The Attorney General (AG) has responded to claims by the opposition National Democratic Congress (NDC) that the Electoral Commission (EC) is enjoined to compile the register of voters only once at the inception of the Constitution and not on multiple occasions, describing the position of the party as “patently absurd, far-fetched, outrageous and grossly erroneous.”
In its response to a suit filed at the Supreme Court by the NDC over the compilation of a new voters’ register, the AG insisted that a number of reliefs claimed by the NDC “are not cognizable,” adding that the NDC “has no cause of action as there is no enactment properly so-called in respect of which the action has been instituted. The proposed constitutional instrument, the subject matter of dispute, has not come into force in accordance with Article 11(7) of the Constitution.”
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NDC Suit
In late March this year, the NDC sued the AG and attached the EC over the decision of the commission to compile a new voters’ register for the 2020 presidential and parliamentary elections.
The party wants the Supreme Court to declare that the EC, per the 1992 Constitution, can only compile a voters’ register once and subsequently review it over time and not compile a new one instead.
The NDC is contending that the EC “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.”
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Voters ID
Among the declaration being sought by the NDC is that the current voters ID card, which was issued to prospective voters, can and should be used for the purposes of identification and enable them to vote.
The NDC is also seeking a declaration that the decision by the EC to amend the regulations that guide the registration of voters “to exclude existing voter identification cards as proof of identification to enable a person to apply for registration as a voter is unconstitutional, null and void and of no effect.”
AG Response
The AG’s Department in its statement of case signed by Deputy Attorney General, Godfred Yeboah Dame, averred that some of the reliefs sought by the NDC were “simply procedurally incompetent and not cognizable as reliefs that may properly be applied for, pursuant to the Supreme Court’s original jurisdiction under Articles 2(1) and 130(1) of the Constitution” and therefore should be struck out by the court.
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The AG is arguing that the NDC also has no cause of action against them and the EC because the action is predicated on a proposed constitutional instrument (C. I.) laid before Parliament and yet to go through the full processes prescribed by Article 11(7) of the Constitution for its entry into force as part of the laws of Ghana,” adding “in terms of the procedure enshrined in Article 11(7), the earliest date that the proposed C. I. laid before Parliament on April 1, 2020 comes into force is June 5, 2020.”
“In point of fact, presently, and at all material times since the commencement of the plaintiffs’ action, there is no C. I. properly so-called enacted which is part of the laws of Ghana. The proposed C. I. is going through the procedures constitutionally mandated in Article 11(7) before it can be called ‘legislation’ or ‘enactment’,” the AG said.
“To strike the proposed constitutional instrument down as unconstitutional will amount to an interference with the powers of Parliament under Article 11(7),” adding “the Constitution reserves unto Parliament exclusive authority of influencing the coming into force of a subsidiary legislation or otherwise through the exercise of its powers of annulment of subsidiary legislation. This court has no jurisdiction to interfere with same,” the AG added.
Original Jurisdiction
It said the action by the NDC does not properly invoke the original jurisdiction of the Supreme Court as there was neither a genuine case of constitutional interpretation nor violation of a specific provision of the Constitution.
“The plaintiff bore the burden of proof in relation to the material contentions of the intended exclusion of the old voter identification card as a means of proving one’s identity as Ghanaian is a matter fully within the discretion of the second defendant (EC),” the AG insisted.
On whether the EC is justified in excluding the old voter ID card as a means of identification for registration, the AG further stated that “as held in various decisions of this court, the functions of the second defendant (EC) under Article 45(a) of the constitution to compile and revise the register of voters are not subjected to any other constitutional provision, or law,” adding “the power of the second defendant (EC) to compile and revise the register of voters at such periods of time may not be controlled by any person or authority save in plain cases of unconstitutionality.”
The AG added that “the means of proving identity as a Ghanaian under the proposed constitutional instrument seeks to protect the right of the Ghanaian to vote under Article 42 as it assures that only Ghanaians of full age and sound mind register to vote.”
The EC, through their lawyers, also opposed the NDC’s action through a statement of case filed by the lawyer.
BY Gibril Abdul RAzak
