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Constitutional Law -
interpretation 1992 Constitution
- Article 49 - the Public
Elections Regulations,2016 (
CI.94 ) - Representation of the
People Law, 1992; PNDCL 284. -
Whether or not the ballots to be
cast pursuant to the Public
Elections Regulations, 2016; CI
94 by special voters in the
December, 2016 presidential and
parliamentary elections ought to
be counted and announced there
and then on the date(s) of the
special voting - Whether or not
- Whether or not Regulation
23(11) of Public Elections and
Regulations, 2016; CI.94 is
inconsistent with “Article 49 of
the 1992 Constitution
HEADNOTES
.
A declaration that upon a true
and proper interpretation of
Article 49 of the Constitution
of the Republic of Ghana, 1992
‘special voting’ as provided for
by Regulation 23 of the Public
Elections Regulations, 2016;
CI.94 is a part of public
elections and true and proper
interpretation of Article 49 of
the Constitution of the Republic
of Ghana, 1992, and Section 13
of the Representation of the
People Law, 1992; PNDCL 284 the
ballots to be cast pursuant to
Regulation 23(1), (2), (3),
(4), (5), (6), (7), (8), (9) and
(10) of the Public Elections
Regulations, 2016; CI 94 by
special voters in the December,
2016 presidential and
parliamentary elections ought to
be counted and announced there
and then on the date(s) of the
special voting; by the presiding
officers and the results at each
poling station; before
communicating same to the
returning officer and a
declaration that Regulation
23(11) of Public Elections and
Regulations, 2016; CI.94 is
inconsistent with “Article 49 of
the Constitution of the Republic
of Ghana, 1992.and an order
striking down Regulation 23(11)
of Public Elections Regulations,
2016; CI.94 as being
inconsistent with Article 49(2),
(3)(a) and (b) of the
constitution of the Republic of
Ghana, 1992 and Section 13 of
the representation of the People
Law, 1992; PNDCL 284.and an
order directed at 1st
Defendant to comply with the
provisions of
Article 49(2), (3)(a) and (b) of
the Constitution of the republic
of Ghana, 1992 and Section 13 of
the representation of the People
Law, 1992; PNDCL 284 in respect
of special voting for the 2016
presidential and parliamentary
elections and any subsequent
public election in the republic
of Ghana
HELD
The excitement of such prejudice
is arrested by the spontaneous
counting and declaration of the
electoral results required by
article 49(2) and (3) as
reflected by, inter alia,
Regulations 23 and 24 of C.I.
94. The allowance of such
prejudice can hardly be the
efficient conduct of public
elections demanded of the
Electoral
Commission under article 51 of
the constitution. We are glad
that no example of the advance
announcement of the results of
special or early voting in any
country in the world could be
cited to us by the parties. We
are therefore fortified by the
global wisdom regarding this
matter. However for all the
foregoing reasons we dismiss the
plaintiffs’ action.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Public Elections Regulations,
2016; CI.94
Representation of the People
Law, 1992; PNDCL 284.
CASES REFERRED TO IN JUDGMENT
Kwesi Nyame-Tease Eshun v.
The Electoral Commission and
Attorney General, Suit No.
J1/24/2016, S.C., dated
27/10/2016
Abu Ramadan & Nimako (No.
1) v. Electoral commission &
Attorney-General & Ors,
(consolidated) (2013 – 2014)2
SCGLR 1654
Re Munhumeso and Others
(1994)1 LRC 282
Tuffuor v.
Attorney-General (1980) GLR 634
C.A.
BOOKS REFERRED TO IN JUDGMENT
Guide
to Election Officials 2016.
DELIVERING THE LEADING JUDGMENT
ATUGUBA, JSC:
COUNSEL
EGBERT FAIBILLE JNR. WITH HIM
ANNIE EMEFA FIAWOO (MRS) FOR THE
PLAINTIFFS.
SEAN POKU FOR THE 1ST
DEFENDANT.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
MRS. ELFRIDA DENKYI (PRINCIPAL
STATE ATTORNEY), IVY VANDERPUYE
(SENIOR STATE ATTORNEY) AND
VICTORIA ADORTEY (ASSISTANT
STATE ATTORNEY) FOR THE 2ND
DEFENDANT.
________________________________________________________________
JUDGMENT
________________________________________________________________
ATUGUBA, JSC:
FACTS
By their writ dated
27/10/2016 the plaintiffs claim
as follows:
“ 1. A declaration
that upon a true and proper
interpretation of Article 49
of the
Constitution of the Republic of
Ghana, 1992 ‘special voting’ as
provided for by Regulation 23 of
the Public Elections
Regulations,
2016; CI.94 is a part of public
elections.
2. A declaration that
upon a true and proper
interpretation of Article 49 of
the Constitution of the Republic
of Ghana, 1992, and Section 13
of the Representation of the
People Law, 1992; PNDCL 284 the
ballots to be cast pursuant to
Regulation 23(1), (2), (3),
(4), (5), (6), (7), (8), (9) and
(10) of the Public Elections
Regulations, 2016; CI 94 by
special voters in the December,
2016 presidential and
parliamentary elections ought to
be counted and announced there
and then on the date(s) of the
special voting; by the presiding
officers and the results at each
poling station; before
communicating same to the
returning officer.
3. A declaration that
Regulation 23(11) of Public
Elections and Regulations, 2016;
CI.94 is inconsistent with
“Article 49 of the Constitution
of the Republic of Ghana, 1992.
4. An order striking
down Regulation 23(11) of Public
Elections Regulations, 2016;
CI.94 as being inconsistent with
Article 49(2), (3)(a) and (b) of
the constitution of the Republic
of Ghana, 1992 and Section 13 of
the representation of the People
Law, 1992; PNDCL 284.
5. An order directed at
1st Defendant to
comply with the provisions of
Article 49(2), (3)(a) and (b) of
the Constitution of the republic
of Ghana, 1992 and Section 13 of
the representation of the People
Law, 1992; PNDCL 284 in respect
of special voting for the 2016
presidential and parliamentary
elections and any subsequent
public election in the republic
of Ghana.
6. Any further order(s)
which this Honourable Court
deems just and equitable ”.
The plaintiffs per their
memorandum of issues dated
8/11/2016 have set
down the following issues for
determination by this court.
“ 1. Whether Special
Voting as provided for at
Regulation 23 of the Public
Elections Regulations, 2016;
C.I. 94 is part of public
elections as provided for by
Article 49 of the Constitution
of the Republic of Ghana, 1992?
2. Whether Regulation
23(11) of the Public Elections
Regulations, 2016; C.I. 94 is
inconsistent with Article 49 of
the Constitution of the Republic
of Ghana, 1992? ”.
The defendants for their part
have set down one issue to the
same effect as
the plaintiffs’ second issue.
Issue One
Issue one is res ipsa loquitur,
since the elections to which
article 49 relates
are manifestly public elections
of which the special vote
invoked in this case
is a component part.
Issue Two
This involves the interpretation
of article 49 and Regulation
23(11) of the
Public Elections Regulations,
2016 (C.I. 94).
Article 49 which is same as S.
13 of the Representation of the
People Law,
1992 (P.N.D.C.L 284) is as
follows:
“ 49. Voting at elections and
referenda
(1)
At any public election
or referendum, 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 that
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
then 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”.
On the other hand Regulation 23
(10) and (11) of the Public
Elections Regulations, 2016 (C.
I. 94) are as follows:
“ (10) Subject to
subregulation (11) voting at
a polling station for
special
voters shall be conducted in
the same manner as
voting on polling
day.
(11) The
returning officer shall at
the end of the special voting
(a)
Ensure that the ballot boxes
are kept in safe custody
after the poll has closed;
(b)
Ensure that the ballot boxes are
sealed with the seals of the
commission and any candidates
who wish to add their seal;
And
(c ) arrange for the ballot
boxes to be opened at the time
of the counting of the votes
cast on the polling day and the
ballot papers shall be counted
in the same manner as those
contained in the ballot boxes
used on the polling day”.
It is obvious that the
expression “the poll has closed”
in the context of sub-
regulation (11) (a) refers to
the poll of the special voting
day and that sub-regulation (c )
is contemporaneous with that of
article 49 (2).
The plaintiffs contend that the
results of the special vote
should be declared on the day
that vote is taken in accordance
with article 49(2). However
article 49(2) ties the duty to
count and declare the votes cast
at a polling station to
“immediately after the close of
the poll”. What then is the
meaning of the expression “the
close of the poll”, in article
49 (2)?. As contended by the 1st
defendant the constitution does
not define that expression.
However that expression is
defined by Regulation (49(1) of
C. I. 94 as ‘ “close of the
poll” means the conclusion of
the poll in all polling
stations of the
constituency including
polling stations where the poll
has been adjourned;” ‘. (e.s)
It is clear from a careful
consideration of the words “At
any public election…” in
article 49(1), when read
together with the succeeding
clauses (2) and (3), that
article 49 as a whole relates to
the holding of one and the same
election and that the results to
be declared thereunder relate to
all the votes in respect of the
election held in each polling
station and not to some of them
only. This is strengthened by
the combined consideration of,
inter alia, Regulations 4, 5,
15, 18, 21 and 23 of CI 94.
Obviously the results from the
special vote are only some of
those results of the polling
stations of a constituency
relating to the election in
question. Such fractional
declaration of results of one
polling station is not
contemplated and could not have
been reasonably contemplated by
the constitution.
The Electoral Commission is
enjoined inter alia by article
51 to make by constitutional
instrument “Regulations for the
effective performance of…” its
duties. In
Kwesi Nyame-Tease Eshun v. The
Electoral Commission and
Attorney General,
Suit No. J1/24/2016, S.C., dated
27/10/2016,
this court held that the
Electoral Commission in the
exercise of its functions under
articles 45(c ) and 51, has a
duty to conduct free, fair,
transparent and legal elections.
Certainly the fractional
declaration of results is not an
effective way of conducting
elections, which to be effective
must be, inter alia, as smooth,
easy to track, coherent,
complete and expeditious, as
possible.
It is therefore understandable
why Regulation 49(1) of C1 94
has defined “close of the poll”
in the manner set out supra.
This definition reflects well
the letter and spirit of article
49 construed as a whole. That
being so, the plaintiffs’ writ
seeks to compel the premature
and unconstitutional declaration
of the results of the special
vote in the manner they contend
for.
The Supremacy of the
Constitution
In any litigation the courts and
the parties are subject to the
constitution. Accordingly this
court has no jurisdiction to
grant a relief that is contrary
to the constitution or any law
that is not inconsistent with or
contrary to the constitution.
As held by this court in Abu
Ramadan & Nimako (No. 1) v.
Electoral commission &
Attorney-General & Ors,
(consolidated) (2013 – 2014)2
SCGLR 1654 as stated in
Holding (2) of the head-note:
“
(2) A meaningful
actualization of the article 42
rights
would
require, inter alia, that the
first defendant Electoral
Commission establish
credible and reliable
structures, systems, processes
and procedures for translating
the
constitutionally-guaranteed
rights into reality. Those
mechanisms,
structures, systems, processes
and procedures must be such,
as on balance, would
guard protect and preserve the
sanctity and credibility
of the rights guaranteed
thereunder. A perfect
electoral system was
obviously utopian; hence the
notion that the structures
should, on balance,
not undermine, detract from,
dilute, nor whittle down the
right to qualify to be
registered, the first
crucial step that would enable
the citizen to vote.
Without that, the entrenched
right to the franchise would
remain an illusion”.
This applies mutatis mutandis to
the duties of the Electoral
Commission under articles 49(c )
and 51. Certainly therefore the
1st defendant in
actualizing articles 45(c ) and
51 must be constrained inter
alia by article 49 which is one
of the objects for which the 1st
defendant’s powers are conferred
by article 51. See Re
Munhumeso and Others (1994)1
LRC 282. Certainly the
unjustifiable erosion of any
constitutional provision in the
exercise of its functions cannot
be countenanced.
Accordingly in the Kwesi
Nyame-Tease case, supra,
this court, holding that
regulation 42 of C. I. 94
relating to the constituency
collation of parliamentary
results is consistent with the
letter and spirit of article 49
of the constitution, adopted it
mutatis mutandis in respect of
the collation of the
presidential results also.
In the present case, however,
the Electoral Commission is
confronted with the dilemma of
having election officers fully
available for the performance of
their electoral duties on the
polling day of an election,
without prejudice to their
rights to vote as well as the
excusable absence of registered
voters on polling day, without
prejudice to their voting
rights. As is well known, the
special vote is fixed for
1/12/2016 whilst the general
election is fixed for
7/12/2016.
In order to do so effectively
under article 51 of the
constitution the Electoral
commission has sought, inter,
alia in regulations 23 and 24 to
work out a balance between the
competing electoral rights and
the other relevant electoral
provisions of the constitution.
The resultant practical scenario
of it’s efforts is captured at
p. 3 of it’s publication, “GUIDE
TO ELECTION OFFICIALS 2016” as
follows:
“ 2.2 Custody of Ballot
Boxes for Special Voting
Ballots cast on special
voting day must NOT be
counted after the poll. The
ballot boxes containing the
ballots should be kept in a
secured room at a police station
in the constituency, and sealed
with the seals of the Commission
and any candidate/party who may
wish to add their seals.
2.3
Counting of Special Voters
Ballots
On polling day after
polling ends at 5.00 p.m. (or
when the last voter in the queue
at 5pm has voted), the returning
officer must retrieve the
special voters ballot boxes from
the police station and count the
ballots in the presence of the
candidates or their agents at
the constituency collation
centre.
The results of the count
should be recorded separately on
both the presidential and
parliamentary collation forms EL
23B and EL. 23A respectively in
the spaces provided like any
other polling station. The
results of the special voting
ballots should be added to the
results from all the polling
stations in the constituency
before the declaration of the
constituency results. The
statement of poll and result
declaration forms EL 21/22 A and
EL 22/22 B should be completed
for the parliamentary and
presidential elections
respectively”. See also p. 5
thereof.
We believe that this
actualization of the powers of
the 1st defendant,
the Electoral Commission under
article 51 of the constitution
with regard to the need for
special voting, resonates well
with, inter alia, articles 42,
49, 23, 296 and 297 ( c) of the
constitution in terms of, letter
coupled with spirit, and that
the relief sought by the
plaintiffs is inconsistent
therewith, see Tuffuor v.
Attorney-General (1980) GLR
634 C.A. (sitting as the Supreme
Court).
For the avoidance of doubt we
would also say that the fears of
the plaintiffs regarding the
sanctity of the special vote and
the absence of the candidates’
polling agents are unfounded in
the face of Regulation 23 (11)
and the
Guide to Election Officials
2016.
We also emphasise that electoral
interlocutory declaration of the
results of the special vote
contended for by the plaintiffs
will gravely prejudice the
secrecy of the ballots of the
easily identifiable voters
concerned contrary to article
49(1) of the constitution. It
would further prejudice the
freedom and fairness of the
electoral process, as contended
by the 1st Defendant
in paragraphs 4.8 and 4.9 of
their statement of case as
follows:
“ 4.8 The integrity of the
national elections can easily
also be compromised or even
jeopardized. The reason for
making this submission is that,
once the results of the
special voting is declared even
before the election, persons who
have not yet voted can be
influenced thereby. The result
of the election will be
discussed on every platform and
this will influence other
voters.
4.9. The various spins
that could attend such public
declaration of the results of
the special voting will not
augur well for a transparent
electoral process. The
backlash will be blamed on these
special voters whose only wrong
is service to the nation and in
so far as the electoral process
is concerned ensuring that its
integrity is preserved. It will
be paradoxical that these
selfless citizens whose avowed
aim is to promote free and fair
elections rather have their
actions innocently undermining
the very process which they seek
to protect”. (e.s)
The excitement of such prejudice
is arrested by the spontaneous
counting and declaration of the
electoral results required by
article 49(2) and (3) as
reflected by, inter alia,
Regulations 23 and 24 of C.I.
94. The allowance of such
prejudice can hardly be the
efficient conduct of public
elections demanded of the
Electoral
Commission under article 51 of
the constitution. We are glad
that no example of the advance
announcement of the results of
special or early voting in any
country in the world could be
cited to us by the parties. We
are therefore fortified by the
global wisdom regarding this
matter.
Conclusion
Before we conclude we wish to
acknowledge the sterling
contribution of the 1st
plaintiff to the development of
Constitutional Law and
Jurisprudence in this country
largely triggered by his
celebrated action in Tuffuor
v. Attorney-General (1980)
GLR 634 C.A. (sitting as the
Supreme Court) and its salutary
impact on the stability of the
Judiciary in Ghana.
However for all the foregoing
reasons we dismiss the
plaintiffs’ action.
(SGD) W. A. ATUGUBA
JUSTICE OF THE
SUPREME COURT
(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) A. A. BENIN
JUSTICE
OF THE SUPREME COURT
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME
COURT
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME
COURT
COUNSEL
EGBERT FAIBILLE JNR. WITH HIM
ANNIE EMEFA FIAWOO (MRS) FOR THE
PLAINTIFFS.
SEAN POKU FOR THE 1ST
DEFENDANT.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
MRS. ELFRIDA DENKYI (PRINCIPAL
STATE ATTORNEY), IVY VANDERPUYE
(SENIOR STATE ATTORNEY) AND
VICTORIA ADORTEY (ASSISTANT
STATE ATTORNEY) FOR THE 2ND
DEFENDANT. |
