Two combined applications testing decisions of Ghana’s attorney general and related to the national elections scheduled for 7 December 2020, have been decided by that country’s Supreme Court. Determined to clean up Ghana’s voter register, the AG gazetted new regulations. Among them was the decision not to allow the old (current) voter identification cards to be used to identify people wanting to register as voters on the new, updated list. The other contentious decision was that birth certificates would also not be accepted to prove identity for that purpose.
The decision in the case had already been announced by the court a few weeks ago, with its reasons deferred until now. Applicants in the two matters had asked that the gazetted non-inclusion of current voter identification cards and of birth certificates should be declared unconstitutional.
All seven judges who heard the matter agreed to reject this proposition.
The case was brought against the backdrop of preparations for the presidential and parliamentary elections due in December 2020. As part of these preparations the Attorney General gave notice that new regulations would be gazetted. When they appeared, however, the regulations excluded both the current voter identity card and birth certificates as a means to identify people who applied to register as voters.
That led one of Ghana’s parties, the National Democratic Party, to begin litigation against the AG and the electoral commission. The NDP said that the constitution allowed the electoral commission to ‘compile’ a voter register ‘only once’. After that periodic ‘revisions’ would be allowed, but the commission did not have the power to ‘prepare a fresh register of voters’ for the December 2020 elections.
A second application was brought by Mark Takyi-Banson in which he also sought a Supreme Court declaration that the commission did not have the power to compile ‘a new register of voters’. Further, he asked for a declaration that the AG violated the constitution by excluding birth certificates as a means of identification for voter registration.
In their response to the claims, the AG and the commission said that the commission had the power to compile a new register of voters. ‘The authority to compile a new register is not a non-off power, but it a power that may be exercised periodically’, as the commission believed was necessary.
This argument was accepted by the court, with the judges saying it was ‘clear’ that the commission had the power to compile a new register ‘from time to time as occasion requires and in accordance with the law.’
In any event, this was not the first time that a completely new register of voters had been compiled since the 1992 constitution came into effect: a new voters’ roll had been put together in 2012.
What of the decision to exclude current voter ID cards and birth certificates as proof of identity for inclusion in the new voters’ registry? According to the plaintiffs, excluding the current voter ID card was a ‘violation of the right to vote’. Once someone has been registered as a voter and had been given a voter identification card, they argued, the commission had no constitutional right to introduce a new regulation that did not include that card as one of the documents to be used to identify someone who wants to register as a voter.
For the AG and the commission however it was all about establishing a credible and reliable register, along with structures, systems and processes ‘that would guard, protect and preserve the sanctity and credibility of the right to vote.’
In addition, the commission said there were legitimate reasons for not including the current voter identification card as a document that could be used as identification of a person who applies to register as a voter. The commission argued that the processes behind the issuing of the current voter identification card ‘were fundamentally flawed’ and thus in violation of the right to vote.
According to the court, the commission had necessarily to make certain decisions and choices about how to ‘guarantee the right of all Ghanaian citizens … to vote, whilst keeping out those not qualified to vote.’
Serious questions had been raised about the legitimacy of the processes that led to the issuing of the current voter identification cards. One problem was that the 1995 regulations did not require any ID document to be provided by someone who wanted to register as a voter.
Ever since then, a series of regulations had been made that tried to correct this anomaly, as well as a court action aimed at finding the way forward. In response, the Supreme Court had in an earlier case ordered that the commission should take steps ‘immediately to delete or as popularly known “clean” the current register of voters to comply with the Constitution’.
However, the commission could not carry out a ‘thorough cleaning’ of the voters register in 2016, and there were still serious questions about the legitimacy of the system that had produced the current voter cards and the register. The court said it was satisfied that the commission, in excluding the current cards, had been guided by a legitimate purpose: the need to establish a credible register that would protect the right to vote.
The second complaint was about the exclusion of a birth certificate as a document that would allow registration as a voter.
As a previous Chief Justice had said, in relation to a similar dispute, ‘It identifies the holder by the name … alright, but makes no disclosure about the holder’s identification and thus fails to meet the citizenship restriction test.’
The present court said it agreed: ‘It is little wonder that a birth certificate has never been included as one of the documents to be used as evidence of identification by a person who applies to be registered as a voter,’ and were it to be allowed, it would be a ‘retrograde step’.
As it stands now, there are three ways to establish the ID of a would-be voter: by passport or national identification card, or, under a ‘guarantor system’, someone may be identified by two already registered voters.