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Today, we dedicate our lead story to an interesting article written by Samson Lardy Anyenini, private legal practitioner, on the controversy surrounding the Supreme Court’s verdict on NHI card registrants. 

By Samson Lardy ANYENINI, Accra

Today is June 14, exactly a month since the Abu Ramadan No.2 Judgement was delivered. 

It has suffered arguably the most public controversy regarding its exact meaning and enjoinment.

 It is only some 26 weeks to the elections. What happened to the plans to cite the EC for contempt or suggestions for a return to the Supreme Court for clarification of its orders? 

We certainly must not be stuck, and must do something to pre-empt what we agree are the potential problems if the judgment is not enforced or the orders implemented. 

And by enforcement or implementation, I mean also that in a fashion that leaves little or no further controversy between the EC and the NPP and NDC especially. 

In fact, Dr Charles Wereko-Brobby, a well-meaning senior citizen concerned about and desiring peaceful credible elections, actually consulted my firm to represent him seek closure to the impasse, if the parties will not act until the day of trouble. 

Unfortunately, and for technical legal reasons, we had to advise that he rather encourages one of the parties to the suit to do so. 

This is chiefly because the Supreme Court has shown by its somewhat problematic ruling in the 2013 Bernard Mornah v AG and Abu Ramadan (Applicant) case that its doors are not open to non-parties to the original suit in such situations. So, we can only look to either party to initiate the right steps to bring closure to this matter before November 7. 

In this rather brief article, I repeat my suggestion against the original announced intention to cite the EC boss or all seven commissioners for contempt over the disagreement about the correct interpretation of the judgement and/or the exact requirements of the orders of the court. I demonstrate that a contempt application will fail, and also that an application for clarification might fail. I conclude firmly that the way to go is either [1] a mutually agreed compromised position as I suggested in my earlier article or [2] an application for further directions on how exactly to implement the orders. 

Justice Dotse did not clarify 

I start by repeating my known view that you are very wrong if you thought the learned Justice Jones Dotse said anything new and so brought any clarity to bear on their decision after he spoke publicly on the matter. I say again that he simply repeated what was very well known from the judgement. The clarity needed principally is not whether they ordered deletion of “undesirable elements”, especially NHI card registrants, but whether the deletions ought to be initiated suo motu (on its own – the EC) with or without reference to C.I. 91 by way of reliance on the known complaints/challenge procedure. In other words, the disagreement had eventually come to HOW to go about the deletions. The Honourable Justice reiterated the obvious WHO/WHAT to delete and never the HOW.  I am convinced he would have declined an answer if the journalist had asked about the procedure to be adopted for the deletion. 

The argument in favour of automatic deletion of NHI card registrants is for the EC to delete those names because it knows this category, and then advertise for those affected to offer themselves to be re-registered using identification documents that indicate they are Ghanaians as required by article 42. 

The opposition’s main contention is that such will be against the rules of natural justice since those deleted would not have been given a hearing first, and that same has the potential to disenfranchise the category.

I have, for good reasons, declined to state an emphatic position on the seeming obvious difficulties particularly regarding the latter’s stance if a purely common sense interpretation of the judgement is to be sought, and against the court’s declaration of unconstitutionality of the use of NHI cards for the purpose in the 2014 judgement. This is partly influenced by the court’s rejection in 2014, a reliance on the complaint/challenge mechanism as a means of cleaning the register of undesirable elements, and describing the mechanism as “mediocre”, prone to “chaos” and “anarchy.” 

Why contempt will fail   

I have suggested that it will be very difficult, if not impossible, for contempt to succeed because contempt is quasi criminal, and the Plaintiffs (Abu and Evans) cannot discharge the requisite burden of proving beyond reasonable doubt that the EC’s understanding of the decision is deliberate wrongdoing or wilful disobedience of clear unambiguous orders of the court. This is because the court, in fact, said somewhere in the judgement that: “The legitimate way of treating them [NHI card registrants] is to have them deleted by means of processes established under the law…”  The EC insists the only known established process under law is the complaint/challenge mechanism under C.I. 91. But will any such disobedience, if proven, constitute contempt or High Crime and how is article 2(5) of the Constitution to be activated to convict for which the guilty party will be liable for up to 10 years in jail, and thereafter disqualified from an elective office or for appointment to any public office for 10 years?

Why clarity will most likely fail 

“... I would have thought that in those cases, where a party’s only complaint is that it finds an order or a decision incomprehensible, unless the rules of court expressly prohibits, and I know not of any such rule, that the proper procedure would be to seek clarification or directions from the court which issued the order or decision complained of, by invoking its inherent jurisdiction.”  This is what the same Supreme Court said through Her Ladyship the Chief Justice in 2011 in Multichoice Gh. Ltd. vrs The Commissioner, IRS.  

Authority abound for seeking clarity of a judgement or orders, but what is being sought to be clarified ought to be obvious on the record. So who said this judgement is unclear, and which portion of the orders will a party assert to be ambiguous, confusing or unclear to warrant an invitation to the court to clarify? The parties’ disagreement may well be self-inflicted and such cannot constitute grounds for purposes of application for clarification.

Why further directions is the way forward  

It is the practice, and it is also clear from the Multichoice Case that further directions is the other route available in the present circumstances. In such an application, the party will simply be asking the court “HOW do I go about carrying out or implementing your orders?” Loosely speaking, it is a matter of seeking certainty or double assurance to avoid doing or failing to do what the court did not exactly require or required. Unlike the clarification route, this approach is rarely challenged/opposed by the other party. It cannot be gainsaid that this is an easier, non-confrontational path to achieving the ultimate: clarity.

Compromise

Is it not possible also for the parties to come together to mutually agree by making the necessary compromises on the HOW, and seek the blessing of the court for same, and to proceed smoothly and quickly to implement the orders?

May the parties find wisdom to resolve their differences in a fashion that does not throw the elections calendar out of gear, and/or work to further polarise the country to disturb the peace. The court, having made a finding of fact that the register is incontrovertibly bloated and not “reasonably accurate or credible”, the disagreements ought to be resolved in a manner that does bring questions to the validity of the results, or give room to a bad loser to contest the outcome of the elections on the basis of non-compliance or breach of the orders of the court for a “reasonably accurate or credible” register for the 2016 presidential and parliamentary elections.

The author is an attorney @ law