New register: Reasons why Supreme Court dismissed NDC’s case

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The existing voter identification card and birth certificates cannot be used as proof of identity to register in the upcoming voter registration exercise following the Supreme Court’s dismissal of the National Democratic Congress’ (NDC) legal challenge.

A private citizen, Mark Takyi-Banson, also challenged the Electoral Commission’s (EC) decision to compile an entirely new register and exclude the existing voter ID.

But the apex court stressed that the EC was exercising its discretion in the discharge of its constitutional mandate in cleaning the voters register and “should be deemed as authorised to be acting within the law and the regulations therein, and cannot be faulted even if it is considered that there is a more efficient mode or method available.”

The Supreme Court judges also recalled the landmark Abu Ramadan case when the EC was directed to clean out names registered with the National Health Insurance Scheme card from the electoral roll.

It held that the EC “in performing their mandate under Article 45 of the Constitution 1992 cannot be compelled to act in a particular manner unless there is clear evidence that they have acted unconstitutionally.”

Beyond this, the Supreme Court reminded that it could not make decisions for a constitutional body like the EC which was “exercising the discretion conferred on it by the Constitution unless they act contrary to it.”

The court further emphasised that it was necessary to stay “within its proper limits in order to give effect to the supremacy of the law.”

Three consequential orders were given on the case during proceedings.

The court had Articles 42 and 45 of the constitution as the basis for its decision as well as noting that all actions pending against the EC on the voter registration in any court are to be halted and considered settled by its judgement.

Find below the Supreme Court’s ruling

IN THE SUPERIOR COURT OF JUDICATURE, THE SUPREME COURT (CIVIL DIVISION) SITTING IN ACCRA ON THURSDAY THE 25TH DAY OF JUNE, 2020.

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Parties:-
Johnson Asiedu Nketia representing the Plaintiff in JI/9/2020 as General Secretary.
1st Defendant absent in J1/9/2020.

Samuel Tettey representing the 2nd Defendant in J1/9/2020 and 1st Defendant in J1/12/2020.
Plaintiff in J1/12/2020 present.

Counsel
Godwin Tamakloe for the Plaintiff in J1/9/2020 with him Seth Nyaaba.

Godfred Yeboah Dame, Deputy Attorney General for the 1st Defendant in J1/9/2020 and 2nd Defendant in J1/12/2020 with him Clarence Kuwornu, Chief State Attorney.
Justin Amenuvor for the 2nd Defendant in J1/9/2020 and 1st Defendant in J1/12/2020 with him Hope Agboado.

Cosmas Anpengnuo for the Plaintiff in J1/12/2020.

BY COURT:
As per the attached orders, the decision of the Court is unanimous.

SUIT NO. J1/9/2020
By a unanimous decision the following orders are hereby made:-
RELIEF ONE

Already struck out as withdrawn.

RELIEF TWO

This relief is granted subject to the fact that all eligible voters must make themselves available for registration as directed by the Electoral Commission pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C. I. 126.

RELIEF THREE

This relief is granted subject to the Voter Registration card issued to an eligible voter under the prevailing constitutional Instrument C. I. 126.

RELIEF FOUR
Dismissed

RELIEF FIVE
Dismissed

RELIEF SIX
Is dismissed

We however reiterate the decision of this court in Abu Ramadan & Mimako (No.2) v Electoral Commission & Attorney-General (No.2) [2015-2016] 1 SCGLR 1 where the court per Benin JSC stated:

“If the law provides for alternative ways of performing the task, the discretion is vested in the actor in deciding within the limits imposed by article 296 of the Constitution as to which one of them would best suit the task on hand.”

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The court continued by re-emphasising the fact that the Electoral Commission in exercising their discretion in the discharge of their constitutional mandate in cleaning the voters’ Register should be deemed as authorised to be acting within the law and the regulations therein, and cannot be faulted even if it is considered that there is a more efficient mode or method available.

RELIEF SEVEN
It is dismissed subject to the provisions contained in C. I. 126.

RELIEF EIGHT
It is refused and we also reiterate our decision in Abu Ramadan (No.2) supra where this court held that the Electoral Commission in performing their mandate under Article 45 of the Constitution 1992 cannot be compelled to act in a particular manner unless there is clear evidence that they have acted unconstitutionally.

SUIT NO. J1/12/2020

RELIEF ONE
Is dismissed

RELIEF TWO
Is dismissed

RELIEF THREE
Is dismissed and we reiterate this court’s decision in Abu Ramadan (No.2) already referred to supra in Suit

No. J1/9/2020.

RELIEF FOUR
Is dismissed and we reiterate our position in Abu Ramadan (No. 2) supra.

RELIEF FIVE
Is dismissed

We reiterate this court’s decision in Abu Ramadan (No.2) where the court stated that:-
“In the exercise of its original jurisdiction, it was not permissible for it to substitute its own decisions for that of the body of persons exercising the discretion conferred on it by the Constitution unless they act contrary to it. The court further emphasized that, that was necessary to keep the court itself within its proper limits in order to give effect to the supremacy of the law.”

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RELIEF SIX
Is dismissed as same has already been dealt with in relief three supra.

CONSEQUENTIAL ORDERS
In the exercise of the powers conferred on us under Article 2 (2) of the Constitution 1992, we hereby make the following orders:-

1. It is hereby ordered that all stakeholders and the Ghanaian eligible voters are directed to comply with Articles 42 and 45 of the Constitution and the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 C.I. 126 as regulated by the Electoral Commission i.e. 2nd Defendants in Suit No. J1/9/2020 and 1st Defendants in J1/12/2020 in carrying out their constitutional mandate in the compilation of a new voters register.

2. By this decision, the Electoral Commission i.e. 2nd Defendants in Suit No. J1/9/2020 and 1st Defendants in Suit No. J1/12/2020 are hereby directed to commence the compilation of the voter registration exercise as scheduled.

3. By these decisions and, by virtue of Article 130 (2) of the Constitution any court in which same or similar action is pending or yet to be filed shall apply the decision rendered by the Supreme Court in these consolidated suits.

Reasons will be filed on or before the 15th of July 2020.

SGD. ANIN YEBOAH
CHIEF JUSTICE
SGD. J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
SGD. P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
SGD. N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
SGD. S. K. MARFUL-SAU
JUSTICE OF THE SUPREME COURT
SGD. N. A. AMEGATCHER
JUSTICE OF THE SUPREME COURT
SGD. PROF. N. A. KOTEY
JUSTICE OF THE SUPREME COURT

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