Law Prof. slams SC over confused EC ruling

A Ghanaian Professor of law based in the United States of America has accused the Supreme Court of poisoning the minds of the public with what he terms increasingly confused, inconsistent and misleading statements about generally accepted matters of law.

The criticism from Prof. Kwaku Asare comes in the wake of recent confusion that greeted the judgement of the highest court of the land in the voters register suit filed by Abu Ramadan and one other.

The judgement was initially interpreted to mean the Electoral Commission had been ordered to delete names of voters who registered with NHIS cards.

However, that is turning out to be a wrong interpretation.

Prof. Asare in a write up copied to Starr News particularly took on a member of the panel Justice Gbadegbe for holding that those who registered with NHIS cards should remain on the electoral roll.

Below is the full statement by Professor Asare.

I write only to express my concern that the Supreme Court is poisoning the minds of too many people with its increasingly confused, inconsistent and misleading statements about generally accepted matters of law.

I am particularly disturbed by Justice Gbadegbe's recent holding in the Abu Ramadan case that, "as the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically render them void."

This is a seriously misleading statement of law. Ghana's Constitution is the Supreme law of the land and any law that violates it is no law at all.

It is a proposition of law that has been affirmed everywhere and too often that "an Unconstitutional Act, Regulation, Statutory or Constitutional Instrument, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose.

Further, the unconstitutionality dates from the time of the enactment and not merely from the date of the decision so branding it."

An unconstitutional law is as inoperative as if it had never been passed. Thus, an unconstitutional law cannot and does not impose duties; confers no rights; creates no office; bestows no power or authority on anyone, etc.

It is therefore untrue that the impugned registrations were made under a law that was then in force. The law was never in force, if it was unconstitutional as the Supreme Court tells us. It also follows that the right the law conferred was conferred unconstitutionally and carries no legal weight.

The Supreme Court knows this dogma. That is why the same Supreme Court invalidated international business contracts signed without the involvement of Parliament, as required by the Constitution (e.g., FAROE).

To further appreciate the issue, suppose parliament passed a criminal statute that is subsequently declared unconstitutional by the Court. Yaw Oppong is convicted under the law, in good faith by the Attorney General. Yaw wants his conviction to be voided and released from jail. Will it be a reasonable answer for the Court to say, "Mr. Oppong, as your conviction was made under a law that was then in force, it was made in good faith and the subsequent declaration of the unconstitutionality of the criminal statute should not automatically render your conviction void." That, of course, will be absurd! And so is Gbadegbe's declaration!.

Of course, the Court may have good reasons to want to save the registrations. If that is the inclination, the Court could and should have stayed away from the constitutional question. After all, the Constitution does not talk about NHIS card so there is no compelling reason to answer the question whether the use of NHIS card violated the Constitution. Proof of citizenship (whether by birth certificate, passports, guarantors, blood test, etc.) is a statutory or regulatory matter not a constitutional issue!

The Court should have answered a narrower question, such as whether the use of the NHIS card is sufficient to establish citizenship and if not whether the registrations should be voided.

On this narrower question, the Court could say the use of the NHIS card is not sufficient to establish citizenship but the registration should not be voided on equity grounds.

That is, the Court could step in with some equity doctrine to save the registrations, as it appeared inclined to do.

The Court is after all a Court of Equity and Equity can step in and do all sorts of crazy thing (e.g., the cy-pres doctrine, estoppel, etc.)

BUT for the avoidance of doubt and the sanity of our constitutional jurisprudence, it must be emphasized that a card or anything procured through unconstitutional means is incurably void. It is legally strange and unmistakably flawed to suggest otherwise.

Da Yie!