Abu Ramadan III :clarification ruling & orders & the EC
This is the second part of the article, the first part of which was published on Monday, July 25,2016.
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The Chief Justice, in concluding matters, read out the orders of the Court consequent upon the ruling in the following words:
“1. The 1st Defendant/Respondent is hereby ordered to take steps forthwith to implement this court’s decision of May 5, 2016, in the terms clarified.
2. For the avoidance of doubt, the 1st Defendant / Respondent is hereby ordered forthwith to take all the necessary steps to delete from the current register of voters the list of persons whose names were submitted to this court on June 29, 2016 as persons who registered with the NHIS Card.
3. Further to the above order (2) the 1st Defendant / Respondent is further ordered to delete from the current register of voters the names of persons not included in the list submitted to this court on June 29, 2016 but who are also found to have registered with NHIS Cards”.
Nothing could be clearer. First, the EC is commanded to take steps “forthwith” (immediately) to remove from the register of voters those who registered using NHIS cards, because the NHIS cards did not distinguish between Ghanaians and non-Ghanaians and, thus, those who used it to register did not meet a constitutionally-mandated eligibility criterion, namely, that a registered voter must be a Ghanaian citizen. Secondly, because some of those who registered using NHIS cards may indeed be Ghanaians and in order not to violate their fundamental right to be registered and to vote, the EC was to give to those affected by the order adequate notice of the processes of deletion and re-registration so that they may re-register (but subject to their satisfying the eligibility criteria as set out in article 42 of the Constitution, namely that their Ghanaian citizens, of 18 years and above, and of sound mind). Further, and for the avoidance of doubt, the court directed that the removal of the NHIS registrants should precede the re-registration. Finally, the Court clarified that its orders consequent to its declaratory powers under Article 2(1) of the Constitution takes precedence over or supersedes any statutory provision, including C. I 91; Nothing could be clearer than these orders and directions of clarification.
The “due process” argument
One would have expected that with this lucid clarification by the court of its order of May 5, 2016, the hitherto raging controversies over the meaning and import of these orders would come to a definitive and conclusive end. Not so, according to certain commentators. Now that it is no longer possible to advance the “exhibition and challenge” argument or to argue that the EC can only delete by using “applicable laws”, some commentators are, surprisingly, still arguing that, somehow, the orders of the court require due process, as a basis for deletion of the names from the register and that in a constitutional democracy, ‘due process’ requires that the rights of persons should not be taken away without due process of law. This is a bizarre argument. As whatever “rights” and related claims are at stake here have been fully litigated and adjudicated in a judicial proceeding, the notion that the resulting order of the apex court, issued to enforce the final judgment in the case, is itself not in accord with or lacking in “due process” is simply mind-boggling.
The due process argument indeed misunderstands and misreads the import of the judgement and orders of May 5, 2016 and the ruling clarifying that judgement. The judgement of 5th May, 2016, and the earlier judgement of 30th July, 2014, had the combined effect of declaring that the registration of persons who used NHIS cards to register was unconstitutional and unlawful, not because those persons, provided they were Ghanaians, did not have a right to be registered, but because the use of the NHIS card could not, and did not, satisfy a constitutionally necessary condition for registration, namely that the registrant must, in accordance with article 42 of the Constitution, be a citizen of Ghana. Thus, with due respect, deleting the names of such persons did not take away any rights that they may have. (And under due process doctrine, no “process” is “due” unless there is, first and foremost, a cognisable legal right or interest at stake). On the contrary, deletion of the names upheld constitutional due process by requiring that any such persons enforce their right to be registered as a voter and to vote by using due process, namely satisfying the eligibility criteria under article 42 of the Constitution. The court’s orders appropriately grant all affected persons the opportunity to avail themselves of precisely this process. Taken together, these constitute what due process means and requires in the instant context.
The court’s decision springs from Articles 1(2), 2(1) and (2) of the Constitution, which provide as follows:
“1(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provisions of the Constitution shall, to the extent of inconsistency, be void”.
“2(1) A person who alleges that –
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”
“2(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions, as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made”
Until the Abu Ramdan cases, the meaning of these plainly written, well-trodden provisions of the Constitution had never been in contention and were clear enough even to law students studying constitutional law and Ghanaian lay persons.
Urban bias
It is now however being contended that where the Supreme Court makes consequential orders under article 2(2) to enable effect to be given to its declaratory powers under article 2(1), such an order would be contrary to due process if the effect is to take away forthwith a non-existent “right” of a citizen. With a touch of populism, it is further being argued that it is constitutionally impermissible for just two persons, Abu Ramadan and Evans Nimako, the Plaintiffs/Applicants, to “disenfranchise” or take away from thousands who registered with their NHIS cards, many of whom may be the rural poor, their right to vote. To give further populist twist to the argument, it is suggested that it is only the urban elite, who have an urban bias, who fail to see the injustice that the rural poor stand to suffer from such a position.
These are very astonishing arguments indeed. Such argumentation, in our view, seeks to jettison and rewrite the very clear language and injunction of the Constitution in article 1(2) and article 2(1) & (2), and to do so not on substantive legal and constitutional grounds, but on populist grounds that run contrary to what the Constitution says and demands.
True enough, in any society, with social and class cleavages, it is to be expected that people from different social and class backgrounds will tend to see things from their class bias, this is especially so for the privileged classes and social groups. But it is one thing to make that general observation and quite another to suggest that insisting on compliance with clear provisions of the Constitution, in respect of an issue as fundamental as who are qualified to be registered and vote in public elections, is to look at issues from an urban bias to the detriment of people living in rural communities.
Further, it bears reminding that not only does article 2(1) empower “a person” (that is, even a single person, not two, as in the Abu Ramadan case) who alleges that an enactment or a provision of an enactment is inconsistent with, and in contravention of, the Constitution to bring an action for a declaration to that effect, but the Constitution again in article 3(4)(a) provides that “all citizens shall have the right and duty at all times to defend this Constitution …….”. Thus, it is dangerous and subversive of the very clear language and intendment of the Constitution to suggest that it is an affront to constitutional democracy for just two persons to go to court to defend and enforce the Constitution on the tendentious and populist ground that to do so would permit just two persons to disenfranchise thousands of the rural poor. Taken to its logical conclusion, this bizarre theory means that any time a citizen invokes Article 2 of the Constitution to seek to overturn a law or act of a public body or agent that is otherwise binding on the entire population, that plaintiff may be accused of trying to impose his or her solitary will or wishes on the entire country. Perhaps what the proponent of this outlandish theory wishes to see is the complete abolition of Article 2.
In any event, it is not the two Plaintiffs, but the Supreme Court that determined the matter and made the consequential orders.
Automatic deletion
But, since the recent ruling of the Court on the motion for clarification makes it clear, beyond a shadow of a doubt, that the Court’s orders were not for the EC to delete in accordance with or by using “applicable laws” but to take steps to delete forthwith, “TO COMPLY WITH THE CONSTITUTION AND APPLICABLE LAW”, there is a new shift to “the due process” argument. This new shift is procured by the magic and new words “automatic deletion”, which have been smuggled into the debate. The ‘due process’ argument is no longer that that ‘due process’ requires that the names be deleted by so-called ‘applicable laws’. That argument having been dealt a deathblow by the Supreme Court’s clarification, the new argument goes thus: The Supreme Court clarification did not order the EC “automatically” to delete the names of NHIS registrants from the voters’ register, as the Plaintiffs had asked for. Rather, as the argument goes, the Court ordered that the EC should takes steps by giving adequate notice to such persons of the processes of deletion and re-registration before deleting the names; and that “automatic deletion” would be contrary to due process.
In the first place nowhere in the application of the Plaintiffs did they make any reference to “automatic deletion”. What they argued was that the Court’s orders meant the EC was to delete forthwith, or immediately delete, the names of those who registered with NHIS cards as well as deceased persons and minors from the register of voters and not by the exhibition and challenge mechanism under C. I. 91. In that sense, the “automatic deletion” phrase was simply being foisted on the Plaintiffs as a straw man argument.
Secondly, to juxtapose “automatic deletion” (as the position of the Plaintiffs/Applicants) to the Supreme Court’s orders is to do so out of the context of the contending views on the import of the Court’s orders. The EC’s view was that the EC could only delete by using applicable laws, (i.e. by the exhibition and challenge process under C. I. 91). The Plaintiffs’ view, on the other hand, was that the Court’s orders under article 2(2) superseded the exhibition and challenge process and meant the EC should delete “forthwith” or “immediately” those names from the register of voters, without recourse to that process. This was the context of the Court’s order. For the avoidance of doubt, we reproduce the order in Justice Gbadegbe’s ruling and the Chief Justice’s orders of the Court.
Gbadegbe JSC said in the ruling of the Court thus:
“This order having been made under Article 2(2) of the Constitution therefore takes precedence over any existing statutory provision, including C. I. 91. Accordingly, the 1st respondent (i.e. the EC) was to take steps forthwith to remove the names of all persons who had registered with the NHIS cards”.
The Chief Justice on her part said in order (2) thus:
“2. For the avoidance of doubt, the 1st Defendant / Respondent is hereby ordered forthwith to take all the necessary steps to delete from the current register of voters the list of persons whose names were submitted to this court on 29th June 2016 as persons who registered with the NHIS Card”.
It will be seen, from an analysis of the syntax of the two orders, that both orders call upon the EC immediately or forthwith to take the necessary steps to delete the NHIS registrants from the voters’ register. In order words, the orders were that whatever steps you need to take in order to delete immediately or forthwith the names of the NHIS registrants from the voters’ register, without recourse to the challenge and exhibition process, take them. Such an order in contrast to those who have been arguing that the EC could only do so by using applicable laws (namely the exhibition and challenge process) was, if you wish, an order of automatic deletion, even though that was not the language of the Plaintiffs or of the Court.
Of course the Court also correctly and in fairness to those whose names were to be deleted ordered that the EC was “to give adequate notice to those affected by the order of the processes of deletion and re-registration, subject to eligibility”, in order not to violate their fundamental electoral rights and in order not to disenfranchise such persons. No one ought to have any difficulty with that aspect of the Court’s orders. Certainly, the Plaintiffs, have never argued that those affected should not have notice of the processes of deletion and an opportunity to re-register. Their argument has always been that the orders of the Court required no other “applicable laws” for them to be carried out by the EC!!
THE INDEPENDENCE OF THE ELECTORAL COMMISSION
Throughout the Abu Ramadan trilogy, the meaning and import of the independence of the Electoral Commission has dominated discussions, both in the public space and the judgments of the Court, with some suggesting that the Supreme Court cannot take over the functions of the constitutionally independent commission and so cannot give orders directed at the Commission. While it is not in dispute that the Supreme Court cannot take over the functions of the Electoral Commission, it is playing to the gallery to suggest that when a party obtains a declaration that a particular provision of a law under which the EC operates or an action of the EC is unconstitutional and the Supreme Court makes consequential orders to enable effect to be given to that declaration, the Court, thereby, is encroaching on the independence of the EC or may be seeking to do what the EC was set up to do. It is most unfortunate to frame any such consequential orders, (directed to ensure that the acts of EC or any other independent constitutional body are in compliance with the Constitution) as undermining the independence of such constitutional bodies or taking over their functions. The EC and the other independent constitutional bodies, it need be emphasized, are creatures of the Constitution. They owe their independence to the provisions of the Constitution, and that same Constitution makes clear that their independence is subject to the provisions of the Constitution and to the supervisory jurisdiction of the superior courts to ensure that their actions are in accord with the Constitution and within the law. That is why article 295 (8) of the Constitution provides the following, in no uncertain terms:
“No provision of this Constitution or 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”
It is salutary for the EC and its members to bear in mind this important provision of the Constitution whenever they assert their constitutional independence. Quite apart from article 295(8), which applies equally to all independent constitutional and statutory bodies, there is article 46, which guarantees the independence of the EC, but also expressly makes the independence subject to the provisions of the Constitution and any other constitutionally valid law thus:
“46. Except as provide in this Constitution or in any other law not inconsistent with the Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any person or authority”.
In short, the Electoral Commission, notwithstanding its constitutional independence, is not above the Constitution and the law but is subject to law and the supervisory jurisdiction of the superior courts. It is irresponsible and dangerous for any commentator to suggest otherwise and thereby lead sections of the public to the mistaken view that the Supreme Court, in ordering the deletion of NHIS registrations from the register of voters in order to enforce a declaration of unconstitutionality, is acting beyond its powers and seeking to usurp the powers of the EC.
THE LIST OF NHIS REGISTRANTS AND THE CREDIBILITY AND INTEGRITY OF THE EC AS AN INDEPENDENT CONSTITUIONAL BODY.
Though the application for clarification of the Court’s orders of 5th May, 2016, did not directly raise this issue, in the course of dealing with the clarification of its orders, the issue of EC’s credibility as a body that Ghanaians can trust and rely upon to act impartially and honestly and conduct free, fair and credible national elections came up from the most unexpected quarters. On correct procedural grounds and in order not to tarnish completely the integrity of the Commission, the Supreme Court, however, declined the invitation to wade into what appeared to be a scandal of monumental proportions for the integrity of the Commission.
It would be recalled that, in the course of proceedings on the application for clarification of the orders of 5th May, 2016, the Supreme Court ordered the EC to file in the court registry by 29th June, 2016, the full list of persons who registered with NHIS cards and the modalities or procedures it intended to use to delete the names from the register of voters and adjourned the case to 30th June 2016.. The Commission, in compliance with the Court’s order, produced a list of 56,772 persons as the full list of those who registered with the NHIS cards. When on 30th June 2016, Counsel for the Plaintiffs was asked his reaction to the list, he observed that he had only been served with the list an hour and half ago and so could not speak intelligently to it. The Court went into recess, giving the Plaintiffs’ lawyers one hour to study the list and the come up with their reaction thereto. When the Court resumed sitting on the same day, Plaintiffs’ lawyer pointed out a number of mind-boggling defects and inconsistencies in the list and observed that the list was a fictitious one, manufactured by the EC and conjured out of nothing simply to meet the court’s orders. Midway through Counsel’s oral submission on the EC list, the Court, seeing that these were weighty matters, which could take some time, directed Plaintiffs to file in the registry of the Court written submissions on whatever objections they had to the list by Monday, July 4th, 2016, and adjourned the case to Tuesday, 5th July, 2016.
On Tuesday, 5th July, 2016, the Court gave its ruling on the application for clarification in the terms set out above. With respect to the challenge to the authenticity and credibility of the list of NHIS registrants that the EC had provided, the Court dismissed same for lack of jurisdiction. The Court noted as follows:
“We have given due consideration to the objections tendered to the list of persons submitted to the Court by 1st defendant/respondent (i.e. the EC). We are of the opinion that we are precluded in the instant post-judgment application for clarification from veering into issues not immediately covered by the application. The determination of these questions does not properly belong to an application for clarification. Our jurisdiction is limited to clearly indicating what we meant by the portions of the judgment on which this application is base.
“We are of the opinion that an enquiry into the authenticity and credibility of the list submitted might result in the modification or alteration of the substance of the judgment. The issues raised by the objections to the list submitted by 1st respondent (the EC) are outside the orders on which the post-judgment clarification application is based”.
Though, the Court declined the invitation to “veer” into the authenticity and credibility of the list submitted by the EC, in its orders, the Court, in our view, impliedly recognized that there may very well have been merit to the objections, when the Court made the following third order:
“3. Further to the above order (2) the 1st Defendant / Respondent is further ordered to delete from the current register of voters the names of persons not included in the list submitted to this court on 29th June 2016 but who are also found to have registered with NHIS Cards”.
Clearly, if indeed, the list submitted by the EC was the full list of NHIS registrants on the register of voters, order (3) would have been completely unnecessary.
Plaintiffs’ objection to EC’s list
The Plaintiffs raised objections to the authenticity and credibility of the list, stating that it was “neither accurate nor credible, of doubtful integrity, riddled with manifest inconsistencies and contradictions” and, in fact, had been “conjured out of nothing” by the EC. These are, indeed, very serious allegations made against the EC, and if true, impugn the very integrity of the EC and questions whether it is ready or fit to act impartially and conduct the 2016 general elections in a credible and fair manner.
Even though the Court may seem technically correct, on jurisdictional grounds, not to have veered into the matter of the accuracy and credibility of the EC list, the issues are not that straightforward. It will be recalled that the Plaintiffs in Abu Ramadan II did not ask directly for the relief that the EC should be ordered to delete from the register of voters those who registered using the NHIS cards. The reliefs Plaintiffs sought in Abu Ramadan II were the following:
"1. A declaration that upon a true and proper interpretation of article 45(a) of the constitution of the Republic of Ghana, 1992, (hereinafter, the “constitution"}, the mandate of the Electoral Commission of Ghana to compile the register of voters implies a duty to compile a reasonably accurate and credible register.
2. A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is nor reasonably accurate or credible and therefore inconsistent with article 45 (a) of the Constitution and thereby making same null and void, of no effect.
3. A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible and is therefore inconsistent with article 45 (a) of the Constitution thereby making same unconstitutional, null and void, of not effect.
4 (a). An order setting aside the current register of voters and compelling the Electoral Commission to compile a fresh register of voters before the conduct of any new public elections or referenda in Ghana.
Or, in the alternative: (b) An order compelling the Electoral Commission to audit the current register of voters through the validation of the registrations of such persons currently on the register: