In the first part (see Ghanaweb on January 5 2013), I discussed the potential constitutional challenges of NPP making President John Mahama, the First Respondent in their petition at the Supreme Court (SC) contrary to the immunity granted him under article 57(4) and (5) of the 1992 Constitution. I also pointed out that, NPP cannot be faulted because that is what the Constitutional Instrument regarding the rules on Presidential Election Petition directs. I concluded that the Constitutional Instrument (Rule 68 & 68 A of the Supreme Court (Amendment) Rules 2012, C. I. 74 contravene Article 57 (4) and (5) of the Constitution and therefore unconstitutional because Article 1(2) says “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void”.

The Constitution also makes provision for such inconsistencies and or contraventions to be corrected under Article 2 (1)(a)(b) and (c) “A person who alleges that - (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”. However, since no one has exercised the right to challenge this inconsistency under Article 2 (1) above, that is what we must grapple with. We are in this situation perhaps a Presidential Election Petition has never arisen in twenty years of constitutional democracy under the Fourth Republic, so hopefully the SC would have the opportunity to make a declaration on it, if President Mahama’s Attorney brings this matter to the attention of the SC and seeks a declaration by the Justices.

As promised in the first part, the second part of the eighth of the post election series will deal with the constitutionality or otherwise of two of the grounds for the reliefs that NPP is seeking from the SC. I should put on record that Prof Kuruk briefly discussed this matter in his article “Akufo-Addo v. Electoral Commission: Matters Arising (Part 2)”, Ghanaweb January 3, 2013. This article therefore, is to further develop the constitutional case against the two grounds contained in the petition.

The further particulars provided by NPP and relied on under Ground 1 of the petition as some of the reasons for the reliefs being sought states and I quote, “(a) That 2nd Respondent permitted voting to take place in many polling stations across the country without prior biometric verification by the presiding officers of 2nd Respondent or their assistants, contrary to Regulation 30 (2) of C. I. 75. and (b) That the voting in polling stations where voting took place without prior biometric registration were unlawfully taken into account in the declaration of results by 2nd Respondent in the presidential election held on 7th and 8th December 2012”.

I concur with Prof Kuruk that it would be unconstitutional for any registered voter who was manually verified and voted in the presidential election to be disenfranchised simply because s/he did not go through the biometric voter verification process prior to casting his or her vote. I am aware that Constitutional Instrument 75 (CI 75) provides that “the voter shall go through a biometric verification process”. I am also aware that all the political parties agreed with the Electoral Commission (EC) prior to the elections that, “No Verification, No Vote” and this was publicly confirmed by the Chairman of the EC just before the day of the elections.

Sadly, most people have assumed wrongly that because CI 75 says “the voter shall go through a biometric verification process” it is illegal and unconstitutional if a registered voter did not go through biometric verification process but were verified by other reasonable methodology and went ahead to cast a vote. Again, because of the “No Verification, No Vote” agreement between the political parties and the EC, a vote without going through biometric verification is automatically null and void. I beg to differ with such views because it is not only illogical but also unconstitutional for reasons of Articles 1 (2) of the Constitution.

In my opinion even if Regulation 30 (2) of CI 75 contained the “No Verification, No Vote”, that would not make it automatically right and constitutional to disenfranchise voters who were legally registered and (properly) verified as registered voters at the polling stations before casting their votes simply because they did not go through the biometric verification process. This is because the supreme law of Ghana is the Constitution and not a Constitutional Instrument regulating the conduct of elections. Constitutional Instruments are subservient to the Constitution and Article 42 of the Constitution states, “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda”.

The above right is fundamental, very critical to the foundations of constitutional democracy and the principle of Universal Adult Suffrage contained in the Preamble of the Constitution. Indeed, that right is entrenched in the constitution and not a privilege that could be taken away by a mere agreement between political parties and the EC. The No verification, No vote is unreasonable, disproportional and contravenes Article 1 (1) “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution” and Article 42 of the Constitution. To unnecessarily deprive a considerable proportion of registered Ghanaian voters the right to exercise their right to vote by arbitrary bilateral or multilateral agreement between political parties is tantamount to taking away the (state) sovereignty that resides within them.

Ghanaians should be reminded that if the No Verification, No Vote edict was contained in the CI 75, it would be ruled unconstitutional by the SC because it would be inconsistent with Article 42 of the Constitution for reasons I will explain later. We should also remind ourselves that Acts of Parliament and Executive Instruments that are found to be inconsistent with the Constitution can be ruled unconstitutional by the SC, so are Constitutional Instruments. Here, I draw attention to the recent SC ruling on Prof Stephen Kwaku Asare versus the Attorney General regarding a requirement for Dual Citizens to obtain dual citizenship card.

In a written judgment SCJ Date-Bah said as follows, “A Declaration that the administrative requirement of the Republic of Ghana for a dual citizen to obtain dual citizenship card is discriminatory, unreasonable, burdensome, serves no legitimate constitutional purpose and thereby null, void and of no effect as it contravenes the letter and spirit of Article 17 of the 1992 Constitution”; A “Declaration that the administrative requirement of the Republic of Ghana for a dual citizen to obtain dual citizenship card is discriminatory, unreasonable, burdensome, serves no legitimate constitutional purpose and thereby null, void and of no effect as it contravenes the letter and spirit of Article 15(1) of the 1992 Constitution”.

According to the Justices of the SC the Legislative Instrument that introduced the administrative requirement for Dual Citizens to carry citizenship card under Article 16 (2)(m) of the Citizenship Act 2000 (Act 591) was unconstitutional because it amended the Constitution by default instead of doing so through an Act of Parliament. In my view, the No Verification, No Vote introduced a requirement that is alien to and could by default amend not only the Constitution by also an entrenched section. I am more than convinced that SC would declare the No verification No Vote unconstitutional because it is unreasonable, and serves no legitimate constitutional purpose and therefore null and void and of no effect as it contravenes the letter and spirit of Articles 1 and 2(1) and 42.

According the NPP petition, “The aggregate of instances of voting without biometric verification was 306,498. This figure constitutes 2.7% of the total votes at the presidential election of 11,246,982 and 2.8% of the total valid votes of 10,995,262 and more than the total votes rejected of 251,720. Any rational person who believes in true democracy should be asking the question, is this reasonable, fair, proportionate and right?

To answer the question of reasonableness and proportionate of such wholesale disenfranchisement, one has to revert to CI 75 and as Prof Kuruk rightly pointed out in his aforementioned article, that CI 75 did not prescribe any sanction whatsoever for voting without going through biometric verification. To introduce such sanction outside CI 75 and after the election is unconstitutional and recipe for chaos in future electoral processes. Second, how could the state punish registered voters who have exercised their constitutional rights due to what at worst, appears to be an administrative incompetence and irregularities by some agents of the EC and alleged collusion by some party agents? Shouldn’t the appropriate and reasonable sanction be identifying such unscrupulous agents and taking action against them instead punishing voters who at the time of casting their votes, genuinely believed that they could do so without going through the biometric verification process?

Second, was it possible to accurately verify a registered voter at the polling stations without necessarily going through the biometric registration? The answer to me is, absolutely yes, because such voters would have presented EC photo bearing Voters’ Registration Identity Card. They would have given a name, age and residential address that would have tallied with the EC’s voters’ list at each polling station. So having identified themselves as legally registered voters by presenting the required evidence and having been verified by the EC’s records, would it not be folly for 306,498 registered voters to be disenfranchised unconstitutionally?

Third, what was the objective of the biometric verification? Was it to disenfranchise registered voters? My answer is emphatically, no. Rather it was to stop multiple voting and enhance the principle of Universal Adult Suffrage of “one person one vote” at the elections. It would be defeatist if a measure that was meant to safeguard universal adult suffrage is actually applied to deny some citizens their constitutional right to vote and for their votes to be counted. Unless the NPP can show that all the 306,498 votes constitute multiple voting, the petition to the SC to disallow the totality of this figure falls flat for reasons of disproportionality of the sanction and unreasonableness.

Last but certainly not the least, both the political parties and the EC might not have envisaged the magnitude of the challenges that the biometric machines posed on election day (non functioning machines and massive rejection of registered voters due to misuse, low battery power, lack of availability of back up verification machines, etc). Coupled with lack of advice and directives from the EC on the day as well as long queues of voters in the hot sun at polling stations across the country, was it reasonable to manually verify some voters (in consultation with all parties at polling stations) to enable them exercise their constitutional rights?) My answer is yes.

The only problem I have with manual verification was that, the President was heard on live television to have said that voters should be allowed to vote without the biometric verification. That was wrong because he went above his authority since that decision was for the EC to make. As President, though what he said was a suggestion and not a directive, knowing very well how things work in Ghana, some polling station officials might have misconstrued that to be a directive from above. Again, as a candidate and a potential direct beneficiary of such arrangement, he should not have made such suggestion. I believe that is why NPP is seeking to disenfranchise the quantum of such votes from the presidential election but I am afraid that such gargantuan disfranchisement would be disproportional, unreasonable and unconstitutional.

Is NPP also demanding that the 306,498 be removed from the parliamentary votes and if so, how would the party identify which constituencies and parliamentary candidates should be the subject to such of disenfranchisement?

My final submission is that, in most liberal democracies such as Ghana’s, the Judiciary is trained and encouraged to interprete and apply the supreme law of the land to enhance the enjoyment of fundamental human rights but not to curtail them. That is, to regard the supreme law as a living embodiment of the peoples’ aspirations and I quote what SCJ Doste wrote in the Republic versus the High Court in a parliamentary election petition that went to the Supreme Court.

‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution”.

“Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law”.

For the above reasons and the quotation from SCJ Dotse, I expect the SC to follow the practice giving a broader interpretation to the Constitution and strike out the No Verification, No Vote as unconstitutional and reject NPP’s relief that 306,498 voters must be disenfranchised. These are my personal opinions and absolutely aware that this matter is solely the purview of the SC of Ghana and the Justices who would have the honour and arduous task of hearing and judging the merits of the petition. I do not claim to be repository of legal knowledge let alone Constitutional Law. I rest my case.