<<Print>>

After the Supreme Court ruling on May 5, 2016 there have been varied interpretations to the Supreme Court’s declarations with the plaintiffs and the Electoral Commission (EC) interpreting it differently.

In 2014, the court ruled that that it was illegal for the EC to register persons with NHIS cards. The ruling pushed Ramadan, a former Youth Organiser of the CPP, and Evans Nimako, an activist of the New Patriotic Party to petition the Supreme Court to declare the current register voter unconstitutional, null and void, and to direct the EC to delete names of all persons who registered with NHIS card as a means of identification.

On Tuesday, July 05, 2016, the Supreme Court ordered the EC to immediately delete from the register names of the 56,739 persons who registered with National Health Insurance cards.

The court also ordered the Commission to delete persons whose names were not submitted to the Supreme Court but who registered with the NHIS cards.

 

Below is a full statement of the

PLAINTIFFS’ WRITTEN SUBMISSIONS ON 1ST DEFENDANT’S LIST OF NHIS REGISTRANTS AND STEPS OR MODALITIES THAT THE 1ST DEFENDANT INTENDS TO TAKE IN ORDER TO ENSURE COMPLIANCE WITH THE COURT’ ORDER MADE IN THE JUDGMENT OF 5TH MAY 2016 PURSUANT TO THE ORDER OF THIS COURT DATED 30TH JUNE 2016.

1.On the 5th day of May, 2016, this Honourable Court delivered judgment in the instant action and made the following declarations and orders:

1.That upon a true and proper interpretation of article 45 (a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate and credible register.

2.A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible.

3.A declaration that, the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible.

4.Reliefs 4(a) and (b) are dismissed in their entirety.

In the exercise of the powers conferred on us under article 2 (2) of the constitution, we make the following 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,

b.That any person whose name is deleted from the register of voters of the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law.

2.Respectfully, after the delivery of the judgment, there was considerable disputation as to the clear meaning and import of the orders of the Court. Even before the “Abu Ramadan II” case, the 1st defendant, in reaction to the judgment of this Honourable Court in the “Abu Ramadan I” case, through its PRO, Christian Owusu Parry, on Tuesday, 5th August, 2014, defended its register on Citi FM as “credible and genuine” and contained “no anomalies and further that all names on the register had been identified and removed”.  

Again on 30th December 2015, in replying to a call by the New Patriotic party (NPP) for the deletion of NIHS registrants the 1st defendant stated  in a press release through its Chairperson, Mrs. Charlotte Osei  that:

“In the Abu Ramadan case, the Supreme Court that the use of NHIA cards in their current form, was insufficient as proof of citizenship and consequently, the Electoral Commission (EC) was directed to stop accepting NHIA cards as proof of citizenship for voter registration. 

Nowhere in the ruling did the Supreme Court nullify all registration by voters who presented NHIA cards as proof of citizenship. The Court, in the course of proceedings declined the plaintiffs’ request to cancel all such registrations”.  (see Exhibit “ABU 7” in Abu Ramadan II  action).

3.In respect of the judgment of this Court in the instant action, that is Abu Ramadan II, there have been several misinterpretations, including that by the Deputy Chairperson of 1st defendant, Ms. Georgina Opoku Amankwaa, who stated in a press release dated Thursday, 19th May 2016 that the 1st defendant had no intention of deleting the names of voters who registered with NHIS cards as proof of qualification, from the register of voters, since the judgment did not require such deletion. (See Exhibit “OA1”, annexed to the affidavit verifying the facts)

4.On 14th June 2016, Counsel for plaintiffs filed an application for clarification and further directions in respect of the judgment of this Court, dated 5th May, 2016.  On 23rd June 2016, following submissions by Counsel, the Court ordered the 1st defendant to file in the registry of the Court, on or before the 29th day of June, 2016, a list of all NHIS registrants in the register of voters and also clearly set out in writing the steps it intended to take to delete or as its popularly known ‘clean’ the current register of voters, in order to ensure compliance with the Court’s order made in its judgment of 5th May 2016. 

The suit was adjourned to 30th day of June, 2016.  In purported compliance with the orders of the Court, the 1st defendant, indeed, filed a list of NHIS registrants and steps it intended to take to delete or ‘clean’ the current register of voters in the Court’s registry on 29/06/16, and 1st & 2nd plaintiffs lawyers were served with the process on 30/06/16 at 11:30am.

5.On 30th June 2016, Counsel for 1st defendant, the EC, informed the Court at the hearing of the matter that it had filed the full list of all persons who registered with the NHIS card.  Lawyer for 1st & 2nd plaintiffs  raised objections to the list as presented, and consequent upon that, the Court ordered the plaintiffs’ to file their written submissions on the objections raised, by Monday, 5th day of July, 2016. These written submissions are thus filed in compliance with the Court’s orders.

6.My lords, it is our respectful submission, for the reasons that we shall advance hereunder, that the purported list of NHIS registrants filed by 1st defendant on 29th June 2016 is neither accurate nor credible, of doubtful integrity, riddled with manifest defects, contradictions and inconsistencies, and, in the event, is nothing more than a fictitious list manufactured and conjured out of nothing, simply in a purported attempt to meet the orders of this Court and mislead the Honourable Justices of this Court.

To this extent, the list is a false one and an acceptance of same by this Honourable Court will leave the current register of voters in a state which is not reasonably accurate and credible and thus, not compliant with the Constitution, 1992 and other applicable laws.  This is because there will still remain on the register of voters persons who have not established qualification to be registered. The true result of what the 1st defendant has, therefore, done, if accepted by the Court, is to defeat the effect, essence and purport of the judgment of this Honourable Court, dated 5th May, 2016.

7.Firstly, the 1st defendant indicated, in the list filed by it, the NHIS numbers of the various persons mentioned therein who purportedly registered with NHIS cards.  Surprisingly, however, in the same list filed by 1st defendant, the Court will notice that in districts in  Ashanti Region there are 218 instances where there is no indication whatsoever of the NHIS card numbers of persons who are purported to have used NHIS cards to register, and the column provided for the NHIS numbers is completely blank. (see Exhibit OA7 annexed  to the affidavit in verification of the facts).

8. This revelation without more badly exposes the 1st defendant as to the genuineness and or authenticity of the list presented to this Court. It lends itself to no other interpretation than that of a list procured out of conjecture. The 1st Defendant has provided no explanation for the astonishing lapse in the processes it has filed and we respectfully submit that it is too late in the day when it has been exposed, to attempt by way of an afterthought, to rationalize away this defect and omission.

9.Secondly, each of the NHIS cards used for registration in 2012  has eight (8) digits. (see Exhibit “OA6”annexed to the affidavit verifying the facts)    Shockingly, the NHIS numbers of the list of persons provided by 1st defendant have different and varying digits.  Some less than eight (8) digits and others more than eight digits (4), others (3), others are nine (9) and even in some cases twelve (12)!   (See Exhibits “OA 7A - OA7J” annexed to the affidavit verifying the facts)

10.Furthermore, your lordships will notice that some of the numbers 1st defendant presented to this Court are in fact passport numbers commencing with the letter.  (See Exhibit “OA 7 D” annexed to the affidavit verifying the facts).

11.Again, in some instances on the list, different individuals have surprisingly the same NHIS numbers by their names.  (See Exhibits “OA7C”, “OA7D”, OA7E, OA7F, OA7H and OA7 J annexed to the affidavit verifying the facts).  

11A.The 1st defendant has also provided a chunk of alphanumeric IDs purpoted to be NIHIs cards.  It has however clear from the sequence of some of the number that that they are passport numbers and not NHIS membership ID numbers.   

It is our contention that if 1st defendant had trained its registration officers, to log in NHIS  card numbers which is manifest on the face of the card, it would have been faced with these erros.

12.These contradictions and inconsistencies in the digits expose as  false, manufactured and of no credibility whatsoever, the list filed by 1st defendant.  Again, no explanation has been proffered by  1st defendant in the processes it has  for this gross anomaly and defect.

13.Furthermore, the list has 82 districts out of 216, where not a single person registered using NHIS card, such as Bekwai, Ejisu Juabeng and Offinso South in Ashanti region, Dormaa West and Jaman North in Brong Ahafo Region, Lower Manya Krobo, Akuapem North and Atiwa in the Eastern Region, Bawku, Bongo, Builsa South , Pusiga in the Upper East region This simply is unbelievable. (See Exhibit “OA7 K”,  annexed to the affidavit verifying the facts). Again in each of eight (8) districts, namely Mpohor District, Gushegu District, Sawla Tuna Kalba, Birim Central , Sekyere South Ashanti, Asante Akyem Central and the Asokwa District, only one person is purported to have registered using the NHIS card.  (See Exhibit “OA7 L”, annexed to the affidavit verifying the facts).

14.Quite apart from the manifest incredulity of this information, it is the case of Plaintiffs that they can, in fact, contradict the list of 1st defendant as a complete fabrication on the part of the 1st defendant as plaintiffs know of persons who registered in some of those districts using NHIS cards in 2012 but are not captured in the list produced by the 1st defendant, such as Nicholas  Boadi, with NHIS Card No. 52945312 and   Christian Adu Boahen of Oforikrom Constituency, with NHIS Card No. 55723690.     

We note, with respect, that this Court has suggested that if plaintiffs are aware of this serious anomaly in the 1st defendant’s list, they should assist the 1st defendant by providing it with a list of such persons, since the exercise is a shared responsibility.  

15.With all due respect to your lordships, even if there is, generally, a shared responsibility in this exercise, the 1st defendant, as this Court has correctly asserted has the exclusive custody of the list of voters.  Accordingly, when 1st defendant appears before this august Court and confidently declares that it has furnished the Court with the full list of all persons that registered using the NHIS card, and it is demonstrated that declaration is a bald untruth, there is no shared responsibility, and 1st defendant must stand or fall on its declaration.  

Indeed, the purpose of plaintiffs’ assertion is to demonstrate that the list produced by the 1st defendant is a fictitious and concocted one of doubtful origin, and was so presented to the Court only to create an impression of meeting the orders of the Court, and with no belief in its accuracy and/or reliability. It is pertinent to emphasize that the 1st defendant, who is in exclusive custody of the relevant forms, has not, following the orders of this Court, extended any invitation to persons who registered with the NHIS cards to assist them in the compilation of the list.

At all material times, the 1st defendant has insisted in this Court that it has the capacity to do what the Court required of it, and was able, capable and willing to present the list of NHIS registrants to the Court, and it should be seen to be doing just that.

16.That being  the case, the act of 1st defendant in producing a fictitious and concocted list is gravely contumacious of the authority of this Court, especially in such a profoundly weighty and important matter as the credibility and accuracy of the voters register for the forthcoming elections in November this years, just some four (4) months away!,   

17.Your lordships, it is the respectful submission of the plaintiffs that there is an even more fundamental reason why this Honourable Court simply cannot accept the list provided by 1st defendant as an accurate, credible and authentic list of persons on the voters’ register who registered using NHIS cards and this explains the defects contradictions and inconsistencies in the list provided by 1st defendant.  

It is, that the 1st defendant, on its own admissions before this Honourable Court on 21st April 2016,  impliedly admitted that it did not have a record of those who registered using the NHIS card.  It will be recalled that when on that 21st day of April 2016, Justice Dotse asked 1st defendant’s Counsel whether 1st defendant had a database of qualified voters since 2012 and if so, whether it could tell which document each person who registered to vote used to prove his/her qualification to be registered, Counsel for 1st defendant, after consulting with the chairperson and Amadu Sulley, a Deputy Chairperson of 1st defendant informed this Court that 1st defendant had a database  of registered voters, however, it was not possible to tell from the database which documents each registered voter used qualification to register, though it could do so from the source or primary forms filed by prospective voters. 

18.My lords, Form 1A is the primary record in which all the details of an intended registrant are manually filled by officers of 1st defendant for purposes of registration.Thereafter, those details are transferred by typing into a computer and then lodged in the database of 1st Defendant.  

It is these details captured in the computer that are printed out as Form 1C, the bottom part of which is detached and given to the registrant as his Voter ID card.  Form 1C , which is lodged in the database of 1st defendant , is, thus, simply, a comprehensive transfer of the data in Form 1A unto the computer, which is then logged in 1st defendant’s data system.

In fact, all particulars of registrants in Form 1A must be replicated on Form 1C and lodged unto 1st defendant’s database. It is therefore an insoluble contradiction for 1st defendant to maintain, as it has done before this Court on 21st April 2016  that it does not possess and/or have information on those who registered with NHIS cards in its database but would rely on the Districts for the primary record. This is  because , as we have demonstrated above,  the Form1C mirrors exactly what is contained on the Form 1A. May we not ask whether the information that the districts have is not the same  information in 1st defendant’s database? (See Exhibits OA5 and OA5A, annexed to the affidavit verifying the facts)

19.In any event, it is an incontestable fact, your lordships, that there is no column whatsoever on Form 1A that provides for the filling of a registrant’s NHIS card.  Accordingly, Form 1C, which is a reproduction of Form 1A does not and cannot have a column indicating that a registrant registered using his/her NHIS card.

The only column in Form 1A for filling in one’s identification number is the column with the initial NID. By the instructions of  1st defendant in its “VOTER REGISTRATION ELECTIONS MANUAL”produced for registration in 2012, the 1st Defendant states clearly and without equivocation at page 24 of its Training Manual boldly and in simple English the purpose of the box marked NID. It reads as follows:

“NID: This will be filled in for applicants who have received their national ID cards from the National Identification Authority.” (See Exhibit “OA3”, annexed to the affidavit verifying the facts)

 
20.It is thus our respectful submission that whether by way of Form 1A or Form 1C, it is impossible for the 1st Defendant to determine the persons who registered using NHIS cards.   Accordingly, it cannot be doubted, (and this explains our respectful assertion) that the list provided this Court by the 1st defendant is, with due deference, a list conjured and concocted out of nothing, out of 1st Defendant’s imagination, a product of mischief, falsehood and  perjury.   

21.In fact at a meeting held in the conference room of 1st defendant and attended by plaintiffs and their lawyer and Mrs. Georgina Opoku Amankwaa, both deputy chairpersons of 1st defendant, both deputy chairpersons he EC and its lawyers, one of the commissioners (provide name) admitted that NHIS 1st defendant was incapable of determining registrants who registered with NHIS cards because at the material time there was no column on Form 1A for  filling in a potential registrant’s NHIS number  and further that the column designated NID  was for national identification cards only.  (See Exhibit “OA1”,  annexed to the affidavit verifying the facts)..

22.We hereby respectfully challenge the 1st defendant on the truth of the foregoing.

23.Notwithstanding this admission made by Mrs. Georgina Opoku Amankwaa and Mr. Amadu Sulley, 1st Defendant now produces the defective and deeply questionable and troubling list. It is quite apparent that the order made by the Court on 23rd June 2016, as a corollary to the judgment, is to give effect to, and ensure that the judgment of the Court is not defeated or rendered nugatory in any way.

It is respectfully submitted that the action of 1st defendant which constitutes plain deception is calculated to undermine the force, effectiveness, and to subvert the due execution of the judgment of this Honourable Court dated 5th May, 2016.   

It is further submitted that the conduct of 1st  defendant in this naked enterprise of deceit should receive the strongest condemnation and sanction of this Court.

24.The 1st defendant has gravely misled the Honourable Court. The seriousness of any action by a party before this Honourable Court which has the tendency to, or the effect of misleading  the Court was examined in Republic v. Acquah and Anor; Ex parte Perko II [2003-2005] 1 GLR 135 wherein the Supreme Court stated as follows:

“Any party who stated a deliberate falsehood in a calculated attempt to interfere with the due course of justice or to impair the administration of justice was in contempt of Court. In this instant case, the false statements made by the respondents before the Supreme Court that the applicant had been destooled and therefore his stool was vacant when they well knew they were lying, were made to frustrate a fair trial in that case”.

25.It is our humble submission that article 46 of the Constitution in guaranteeing the independence of the Electoral Commission “in the performance of its functions”, clearly anticipates an Electoral Commission which will take faithful and due steps in the execution of the trust it holds for the people of Ghana, in compiling a register of voters which is reasonably and manifestly accurate and can be seen as reliable by the people of Ghana.

The independence of the Electoral Commission “in the performance of its functions” enshrined in article 46 thus carries a corresponding duty, which properly construed, is not shared with any citizen of Ghana, to ensure the compilation of a reasonably accurate and credible register of voters. The Constitution, it is submitted, did not clothe 1st defendant with independence in the performance of its functions only to turn round and expect ordinary citizens to share in that duty with 1st defendant.  

The primary duty of the citizen in ensuring a satisfaction by 1st defendant of its duty is, as stated by the combined effect of articles 3(4) and 2 of the Constitution, i.e. to defend the Constitution and bring actions in this Honourable Court for the declaration of any act or omission of any person or authority as being in contravention of the Constitution.

Indeed, it is respectfully submitted that it is dangerous and a recipe for the dereliction by 1st defendant of its duty, when serious and deliberate deception as the ones pointed out in these submissions are committed by 1st defendant, for the citizen to be called upon to submit names of persons who ought to be on the list to 1st defendant.  This has the potential could lead the nation down the road to chaos.

26.It is humbly submitted that given the independent status that the Constitution accords the 1st defendant in order for it to perform its duties fairly, impartially and with integrity and the public trust reposed in it to conduct national elections, the conduct of the 1st defendant just like Caesar’s wife should be above reproach.

The facts exposed by the plaintiffs in this instant action demonstrate beyond any controversy that the 1st defendant has woefully failed to meet this high ethical and constitutional standard expected of it.

With due deference to this Honourable Court, just as it is impermissible and an affront to our sense of justice to allow a thief caught in the act of stealing to be set free simply on the ground that he be made to return the stolen item, it is equally, if not much more, impermissible and an affront to our sense of justice to suggest that when the 1st defendant has been clearly caught fabricating and conjuring a list out of nothing, it should be allowed to escape the logical consequences of its Machiavellian acts of deception and falsehood by simply asking that the fabricated names be deleted.   

27.It is further submitted that the independence of 1st defendant in the performance of its functions is subject to supervision by the superior courts of Ghana. As this Honourable Court has pointed out the concept of independence of the Electoral Commission in the performance of its functions does not preclude a scrutiny or examination by the Courts in the ascertainment of whether it has discharged its functions in accordance with the Constitution or any other law.  

In point of fact, when the Electoral Commission commits manifest unconstitutionality and illegality in the performance of its functions, the cloak of independence can be lifted by the Court in so far as the particular function is concerned, and this Honourable Court is clothed with the power under article 2 (2) to issue appropriate orders to the Electoral Commission to ensure the due discharge of the specific function.  Article 295(8) of the Constitution casts this in black and white, when it stipulates as follows:

“No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a Court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.” 

28.It goes without saying that 1st defendant is entrusted with exclusive custody of the persons who registered with the NHIS cards, and the whole nation and citizenry rely on it to amply demonstrate credibility and integrity of our national elections. 

If 1st defendant would at this stage resort to manipulation of names and actual figures of persons who registered with the NHIS cards in the current register of voters then, this Honourable Court will be justified in holding that it  has failed in its duty to provide an accurate and credible voters register for the impending 2016 general elections. The Court can in consequence and further to articles 2(2) and 295(8), issue the relevant orders to ensure that the sacred and constitutional duty to compile an accurate and credible voters register is discharged by 1st defendant.

29.Indeed, your lordships, it is to cure this obvious defect that in drafting the current C.I. 91, the 1st Defendant has provided columns not only for NID (national Identification card) but also for passport number or driver’s licence of the registrant.  Accordingly, the new Form 1A and Form 1C have columns for NID number, passport number and driver’s licence number.  (See Exhibits OA2and OA2A, annexed to the affidavit verifying the facts).

30.Your lordships, it is our respectful submission that the reason why the list submitted by 1st Defendant is riddled with the defects and inconsistencies pointed out above is because they are not based on any authentic data in the 1st defendant’s data base (old Form 1C) nor in the primary record of registration, the old Form IA.

31.A further fact confounds what is already a farcical and fantastic list produced by 1st Defendant to this Court.  In its statement of case  in Consolidated Suits Nos. J1/9/2014 and J1/11/2014, the Attorney General stated at page 6 thereof as follows: “It is submitted that to remove the [NHIS] Card from the list in Regulation 1(3) of C.I.72 will amount to depriving a broad section of Ghanaians of their right to vote. It is a fact which admits of no argument that the possession of the card is widespread than the other identification documents listed in Regulation 1(3) of C.I.72. Thus, apart from the card, all the rest have inhibitions.”


32.The Attorney-General argued further at page 15 thereof that: “…to eliminate the use of the card in regulation 1 (3) of C. I. 72 will mean to disenfranchise majority of potential voters. Most persons are not privileged to possess any of the above listed identities except the card.  

33.These facts were verified in an affidavit in support. 1st defendant which has exclusive custody of voter information did not refute the facts  made by the Attorney General, thereby impliedly admitting same to be the case.  If we consider that before the registration under C.I 72 in 2012, the total number of registered voters was 12,472,789., and that after the 2012 registration of voters, this shot up to fourteen million, thirty one thousand, seven hundred and ninety three.

(14,031,793), that would mean some 1,559,004 million new registrants registered in 2012. In the face of the Attorney-General’s own statements in this Honourable Court that majority of people registered with NHIS cards and the counsel for the 1st defendant’s own statement to this Honourable Court that most Ghanaians did not hold either National Identification cards or passports, it is evidently incredulous for the 1st defendant to now say that only the pitiful number of about Fifty-Six Thousand, Seven Hundred and Seventy-Two  (56,772) registrants registered using NHIS cards. With respect my lords, the declaration without more defies reason.  Half of the14,031,7993 would be over seven million. Even half of the new registrants in 2012 will give you a figure of 779,502.

34.Respectfully, it seems to us that 1st Defendant is simply hiding behind the mask of its exclusive custody to churn out any figure irrespective of the truth in the false belief that this Court will have no means of discovering the falsehood. However, a careful analysis of statements made in this Honourable Court as well as by incontrovertible statements made by the 1st defendant itself outside Court exposes the falsity and incredulity of the figures produced before the Court last week.

We are of the humble opinion that the authenticity, integrity and accuracy of the list furnished by the 1st defendant has been so discredited to expose same as a sham.  Honurable Court therefore ought to delve further into the matter beyond the opaque and concocted list produced by the 1st Defendant in order that it may do substantial justice in this matter. 

35.It is undeniable that elections that are conducted amidst controversy, especially over the accuracy of the voters’ register can be a ready recipe for descent into civil strife and disorder.   It is the humble contention of Plaintiffs that we should all do everything now, where, as a nation, we have the opportunity to correct whatever defects there may be in the voters’ register in order to generate the trust and confidence of the public in the electoral process, particularly the voters’ register, and the outcome of the elections.

36.It has been a recurrent view of 1st |Defendant that this Court by its orders on 5th May 2016 ordered that the 1st Defendant should “delete or as it is popularly known ‘clean” the voters’ register by using applicable laws and that the only applicable law by which the 1st Defendant could do so is by the process of exhibition and challenge. 

Nothing could be further from the truth. This is a complete misstatement and misconstruction of the final orders of this Honourable Court of 5th May 2016. The Court did not say what the 1st defendant claimed it did.  On the contrary, what this Court ordered was for the 1st Defendant to take immediate steps to delete or clean the register TO COMPLY WITH THE CONSTITUTION AND APPLICABLE LAWS” and not to delete or clean the voters’ register in accordance with “applicable laws.  

In other words, the Court’s order was for the 1st defendant to delete  or clean the register SO THAT THE REGISTER SHALL BE IN COMPLIANCE WITH THE CONSITUTION AND APPLICABLE LAWS, namely that only the names of Ghanaians of eighteen (18) years and above and of sound mind shall be on the register. This places emphasis and justifiably so, on the final product of the voters ‘register.  To misstate or misconstrue the orders of the Court of 5th May, 2016 in the manner in which the 1st defendant claims, is to put emphasis on the process of deletion rather than on the end product of the voters register.

37.The view that there is no other means stated by law by which the dead persons, those “who registered with NHIS cards and minors can be deleted except by exhibition process set out in C.1 72 and now C. I 91 and that to do otherwise would be contrary to due process is to misread and misunderstand the import of article 2 (2) of the Constitution. This erroneous viewpoint involves a deliberate attempt to take away from this Honourable Court powers expressly given to it by article 2(2). That article provides as follows:

“2 (2) The Supreme Court shall, for purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may be consider appropriate for giving effect or enabling effect  to be given, to the declaration so made”

38.It is our submission therefore that by the force of the Constitution, this Court may make any appropriate order that this Honourable Court may give for giving effect to or enabling effect to be given to its declaration may be made by this Court. When such orders and directions are given by the Court, they, without more have the force of law by virtue of injunction of the Constitution and requires no additional legislation, substantive or subsidiary to be binding on the party to whom the order is directed.

39.Indeed, 1st Defendant has informed this Court that it intends to use the process of exhibition and challenge to delete or clean the voters’ register of unqualified persons on the register.  

It is instructive in this regard to note that the same argument was proffered by Counsel for 1st Defendant in the Abu Ramadan consolidated suits where this Court constituted by gave a unanimous decision that the use of the NHIS card to register voters was unconstitutional since it did not meet the eligibility qualification.   This is what the Court coram Her Ladyship the Chief Justice said at page 20 of the judgment:

“..the further argument that in any event, a process for challenging or complaints about the inclusion of unqualified individuals under regulation 16 of C.I. 72, is dangerous and must be rejected. No amount of rationalisation can justify this contention. Plainly in our view, that 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”. [Emphasis added]

40.It is our respectful submission therefore that this matter of relying solely on challenge mechanism had long been dealt a mortal blow by this Court and an attempt to resurrect it ought not to be countenanced by this Honorable Court.

41.Before we conclude, it is important to put in proper perspective the issues that are currently before this Court for determination, namely whether the list of NHIS registrants as produced by 1st Defendant is accurate, credible and free of material defect and doubt.

42.Your lordships will recall that on 25th June 2014,  the plaintiffs invoked the original jurisdiction of this Court for a declaration among others that “uom a true and proper interpretation of Article 42 of the 1992 Constitution, the use of the NHIS card to register a voter pursuant to regulation 1 (3)(d) of the Public Election Voters)Regulations, 2012 (C.I. 72) is inconsistent with Article 42 of the 1992 Constitution and is to the extent of this inconsistency void”. The Court after hearing the parties on 30th July 2014 granted this relief and unanimously held that  “Accordingly, by virtue of the power conferred on this Court by Article 2 (2) of the 1992 Constitution, the said Regulation 1 (3) (d) of C. I. 72 is struck down”.

43.One would have expected that in the face of the clear declaration of the Supreme Court that the continued presence of NHIS registrants on the voters’’ register, 1st defendant would have taken steps to comply with the declaration of the Court.  

In complete disregard of the declaration of this Honourable Court and persistent efforts by the Plaintiff in the instant case to get the 1st defendant to comply with the declaration of the Court, 1st Defendant stonily and in complete intransigence refused to take any steps to comply with the declaration of this Court.   This compelled the Plaintiff to return to this Court on 25th February 2016 invoking the Court’s original jurisdiction for the following declarations.      The Court in its judgment dated 5th May 2016 held as follows        

1.That upon a true and proper interpretation of article 45 (a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate and credible register.

2.A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible.

3. A declaration that, the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible.

4.Reliefs 4(a) and (b) are dismissed in their entirety.


44.In the exercise of the powers conferred on us under article 2 (2) of the Constitution, we make the following 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,

b.That any person whose name is deleted from the register of voters of the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law.

45.Even, after these declarations and orders, which 1st defendant surprisingly now states are clear and unambiguous, 1st defendant did not take any steps “immediately to delete or as is popularly known “clean” the current register to comply with the provisions of the 1992 Constitution and applicable laws of Ghana”.

46.It was this intransigence on the part of 1st defendant in the face of declarations and orders of this Court that plaintiffs this time applied by motion on notice for clarification of the orders made on 5th May 2016.   Thus, your lordships can see a persistent pattern of resistance to and an unwillingness on the part of 1st defendant to comply with the declarations and orders of this Court from 2014 to date. 

The question is why has the 1st defendant found it so difficult to comply with the straightforward orders of the Court. The answer, as we have demonstrated above, is simple.  The 1st defendant did not have the data with which to carry out the exercise of deletion of the names of those who registered with NHIS card. 

This, your lordships, explains why, when pushed to the wall, the 1st defendant, having assured this Court that it could provide it with the list of persons who registered with NHIS cards, turned round to produce this manifestly defective, contradictory, fictitious and conjured list.

47.We respectfully submit that 1st defendant, who ought to have exclusive custody of the list of those who registered using NHIS cards, has woefully failed to comply with the order of this Court and that plaintiffs have demonstrated on the balance of probabilities that the list provided by 1st defendant is not credible, not accurate and is in fact a concocted and fictitious list.

48.The question then remains what then ought this Court to do in order to do substantial justice not only to the parties but to the sovereign people of Ghana.  For the matter of the voters’ register implicates directly the sovereignty of the people of Ghana in whose name and for whose welfare in accord with article 1 (1) "the powers of government are to be exercised in the manner and within the limits laid down in this Constitution”.   The powers of government, with respect, include the powers the Constitution reposes in the Supreme Court.

49. It would be observed that the upshot of all the statements made by the 1st and 2nd defendants in both this Honourable Court and meetings with the plaintiffs herein, is that the 1st defendant cannot with a reasonable level of accuracy, delete or is unable to determine and delete the names of persons who registered to vote using NHIS cards.

The further implication of this is that the 1st defendant, on these facts, going into the 2016 General Elections does not have a reasonably credible and accurate voters’ register. This also implies that the declarations and orders made by the Court on 5th May, 2016 will be rendered nugatory and of no effect, unless further orders and directions are given by this Court to compel and aid the 1st defendant in the discharge of its duties under the Constitution. 

50.It is our respectful submission that in order to give effect and meaning to declarations 1 and 2 of the judgment of 5th May 2016, namely that:

1.Upon a true and proper interpretation of article 45 (a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate  and credible register; and

2.A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate and credible.

And in the light of the obvious fact that the 1st defendant is incapable of  determining the number of those who registered with the NHIS cards, and thus, cannot delete their names, the current register of voters is not reasonably accurate and credible for use in the conduct of the 2016 general elections. 

51.We accordingly pray that this Honourable Court make the appropriate consequential orders that will ensure that the sovereign people of Ghana for whom the powers of this Honourable Court, are being exercised is upheld and further, that, the register to be used for the 2016 General Elections is reasonably accurate and credible.