Plaintiffs Got Order From Supreme Court To Expunge NHIS Registrations.....EC Ordered

I know. That sometimes, when the brutal and uncomfortable truths are told against people we adore we rain insults and unprintable words on the teller. Let me first put this straight that I am only expressing my commonsense thoughts on the ruling on Abu Ramadan and Evans Nimako vs. Electoral Commission of Ghana (EC) and the Attorney-General (referred subsequently as "2016 Ramadan case") by the Supreme Court of Ghana (SCOG in subsequent reference). I am neither a lawyer nor a law student.

I am not some jurisconsult rendering a professional service or discharging my social responsibility. So, don't even bother to remind me that I am a pedestrian. I am a wayside lawyer (humour). You may have a differing verdict to my position. But channel your disagreements to the issues I raise. In this writeup, I seek to put forward my interpretation of 2016 Ramadan case in key areas and analyse interpretations given by dissenting lawyers and their followers of the case. I do that under the following major subheadings.

BACKGROUND OF THE CASE
In 2014, the Plaintiffs invoked the SCOG to interprete and declare that the use of National Health Insurance (NHI) card as proof of citizenship and qualification to register and vote in Ghana as unconstitutional. Prior to the 2012 general elections, the EC sponsored an instrument (CI 72) for the registration of voters.

Under regulation 1 (3)(d) of the instrument, a prospective voter could use NHI card as basis to be captured in Ghana's electoral roll. Upon hearing the case, the SCOG pronounced that upon a fair and true interpretation regulation 1 (3)(d) of CI 72 is inconsistent with Article 42 of the 1992 Constitution and thus unconstitutional.

Fast forward to 2016, the Plaintiffs returned to the SCOG. This time, relying upon the ruling of the earlier Ramadan case (supra) to get the names of NHI card registrants on the electoral roll in 2012 expunged by the EC as we approach another elections. This move was necessitated by the EC's incessant refusal to give in to calls to implement the ruling of the earlier Ramadan case (supra).

The EC refused to implement the ruling; claiming the Commission does not interprete the ruling to mean automatic deletion or de-registration of NHI card registrants. There have since been varying interpretations of the 2016 Ramadan case ruling in the wide cross-section of the public. Not even the unprecedented intervention of Jones Dotse (JSC) has settled the dust.

Abu Ramadan promised to return to the SCOG with a contempt suit against the EC. In my humble opinion, the SCOG did order the EC to delete or de-register all those who entered into Ghana's voters' register with NHI card as proof of qualification.

This is based on the fact that the NHI card is eligible and accessible to all mere residents in Ghana for at least 6 months (not necessarily citizens of Ghana). Conscious of guaranteeing the sacred right to vote, the SCOG ordered the EC to, upon automatic deletion of NHI card registrants, re-register the affected who can establish their qualifications consistent with the 1992 Constitution.

CONSTITUTIONALITY AND VOIDNESS
This is where lawyers had varied, heated arguments as to whether the SCOG was right to hold that an act is unconstitutional but interestingly held that the same unconstitutional act is not void. The premise is that any act that is inconsistent with a provision of a constitution is unconstitutional. And, our Constitution says any unconstitutional act "to the extent of the inconsistency [is] void". However, the SCOG through Gbadegbe (JSC) seemed to have digressed from this trite knowledge. The SCOG said through Gbadegbe (JSC):

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

If sustained, this assertion by the SCOG will make an interesting (if not unprecedented too) citation for constitutional law.

Like I indicated already, I do not have the authority or capacity to talk law. What I say is my layman view and you may reason along with me or not. That reiterated, I humbly disagree with the SCOG here. I have so much respect for the SCOG though and still. Why do I disagree with the honourable SCOG? The apex court is an establishment or baby of the 1992 Constitution of Ghana.

I remember the Court in the same case, clarifying the independence of the EC, and said that even the SCOG itself is not utterly independent. Thus the SCOG is subject to the whims and dictates of the 1992 Constitution, like the EC, and is duty-bound to act in tandem with the Constitution. I have a worry in establishing whether the SCOG acted (based on its pronouncement on the unconstitutionality and voidness of NHI card registrants) in line with the doctrines of our Constitution.

Since the act was declared unconstitutional, one would have thought that the act "to the extent of the inconsistency [is] void", as the Constitution states. The question is, did the SCOG through Gbadegbe (JSC) speak the language of the Constitution in respect of unconstitutionality and voidness of the act (supra)? The moment the 2016 Ramadan case was filed and pursued, the act of registering with NHI card became voidable - that which has some force or effect, but which, in consequence of some inherent quality, may be legally annulled or avoided.

Moreover, any act that is declared unconstitutional and void is also void ab initio - that which was never legitimate or valid. With this, I struggle to understand what the SCOG meant by "...a law that was then in force...made in good faith...subsequent declaration of the unconstitutionality...should not automatically render them void."

Maybe, the unconstitutionality of NHI card registrants should not render the entire voters' register void. The voidness is only limited to the NHI card registrants, as our Constitution purports to put it. Now since the EC disclosed it could still identify the NHI card registrants through their Form 1As, the unconstitutionality and voidness of the act could be corrected. I understand that holding the unconstitutionality and voidness of the NHI card registrants against the entire voters' register (when the unconstitutionality is curable) is needless. Finally, I humbly hold that to the extent of the inconsistency of regulation 1 (3)(d) of CI 72 with Article 42 of the 1992 Constitution it is also void apart from its unconstitutionality.

ACCURACY AND CREDIBILITY OF THE VOTERS' REGISTER

According to Dr. Raymond Atuguba on Newsfile, "the elections can be run on a register that is not credible and that is not accurate. In fact, 99% of all registers all over the world - as Jon Benjamin (UK High Commissioner) has told us - is not credible and not accurate; it is impossible to register millions and millions of voters and get an accurate register". This is rather very amusing, isn't it? I am pretty sure Jon Benjamin's reaction would have enlightened Dr. Atuguba and his supporters if he [Jon Benjamin] were probed further - particularly on the reasonableness or otherwise of the inaccuracies of the voters' registers across the world.

It is true that 99% of voters' registers across the world is inaccurate or not credible, what is truer is that those voters' registers are reasonably inaccurate or not credible but Ghana's is simply unreasonably inaccurate or not credible as upheld by the SCOG. Lest we forget, reasonable inaccuracy in the truest sense of its meaning is permissible but unreasonable inaccuracy of a voters' register is unfit for any credible elections.

The Court's declaration that "...the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible" is not immaterial but fundamental. In simple terms, the SCOG held that the current voters' register containing names of "ineligible and outlawed" NHI card registrants is flawed and unkept for any credible future elections. Even indirectly, here, the SCOG ordered the EC to delete names of NHI card registrants and re-register the qualified ones amongst them. To conclude, the current voters' register is not reasonably accurate or credible for the 2016 general elections and something must be done about it (definitely not the usual voters exhibition). Maybe, the recommendations of the Justice VCRAC Crabbe Panel could be the "misplaced" key to this debacle.

LEGAL WRITINGS AND INTERPRETATIONS
Lawyers are supposed to be taught that words (and adjectives and adverbs for that matter) are not introduced or used in legal writings for decorative effect. If they are not, I humbly submit that they should be. Judges do justice to words like they do to people, such that every word has the same and equal rights in the interpretations of legal writings (and 2016 Ramadan case is not an exception).

It appears to me that some lawyers did not ponder over and consider the use of "not reasonably" accurate for any credible elections in the ruling of the SCOG, and thus confused it with "99% of voters' registers across the world is not accurate or not credible". That therefore, we can use the current flawed voters' register for the 2016 general elections without any problems. That analogy is incredible as the crooked voters' register itself!

The SCOG did direct the EC to clean the voters' register in line with the laws of Ghana. As to what follows, the EC can still sponsor an instrument to clean the register to the satisfaction of majority of Ghanaians than maintaining their argument that exhibition exercise is the only lawful way (per current existing laws) to cleaning the register. That is exactly how the EC's own eminent Justice VCRAC Crabbe Panel recommended the cleaning of the voters' register. Lest anybody can point to me where the SCOG barred the EC from doing so, I submit (and humbly) that it will be in our common interest for the EC to sponsor an instrument to implement the recommendations of the Justice VCRAC Crabbe Panel.

CONCLUSION
Why would the EC deny citizens without voter registration or undoubted minors from registering to vote on election day? The same reason should make it automatically delete names of persons who registered with the NHI cards (after same was declared unconstitutional). The length of period a foreigner stays in Ghana does not automatically make the person a citizen of Ghana. Our laws are unambiguous on who is a citizen of Ghana and qualified to register and vote. Ending, let me remind the EC of the SCOG's warning that failure to adhere to the orders of the Court because it [EC] feels utterly independent amounts to committing a "high crime".

God bless our homeland Ghana and make our nation great and strong!

Mohammed A. Razak Wumpini
(Coordinator, CENAB Northern Region)
Email: [email protected]
Phone: 0249240121/0200792758