its 2014
decision on the
unconstitutionality of
registering with an NHI card,
and also remove the names of
deceased persons.
I begin
this discussion by reminding
ourselves that the court itself
is bound by the law and must act
within the confines of the law,
and so too is every other
institution or person in this
country. This court’s role in
such matters is in the nature of
judicial review of executive and
administrative actions, which
the courts in commonwealth
jurisdictions have not shied
away fromin exercising since
Marbury v. Madison was decided,
a case which every student of
constitutional law is familiar
with. But the courts have been
careful not to impose themselves
on other institutions of state
as to how they should perform
their functions. This caution is
important to observe because the
law determines the extent of
each institution’s mandate, it
is not the court which
determines that. But the court
has a duty to bring other
institutions to order if they
stray from the path of legality.
More often than not, this role
of the court has been
distasteful to the other
institutions of state.
Needless
to say that this problem was not
resolved with ease, and even the
circumstances surrounding the
Marbury v. Madison decision bear
testimony to it. It had its
roots from what became known as
the ‘midnight appointments’ by
the then outgoing US President
John Adams. I will not go
further into this. But I must
say that since the problem was
identified in the USA and first
dealt with by the courts there,
any attempt to talk about it
will necessarily take us to the
jurisprudence of that country.
Not only the courts in the USA
were called upon to determine
the extent of the court’s
supervisory power over other
state institutions, the
executive also waded into that.
Naturally the executive believed
the court was asserting too much
influence over their sphere of
authority. The views expressed
by some American Presidents and
writers on the subject, though
not legal, are worth noting.
These executive leaders have
articulated views and doctrines
that avoid ultimate Supreme
Court authority over executive
functions.
Commenting on the American
sedition law, Thomas Jefferson
wrote a letter to Mrs. John
Adams on September 11, 1804,
published in 8 Works of Thomas
Jefferson 310-31 (1897) as
follows:
“You seem
to think it devolved on the
judges to decide on the validity
of the sedition law. But nothing
in the Constitution has given
them a right to decide for the
executive, more than to the
executive to decide for them.
The judges, believing the law
constitutional, had a right to
pass a sentence of fine and
imprisonment………..But the
executive, believing the law to
be unconstitutional, was bound
to remit the execution of it;
because that power has been
confided to him by the
Constitution.”
James
Madison in 4 Elliott, Debates on
the Federal Constitution, 550
(1836) wrote that;
“However
true, therefore, it may be that
the judicial department is, in
all questions submitted to it by
the forms of the Constitution,
to decide in the last resort,
this resort must necessarily be
deemed the last in relation to
the authorities of the other
departments of the government,
not in relation to the rights of
the parties to the
constitutional compact, from
which the judicial, as well as
the other departments, hold
their delegated trust.”
And when
he had the opportunity to write
on the subject, Abraham Lincoln,
in 6 Richardson, Messages and
Papers of the Presidents, 5,
9-10 (1897) wrote:
“I do not
forget the position assumed by
some that constitutional
questions are to be decided by
the Supreme Court, nor do I deny
that such decisions must be
binding in any case upon the
parties to a suit as to the
object of that suit, while they
are also entitled to very high
respect and consideration in all
parallel cases by all other
departments of the
government………At the same time,
the candid citizen must confess
that if the policy of the
government upon vital questions
affecting the whole people is to
be irrevocably fixed by
decisions of the Supreme
Court……….the people will have
ceased to be their own rulers.”
The views
expressed above clearly
summarize the views of the
executive in the USA on the role
the court plays when it comes to
deciding its involvement in the
performance of the functions of
other state institutions. These
misgivings notwithstanding, the
courts have intervened where the
act of the state institution
complained of was arbitrary,
capricious or manifestly
unlawful. See cases like CHEVRON
USA, INC vs. NATURAL RESOURCES
DEFENSE COUNCIL, INC., 467 US
817 (1984); UNITED STATES vs.
O’HAGAN, 138 L ED (2d)724
(1997).
The
courts do apply the presumption
of regularity to the acts of
state officials, but being a
presumption it does not preclude
the court from probing the act
to find out if it was performed
in accordance with the law; see
the case of CITIZENS TO PRESERVE
OVERTON PARK, INC vs. VOLPE, 401
US 402 (1971). This presumption
has been legislated by section
37(1) of the Evidence Act, 1975
(NRCD 323) which says there is a
presumption in favour of
official acts that they have
been regularly performed. So a
party who thinks otherwise,
assumes the burden of displacing
that presumption by evidence.
In order
to overcome the problems
associated with judicial review
of executive and administrative
actions, the US enacted into law
the Federal Administrative
Procedure Act and this provides
the scope of review. I am aware
that this Act is not applicable
here, yet a lot of its
provisions were the result of
court decisions and these
decisions, though not binding,
are of persuasive influence. But
more importantly some of these
provisions do find expression in
our Constitution, 1992. Section
706 of the Act sets out grounds
for a reviewing court to
determine the validity of any
order or action of the
authority, these are:
1.
to compel agency action
unlawfully withheld or
unreasonably delayed; and
2.
to hold unlawful and set
aside agency action, findings,
and conclusions found to be---
(a)
arbitrary, capricious, an abuse
of discretion, or otherwise not
in accordance with law;
(b)
contrary to constitutional
right, power, privilege or
immunity;
(c)
in excess of statutory
jurisdiction, authority, or
limitations, or short of
statutory right;
(d)
without observance of procedure
required by law.
(e)
unsupported by substantial
evidence……………
(f)
unwarranted by the facts
to the extent that the facts are
subject to trial de novo by the
reviewing court.
The long
and short of all these is that
the state institution must act
within the confines of the law,
and must exercise discretion in
accordance with law. For this
reason Article 296 of the
Constitution, 1992, assumes
prominence in the conduct of the
affairs of all state actors. It
reads:
Where in
this Constitution or in any
other law discretionary power is
vested in any person or
authority-
(a)
That discretionary power shall
be deemed to imply a duty to be
fair and candid;
(b)
The exercise of the
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with the process
of law; and
(c)
Where the person or authority is
not a Justice or other judicial
officer, there shall be
published by constitutional
instrument or statutory
instrument, Regulations that are
not inconsistent with the
provisions of the Constitution
or that other law to govern the
exercise of the discretionary
power.
Clause
(b) of Article 296 uses
expressions like arbitrary and
capricious. These are not terms
of art but must bear a legal
meaning by which the exercise of
discretionary power will be
judged. When considered in
context of Article 296 a person
will be in violation of use of
arbitrary discretion if he
applies his own discretion in
disregard of the law. In this
respect it has the same meaning
as applied in New Zealand, for
as stated by Gallen J. in the
case of RE M (1992) 1 NZLR 29 at
41: “Something is arbitrary when
it is not in accordance with law
or which is not in accordance
with the principles which the
lawregards as appropriate for a
discretion to be operated
within.”
And
capricious exercise of
discretion when used in relation
to an individual person relates
to individual behavior of
impulsiveness and
unpredictability. And in
reference to corporate bodies it
is applicable when they fail to
consider rules of evidence or
rules of law, or if they act
without principles or reason.
The
actions of the 1st
defendant will therefore have to
be examined in the light of
these relevant constitutional
provisions, namely Articles
45(a), 51 and 296. The 1st
defendant has a mandate under
articles 45(a) and 51 of the
Constitution, 1992 to compile a
voters’ register for the country
after publishing the details of
the exercise by way of a
constitutional instrument. As
explained in the lead opinion,
this involves the compilation of
a reasonable and credible
register. It also means that
where for some legal reason
there is cause to believe that
the register is not credible and
therefore does not satisfy the
provisions of Article 45(a) of
the Constitution, the 1st
defendant has a duty cast
upon it to rectify the
situation. It is in this
scenario that the plaintiffs are
calling upon this court to
compel the 1st
defendant to perform its
constitutional mandate. The 1st
defendant is saying it is acting
in accordance with existing law.
As at the time this action was
brought to this court the
relevant regulations were
contained in C.I 72, but this
law was repealed and replaced by
C.I 91.
With
these regulations in place, the
plaintiffs assume the initial
burden of convincing the court
that the 1st
defendant has taken any step in
the process of cleaning up the
register that is not governed by
the repealed CI 72and now CI 91.
The plaintiffs also have to
satisfy this court that the 1st
defendant has abused the
discretionary power vested in it
by Article 296 of the
Constitution, 1992 by taking
steps which are arbitrary,
capricious or unwarranted by the
law or regulations. The
plaintiffs also have to satisfy
the court that the validation
exercise is known to the laws of
this country or is within the
regulations in force governing
elections in this country
currently C.I 91.
However
efficacious the system of
validation may be, even the 1st
defendant cannot employ it
unless it is sanctioned by the
law or regulations. That is the
more reason why such issues
should not be brought before a
court without the legal basis.
The 1st defendant may
introduce the validation process
by constitutional instrument
under Article 51 if need be. The
plaintiffs have not told this
court that the 1st
defendant has taken any step
contrary to law, nor have they
been accused of breaching its
discretionary power. In the
absence of such breaches, the
court has no power to compel or
even to direct the 1st
defendant as to how to
exercise its constitutional
mandate to produce a credible
register; it is the end that
will justify the means. I must
emphasize here that even if
there is provision in the law
and/or regulations for
validation, the court cannot
compel the 1st
defendant to follow that method
unless it is the only mode that
is sanctioned by the law or
regulations. 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 will best suit the task
on hand.
It is
certain the path embarked upon
by the plaintiffs is not
supported by the law because the
1st defendant has not
been found to be acting contrary
to law, whichever way one
decides to characterize their
actions. As long as the process
they have chosen to clean up the
voters’ register is authorized
by the law or regulations, they
cannot be faulted, even if it is
considered that a more efficient
mode exists.
I do not
intend to comment on the status
of the report of the committee
of experts, namely the Crabbe
Committee, appointed by the 1st
defendant to help them address
the issue of the voters
register, except to say that it
is merely advisory without a
legal status enforceable by a
court of law, because like all
advisory opinions it is not
binding on the recipient.
I would
take this opportunity to comment
briefly on C.I 91. In view of
all the happenings in respect of
the eligibility criteria of
potential voters on the
register, one would have thought
that any change in the law would
have made provision for the form
of identification used by a
registered voter to be captured
in the 1st
defendant’s database. This would
have made it easier in future
for the court to make definitive
pronouncements on the status of
persons whose names appear in
the voters register. It is sad
to recall that C.I 91 has been
published without this important
information. It is good to draw
lessons from court decisions in
order to inform future conduct
of state actors. Regulation 22
of CI 91 did not improve upon CI
72. If this court’s decisions do
not guide the future conduct of
state actors, then problems of
needless litigation will never
be stopped and the country will
be poorer for it. An offshoot of
court decisions is to provoke
and influence change or reform
in the law to prevent or reduce
future litigation and conflict.
It is for
these brief reasons that I fully
agree with the decision reached
in this case that the
plaintiffs’ action be dismissed
in so far as it seeks an order
to compel the 1st
defendant to compile a fresh
voters’ register or to use the
validation process to clean the
existing register.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
NANA ASANTE BEDIATUO WITH HIM
MISS OFOSUA AMAGYEI FOR THE
PLAINTIFFS.
THADDEUS SORY FOR THE 1ST
DEFENDANT.
MRS. AFRIYIE ANSAH ( CHIEF STATE
ATTORNEY) WITH HER MISS. IVY
VANDERPUIJE (SENIOR STATE
ATTORNEY) FOR THE 2ND
DEFENDANT |
