Supreme Court
The Abu Ramadan Case went before the Supreme Court for the third time last Thursday, 23rd June, 2016.
In its latest pronouncement on the matter (“Abu Ramadan III”), the Court has ordered the Electoral Commission to “clearly set out in writing, the steps and modalities that the Commission intends to take in order to ensure full compliance with the Court’s order” made on 5th May, 2016.
That order, as the Court recalled, commanded the Commission to “take steps immediately to delete or ‘clean’ the current register of voters to comply with the provisions of the 1992 Constitution and applicable laws of Ghana” and “also afford such affected persons the opportunity to re-register.”
The Commission is also ordered to submit in writing to the Court the full list of all the persons on the register of voters who were registered as voters by the Commission on the basis of their possession of a National Health Insurance identification card. The Commission is to comply with these latest orders by 29th June, 2016.
Abu Ramadan III apparently became necessary as a result of the public confusion and misunderstanding, divided largely along party lines, caused by the vastly contradictory readings and interpretations proffered by various legal and opinion commentators to the judgment and orders of the Supreme Court delivered on 5th May, 2015 (“Abu Ramadan II”).
The ensuing confusion caused one of the Justices who had sat on the case to take the unusual step of offering, in an extrajudicial context, a clarification of the judgment in response to a question from the press, a move that generated collateral controversy of its own.
Even the Electoral Commission, the primary defendant in the case and the party to which the Court’s orders were directed, was reportedly unable to determine what, if anything, the judgment and orders of the Court in Abu Ramadan II required of it.
The Abu Ramadan trilogy began with the decision of the Supreme Court delivered on 30th July 2014 in two consolidated suits, J/11/2014 and J/9/2014, brought by Plaintiffs Abu Ramadan and Evans Nimako and by Plaintiff Kwasi Danso Acheampong, respectively (“Abu Ramadan I”).
The plaintiffs in Abu Ramadan I had sought, among others, “a declaration that upon a true and proper interpretation of Article 42 of the Constitution of the Republic of Ghana, 1992 (hereinafter, the ‘Constitution’) the use of the National Health Insurance Card (hereinafter, the Health ID card) as proof of qualification to register as a voter pursuant to the Public Elections (Registration of Voters) Regulation 2012 (Constitutional Instrument 72) is unconstitutional, void and of no effect.”
The Plaintiffs’ case was based on the fact that while article 42 of the Constitution restricts the right to vote and to be registered as a voter to a “citizen of Ghana”, the National Health Insurance (“NHI”) card is available and may be issued to any resident of Ghana, without regard to nationality.
In a unanimous decision, the Supreme Court granted the relief sought by the plaintiffs in Abu Ramadan I, declaring that “the use of the NHI card to register a voter pursuant to Regulation 1(3)(d) of the Public Election (Registration of Voters) Regulations, 2012 (C.I. 72) is inconsistent with the said article 42.” The Court further granted an order of perpetual injunction restraining the Electoral Commission from using the National Health Insurance Card for the purpose of registering a voter under article 42 of the Constitution.
It appears that the Electoral Commission, while ceasing to accept NHI cards for future voter registration following the decision in Abu Ramadan I, did not read Abu Ramadan I as requiring it to remove or exclude from the current register of voters those persons who had previously been registered on the basis of a NHI card.
The Plaintiffs, therefore, returned to the Supreme Court two years after Abu Ramadan I had been delivered, contending, among other things, that “following the declaration of the unconstitutionality of the use of said cards, names of persons who used it in the registration process conducted under CI 72 cannot continue to remain on the register of voters.”
It is in response to this claim that the Supreme Court in Abu Ramadan II ordered the Electoral Commission to delete from the current register of voters the names of those persons who were registered as voters on the basis of a NHI card and offer the affected persons a fresh opportunity to register using a constitutionally-compliant form of identification.
Rather than end matters, Abu Ramadan II generated a new storm of controversy as to the meaning and implications of the Court’s judgement and accompanying orders. Indeed, despite Abu Ramadan III, it appears that the debate sparked by Abu Ramadan II is far from over. The issues at stake in the Abu Ramadan trilogy, but especially in Abu Ramadan II, are far from academic; they are weighty and urgent.
The Court’s judgment in Abu Ramadan II touches on very important and fundamental constitutional questions, notably the Supremacy of the Constitution, the role of the Supreme Court in enforcing fidelity to the Constitution, and what the independence of the Electoral Commission means within our constitutional system.
Moreover, the specific questions presented to and answered by the Court in the Abu Ramadan trilogy bear directly on the content and integrity of the voters register that is to be used in this year’s presidential and parliamentary elections–which elections are only a few short months away.
In light of this, and because certain propositions contained in the Abu Ramadan II judgement written for a unanimous court by Justice Gbadegbe, remain deeply troubling and were not taken up again in Abu Ramadan III, we have decided to enter this debate, primarily to return to Abu Ramadan II and subject to close scrutiny the controversial propositions in that case as well as the meaning placed on those words and the orders of the Court by certain legal commentators.
For the purposes of this article, we have divided into two parts our analysis of Justice Gbadegbe’s judgment for the Court in Abu Ramadan II. The first part deals with certain general propositions and questions of constitutional law that are contained in the “discussion” portions of the judgement and whose meaning and implications are far-reaching and extend beyond the specific issues presented in the case.
There are two main issues here: (a) the effect of a declaration by the Court that a certain law or provision of a law is unconstitutional; and (b) the meaning of the Independence of the Electoral Commission as it relates to the power of the Supreme Court to enforce the Constitution.
The second part deals with the specific orders of the Court; specifically, what action, if any, is required of the Electoral Commission under Abu Ramadan II in order to bring the voters register in compliance with the applicable provisions of the Constitution, as interpreted by the Court. We shall deal with these issues one after the other.
(A) Is an Unconstitutional Law Void or Not?
The first broad or general question of constitutional law that arises from the judgement in Abu Ramadan II may be framed as follows: What is the effect of a Supreme Court declaration that a law or provision of a law is unconstitutional?
More specifically, can a law or an act continue to have validity as law despite a determination and declaration by the Supreme Court that the law or act in question is inconsistent with the Constitution?
Language in the judgment of the Court in Abu Ramadan I appears to suggest that this last question can be answered in the affirmative. That language is the genesis of some of the confusion that this case has generated. The relevant portion of the judgment written by Justice Gbadegbe reads as follows: “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 the [NHI] cards should not automatically render them void.”
In essence, the Abu Ramadan II Court wishes to say that, an act that has been found and declared by the Court to be unconstitutional may nonetheless retain current and prospective legal validity. The theory or reason the Court gives for this proposition is that, at the time the act was done the law under which it was done was a valid law as it had not yet been declared to be unconstitutional.
This is a profoundly extraordinary and deeply troubling proposition as a matter of constitutional jurisprudence. Since every act, until it is found and declared to be unconstitutional, can be said to have been done in good faith compliance with existing law, the upshot and implication of the Court’s statement, even if unintended, is to allow an unconstitutional law or act to continue to be applied despite having been found and authoritatively declared to be unconstitutional.
Unfortunately but understandably, no authority or citation either to a provision of the Constitution or an established constitutional precedent is provided by the Court in support of this novel proposition.
The absence of supporting authority or citation is not surprising, because one will have to search but in vain in our constitutional jurisprudence, and in the jurisprudence of every other constitutional system analogous to ours, for an authoritative support for the proposition that a law declared by the apex court to be unconstitutional is not void and thus can continue to be enforced or applied.
It would be easy to disregard the above proposition as mere dictum were it not for the fact that these words come from a unanimous seven-member panel of the Supreme Court and touch on arguably the most important and fundamental question in our constitutional system, namely the meaning of the Supremacy of the Constitution.
So fundamental is the doctrine of the Supremacy of the Constitution, and of the related question of the effect of a judicial declaration of unconstitutionality, that the Framers of the Constitution gave it pride of place as the very first article of the 1992 Constitution. And it is to that provision that one must have recourse in seeking an authoritative and clear resolution of this matter.
Article 1, clause 2, of the Constitution states: “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” Article 2 of the Constitution then proceeds to lodge exclusively in the Supreme Court the power to determine and declare authoritatively whether a challenged law is unconstitutional.
The combined effect of these two preeminent provisions of the Constitution is clear and straightforward: If the Constitution is the supreme law of Ghana; and if it lies within the exclusive province of the Supreme Court to declare that a law is unconstitutional; then, a law declared to be unconstitutional by the Supreme Court, is definitively void and, therefore, of no legal effect.
To say otherwise, that is to say, to suggest that a law found and declared by the Supreme Court to be unconstitutional is nonetheless not void and, thus, retains continuing validity for any reason whatsoever is to negate the notion of the Constitution being the supreme law of Ghana.
It is, of course, possible to find jurisdictions or constitutional systems in which a law declared as unconstitutional by a final court is still not automatically void. But what distinguishes those jurisdictions, such as the Netherlands and Switzerland, from ours is that, in those constitutional systems, the Court does not have the final authority to decide the fate of a law it has found to be unconstitutional.
In those systems, it is usually the Legislature or Parliament that retains the final say as to what to do about a law declared by a court to be unconstitutional.The Legislature may choose, in those jurisdictions, to retain the law despite the judicial declaration of unconstitutionality.
In other words, those jurisdictions follow the doctrine of parliamentary supremacy. That, however, is not the kind of constitutional system in force in Ghana. Under Ghana’s constitutional system, dating, at least, as far back as the 1969 Constitution, it is for the Supreme Court to declare a law unconstitutional and, the 1992 Constitution, like its predecessor constitutions, is emphatic that, once such a declaration has been made by the Court, the affected law is automatically void.
The view has been propounded in some quarters that an unconstitutional law may be voidable, but not necessarily void. This is a rather fanciful proposition. The concept of voidability is a concept known to contract law but completely unknown to constitutional law. In contract law, where the parties are deemed autonomous and self-interested and, therefore, best suited to protect their own interest, a party may, under certain circumstances, choose to be bound by a contract although the contract may contain a legal defect that would otherwise render it void and give the party the right to walk away from the contract.
In those circumstances, contract law doctrine leaves it to the affected party to decide for himself or herself whether to proceed with the contract or not.
It is obvious why such a doctrine or concept has absolutely no place in constitutional law—certainly not under the constitutional system and jurisprudence that operates in Ghana and in every other known common law jurisdiction.
Not every concept recognized in one branch of the law may be transferred or imported into other branches of the law. The concept of a voidable contract is one such concept that is limited in its application to the realm of contract law. At any rate, Article 1 of the Constitution speaks only of an unconstitutional law being void, not voidable.
And it is for good reason that the term voidable is not the term used in the Constitution—the contract law concept of voidability simply does not make sense in the constitutional context, definitely not in a constitutional system where the Constitution is the supreme law of the land.
The question remains as to when or at what point in time a law is deemed to be void once it has been declared unconstitutional. There are two possibilities. The first view, which is the settled view under Ghanaian constitutional jurisprudence, is that when a law is void for unconstitutionality it is “void ab initio”—that is to say, it is deemed to be void from the moment of its enactment, even before it is formally declared unconstitutional.
The second possibility is that, a law declared unconstitutional, though void, is void only from the moment it is declared unconstitutional. There is no third way. Thus, whether one applies the first or the second position, which is to say, whether an unconstitutional law is void ab initio or void with effect from the time it is declared unconstitutional, once it has been declared unconstitutional, it ceases, at the minimum, to have legal validity immediately and prospectively.
The proposition put forth by the Court in Abu Ramadan II, however, appears not to embrace either of these two possibilities. Instead, the Court appears to suggest that a law that has been found and declared unconstitutional may nonetheless continue, in some way, to have current and prospective validity—in other words, that such a law may still not be void.
That position is clearly erroneous and completely at odds with the doctrine of the Supremacy of the Constitution enshrined in Article 1 of the Constitution. If the Constitution is the supreme law of the land and the Supreme Court has the final authority to declare a law unconstitutional, then no law that has been so declared by the Court can co-exist with or under the Constitution. This much is trite law.
The Supreme Court in Abu Ramadan II appears to have been led to its untenable proposition by a concern that to rule that the NHI card, having been declared unconstitutional, ceases to be useable immediately (currently) would amount to a retroactive application of the declaration of unconstitutionality.
This is bizarre reasoning. In fact, whenever a court holds that an unconstitutional law is void ab initio, it is essentially applying the ruling of unconstitutionality back to the time the law was enacted. To say that, this amounts to a “retroactive” application of its ruling and is thus improper amounts to saying, in effect, that the very idea of an unconstitutional law being void ab initio is problematic.
But since when did this well-worn doctrine of void ab initio, which is deeply embedded in our constitutional jurisprudence, become problematic? To the contrary, to throw the doctrine of void ab initio into doubt, as the Court’s language does, creates real absurdity.
Are we going to continue to hold a person in prison after finding and declaring unconstitutional the law under which he was charged, prosecuted and convicted, on the theory that to apply the unconstitutional ruling “retroactively”—which is to say to hold that the law is void ab initio–is untenable because that person’s conviction was done in good faith under a law that had not been declared unconstitutional at the time?
The Court also appears to have been concerned that, saying that the unconstitutional law is void ab initio might raise doubts about the legality or constitutionality of past elections conducted and concluded on the basis of a voter register containing NHI registered voters or that it might cause manifest injustice to the affected voters.
But this concern, too, is totally unfounded. The doctrine of void ab initio has never been applied and is never applied to undo acts that have already been legally and practically concluded and which, therefore, no longer present a live legal controversy.
Thus, for example, there is no danger to the validity of any past election in which NHI cards were used by holding now that the use of NHI cards is unconstitutional and, therefore, void.
Elections that have been held and conclusively decided and settled, and pursuant to which a government has been lawfully and irreversibly installed, cannot legally or practically be undone by a subsequent finding or declaration that certain voters who may have voted in those elections were registered as voters using an unconstitutional form of identification. That matter simply does not arise after the fact.
The notion that applying the void ab initio doctrine in these circumstances might cause a “nuclear meltdown” (to borrow a phrase from another one of the Court’s past decisions infected with the same fallacy) is simply a red herring. For example, when the Supreme Court ruled that prisoners were entitled under the Constitution to be registered as voters and, thus, proceeded to declare as unconstitutional and void the existing law that denied prisoners the right to be registered to vote, no one could be heard to argue that such a declaration would call into question past elections that had wrongfully excluded prisoners from voting. That point was legally moot.
Prisoners would be duly entitled to be registered in voter registrations that were conducted after the ruling. Similarly, any question or doubt as to the validity of past elections arising out of a subsequent declaration that use of the NHI card is unconstitutional is simply moot as a matter of law. Indeed that question was never before the Court in the Abu Ramadan Case, because it simply would have had no legal legs to stand on.
The Court’s jurisdiction is properly reserved for deciding live and present legal controversies; not moot or dead issues. In any case, the Constitution is clear as to the timeframe or window within which presidential or parliamentary elections may be challenged in court, and that window had long closed irreversibly as of the time of Abu Ramadan I.
The impact on past elections of applying the void ab initio doctrine is, therefore, not a concern that should have detained the Court’s attention for even one moment.
At any rate, if the Court felt any unease, for whatever reason, in saying that the use of NHI cards was void ab initio, it could simply have resorted to the alternative doctrine of voidness by saying that the unconstitutionality ruling applied only to the contents of the voters’ register as from the time of the decision, including those that would be compiled and used (and thus to elections that would be held) after the declaration of unconstitutionality.
In other words, the unfounded fear or concern that seems to have detained the Court’s attention needlessly in Abu Ramadan II, causing it to make the untenable proposition it made, is easily and correctly addressed by saying that the declaration of the NHI card’s unconstitutionality would take effect from the date of the declaration of unconstitutionality.
In fact, that, in essence, is what the Court did when it offered those who had been previously registered using the NHI card the equitable remedy of a fresh opportunity to get registered currently using a constitutionally-compliant form of identification. Having offered all affected NHI-card registrants that just and sufficient remedial opportunity, there was no longer any manifest injustice that might be visited on such persons for the Court to be concerned with.
There was, therefore, absolutely no need for the Court to turn the Constitution and well-established constitutional doctrine on its head by suggesting that an unconstitutional law is not necessarily or automatically void.
Instructively, the question as to whether a declaration of unconstitutionality made the unconstitutional act automatically void or not did not arise in Abu Ramadan I. Perhaps the Court there assumed, reasonably, that the answer was obvious or else was clearly implied from its judgement written (again for a unanimous panel) by the Chief Justice. After all, Plaintiffs in Abu Ramadan I had prayed the Court specifically for a declaration that, having regard to article 42 of the Constitution, use of the NHI card as proof of qualification to register under CI 72 “is unconstitutional, void, and of no effect.”
Having granted that relief by declaring the use of the NHI card for voter registration purposes as unconstitutional, the Court arguably deemed it obvious (and thus unnecessary for it to repeat the point) that, the use of the card for voter registration purposes became instantly and prospectively void.
In fact, the judgment of the Chief Justice in Abu Ramadan I begins with a citation to Article 1(2) and a statement by the Court that, by virtue of “the doctrine of constitutional supremacy” embodied in article 2(1) (as well as article 130(1)), it is the Court’s duty “to determine the constitutionality of legislation and to declare as void any law which is found to be inconsistent or in conflict with any of its provisions.”
In light of these constitutionally incontestable statements in Abu Ramadan I, it is hard to understand why the Court in Abu Ramadan II strayed into uncharted waters with its needless and insupportable suggestion that an unconstitutional law or act may not be automatically void.
Having rightfully devised an appropriate equitable remedy for those voters affected by the unconstitutionality ruling, there was no further need or warrant for the Court to, in effect, jettison Article 1 of the Constitution and thereby shake the very foundation of the Constitution by disturbing the fundamental doctrine of the Supremacy of the Constitution.
The damage to the doctrine of the Supremacy of the Constitution as well as to the Court’s own authority under Article 2 and to the integrity of Ghanaian constitutional law and jurisprudence that would arise from the Court’s erroneous pronouncement to the effect that an unconstitutional law is not automatically void is so grave and untenable that that proposition cannot be allowed to stand.
(B) Is the Electoral Commission subject to Judicial Oversight and Orders in the Performance of Its Functions?
The second general issue of broader constitutional import that arises from the Abu Ramadan II judgement concerns the meaning of the independence of the Electoral Commission vis-à-vis the power of the Supreme Court (and of the superior courts generally) to enforce compliance with the Constitution and applicable laws.
In this portion of the judgment, too, the Abu Ramadan II Court speaks with equivocation. In one breath the Supreme Court flatly and rightfully rejects the contention of the Electoral Commission that the Constitution “forbids any control or direction of the 1st Defendant as to how to accomplish its work.”
The Court rightfully points out that “as a creature of Article 43, the Electoral Commission is subject to the Constitution; to deny that it is so subject is to misconstrue the nature of the independence bestowed on it in relation to our exclusive jurisdiction, which is critical to effectuating the supremacy of the law.” The Court continues: “The correct position is that the courts as constituted under the 1992 Constitution may intervene in acts of the First Defendant to ensure that it keeps it within the boundaries of the law and also give effect to the provision of the Constitution.”
This indeed is a correct statement of the constitutional position as it pertains to the meaning of the independence of the Electoral Commission. Yet, the Court appears, in another breath, to undercut the authority of this position. Specifically, in relation to the function of the Electoral Commission under article 45(a) “to compile the register of voters and revise it at such periods as may be determined by law,” the Court states that the Commission’s “function under article 45(a) is not subject to any other provision, therefore in performing that said function, we cannot make an order compelling the Commission to act in a particular manner.”
This last pronouncement is puzzling, because immediately following the listing of the Electoral Commission’s functions in article 45 is article 46, titled the “Independence of the Commission,” which states: “Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any other person or authority.”
How does this provision of article 46 square with assertion by the Abu Ramadan II Court that the Commission’s “function under article 45(a) is not subject to any other provision, therefore in performing that said function, we cannot make an order compelling the Commission to act in a particular manner”?
It is clear, pursuant to the provision of article 46 reproduced above, that while the Commission shall not be subject to the direction or control of any other person or authority in the performance of its function, that independence does not limit or disable the Supreme Court from exercising in relation to the Commission its foundational enforcement powers under article 2 of the Constitution.
Article 2 of the Constitution, titled “Enforcement of the Constitution,” opens the doors of the Supreme Court to any person who alleges that, “an enactment or anything contained in or done under the authority of any enactment or any act or omission of any person is inconsistent with or in contravention of a provision of this Constitution.”
If the Supreme Court, upon determining the matter, upholds the allegation of unconstitutionality, it is empowered under article 2 (2) to make a declaration to that effect and, further, to “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.”
It is clear from this provision of article 2(2) that the Constitution gives the Supreme Court a wide remit and scope to determine what kind of orders and directions may be appropriate to enforce a declaration of unconstitutionality. No part of the provisions pertaining to the Electoral Commission in the performance of its functions can be read to mean or suggest that the Commission is exempt from this broad enforcement mandate of the Supreme Court.
Once the Supreme Court has properly asserted jurisdiction over a matter involving alleged unconstitutionality on the part of the Electoral Commission and proceeded to declare the offending act or enactment of the Electoral Commission unconstitutional, it is for the Court, pursuant to article 2(2), to determine, in its own judgment, what orders or directions it considers “appropriate” to give effect to the declaration of unconstitutionality. Indeed, the broad reach of the Supreme Court’s remedial powers under article 2(2) is reaffirmed and extended to all the Superior Courts by article 126(4).
Read in light of articles 2(2) and 126(4), then, it is clear that the independence bestowed on the Electoral Commission under article 46 is subject to the power of the Supreme Court—and of the Superior Courts generally—to enforce compliance with the Constitution and with the courts’ orders. This indeed is as it should be.
To hold to the contrary would, again, upset the Supremacy of the Constitution and defeat the courts’ unique role in ensuring that all authorities established by law exercise their powers and perform their functions in obedience to and in compliance with the Constitution.
Where the Court in Abu Ramadan II appears to have misled itself is to have turned to article 45(a), expecting to find there a specific statement to the effect that, in the compilation of the voters register, the Electoral Commission would be “subject to” the authority of the courts. No such function-specific “subject to” language could be found in article 45(a) because such language is simply unnecessary.
What the Court was looking to find but could not find in article 45(a) is right there in article 46. Article 46, which covers all of the functions of the Electoral Commission at once, makes it clear that the Commission, in performing any one of those functions, is not subject to the control or direction of any other person or authority “except as provided for in this Constitution and in any other law not inconsistent with the Constitution.”
The above proviso or “exception clause” in article 46 means that, notwithstanding the independence bestowed on the Electoral Commission, the Commission may be subject to the direction of an authority as long as that authority derives its powers to do so from the Constitution or a constitutionally-compliant law.
Article 2(2) of the Constitution, which empowers the Supreme Court to “make such orders and give such directions as it may consider appropriate” to enforce a constitutional ruling, is the clearest example of the kind of provision that represents an exception to the independence bestowed on the Electoral Commission under article 46. As noted already, article 126(4) of the Constitution is to the same effect—and extends similar power to all of the Superior Courts.
Thus, for example, if the Supreme Court makes a declaration that the exclusion of prisoners from the voters roll is unconstitutional, the Court can, without offense to the independence of the Electoral Commission, make an order directing the Commission to make appropriate arrangements to register prisoners.
Similarly, where the Court has declared that the use of NHI cards for voter registration is unconstitutional, nothing in article 46 stops the Court from making an order or giving a direction compelling the Electoral Commission to take such steps as the Court deems appropriate in order to bring the voters register into compliance with the Constitution, such as by deleting or removing the names of NHI card registrants from the register.
Indeed, the Court itself, in rejecting as “plainly erroneous” the First Defendant’s contention that the Constitution “forbids any control or direction of the defendant as to how to accomplish its work,” notes that “article 46 itself recognizes that its [the Commission’s] independence may be derogated from either in the constitution or by any other law including but not limited to the instances referred to in regard to articles 48(1) and 49(1).”
The Court, however, seemed to have forgotten that, pursuant to article 46, it is its general, all-encompassing power under articles 2(2) and 126(4) that enables it to enforce fidelity to the Constitution on the part of all authorities and persons, including the independent bodies set up under the Constitution.
It is important to add that, exercising its powers in this manner, does not turn the Supreme Court or any other competent court into a supra or super Electoral Commission. The functions and powers bestowed on the Electoral Commission are solely for the Commission to perform and exercise; the courts may not take over those functions, as the Constitution has not appointed the courts to perform those functions.
Thus, for example, it is not for the Supreme Court or any court to arrogate to itself the task of compiling the voters register or demarcating constituencies. Those functions are exclusively for the Electoral Commission to undertake or perform.
However, where a competent court finds, in a given case, that the Electoral Commission, in performing any one of its functions or in exercising any of its powers, has acted inconsistently with or in contravention of the Constitution, that Court may order or direct the Commission to undo the unconstitutionality and bring its conduct in compliance with the Constitution.
That does not amount to judicial usurpation of the functions or powers of the Electoral Commission. If a court, and in the final analysis the Supreme Court, did not have the power to order or compel the Electoral Commission to take such action as the court deemed appropriate to correct a violation of law, the Electoral Commission would become a law unto itself.
Nothing in the notion of the independence of the Electoral Commission contemplates such an outcome. Indeed, it would be inconsistent with the notion of the Supremacy of the Constitution and offensive to the principles of rule of law and legality to have an Electoral Commission that could not be ordered by a competent court to do what was necessary to correct a constitutional (or statutory) violation.
The Reliefs and Orders in Abu Ramadan II
In contrast to the portions of the judgment in Abu Ramadan II where the Court discusses the issues of voidness and the independence of the Electoral Commission, the portion of the Abu Ramadan II judgment dealing with the reliefs and orders of the Court is reasonably clear and unproblematic.
The Court concludes that, “upon a true and proper interpretation of the article 45(a) of the Constitution, the mandate of the Electoral Commission to compile a register of voters implies a duty to compile a reasonably accurate and credible register.”
Immediately prior to making this ruling, the Court had stated, that “The continued presence [on the register of voters] of such names being derived from a constitutionally declared wrong offers sufficient proof of the extent of the inaccuracy of the current register of voters and can therefore be said to be unreasonable.” Simply put, the voters register cannot be said to be constitutionally compliant, as it is not reasonably accurate and credible, insofar as it continues to contain or include the names of persons who were registered using NHI cards. The Court affirms this conclusion in its reliefs (2) and (3) for the Plaintiff.
Following on these findings and conclusions of law, the Court proceeds to make two very specific orders: “(a) That the Electoral Commission takes steps immediately to delete or as is popularly known “clean” the current register of voters to comply with the provisions of the 1992 Constitution and applicable laws of Ghana”; and “(b) That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to this order (a) above be given the opportunity to register under the law.”
Wherein lies the confusion?
Rather than accept the specific reliefs granted and orders issued by the Court in Abu Ramadan II as finally settling the matter, some commentators have sought to read the specific reliefs and orders against the backdrop of the controversial general propositions that the Court had made in the “discussion” portions of its judgment and, in so doing, have arrived at a conclusion that essentially renders the granted reliefs and orders nugatory.
In effect, the argument goes, since the Court suggested generally, first, that an unconstitutional law may not be necessarily void and, second, that it cannot make an order compelling the Electoral Commission to act in a certain manner in compiling the register of voters, its final orders specifically instructing the Commission to take “steps immediately to delete” the offending names from the voters register “to comply with the Constitution and applicable laws of Ghana” and to give affected persons “the opportunity to register under the law” amount to nothing.
This is a bizarre argument. When Plaintiffs go to court with a case, they ask for or seek certain particular reliefs and orders from the court, the denial of which dooms their case and the grant of which upholds their claim. On the way to making the final orders, the Court may say a whole host of things, not all of which are necessary to decide the case or can be said to constitute the law or holding of the case.
Where certain general propositions or statements made by the Court in the “discussion” portion of the judgment seem inconsistent or at variance with the specific reliefs it grants and the orders it makes in the concluding “reliefs and orders” portion of the judgment, it is bizarre to read the opinions expressed in the “discussion” as trumping or negating the reliefs and orders the Court specifically grants and makes.
After all, it is through the reliefs it grants (or dismisses) and the orders it makes that the Court finally decides and settles the case before it. Furthermore, it is through the Orders that the Court addresses and directs the parties as to what their obligations are under the judgment. And it is a subsequent failure or refusal of a party to carry out or comply with an order addressed to it that could give rise to a citation for contempt.
In short, notwithstanding some of the statements made by the Supreme Court in its discussion in Abu Ramadan II, statements to which we have taken serious exception here as to their cogency and correctness as a matter of constitutional law, it is, ultimately, the reliefs granted and the orders made by the Court that conclusively resolved the matters presented before the Court in Abu Ramadan II.
And it is clear from those reliefs and orders that (i) the current voters register, insofar as it continues to include the names of persons who were registered using NHIS cards, is not reasonably credible or accurate and, thus, not constitutionally compliant; (ii) the Electoral Commission is duty bound to remove those names from the voters register in order to bring the register into compliance with the Constitution, and (iii) affected registered voters are entitled to, and must be allowed, a fresh opportunity to register using a constitutionally compliant form of ID.
One argument that has been proffered by those who suggest that the Court’s orders in Abu Ramadan II do not change the status quo is that, since the Court required the Electoral Commission to clean the register of voters to “comply with the provisions of the 1992 Constitution and applicable laws of Ghana,” the Commission cannot clean the register as ordered by the Court because there is no mechanism for it to do so under any existing law.
It is difficult to understand the import of this argument. The order of the Court commands the Commission to delete the offending names so that the resulting register would “comply with” the Constitution and applicable laws of Ghana. The order does not dictate a process or mechanism by which the Commission must proceed to do so.
But there is no reason or need for the order to do so. The order says, simply, that the Commission must “take steps immediately” to carry out the order.
The notion that no current or existing law gives the Commission the authority to delete names and, therefore, the Commission is disabled from carrying out the order, simply disregards the fact that the order of the Court, issued pursuant to the Court’s article 2 powers, needs no new or additional implementing legislation or legal instrument in order to be effective.
As an order made to enforce a constitutional ruling, it carries with it the authority of the Constitution. Thus if any existing law presumably prevents the Commission from giving effect to the order, then, that law, insofar as it frustrates obedience to the Constitution and the orders of the Court under its article 2 powers, simply cannot stand.
Deletion of the constitutionally offending names by the Commission, once done pursuant to the order of the Supreme Court (or any other competent superior court), is deletion in accordance with “due process of law”.
Another variation of the “applicable laws” argument says that, under the existing law, the only legally competent way for the Commission to “clean” the register–and, for that matter, the only lawful avenue opened to it to remove NHI registrants from the register of voters, notwithstanding the Court order–is through the process specified in Regulation 16 of CI 72, pursuant to which a member of the public may challenge or object to the inclusion of unqualified individuals—the so-called “exhibition” or “challenge” mechanism.
Interestingly, this argument was first made by the Commission in Abu Ramadan I when it sought to defeat judicial intervention on behalf the Plaintiffs by contending that “there is an avenue open to the public for challenging registration.”
In Abu Ramadan I, the Court flatly rejected this argument, describing it as “dangerous”. The Court explained that, “the challenge mechanism is the final window of opportunity for removing the names of those unscrupulous individuals who, in spite of the necessary due diligence, all possible human care and attention, have nonetheless managed to slip through the net, beat the system, so to speak, and fraudulently managed to have their names included as qualified individuals”.
In short, the challenge or exhibition mechanism laid out in CI 72 is not the only legally competent way to delete the offending names from the register of voters. This likely explains why the Court in Abu Ramadan III has asked the Commission to “clearly set out in writing, the steps and modalities that the Commission intends to take in order to ensure full compliance with the Court’s order” issued in Abu Ramadan II. In effect, whatever “steps and modalities” the Commission adopts that effectuate the order of the Supreme Court and do not meet with disapproval from the Court are legally competent.
It has also been suggested that, the Electoral Commission may not be able to delete or remove the names of those persons who were registered using NHI cards because, it is alleged, the Commission has no mechanism, in the current register, for tracking and identifying the affected persons or names. If true, this would represent a curious and serious administrative lapse or omission on the part of the Electoral Commission.
What, then, would the remedy be for such an administrative problem? Is an administrative lapse that renders compliance with a constitutional ruling administratively “impracticable” under the current internal processes of a body grounds for that body to evade its constitutional obligation, when doing so would mean the retention of an unconstitutional status quo?
To countenance such a proposition, and thus answer the above question in the affirmative, would be to countenance a subversion of the Supremacy of the Constitution in the name of administrative convenience.
If the Electoral Commission asserts that it is unable under its internal processes to carry out the order of the Supreme Court directing it to remove from the register of voters the offending names that render the register currently non-compliant with the Constitution, then the only constitutionally valid recourse left is for the Commission to compile a new register of voters that satisfies and comports with the Constitution.
Anything short of that would place the Electoral Commission above the Constitution and the Supreme Court.
By: Akoto Ampaw and H. Kwasi Prempeh
Akoto Ampaw is a legal practitioner based in Accra.
H. Kwasi Prempeh is a legal policy and rule of law and governance consultant based in Tema. He was, until recently, a Professor of Law at Seton Hall University School of Law, New Jersey, USA, where he taught constitutional law and comparative constitutional law, among other courses.