The Electoral Commission sent a document on the “mechanism for auditing the voters register” to the New Patriotic Party and other members of the Interparty Advisory Committee (IPAC), asking for the input of the party to be sent to the Commission by the close of work on Monday 11th April, 2016.
Below is the NPP’s considered opinion on the document and the procedure the EC is choosing to rely on ostensibly to give the country a clean, credible electoral list for the 2016 general elections.
In October 2015, the Electoral Commission constituted a panel of five prominent people and experts—namely his lordship Justice VCRAC Crabbe (Chairman of the Panel), Most Rev Prof Emmanuel E Asante, Dr Mrs Grace Bediako, Alhaji Bin Salih, and Dr Nii Narku Quaynor—to “hear proposals from the various stakeholders, engage the critical stakeholders, collect and collate views from the stakeholders, analyse the views and at a public forum, conduct the hearings in a free, transparent, fair and objective manner on the issue of the register of voters, and provide recommendations to the Electoral Commission.”
The two-day public forum took place on October 19 and 20, 2015. The consensus was that the current voters’ register was bloated but the controversy was whether to compile a new register or to clean up the existing one. On December 21, 2015, the Panel of Five presented its report to the Electoral Commission.The Panel opted on the side of cleaning the register and at pages 17 to 20, laid out a clear roadmap for doing so.
The Report of the Justice VCRAC Crabbe Panel, which the Electoral Commission appointed, estimates the total number of voters to be captured on the electoral roll for this year’s general elections to be 15,504,207after the planned limited registration. Out of this, it calculates the number of living people qualified to be on the final register to be around 14,535,987. The Panel Report, using data from both the EC and the Ghana Statistical Service, calculates that the current updated, de-duplicated register (2014) is bloated, larger than the total estimate of people eligible to be on the list.
AUDIT OF THE VOTERS’ REGISTER
The NPP finds it as very unfortunate that, in spite of all the known inadequacies associated with the way it has been doing things, the EC still wants to repeat the same discredited processes in 2016.
The EC has opted for auditing of the voters’ register as the means to present a credible register for the 2016 elections. In fact, it has ignored recommendations from its own consultant on how best to do an audit and has even refused to share the recommendations of the consultant with the NPP, despite public assurances to that effect.
In May 2014, before the limited voter registration of that year, political parties-- notably, the New Patriotic Party, Convention People’s Party and the Progressive People’s Party--and civil society groups, called for an audit of the 2012 biometric voters’ register.
On June 6, 2014, at a public forum organized by the National Commission for Civic Education under the theme: "Beyond August 29 verdict: Lessons and path Ahead" and in the presence of Mrs Charlotte Osei and Justice VCRAC Crabbe, the then Chairman of the Electoral Commission, DrAfari-Gyan, responded to the calls for an audit of the register by simply dismissing it. To the EC Chair then, there was nothing wrong with the register and, to quote him, “besides I don’t know what auditing of the register means.”
To him, as he explained at that NCCE Dialogue Series, the mandatory public exhibition of the provisional register, which took place before the December 2012 general elections was all the auditing that was necessary and since that had been done there was no need for a post-election audit.
Dr Afari-Gyan wanted to limit auditing to the exhibition process and his defence was that there was nothing wrong with the register.
But, with the current consensus that the current register contains more names than the total number of people eligible to register to vote in Ghana, why should the Charlotte-Osei-led EC be towing the same line as her predecessor?
In her 29-page response to the NPP, dated December 30, 2015, the head of the EC disclosed that “On October 3, 2015, with donor support, the Electoral Commission procured the services of an independent consultant to examine the Biometric Voters register.”
The EC went to say it had received “the final report from the Consultant on the Independent Review of the Biometric Voters’ Register.”
Why has the EC refused to disclose to the stakeholders and the general public the report of the consultant?
The independent expert used by the EC, the former ICT Director of Kenya’s Independent Electoral and Boundaries Commission (IBEC), Mr. DismasOng’ondi, went before the VCRAC Crabbe’s five-member committee at the EC office on November 17, 2015, and said, Ghana “must find means of addressing the underlying issues of bloated register” and that “In Kenya the auditing process was completed within a period of three (3) months and if that is exactly what the EC may consider, it should not wait any longer.”
His recommendation to Ghana, as stated in Appendix D page 9 of the Panel Report, says that a proper auditing of the voters’ register must involve the following:-
1. Computer Test:-, which he explains as “Analysis drawing patterns of age, gender, etc.”
2. Statistical Analysis:- List of registered voters to list (by random selection)
3. People to list:- “Which,” in the words of the consultant himself, “is accurate and more comprehensive approach, using the addresses [of registered voters captured in the data] to locate individual voters.”
Why has the EC completely ignored this recommendation if the Commission is indeed serious about doing proper audit of the register?
USING EXHIBITION TO AUDIT VOTERS’ REGISTER
The EC, in requesting for inputs for the audit it wants to do now, describes it as a “Collaborative, inclusive, transparent and legal process,” and that the entire auditing exercise “will take place during the exhibition process on the election calendar. ”
Thus, the EC intends to use the discredited challenge procedure available at the exhibition stage of the provisional register of voters and hopes that a credible register will emerge in the end. We find this most odd.
How does the EC then reconcile this unyielding faith in the exhibition process with its own admission in its response to the NPP on December 30, 2015, that, as compared to other African countries, Ghana has a far larger percentage of its population on the register because, "Processes for challenging registration of prospective voters in other jurisdictions are more effective?" Why does the EC insist on using a process itself considers to be ineffective to effect the provision of a clean register?
Indeed, the VCRAC Crabbe Panel Report does not see the procedure presented by the exhibition of the voters’ register as a good enough measure for removing invalid names from the list. It makes the case at Pages 17-18 of the Report as follows:
a) Judging by the sheer numbers, the Electoral Commission’s proposition to display the register, with political party representatives, the Electoral Commission and citizenry to identify and point out invalid names, is not a viable approach.
Particularly when the persons who identify these records are expected to expend their time, energy and resources not only to provide the evidence but also to testify before a court of competent jurisdiction.
The efficacy if the current provisions may be assessed by the fact that in spite of this system having been in place, there were 8,000 registrants in 2014 who may have been minors on the list since 2012.
b) The signal is that the system is not effective in achieving the set goals of eliminating invalid records from the register and must be reconsidered.It is said that you cannot do the same thing and expect different results.
The challenges with relying on the ordinary citizen to suggest who may not be eligible to vote or which names should not be in the register stems from the fact that:
1. The list is not ordered in a way that would make it possible to spot invalid records (alphabetic order and not following residential address system; too many names for anyone to manage the task).
2. Not enough time given for the exercise.
3. There is the assumption that people are known in their communities.
4. The potential for several persons having the same name.
5. The setup is potentially confrontational.
1. The EC says “the audit process will address three categories of unqualified persons on the register: deceased persons, minors and foreigners as well as multiple registrations.”
2. And, that, "He who alleges must prove." It is important that the EC does not stretch this principle to give the Exhibition Officer a power he/she does not have. The Exhibition Officer cannot demand evidence from those who seek to raise objections to the inclusion of certain names on the register.
The job of the Exhibition Officer, as provided in Regulations 23(c), 24(e) and (f) and 25 of the Public Elections (Registration of Voters) Regulations, 2016 (CI 91) is only to ensure that the complainant fills Form Seven and that filled form is passed on to the District Officer of the Commission, who according to Regulation 26, mustsubmit the complaints and objections to the District Registration Review Officer (in the person of a District Magistrate) for determination.
It is only at that stage that the person who is alleging must show prove. We believe the EC must make this matter very clear in order to avoid any confrontation at the Exhibition Centre.
3. On the principal that “Every person against whom an objection/challenge is made must be given the opportunity to be heard,” it must again be made clear that the forum for that opportunity is before the District Registration Review Officer. This is provided in Regulation 26 (5)(a), which reads, “a party to an issue shall be heard in person or may be represented by a lawyer.”
DECEASED PERSONS ON THE REGSTER
The EC concedes, "Absence of a comprehensive up to date register of deaths is the key challenge. Requires support and collaboration of all Ghanaians to address." Yet, it seems to be limiting this exercise to identify the estimated 600,000 dead names on the register to government agencies and "relatives" of deceased persons.
This position must be clarified because CI 91 at Regulation 23 (2)(C) allows any “person entitled to be registered as a voter” to “object as set out in Form Seven of the Schedule on the ground that the person is not qualified to be registered as a voter.”
When does the EC intend to write to all government agencies to furnish the Commission with the names and details of deceased persons from 2012? We also seek clarification on what the EC means by that the names of the deceased will be removed “upon confirmation”.
Does that mean that if nobody comes forward at the exhibition centre to confirm death, the evidence of the official death certificate from the Births & Registry will not be enough to have such names removed?
The EC says, "Extensive engagement and education to encourage members of the public to go to the exhibition centres and district offices of the EC with the particulars of their dead family members (eg Funeral posters, death certificates, funeral invitation cards, burial certificates, body deposit /collection forms etc.) and the Voter Identity Card of the deceased relatives if available to have such names deleted from the Register."
This must not be stretched to deny party agents their lawful right to object. Any voter may object the inclusion of any name on the register at the exhibition stage.
Page 20 of the Panel Report is instructive in seeing exhibition as not an effective way of ridding the register of dead people. It reads:
“It seems that doing nothing more than the usual updating and waiting for the citizenry to pursue those who are illegally registered will engender the most bloated register, by the mere fact that very few names of the dead are likely to be brought up.”
FOREIGNERS & MINORS
Regarding foreigners and minors, the EC is calling on "Members of the Public and party observers" to object during "registration and exhibition." For minors, the EC is prepared to take extra steps, namely, requesting first time registrants to "provide their weighing cards, Baptismal certificates, birth certificates to assist in establishing their ages.
Also requested to provide school records e.g. last report cards to assist EC in making a determination as to age in the absence of other documentation." But, where a person is suspected to be a foreigner, the EC is mute.
Our contention is that the EC has no legal basis to even request of suspected minors to provide any other document other than what is expressly stated in law. In fact, no such evidence is required to challenge an objection at the exhibition centre. Those matters must be left to the judicial discretion of the District Registration Review Officer.
On the 30th of July 2014, the Supreme Court ruled that it was wrong for the EC to allow the use of NHIS cards as proof of qualification to register. In her December 30, 2015 reply to the NPP, Mrs Charlotte Osei argued thus:
a. “The current challenge procedures under CI 72 are sufficient to deal with all registered voters who presented NHIA cards as proof of citizenship.
b. Such voters must also be given the opportunity to present additional proof of citizenship if available, before they are struck off the register.”
The EC appears to have finally come round to the reality that the register for 2016 cannot contain names that got on the list using NHIS cards. The EC, in its response to the NPP, is now saying it is of the view that “prior to the invalidation of their registration,” it would “be fair and proper for all such persons to also be heard.”
This, in principle, is a clear admission on the part of the EC now that we cannot go into the next general election with a register containing millions of people who got on there using an identification document which the Supreme Court has ruled to be unconstitutional.
The question now is this: how does the EC intend to use this exhibition exercise to handle this constitutional responsibility of purging the register of all such illegal entries and giving those who are eligible to vote another opportunity to now register legally?
In the words of the EC’s own independent consultant of the biometric voters’ register, Mr Dimas, “would it be possible to identify the number of persons who registered with NHIS cards?”
The EC has shifted the responsibility of identifying people who registered using NHIS cards to political parties and ordinary citizens at the exhibition of register stage. How does the EC intend for an ordinary voter with no access to the EC database to identify which person(s) registered using an NHIS card?
The EC made a similar argument of using exhibition to challenge illegal entries, which was squarely rejected by the Supreme Court in the Abu Ramadan case, where it was held:
“in any event, process for challenging or complaints about the inclusion of unqualified individuals under Regulation 16 of CI 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 inidivuals, 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 fraudulentlu managed to have their names included as qualified individuals.”
The Supreme Court went on to say:
“From a fair reading of the entire legislation, one may want to question the wisdom and propriety of handling this important national constitutional exercise, namely the rather taxing and expensive process of registration without regard to legality and in a slip-shod manner, on the assumption that the challenge mechanism will correct any errors or flaws.”
Regulation 1 (1) pf CI 91 lays out the qualification for registration:
· A citizen of Ghana
· Eighteen years of age or above
· Of sound mind
· Resident or ordinarily resident in an electoral area; and
· Not prohibited by any law in force from registering as a voter.
In order for the exhibition to be meaningful the EC must provide the addresses of the names of the people on the list to the political parties.
CI 91 makes it mandatory for every registered voter to be “ordinarily resident” in the electoral area he or she registers to vote. The enforcement of this provision is necessary to avoid foreigners crossing over the border into Ghana to register to vote.
The EC appears to be picking and choosing the suggestions/proposals in the Panel Report regarding validation/verification.
The Panel at pages 17-20 proposed for the validation exercise to take place during the exhibition period; for the period to be extended; for BVD machines to be provided for registered voters to be validated/verified. The EC says it is doing all this and even prepared to take the exhibition exercise to every polling station.
The only thing missing is the last aspect of what the EC itself says this whole auditing at the exhibition centres must involve, "collaborative, inclusive, transparent and legal process". What the EC wants to do is to have a validation without backing it with a "legal process" to make it mandatory. Why so?
This is because without making validation mandatory, the process of removing dead persons will be ineffective.
Without making it mandatory non-nationals who are already on the register but may be now be afraid to show up at the exhibition centre for fear of repercussions will still have their names on the register. Also, the fact that the exhibition will be available online even serves as a disincentive for people to show up at the exhibition centre.
The EC justifies its intention to use BVDs at Exhibition Centres for the following reasons: “To get people who check on their names to be verified during exhibition, this apart from authenticating the voters, would also reduce the incidents of false verification and improve efficiency of BVDs on election day.”
The question is, if the idea behind the use of BVDs is to validate, verify or authenticate voters, then why is the EC afraid of making it mandatory? Without it, those who know are on the register illegally will simply not show up for exhibition and the EC will have no power to remove their names. If the EC is genuine and sincere about this verification exercise then it must be backed by law, just as the use of BVDs is backed by law.
Why would the EC wants to depend entirely on a method which itself and its own panel of experts say does not work? The Panel Report gives a damning verdict on the exhibition exercise. To the panel, it is not good enough “relying on the ordinary citizen to suggest who may not be eligible to vote or which names should not be in the register” for several reasons.
Finally, the NPP wants to let the EC know that it is going to create a big mess relying on the challenge procedure during exhibition. The party intends to challenge every single illegal entry on the register.
We have gone around communities and have, for example, discovered that several people with their names on the register do not live in the communities they claim to live.
We could have over one million challenges on our hands during this exhibition process and going through the painstaking process of looking at each individual case on its merits before a Magistrate could take up to six months to resolve! This is the more reason why we need a validation backed by law which makes it mandatory.
The Committee goes further to lay out the advantages of what it calls “validation/verification/authentication”, interchangeably. It is our submission that validation, backed by law, is the only available viable option to give Ghanaians a more credible register, considering the amount of time left.
Our checks show that Ghanaians, eager for a peaceful, free and fair polls in 2016 will be keen to be given the opportunity to validate the inclusion of their names on the voters’ list by turning up at a registration or exhibition centre to have their fingerprints biometrically verified, their facial image cross-checked with the EC database, and by presenting an additional, legally approved personal identification document to justify their eligibility to register to vote in Ghana.
We would urge the EC to look once again at the words from the VCRAC Crabbe Committee as contained in the Panel Report and reproduced below:
“It may be expedient to try to find a middle ground to creating a new register through a completely new registration process. The Electoral Commission could consider extending the exhibition exercise to have voters confirm their names on the list, an indication that they would want to maintain their voter status.
The benefits include signaling that the Electoral Commission is doing something about the known flaws in the register; the more cost-effective approach is being used. In the same way that a new registration would have required citizens to physically appear for registration, the cleaning would require that they appear to confirm. The major difference is they spend less time because no forms are filled.
Rather than make others responsible for maintaining voters’ name on the list, the individuals should themselves do that.
This also avoids the issue of people looking for documents to support any claim to get a record removed. This is largely what happens with the current system of hoping invalid names would be detected. It would be important to use this opportunity to call on all who are not eligible to voluntarily get their names off without facing any prosecution.”
For the AFIS exercise, the EC says it has improved the software. We will call for an independent assessment of the system. This is because the EC has never been transparent to stakeholders on the integrity of the technology used and this raises serious doubts.
We consider the whole talk about people being disenfranchised if validation is made mandatory as a red herring. The EC compiled a new register in 2012. Automatically those who failed to show up but had their names on the previous register were not able to vote in 2012. But, nothing stopped them from getting their names back on the register for subsequent elections. Voting is a right but it is not compulsory.
It is important we keep the records of registered voters up to date and credible otherwise it defeats the whole purpose of one-man-one-vote. Even for registration there is an administrative cut off point, where after a period even if your name is on the register but not in time to go through the process of exhibition, etc., you will lose the opportunity to vote in thatgiven election.
We take instructions from Regulation 9 (4) of CI 91,2016." The Commission shall include in the register of Voters, the name of a person who qualifies for registration as a voter and is registered but shall not include in the register of Voters the name of a person who qualifies to register as a voter for an election but who registers less than sixty days to that election. ".
The EC has shown with the way that it intends to undertake this exhibition process with validation machines in all polling stations that it has the resources, in terms of personnel, equipment and funds to undertake verification or validation or authentication. What is left is for it to make it mandatory so that it can truly serve as a proper and necessary auditing process.