IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – AD 2020

CORAM: YEBOAH, CJ (PRESIDING)

DOTSE, JSC

BAFFOE-BONNIE, JSC

GBADEGBE, JSC

MARFUL-SAU, JSC

AMEGATCHER, JSC

KOTEY, JSC

25  JUNE 2020

CONSOLIDATED WRITS

SUIT NO. J1/9/2020

NATIONAL DEMOCRATIC CONGRESS PLAINTIFF

VRS

1. ATTORNEY-GENERAL

2. ELECTORAL COMMISSION OF GHANA. …….. .. DEFENDANTS

AND

SUIT NO. J1/12/2020

MARK TAKYLBANSON

H/NO. BN3-4, BREMAN KOKOSO ………. .. PLAINTIFF

ASIKUMA-ODOBEN BRAKWA

VRS

I. ELECTORAL COMMISSION OF GHANA

2. THE ATTORNEY-GENERAL ……….. .. DEFENDANTS

JUDGMENT

PROF. KOTEY JSC:-

1. Introduction

On 25th June 2020, we gave judgment in these consolidated suits but deferred our reasons, which we now give.

Rights enforceable by the plaintiffs.

The antecedent facts of the case are that the 2nd Defendant had indicated that in preparation for the 2020 presidential and parliamentary elections it would compile a new register of voters. In preparation for the compilation of the new register of voters, the 2nd Defendant gave gazette notification for the making of Regulations intituled Public Elections (Registration of Voters) (Amendment) Regulations on 3 March 2020. This Instrument did not provide for the inclusion of the current voter identification card as a document for the identi?cation of persons who apply for registration as voters.

On 19th March, 2020, the National Democratic Party (151 Plaintiff), a major political party, issued a writ against the Attorney General (15’5 Defendant) and the Electoral Commission (2nd Defendant) invoking the original jurisdiction of this court to interpret and enforce the Constitution under articles 2 (1) and 130 (1) thereof.

The 15* Plaintiff sought the following relief :‘5: 3.1”-..a’

1. A declaration that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution, 2nd  Defendant has the constitutional power to, and can compile a register of voters only once, and thereafter revise it periodically, as may be determined by law. Accordingly, 2nd Defendant can only revise the existing register of voters, and lacks power to prepare a fresh register of voters, for the conduct of the December 2020 Presidential and Parliamentary Elections.

OR IN THE ALTERNATIVE

2. A declaration that upon a true and proper interpretation of the provisions of the Constitution, specifically article 51, read conjointly with article 42 of the Constitution, the power of the 2nd Defendant to compile and review the voters’ register must be exercised subject to respect for and the protection of the right to vote;

3. A declaration that on a true and proper interpretation of the provisions of the Constitution, particularly article 42, upon the registration of and issuance of a voter identification card to a person, that person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner;

4. A declaration that, upon a true and proper interpretation of the provisions of the Constitution, particularly article 42, of the Constitution, all existing voter identification cards duly issued by the 2nd Defendant to registered voters are valid for purposes of identifying such persons in the exercise of their right to vote;

5. A declaration that upon a true and proper interpretation of the Constitution, specifically Article 42, the 2nd Defendant’s purported amendment of regulation 1 sub- regulation 3 of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 to exclude existing voter identification cards as proof of identification to enable a person apply for registration as a voter, is unconstitutional, null and void and of no effect whatsoever;

6. A declaration that the 2nd Defendant, in purporting to exercise its powers pursuant to article 51 of the 1992 Constitution to exclude the existing voter identification cards from the documents required as proof of identi?cation to enable a person register as a voter without any justification, is arbitrary, capricious, unreasonable and contrary to article 296 of the 1992 Constitution;

7. A declaration that upon a true and proper interpretation of the Constitution, specifically Article 42 of the 1992 Constitution, proof of identi?cation for registration as a voter should not be limited by the provisions of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020;

8. An order directed at the 2nd Defendant to include all existing voter identification cards duly issued by the 2nd Defendant as one of the documents serving as proof of identi?cation for registration as a voter for the purposes of public elections;

9. Any other order or orders as this Honourable Court would deem it in the circumstances.

In compliance with the relevant rules of the court, the parties subsequently filed their respective Statements of Case. No Joint Memorandum of Agreed Issues was filed by the parties as required by the rules and the practice of the Court. On the contrary, the 1st and 2nd Defendants filed a “proposed joint memorandum of issues” on 20 May 2020 and the 15‘ Plaintiff filed its memorandum of issues on 4 June 2020. On 4 June 2020, the Court directed the 2nd Defendant to file a supplementary Statement of Case to provide the legal basis for the non—inclusion of the current voter identification card as a document to be used for the identification of a person who applies to be registered as a voter in the compilation of a new register of voters. Option was given to the other parties to ?le supplementary Statements of Case if they so desired. All the parties duly filed supplementary Statements of Case. On 10 June 2020, the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I 126) came in force. On the 11th June 2020, after being put to its election by the Court, the 15* Plaintiff abandoned

1. A declaration that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution, 2”“ Defendant has the constitutional power to, and can compile a register of voters only once, and thereafter revise it periodically, as may be determined by law. Accordingly, 2nd Defendant can only revise the existing register of voters, and lacks power to prepare a fresh register of voters for the conduct of the December 2020 Presidential and Parliamentary Elections.

On 12 June 2020, a day after the 15‘ Defendant had abandoned its relief 1, a new writ was issued by Mark Takyi-Banson (2nd Plaintiff) against the 15* and 2nd Defendants seeking the following reliefs:

i. A declaration that upon a true and proper interpretation of article 45(a) of the 1992 Constitution of the Republic of Ghana, the Electoral Commission’s constitutional and statutory mandate to compile the register of voters for the conduct and supervision of all public elections and referenda is spent, saving only the power reserved in the Commission to revise and expand the register of voters at such periods as may be determined by law.

ii. A declaration that the Electoral Commission’s decision to compile a new register of voters is inconsistent with and in violation of article 45(a) of the 1992 Constitution of the Republic of Ghana.

iii. A declaration that Regulation 1 (3) of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I 126) is inconsistent with and violates the provisions of article 42 and 45 (e) of the 1992 Constitution to the extent that it excludes

Birth Certificates issued to Ghanaians as a mode of identification and/or establishment of quali?cation to be registered in the register of voters.

iv. A declaration that Regulation 1 (3) of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I. 126) is inconsistent with and violates the provisions of article 42 and 45 (e) of the 1992 Constitution to the extent that it excludes the existing Voter Identification Card as a mode of identification and/or establishing qualification to be registered in the register of voters.

v. An order directed at 15‘ Defendant to include under Regulation 1 (3) of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I 126), the existing voter Identification Card issued by 15* Defendant as evidence of identification.

vi. An order directed at 15t Defendant to include under Regulation 1 (3) of the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I. 126) birth certificates as evidence of identification.

vii. Any other order or orders as to this Honourable Court may deem it.

On 19 June 2020, upon an application by the 1st Defendant for the consolidation of the two suits, this court upon determining that the two suits raised substantially the same issues, made an order for the consolidation of the two suits. The court also made an order for the abridgement of time for filing of the respective Statements of Case of the parties. All the parties complied with the order and filed their respective Statements of Case.

On 19 June 2020, an application for leave to file an amicus brief was filed by four (4) applicants, namely; Imani Centre for Policy and Education, Conservative Policy Research Centre, Alliance for Social Equity and Public Accountability (ASEPA) and Institute for Liberty and Policy Innovation. In view of the lateness of the application and the fact that the draft amicus brief attached to the application did not provide any new, relevant information, this Court refused the application.

From the reliefs indorsed on the two Writs and after a careful consideration of the facts, the processes led by the parties and the relevant law, two (2) issues arise for determination in this action. These are:

i. Whether or not the compilation of a new register of voters by the 2” Defendant would be inconsistent with or in violatiypn of the Constitution, and

ii. Whether or not the non—inclusion of the current voter identification card and birth certificate as documents for the identification of persons who apply for registration as voters under C.I.126, is inconsistent with or in contravention of the Constitution.

2. The Constitutionality or Otherwise of the Compilation of a New Register of Voters

As has been noted, the first relief indorsed on the Writ of the 15* Plaintiff is for;

“A declaration that upon a true and proper interpretation of Article 45 (a) of the 1992 Constitution, 2” Defendant has the Constitutional power to, and can compile the register of voters only once and thereafter revise it periodically, as may be determined by Law. Accordingly, 2nd Defendant can only revise the existing register of voters, and lacks the power to prepare a fresh register of voters for the conduct of the December 2020 Presidential and Parliamentary Elections”.

This relief, as has been noted, was abandoned by the 15* Plaintiff and struck out as abandoned by the Court. But this issue was resurrected by the 2nd Plaintiff. Reliefs 1 and 2 indorsed on the 2nd Plaintiffs Writ are as follows:

i. A declaration that upon a true and proper interpretation of article 45(a) of the 1992 Constitution of the Republic of Ghana, the Electoral Commission’s constitutional and statutory mandate to compile the register of voters for the conduct and supervision of all public elections and referenda is spent saying only the power reserved in the Commission to revise and expand the register of voters at such periods as may be determined by law.

ii. A declaration that the Electoral Commission’s decision to compile a new register of voters is inconsistent with and a violation of article 45(a) of the 1992 Constitution of the Republic of Ghana.

The relevant provision of the Constitution is article 45(a), which provides as follows:

“The Electoral Commission shall have the following functions —

(a) To compile the register of voters and revise it as such periods as may be determined by law. »

The 2nd Plaintiff contends that on a true and proper interpretation of article 45 (a), the 2nd Defendant’s power to compile a new register of voters can be exercised only once and that after the compilation of a new register, the register can subsequently only be revised. The 2nd Plaintiff submitted that the words “compile” and “revise” in article 45 (a) “do not mean the same thing” or “have the same effect or result”. He concludes, “that the purposive interpretation and effect of Article 45 (a) of the 1992 Constitution, as restated in section 2(a) of the Electoral Commission Act, 1993 (Act 451), is that the constitutional statutory mandate of the 15* Defendant (The Electoral Commission) to compile the register of voters for elections and referenda is spent save the mandate to revise the register of voters.”

The 15* and 2’15 Defendant take issue with the 2nd Plaintiff on his interpretation of article 45 (a) of the Constitution. They both contend that under and by virtue of article 45 (a), the 2nd  Defendant has power to compile a new register of voters, and that the authority to compile a new register is not a one-off power, but is a power that may be exercised periodically as and when determined by the 2″“ Defendant and in accordance with law. Counsel for the 15* Defendant submitted that the 2nd Plaintiff’s interpretation of article

45 (a) is strained and farfetched. He contended that on a plain reading of article 45 (a), the 2nd Defendant may “compile the register of voters and revise it as such periods as may be determined by law ». He submits that the phrase “at such periods as may be determined by law” applies both to the compilation of a new register and its revision. He noted the absence of any punctuation in article 45 (a) and submitted, “Quite clearly therefore without any difficulty, the words must be read together. There’s no need to disaggregate them ». Counsel for the 15* Defendant further submitted that by article 297

(b) of the Constitution, where a power to do an act is on a person, that power or duty may be exercised or discharged from time to time as necessary and that the power of the 2nd  Defendant to compile a new register of voters may be exercised from time to time, and not only once.

The 2nd Defendant also submitted that article 45 (a) does not confer a single-use mandate but provides for a role of a continuing nature. It further submitted that the Constitution must be read as a whole and that when article 45 (a) is read together with article 297 (c), it is clear that the power of the 2nd  Defendant to compile a new register of voters is not a one—off power but can be exercised as and when determined by the 2nd Defendant and in accordance with law.

We have carefully considered the contentions of the parties, the submissions of counsel and the relevant provisions of the Constitution on this issue and are of the considered opinion that there is no merit in the contention of the 2nd Plaintiff that the power of the Defendant to compile a new register of voters can only be exercised once and that thereafter it only has power to revise the register from time to time, but not to compile a new one.

We uphold the submissions of counsel for the 2nd Defendant that the power vested in the 2nd Defendant by article 45 (a) “to compile the register of voters and revise it at such periods as may be determined” is clear and unambiguous and means that the 2nd Defendant may compile a new register of voters or revise it from time to time as it deems necessary and in accordance with law. The interpretation urged by the 2nd Plaintiff is strained and farfetched and is rejected.

The Constitution must be read as a whole. As this Court stated in ‘i.i-i. Mensah v. Attorney—General [1996-97] SCGLR 320, by Acquah JSC (as he then was);

“I think it is now firmly settled that the better approach to the interpretation of the 1992 Constitution is to interpret the provision in relation to the other provisions of the Constitution so as to render the interpretation consistent with the other provisions and the overall spirit of the Constitution. An interpretation based solely on a particular provision without reference to the other provision is likely to lead to a wrong appreciation of the true meaning and import of the provision. »

In this case, the related constitutional provision which we believe will enhance the appreciation of the true import of article 45(a) is article 297(b), which makes provision for implied powers and other matters relating to the scope and implications of powers conferred under the Constitution. Article 297(b) of the Constitution provides that, “in this Constitution and in any other law, (b) where a power is inferred or duty is imposed, the power may be exercised and duty shall be performed, from time to time, as occasion requires”.

We therefore hold that when article 45 (a) is read together with article 297 (b), as it must, it is clear that the power of the Defendant to compile a new register of voters may be exercised from time to time as occasion requires and in accordance with law.

Additionally, the power of the 2nd Defendant to compile a new register is recognized by the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91) which has just been amended by C.I.126. Regulation 33 of C.I. 91, on revocation and saving, provided as follows:

“33. (1) The Public Elections (Registration of Voters) Regulations, 2012 (C.I. 72) is hereby revoked.

(2) Despite the revocation under sub regulation (1), the existing register of voters is saved under these Regulations until the new one {‘5 compiled by the Commission (emphasis supplied).

Lastly, we note that as a matter of fact, this is not the first time that a new register of voters would be compiled since the coming into force of the 1992 Constitution. A new register of voters was in fact compiled by the 2nd Defendant in 2012 under C.I. 72.