Election 2016: EC Conduct Will Land Ghana In Big Trouble - NPP Cautions

Charlotte Osei, Chairperson for the Electoral Commission

The New Patriotic Party is worried about the conduct of the Electoral Commission , which the party fears could lead to dangerous consequences for the nation as it prepares for this year’s presidential and parliamentary elections.

“As we head towards this year’s elections, we believe the intransigent conduct of the EC must be of serious concern to every peace-loving Ghanaian. Even now a ruling from the Supreme Court on the way forward for the voters’ register, the EC is not prepared to obey. And what is most worrying is that the EC always seems to be taking the same position with the NDC on any issue about the elections. We fear the EC’s conduct could create needless problems for the country because it has so far failed to show that it is prepared to conduct its affairs in a way that will engender confidence in the electoral process,” John Boadu, NPP Acting General Secretary, told the New Statesman in an interview.

Meanwhile, Nana Asante Bediatuo, counsel for Abu Ramadan and Evans Nimako, plaintiffs in the case regarding the presence of NHIS registrants on the voters register, says he finds it difficult to understand why the EC has decided to give a weird interpretation to a straightforward ruling by the Supreme Court.

In the view of the renowned constitutional lawyer, there are two fundamental problems with the EC position.

The first is that they are stretching "not automatically void" to absurd and illogical conclusions to suit their ends. The basic question is whether those NHIS registrants are lawfully on the register; whether their registrations were automatically void or not. The only reasonable interpretation of that statement by the court is that the registrations were voidable because of certain unique circumstances, notably the fact that they were made under a law deemed valid at the time. They would have been automatically void if they used documents that the law didn't allow at all, like a birth certificate or baby weighing card. However, the court having previously declared the use of the cards unconstitutional, they registrations cannot be said to accrue any rights at all.

The simple reason is that in order to accrue rights under article 42 you must establish that you qualify to register. No matter how anyone looks at it, those who used the NHIS cards to register have not established qualification and therefore could not have acquired any rights capable of maintenance. How does the use of a void card give anyone any rights? The accrual of rights argument is poor and does not take into proper consideration, the constitutional precondition to the acquisition of those same rights. The judgment is clear that the presence of the NHIS registrants on the register makes the register not credible or accurate.

I would go on to say that a true and proper interpretation of the 2014 judgment would mean that the presence of those names on the register is unconstitutional even if the whole register is not. This is why the court ordered their removal and the court could do so because the order was consequential upon the judgment of 2014 as well as the declarations of 2016!

The second problem with the EC’s position, he explains, is its reliance on the court's statement that the legitimate way to treat those NHIS people is to have them removed by established legal processes and the court's affirmation of the EC's independence. On those bases, the EC is saying that they are to determine how to remove those names with reference to their known processes. This is also a flawed argument. First of all, the court also affirmed its power to "correct" the EC when it goes wrong notwithstanding its independence. This point is such a key feature of judicial review jurisprudence that it needs not be debated. Now, if we look at the processes in place for the EC to delete names which the EC itself refers to as the Exhibition and challenge process, where can it be said that the situation of the NHIS registrants may properly be dealt with? The court says delete and give opportunity to those who qualify to register again. Where in the current law does it say when a name is deleted that person must be given the opportunity to register again? Nowhere! This is because a category of persons constituted by the NHIS registrants was not contemplated by the law. I am referring to Ghanaians who otherwise qualify but used the NHIS card to register. If you are a foreigner or a minor or dead person and your name is deleted you cannot have any opportunity to re-register as contemplated by the Supreme Court order (b) for obvious reasons. So clearly there is no current EC process that allows total compliance with the orders of the court. Clearly then, the court, when referring to legitimate legal processes could not have been referring to those existing processes. It's a fallacy to claim otherwise.