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JUDGMENT
MRS. JOYCE BAMFORD-ADDO, J.S.C.:
On the 4th December 2000 this
case was heard at the Supreme
Court which delivered unanimous
judgment on the same day but
reserved the reasons, to be
given on the 17th January 2001.
Following is my reasons in
support of the said unanimous
decision. The plaintiff who
claims to be a citizen of Ghana
and a registered voter, issue a
writ dated on 29th November 2000
invoking the Original
jurisdiction of this Court under
Article 2(1)(b) of the 1992
Constitution for
"1. A declaration that the
decision and directives of the
Defendant, that only a Photo
Identity Card will be accepted
by the Defendant to enable
voters to vote at the forth
coming Presidential and
Parliamentary elections
scheduled to take place on
December 7th 2000 or in the
alternative that Prospective
Voters without a Photo ID will
be permitted to vote only with
the unanimous affirmation of the
said voters' identity by the
agents of all the candidates as
contained in the Gazette Notice
dated November 27, 2000 and the
Electoral Commission of Ghana's
Guide to Electoral Officials
2000, is an act of the Defendant
which is inconsistent with or is
in Contravention of Articles 42
and 51of the Constitution of the
Republic of Ghana and therefore
null and void.
2. An order of "perpetual
injunction restraining the
Defendant by itself, its
servants and agents from
enforcing the Defendants' "No
Photo ID Card No vote
Directives" or the directives
contained in the Gazette Notice
dated 27th November 2000 in
respect of voters without a
Voter ID Card contained in the
Electoral Commission's Guide to
Election Officials 2000.
3. Any other directions as to
give effect to or enable effect
to be given to the declaration
herein sought"
The basis of the plaintiff's
claim is that even though
numerous eligible voters in the
country were in possession of
Thumbprint identity cards who
have not as yet been issued with
Photo identity cards the
Defendant had decided and
published in a Gazette Notice
dated 27th November 2000,
directives, that in the
forthcoming Presidential and
Parliamentary elections
scheduled for 7th December 2000
only photo identity card holders
will be allowed by the Defendant
to vote.
That the Defendant had further
directed that a prospective
voter without a Photo ID Card
will only be permitted to vote
with the unanimous affirmation
of the said voters identity, by
all the candidates/party agents,
that they know that person as
stated in the Guide to Election
Officials 2000 at p. 24 Par.
1.2.
That the act of the Defendant is
inconsistent with or is in
contravention of the provisions
of Articles 42, 51 and 296 of
the Constitution as the said
directives contained in the said
Gazette Notice are not in the
form of a Constitutional
Instrument as required under
Article 51 of the Constitution.
The Defendant Commission on the
other hand contended that in the
attempt to ensure proper
identification of voters it was
decided to replace the
Thumbprint IDs with Photo IDs
and that this exercise began
before the 1996 Elections but
was not completed so in 1999 the
exercise was again mounted for
the replacement of Thumbprint ID
cards with photo ID cards before
the next Elections. The
Defendant continued that the
said exercise commenced in all
part of the country by
concentrating on one Region at a
time in the ten regions and
ended with Greater Accra Region
on the 18th November 2000.
That after the 18th November
2000 voters who had lost their
photo ID Cards could go for
replacement of photo ID Cards
until 30th November 2000 which
was extended to Sunday 3rd
December 2000. The Defendant did
not deny that every registered
voter had been issued with a
photo ID card at 3rd December
2000.
However the Defendants admitted
in Par. 6 of the Statement of
Defendant's case that:
"6. In answer to paragraph 5, 6,
7 and 8 of the Plaintiffs
Statement of case, the Defendant
avers that in Regulation 30 of
the Public Elections Regulations
1996 (C.I. 15) as also in
Regulation 11 of the Public
Elections (Regulation of Voters
Regulation 1995 (C.I. 12), the
Defendant made Regulations
concerning the production by a
voter of an identity card or to
furnish such other evidence as
may be determined by the
Commission to the Presiding
Officer before being given a
Ballot Paper. The said
Regulation did not particularize
the production of either a
Thumbprint or a photo ID card,
and the defendant contends that
with the replacement of the
Thumbprint ID Cards with Photo
ID Cards it was unnecessary for
the Defendant's to publish
another Constitutional
Instrument."
I wish to state here at once
that this defence is untenable
because according to
" Article 51. The Electoral
Commission shall by
constitutional instrument, make
regulations for the effective
performance of its functions
under this constitution or any
other law, and in particular,
for the registration of voters
and conduct of public elections
and referenda, including
provision for voting by proxy"
This was done by the commission
in C.I. 12 and C.I. 15 as
admitted above. But since
Article 297(d) required that:
"where a power is conferred to
make any constitutional or
statutory instrument,
regulation, or rule, or pass any
resolution or give any
direction, the power shall be
construed as including the
power, exercisable in the same
manner, to amend or to revoke
the constitutional or statutory
instrument, regulation, rule or
resolution or direction as the
case may be."
it was incumbent of the
Defendant if it desired to alter
the requirement in Reg. 30 of
C.I. 15 and Reg. 11 of C.I. 12
to make the necessary change or
amendment by the issuance of
another C.I. to effect the
necessary change. So that, quite
contrary to Defendant's
contention that in switching
from thumbprint ID cards to
photo ID cards that it was
unnecessary to publish another
constitutional instrument is a
clearly untenable defence since
the publication of a C.I. was a
constitutional requirements
which had to be followed by the
Defendant.
Hence the Defendant's assertion
that the Plaintiffs'
construction and interpretation
of the Gazette Notice in this
record was wrong and unjustified
cannot be correct.
This answers the question
whether the Electoral Commission
should have covered his
directives contained in the
Gazette Notice of 27th November
2000 with a Constitutional
Instrument to validate the
directives therein contained. In
consequence failure to do this
contravened Articles 42 and 51
of the Constitution.
Under Article 2(1)(b) of the
Constitution 1992
"A person who alleges that:
2(1)(b). Any act or omission of
any person is inconsistent with
or is in contravention of a
provision of this constitution
may bring an action in the
Supreme Court for a declaration
to that effect."
And Article 2(2) says that
"The Supreme Court shall for the
purpose of a declaration under
Clause (1) of this Article make
such orders and give such
directions as it may consider
appropriate for giving effect or
enabling effect to be given to
the declaration so made"
This means that any citizen of
Ghana is entitled to invoke the
original jurisdiction of the
Supreme Court for interpretation
of the Constitution, and such a
person need not himself have any
personal interest in the result
of the matter. This is what the
plaintiff in this case in
seeking to do.
For ease of reference the
directives of the Electoral
Commission contained in the
Gazette Notice of 27th November
2000 is set out hereunder. It is
marked Exhibit "A".
"PRESIDENTIAL AND PARLIAMENTARY
ELECTION 2000
The Public is hereby informed
that for purposes of voting in
the forthcoming Presidential and
Parliamentary elections 2000 and
future public elections, only
Photo Voter Identity cards shall
be used. Thumbprint Identity
Cards shall no longer be valid
for voting.
Any voter who presents
himself/herself without a Photo
Identity Card, shall go through
the following steps for
identification:
(i) The Presiding Officer shall
check for the name in the Name
Reference List;
(ii) If the name is not on the
list, the person will be
politely told to go away from
the Polling Station;
(iii) If the name is on the
list, and all the candidate
agents affirm that they know the
person, he/she shall be allowed
to go through the voting steps
straight-away;
(iv) If there is any doubt as to
the identity of the voter, the
Presiding Officer shall pick the
original registration form of
the person, using voter identity
number on the name Reference
List;
(v) The Voter shall be required
to confirm certain details
provided on the registration
form, to enable him/her to be
allowed to vote;
(vi) The verification of
identity of such a voter shall
take place in the presence of
the party agents." (underscoring
mine)
The people of this country in
1992 promulgated for themselves
a constitution which vested
sovereign power in the people
and provided a Democratic form
of Government based on certain
fundamental principles namely a
political pluralism, a majority
parliamentary representative
rule, under which form of
Government, all citizens of full
age and sound mind had the right
to vote during an election to
choose their representatives. In
the Preamble to the 1992
Constitution it is stated
clearly that:
"We the people of Ghana, in
exercise of our natural and
inalienable right to establish a
frame work of Government which
shall secure for ourselves and
posterity the blessings of
liberty equality of opportunity
and prosperity ... The Principle
that all powers of Government
spring from the sovereign Will
of the People:
The Principle of Universal adult
suffrage.
The Rule of Law,
The Protection and Preservation
of Fundamental Human Rights and
Stability for our Nation,
Do hereby adopt, Enact and Give
to Ourselves this Constitution."
As said by eminent writers of
constitutional law, the right of
suffrage is the preeminent
right-provided under the
constitution without which the
basic rights and freedoms would
all be diminished. The people's
solemn and ardent intention and
desire to adopt our present form
of Government based on Universal
adult suffrage requires our
Court to ensure that noting be
allowed to detract from a
citizens voting right granted
under the Constitutional
democracy we have so freely
adopted for ourselves and for
posterity. The Representatives
Government provided under
Article 1 of the Constitution
states emphatically the
important role of the People in
the Governance of this country
when it states as follows:
"Article 1(1) The Sovereignty of
Ghana resides in the people of
Ghana in whose name and for
where welfare the powers of
government are to be exercised
in the manner and within the
limits laid down in this
Constitution.
(2) The Constitution shall be
the Supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void."
Government of this country is
therefore exercised on behalf of
the people by elected
representatives in a pluralistic
free and fair elections. The way
and manner for the exercise of
this right to elect
representatives, is provided for
in the Constitution and within
certain laid down limits. In
"Article 42. 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 purposes of public
elections and referenda"
The right to vote is an
inalienable right and is listed
also under Article 21(3) among
the General Fundamental Freedoms
as well as under Article 55(2)
which gives every citizen of
Ghana of voting age the right to
join a political party and to
freely participate in the
shaping of the political will of
the people. As stated in
"Article 21(3) all citizens have
a right and freedom to form or
join political parties and to
participate in political
activities subject to such
qualifications and laws as are
necessary in a free and
democratic society and are
consistent with this
constitution."
To this end power is given to
the Electoral Commission in
Article 51 to make laws
regulating the electoral process
which if valid would govern the
exercise of the franchise. For
this reason if they impose
unreasonable or unnecessary
restraints on the peoples' right
to vote, or indirectly takes
away that inalienable right, in
contravention of Article 42
quoted above such laws or
regulations or directives would
be struck down by this court as
null and void.
Since according to Article 1
sovereignty of Ghana resides in
the people, only the people may
decide how and when the
franchise may be interfered with
and no other inconsistent law
made by the Electoral Commission
would be permitted to interfere
with the said right. Further the
Electoral Commission is the only
authority invested with power to
perform certain functions among
others, namely to register
voters and to conduct and
supervise all public elections
and referenda. See Article 45(a)
and (c). The Constitution also
makes the Electoral Commission
completely independent, so as to
enable the Commission to perform
its duties independently of any
person or authority, to no doubt
prevent partisanship and to
ensure fairness in the discharge
of its commissions' duties. In
the exercise of its functions
the commission exercises also
discretionary powers but this
power should be exercised only
by the Commission and its staff
and permits no interference by
any person or authority or the
involvement of any agents of any
political parties, otherwise the
independence of the Commission
granted by Article 46 would be
meaningless resulting in
complete chaos of the electoral
process contrary to the
intention contained in the
constitution.
According to Article 46
"Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution in the performance
of its functions, the Electoral
Commission shall not be subject
to the direction or control of
any person or authority."
The effect of this Article is
also that the Electoral
Commission cannot delegate or
share its discretionary powers
with any other person or
authority eg. political agents
of different parties, since as
already stated above, this would
amount to interference with the
performance of the Electoral
Commission's functions which
Article 46 seeks to avoid and
prevent. For the above reasons
in the conduct and supervision
of an election it is the
Electoral Commission alone which
has to exercise discretion to
make all decisions not
inconsistent with the
constitution or any other law.
This is why Article 51 provides
the procedure and manner to be
adopted by the Electoral
Commission for the effective
performance of its functions
particularly in the registration
of voters and conduct off
elections and referenda, through
the making of Public
constitutional instrument.
In respect of the registration
of voters C.I. 12 i.e. the
Public Elections (Registration
of Voters) Regulation 1995 was
made, by Reg. 11 of C.I. 12
which states that:
"Regulation 11. Where upon an
application there is no
objection to the application the
registration officer shall enter
the name of the applicant in the
Register which shall be
provisional only and shall issue
to the applicant a voters
identification card in such form
as the commission shall
determine."
The voter identification card
issue under C.I. 12 was at the
time thumbprint ID card. As can
be seen Regulation 11 did not
restrict the ID Card strictly to
Photo ID card but referred
generally to an ID card. However
it was within the ECs power and
discretion to amend Regulation
11, to require a photo
Identification card as only one
required now for voting, but as
discussed earlier, Regulation 11
supra, would require an
amendment, by Constitutional
instrument to this effect. See
Article 51 by whose authority
Regulation 11 of C.I. 12 was
enacted and also Article 297(d).
It is to be noted that no where
in the Constitution or C.I. 12,
was notification in a Gazette
Notice sufficient for the
purpose of the amendment of C.I.
12, particularly Regulation 11
thereof as the Commission seeks
to do. Where in the regulation
notice is required to be given
in a Gazette it was specifically
so stated. Examples can be found
in Reg. 2(3), Reg. 7(1) and (2)
Reg. 10(1) and Reg. 18. Whereas
Gazette Notice is not adequate
to amend Reg. 11. If therefore
this regulation is sought to be
amended the proper procedure to
adopt is as provided under
Article 51 by resort to C.I. and
Article 297(d). Further more
Article 11 (7) provides that:
"(7) Any order, Rule or
Regulation made by a person or
authority under a power
conferred by this Constitution
or any other law shall:
(a) be laid before Parliament;
(b) be published in the Gazette
on the day it is laid before
Parliament; and
(c) come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament before the expiration
of the twenty-one days annuls
the Order Rule or Regulation by
the votes of not less than
two-thirds of all the members of
Parliament."
To make a C.I. requires the
approval of Parliament for its
validity as set out above.
Therefore since the procedure in
Article 11(7) above was not
complied with by the EC the
amendment sought to be made by
the Commission, to restrict a
voters I.D. card specifically to
only Photo I.D. Card as the only
legal form of proving identity,
is in contravention of Article
51, Article 297(d) and Article
11 (7) of the Constitution and
therefore the directives
contained the Gazette Notice of
27th November 2000 is null and
void and of no effect.
Again in the Public Elections
Regulations 1996 C.I. 15 Reg. 30
which deals with the
identification of voters
provided that:
"Reg. 30: A presiding officer
may, before delivering a ballot
paper to a person applying to
vote at the election, require
the person;
(a) to produce his or her voter
identification card or furnish
such other evidence as may be
determined by the commission to
establish that he or she is the
registered voter whose name and
voter identification number and
particulars appear in the
register and
(b) make a declaration in the
prescribed form that he has not
already voted any where at the
election"
According to
"Reg. 31(1) Every voter desiring
to record his vote shall present
himself at his allotted station
and the presiding officer or a
polling assistant, after
satisfying himself that the
voter is registered and has not
already voted and that any other
means of identification
determined by the Commission in
the possession of the voter is
valid, shall deliver the ballot
paper to the voter."
The functions of the EC to check
and verify identification of the
prospective voters can be found
in Regulations (Reg. 30 and 31)
of C.I. 15 set out above, by
officers of the Commission i.e.
a presiding officer or polling
assistant and no other persons
were mentioned, so that Reg. 30
and 31 excludes candidates
Agents or Polling Agents of
political parties whose duties
are spelt out in Reg. 19 of C.I.
15. Also in Reg. 30 general
mention was made of voter ID
Cards as proof of identity of a
registered prospective voter,
who has to produce his voter
identification card which in the
present circumstances could be
thumbprint ID or photo ID,
because no particular one, of
these was specifically mentioned
as the only valid ID card which
has to be produced for the
purposes of identification.
However the commission through
its employees may in case of
doubt ask for further
identification by the
prospective voter for example
his or her name and voter
identification number and for
certain other particulars which
appear in the register.
In my opinion the EC's
discretion has to do with the
production of any ID card and
other evidence required by EC
and voter identification card
could be thumbprint or photo ID
since Reg. 30 did not restrict
identification card to photo ID
only until Reg, 30 C.I. 5 is
properly amended by the E.C. as
described earlier. Even though
it is a fact that the thumbprint
ID was subsequently changed to
photo ID Card for some people,
Electoral Commission cannot
lawfully insist on the
production of only a Photo ID
card for proof of identity,
consequently it is my opinion
that the beginning of the
Gazette Notice dated 27th
November 2000 which directed
that:
"The public is hereby informed
that for purpose of voting in
the forth coming Presidential
and Parliamentary elections 2000
and future public elections,
only photo voters identity cards
shall be used. Thumbprint
identity cards shall no longer
be valid for voting."
is unjustified, null and void,
since that directive as was not
backed by C.I. For this reason
the Constitutional requirement
in Article 51 was breached and
the Plaintiff was entitled to
come to this Court for a proper
interpretation and enforcement
of Articles 42 and 51 of the
constitution, as well as other
laws and regulations already
mentioned above.
The next issue for consideration
is the compliant of Plaintiff
that the directives contained in
the Gazette Notice requiring at
Par. 2(iii) thereof that:
"If the name is on the list and
all the candidate agents affirm
that they know the person,
he/she shall be allowed to go
through the voting steps
straight away."
was a wrongful delegation of
EC's functions, and was of no
effect and void. The complaint
of Plaintiff's can be found at
Pars 6, 17, 19, 20 and 21 of the
Statement of Plaintiffs' case
namely:
"Par 6.17. In the alternative
the Plaintiff says that a
prospective voter without a
photo identification card will
be permitted only with the
unanimous affirmation of the
said voters identity by all the
candidates/party agents that
they know the person as stated
in the guide to Election
officials 2000 at p.24 par.
1.2".
"Par 17. The Plaintiff will
contend that the Defendant's new
requirement contained in the
unconstitutionally published
Gazette Notice of November 27,
2000 that the verification of
identity of a voter shall take
place in the presence of all
parties/candidates agents, with
their unanimous affirmation of
the voters identity, thereby
invoking political parties in
the exercise of Defendants'
discretion granted to him only
by the Constitution and other
laws is wrongful and ultra
vires.
Par 19. The Plaintiff will
contend that the Defendant's
commission is so designed under
the constitution to perform its
duty without the involvement of
political parties when the
commission is exercising its
discretionary powers under the
constitution or any other law.
Par 20. The Plaintiff says that
by the Defendant Directives
requiring the unanimous
affirmation of the identify of
the voter by political parties
representatives is an abdication
of the Defendants statutory
functions which are
constitutional and the
delegation of the Defendant's
said discretion is arbitrary and
capricious in contravention of
Article 296(c) of the
Constitution.
Par 21. The Plaintiff will
therefore submit that the
Defendants acts and conduct are
not in conformity with the
powers conferrred upon him by
the Constitution and the laws of
the land and therefore must be
declared null and void".
Plaintiffs complaint and
challenge to the above stated
directives has much merit.
Even though the Commission and
its employees have to check for
the correct identity of a
prospective voter to avoid
impersonation, double voting
etc. by use of its
discretionary powers, those
powers were granted to the
commission alone. The
Commission is an independent
body which cannot in any way be
interfered with in the
performance of its functions.
See
"Articles 46, 52 and 53 of the
Constitution.
Accordingly to allow political
candidates agents to be the
final arbiters of the identity
of a prospective voter, which
function belongs exclusively to
the independent Commission,
would be wrong and contrary to
the provisions of the said
Article 46. The EC and its staff
only are empowered to actually
exercise the powers and
discretion accorded to Defendant
Commission under
"Article 52. There shall be in
every region and district a
representative of the Electoral
Commission who shall perform
such functions as shall be
assigned to him by the
Commission."
and Article 53 also provides for
the appointment of staff of the
commission. Since
candidates/agents are not staff
of the Commission, the Defendant
had no power to delegate or
assign any of its functions
under Article 51 to them, since
doing this would be wrongful and
ultra vires its powers.
Therefore to allow
Candidates/agents to verify the
identity of prospective voters
by unanimous affirmation, as
directed by the commission in
the Gazette Notice of 27th
November 2000, is wrong and
ultra vires. Such act would
hinder rather than be conducive
to a free and fair election as
required in the electoral
processes and laws and would
actually be contrary to the
actual intention of the Framer
of the constitution.
The principle on delegation of
powers, of an authority like the
Defendant Commission, is that
such powers, should be exercised
by the authority upon whom it
was conferred and by no one else
except in cases where it may
reasonably be inferred that the
power was delegable and the
courts normally rigorously
enforce this principle. The
maxim "delegates no potest
delegare" is in appropriate
cases invoked. In the case of
statutory powers granted to an
authority the question to be
considered is whether on the
construction of the statute the
conferred power may be exercised
by another. Unless the Act does
admit of such interpretation the
court would not sanction
delegation of powers and would
hold any such delegation to be
ultra vires because the final
and effective decision, to be
taken in accordance with the
discretion should be that of the
holder of the power, not someone
else, to whom the power was not
originally given. This is so
because the valid exercise of a
discretion requires a genuine
application of the mind and a
conscious choice by the proper
authority, therefore the
directive contained in 2nd
Paragraph i.e. Par (iii.) of the
Gazette Notice giving the
candidate agents the power to
unanimously affirm the identity
of a voter before allowing him
to vote, being a discretionary
power which is given by statute
to only the Commission and its
employees i.e. the Presiding
Officers and polling assistant,
may be held to put the decision
effectively into the hands of
the candidates Agents who lack
statutory or constitutional
power and authority to make such
decisions. More so when Article
46 requires the complete
independence of the Commission
in the performance of its
functions. Regarding the
principle, "delegates non potest
delegare" see the case of
Republic v. Akuapim Traditional
Council Ex Parte Fori (1975) 1
GLR. 457. The Akuapim
Traditional Council at one of
its meetings held on 16th
October 1973 selected four
persons including the registrar
of the council and authorised
them to appoint the members of
the judicial committee who were
to adjudicate certain cases then
pending before the council. The
applicant, a party to one of the
cases being heard objected to
the jurisdiction of the Judicial
Committee and brought the
application for an order of
prohibition on the ground that
the Chieftaincy Act 1971
conferred no power on the
Traditional Council to delegate
its power of appointing a
judicial committee to other
persons.
"Held granting the application:
the council's purported
delegation of the authority to
appoint judicial committee
members to other persons, be
they traditional Council members
or not was on the principle of
delegatus non potest delegare
contrary to law and the
subsequent appointment of the
judicial committee by an
incompetent body was accordingly
irredeemably void. Dictum of
Brett L.J. in R v. Local
Government Board (1882) 10 QBD
309 at 321 CA applied"
Quite clearly whereas the
Constitution has been so
designed to make the Defendant
commission completely
independent in the performance
of its duties and functions, the
directives of the Commission
amounting to a delegation of its
duties under discussion, would
if permitted to be effective be
contrary to the mischief sought
to be prevented by the
Constitution namely, to empower
the commission to act in a non
partisan and fair manner in the
discharge of its functions. The
said direction is contrary to
both the letter and spirit of
the constitution and contravenes
Articles 42, 51, 46, 21(3) and
55(2) thereof which is therefore
null and void.
We in this country have adopted
a democratic form of Government,
as well as other political
rights including the right to
vote. This right ought to be
exercised in a free and fair
manner as provided for under
various Articles of the
Constitution and other laws.
Therefore any act which seeks to
deprive, undermine, prevent or
hinder the people, or any
section thereof from voting and
thereby participating in the
political life of the community,
is wrong and illegal, it is a
major deprivation of their right
to vote, which is contrary to
our constitution and undermines
the whole concept of a
democratic government. As stated
by a great constitutional writer
Thomas Paine who said that the
right of voting for
representatives "is a primary
right by which all rights are
protected. To take away this
right is to reduce a man to
slavery for slavery consists in
being subject to the will of
another and he that has not a
vote in the election of
representatives is in this
case." See "Democracy as a
Universal Value" in Journal of
Democracy 1998 - July 1999
issue. The UN adopted the
Universal Declaration of Human
Rights in 1948 and underscored
the political rights of the
people as did the Charter of the
OAU of which organisation Ghana
is a member.
Ghana has adopted Democracy and
those principles as eloquently
given force in the Preamble and
Article 1 of the Constitution,
1992. In the now contemporary
world any limitation on suffrage
is rejected, as it is
universally accepted that there
is no reason at all for
exclusion of the right or any
limitation to it considering
that all men are created equal
and have one vote each. For
this reason it is incumbent on
the Electoral Commission to
provide by all legitimate means
for the free and unlimited
exercise of citizens' franchise
to conform with both the letter
and spirit of the Constitution.
This is the reason which informs
the manner in which electoral
laws ought to be interpreted.
The rules of interpretation of
the Constitution provides a
guiding principle which has to
be applied, which rules are also
applicable to the interpretation
of laws affecting the right to
vote as provided in Article 42
and other relevant Articles in
the Constitution 1992.
This guiding principle is set
out in Tuffuor v. Attorney
General (1980) GLR 637 C.A.
where the court stated as
follows:
"Per Curiam. A written
Constitution such as ours is not
an ordinary Act of Parliament.
It embodies the will of a
people. It also mirrors their
history. Account, therefore,
needs to be taken of it as a
land mark in a people's search
for progress. It contains within
it their aspirations and their
hopes for a better, fuller life.
The Constitution has its letter
of the law. Equally the
Constitution has its spirit. ...
Indeed it is a living organism
capable of growth and
development, as the body politic
of Ghana itself is capable of
growth and development. A broad
and liberal spirit is required
for its interpretation. It does
not admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time. And so we
must take cognisance of the age
- old fundamental principle of
constitutional construction
which gives effect to the intent
of the Framers of this organic
law" (underscoring mine)
The above quotations from our
own jurisdiction as to
interpretation accords with that
of U.S., courts in cases which
set out the reasoning
underlining the requirement that
a liberal interpretation must be
given to electoral laws. No
interpretations which has the
result of ultimately denying any
citizen of the franchise, would
be right as this would be
against the intention as well as
the letter and spirit of the
constitution considering the
particular Articles referred to
above. The principle that since
election laws are intended to
facilitate the right of
suffrage, such laws must be
liberally construed in favour of
the citizen's right to vote can
be found in several US cases. In
the case of state ex rel.
Carpenter v. Barber 198 So.49,
51 (FLA 1940) it was stated
that:
"General, the courts in
construing statutes relating to
elections, hold that the same
should receive a liberal
construction in favour of the
citizen whose right to vote they
tend to restrict and in so doing
to prevent disfranchisement of
legal voters and intention of
the voters should prevail when
counting ballots............ It
is the intention of the law to
obtain an honest expression of
the will or desire of the
voter."
See also state ex rel. Whitley
v. Renchart 192 So. 819, 823
(Fla. 1939). As can be seen the
principle regarding the
interpretation of election laws
is that they should be construed
liberally in favour of the right
to vote rather than a denial of
that right, since this is the
intention of the constitution in
various Articles especially
particularly Article 42 which
provides that all registered
voters be allowed to vote freely
without any unreasonable
hindrance whatsoever. This is
also clearly in conformity with
the spirit of the constitution.
Elections must necessarily be
free and fair so as to obtain an
honest expression of the will of
the people, therefore any
interpretation of any of the
electoral laws and regulations
or the exercise of a discretion
by the Defendant Commission
should conform with this
constitutional interpretation of
regarding laws in conformity
with the clearly evident
intention of the Constitution.
See also the U.S. case of
Whitley v. Hollis Rinehart JR.
198 So. 49. 1940 Fla. respecting
the opinion of Terrell C.J.
wherein he restated the
principle regarding the
importance of the ballot and
interpretation of election laws
as follows:
"One cannot read Article VI and
not be impressed with the
importance of the ballot and the
safeguards that the makers of
the Constitution felt impelled
to throw around its purity.
Registration and voting are
sovereign duties imposed on
every citizen of a democracy. We
hear a lot of loose talk about
the right to vote but as
distinguished from a duty, there
is no such thing as a right to
vote. Voting as the most
responsible duty the citizen of
a democracy is called upon to
perform, it is duty not to be
exercised flippantly, for in its
performance our social and
economic states, our ideals, and
general well being are
determined ..."
On how election laws are to be
construed the Honourable C.J.
said:
"Election laws should be
construed liberally in favour of
the right to vote ........"
In yet another recent US case of
Palm Baach County Canvassing
Board v. Katherine Ham's dated
21st November 2000 the court
restated the Guiding Principles
to be applied quoting Boardman
v. Esteva 323 So 2d 259, 263
(Fla 1975) thus:
"....Ours is a Government of, by
and for the people. Our Federal
and State Constitutions
guarantee the right of the
people to take an active part in
the process of that Government,
which for most of our citizens
means participation via the
election process. The right to
vote is the right to
participate: it is also the
right to speak but more
importantly the right to be
heard. We must tread carefully
on that right or we risk the
unnecessary and unjustified
muting of public voice. By
refusing to recognize an
otherwise valid exercise of a
right of a citizen to vote for
the sake of sacred, unyielding
adherence to statutory
scripture, we would in effect
nullify that right."
This is how electoral laws ought
to be interpreted in this
country as well, considering the
intention of the Drafters of the
Constitution 1992. Electoral
Laws commence with the right to
be registered as a voter which
entitles a registered citizen to
the right to vote freely without
any hindrance or limitation as
stated in Article 42 and this
court has previously protected
the right to register as
inalienable and enforced
registration of a qualified
voter when the Electoral
Commission failed to register
him. See the case of Tehn - Addy
v. Electoral Commission &
Another (1996 - 97) SC. GLR
p.589. The Plaintiff presented
himself for Registration to the
Electoral Commission as a voter
during the supplementary
registration exercise which was
conducted by the Commission
between 1 - 9 June 1996 but the
Commission refused to register
him as a voter thereafter, which
was inconsistent with Article
42, 45, 46 of the 1992
Constitution. He brought an
action to the Supreme Court,
invoking the original
jurisdiction for inter alia, a
declaration that the conduct of
the Commission was inconsistent
with the said Articles of the
Constitution. It was unanimously
held by the Supreme Court
granting the Order for the
Electoral Commission to register
the plaintiff as a voter that:
"(a) Every sane Ghanaian citizen
of 18 years and above had the
right under Article 42 of the
1992 Constitution to be
registered as a voter. The
exercise of that constitutional
right of voting was
indispensable in the enforcement
of the democratic process and it
could not be denied in the
absence of constitutional
provision to that effect.
"Per Curiam (1). A heavy
responsibility is ... entrusted
to the Electoral Commission
under Article 45 of the
Constitution in ensuring the
exercise of the Constitutional
right to vote. For in the
absence of this right, the
citizen is able not only to
influence the outcome of the
elections, and therefore the
choice of a Government, but also
he is not in a position to help
influence the course of social,
economic and political affairs
thereafter. He indeed becomes
involved in the decision making
process at all levels of
governance."
In similar manner the courts
should and would protect the
right to vote at all costs as it
has previously protected the
right to register, otherwise,
democracy in this country would
be undermined.
Speaking for myself I am of the
strong view that as guardians of
the Constitution and the rights
and freedoms provided therein
for all people, including the
right to vote, which is the
first basic right and pivot upon
which all other rights rests -
it is the bounden duty of this
court to strike down any act
which has the effect of taking
away the full and free enjoyment
of the franchise, an act which
though unintended would
contravene the relevant
provisions of our Constitution,
as sufficiently discussed above.
As I have intimated earlier the
relevant Electoral Commission's
decision and directives referred
to above are null and void and
of no effect and I so hold. Even
though I think the commission's
said directives were guided by
the laudable desire to prevent
election frauds and
impersonations and to hold a
free and fair elections this
should be done in such a manner
as not to take away the right to
vote of some citizens, of this
country the very right which is
sought to be protected.
AMPIAH, J.S.C.:
On 4th December, 2000, the court
gave judgment in favour of the
plaintiff in this action and
reserved the reasons for its
decision. I now proceed to give
my reasons for supporting the
unanimous decision of the court.
By his Writ of Summons, the
plaintiff, Philip Kwaku Apaloo
sought,
"1. A declaration that the
decision and/or the directives
of the Defendant that only a
PHOTO IDENTITY CARD will be
accepted by the Defendant to
enable voters to vote at the
forth coming Presidential and
Parliamentary elections
scheduled to take place on
December, 7, 2000 or in the
alternative that Prospective
Voters without a Photo ID will
be permitted to vote only with
the unanimous affirmation of the
said voters' identity by the
Agents of all the candidates as
contained in the Gazette Notice
dated November 27, 2000 and the
Electoral Commission of Ghana's
Guide to Electoral Officials
2000 is an act of the Defendant
which is inconsistent with or is
in contravention of ARTICLES 42
AND 51 of the Constitution of
the Republic of Ghana and
therefore null and void.
2. An order of perpetual
injunction restraining the
Defendant by itself, its
servants and agents from
enforcing the Defendant's "No
Photo ID Card No Vote
Directives" or the directives
contained in the Gazette Notice
dated 27th November 2000 in
respect of voters without a
VOTER ID card contained in the
Electoral Commission's Guide to
Election Officials 2000.
3. An order restraining the
Defendant by itself its servants
and agents from conducting the
forth coming Presidential and
Parliament elections or any
other election until the
determination of the suit
herein.
4. Any other directions as to
give effect to or to enable
effect to be given to the
declaration herein sought."
The complaint of the plaintiff
against the acts of the
defendant is contained in
paragraphs 5 and 6 of the
plaintiffs Statement of Case. It
is this—
"5. Notwithstanding the fact
that there are numerous eligible
voters in the country holding
Thumbprint identity cards who
have not as yet been issued with
the said Photo Identity Card,
the Defendant has decided and
published in a Gazette Notice of
November 27, 2000 directives
that in the forth coming
Presidential and Parliamentary
elections scheduled for December
7, 2000 only Photo identity card
holders will be accepted by the
Defendant to vote. I attached
hereto copy of the said Gazette
Notice marked Exhibit 'A'."
5. In the alternative the
defendant says that a
prospective voter without a
Photo identification card will
be permitted to vote only with
the unanimous affirmation of the
said voter's identity by all the
candidates/party agents that
they know the person as stated
in the Guide to Election
Official 2000 at page 24
paragraph 1.2."
The plaintiff contends that:
1. The Gazette Notice dated
November, 27, 2000 and the
Electoral Commission Guide to
Electoral Officials 2000 which
seek to disenfranchise some
citizens are inconsistent with
or are in contravention of
Article 42 and 51 of the
Constitution.
2. The delegation of the
defendant's authority to
identify those who are entitle
to vote, to polling agents, is
unconstitutional and therefore
invalid.
By its Statement of Case, the
defendant has given the
historical background to the
process of identification and
attempts at making
identification easier and
simpler for purposes of voting.
I must say, and this cannot be
denied, that great effort has
been put in by the defendant to
make the identification of
voters simple and easy. The
effort is laudable. But not all
laudable efforts are lawful. The
complaint here is that however
laudable these acts have been,
they violate the Constitution
and the laws of the land.
Article 42 of the Constitution
provides,
"42. 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 public elections and
referenda".
There is no doubt that the 2000
Presidential and Parliamentary
Elections are some of such
public elections. Consequently,
provided the person is:
i. a citizen of Ghana.
ii. eighteen years of age or
above.
iii. of a sound mind and
iv. duly registered in the
register of voters,
he has a right to vote. It is
however necessary, in order to
avoid fraud misrepresentation
and impersonation that the voter
should be properly identified
before he is allowed to vote.
That process has been left to
the Electoral Commission by the
Constitution which provides:
"The Electoral Commission shall
by constitutional instrument
make regulations for the
effective performance of its
functions under this
constitution or any other law,
and in particular, for the
registration of voters, the
conduct of public elections and
referenda, including provision
for voting by proxy"- vide
Article 51 of the Constitution.
In pursuance of this power to
make regulations the Electoral
Commission made the Public
Elections Regulations, 1996
(C.I. 15). This was the
constitutional instrument under
which the 1996 Presidential and
Parliamentary Elections were
conducted. Regulation 30(1) of
C.I. 15 provides:
"30(1) A presiding officer may,
before delivering a ballot paper
to a person applying to vote at
the election, require the
person-
(a) to produce his or her voter
identification card or to
furnish such other evidence as
may be determine by the
Commission to establish that he
or she is the registered voter
whose name and voter
identification number and
particulars appear in the
register; and
(b) to make a declaration in the
prescribed form that he has not
already voted anywhere at the
election."
For purposes of identifying a
voter under this law both photo
ID and thumbprint ID cards were
used. Under this regulation
therefore both thumbprint and
photo ID cards holders were
eligible to vote, provided they
could be properly identified.
This regulation has not been
changed or amended. It is this
same regulation which is being
used to conduct the 2000
Presidential and Parliamentary
Elections. The defendant now
seeks by a Gazette Notification
to amend this regulation. The
question is could this be done;
can a constitutional Instrument
be amended by a Gazette
Notification? The answer is
definitely, NO.
But what does this Gazette
Notice seek to do?
The first paragraph of the
Gazette Notice in question
states:
"The Public is hereby informed
that for purposes of voting in
the forthcoming Presidential and
Parliamentary elections 2000 and
future public elections, only
photo Voter Identity Cards shall
be used. Thumbprint Identity
cards shall no longer be valid
for voting." (emphasis supplied)
The language is clear. It means
that "THUMBPRINT IDENTITY CARDS"
are not valid for voting and
that only photo Voter Identity
cards will be accepted for
identification for voting. But
what is not clear with this
provision is that -
"(iii) If the name is on the
list and all the candidate
agents affirm that they know the
person, he/she shall be allowed
to go through the voting steps
straight away;
(iv)
X
X X
(v) The voter shall be required
to confirm certain details
provided on the registration
form, to enable him/her to be
allowed to vote".
By these provisions, if the
person's name appears on the
list and he is able to confirm
certain details provided on the
registration form he would be
allowed to vote! What then is
the rational for refusing to
accept a person whose name is on
the list but holds a thumbprint
Voter Identity Card, after he
has confirmed certain details
provided on the registration
form? This to me is
discriminatory, capricious and
an unnecessary attempt to
disenfranchise thumbprint
Identity Cards holders. This
situation is bound to bring
about confusion at the voting.
It is very unfair to the
thumbprint Identity Card
holders.
It is also a provision in the
Gazette Notice that "all the
candidate agents affirm that
they know the person....,"
before that person is allowed to
vote. This provision amounts to
a delegation of the commission's
constitutional duty. How could
this provision be met when days
before the election, the NPP had
declared that 'NO PHOTO ID CARD,
NO VOTE' This was bound to
result in chaos a situation all
Ghanaians want to avoid.
Article 296 provides-
"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 due process
of law; and
(c) where the person or
authority is not a judge or
other judicial officer, there
shall be published by
constitutional instrument or
statutory instrument,
regulations that are not
inconsistent with the provision
of this Constitution or that
other law to govern the exercise
of the discretionary power."
As stated before, the Electoral
Commission is empowered to make
regulations for the effective
performance of its duty. That
power gives a discretion to the
commission; the exercise of
which shall not be arbitrary,
capricious or biased. It is to
avoid such situations that a
constitutional instrument is
required. This is to give the
legislature, an opportunity to
have a look at the intended
constitutional instrument. It is
provided that-
"Any order Rule or Regulation
made by a person or authority
under a power conferred by this
Constitution or any other law
shall-
(a) be laid before Parliament;
(b) be published in the Gazette
on the day it is laid before
Parliament and
(c) come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of the twenty-one
days, annul the Order, Rule or
Regulation by the votes of not
less than two-thirds of all the
members of Parliament". - vide
Article 11(7) of the
Constitution".
It is said that the decision to
effect the changes as contained
in the Gazette Notice, was
agreed upon by all the parties
at a meeting of the Inter Party
Advisory Committee (IPAC). That
may be so and that may have been
done in good faith, but that
cannot replace the requirement
of the law that such exercise of
discretion must be done
following due process of the law
by making a constitutional
instrument to back the
agreement. Article 46 of the
Constitution provides-
"46. Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission, shall not be subject
to the direction or control of
any person or authority."
Also, it is said that where
power is given to a person to
perform a particular duty, such
power shall not be delegated
without due process of the law.
The maxim is, delegates potesta
non potest delegari (A delegated
power cannot be delegated) The
manner by which, a voter may be
identified and allowed to vote
is set down clearly in
Regulation 30 of C.I. 15. It is
not the business of "..... all
the candidate agents" (i.e. the
polling agents of the contesting
candidates) to "affirm that they
know the person" before he/she
is allowed to go through with
the voting steps. That duty is
with the Presiding Officer or
his polling assistants who must
satisfy themselves of the
identity of the intended voter.
Regulation 19 sets down the
duties and responsibilities of
polling agents, in particular,
Regulation 9(1) provides -
"A candidate may appoint one
polling agent to attend at each
polling station in the
constituency for which he is
seeking election or, in the case
of a candidate for President, in
every polling station nation
wide, for the purpose of
detecting impersonation and
multiple voting and certifying
that the poll was conducted in
accordance with the laws and
regulations governing the
conduct of elections" (emphasis
mine).
Outside this, the polling agent
has no business affirming that
they know the person before the
voter is permitted to proceed.
Article 42 which gives the voter
the right to vote is an
entrenched provision of the
Constitution - see Article 290
1(e). Any attempt to
disenfranchise a citizen in any
way other than under the
provision of this article must
be done in accordance with the
procedure laid down in the
Constitution. Article 290(2),
(3), (4), (5) and (6) provide,
"2. A bill for the amendment of
an entrenched provision shall,
before Parliament proceeds to
consider it, be referred by the
Speaker to the Council of State
for its advice and the Council
of State shall render advice on
the bill within thirty days
after receiving it.
3. The bill shall be published
in the Gazette but shall not be
introduced into Parliament until
the expiry of six months after
the publication in the Gazette
under this clause.
4. After the bill has been read
the first time in Parliament it
shall not be proceeded with
further unless it has been
submitted to a referendum held
throughout Ghana and at least
forty percent of the persons
entitled to vote, voted at the
referendum and at least
seventy-five percent of the
persons who voted cast their
votes in favour of the passing
of the bill.
5. Where the bill is approved at
the referendum, Parliament shall
pass it.
6. Where a bill for the
amendment of an entrenched
provision has been passed by
Parliament in accordance with
this article, the President
shall assent to it."
I find that all the steps taken
by the Electoral Commission (the
defendant) to deny the plaintiff
his right to vote or to impede
him in the exercise of his right
to vote are inconsistent with
and are in contravention of the
Constitution particularly
Article 42 and 51. It is for the
above reasons that 1 supported
the decision of the court.
KPEGAH, J.S.C.:
This case, perhaps, is the most
important to be decided by this
Court since the present
democratic dispensation. It
involves one of the basic rights
of a citizen of this country;
that is his right to vote. While
it is true to say that our
Constitution anticipates
political power to reside in the
people which they exercise
through universal adult
suffrage, it is also true to say
that this same Constitution
mandates only the Electoral
Commission with the general
oversight of the electoral
system in the country.
By a gazette notice dated 27th
November, 2000, the Electoral
Commission informed the general
public that
"for purposes of voting in the
forth coming Presidential and
Parliamentary elections 2000 and
future public elections, only
Photo Voter Identity Cards shall
be used. Thumbprint Identity
Cards shall no longer be used".
The said notice also directed
the procedure to be followed
where a prospective voter has no
identity card but has his name
on the register of voters. It
directs that in such a case, all
party representatives must
affirm the identity of the
person before he can be allowed
to vote. The plaintiff,
aggrieved with these directives
from the Electoral Commission
took out a writ in this Court
invoking our original
jurisdiction seeking the
following reliefs:
1. A declaration that the
decision and/or the directives
of the Defendant that only a
PHOTO IDENTITY CARD will be
accepted by the Defendant to
enable voters to vote at the
forthcoming Presidential and
Parliamentary elections
scheduled to take place on
December 7, 2000 or in the
alternative that prospective
voters without a Photo ID will
be permitted to vote only with
the unanimous affirmation of the
said voter's identity by the
Agents of all the candidates as
contained in the Gazette Notice
dated November 27, 2000 and the
Electoral Commission of Ghana's
Guide to Electoral Officials
2000 is an act of the Defendant
which
is
inconsistent with or is in
contravention of ARTICLES 42 &
51 of the Constitution of the
Republic of Ghana and therefore
null and void.
2. An order of perpetual
injunction restraining the
Defendant by itself, its
servants and agents from
enforcing the Defendants 'No
Photo ID card No vote Directive'
or the directives contained in
Gazette Notice dated 27th
November 2000 in respect of
voters without a VOTER ID CARD
contained in the Electoral
Commission's Guide to Election
Officials 2000.
3. An order restraining the
Defendant by itself, its
servants and agents from
conducting the forthcoming
Presidential and Parliamentary
elections or any other election
until the determination of the
suit herein.
4. Any other directions as to
give effect to or to enable
effect to be given to the
declaration herein sought.
EXISTING LAWS ON REGISTRATION OF
VOTERS AND CONDUCT OF PUBLIC
ELECTIONS:
(i) PUBLIC ELECTIONS
(REGISTRATION OF VOTERS)
REGULATION, 1995 (C.I. 12)
Before the publication of the
directive in the Gazette of 27th
November, 2000, the Electoral
Commission in compliance with
article 45(a) and (c) of the
Constitution which require it
to: (i) compile the register of
voters, and (ii) to conduct and
supervise all public elections
and referenda made the following
regulations:
Public Elections (Registration
of Voters) Regulations, 1995,
(C.I. 12) and Public Elections
Regulations, 1996 (C.I. l5).
These two Constitutional
Instruments were made under the
powers conferred on the
Electoral Commission by article
51 of the Constitution which
provides:
"The Electoral Commission shall,
by Constitutional Instrument,
make regulations for the
effective performance of its
functions under this
Constitution or any other law,
and in particular, for the
registration of voters, and the
conduct of public elections and
referenda, including provision
for voting by proxy".
As pointed out earlier, the
Electoral Commission in
compliance with article 45(a) of
the Constitution regarding the
compilation of the Voters'
Register, by a Constitutional
Instrument made the Public
Elections (Registration of
Voters) Regulation, 1995 (C.I.
12) to regulate the registration
of voters for purposes of public
elections and referenda. Part II
of C.I. 12 makes an elaborate
and detailed provisions for
challenges and complaints
against an application of any
person for registration as a
voter and the procedure for the
resolution of such complaints
and challenges. In this wise,
regulation 13 of C.I. 12
provides for the establishment
of a District Registration
Review Committee with the power
to resolve any challenges to an
application to register as a
voter. The decision of this
Committee is appealable to the
Chief Registration Review
Officer, who shall be the High
Court Judge of the Region. The
decision of this Officer is
final.
Six months after the
registration period, the
Electoral Commission shall cause
to be exhibited a provisional
register of each polling
division stating the name, age
and sex of each person whose
application for registration at
that division was accepted.
There is an important
stipulation in regulation 17(2)
that a copy of the provisional
register of voter be given to
each registered political party;
obviously for the purpose of
verification and cleaning of the
register of ghost names since
the agents of the registered
political parties are assumed to
be on the ground in their
various communities.
Before the exhibition of the
provisional register, however,
the Electoral Commission must
appoint for each registration
centre an Exhibition Officer who
is to "receive any claims and
objections ... concerning the
inclusion of a person's name in
the register". At this stage
also there is an elaborate and
detailed procedure designed to
deal with any challenges to the
inclusion of any name in the
register of voters. When a
challenge is made the Exhibition
Officer has to comply with
certain procedures related to
giving adequate publicity to the
challenge after which the matter
is put before the District
Registration Revising Officer by
the District Officer of the
Electoral Commission. The
Chairman of the District
Community Tribunal shall be the
District Registration Revising
Officer; and where none is
available a lawyer of not less
than three years standing
appointed by the High Court
Judge for the Region. The
decision of the District
Registration Revising Officer is
also appealable to the High
Court, the decision of which is
final. SEE REGULATION 21 OF C.I.
12.
It is only after the
determination of any challenge
or objection by the High Court,
after the exhibition of the
Provisional Register, that "the
Commission shall certify the
register" which shall take
effect in place of any existing
register of voters. SEE
REGULATION 22 OF C.I. 12.
Such a certification by the
Electoral Commission is
conclusive evidence that all the
requirements of the law in
respect of registration as a
voter have been complied with by
all whose names appear in the
register and that the said
register of voters is valid.
In this pursuit, the detail
procedure for receiving and
resolving challenges to, and
complaints against any person's
application for registration as
provided in the PUBLIC ELECTIONS
(REGISTRATION OF VOTERS)
REGULATIONS, 1995, (C.I. 12), is
intended to ensure, as nearly as
humanly possible, an accurate
Register of Voters. The law
neither anticipates nor allows
any objection to the electoral
register after it has been
certified by the Electoral
Commission. I am of the view
that the policy which informed
these extensive procedures
contained in C.I. 12 for
resolving any challenges and
complaints, prior to the
Certification of the Voters'
Register, is to make it
necessary for people to raise
all questions as to the right to
vote before the District
Registration Review Committee
and the District Registration
Revising Officer established for
the purpose, thereby preventing
their being raised at any other
time or in any other way. This
is what both the Electoral
Commission and the registered
Political Parties fail to
appreciate about a certified
electoral register and the
implications of such a
certification. They need to be
reminded that there is a very
strong presumption in favour of
the franchise when a person
satisfies the Constitutional
requirements and his name is in
the Register of Voters.
It seems to me therefore that
the reason behind these
elaborate procedures for the
registration of a person as a
voter is to ensure the accuracy
and conclusiveness of the
register, not only on the
Electoral Commission itself and
the returning officer at the
polling station, but all
political parties and also on
every tribunal which has to
determine election petitions,
except only in case of a person
who is prohibited by law from
voting. Thus when a name of a
voter appears in the register,
he has a final and conclusive
right to vote unless legally
incapacitated.
In the case of STOWE VRS.
JOLLIFFE, 30 L.T. 795; 43 LTCP
265; 38 JP 617; 22 WR 911, for
example, it was held:
"The register of voters is
conclusive after as well as at
an election, except as to those
persons who from some inherent
or for the time irremovable
quality in themselves had not
the status of electors when they
voted".
And in the case of RYDER VRS.
HAMILTON (1869) LR 4 CP 559; 38
LJ PC 260; 20 L.T. 444; 33 JP.
519; 17 WR. 795, an election
petition was brought asking for
the respondent's seat for the
petitioner. The ground was that
the former's majority over the
latter at the elections who
were, although registered, not
entitled to vote at the burough
by reason of their not being
rated to, not having paid the
rate. No objection was made
against these people, before the
revising barrister, for their
names being retained on the
register. It was held that no
objection could be taken against
the vote of these people as none
was taken before the revising
barrister. The register was
therefore conclusive evidence of
their right to vote. It could
therefore be said that there are
only two possible questions
which is allowed to be put at
the time of polling as to the
right of any person to vote -
first, as to the identity of the
voter to prevent impersonation;
secondly, as to having already
voted to prevent multiple
voting. SEE REGULATION 31 OF
C.I. 15. A possible third
question may be as to the voter
still retaining the
qualification for which his name
appears in the register - namely
whether he is still a Ghanaian
and is of sound mind.
(ii) PUBLIC ELECTIONS
REGULATIONS, 1996 (C.I. 15)
The other existing law, most
relevant to this case, before
the publication of the Electoral
Commission's directives in the
Gazette of 27th November, 2000,
is the Public Elections
Regulations, 1996 (C.I. 15).
This Constitutional Instrument,
intended to fulfil the Electoral
Commission's functions of
conducting and supervising all
public elections and referenda,
was also made pursuant to
article 51 of the Constitution.
The only provisions of C.I. 15
relevant to the determination of
this case are regulations 30 and
31 of the said C.I. 15.
On the identification of a
voter, regulation 30 of C.I. 15
provides:
"A presiding officer may, before
delivering a ballot paper to a
person applying to vote at the
election, require the person -
(a) to produce his or her VOTER
IDENTIFICATION CARD or to
furnish such other evidence as
may be determined by the
Commission to establish that he
or she is the registered voter
whose name and voter
identification number and
particulars appear in the
register".
There are three points worth
noting about regulation 30 of
C.I. 15. The first is that it
mentions only "voter
identification card" without
specifying the particular of ID
Card. This enabled both photo
identification cards and
thumbprint identity cards to be
used in the 1996 Presidential
and Parliamentary elections.
The second point is that the
presiding officer has a
discretion to require a voter to
produce his ID card before
giving him the ballot papers. It
is not obligatory that the
presiding officer does so before
giving a voter a ballot paper.
The language the "presiding
officer may ... require" is
indicative of this. The third
point is that the Electoral
Commission itself has a
discretion to provide for any
other mode of identification of
a voter whose name appears on
the register but has no
identification card. These
discretionary powers, to me, are
clear indications of the law's
anxiety that the Electoral
Commission should facilitate the
exercise of a citizen's right to
vote, rather than to frustrate
it by a rigid limitation of the
identification of voter to one
mode only; for no right is more
precious in a free country than
that of having a say in the
election of those who make the
laws under which we are
governed. Other rights of the
citizen, even the most basic,
are illusory if the right to
vote is subverted. I do not
think our Constitution leaves
any room for a classification of
a voter, through fashioning of a
procedure at the polling
station, that unnecessarily
abridges or frustrates a
citizen's right to easily vote
unless incapacitated by law.
Such a move may very well breach
the principle of equality and
freedom from discrimination
enshrined in our Constitution. A
citizen, a qualified voter whose
name is on the list of voters
and entitled to vote, is no more
nor no less so because he holds
a photo ID card or a thumbprint
ID card. This is a clear,
unambiguous and strong command
of our Constitution on equality
before the law. Because, as we
have seen, the register is
conclusive on the Electoral
Commission itself, the Presiding
Officer at the polling station
and tribunals charged with
resolution of election disputes.
The plaintiffs case, as I
understand it, is that by its
directives issued in Gazette
Notice on 27th November, 2000,
the Electoral Commission is
indirectly amending regulation
30 of C.I. 15 by limiting a
voter identification to photo ID
cards only; and this, the
plaintiff submitted, would be
inconsistent with article 51 of
the Constitution which requires
the Electoral Commission to do
so only by constitutional
instrument, which instrument
must comply with article 11(7)
of the Constitution - namely, be
laid before Parliament for
twenty-one sitting days and
published in the Gazette. To
simply publish administrative
directives in a Gazette, as did
the Electoral Commission in this
case, and expect such directives
to supercede a regulation made
by a Constitutional Instrument
is clearly inconsistent with
article 297(d) of the
Constitution which reads:
"Where a power is conferred to
make any constitutional or
statutory instrument, regulation
or rule or pass any resolution
or give any direction, the power
shall be construed as including
the power exercisable in the
same manner, to annul or to
revoke the constitutional or
statutory instrument,
regulation, rules or resolution
or directives as the case may
be".
There can hardly be any answer
to the plaintiffs case. The
purpose of a gazette
notification is only to bring
the matters contained therein to
public notice or domain.
And paragraph 154 of the
Evidence Decree, 1975 (NRCD 323)
states:
"All proclamations, Acts of
state, whether legislative or
executive, nominations,
appointments, and other official
communications appearing in the
Ghana Gazette are prima facie
evidence of any fact of a public
nature which they are intended
to notify".
So that the Constitution itself
had had to be published in
Gazette on 15th May, 1992 to
bring its provisions to public
notice after it was earlier
approved in a referendum.
In so far as the Electoral
Commission was by the Gazette
Notice of 27th November, 2000
giving directives as to the
conduct of the Presidential and
Parliamentary elections 2000,
and future elections, it can
only do so by a Constitutional
Instrument duly laid before
Parliament for the required
period followed by its
notification in the gazette. Any
other method which seeks to
achieve this will be clearly
inconsistent with article 51 and
therefore null and void. And any
regulation made by the Electoral
Commission to regulate the
conduct of a public elections
should be intended to facilitate
the exercise of the citizens
franchise rather than to impede
or frustrate the exercise of
such a right guaranteed under
article 42 of the Constitution.
IMPORTANCE OF THE RIGHT TO VOTE
This should bring me to the
issue of what value must be
placed by this Court on a
citizen's right to vote. It is
necessary to remind ourselves of
the preamble to the Constitution
since it embodies the
aspirations of the people. This
is what the preamble to our
Constitution says:
"IN THE NAME OF THE ALMIGHTY GOD
We the People of Ghana,
IN EXERCISE of our natural and
inalienable right to establish a
framework of government which
shall secure for ourselves and
posterity the blessings of
liberty, equality of opportunity
and prosperity;
IN A SPIRIT of friendship and
peace with all peoples of the
world;
AND IN SOLEMN declaration and
affirmation of our commitment
to;
Freedom, Justice, Probity and
Accountability;
The Principle that all powers of
Government spring from the
Sovereign Will of the People;
The Principle of Universal Adult
Suffrage;
The Rule of Law;
The protection and preservation
of Fundamental Human Rights and
Freedoms, Unity and Stability
for our Nation;
DO HEREBY ADOPT, ENACT AND GIVE
TO OURSELVES THIS CONSTITUTION".
The importance that all
political power is inherent in
the people, as expressed in the
preamble, is acknowledged by the
framers of the Constitution who
in the very first article of the
Constitution declare:
"The sovereignty of Ghana
resides in the people of Ghana
in whose name and for whose
welfare the powers of government
are to be exercised in the
manner and within the limits
laid down in this Constitution".
In order to give meaning to the
concept of universal adult
suffrage as expressed in the
preamble to the Constitution,
the framers in article 42
provide as follows:
"Every citizen of Ghana of
eighteen years of age and above
and of sound mind has the right
to vote and is entitled to be
registered as a voter for the
purposes of public elections and
referenda".
Thus, consistent with our belief
in and adherence to the
principle of universal adult
suffrage, the right to register
and vote is guaranteed every
citizen of Ghana who is eighteen
years or above and not of
unsound mind.
In the case of TEHN-ADDY VRS.
ELECTORAL COMMISSIONER & ANOR.
[1996-97] SCGLR 589, the
plaintiff was denied the chance
to register as a voter, and he
brought an action claiming that
the Electoral Commission
violated the Constitution. This
Court unanimously held that
every sane Ghanaian citizen of
eighteen years and above had the
right under article 42 of the
Constitution to be registered as
a voter. And that the
constitutional right of voting
was indispensable in the
enhancement of the democratic
process and it could not be
denied in the absence of a
constitutional provision to that
effect. Continuing the Court
said:
"A heavy responsibility is ....
entrusted to the Electoral
Commission under article 45 of
the Constitution, in ensuring
the constitutional right to
vote. For in the exercise of
this right, the citizen is able
not only to influence the
outcome of the elections and
therefore the choice of
government, but also he is in a
position to help influence the
course of social, economic and
political affairs thereafter. He
indeed becomes involved in the
decision-making process at all
levels of governance".
And in the American case of
REYNOLDS VRS. SIMS 377 U.S. 533,
Chief Justice Warren said of the
right to vote:
"Undoubtedly, the right of
suffrage is a fundamental matter
in a free and democratic
society. Especially since the
right to exercise the franchise
in a free and unimpaired manner
is preservative of other basic
civil and political rights, any
alleged infringement of the
right of a citizen to vote must
be carefully and meticulously
scrutinized......... As long as
ours is a representative form of
government, [the] right to elect
legislators in a free and
unimpaired fashion is a bedrock
of our political systems".
The recent decision of the
Florida Supreme Court is also a
pointer to the value which must
be placed by the Courts on the
individuals right to vote. This
is what the Court said:
"Ours is a government of, by and
for the people. Our federal and
state constitutions guarantee
the right of the people to take
active part in the process of
this government, which for most
of our citizens means
participation via the election
process. The right to vote is
the right to participate; it is
also the right to speak out more
importantly the right to be
heard. We must thread carefully
on that right or we risk the
unnecessary and unjustified
muting of the public voice. By
refusing to recognize an
otherwise valid exercise of the
right of a citizen to vote for
the sake of sound, unyielding
adherence to statutory
scripture, we would in effect
nullify that right".
SEE THE CASE OF PALM BEACH
COUNTY CANVASSING BOARD VRS.
KATHERINE HARRIS AND VOLUSIA
COUNTY CANVASSING BOARD VRS.
KATHERINE HARRIS, FLORIDA
DEMOCRATIC PARTY VRS. KATHERINE
HARRIS.
The main issue before the Court
in the FLORIDA CASE was whether
a County Board may conduct a
countrywide manual recount,
where it determines there has
been an error in vote tabulation
that would affect the outcome of
the election.
A citizen's constitutional right
to vote is so important that it
can hardly be infringed and
justified simply because a
majority of the people, let
alone some institution or organs
choose or agreed among
themselves that it be. Neither
the Electoral Commission itself
nor in collaboration with Inter
Party Advisory Committee (IPAC)
or any other authority can issue
a directive which
disenfranchises a citizen of
this country. The Electoral
Commission has no power to make
any regulations which
unnecessarily abridges the right
to vote. Whatever it does in
this direction should rather
facilitate the exercise of the
right to vote. The directive the
Electoral Commission issued in
Gazette Notice dated 27th
November, 2000 will clearly
disenfranchise some qualified
voters of this country; those
with thumbprint ID Cards. Even
if it is one person who will be
unable to exercise his
franchise, I will no less think
the directive is an infringement
of the constitutional right to
vote. For the right of a nation
is that of the individual
written in capital letters. If
we allow the right of an
individual to be eroded, such
erosion will engulf all of us
sooner than later.
The gazette notification of 27th
November, 2000 suffers from
several constitutional
disabilities; for example, it
was promulgated contrary to
article 51; not only that it
derogates from the citizen's
constitutional right to vote as
guaranteed under article 42.
It could therefore hardly be
gainsaid that a constitutional
claim has been asserted by the
plaintiffs allegation that a
certain otherwise qualified
voters would be prohibited from
voting for their parties or
candidates if only the Photo ID
card was used. These were some
of the reasons why I voted
allowing the plaintiffs claim.
Before I am done, however, I
would like to make a comment.
The independence of the
Electoral Commission is
guaranteed in a rather robust
language under article 46 of the
constitution in these words:
"Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission, shall not be subject
to the direction or control of
any person or authority."
The "direction or control" the
Electoral Commission is
insulated from may not
necessarily come from the
government or its officials, but
political parties as well. The
Commission should therefore try
to be wary of its flirtations
with the so-called Inter Party
Advisory Committee (IPAC) since
it would lead to subversion of
the independence of the
Commission as this case amply
demonstrates in their agreement
to use only the photo ID card
leading to a possible
disenfranchisement of those
registered voters who do not
have photo ID cards but
thumbprint ID card or none at
all.
ATUGUBA, J.S.C.:
As the facts of this case have
been stated by my brethren whose
judgments have preceded mine I
shall not repeat them, save
where necessary. The plaintiff
misunderstood the defendant's
directives, to some extent, but
only the issues he rightly
raised need be addressed.
The contention that the
Directives issued by the
defendant and published in the
Gazette Notice dated the 27th
day of November, 2000 are null
and void as violating articles
42 and 51 of the 1992
Constitution, since they are not
covered by Constitutional
Instrument, is right. The said
Directives are as follows:-
"PRESIDENTIAL AND PARLIAMENTARY
ELECTIONS 2000
The Public is hereby informed
that for purposes of voting in
the forthcoming Presidential and
Parliamentary elections 2000 and
future public elections, only
Photo Identity cards shall be
used. Thumbprint Identity Cards
shall no longer be valid for
voting.
Any voter who presents
himself/herself without a Photo
identity Card, shall go through
the following steps for
identification:-
(1) The Presiding Officer shall
check for the name in the Name
Reference List;
(i) If the name is not on the
list, the person will be
politely told to go away from
the Polling Station;
(ii) If the name is on the list
and all the candidate agents
affirm that they know the
person, he/she shall be allowed
to go through the voting steps
straightaway;
(iii) If there is any doubt as
to the identity of the voter,
the Presiding Officer shall pick
the original registration form
of the person, using the voter
identity number on the Name
Reference List;
(iv) The Voter shall be required
to confirm certain details
provided on the registration
form, to enable him/her to be
allowed to vote:
(v) The verification of identity
of such a voter shall take place
in the presence of the party
agents"
Article 51 provides: "The
Electoral Commission shall, by
constitutional instrument, make
regulations for the effective
performance of its functions
under this Constitution or any
other Law, and in particular,
for the registration of voters,
the conduct of public elections
and referenda, including
provisions for voting by proxy".
(e.s.) It was contended on
behalf of the defendant that the
said Directives did not need to
be in the form of a
constitutional Instrument
because they were not of a
legislative character. However,
regulations 30 and 31 of the
Public Elections Regulations,
1996 C.I. 15 provide, as far as
relevant as follows:-
"30(1) A presiding officer may,
before delivering a ballot paper
to a person applying to vote at
the election, require the
person-
(a) to produce his or her voter
identification card or to
furnish such other evidence as
may be determined by the
Commission to establish that he
or she is the registered voter
whose name and voter
identification number and
particulars appear in the
register,
(b) to make a declaration in the
prescribed form that he has not
already voted anywhere at the
election.
31(1). Every voter desiring to
record his vote shall present
himself at his allotted station
and the presiding officer or a
polling assistant, after
satisfying himself that the
voter is registered and has not
already voted, and that any
other means of identification
determined by the Commission in
the possession of the voter is
valid, shall deliver the ballot
paper to the voter".
It would be seen that the
Directives impugned are
substantially the same as those
contained in regulations 30 and
31 of C.I. 15, supra. If such
similar matters properly pass
for regulations which have been
covered by Constitutional
Instrument I do not see how the
defendant can approbate and
reprobate by contending that
those matters covered by his
said Directives of 27/11/2000 do
not require to be covered by
Constitutional Instrument. It is
a settled principle of law that
where statutory power is
conferred it must be exercised
in accordance with the terms of
the statute. This has been
forcefully stated several times
by Taylor J as he then was. IN
REPUBLIC V. INSPECTOR-GENERAL OF
POLICE, EX PARTE ANIAGYEI II
(1976) 1 GLR 394 at 399 Taylor J
said "I think the law is now so
well settled and there is no
need for an authority to support
it, that when by law power is
given to a person or body, the
person or body must exercise the
power in accordance with the
terms of the enabling law". The
Electoral Commission, the
defendant, did not comply with
the terms of article 51 when it
purported to issue its
Directives as per the gazette
noticed dated the 27th day of
November, 2000 and the same are
a nullity.
This alone suffices to dispose
of the matter but as extensive
arguments were addressed to us
by the parties it is necessary
to address the contention that
the directive to the effect that
a prospective voter should be
allowed to vote if all the
candidates' agents are unanimous
as to his identity is wrong as
being an abdication of
delegation of the defendant's
statutory function to the said
agents. It is trite law that
Delegatus non potest delegare.
Under article 45 of the
Constitution "The Electoral
Commission shall have the
following function-
X
X X
(c) to conduct and supervise all
public elections and referenda"
This is closely buttressed by
article 46 which provides:
"Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission, shall not be subject
to the direction or control of
any person or authority". This
provision in my view, in effect,
constitutionally enforces the
principle that Delegatus non
potest delegare. The
ascertainment of the identity of
a prospective voter is part of
the conduct of public elections
and as the Constitution places
that duty on the Electoral
Commission it can only do so by
itself and its proper agents,
for qui facit per alium facit
per se. But clearly the
candidates' agents are not the
defendant's agents. Inter alia,
under regulations 30 and 31 of
C.I. 15 it is the presiding
officer who is the defendant's
agent for the purposes of voter
identification procedures. To
surrender the judgment of the
presiding officer as to the
identity of a voter to the
candidates' polling agents is in
effect to delegate that function
to those agents contrary to
article 45(c) and 46 of the
Constitution. In REPUBLIC V.
INSPECTOR-GENERAL OF POLICE, Ex
parte ANIAGYEI II supra, at 401
Taylor J deprecated the
delegation of a Regional
Commissioner's powers of arrest
thus:
"If I am to give effect to the
words used in N.R.C.D. 236, it
becomes clear that if the
Regional Commissioner is
satisfied that his action is in
the public interest, the
Regional Commissioner may
himself arrest or order a member
of the Armed Forces to arrest
any person who is involved in
any of the matters in paragraphs
(a), (b), (c) or (d) of section
3(1) of N.R.C.D. 236.
Furthermore such arrested person
ought as a mandatory provision
to be detained in military
custody. If this is the language
of the section, the detention of
the applicant must be tested
against it. The Regional
Commissioner ordered the police
not a member of the Armed Forces
to effect the arrest. This is
clearly contrary to the
provisions of section 3(1) of
N.R.C.D. 236 and it follows that
the arrest was not done in
accordance with the Decree. To
ask the police to arrest the
applicant in exercise of the
powers given to him under
section 3(1) of N.R.C.D. 236 is
in effect to delegate the
exercise of the power to
another. A close reading of
section 3(1) of N.R.C.D. 236
shows clearly that the
legislature did not intend to
authorise the Regional
Commissioner to delegate his
power of arrest to any other
person or authority. There is in
effect no power to pass on to
others: see R.V. Burnley
Justices (1916) 85 L.J.K.B.
1565, D.C. and Ellis v. Dubowski
[1921] 3 K.B. 621, D.C. The
purported delegation is
therefore incompetent and in my
view its exercise by the police
is unlawful, and the arrest was
consequently illegal".
I must however, say that the
contention of the plaintiff as
to article 42 of the
Constitution was, to some
extent, too broadly couched.
Article 42 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
purposes of public elections and
referenda". After quoting this
same provision the plaintiff
contended as follows: "That in
the light of the above provision
of Article 42 of the
Constitution the Defendant's
duty is to take steps only to
make it easy for every eligible
citizen of Ghana within the
terms of Article 42 to exercise
his or her right to vote ". I
should have thought that the
introduction of the photo
identification card sought to
fulfil this objective and, would
therefore not, on the basis of
this contention fall foul of the
Constitution. But the plaintiff
would seem to think otherwise,
for he contends in the next
paragraph as follows:- "The
Defendant is therefore not
expected under any circumstances
to place any impediment in the
way of prospective voters so as
to disenfranchise them". For my
part I am of the view that the
constitutional provisions on the
right to vote do not seek to
overlook difficulties that their
implementation may entail and
the plaintiffs contention supra
confesses to that. The
Constitution therefore in
article 51, supra, gave the
Electoral Commission power by
Constitutional Instrument to
deal with problems of
effectively operating its
provisions, including article
42, concerning the electoral
process. If therefore the
Electoral Commission determines
a mode of identification of
voters but later discovers that
a more effective mode than the
earlier one, can be substituted
for the earlier one, it should
be able to do so provided it
goes by the Constitutional
procedure for doing so. I must
emphasize that the right to vote
or the registration of a voter
is not the same as the means of
identifying the voter. It is my
view that the provision or
substitution of an effective
mode of voter identification,
seeks to give effect to the
constitutional rights to vote
and be registered for that
purpose and cannot be
inconsistent with them. Thus the
decision by the Electoral
Commission to replace the
thumbprint voter identification
card with the photo
identification card will be in
accord with the Constitution if
done by the proper mode. This to
my mind is the effect of article
297(b) and (d) of the
Constitution which provide as
follows: "297 In this
Constitution and in any other
law-
"X
X
X
(b) where a power is conferred
or a duty is imposed, the power
may be exercised and the duty
shall be performed, from time to
time, as occasion requires;
X
X
X
(d) where a power is conferred
to make any constitutional or
statutory instrument, regulation
or rule or pass any resolution
or give any direction, the power
shall be construed as including
the power, exercisable in the
same manner, to amend or to
revoke the constitutional or
statutory instrument,
regulation, rules or resolution
or direction as the case may
be".
The thumbprint card, was issued
pursuant to the Public Elections
(Regulation of Voters)
Regulations, 1995, C.I. 12, not
in so many express words, but as
the resultant position of
regulations 11, 21 (4)(b) and 28
of C.I. 12, buttressed by the
aforestated regulations 30 and
31 of the Public Elections
Regulations, 1996 C.I. 15.
They are as follows:-
"X
X X
11. Where upon an application
there is no objection to the
application the registration
officer shall enter the name of
the applicant in the register
which shall be provisional only
and shall issue to the applicant
a voter identification card in
such form as the Commission
shall determine.
X
X X
21(4) The District Registration
Revising Officer shall determine
the procedure for settling
claims and objections except
that-
(b) the lawful possession by a
claimant of an authentic voter
I.D. card issued by the
Commission shall be sufficient
proof of registration
X
X X
28. In this Instrument unless
the context otherwise requires-
"Commission" means the Electoral
Commission. "I.D. card" means a
voter identification card issued
by the Commission indicating
that the bearer whose
particulars are specified
therein is a registered voter."
Notwithstanding any notions
associated with the repeal of a
statute by implication or
otherwise, vested rights,
prospective and retrospectivity
of statutes, I am convinced
that in the context of the
provisions of article 297(b)(d),
supra, the Electoral Commission
can effectively transform into
or replace the thumbprint voter
identification card with the
better system of photo
identification card for purposes
of voter identification provided
reasonably adequate opportunity
for the purpose has been given
to the Electorate. This would
not violate the Constitution.
In IN RE THE ELECTION OF THE
FIRST PRESIDENT; APPIAH V.
ATTORNEY-GENERAL (1969)2 G&G 530
C.A. it was held that though no
express provision of the 1969
Constitution covered it, the
Electoral Commissioner could
properly impose a deposit fee of
¢500.00 by every presidential
candidate, in order to prevent
frivolous persons putting
themselves forward as
presidential candidates. This
has been consistently preserved,
see regulations 6(1)(b), 8(3)
and 43 of C 1 15.
I must also stress that the
power to determine how
effectively to discharge its
electoral functions vests in the
Electoral Commission and it is
trite law that a court would not
interfere with the decision of
an administrative officer under
statutory provisions but that
the court is restricted to the
question whether the officer
concerned followed the correct
legal process in arriving at his
decision or otherwise exercised
his said power in accordance
with law. See CHIEF CONSTABLE OF
THE NORTH WALES POLICE V. EVANS
(1982)3 All ER 141 H.L.
This common law principle is
conveyed by article 46 in the
case of the Electoral Commission
and article 295(8) generally.
They are as follows:
"46. Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission, shall not be subject
to the direction or control of
any person or authority".
Article 295(8) provides:
"295(8) No provision of this
Constitution or of any other law
to the effect that a person or
authority shall not be subject
to the direction or control of
any other person or authority in
the performance of any functions
under this Constitution or that
law, shall preclude a court from
exercising jurisdiction in
relation to any question whether
that person or authority has
performed those functions in
accordance with this
Constitution or the law".
Consequently when in BRIGADIER
TEHN-ADDY V. ELECTORAL
COMMISSION (1996-97)SCGLR 589
the Electoral Commission, in
violation of the Constitution,
refused to reopen the register
and register the applicant as a
voter because of the pendency of
certain court proceedings, this
court overruled him. As the
defendant contends that it
sought, by its said gazette
Directives to withdraw the
thumbprint card instead of doing
so by a Constitutional
Instrument, the said Directives
are contrary to articles 51 and
295(d) of the Constitution and
are null and void.
I would also point out that
article 51 of the Constitution
requires that the defendant
should proceed by constitutional
instrument not only in respect
of its functions under the
Constitution itself but also in
respect of its functions under
"any other law". The Public
Elections Regulations, 1996 C.I.
15 is a law. Therefore since
regulations 30 and 31 thereof,
undoubtedly for the effective
performance of its functions,
empower the Electoral Commission
to determine the modes of voter
identification they thereby
confer functions on the
defendant and if it determines
such modes of identification,
then it must proceed by
constitutional instrument and
not otherwise.
For these reasons I concurred in
the unanimous judgment of this
court dated the 4th day of
December, 2000.
LAMPTEY, J.S.C.:
I hereby give reasons in support
of this court's judgment of 4th
December 2000.
On the 27 November 2000, Dr.
Kwadwo Afari-Djan, Chairman of
the Electoral Commission of
Ghana published a Gazette Notice
with the title "Presidential and
Parliamentary Election 2000".
The Notice read in part as
follows:
"The public is hereby informed
that for purposes of voting in
the forth coming Presidential
and Parliamentary Elections 2000
and future public elections only
Photo Voter Identity Cards shall
be used. Thumbprint Identity
Cards shall no longer be valid
for voting."
I must hasten to add that the
Gazette Notice provided further
as follows:
"Any voter who presents
himself/herself without a Photo
Identity Card shall go through
the following steps for
identification." Under this
proviso, the Gazette Notice
stated and listed six different
and separate steps that must be
followed in the process. It is
plain and clear to me that the
Gazette Notice sought to
classify and divide registered
voters into two distinct and
separate categories of voters
for the 2000 public elections as
well as future public elections.
The two categories and classes
of voters are:
(1) the voter in possession of a
Photo Identity Card, and (2) a
person duly and regularly
registered as voter and
therefore qualified to vote, but
who did not possess a Photo
Identity Card. I would, in due
course, consider and deal with a
voter who had in his possession
a Thumbprint Identity Card.
Two days after the publication
of the Gazette Notice, that is
to say, on the 29th November,
2000 at 12.30pm one Philip Kwaku
Apaloo residing at H/No. B 177/7
Kaneshie in the city of Accra
caused his Solicitors, Kudjawu &
Co of Accra to file a writ to
invoke the original jurisdiction
of this court pursuant to
Articles 2(1)(b), 2(1)(1), 51
and 130(1) of the 1992
Constitution and further to Rule
45 of the Supreme Court Rules,
1996 (C.I. 16). The main relief
sought by the plaintiff Apaloo
was expressed as follows:
"(Y) A declaration that the
decision and or the directives
of the Defendant that only a
Photo Identity Card will be
accepted by the Defendant to
enable voters to vote at the
forth coming Presidential and
Parliamentary elections
........... or in the
alternative that Prospective
Voters without a Photo ID will
be permitted affirmation of the
said voter's Identity by the
Agents of all the candidates as
contained in the Gazette Notice
dated 27th November, 2000 and
the Electoral Commission's
....... Guide To Electoral
Officials 2000 is an act of the
Defendant which is inconsistent
with or is in contravention of
Articles 42 and 51 of the 1992
Constitution and are therefore
null and void".
In the accompanying statement of
case, the gravamen of the
plaintiffs complaint was stated
at paragraph 5 as follows: -
"(5) Notwithstanding the fact
that there are numerous eligible
voters in the country holding
thumbprint ID cards who have not
as yet been issued with Photo ID
cards, the Defendant has decided
and published in a Gazette
Notice of November, 2000,
directives that in the
forth-coming Presidential and
Parliamentary elections
scheduled for 7th December 2000
only Photo ID holders will be
accepted by the Defendant to
vote...."
The sum total of the complaints
of the plaintiff was that the
Defendant breached Articles 42,
51 and 296 of the 1992
Constitution. The plaintiff
complained further that
Defendant breached S. 31(1) of
C.I. 15. The Public Elections
Regulation, 1996. It is helpful
to reproduce that sub-section:-
'S. 31 (1)
"Every voter desiring to record
his vote shall present himself
at his allotted station and the
presiding officer or a polling
assistant after satisfying
himself that the voter is
registered and has not already
voted and that any other means
of identification determined by
the Commission in the possession
of the voter is valid shall
deliver the ballot paper to the
voter."
In my opinion it may be useful
at this stage, that is, before
considering the statement of the
case of the Defendant, to
reproduce S. 30(1)(a) of C.I. 15
as follows:-
"S.30(1) A presiding officer
may, before delivering a ballot
paper to a person applying to
vote at an election, require the
person-
(a) to produce his or her voter
identification card or to
furnish such evidence as may be
determined by the Commission to
establish that he or she is the
registered voter whose name
appear in the register...."
The other equally important
issue I wish to draw attention
to preliminary to considering
the case of the defendant is the
provision at S, 47 of C.I. 15
which is in language following:
"47. These Regulations shall
apply to Presidential and
parliamentary elections and with
such modifications as may be
necessary to such other public
elections as the Commission may
by constitutional instrument
prescribe".
The defendant was enjoined to
answer the complaint formulated
and stated at paragraph 5 of the
statement of the plaintiffs
case. The answer would be found
at paragraph 6 of the statement
of case as follows:
"6. In answer to paragraphs
5,6,7, & 8 .......... the
Defendant avers that in
Regulation 30 of the Public
Elections Regulations, 1996
(C.I. 15) as also in Regulation
11 of Public Elections
(Registration of Voters)
Regulations 1995 (C.I. 12) the
Defendant made Regulations
concerning the production by a
voter of an Identity Card or to
furnish such other evidence as
may be determined by the
Commission to the Presiding
Officer before being given a
Ballot Paper ..............".
The said Regulation did not
particularise the production of
either a Thumbprint or a Photo
ID card. The Defendant contends
that with the replacement of the
Thumbprint ID cards with Photo
ID cards it was unnecessary for
the Defendant to publish another
Constitutional Instrument". It
seems to me plain and clear that
if the Defendant conceded and
accepted that "the Regulation
did not particularise the
production of either a
Thumbprint ID or Photo ID" as a
condition precedent to being
issued with a ballot paper then
the complaint of the plaintiff
against that portion or part of
the defendant's Gazette Notice
to wit "Thumbprint ID cards
shall no longer be valid for
voting" was well founded and
unanswerable. In my opinion, the
above statement at paragraph 6
of the statement of case by the
Defendant is an unequivocal and
patent admission that the
outlawing of Thumbprint ID cards
by the Defendant in the Gazette
Notice breached Regulation 30 of
C.I. 15 and Regulation 11 of
C.I. 12.
The more important issue of law
raised by the plaintiff was not
addressed by the Defendant in
the statement of case. I
identify this issue as the one
that challenged the Defendant's
resort to the publication of a
Gazette Notice rather than the
procedure dictated by law,
namely the use of and resort to
a Constitutional Instrument in
performing and carrying out the
statutory function. I do not
feel called upon to write on the
efficacy of a constitutional
Instrument in this opinion. The
Defendant at paragraph 6 stated
as follows:-
"6............ It was
unnecessary for the Defendant to
publish another Constitutional
Instrument." In my opinion the
defendant failed to appreciate
the difference in law between a
Constitutional Instrument and a
Gazette Notice. I find support
for my view at Article 51 of the
1992 Constitution which in
language"-
"51. The Electoral Commission
shall by constitutional
instrument make regulations for
the effective performance of its
functions under this
Constitution or any other law,
and in particular, for the
registration of voters, the
conduct of public elections and
referendum ............."
It cannot therefore be disputed
that the right of a person to be
registered as a voter is
guaranteed by the 1992
Constitution. In my opinion,
once a person is duly and
regularly registered as a voter
that person must and shall be
accorded all and every
opportunity to exercise the
constitutionally guaranteed
right to vote. In my candid
opinion, the possession of a
means of a more easily and
readily form or method of
identification can go a long way
to accelerate the pace of the
polling process. The possession
of Photo ID or Thumbprint ID
card is not a SINE qua NON or
the only means or method of
deciding the right of a duly
registered person to vote.
Indeed Regulations 30 and 31 of
C.I. 15 state the law on this
important issue. I do not need
to reproduce these regulations
here.
There is further evidence of the
intent of the lawmakers to
guarantee and enshrine this
inalienable right to vote. This
can be seen at Article 42 of the
1992 Constitution. It provides
as follows: -
"42 Every citizen of Ghana of
eighteen years of age and 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".
In drawing up and making
regulations in the above matter
section 28(4) of C.I. 15
provides as follows:-
"28(4) The powers conferred by
this regulation shall not be
exercised so as to prevent a
voter who is otherwise entitled
to vote at a polling station
from having the opportunity of
voting at that station".
Again S.47 of C.I. 15 provides
clearly and plainly that the
Regulations contained in C.I. 15
shall be amended only by
constitutional instrument. I
have elsewhere in this opinion,
reproduced the said section. In
my opinion the Defendant
breached C.I. 15 when he caused
to be published the Gazette
Notice on 27 November 2000.
The other serious issue of law
raised was the lawful status of
polling agents. In the Gazette
Notice the Defendant spelt out
some of the functions and duties
of the polling agents at
paragraphs (iii) and (vi) as
follows:-
"Any voter who presents
himself/herself without a Photo
ID card, shall go through the
following steps for
identification ................
(iii) If the name (voters) is on
the list and all the candidates
agents affirm that they know the
person, he/she shall be allowed
to go through the voting steps
straight away.
(iv) The verification of
identity of such a voter shall
take place in the presence of
party agents".
I must state quite frankly that
step (iii) above was a
prescription for chaos,
confusion and disorder at the
polling station on polling day.
The requirement that "all the
candidates agents must affirm
that they know the prospective
voter" who was then present with
them at the polling station
cannot be justified. How can a
polling agent know all the
persons duly and regularly
registered to vote at a
particular polling station and
affirm that fact? The law makers
did not intend to and did not
clothe the polling agent with
this power, that is, the power
and right to affirm personal
knowledge of any registered
voter who did not possess a
Photo ID card. The duty assigned
to a polling agent is plainly
spelt out at S.19(1) of C.I. 15
as follows:—
"19(1) A candidate may appoint
one polling agent to attend at
each polling station in the
constituency for which he is
seeking election ...... for
purpose of detecting
impersonation and multiple
voting and certifying that the
poll was conducted in accordance
with the laws and regulations
governing the conduct of
elections."
It is therefore plain and clear
that what the polling agent was
required and expected to have
good knowledge of are the laws
and regulations governing the
conduct of election. The polling
agent is not expected nor
required to possess personal
knowledge of the identity of
every duly registered voter who
presents himself/herself at the
polling station where such a
polling agent is properly and
lawfully on duty. In my opinion
step (iii) spelt out in the
Gazette Notice cannot be
supported in law. I find however
that step (vi) is in conformity
with the statement of the law at
S.19(1) of C.I. 15.
In conclusion I find that the
issues I have raised for
determination as required by
C.I. 16 may be resolved as
follows:-
(1) The Defendant breached
Article 51 of the 1992
Constitution by the publication
of the Gazette Notice dated 27
November 2000.
(2) In the matter of the
contents of the said Gazette
Notice, the statement
"Thumbprint ID cards shall no
longer be valid for voting" must
and ought to be deleted and
expunged" therefrom.
(3) In the matter of the
contents of the said Gazette
Notice "step (iii) be deleted
and expunged" therefrom.
COUNSEL
Mr. N.K Kudjawu with Sena
Kudjawu (Miss), per Plaintiff.
Mr. Lynes Quashie ldun with Ebow
Quashie and K Aduama Osei for
Defendant
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