The Human Rights Division of the Accra High Court has given the Electoral Commission (EC) a one-year ultimatum to implement the Representation of the People Amendment Act (ROPAA), 2006 (Act 699) which gives Ghanaians in the Diaspora the right to vote from abroad.
The order, according to the court, was to ensure that Ghanaians outside the country registered and voted in the 2020 elections.
In a judgement delivered on Monday, the court, presided over by Mr Justice Anthony Yeboah, explained that the order, which was directed at the seven commissioners of the EC and the EC as a body, would take effect from January 1, 2018.
According to the court, the EC must “uphold and ensure the full compliance of the operationalisation of Act 699’’ within the 12-month period by laying before Parliament a Constitutional Instrument (CI) that will set out the modalities for the implementation of Act 699.
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In the event that the EC has any justifiable reason and is “unable to comply with the order”, the court ordered the commission to publish the justifiable reason(s) 30 days before the expiration of the deadline and also appear before the court to explain the reason(s).
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Failure by the EC to implement ROPAA, the court held, was a violation of the fundamental human rights of Ghanaians in the Diaspora, whose right to vote had been guaranteed by the 1992 Constitution, which was made effective by ROPAA.
The ROPAA, passed into law in 2006, is meant to allow Ghanaian citizens, including dual nationals in the Diaspora, to be registered abroad and vote from abroad.
‘We want to vote’
The landmark judgement was the end result of a legal battle between five Ghanaians resident in the United States of America (USA) and the EC.
Dr Kofi A. Boateng, Ms Nellie Kemevor, Mr Obed Danquah, Ms Christiana Sillim and Mr Agyenim Boateng sued the electoral management body on the basis that it had “gone to sleep” and refused to implement Act 699, 11 years after it was passed.
The “deliberate refusal” or inaction of the EC to implement the act, they argued, had robbed them of the chance to vote in three general elections (2008, 2012 and 2016) and other public elections.
They also contended that it was discriminatory for the EC to continue to register a category of Ghanaian citizens studying abroad or working in Ghana’s missions/embassies abroad to vote in public elections and referenda without including them.
It was their case that the actions and inaction of the EC were a violation of their fundamental human rights, as prescribed by the 1992 Constitution, ROPAA (Act 699), Article 13 of the African Charter on Human and People’s Rights and Article 25 of the International Covenant on Civil and Political Rights.
They, therefore, wanted the court to order the EC to begin the implementation of Act 699, arguing that it was the statutory duty of the electoral management body.
In defence, lawyers for the EC argued that it was not a deliberate attempt on the part of the EC not to implement ROPAA but rather the implementation was being executed “cautiously and in stages”.
They contended that the implementation was saddled with financial, logistical, human resource and legal challenges.
On the legal aspect, the EC was of the view that the implementation could lead to electoral-related offences in other countries.
But in the judgement, which upheld the case of the five Ghanaians, the court held that the EC was deliberately dragging its feet and had made its mind not to implement Act 699 any time soon.
It was the court’s view that the EC failed to give any cogent reasons for the delay, describing the delay as “grievous, unreasonable and unjustifiable’’.
Apart from a subcommittee which was formed in 2009, the court said, the EC could not show any proof of attempting to implement ROPAA.
“The 1st respondent (EC) is only good at reciting the challenges in relation to the implementation, without finding solutions to the challenges,’’ Mr Justice Yeboah said.
According to the court, failure by the EC to overcome the challenges could only mean that it lacked the institutional capacity to confront its challenges.
On the issue of financial constraints, the presiding judge ruled that the EC had no case, since it had not presented any budget on the implementation of the ROPAA to the Executive or the Legislative arms of government which had been rejected.
He further held that the inaction of the EC, coupled with its lack of compelling justification, showed that it had set out to use administrative means to repeal the ROPAA.
“But under no circumstance is the 1st respondent (EC) empowered to disobey Act 699,” he stated.
Mr Justice Yeboah said the EC, although independent, could consult others on the implementation of the ROPAA and must not “block its ears to wise counsel from stakeholders and the public”.
“The EC must be prepared to generate public discourse on the modalities for the implementation of Act 699,’’ he said.
After the judgement, lawyer for the applicants, Mr Samson Lardy Anyenini, declined to asked for cost against the EC, saying that the case was of public interest.