What are The Eleven (11) Meanings of what the Supreme Court said in the Abu Ramadan Case last week? - What are The Eleven (11) Meanings of what the Supreme Court said in the Abu Ramadan Case last week?

6. Sixthly, it appears that there are four possible reliefs the plaintiffs may receive from the Supreme Court this time:

a. An order of the Supreme Court automatically deleting all “undesirable” names from the Register. 

b. An order of the Supreme Court directed at the EC to automatically delete all “undesirable” names from the Register. 

c. An order of the Supreme Court directed at the EC to delete all “undesirable” names from the Register through a due process mechanism established by the EC.

d. An order of the Supreme Court deleting all “undesirable” names from the Register through a due process mechanism established by the Supreme Court itself.

Read closely, all four options are very different reliefs. In two of the reliefs, the Supreme Court takes action and in the other two, the EC takes action. Again, two of the reliefs are automatic and the other two are through Due Process mechanisms. 

7. The Seventh indication in last week’s Orders is that the Supreme Court DID NOT, AND CANNOT ORDER THE AUTOMATIC deletion of the names of NHIS registrants from the Voters Register. All lawyers in Ghana are agreed that the Supreme Court has ordered the deletion of undesirable names from the Register. The bone of contention has always been whether those names should be deleted automatically or through Due Process of Law. My position has consistently been this: in a constitutional democracy such as ours, it is not possible for the Supreme Court to order something to be done outside of Due Process of Law. Thus, implicit in any order of the Supreme Court is that the Order must be carried out in accordance with Due Process of Law. If the Supreme Court intended to automatically delete the names of NHIS registrants, it would have done so by now. On the contrary, the Supreme Court insists that the deletion of names from the Registrar must be done according to Due Process of Law. 

Listen to what the Supreme Court said last Thursday: “the EC should clearly set out in writing, the steps or modalities that the Commission intends to take in order to ensure full compliance with the Courts order …[to] ‘“clean” the current register of voters  to comply with the provisions of the 1992 Constitution and applicable laws of Ghana’ and also to afford such affected persons the opportunity to re-register.” It is therefore clear that the Supreme has refused the temptation to act unconstitutionally, and would not act or cause the EC to act unconstitutionally, unlawfully, and against Due Process of Law. This is also very commendable.

8. Eighthly, the Supreme Court is poised to provide a two-stepped relief, out of the four possible reliefs they may give, and which are listed above. If we take out the automatic reliefs, which the Supreme Court cannot lawfully give, there are two possible reliefs remaining. The Supreme Court requesting the EC to delete names by Due Process or the Supreme Court itself deleting names by Due Process. 

A close reading of the Orders of the Supreme Court reveals that the Court anticipates a two-stepped relief. First, they will order the EC to delete the “undesirable” names according to a mechanism and timetable furnished by the EC. If the EC fails to abide by this Order, in addition to whatever punishment may be handed down to the EC, the Supreme Court would then move to the second step, that is, delete the “undesirable” names by itself and by a mechanism established by the Supreme Court itself. Once again, we should congratulate the Supreme Court for this approach. 

9. Ninthly, once again the Supreme Court underlined the constitutional independence of the Electoral Commission. We all know that the independence of the EC is subject to the power of the Courts to order it to act in accordance with law. In other words, the EC is subject to the judicial supervision of the Courts, in very limited instances, clearly stated in our Constitution. By appearing to choose a two-stepped process in this case, the Supreme Court is offering the EC the opportunity to continue to act independently. It is only if the EC fails to do so that the Supreme Court will intervene.

Such a supervisory role by the Supreme Court is not uncommon. The work of the Indian Supreme Court in this area is by far one of the best examples. In appropriate cases, close judicial supervision of institutions of governance is warranted. Yet, this must be closely watched and hugely circumscribed, as the courts do not have the time, resources, and capabilities to closely supervise all such institutions. Also, as a former Chief Justice of India once said, care must be taken by the Supreme Court not to descend from “judicial activism”, to “judicial populism” and even to “judicial adventurism”, as has happened in India. 

10. The tenth thing that can be gleaned from this case is that on issues of pure politics, and going by which party appointed them; the way they have historically voted on political issues; and their posture and voting pattern during the Election Petition Case of 2012, in the case of a non-unanimous judgment, the majority of the current panel of the Supreme Court will likely rule in favour of the stance preferred by the NPP, whilst the Minority will Rule in favour of the stance preferred by the NDC.  

It is, however, possible that the Supreme Court will deliver a unanimous decision if the case remains at the fist step relief, where the Supreme Court orders the EC to delete undesirable names according to a mechanism and timetable determined and operationalised by the EC. Where the Supreme Court has to move to step two of the two-stepped relief, the decision is likely to be non-unanimous at that point. And at that point, three of the judges on this case will likely vote for the position preferred by the NPP and two for the position preferred by the NDC. The only thing that could prevent this is public watchfulness to ensure that the Supreme Court judges put their personal politics aside and rule for Ghana.

In the so-called advanced democracies, it is common to predict how a judge would rule, given (a) their political persuasion, (b) the President who appointed them, and (c) the way they have ruled in the past. Anyone interested in this subject matter should examine how academics make these predictions in the case of the United States Supreme Court. Whilst our Supreme Court was sitting on Thursday, the US Supreme Court was about to deliver later that morning (US time) a long-predicted split decision in the immigration case based on the three factors listed immediately above.