WHEN ‘VOID’ DOESN’T MEAN EXACTLY VOID: THE RAMADAN-SCOGH ROMANCE

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Since the Supreme Court of Ghana (Court or SCOGH) gave its decision in the 2016 Ramadan case on the fate of names that entered the voters register, there has been a huge disagreement over exactly what the Court ordered the Electoral Commission (EC) to do. In this short article, I trace the journey of the NHIS names in the register from 2012, through the 2014 Ramadan case to now. I conclude that the Court did not order the EC to clean the register in any specific manner.

2014 Ramadan

In 2014, the Plaintiffs in this 2016 case went to SCOGH to seek an answer to the question whether the use of the NHI card as provided under regulation 1 (3) (d) of C.I. 72, as proof of qualification to register, is inconsistent with Article 42 of the 1992 Constitution. In other words, they sought to challenge EC’s decision to register voters using NHIS cards.

The Plaintiffs’ reason for the challenge was as follows: (1) by Article 42 of the Constitution, voting in public elections or referenda is reserved for Ghanaian nationals only; (2) an NHIS card does not prove its holder’s nationality at all (in fact, a non-national, too, may hold an NHIS card); and, therefore, (3) the EC’s use of NHIS cards as one of the tools for determining who is qualified to be registered to vote violated Article 42.

Indeed, the Supreme Court agreed with the Plaintiffs, even amidst vehement denial by the EC that the NHIS card (and other cards) were for purposes of determining nationality. Accordingly, the Court declared the law, Regulation 1(3)(d) of CI 72, unconstitutional.

No NHIS Cleaning

Having declared the said law unconstitutional, one would, naturally, expect the EC to devise a way of deleting the names of persons who registered, at least, using the NHIS card. In fact, a committee established by the EC itself seemed to have this in mind when it concluded that the voter register was not ‘clean.’ That notwithstanding, it appears, the EC has no intention of carrying out such deletions; at least, not in the manner that the Plaintiffs and their supporters want.

Exhibition

In the meantime, the EC has devised its own method for cleaning the voters register. The EC refers to this method as ‘exhibition’. ‘Exhibition’ entails an invitation to the public to help the EC delete names of persons who ought not be on the register but are on the register. Perhaps, this is pursuant to the the EC’s ardent belief that the “responsibility of having a clean and credible register is the shared responsibility of all citizens of Ghana.” However, the criteria for deletion under the ‘exhibition’ exercise does not allow a name to be deleted on the sole grounds that the flew on to the register on the back of an NHIS card.

Further, the exhibition entails petitioning the District Registration Review Committee (DRRC). By law, the EC may not, by and of itself, delete a person’s name from the register without an order from the DRRC to do so. The combined effect of the EC’s methodology, therefore, is that the NHIS names will remain on the register even after the exhibition.

2016 Ramadan

Clearly, we do not expect the Plaintiffs and, of course, their supporters to be enthused by this methodology. So early this year, Ramadan and his friend returned to the Court. This time round, they asked the court to, among others, either (a) set aside the entire voters register as void; or in the alternative (b) make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” Of course, by ‘unqualified persons’, the Plaintiff have in mind, firmly, the NHIS names on the register.

The Issue

It is pretty obvious that relief (a) falls squarely within the power of the Court. However, relief (b), which is very detailed, appears to seek to direct the EC as to how to perform its day-to-day functions in a particular manner. Lest we forget, the EC’s independence is guaranteed under the 1992 Constitution. To grant relief (b), therefore, the Court must first answer a fundamental jurisdictional question. The question, as the parties to the case themselves put it in issue (5), is:

“Whether the court has jurisdiction and authority to make orders compelling 1st defendant [EC] to discharge its functions in a particular manner.”

The court began answering this question by reiterating its decision in the 2014 Case. As already mentioned, the Court, in that case, held that the use of NHIS cards as a way of determining a person’s qualification to be registered to vote is unconstitutional.

‘Void’ not Exactly Void

Generally, an act is unconstitutional if it is found to be inconsistent with any provision of the constitution under which it is purported to be done. According to our Constitution, such an act, “to the extent of the inconsistency [is] void.” Therefore, by the very provision of the Constitution, every act which is unconstitutional is also void – void ab initio. The legal meaning of ‘void’ is ineffectual, nugatory, having no legal force, no binding force. Its effect is that the relevant act is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever.

Going by this reasoning (and the Plaintiffs did argue so), it follows that persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. That is it.

Indeed, the Court addressed this issues. However, the Court seems to have a slightly different view from the above analysis on the effect of a void act. The court speaking through Gbadegbe, JSC, had this to say:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. 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 [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an unconstitutional act is necessarily void. In fact, this case may be the authority for saying that an act which is done in good faith, though subsequently declared unconstitutional, is not void automatically. At this point, I must say, we all must begin to develop some humongous love for interpretation. For this is exactly where the Plaintiffs’ end begins.

To Control or not to Control

The Court then turned to the issue in relation to its power of the Court to grant the plaintiffs’ detailed relief. The relief turns on what the Court thinks it can do in the life of an independent constitutional body (like the EC). In this regard, the court opined through Gbadegbe, JSC, as follows:

“A careful scrutiny of the constitution reveals that its function under article 45(a) is not subject to any other provision, therefore in performing the said function, we cannot make an order compelling the Commission to act in a particular manner.”

Benin JSC (who wrote a separate concurring opinion) confirmed this position. He began his confirmation by, first, counter-accusing the Plaintiffs. He said:

“The plaintiffs have not told this court that the 1st defendant has taken any step contrary to law, nor have they been accused of breaching its discretionary power.”

Then, he concluded just like his brother, Gbadegbe, JSC:

“In the absence of such breaches, the court has no power to compel or even to direct the 1st defendant as to how to exercise its constitutional mandate to produce a credible register.”

Accordingly, the court held unanimously that “the result is that issue (5) receives an answer in the negative.”

The Exact Order

Base on this, the Court ordered 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.”

Effect of Order

The Court having held that it cannot direct the EC as to how to produce a credible register, may one still say, and honestly so, that the Court has ordered the EC to delete from the voters’ register the names of persons who registered with the NHIS card? Would such an order not amount to the Court controlling the EC, something it has, for good or bad, vowed not to do?

I am persuaded, forcefully, by the school of thought that suggests that the Court’s orders in the Ramadan 2016 does not include an order directed at the EC to remove, delete or clean the register of names that entered it on the back of NHIS cards. And in case you doubt this position, just see what Benin, JSC, had to say to on the Plaintiffs’ preferred methodology for the validation of the register:

“However efficacious the [Plaintiff’s] system of validation may be, even the 1st defendant cannot employ it unless it is sanctioned by the law or regulations. That is the more reason why such issues should not be brought before a court without the legal basis.”

Perhaps! Maybe, perhaps, had SCOGH given ‘void’ its natural meaning and effect, we would be at a place other than here.

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