APALOO vs. ELECTORAL COMMISSION [2001-2002] 2 GLR 372

CASES REFERRED TO

(1) Republic v Akwapim Traditional Council; Ex parte Fori [1975] 1 GLR 457.

(2) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

(3) Carpeter v Barber, 198 So 49 (Fla 1940).

(4) Whitley v Renchart, 192 So 819 (Fla 1940).

(5) Whitley v Rinechart Jr, 198 So 49 (Fla 1940).

(6) Palm Beach County Canvassing Board v Harris, Supreme Court of Florida, 21 November 2000. (7) Boardman v Esteva, 323 So 2d 259 (Fla 1975).

(8) Tehn-Addy v Electoral Commission [1996-97] SCGLR 589.

(9) Stowe v Jolliffe (1874) 30 LT 795; 38 JP 617; 22 WR 911.

(10) Ryder v Hamilton (1869) LR 4 CP 559; 38 LJCP 260; 20 LT 444.

(11) Reynolds v Sims, 377 US 533 (1964).

(12) Republic v Inspector-General of Police; Ex parte Aniagyei [1976] 1 GLR 394.

(13) Election of the First President, In re; Appiah v Attorney-General (1969) 2 G & G 530, CA. (14) Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, HL.

ACTION by the plaintiff, a registered voter, under article 2(1)(b) and 2(2) of the Constitution, 1992 against the Electoral Commission for, inter alia, a declaration that the directive by the commission contained [p.377] of [2001-2002] 2 GLR 372 in the Gazette notice of 27 November 2000 that only photo identity cards would be accepted, but thumbprint identity cards would not be valid, to enable voters to vote at the 2000 Presidential and Parliamentary Elections scheduled for 7 December 2000 was inconsistent with and in contravention of articles 42 and 51 of the Constitution, 1992 and therefore null and void. Tll he facts are sufficiently stated in the judgment of Bamford-Addo, Ampiah, Kpegah and Lamptey JJSC.

N K Kudjawu (with him Sena Kudjawu (Miss)) for the plaintiff.

J Quashie-Idun (with him Ebow Quashie and KAduarna Osei) for the defendant.

Dr Obed Asamoah, Attorney-General (with him S Y Anim, Chief State Attorney) for the Republic.

Bamford-Addo JSC. On 4 December 2000 this case was heard at the Supreme Court which delivered a unanimous judgment on the same day but reserved the reasons, to be given on 17 January 2001. The following is my reasons in support of the said unanimous decision. The plaintiff who claims to be a citizen of Ghana and a registered voter, issued a writ dated 29 November 2000 invoking the original jurisdiction of this court under article 2(1)(b) of the Constitution, 1992 for:

“(1) A declaration that the decision and directives of the defendant, that only a photo identity card will be accepted by the defendant to enable voters to vote at the forthcoming presidential and parliamentary elections scheduled to take place on 7 December 2000 or in the alternative that prospective voters without a photo ID will be permitted to vote only with the unanimous affirmation of the said voters’ identity by the agents of all the candidates as contained in the Gazette Notice dated 27 November 2000 and the Electoral Commission of Ghana’s Guide to Electoral Officials 2000, is an act of the defendant which is inconsistent with or is in contravention of articles 42 and 51 of the Constitution of the Republic of Ghana and therefore null and void.

[p.378] of [2001-2002] 2 GLR 372

(2) An order of perpetual injunction restraining the defendant by itself, its servants and agents from enforcing the defendants’ ‘No Photo ID Card No vote Directives’ or the directives contained in the Gazette Notice dated 27 November 2000 in respect of voters without a voter ID card contained in the Electoral Commission’s Guide to Election Officials 2000.

(3) Any other directions as to give effect to or enable effect to be given to the declaration herein sought.”

The basis of the plaintiff’s claim is that even though numerous eligible voters in the country were in possession of thumbprint identity cards who have not as yet been issued with photo identity cards the defendant had decided and published in a Gazette Notice dated 27 November 2000 directives that in the forthcoming presidential and parliamentary elections scheduled for 7 December 2000 only photo identity card holders will be allowed by the defendant to vote. That the defendant had further directed that a prospective voter without a photo ID card will only be permitted to vote with the unanimous affirmation of the said voter’s identity by all the candidates or party agents, that they know that person as stated in the Guide to Election Officials 2000 at p 24, para 1.2. That the act of the defendant is inconsistent with or is in contravention of the provisions of articles 42, 51 and 296 of the Constitution, 1992 as the said directives contained in the said Gazette notice are not in the form of a constitutional instrument as required under article 51 of the Constitution, 1992.

The defendant commission on the other hand contended that in the attempt to ensure proper identification of voters it was decided to replace the thumbprint IDs with photo IDs and that this exercise began before the 1996 elections but was not completed so in 1999 the exercise was again mounted for the replacement of thumbprint ID cards with photo ID cards before the next elections. The defendant continued that the said exercise commenced in all parts of the country by concentrating on one region at a time, in the ten regions and ended with the Greater Accra Region on 18 November 2000. That after 18 November 2000 voters who had lost their photo ID cards could go for replacement of photo ID cards until 30 November 2000 which was extended to Sunday, 3 December 2000. The defendant did not deny that

[p.379] of [2001-2002] 2 GLR 372 not every registered voter had been issued with a photo ID card as at 3 December 2000. However, the defendants admitted in paragraph (6) of the statement of the defendant’s case that:

“(6). In answer to paragraphs (5), (6), (7) and (8) of the plaintiff’s statement of case, the defendant avers that in regulation 30 of the Public Elections Regulations, 1996 (CI 15) as also in regulation 11 of the Public Elections (Registration of Voters) Regulations, 1995 (CI 12), the defendant made regulations concerning the production by a voter of an identity card or to furnish such other evidence as may be determined by the commission to the presiding officer before being given a ballot paper. The said regulation did not particularise the production of either a thumbprint or a photo ID card, and the defendant contends that with the replacement of the thumbprint ID cards with photo ID cards it was unnecessary for the defendant to publish another constitutional instrument.”

I wish to state here at once that this defence is untenable because according to article 51 of the Constitution, 1992:

“51. The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

(The emphasis is mine.) This was done by the commission in the Public Elections (Registration of Voters) Regulations, 1995 (CI 12) and the Public Elections Regulations, 1996 (CI 15) as admitted above. But since article 297(d) of the Constitution, 1992 required that:

“(d) where a power is conferred to make any constitutional or statutory instrument, regulation or rule or pass any resolution or give any direction, the power shall be construed as including the power, exercisable in the same manner, to amend or to revoke the constitutional or statutory instrument, regulation, rules or resolution or

[p.380] of [2001-2002] 2 GLR 372 direction as the case may be.”

It was incumbent on the defendant if it desired to alter the requirement in regulation 30 of CI 15 and regulation 11 of CI 12 to make the necessary change or amendment by the issuance of another constitutional instrument to effect the necessary change. So that, the defendant’s contention in its statement of case that in switching from thumbprint ID cards to photo ID cards it was unnecessary to publish another constitutional instrument, is a clearly untenable defence since the publication of a constitutional instrument was a constitutional requirement which had to be followed by the defendant. Hence the defendant’s assertion that the plaintiff’s construction and interpretation of the Gazette notice in this record was wrong and unjustified cannot be correct. This answers the question whether the Electoral Commission should have covered its directives contained in the Gazette Notice of 27 November 2000 with a constitutional instrument to validate the directives therein contained. In consequence, failure to do this contravened articles 42 and 51 of the Constitution, 1992.

Under article 2(1)(b) of the Constitution, 1992:

“2. (1) A person who alleges that— . . .

(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.”

And article 2(2) says that:

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

This means that any citizen of Ghana is entitled to invoke the original jurisdiction of the Supreme Court for the interpretation of the Constitution, 1992 and such a person need not himself have any personal interest in the result of the matter. This is what the plaintiff in this case is seeking to do. For ease of reference the directives of the Electoral Commission contained in the Gazette Notice of 27 November 2000 is set out hereunder It is marked exhibit A:

[p.381] of [2001-2002] 2 GLR 372

“PRESIDENTIAL AND PARLIAMENTARY ELECTION 2000 The Public is hereby informed that for purposes of voting in the forthcoming Presidential and Parliamentary elections 2000 and future public elections, only Photo Voter Identity cards shall be used. Thumbprint Identity Cards shall no longer be valid for voting.

Any voter who presents himself/herself without a photo identity card, shall go through the following steps for identification:

(i) the presiding officer shall check for the name in the name reference list;

(ii) if the name is not on the list, the person will be politely told to go away from the polling station;

(iii) if the name is on the list, and all the candidate agents affirm that they know the person, he/she shall be allowed to go through the voting steps straight-away;

(iv) if there is any doubt as to the identity of the voter, the presiding officer shall pick the original registration form of the person, using voter identity number on the name reference list;

(v) the voter shall be required to confirm certain details provided on the registration form, to enable him/her to be allowed to vote;

(vi) the verification of identity of such a voter shall take place in the presence of the party agents.”

(The emphasis is mine.) The people of this country in 1992 promulgated for themselves a Constitution which vested sovereign power in the people and provided a democratic form of government based on certain fundamental principles, namely a political pluralism, a majority parliamentary representative rule, under which form of government, all citizens of full age and sound mind had the right to vote during an election to choose their representatives. In the preamble to the Constitution, 1992 it is stated clearly that: “We the people of Ghana, in exercise of our natural and alienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; …

[p.382] of [2001-2002] 2 GLR 372

The Principle that all powers of Government spring from the Sovereign Will of the People; The Principle of Universal Adult Suffrage;

The Rule of Law;

The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation;

Do Hereby Adopt, Enact and Give to Ourselves this Constitution.”

As said by eminent writers of constitutional law, the right of suffrage is the pre-eminent right provided under the Constitution, 1992 without which the basic rights and freedoms would all be diminished. The people’s solemn and ardent intention and desire to adopt our present form of government based on universal adult suffrage requires our court to ensure that nothing be allowed to detract from a citizen’s voting right granted under the constitutional democracy we have so freely adopted for ourselves and for posterity. The representative government is provided under article 1 of the Constitution, 1992 which states emphatically the important role of the people in the governance of this country as follows:

“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.

(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

(The emphasis is mine.) The government of this country is therefore exercised on behalf of the people by elected representatives in a pluralistic free and fair elections.

The way and manner for the exercise of this right to elect representatives, is provided for in the Constitution, 1992 and within certain laid down limits. In article 42 of the Constitution, 1992 it is provided that:

[p.383] of [2001-2002] 2 GLR 372

“42. 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 right to vote is an inalienable right and is listed also under article 21(3) of the Constitution, 1992 among the general fundamental freedoms as well as under article 55(2) of the Constitution, 1992 which gives every citizen of Ghana of voting age the right to join a political party and to freely participate in the shaping of the political will of the people. As stated in article 21(3) of the Constitution, 1992:

“(3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution.”

To this end power is given to the Electoral Commission in article 51 of the Constitution, 1992 to make laws regulating the electoral process which, if valid, would govern the exercise of the franchise. For this reason, if it imposes unreasonable or unnecessary restraints on the people’s right to vote, or indirectly takes away that inalienable right, in contravention of article 42 of the Constitution, 1992 quoted above, such laws or regulations or directives would be struck down by this court as null and void.

Since according to article 1 of the Constitution, 1992 sovereignty of Ghana resides in the people, only the people may decide how and when the franchise may be interfered with and no other inconsistent law made by the Electoral Commission would be permitted to interfere with the said right. Further, the Electoral Commission is the only authority invested with power to perform certain functions, among others, namely to register voters and to conduct and supervise all public elections and referanda: see article 45(a) and (c) of the Constitution, 1992. The Constitution, 1992 also makes the Electoral Commission completely independent, so as to enable the commission to perform its duties independently of any person or authority, to no doubt prevent partisanship and to ensure fairness in the discharge of the commission’s duties. In the exercise of its functions the commission also exercises

[p.384] of [2001-2002] 2 GLR 372 discretionary powers, but these powers should be exercised only by the commission and its staff and permits no interference by any person or authority or the involvement of any agents of any political parties, otherwise the independence of the commission granted by article 46 of the Constitution, 1992 would be meaningless, resulting in a complete chaos of the electoral process contrary to the intention contained in the Constitution, 1992.

According to article 46 of the Constitution, 1992:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

The effect of this article is also that the Electoral Commission cannot delegate or share its discretionary powers with any other person or authority, eg political agents of different parties, since as already stated above, this would amount to interference with the performance of the Electoral Commission’s functions which article 46 of the Constitution, 1992 seeks to avoid and prevent. For the above reasons, in the conduct and supervision of an election it is the Electoral Commission alone which has to exercise discretion to make all decisions not inconsistent with the Constitution, 1992 or any other law.

This is why article 51 of the Constitution, 1992 provides the procedure and manner to be adopted by the Electoral Commission for the effective performance of its functions, particularly in the registration of voters and the conduct of elections and referanda, through the making of public constitutional instruments.

In respect of the registration of voters CI 12 was made. Regulations 11 of CI 12 which states that:

“11. Where upon an application there is no objection to the application the registration officer shall enter the name of the applicant in the register which shall be provisional only and shall issue to the applicant a voter identification card in such form a the Commission shall determine.”

(The emphasis is mine.) The voter identification card issued under CI 12 was at the time a thumbprint ID card. As can be seen regulation 11 of CI 12 did not restrict the identification card strictly to photo ID card

[p.385] of [2001-2002] 2 GLR 372 but referred generally to an identification card. However, it was within the Electoral Commission’s power and discretion to amend regulation 11 of CI 12, to require a photo identification card as the only one required now for voting, but as discussed earlier, regulation 11 of CI 12 would require an amendment by a constitutional instrument to this effect: see article 51 of the Constitution, 1992 by whose authority regulation 11 of CI 12 was enacted, and also article 297(d) of the Constitution, 1992. It is to be noted that nowhere in the Constitution, 1992 or CI 12, was notification in a Gazette notice sufficient for the purpose of the amendment of CI 12, particularly regulation 11 thereof as the commission seeks to do. Where in the regulation notice is required to be given in a Gazette it was specifically so stated. Examples can be found in regulations 2(3), 7(1) and (2), 10(1) and 18 of CI 12. Whereas a Gazette notice is not adequate to amend regulation 11 of CI 12. If therefore this regulation is sought to be amended the proper procedure to adopt is as provided under article 51 of the Constitution, 1992 by resort to a constitutional instrument and article 297(d) of the Constitution, 1992. Furthermore, article 11(7) of the Constitution, 1992 provides that:

“(7) Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall— (a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before Parliament; and

(c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.”

To make a constitutional instrument requires the approval of Parliament for its validity as set out above. Therefore since the procedure in article 11(7) of the Constitution, 1992 was not complied with by the Electoral Commission, the amendment sought to be made by the commission, to restrict a voter ID card specifically to only photo identification card as the only legal form of proving identity, is in contravention of articles 51, 297(d) and 11(7) of the Constitution, 1992

[p.386] of [2001-2002] 2 GLR 372 and therefore the directive contained in the Gazette Notice of 27 November 2000 is null and void and of no effect.

Again in CI 15, reg 30 which deals with the identification of voters it was provided that:

“30. (1) A presiding officer may, before delivering a ballot paper to a person applying to vote at the election, require the person—

(a) to produce his or her voter identification card or to furnish such other evidence as may be determined by the Commission to establish that he or she is the registered voter whose name and voter identification number and particulars appear in the register; and (b) to make a declaration in the prescribed form that he has not already voted anywhere at the election.”

(The emphasis is mine.) According to regulation 31(1) of CI 15:

“31. (1) Every voter desiring to record his vote shall present himself at his allotted station and the presiding officer or polling assistant, after satisfying himself that the voter is registered and has not already voted, and that any other means of identification determined by the Commission in the possession of the voter is valid, shall deliver the ballot paper to the voter.”

(The emphasis is mine.) The functions of the Electoral Commission to check and verify identification of the prospective voters can be found in regulations 30 and 31 of CI 15 set out above, by officers of the commission, ie a presiding officer or polling assistant and no other persons were mentioned, so that regulations 30 and 31 of CI 15 excludes candidates’ agents or polling agents of political parties whose duties are spelt out in regulation 19 of CI 15. Also in regulation 30 of CI 15 general mention was made of voter identity cards as proof of identity of a registered prospective voter, who has to produce his voter identification card which in the present circumstances could be a thumbprint identification or photo identification, because no particular one of these was specifically mentioned as the only valid identification card which has to be produced for the purposes of identification. However, the commission through its employees may in case of doubt

[p.387] of [2001-2002] 2 GLR 372 ask for further identification by the prospective voter, for example his or her name and voter identification number and for certain other particulars which appear in the register. In my opinion, the Electoral Commission’s discretion has to do with the production of any ID card and other evidence required by the Electoral Commission and voter identification card could be thumbprint or photo identification since regulation 30 of CI 15 did not restrict identification card to photo identification only until regulation 30 of CI 15 is properly amended by the Electoral Commission as described earlier.

Even though it is a fact that the thumbprint identification was subsequently changed to photo identification card for some people, the Electoral Commission cannot lawfully insist on the production of only a photo identification card for proof of identity, consequently, it is my opinion that the beginning of the Gazette Notice dated 27 November 2000 which directed that:

“The public is hereby informed that for purpose of voting in the forthcoming Presidential and Parliamentary elections 2000 and future public elections, only photo voters identity cards shall be used. thumbprint identity cards shall no longer be valid for voting.” is unjustified, null and void, since that directive was not backed by a constitutional instrument. For this reason the constitutional requirement in article 51 of the Constitution, 1992 was breached and the plaintiff was entitled to come to this court for a proper interpretation and enforcement of articles 42 and 51 of the Constitution, 1992 as well as other laws and regulations already mentioned above.

The next issue for consideration is the complaint of the plaintiff that the directives contained in the Gazette notice requiring at paragraph 2(iii) thereof that: “If the name is on the list and all the candidate agents affirm that they know the person, he/she shall be allowed to go through the voting steps straight away”, was a wrongful delegation of the Electoral Commission’s functions, and was of no effect and void. The complaint of the plaintiff can be found at paragraphs (6), (17), (19), (20) and (21) of the statement of plaintiff’s case, namely:

“(6) In the alternative the plaintiff says that a prospective voter

[p.388] of [2001-2002] 2 GLR 372 without a photo identification card will be permitted only with the unanimous affirmation of the said voter’s identity by all the candidates/party agents that they know the person as stated in the Guide to Election Officials 2000 at p 24, para 1.2 . . .

(17) The plaintiff will contend that the defendant’s new requirement contained in the unconstitutionally published Gazette Notice of 27 November 2000 that the verification of identity of a voter shall take place in the presence of all parties/candidates agents, with their unanimous affirmation of the voters identity, thereby involving political parties in the exercise of the defendant’s discretion granted it only by the Constitution, 1992 and other laws is wrongful and ultra vires . . .

(19) The plaintiff will contend that the defendant’s commission is so designed under the Constitution, 1992 to perform its duty without the involvement of political parties when the Commission is exercising its discretionary powers under the Constitution, 1992 or any other law.

(20) The plaintiff says that by the defendant’s directives requiring the unanimous affirmation of the identity of the voter by political parties’ representatives is an abdication of the defendant’s statutory functions which are constitutional and the delegation of the defendant’s said discretion is arbitrary and capricious in contravention of article 296(c) of the Constitution, 1992.

(21) The plaintiff will therefore submit that the defendant’s acts and conduct are not in conformity with the powers conferred upon him by the Constitution, 1992 and the laws of the land and therefore must be declared null and void.”

The plaintiff’s complaint and challenge to the above stated directives has much merit.

Even though the commission and its employees have to check for the correct identity of a prospective voter to avoid impersonation, double voting, etc by the use of its discretionary powers, those powers were granted to the commission alone. The commission is an independent body which cannot in any way be interfered with in the performance of its functions: see articles 46, 52 and 53 of the Constitution, 1992.

Accordingly, to allow political candidates’ agents

[p.389] of [2001-2002] 2 GLR 372 to be the final arbiters of the identity of a prospective voter, which function belongs exclusively to the independent commission, would be wrong and contrary to the provisions of the said article 46 of the Constitution, 1992. The Electoral Commission and its staff only are empowered to actually exercise the powers and discretion accorded to the defendant commission under article 52 of the Constitution, 1992 which provides: “52 There shall be in every region and district a representative of the Electoral Commission who shall perform such functions as shall be assigned to him by the Commission.” And article 53 of the Constitution, 1992 also provides for the appointment of staff of the commission. Since candidates/agents are not staff of the commission, the defendant had no power to delegate or assign any of its functions under article 51 of the Constitution, 1992 to them, since doing this would be wrongful and ultra vires its powers. Therefore to allow candidates/agents to verify the identity of prospective voters by unanimous affirmation, as directed by the commission in the Gazette Notice of 27 November 2000, is wrong and ultra vires. Such act would hinder rather than be conducive to a free and fair election as required in the electoral processes and laws and would actually be contrary to the actual intention of the framers of the Constitution, 1992.

The principle on delegation of powers, of an authority like the defendant commission, is that such powers should be exercised by the authority upon whom it was conferred and by no one else, except in cases where it may reasonably be inferred that the power was delegable and the courts normally rigorously enforce this principle. The maxim delegates no potest delegare is in appropriate cases invoked. In the case of statutory powers granted to an authority, the question to be considered is whether on the construction of the statute the conferred power may be exercised by another. Unless the Act does admit of such interpretation, the court would not sanction delegation of powers and would hold any such delegation to be ultra vires because the final and effective decision, to be taken in accordance with the discretion, should be that of the holder of the power, not someone else to whom the power was not originally given. This is so because the valid exercise of a discretion requires a genuine application of the mind and a conscious choice by the proper authority, therefore the directive contained in the second paragraph, ie para (iii) of the Gazette notice giving the candidates’ agents the power to unanimously affirm the

[p.390] of [2001-2002] 2 GLR 372 identity of a voter before allowing him to vote, being a discretionary power which is given by statute to only the commission and its employees, ie the presiding officers and polling assistants, may be held to put the decision effectively into the hands of the candidates’ agents who lack statutory or constitutional power and authority to make such decisions. More so when article 46 of the Constitution, 1992 requires the complete independence of the commission in the performance of its functions. Regarding the principle, delegates non potest delegare, see the case of Republic v Akwapim Traditional Council; Ex parte Fori [1975] 1 GLR 457. The Akuapim Traditional Council at one of its meetings held on 16 October 1973 selected four persons including the registrar of the council and authorised them to appoint the members of the judicial committee who were to adjudicate certain cases then pending before the council. The applicant, a party to one of the cases being heard, objected to the jurisdiction of the judicial committee and brought the application for an order of prohibition on the ground that the Chieftaincy Act, 1971 (Act 370) conferred no power on the traditional council to delegate its power of appointing a judicial committee to other persons. It was held, as stated in the headnote, in granting the application that:

“. . . the council’s purported delegation of the authority to appoint judicial committee members to other persons, be they traditional council members or not, was on the principle of delegatus non potest delegare contrary to law and the subsequent appointment of the judicial committee by an incompetent body was accordingly irredeemably infected by want of authority and must therefore be pronounced null and void. Dictum of Brett L.J. in R v Local Government Board (1882) 10 Q.B.D. 309 at p. 321, C.A. applied.”

Quite clearly, whereas the Constitution, 1992 has been so designed to make the defendant commission completely independent in the performance of its duties and functions, the directives of the commission amounting to a delegation of its duties under discussion, would, if permitted to be effective, be contrary to the mischief sought to be prevented by the Constitution, 1992, namely to empower the commission to act in a non partisan and fair manner in the discharge of its functions. The said direction is contrary to both the letter and

[p.391] of [2001-2002] 2 GLR 372 spirit of the Constitution, 1992 and contravenes articles 42, 51, 46, 21(3) and 55(2) thereof, and is therefore null and void.

We in this country have adopted a democratic form of government, as well as other political rights, including the right to vote. This right ought to be exercised in a free and fair manner as provided for under various articles of the Constitution, 1992 and other laws. Therefore any act which seeks to deprive, undermine, prevent or hinder the people, or any section thereof from voting and thereby participating in the political life of the community, is wrong and illegal, it is a major deprivation of their right to vote, which is contrary to our Constitution, 1992 and undermines the whole concept of a democratic government. As stated by a great constitutional writer Thomas Paine who said in his article “Democracy as a Universal Value” in the Journal of Democracy (1998–July 1999 issue): the right of voting for representatives:

“is a primary right by which all rights are protected. To take away this right is to reduce a man to slavery for slavery consists in being subject to the will of another and he that has not a vote in the election of representatives is in this case.”

The UN adopted the Universal Declaration of Human Rights in 1948 and underscored the political rights of the people as did the Charter of the OAU, of which organisation Ghana is a member. Ghana has adopted democracy and those principles are eloquently given force in the preamble and article 1 of the Constitution, 1992. In the now contemporary world, any limitation on suffrage is rejected, as it is universally accepted that there is no reason, at all for exclusion of the right or any limitation to it considering that all men are created equal and have one vote each. For this reason, it is incumbent on the Electoral Commission to provide by all legitimate means for the free and unlimited exercise of the citizens’ franchise to conform with both the letter and spirit of the Constitution, 1992. This is the reason which informs the manner in which electoral laws ought to be interpreted. The rules of interpretation of the Constitution provides a guiding principle which has to be applied, which rules are also applicable to the interpretation of laws affecting the right to vote as provided in article 42 and other relevant articles in the Constitution, 1992.

This guiding principle is set out in Tuffuor v Attorney-General [1980] GLR 637 at 647–648, CA sitting as SC where the court stated [p.392] of [2001-2002] 2 GLR 372 as follows:

“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. . . 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.”

(The emphasis is mine.) The above quotations from our own jurisdiction as to interpretation accords with that of US courts in cases which set out the reasoning underlining the requirement that a liberal interpretation must be given to electoral laws. No interpretation which has the result of ultimately denying any citizen of the franchise, would be right as this would be against the intention as well as the letter and spirit of the Constitution, 1992 considering particular the articles referred to above. The principle that since election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favour of the citizens’ right to vote can be found in several US cases. In the case of State ex Rel Carpeter v Barber, 198 So 49 at 51 (Fla 1940) it was stated that:

“General, the courts in construing statutes relating to elections, hold that the same should receive a liberal construction in favour of the citizen whose right to vote they tend to restrict and in so doing to prevent disfranchisement of legal voters and the intention of the voters should prevail when counting ballots … It is the intention of the law to obtain an honest expression of the will or desire of the voter.”

See also State ex Rel Whitley v Renchart, 192 So 819 at 823 (Fla,

[p.393] of [2001-2002] 2 GLR 372

1939). As can be seen, the principle regarding the interpretation of election laws is that they should be construed liberally in favour of the right to vote rather than a denial of that right, since this is the intention of the Constitution, 1992 in various articles especially and particularly article 42 which provides that all registered voters be allowed to vote freely without any unreasonable hinderance whatsoever. This is also clearly in conformity with the spirit of the Constitution, 1992. Elections must necessarily be free and fair so as to obtain an honest expression of the will of the people, therefore any interpretation of any of the electoral laws and regulations or the exercise of a discretion by the defendant commission should conform with this constitutional interpretation of regarding laws in conformity with the clearly evident intention of the Constitution, 1992. See also the US case of Whitley v Hollis Rinehart JR 198 So 49 (Fla, 1940) respecting the opinion Terrell CJ wherein he restated the principle regarding the importance of the ballot and interpretation of election laws as follows:

“One cannot read Article VI and not be impressed with the importance of the ballot and the safeguards that the makers of the Constitution felt impelled to throw around its purity. Registration and voting are sovereign duties imposed on every citizen of a democracy. We hear a lot of loose talk about the right to vote but as distinguished from a duty, there is no such thing as a right to vote. Voting is the most responsible duty the citizen of a democracy is called upon to perform, it is duty not to be exercised flippantly, for in its performance our social and economic states, our ideals, and general well being are determined. . .”

On how election laws are to be construed the Honourable CJ said “Election laws should be construed liberally in favour of the right to vote . . .” In yet another recent US case of Palm Beach County Canvassing Board v Katherine Harris dated 21 November 2000 the court restated the guiding principles to be applied quoting Boardinan v Esteva, 323 So 2d 259 at 263 (Fla, 1975) thus:

“Ours is a Government of, by and for the people. Our Federal and State Constitutions guarantee the right of the people to take an active part in the process of that Government, which for most

[p.394] of [2001-2002] 2 GLR 372 of our citizens means participation via the election process. The right to vote is the right to participate: it is also the right to speak but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of public voice. By refusing to recognize an otherwise valid exercise of a right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.”

This is how electoral laws ought to be interpreted in this country as well, considering the intention of the drafters of the Constitution, 1992.

Electoral laws commence with the right to be registered as a voter which entitles a registered citizen to the right to vote freely without any hinderance or limitation as stated in article 42 of the Constitution, 1992 and this court has previously protected the right to register as inalienable and enforced registration of a qualified voter when the Electoral Commission failed to register him: see the case of Tehn-Addy v Electoral Commission [1996-97] SCGLR 589. The plaintiff presented himself for registration to the Electoral Commission as a voter during the supplementary registration exercise which was conducted by the commission between 1-9 June 1996 but the commission refused to register him as a voter thereafter, which was inconsistent with articles 42, 45, 46 of the Constitution, 1992. He brought an action to the Supreme Court, invoking the original jurisdiction for, inter alia, a declaration that the conduct of the commission was inconsistent with the said articles of the Constitution, 1992. It was unanimously held by the Supreme Court granting the order for the Electoral Commission to register the plaintiff as a voter that:

“(a) Every sane Ghanaian citizen of eighteen years and above had the right under article 42 of the 1992 Constitution to be registered as a voter. The exercise of that constitutional right of voting was indispensable in the enforcement of the democratic process and it could not be denied in the absence of constitutional provision to that effect.

Per Curiam (1) A heavy responsibility is . . . entrusted

[p.395] of [2001-2002] 2 GLR 372 to the Electoral Commission under Article 45 of the Constitution in ensuring the exercise of the Constitutional right to vote. For in the absence of this right, the citizen is able not only to influence the outcome of the elections, and therefore the choice of a Government, but also he is not in a position to help influence the course of social, economic and political affairs thereafter. He indeed becomes involved in the decision making process at all levels of governance.”

In similar manner, the courts should and would protect the right to vote at all costs as it has previously protected the right to register, otherwise, democracy in this country would be undermined.

Speaking for myself, I am of the strong view that as guardians of the Constitution, 1992 and the rights and freedoms provided therein for all people, including the right to vote, which is the first basic right and pivot upon which all other rights rests, it is the bounden duty of this court to strike down any act which has the effect of taking away the full and free enjoyment of the franchise, an act which though unintended would contravene the relevant provisions of our Constitution, 1992, as sufficiently discussed above. As I have intimated earlier, the relevant Electoral Commission’s decision and directives referred to above are null and void and of no effect, and I so hold.

Even though I think the commission’s said directives were guided by the laudable desire to prevent election frauds and impersonations and to hold a free and fair elections this should be done in such a manner as not to take away the right to vote of some citizens of this country, the very right which is sought to be protected.

Ampiah JSC. On 4 December 2000 the court gave judgment in favour of the plaintiff in this action and reserved the reasons for its decision. I now proceed to give my reasons for supporting the unanimous decision of the court.

By his writ of summons, the plaintiff, Philip Kwaku Apaloo sought:

“(1) A declaration that the decision and or the directives of the defendant that only a photo identity card will be accepted

[p.396] of [2001-2002] 2 GLR 372 by the defendant to enable voters to vote at the forthcoming presidential and parliamentary elections scheduled to take place on 7 December 2000 or in the alternative that prospective voters without a photo ID will be permitted to vote only with the unanimous affirmation of the said voters’ identity by the agents of all the candidates as contained in the Gazette Notice dated 27 November 2000 and the Electoral Commission of Ghana’s Guide to Electoral Officials 2000 is an act of the defendant which is inconsistent with or is in contravention of articles 42 and 51 of the Constitution of the Republic of Ghana and therefore null and void.

(2) An order of perpetual injunction restraining the defendant by itself, its servants and agents from enforcing the defendant’s ‘No Photo ID Card No Vote Directives’ or the directives contained in the Gazette Notice dated 27 November 2000 in respect of voters without a voter ID card contained in the Electoral Commission’s Guide to Election Officials 2000.

(3) An order restraining the defendant by itself, its servants and agents from conducting the forthcoming presidential and parliamentary elections or any other election until the determination of the suit herein.

(4) Any other directions as to give effect to or to enable effect to be given to the declaration herein sought.”

The complaint of the plaintiff against the acts of the defendant is contained in paragraphs (5) and (6) of the plaintiff’s statement of case. It is this:

“(5) Notwithstanding the fact that there are numerous eligible voters in the country holding thumbprint identity cards who have not as yet been issued with the said photo identity card, the defendant has decided and published in a Gazette Notice of 27 November 2000 directives that in the forthcoming presidential and parliamentary elections scheduled for 7 December 2000 only photo identity card [p.397] of [2001-2002] 2 GLR 372 holders will be accepted by the defendant to vote. I attached hereto copy of the said Gazette notice marked exhibit A.

(6) In the alternative, the defendant says that a prospective voter without a photo identification card will be permitted to vote only with the unanimous affirmation of the said voter’s identity by all the candidates/party agents that they know the person as stated in the Guide to Election Officials 2000 at p 24, para 1.2.”

The plaintiff contends that:

(1) The Gazette Notice dated 27 November 2000 and the Electoral Commission Guide to Electoral Officials 2000 which seek to disenfranchise some citizens are inconsistent with or are in contravention of articles 42 and 51 of the Constitution, 1992.

(2) The delegation of the defendant’s authority to identify those who are entitled to vote, to polling agents, is unconstitutional and therefore invalid.

By its statement of case, the defendant has given the historical background to the process of identification and attempts at making identification easier and simpler for purpose of voting. I must say, and this cannot be denied, that great effort has been put in by the defendant to make the identification of voters simple and easy. The effort is laudable. But not all laudable efforts are lawful. The complaint here is that however laudable these acts have been, they violate the Constitution, 1992 and the laws of the land.

Article 42 of the Constitution, 1992 provides:

“42. 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.”

There is no doubt that the 2000 Presidential and Parliamentary Elections are some of such public elections. Consequently, provided the person is:

(i) a citizen of Ghana;

[p.398] of [2001-2002] 2 GLR 372

(ii) eighteen years of age or above;

(iii) of a sound mind; and

(iv) duly registered in the register of voters, he has a right to vote. It is however necessary, in order to avoid fraud, misrepresentation and impersonation that the voter should be properly identified before he is allowed to vote. That process has been left to the Electoral Commission by article 51 of the Constitution, 1992 which provides:

“51. The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

In pursuance of this power to make regulations the Electoral Commission made the Public Elections Regulations, 1996 (CI 15). This was the constitutional instrument under which the 1996 Presidential and Parliamentary Elections were conducted. Regulation 30(1) of CI 15 provides:

“30. (1) A presiding officer may, before delivering a ballot paper to a person applying to vote at the election, require the person—

(a) to produce his or her voter identification card or to furnish such other evidence as maybe determined by the Commission to establish that he or she is the registered voter whose name and voter identification number and particulars appear in the register; and (b) to make a declaration in the prescribed form that he has not already voted anywhere at the election.”

For purposes of identifying a voter under this law both photo identification and thumbprint identification cards were used. Under this regulation therefore both thumbprint and photo identification cards holders were eligible to vote, provided they could be properly identified. This regulation has not been changed or amended. It is this

[p.399] of [2001-2002] 2 GLR 372 same regulation which is being used to conduct the 2000 Presidential and Parliamentary Elections. The defendant now seeks by a Gazette notification to amend this regulation. The question is could this be done; can a constitutional instrument be amended by a Gazette notification? The answer is definitely, No.

But what does this Gazette notice seek to do? The first paragraph of the Gazette notice in question states: “The Public is hereby informed that for purposes of voting in the forthcoming Presidential and Parliamentary elections 2000 and future public elections, only photo Voter Identity Cards shall be used. Thumbprint Identity cards shall no longer be valid for voting.”

(The emphasis is mine.) The language is clear. It means that “thumbprint identity cards” are not valid for voting and that only photo voter identity cards will be accepted for identification for voting. But what is not clear with this provision is that:

“(iii) If the name is on the list and all the candidates’ agents affirm that they know the person, he/she shall be allowed to go through the voting steps straightaway;

. . .

(v) The voter shall be required to confirm certain details provided on the registration form, to enable him/her to be allowed to vote.”

By these provisions, if the person’s name appears on the list and he is able to confirm certain details provided on the registration form he would be allowed to vote! What then is the rationale for refusing to accept a person whose name is on the list but holds a thumbprint voter identity card, after he has confirmed certain details provided on the registration form? This to me is discriminatory, capricious and an unnecessary attempt to disenfranchise thumbprint identity cards holders. This situation is bound to bring about confusion at the voting. It is very unfair to the thumbprint identity card holders.

It is also a provision in the Gazette notice that “all the candidate agents affirm that they know the person. . .” before that person is

[p.400] of [2001-2002] 2 GLR 372 allowed to vote. This provision amounts to a delegation of the commission’s constitutional duty. How could this provision be met when days before the election, the New Patriotic Party had declared that “No photo ID card, no vote.” This was bound to result in chaos, a situation all Ghanaians want to avoid.

Article 296 of the Constitution, 1992 provides:

“296. Where in this Constitution or in any other law discretionary power is vested in any person or authority—

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provision of this Constitution or that other law to govern the exercise of the discretionary power.”

As stated before, the Electoral Commission is empowered to make regulations for the effective performance of its duty. That power gives a discretion to the commission; the exercise of which shall not be arbitrary, capricious or biased. It is to avoid such situations that a constitutional instrument is required. This is to give the legislature, an opportunity to have a look at the intended constitutional instrument. It is provided by article 11(7) of the Constitution, 1992 that:

“(7) Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall— (a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before Parliament; and

(c) come into force at the expiration of twenty-one sitting

[p.401] of [2001-2002] 2 GLR 372 days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.”

It is said that the decision to effect the charges as contained in the Gazette notice, was agreed upon by all the parties at a meeting of the Inter Party Advisory Committee (IPAC). That may be so and that may have been done in good faith, but that cannot replace the requirement of the law that such exercise of discretion must be done following due process of the law by making a constitutional instrument to back the agreement. Article 46 of the Constitution, 1992 provides:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

Also, it is said that where power is given to a person to perform a particular duty, such power shall not be delegated without due process of the law. The maxim is, delegates potesta non potest delegari (a delegated power cannot be delegated). The manner by which a voter may be identified and allowed to vote is set down clearly in regulation 30 of CI 15. It is not the business of “. . . all the candidate agents” (ie the polling agents of the contesting candidates) to “affirm that they know the person” before he or she is allowed to go through with the voting steps. That duty is with the presiding officer or his polling assistants who must satisfy themselves of the identity of the intended voter. Regulation 19 of CI 15 sets down the duties and responsibilities of polling agents, in particular, regulation 19(1) provides:

“19. (1) A candidate may appoint one polling agent to attend at each polling station in the constituency for which he is seeking election or, in the case of a candidate for President, in every polling station nationwide, for the purpose of detecting impersonation and multiple voting and certifying that the poll was conducted in accordance with the laws and regulations governing the conduct of elections.”

[p.402] of [2001-2002] 2 GLR 372

(The emphasis is mine.) Outside this, the polling agent has no business affirming that they know the person before the voter is permitted to proceed.

Article 42 which gives the voter the right to vote is an entrenched provision of the Constitution, 1992: see article 290(1)(e) of the Constitution, 1992. Any attempt to disenfranchise a citizen in any way other than under the provision of this article must be done in accordance with the procedure laid down in the Constitution, 1992. Article 290(2), (3), (4), (5) and (6) provide:

“(2) A bill for the amendment of an entrenched provision shall, before Parliament proceeds to consider it, be referred by the Speaker to the Council of State for its advice and the Council of State shall render advice on the bill within thirty days after receiving it.

(3) The bill shall be published in the Gazette but shall not be introduced into Parliament until the expiry of six months after the publication in the Gazette under this clause.

(4) After the bill has been read the first time in Parliament it shall not be proceeded with further unless it has been submitted to a referendum held throughout Ghana and at least forty per cent of the persons entitled to vote, voted at the referendum and at least seventy-five per cent of the persons who voted cast their votes in favour of the passing of the bill (5) Where the bill is approved at the referendum, Parliament shall pass it.

(6) Where a bill for the amendment of an entrenched provision has been passed by Parliament in accordance with this article, the President shall assent to it.”

I find that all the steps taken by the Electoral Commission (the defendant) to deny the plaintiff his right to vote or to impede him in the exercise of his right to vote are inconsistent with and are in contravention of the Constitution, 1992 particularly articles 42 and 51. It is for the above reasons that I supported the decision of the court.

Kpegah JSC. This case, perhaps, is the most important to be decided by this court since the present democratic dispensation. It involves one of the basic rights of a citizen of this country, that is his right to vote. While it is true to say that our Constitution, 1992 anticipates political power to reside in the people, which they exercise through universal adult suffrage, it is also true to say that this same Constitution, 1992 mandates only the Electoral Commission with the general oversight of the electoral system in the country.

[p.403] of [2001-2002] 2 GLR 372

By a Gazette notice dated 2 November 2000, the Electoral Commission informed the general public that: “for purposes of voting in the forthcoming Presidential and Parliamentary Elections 2000 and future public elections, only Photo Voter Identity Cards shall be used.” Thumbprint identity cards shall no longer be used.” The said notice also directed the procedure to be followed where a prospective voter has no identity card but has his name on the register of voters. It directs that in such a case, all party representatives must affirm the identity of the person before he can be allowed to vote.

The plaintiff, aggrieved with these directives from the Electoral Commission took out a writ in this court invoking our original jurisdiction seeking the following reliefs:

“(1) A declaration that the decision and or the directives of the defendant that only a photo identity card will be accepted by the defendant to enable voters to vote at the forthcoming presidential and parliamentary elections scheduled to take place on 7 December 2000 or in the alternative that prospective voters without a photo ID will be permitted to vote only with the unanimous affirmation of the said voter’s identity by the agents of all the candidates as contained in the Gazette Notice dated 27 November 2000 and the Electoral Commission of Ghana’s Guide to Electoral Officials 2000 is an act of the defendant which is inconsistent with or is in contravention of articles 42 and 51 of the Constitution, 1992 of the Republic of Ghana and therefore null and void.

(2) An order of perpetual injunction restraining the defendant by itself, its servants and agents from enforcing the defendants ‘no photo ID card no vote directive’ or the directives contained in Gazette Notice dated 27 November 2000 in respect of voters without a voter ID card contained in the Electoral Commission’s Guide to Election Officials 2000.

(3) An order restraining the defendant by itself, its servants and agents from conducting the forthcoming presidential and parliamentary elections or any other election until the determination of the suit herein.

(4) Any other directions as to give effect to or to enable

[p.404] of [2001-2002] 2 GLR 372 effect to be given to the declaration herein sought.”

EXISTING LAWS ON REGISTRATION OF VOTERS AND CONDUCT OF PUBLIC ELECTIONS:

(i) Public Elections (Registration of Voters) Regulation, 1995 (CI 12)

Before the publication of the directive in the Gazette of 27 November 2000, the Electoral Commission in compliance with article 45(a) and (c) of the Constitution, 1992 which requires it to: (i) compile the register of voters; and (ii) conduct and supervise all public elections and referenda made the following regulations: Public Elections (Registration of Voters) Regulations, 1995 (CI 12) and Public Elections Regulations, 1996 (CI 15). These two constitutional instruments were made under the powers conferred on the Electoral Commission by article 51 of the Constitution, 1992 which provides:

“51. The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

As pointed out earlier, the Electoral Commission in compliance with article 45(a) of the Constitution, 1992 regarding the compilation of the voters’ register, by a constitutional instrument made to regulate the registration of voters for purposes of public elections and referenda Part II of CI 12 makes an elaborate and detailed provision for challenges and complaints against an application of any person for registration as a voter and the procedure for the resolution of such complaints and challenges. In this wise, regulation 13 of CI 12 provides for the establishment of a district registration review committee with the power to resolve any challenges to an application to register as a voter. The decision of this committee is appealable to the chief registration review officer, who shall be the High Court judge of the region. The decision of this officer is final.

Six months after the registration period, the Electoral Commission shall cause to be exhibited a provisional register of each polling division stating the name, age and sex of each person whose application for registration at that division was accepted. There is an important stipulation in regulation 17(2) of CI 12 that a copy of the

[p.405] of [2001-2002] 2 GLR 372 provisional register of voters be given to each registered political party; obviously for the purpose of verification and cleaning of the register of ghost names since the agents of the registered political parties are assumed to be on the ground in their various communities.

Before the exhibition of the provisional register, however, the Electoral Commission must appoint for each registration centre an exhibition officer who is to “receive any claims and objections . . . concerning the inclusion of a person’s name in the register.” At this stage also there is an elaborate and detailed procedure designed to deal with any challenges to the inclusion of any name in the register of voters. When a challenge is made, the exhibition officer has to comply with certain procedures related to giving adequate publicity to the challenge after which the matter is put before the district registration revising officer by the district officer of the Electoral Commission. The chairman of the district community tribunal shall be the district registration revising officer; and where none is available, a lawyer of not less than three years’ standing appointed by the High Court judge for the region to act as one. The decision of the district registration revising officer is also appealable to the High Court, the decision of which is final: see regulation 21 of CI 12. It is only after the determination of any challenge or objection by the High Court, after the exhibition of the provisional register, that “The Commission shall certify the register” which shall take effect in place of any existing register of voters: see regulation 22 of CI 12. Such a certification by the Electoral Commission is conclusive evidence that all the requirements of the law in respect of registration as a voter have been complied with by all whose names appear in the register and that the said register of voters is valid.

In this pursuit, the detailed procedure for receiving and resolving challenges to, and complaints against any person’s application for registration as provided in CI 12, is intended to ensure, as nearly as humanly possible, an accurate register of voters. The law neither anticipates nor allows any objection to the electoral register after it has been certified by the Electoral Commission. I am of the view that the policy which informed these extensive procedures contained in CI 12 for resolving any challenges and complaints, prior to the certification of the voters’ register, is to make it necessary for people to raise all questions as to the right to vote before the district registration review committee and the district registration revising officer established for the purpose, thereby preventing their being raised at any other time or in any other way. This is what both the Electoral Commission and the registered political parties fail to appreciate about a certified electoral

[p.406] of [2001-2002] 2 GLR 372 register and the implications of such a certification. They need to be reminded that there is a very strong presumption in favour of the franchise when a person satisfies the constitutional requirements and his name is in the register of voters.

It seems to me therefore that the reason behind these elaborate procedures for the registration of a person as a voter is to ensure the accuracy and conclusiveness of the register, not only on the Electoral Commission itself and the returning officer at the polling station, but all political parties and also on every tribunal which has to determine election petitions, except only in case of a person who is prohibited by law from voting. Thus when a name of a voter appears in the register, he has a final and conclusive right to vote unless legally incapacitated. In the case of Stowe v Jolliffe, 30 LT 795, for example, it was held: “The register of voters is conclusive after as well as at an election, except as to those persons who from some inherent or for the time irremovable quality in themselves had not the status of electors when they voted.”

And in the case of Ryder v Hamilton (1869) LR 4 CP 559, an election petition was brought asking for the respondent’s seat for the petitioner. The ground was that the former’s majority over the latter at the elections who were, although registered, not entitled to vote at the burough by reason of their not being rated to, not having paid the rate. No objection was made against these people before the revising barrister for their names being retained on the register. It was held that no objection could be taken against the vote of these people as none was taken before the revising barrister. The register was therefore conclusive evidence of their right to vote. It could therefore be said that there are only two possible questions which is allowed to be put at the time of polling as to the right of any person to vote first, as to the identity of the voter to prevent impersonation; secondly, as to having already voted to prevent multiple voting: see regulation 31 of CI 15. A possible third question may be as to the voter still retaining the qualification for which his name appears in the register, namely whether he is still a Ghanaian and is of sound mind.

(ii) Public Elections Regulations, 1996 (CI 15)

The other existing law, most relevant to this case, before the publication of the Electoral Commission’s directives in the Gazette of 27 November 2000, is CI 15. This constitutional instrument, intended to fulfil the Electoral Commission’s functions of conducting and

[p.407] of [2001-2002] 2 GLR 372 supervising all public elections and referenda, was also made pursuant to article 51 of the Constitution, 1992. The only provisions of CI 15 relevant to the determination of this case are regulations 30 and 31 of the said CI 15. On the identification of a voter, regulation 30 of CI 15 provides:

“30. (1) A presiding officer may, before delivering a ballot paper to a person applying to vote at the election, require the person—

(a) to produce his or her voter identification card or to furnish such other evidence as may be determined by the Commission to establish that he or she is the registered voter whose name and voter identification number and particulars appear in the register.”

(The emphasis is mine.) There are three points worth noting about regulation 30 of CI 15. The first is that it mentions only “voter identification card” without specifying the particular type of identification card. This enabled both photo identification cards and thumbprint identity cards to be used in the 1996 Presidential and Parliamentary Elections. The second point is that the presiding officer has a discretion to require a voter to produce his identification card before giving him the ballot papers. It is not obligatory that the presiding officer does so before giving a voter a ballot paper. The language the “presiding officer may . . . require” is indicative of this. The third point is that the Electoral Commission itself has a discretion to provide for any other mode of identification of a voter whose name appears on the register but has no identification card. These discretionary powers, to me, are clear indications of the law’s anxiety that the Electoral Commission should facilitate the exercise of a citizen’s right to vote, rather than to frustrate it by a rigid limitation of the identification of voter to one mode only; for no right is more precious in a free country than that of having a say in the election of those who make the laws under which we are governed. Other rights of the citizen, even the most basic, are illusory if the right to vote is subverted. I do not think our Constitution, 1992 leaves any room for a classification of a voter, through fashioning of a procedure at the polling station, that unnecessarily abridges or frustrates a citizen’s right to easily vote unless incapacitated by law. Such a move may very well breach the principle of equality and freedom from discrimination enshrined in our Constitution, 1992. A citizen, a qualified voter whose name is on the list of voters and entitled to vote, is no more nor no less

[p.408] of [2001-2002] 2 GLR 372 so because he holds a photo identification card or a thumbprint identity card. This is a clear, unambiguous and strong command of our Constitution, 1992 on equality before the law. Because, as we have seen, the register is conclusive on the Electoral Commission itself, the presiding officer at the polling station and tribunals charged with resolution of election disputes.

The plaintiff’s case, as I understand it, is that by its directives issued in Gazette notice on 27 November 2000, the Electoral Commission is indirectly amending regulation 30 of CI 15 by limiting a voter identification to photo identity cards only; and this, the plaintiff submitted, would be inconsistent with article 51 of the Constitution,1992 which requires the Electoral Commission to do so only by a constitutional instrument, which instrument must comply with article 11(7) of the Constitution, 1992—namely be laid before Parliament for twenty-one sitting days and published in the Gazette. To simply publish administrative directives in a Gazette, as did the Electoral Commission in this case, and expect such directives to supercede a regulation made by a constitutional instrument is clearly inconsistent with article 297(d) of the Constitution, 1992 which reads:

“(d) where a power is conferred to make any constitutional or statutory instrument, regulation or rule or pass any resolution or give any direction, the power shall be construed as including the power, exercisable in the same manner, to amend or to revoke the constitutional or statutory instrument, regulation, rules or resolution or directions as the case may be.”

There can hardly be any answer to the plaintiff’s case. The purpose of a Gazette notification is only to bring the matters contained therein to public notice or domain. And section 154 of the Evidence Decree, 1975 (NRCD 323) states:

“154. All proclamations, Acts of State, whether legislative or executive, nominations, appointments, and other official communications appearing in the Ghana Gazette are prima facie evidence of any fact of a public nature which they are intended to notify.”

So that the Constitution, 1992 itself had had to be published in the Gazette on 15 May 1992 to bring its provisions to public notice after it was earlier approved in a referendum.

In so far as the Electoral Commission was by the Gazette notice of 27 November 2000 giving directives as to the conduct of the

[p.409] of [2001-2002] 2 GLR 372

Presidential and Parliamentary Elections 2000, and future elections, it can only do so by a constitutional instrument duly laid before Parliament for the required period followed by its notification in the Gazette. Any other method which seeks to achieve this will be clearly inconsistent with article 51 of the Constitution, 1992 and therefore null and void. And any regulation made by the Electoral Commission to regulate the conduct of public elections should be intended to facilitate the exercise of the citizens’ franchise rather than to impede or frustrate the exercise of such a right guaranteed under article 42 of the Constitution, 1992

Importance of the right to vote

This should bring me to the issue of what value must be placed by this court on a citizen’s right to vote. It is necessary to remind ourselves of the preamble to the Constitution,1992 since it embodies the aspirations of the people. This is what the preamble to our Constitution, 1992 says:

“IN THE NAME OF THE ALMIGHTY GOD We the People of Ghana, IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to;

Freedom, Justice, Probity, and Accountability;

The Principle that all powers of Government spring from the Sovereign Will of the People;

The Principle of Universal Adult Suffrage; The Rule of Law; The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation; DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

The importance that all political power is inherent in the people, as expressed in the preamble, is acknowledged by the framers of the Constitution who in the very first article of the Constitution declare:

“1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of

[p.410] of [2001-2002] 2 GLR 372 government are to be exercised in the manner and within the limits laid down in this Constitution.”

In order to give meaning to the concept of universal adult suffrage as expressed in the preamble to the Constitution, 1992, the framers in article 42 provide as follows:

“42. Every citizen of Ghana of eighteen years of age and 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.”

Thus, consistent with our belief in and adherence to the principle of universal adult suffrage, the right to register and vote is guaranteed every citizen of Ghana who is eighteen years or above and not of unsound mind. In the case of Tehn-Addy v Electoral Commissioner [1996-97] SCGLR 589, the plaintiff was denied the chance to register as a voter, and he brought an action claiming that the Electoral Commission had violated the Constitution, 1992. This court unanimously held that every sane Ghanaian citizen of eighteen years and above had the right under article 42 of the Constitution, 1992 to be registered as a voter. And that the constitutional right of voting was indispensable in the enhancement of the democratic process and it could not be denied in the absence of a constitutional provision to that effect. Continuing the court said:

“A heavy responsibility is . . . entrusted to the Electoral Commission under article 45 of the Constitution in ensuring the exercise of this constitutional right to vote. For in the exercise of this right, the citizen is able not only to influence the outcome of the elections and therefore the choice of a government but also he is in a position to help influence the course of social, economic and political affairs there-after. He indeed becomes involved in the decision-making process at all levels of governance.”

And in the American case of Reynolds v Sims, 377 US 533 at 561-562 (1964), Chief Justice Warren said of the right to vote:

“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of a citizens to vote must be carefully and meticulously scrutinized . . . As long as ours is a representative form of government, . . . the right to elect legislators in a free and

[p.411] of [2001-2002] 2 GLR 372 unimpaired fashion is a bedrock of our political system.”

The recent decision of the Florida Supreme Court is also a pointer to the value which must be placed by the courts on the individual’s right to vote. This is what the court said:

“Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take active part in the process of this government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak out more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sound, unyielding adherence to statutory scripture, we would in effect nullify that right.”

See the case of Palm Beach County Canvassing Board v Harris and Volusia County Canvassing Board v Harris, Florida Democratic Party v Harris. The main issue before the court in the Florida case was whether a county board may conduct a countrywide manual recount, where it determines there has been an error in vote tabulation that would affect the outcome of the election.

A citizen’s constitutional right to vote is so important that it can hardly be infringed and justified simply because a majority of the people, let alone some institution or organs chose or agreed among themselves that it be. Neither the Electoral Commission itself nor in collaboration with inter party advisory committee (IPAC) or any other authority can issue a directive which disenfranchises a citizen of this country. The Electoral Commission has no power to make any regulations which unnecessarily abridge the right to vote. Whatever it does in this direction should rather facilitate the exercise of the right to vote. The directive the Electoral Commission issued in the Gazette notice dated 27 November 2000 will clearly disenfranchise some qualified voters of this country; those with thumbprint identity cards Even if it is one person who will be unable to exercise his franchise, I will no less think the directive is an infringement of the constitutional right to vote. For the right of a nation is that of the individual written in capital letters. If we allow the right of an individual to be eroded, such erosion will engulf all of us sooner than later.

The Gazette notification of 27 November 2000 suffers from several constitutional disabilities, for example, it was promulgated

[p.412] of [2001-2002] 2 GLR 372 contrary to article 51 of the Constitution, 1992 not only that it derogates from the citizen’s constitutional right to vote as guaranteed under article 42 of the Constitution, 1992. It could therefore hardly be gainsaid that a constitutional claim has been asserted by the plaintiff’s allegation that a certain otherwise qualified voters would be prohibited from voting for their parties or candidates if only the photo identification card was used. These were some of the reasons why I voted allowing the plaintiff’s claim.

Before I am done, however, I would like to make a comment. The independence of the Electoral Commission is guaranteed in a rather robust language under article 46 of the Constitution, 1992 in these words:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

The “direction or control” the Electoral Commission is insulated from may not necessarily come from the government or its officials, but political parties as well. The commission should therefore try to be wary of its flirtations with the so-called inter party advisory committee (IPAC) since it would lead to subversion of the independence of the commission as this case amply demonstrates in their agreement to use only the photo identification card leading to a possible disenfranchisement of those registered voters who do not have photo identification cards but thumbprint identity card or none at all.

Atuguba JSC. As the facts of this case have been stated by my brethren whose judgments have preceded mine, I shall not repeat them, save where necessary. The plaintiff misunderstood the defendant’s directives, to some extent, but only the issues he rightly raised need be addressed.

The contention that the directives issued by the defendant and published in the Gazette notice dated 27 November 2000 are null and void as violating articles 42 and 51 of the Constitution, 1992 since they are not covered by a constitutional instrument, is right. The said directives are as follows: “PRESIDENTIAL AND PARLIAMENTARY ELECTIONS 2000 The Public is hereby informed that for purposes of voting in the forthcoming Presidential and Parliamentary elections 2000 and future public elections, only Photo Identity cards shall be used Trumbprint Identity Cards shall no longer be valid for voting . . . Any voter who presents himself/herself without a

[p.413] of [2001-2002] 2 GLR 372

Photo identity Card, shall go through the following steps for identification:— (1) The Presiding Officer shall check for the name in the Name Reference List;

(i) If the name is not on the list, the person will be politely told to go away from the Polling Station;

(ii) If the name is on the list and all the candidate agents affirm that they know the person, he/she shall be allowed to go through the voting steps straightaway;

(iii) If there is any doubt as to the identity of the voter, the Presiding Officer shall pick the original registration form of the person, using the voter identity number on the Name Reference List;

(iv) The Voter shall be required to confirm certain details provided on the registration form, to enable him/her to be allowed to vote;

(v) The verification of identity of such a voter shall take place in the presence of the party agents.”

Article 51 of the Constitution, 1992 provides:

“51. The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referanda, including provision for voting by proxy.”

(The emphasis is mine.)

It was contended on behalf of the defendant that the said directives did not need to be in the form of a constitutional instrument because they were not of a legislative character. However, regulations 30 and 31 of the Pubic Elections Regulations, 1996 (CI 15) provide, as far as relevant as follows:

“30. (1) A presiding officer may, before delivering a ballot paper to a person applying to vote at the election, require the person—

(a) to produce his or her voter identification card or to furnish such other evidence as may be determined by the Commission to establish that he or she is the registered voter whose name and voter identification number and particulars appear in the register; and (b) to make a declaration in the prescribed form that he has not already voted anywhere at the election.

31. (1) Every voter desiring to record his vote shall present himself at his allotted station and the presiding officer or a

[p.414] of [2001-2002] 2 GLR 372 polling assistant, after satisfying himself that the voter is registered and has not already voted, and that any other means of identification determined by the Commission in the possession of the voter is valid, shall deliver the ballot paper to the voter.”

It would see that the directives impugned are substantially the same as those contained in regulations 30 and 31 of CI 15. If such similar matters properly pass for regulations which have been covered by a constitutional instruments I do not see how the defendant can approbate and reprobate by contending that those matters covered by its said directives of 27 November 2000 do nor require to be covered by a constitutional instrument. It is a settled principle of law that where statutory power is conferred it must be exercised in accordance with the terms of the statute. This has been forcefully stated several times by Taylor J (as he then was). In Republic v Inspector-General of Police;: Ex parte Aniagyei II [1976] 1 GLR 394 at 399 Taylor J (as he then was) said:

“I think the law is now so well settled and there is no need for an authority to support it, that when by law power is given to a person or body, the person or body must exercise the power in accordance with the terms of the enabling law.”

The Electoral Commission, the defendant, did not comply with the terms of article 51 of the Constitution, 1992 when it purported to issue its directives as per the Gazette notice dated 27 November 2000 and the same are a nullity.

This alone suffices to dispose of the matter but as extensive arguments were addressed to us by the parties, it is necessary to address the contention that the directive to the effect that a prospective voter should be allowed to vote if all the candidates’ agents are unanimous as to his identity, is wrong as being an abdication or delegation of the defendant’s statutory function to the said agents. It is trite law that delegatus non protest delegare. Under article 45 of the Constitution, 1992. “The Electoral Commission shall have the following functions. . . (c) to conduct and supervise all public elections and referenda.” This is closely buttressed by article 46 of the Constitution, 1992 which provides:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

This provision, in my view, in effect, constitutionally enforces the principle that delegatus non potest delegare. The ascertainment of the identity of a prospective voter is part of the conduct of public elections and as the Constitution, 1992 places that duty on the Electoral

[p.415] of [2001-2002] 2 GLR 372

Commission it can only do so by itself and its proper agents, for qui facit per alium facit per se. But clearly the candidates’ agents are not the defendant’s agents. Inter alia, under regulations 30 and 31 of CI 15 it is the presiding officer who is the defendant’s agent for the purposes of voter identification procedures. To surrender the judgment of the presiding officer as to the identity of a voter to the candidates’ polling agents is in effect to delegate that function to those agents contrary to articles 45(c) and 46 of the Constitution, 1992. In Republic v Inspector General of Police; Ex parte Aniagyei II (supra) Taylor J (as he then was) deprecated the delegation of a regional commissioner’s powers of arrest at 401 thus:

“If I am to give effect to the words used in N.R.C.D 236, it becomes clear that if the Regional Commissioner is satisfied that his action is in the public interest, the Regional Commissioner may himself arrest or order a member of the Armed Forces to arrest any person who is involved in any of the matters in paragraphs (a), (b), (c) or (d) of section 3 (1) of N.R.C.D. 236. Furthermore such arrested person ought as a mandatory provision to be detained in military custody. If this is the language of the section, the detention of the applicant must be tested against it. The Regional Commissioner ordered the police not a member of the Armed Forces to effect the arrest. This is clearly contrary to the provision of section 3 (1) of N.R.C.D. 236 and it follows that the arrest was not done in accordance with the Decree. To ask the police to arrest the applicant in exercise of the powers given to him under section 3 (1) of N.R.C.D 236 is in effect to delegate the exercise of the power to another. A close reading of section 3 (1) of N.R.C.D 236 shows clearly that the legislature did not intend to authorise the Regional Commissioner to delegate his power of arrest to any other person or authority. There is in effect no power to pass on to others: see R. v Burnley Justices (1916) 85 L.J.K.B. 1565, D.C. and Ellis v Dubowski [1921] 3 K.B. 621, D.C. The purported delegation is therefore incompetent and in my view its exercise by the police is unlawful, and the arrest was consequently illegal.”

I must however, say that the contention of the plaintiff as to article 42 of the Constitution, 1992 was, to some extent, too broadly couched Article 42 of the Constitution, 1992 provides: “42. 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 emphasis is mine.) After quoting this same provision the plaintiff contended as follows:

“That in the light of the above provision of article 42 of the

[p.416] of [2001-2002] 2 GLR 372 Constitution the defendant’s duty is to take steps only to make it easy for every eligible citizen of Ghana within the terms of article 42 to exercise his or her right to vote.”

(The emphasis is mine.) I should have thought that the introduction of the photo identification card sought to fulfil this objective and, would therefore not, on the basis of this contention, fall foul of the Constitution, 1992. But the plaintiff would seem to think otherwise, for he contends in the next paragraph as follows: “The defendant is therefore not expected under any circumstances to place any impediment in the way of prospective voters so as to disenfranchise them.” (The emphasis is mine.)

For my part, I am of the view that the constitutional provisions on the right to vote do not seek to overlook the difficulties that their implementation may entail and the plaintiff’s contention (supra) confesses to that. The Constitution, 1992 therefore in article 51 gave the Electoral Commission power by constitutional instrument to deal with problems of effectively operating its provisions, including article 42, concerning the electoral process. If therefore the Electoral Commission determines a mode of identification of voters but later discovers that a more effective mode than the earlier one can be substituted for the earlier one, it should be able to do so provided it goes by the constitutional procedure for doing so. I must emphasise that the right to vote or the registration of a voter is not the same as the means of identifying the voter. It is my view that the provision or substitution of an effective mode of voter identification, seeks to give effect to the constitutional rights to vote and be registered for that purpose and cannot be inconsistent with them. Thus the decision by the Electoral Commission to replace the thumbprint voter identification card with the photo identification card will be in accord with the Constitution, 1992 if done by the proper mode. This to my mind is the effect of article 297(b) and (d) of the Constitution, 1992 which provides as follows:

“297 In this Constitution and in any other law— . . .

(b) where a power is conferred or a duty is imposed, the power may be exercised and the duty shall be performed, from time to time, as occasion requires; . . .

(d) where a power is conferred to make any constitutional or statutory instrument, regulation or rule or pass any resolution or give any direction, the power shall be construed as including the power, exercisable in the same manner, to amend or to revoke the constitutional or statutory instrument, regulation, rules or resolution or direction as the case may be.”

The thumbprint card, was issued pursuant to the Public Elections

[p.417] of [2001-2002] 2 GLR 372

(Registration of Voters) Regulations, 1995 (CI 12), not in so many express words, but as the resultant position of regulations 11, 21(4)(b) and 28 of CI 12, buttressed by the aforestated regulations 30 and 31 of CI 15. They are as follows:

“11. Where upon an application there is no objection to the application the registration officer shall enter the name of the applicant in the register which shall be provisional only and shall issue to the applicant a voter identification card in such form as the Commission shall determine. . .

(4) The District Registration Revising Officer shall determine the procedure for settling claims and objections except that—

(b) the lawful possession by a claimant of an authentic voter Identity card issued by the Commission shall be sufficient proof of registration . . .

28. In this Instrument unless the context otherwise requires— ‘Commission’ means the Electoral Commission.

‘I.D. card’ means a voter identification card issued by the Commission indicating that the bearer whose particulars are specified therein is a registered voter.”

Notwithstanding any notions associated with the repeal of a statute by implication or otherwise, vested rights, prospectivity and retrospectivity of statutes, I am convinced that in the context of the provisions of article 297(b) and (d) of the Constitution, 1992 the Electoral Commission can effectively transform into or replace the thumbprint voter identification card with the better system of photo identification card for purposes of voter identification provided reasonably adequate opportunity for the purpose has been given to the electorate. This would not violate the Constitution, 1992. In In re The Election of The First President; Appiah v Attorney-General (1969) 2 G&G 530, CA it was held that though no express provision of the Constitution,1969 covered it, the Electoral Commissioner could properly impose a deposit fee of ¢500 by every presidential candidate, in order to prevent frivolous persons putting themselves forward as presidential candidates. This has been consistently preserved: see regulations 6(1)(b), 8(3) and 43 of CI 15.

I must also stress that the power to determine how effectively to discharge its electoral functions vests in the Electoral Commission and it is trite law that a court would not interfere with the decision of an administrative officer under statutory provisions, but that the court is restricted to the question whether the officer concerned followed the correct legal process in arriving at his decision or otherwise exercised his said power in accordance with law: see Chief Constable of The North Wales Police v Evans [1982] 3 All ER 141, HL.

This common law principle is conveyed by article 46 of the Constitution, 1992 in the case of the Electoral Commission and article

[p.418] of [2001-2002] 2 GLR 372

295(8) of the Constitution, 1992 generally. Article 46 of the Constitution, 1992 provides:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

Article 295(8) of the Constitution, 1992 also provides:

“(8) 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.”

Consequently, when in Tehn-Addy v Electoral Commission [1996-97] SCGLR 589 the Electoral Commission, in violation of the Constitution, 1992 refused to reopen the register and register the applicant as a voter because of the pendency of certain court proceedings, this court overruled him. As the defendant contends that it sought, by its said Gazette directives to withdraw the thumbprint card instead of doing so by a constitutional instrument, the said directives are contrary to articles 51 and 295(d) of the Constitution, 1992 and are null and void.

I would also point out that article 51 of the Constitution, 1992 requires that the defendant should proceed by a constitutional instrument not only in respect of its functions under the Constitution, 1992 itself but also in respect of its functions under “any other law.” CI 15 is a law. Therefore since regulations 30 and 31 thereof, undoubtedly for the effective performance of its functions, empower the Electoral Commission to determine the modes of voter identification, they thereby confer functions on the defendant and if it determines such modes of identification, then it must proceed by constitutional instrument and not otherwise.

For these reasons I concurred in the unanimous judgment of this court dated 4 December 2000.

Lamptey JSC. I hereby give reasons in support of this court’s judgment of 4 December 2000.

On 27 November 2000 Dr Kwadwo Afari-Djan, Chairman of the Electoral Commission of Ghana published a Gazette notice with the title “Presidential and Parliamentary Election 2000.” The notice read in part as follows:

“The public is hereby informed that for purposes of voting in the forthcoming Presidential and Parliamentary Elections 2000 and

[p.419] of [2001-2002] 2 GLR 372 future public elections only Photo Voter Identity Cards shall be used. Thumbprint Identity Cards shall no longer be valid for voting.”

I must hasten to add that the Gazette notice provided further as follows “Any voter who presents himself/herself without a Photo Identity Card shall go through the following steps for identification.” Under this proviso, the Gazette notice stated and listed six different and separate steps that must be followed in the process. It is plain and clear to me that the Gazette notice sought to classify and divide registered voters into two distinct and separate categories of voters for the 2000 public elections as well as future public elections. The two categories and classes of voters are: (1) the voter in possession of a photo identity card; and (2) a person duly and regularly registered as a voter and therefore qualified to vote, but who did not possess a photo identity card. I would, in due course, consider and deal with a voter who had in his possession a thumbprint identity card.

Two days after the publication of the Gazette notice, that is to say on 29 November 2000 at 12.30pm one Philip Kwaku Apaloo residing at H/No B 177/7, Kaneshie in the city of Accra caused his solicitors, Kudjawu & Co of Accra to file a writ to invoke the original jurisdiction of this court pursuant to articles 2(1)(b), 21(1), 51 and 130(1) of the Constitution, 1992 and further to rule 45 of the Supreme Court Rules, 1996 (CI 16). The main relief sought by the plaintiff was expressed as follows:

“(Y) A declaration that the decision and or the directives of the defendant that only a photo identity card will be accepted by the defendant to enable voters to vote at the forthcoming presidential and parliamentary elections . . . or in the alternative that prospective voters without a photo ID will be permitted to vote only with the unanimous affirmation of the said voter’s identity by the agents of all the candidates as contained in the Gazette notice dated 27 November 2000 and the Electoral Commission’s . . . Guide to Electoral Officials 2000 is an act of the defendant which is inconsistent with or is in contravention of articles 42 and 51 of the Constitution, 1992 and are therefore null and void.”

In the accompanying statement of case, the gravamen of the plaintiff’s complaint was stated at paragraph (5) as follows:

“(5) Notwithstanding the fact that there are numerous eligible voters in the country holding thumbprint ID cards who have not as yet been issued with photo ID cards, the defendant has decided and published in a Gazette notice of November 2000, directives that in the forthcoming [p.420] of [2001-2002] 2 GLR 372 presidential and parliamentary elections scheduled for 7 December 2000 only photo ID holders will be accepted by the defendant to vote. . .”

The sum total of the complaints of the plaintiff was that the defendant breached articles 42, 51 and 296 of the Constitution, 1992. The plaintiff complained further that the defendant breached regulation 31(1) of the Public Elections Regulations, 1996 (CI 15). It is helpful to reproduce regulation 31(1) of CI 15:

“31. (1) Every voter desiring to record his vote shall present himself at his allotted station and the presiding officer or a polling assistant, after satisfying himself that the voter is registered and has not already voted, and that any other means of identification determined by the Commission in the possession of the voter is valid, shall deliver the ballot paper to the voter.”

In my opinion, it may be useful at this stage, that is before considering the statement of the case of the defendant, to reproduce regulation 30(1)(a) of CI 15 which is as follows:

“30. (1) A presiding officer may, before delivering a ballot paper to a person applying to vote at the election, require the person—

(a) to produce his or her voter identification card or to furnish such other evidence as may be determined by the Commission to establish that he or she is the registered voter whose name and voter identification number and particulars appear in the register. . .”

The other equally important issue I wish to draw attention to preliminary to considering the case of the defendant is the provision at regulations 47 of CI 15 which is in the following language: “47. These Regulations shall apply to presidential and parliamentary elections and with such modifications as may be necessary to such in other public elections as the Commission may by constitutional instrument prescribe.” (The emphasis is mine.)

The defendant was enjoined to answer the complaint formulated and stated at paragraph (5) of the statement of the plaintiff’s case. The answer would be found at paragraph (6) of the statement of case as follows:

“(6) In answer to paragraphs (5),(6),(7) and (8) the defendant avers that in regulation 30 of the Public Elections Regulations, 1996 (CI 15) as also in regulation 11 of the Public Elections (Registration of Voters) Regulations, 1995 (CI 12) the defendant made regulations concerning the production by a voter of an identity card or to furnish such other

[p.421] of [2001-2002] 2 GLR 372 evidence as may be determined by the commission to the presiding officer before being given a ballot paper …”

The said regulation did not particularise the production of either a thumbprint or a photo identification card. The defendant contends that with the replacement of the thumbprint identification cards with photo identification cards it was unnecessary for the defendant to publish another constitutional instrument.” It seems to me plain and clear that if the defendant conceded and accepted that “the regulation did not particularise the production of either a thumbprint identification or Photo identification as a condition precedent to being issued with a ballot paper then the complaint of the plaintiff against that portion or part of the defendant’s Gazette notice to wit “thumbprint ID cards shall no longer be valid for voting” was well founded and unanswerable. In my opinion, the above statement at paragraph (6) of the statement of case by the defendant is an unequivocal and patent admission that the outlawing of thumbprint identification cards by the defendant in the Gazette notice breached regulation 30 of CI 15 and regulation 11 of CI 12.

The more important issue of law raised by the plaintiff was not addressed by the defendant in the statement of case. I identify this issue as the one that challenged the defendant’s resort to the publication of a Gazette notice rather than the procedure dictated by law, namely the use of and resort to a constitutional instrument in performing and carrying out the statutory function. I do not feel called upon to write on the efficacy of a constitutional instrument in this opinion. The defendant at paragraph (6) stated as follows: “(6) . . . It was unnecessary for the defendant to publish another constitutional instrument.” In my opinion, the defendant failed to appreciate the difference in law between a constitutional instrument and a Gazette notice. I find support for my view at article 51 of the Constitution, 1992 which provides”

“51. The Electoral Commission shall, by constitutional instrument make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda . . .”

It cannot therefore be disputed that the right of a person to be registered as a voter is guaranteed by the Constitution, 1992. In my opinion, once a person is duly and regularly registered as a voter that person must and

[p.422] of [2001-2002] 2 GLR 372 shall be accorded all and every opportunity to exercise the constitutionally guaranteed right to vote. In my candid opinion, the possession of a means of a more easily and readily form or method of identification can go a long way to accelerate the pace of the polling process. The possession of photo identification or thumbprint identification card is not a sine qua non or the only means or method of deciding the right of a duly registered person to vote. Indeed, regulations 30 and 31 of CI 15 state the law on this important issue. I do not need to reproduce these regulations here.

There is further evidence of the intent of the lawmakers to guarantee and enshrine this inalienable right to vote. This can be seen at article 42 of the Constitution, 1992. It provides as follows:

“42 Every citizen of Ghana of eighteen years of age and above and of sound mind has the right to vote and is entitled to be registered as a voter for the purpose of public elections and referenda.”

In drawing up and making regulations in the above matter, section 28(4) of CI 15 provides as follows: “(4) The powers conferred by this regulation shall not be exercised so as to prevent a voter who is otherwise entitled to vote at a polling station from having the opportunity of voting at that station.” (The emphasis is mine.) Again regulation 47 of CI 15 provides clearly and plainly that the regulations contained in CI 15 shall be amended only by a constitutional instrument. I have elsewhere in this opinion reproduced the said section. In my opinion, the defendant breached CI 15 when he caused to be published the Gazette notice on 27 November 2000.

The other serious issue of law raised was the lawful status of polling agents. In the Gazette notice, the defendant spelt out some of the functions and duties of the polling agents at paragraphs (iii) and (vi) as follows:

“Any voter who presents himself/herself without a Photo ID card, shall go through the following steps for identification . . .

(iii) If the name (voters) is on the list and all the candidates’ agents affirm that they know the person, he/she shall b allowed to go through the voting steps straightaway.

(iv) The verification of identity of such a voter shall take place in the presence of party agents.”

(The emphasis is mine.) I must state quite frankly that step (iii) above was a prescription for chaos, confusion and disorder at the polling station on polling day. The requirement that “all the candidates’ agents

[p.423] of [2001-2002] 2 GLR 372 must affirm that they know the prospective voter” who was then present with them at the polling station cannot be justified. How can a polling agent know all the persons duly and regularly registered to vote at a particular polling station and affirm that fact? The lawmakers did not intend to and did not clothe the polling agent with this power, that is the power and right to affirm personal knowledge of any registered voter who did not possess a photo identification card. The duty assigned to a polling agent is plainly spelt out at regulation 19(1) of CI 15 as follows:

“19. (1) A candidate may appoint one polling agent to attend at each polling station in the constituency for which he is seeking election . . . for purpose of detecting impersonation and multiple voting and certifying that the poll was conducted in accordance with the laws and regulations governing the conduct of elections.”

It is therefore plain and clear that what the polling agent was required and expected to have good knowledge of are the laws and regulations governing the conduct of elections. The polling agent is not expected nor required to possess personal knowledge of the identity of every duly registered voter who presents himself or herself at the polling station where such a polling agent is properly and lawfully on duty. In my opinion, step (iii) spelt out in the Gazette notice cannot be supported in law. I find however that step (vi) is in conformity with the statement of the law at regulation 19(1) of CI 15.

In conclusion, I find that the issues I have raised for determination as required by CI 16 may be resolved as follows:

(1) The defendant breached article 51 of the Constitution,1992 by the publication of the Gazette notice dated 27 November 2000.

(2) In the matter of the contents of the said Gazette notice, the statement “Thumbprint identification cards shall no longer be valid for voting” must and ought to be deleted and expunged therefrom.

(3) In the matter of the contents of the said Gazette notice step (iii) be deleted and expunged therefrom.

Judgment for the plaintiff.

D R K S