IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – AD. 2026
CORAM: BAFFOE-BONNIE CJ (PRESIDING)
ASIEDU JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
ADJEI JSC
BARTELS-KODWO JSC
ACKAAH-BOAFO JSC
WRIT NO. J1/15/2025
29TH APRIL, 2026
FRED AKWETER .………… PLAINTIFF
VRS
1. THE ATTORNEY- GENERAL …………. 1ST DEFENDANT
2. THE ELECTORAL COMMISSION …………. 2ND DEFENDANT
J U D G M E N T
ADJEI, JSC:
The Plaintiff calls upon this court to interpret Article 142 of the constitution of Ghana, 1992 (P.N.D.C.L. 284) which mandate the courts to suspend the voting rights of convicts of those offences which are unconstitutional.
The case is of constitutional importance by the fact that it seeks to challenge the Representation of the People Act, 1992 (P.N.D.C.L. 284) for its propensity of denying some citizens of Ghana of their fundamental human rights from being registered as voters or voting at an election and which said rights have been given constitutional authorization by the Constitution of Ghana, without providing for any exception and would require the striking out of some provisions of P.N.D.C.L. 284 should the action succeed.
The Plaintiff, who alleges that some provisions of the Representation of the People Act, 1992 (P.N.D.C.L. 284) are unconstitutional, has invoked the original jurisdiction of the Supreme Court in his capacity as a citizen of Ghana to make a declaration to that effect under articles 2 and 130 of the Constitution of Ghana. The Plaintiff seeks the following reliefs from the Court against the Defendants.
“a. A declaration that, upon a true and proper interpretation of Article 42 of the 1992 Constitution every Ghanaian of 18 years and sound mind has the right to be registered and to vote in public elections and referenda.
b. A declaration that, upon a true and proper interpretation of Article 42 of the 1992 Constitution in conjunction with other relevant provisions of the Constitution, an individual convicted of an election-related offence shall not be deprived of their right to be registered as a voter or to participate in public elections or referenda.
c. A declaration that on a true and proper interpretation of Article 42 of the1992 Constitution, Section 28 of the Representation of the People Act, 1992 (PNDCL 284), which prohibits a person convicted of an offense relating to nomination papers and ballot from being registered as a voter or voting at an election is unconstitutional and an unjustified interference with their constitutionally guaranteed right.
d. A declaration that on a true and proper interpretation of Article 42 of the 1992 Constitution, Section 29 of the Representation of the People Act, 1992 (PNDCL 284), which prohibits a person convicted of an offense relating to unauthorized voting from being registered as a voter or voting at an election is unconstitutional and an unjustified interference with their constitutionally guaranteed right.
e. An order directed at the 2nd Defendant to register all persons who meet the criteria outlined in Article 42 of the Constitution but have been convicted of an electoral offense.
f. An order directed at the 2nd Defendant mandating the reinstatement of all individuals who fulfill the criteria set forth in Article 42 of the Constitution but whose names were excluded from the voter register after being convicted of an electoral offense.
g. An order for the payment of the Plaintiff’s legal fees and costs for the enforcement of the action.
h. Any other orders this Honourable Court may deem fit and just in the circumstances”.
The thrust of the Plaintiff’s case is that sections 27, 28, 29, 36, and 41 of the Representation of the People Act, P.N.D.C.L. 284 mandates the courts to suspend the voting rights of persons convicted of the relevant offences for five years from the date of completing their terms of imprisonment. The relevant electoral offences are: registration offences, offences relating to nomination papers and the ballot, unauthorized voting, interference with the electioneering activities of other persons, and penalties and incapacities for corrupt and illegal practices.
The five sections in P.N.D.C.L. 284 that have been described by the Plaintiff as offending sections and should be declared as unconstitutional are: 27, 28, 29, 36, and 41. The part of section 27 on registration offences, which the Plaintiff is challenging on grounds of unconstitutionality, by the fact that it disqualifies a person convicted of registration offences from being registered as a voter or voting at an election, provides as follows:
“A person who … commits an offence and is liable on conviction to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or both the fine and the imprisonment, and is disqualified for a period of five years from the date of the expiration of the term of imprisonment, from being registered as a voter or voting at an election.” (emphasis mine)
With respect to offences relating to nomination papers and the ballot, the Plaintiff complains about the part of section 28 that should be struck out as disqualifying a person convicted of any offence relating to nomination papers and the ballot, which provides as follows:
“A person who… commits an offence and is liable on conviction to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or both the fine and the imprisonment; and is disqualified, for a period of five years from the date of the expiration of the term of imprisonment, from being registered as a voter or voting at an election.” (emphasis mine)
The part of section 29 on unauthorised voting, which the Plaintiff complains disqualifies a person convicted of unauthorised voting, provides thus:
“A person who knowingly votes… commits an offence and is liable on to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or both the fine and the imprisonment; and is disqualified, for a period of five years from the date of the expiration of the term of imprisonment, from being registered as a voter or voting at an election.” (emphasis mine)
Section 36 on the offence of interference with the electioneering activities of other persons also includes a provision disqualifying a person convicted of any of the offences under it. It provides thus:
“A person who, before or during an election for the purpose of effecting or preventing the return of a candidate directly or indirectly…commits an offence and is liable on conviction to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or both the fine and the imprisonment and is disqualified for a period of five years from the date of the expiration of the term of imprisonment from being registered as a voter at a public election and in the case of a political party that political party shall be declared a prohibited organization. (emphasis mine)
Section 41 on penalty and incapacity for corrupt and illegal practices also prescribes disqualification for a person convicted of the offences of personation, bribery, treating, or undue influence as follows:
“(1) A person convicted of the offence of personation, bribery, treating, or undue influence, under sections 32, 33, 34 or 35, is liable on conviction to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or both the fine and the imprisonment, and is disqualified for a period of five years after the date of the expiration of the term of imprisonment, from being registered as a voter or voting at a public election.”
The Plaintiff submitted that article 42 of the Constitution provides for only two exceptions and they are limited to the age of citizens who are entitled to register as voters and vote in public elections which has been fixed for eighteen years, and that citizen shall be of sound mind, and that any other provision introduced by the Representation of the People Law, 1992 P.N.D.C.L. 284 to disqualify persons convicted of some offences from being registered as voters or voting at elections or public elections are unconstitutional and those sections shall be struck out.
Article 42 of the Constitution, which the Plaintiff alleges that some provisions in the Representation of the People Law, 1992 (P.N.D.C. L. 284) are inconsistent with, and those provisions are to be declared unconstitutional, provides thus:
“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 Defendants submitted that the exceptions provided by the P.N.D.C.L. 284 are legitimate within rule of law, furthermore, a fundamental right to be registered as a voter and vote in a public election or referenda is not an absolute right, and legislation may be used to provide exceptions to uphold the integrity of the electoral process, and the writ should be dismissed as without merits.
The parties on 17th December, 2025 jointly filed a memorandum of agreed issues in accordance with Rule 50 (1) of the Supreme Court Rules, 1996 (C.I. 16). The parties in their joint memorandum of agreed issues filed three issues but the Court on 24th February, 2026 struck out the ground (a) which was not an issue to be resolved as any citizen of Ghana of eighteen years who is of sound mind is entitled to be to be registered as a voter and vote in public elections and referenda which that citizen is entitled to be registered and vote. The two issues that were set down for the determination of the action are as follows:
“(a) Whether upon a true and proper interpretation of Article 42 of the 1992 Constitution, sections 27, 28, 29, 36, and 41 of PNDCL 284, which prevents persons convicted thereunder from registering or voting, is unconstitutional.
(b) Whether upon a true and proper interpretation of Articles 42 and 45 of the 1992 Constitution, the Defendant’s refusal to register all Ghanaians who are 18 years old and of sound mind simply because they have been convicted under PNDCL 284 is unconstitutional.”
The Plaintiff, in establishing his capacity to bring the action before the Court, alleges that he is a Ghanaian and a lawyer by profession, and that he resides in Accra. The jurisprudence on the capacity to bring an action in the Supreme Court to invoke its exclusive original jurisdiction under articles 2 and 130(1) has been established in several decisions, including in Sam (No.2) v Attorney-General [2000] SCGLR 305, and Adofo and Others v Attorney-General & Cocobod [2005-2006] SCGLR 42, and Bimpong-Buta v General Legal Council and Others [2003-2005] 1 GLR 738. A person who alleges that an enactment or anything contained in or done under the authority of that or any other person, or an act or omission is inconsistent or in contravention of a provision of the Constitution may bring an action to the Supreme Court, and the phrase a person “has been construed as a Ghanaian citizen both natural and corporate bodies which are recognised by law as artificial Ghanaian entities that may bring an action without demonstrating personal interest, but where the right to be enforced is an individual fundamental human rights, the proper forum shall be the High Court in accordance with article 33 of the Constitution. Irrespective of how the enforcement or the interpretation jurisdiction of the Supreme Court is couched, its exclusive jurisdiction shall not be available to the plaintiff where any other court shall also have jurisdiction.
It is not every company or corporate body registered in Ghana that automatically becomes a citizen; there are a few exceptions, including companies seeking to acquire interests in land and companies under the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930). Section 10(10) of the Land Act, 2020 (Act 1036) provides that, for the purposes of acquisition or interest in land, a company or corporate body is not a citizen of Ghana if more than 40% of its equity shareholding or ownership is held by non-citizens. A company or corporate entity, for the purposes of acquisition of land, shall not be considered as a citizen where its equity shareholding or ownership owned by a citizen is less than sixty percent, and, therefore, cannot invoke the exclusive jurisdiction of the Supreme Court under articles 2 and 130(1) of the Constitution. Section 156 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 defines a foreign company as “a company incorporated under the laws of a country other than Ghana.” The Plaintiff, a citizen of Ghana and a lawyer who is not enforcing his personal fundamental human rights, has the capacity to maintain the action without demonstrating that he has any personal interest in the outcome of the suit, and the suit is maintainable.
The 1st Defendant is sued under article 88 of the Constitution in his capacity as the principal legal advisor to the Government of Ghana, and the officer responsible for the institution and conduct of all civil cases on behalf of the State, and all civil proceedings against the State shall be instituted against him as defendant. The 2nd Defendant is established by article 43 of the Constitution of Ghana and to, inter alia, compile the register of voters and revise it at periods as may be determined by law, supervise all public elections and referenda, educate people on the electoral process and purpose, undertake programmes for the expansion of the registration of voters, and perform such other functions as may be prescribed by law. The Plaintiff sued the 2nd Defendant because it is the body responsible for the compilation of the register of voters, and conduct and supervise all public elections and referenda, and therefore shall prevent a person who has been disqualified by the courts from being registered as a voter or voting in public elections and referenda from registration and voting. The Plaintiff has cited instances where the then Director of Election of the 2nd Defendant, Dr. Serebour Quaicoe, opined as follows:
“I would have wished is given a two-year sentence, the GH¢6,000 cedis and the banning. Even the banning should have been for life even though it is not in the law. Because if you don’t want people’s vote to be counted, then why should you be voting? So I would have wished that he is given the full two years, the GH¢6, 000 and banned for life so that he will not go closer to elections anymore.”
The Plaintiff is seeking the interpretation of Article 42 of the Constitution as to whether the legislature can enact laws to limit or suspend the right of a citizen of Ghana to be registered as a voter or to vote upon conviction of some electoral offences. The traditional view, as discussed in Osei Boateng v National Media Commission [2012] 2 SCGLR 1038, where the majority held that the Supreme Court could not exercise enforcement jurisdiction unless the enforcement involved interpretation, thereby making enforcement and interpretation jurisdictions conjunctive. The Supreme Court in its unanimous decision in Kor v Attorney-General and Another [2015-2016] 1 SCGLR 115, where the Supreme Court held that its enforcement jurisdiction is different from its interpretation jurisdiction and the two jurisdictions are distinct, and the Constitution makes it clear in article 130 (1) (a), which provides thus:
“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of the Constitution, the Supreme Court shall have exclusive original jurisdiction in
(a) all matters relating to the enforcement or interpretation of the Constitution.”
Enforcement jurisdiction, in simple terms, is ensuring that the various provisions and principles of the constitution are upheld, respected, and implemented by the arms or organs of government and their agencies to promote and safeguard democratic principles, ensure accountability of government and its institutions, and to promote and protect fundamental human rights principles. Enforcement of the constitution ensures that government enactments, laws, actions, omissions, and acts align with it.
Interpretation, on the other hand, involves explaining and understanding the meaning of the provisions of the Constitution to ascertain the subjective purpose and the objective purpose, or what the framers of the Constitution intended at the time the Constitution was made. The subjective purpose discloses the meaning at the time the constitution was made, while the objective purpose is to elicit the meaning at the time of the interpretation of the text. The four grounds which may give rise to constitutional interpretation have been discussed and summarised in the Republic v Special Tribunal; Ex Parte Akosah [1980] GLR 592 as follows:
“(a) Where the words of the provision were imprecise or unclear or ambiguous. Put in another way, it would arise if one party invited the court to declare that the words of the article had a double meaning or were obscure or else meant something different from or more than what they said.;
(b) Where rival meanings had been placed by the litigants on the words of any provision of the Constitution;
(c) Where there was a conflict in the meaning and effect of two or more articles of the Constitution and the question was raised as to which provision should prevail; and
(d) Where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.”
The Plaintiff alleges that Article 42 of the Constitution requires an interpretation that would be free from restrictions apart from the two restrictions provided by the Constitution itself to declare the restrictions on the right to vote contained in the Representation of the People Act, P.N.D.C.L 284. According to the Plaintiff, the two restrictions provided by the Constitution to suspend a citizen’s right to vote are that; that citizen shall be eighteen years and of sound mind, and therefore any restriction imposed on a citizen’s right to vote is unconstitutional and affront to the purpose of article 42 of the Constitution. The Plaintiff further alleges that the Representation of the People Act, P.N.D.C.L. 284 which has conferred jurisdiction on the courts to suspend a citizen’s right to vote after being convicted of any of the offences mentioned above is unconstitutional and should be struck out from the law. The Defendants admit that article 42 of the Constitution requires interpretation but the interpretation given to it by the Plaintiff is narrow and strict and will lead to absurdity.
The writ hinges on issue (a) as issue (b) is an appendage to it, and the resolution of issue (a) shall have direct effect on issue (b). We therefore address issue (a) which provides thus:
“Whether upon a true and proper interpretation of Article 42 of the 1992 Constitution, all persons who turn 18 years on or before the day of any public elections have the right to vote and are entitled to be registered as voters for that purpose.”
We have to embark upon an interpretation voyage to ascertain the nature of the human rights provision before us for interpretation to determine whether it is an absolute right which cannot be restricted or a right that can be restricted by law to conform to international best practices and the parameters within which the restrictions can be made.
The trite position in human rights law is that human rights are not absolute rights except freedom from torture, inhuman, and degrading treatment; and freedom from slavery or servitude, which are absolute and shall not be restricted. The restrictions on human rights may be influenced by several grounds, such as national security, public safety, public morals, public order, public health, and rights and freedoms of others, provided the restrictions are proportionate, necessary, and prescribed by law. We shall interpret the right to vote with the assistance of comparative law commencing from international treaties, treaty bodies, the international human rights courts and in particular the European Court of Human Rights, and finally with decisions from some of the national courts which have developed their established jurisprudence on the citizens right to vote, and the basis upon which that right may be suspended or banned by the State concerned.
The right to vote is a human right and not a people’s rights by the fact that it was created by the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, and both instruments guarantee it as an inherent right to take part in public elections and referenda by voting or to be elected as a voter. Basically, human rights are inalienable rights inherent to individuals and often encompass civil, political, economic, social, and cultural rights. Human rights focus on individual freedom and protection from abuse and are mainly found in the United Nations Declarations and treaties, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights.
Peoples rights or collective rights are rights that belong to a group such as a family, community, nation or ethnic groups, and generally focus on collective survival and cultural identity as a group including all peoples right to existence; the right to a general satisfactory environment favourable to their development; the right to self-determination, the right to free disposal of natural resources; the right to national and international peace and security and; the right to economic, social and cultural development, and cannot be curtailed as a result of the wrong doing of a member of that community. The African Charter on Human and Peoples’ Rights is the main Charter that addresses both human and peoples’ rights. Articles 1 to 18 of the Charter are on human rights, and Articles 19 to 24 are on People’s rights, and the right to vote or to be registered as a voter as a human rights which is article 13 of the Charter is a human rights and shall be subject to such restrictions or interference that pursue legitimate aim to prevent crime to promote civic responsibility and respect for rule of law, and to ensure that the punishment prescribed is proportionate to the crime committed.
The trite position of law is that human rights and freedoms have their corresponding obligations and duties, and are not absolute rights except the right to the respect of the dignity inherent in human being and to the recognition of his legal status which prohibits absolutely all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment. Articles 4 and 5 of the Universal Declaration of Human Rights, and Article 5 of the African Charter on Human and Peoples’ Rights prohibit all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment. The Human Rights Committee adopted General Comment No. 20 on 10th March, 1992 to replace General Comment No. 7 of the International Covenant on Civil and Political Rights on Article 7 issued in 1982 on prohibition of torture or other cruel, inhuman or degrading treatment or punishment and stated that it is absolute prohibition and allows no justification, and public emergency or war cannot be invoked to justify it.
The African Court on Human and Peoples’ Rights in the cases of Makungu Misalabe v United Republic of Tanzania, ACtHPR, Application No. 033/2016, Judgment of 7th November, 2023; and Romward William v United Republic of Tanzania, ACtHPR, Application No. 030/2016, Judgment of 13th February, 2024 § 69 has authoritatively held that Article 5 of the African Charter on Human and Peoples’ Rights prohibits torture or other cruel, inhuman or degrading treatment or punishment, and cannot be justified on any grounds. The European Court of Human Rights in its landmark case of Tyrer v United Kingdom [1878] 2 EHRR 1 applied the principle of living instrument to depart from its previous decision which permitted corporal punishment, and held that there is a total prohibition for inhuman and degrading punishment or treatment and cannot be justified under any circumstances.
Article 21 of the Universal Declaration of Human Rights, which is on the right to participate in the government of a person’s country, provides thus:
“1. Everyone has the right to take part in the government of their country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in their country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be the universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Article 30 of the Universal Declaration of Human Rights provides that none of the rights shall be interpreted to destroy any of the rights and freedoms therein, and that the rights and freedoms are not absolute. It provides thus:
“Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”
The right to vote, which is among the political rights, forms part of the basic rights but not absolute rights, and limitations may be imposed to protect national security, public safety, public health, public morals, and the rights and freedoms of others, but the limitations shall be proportionate, necessary, and prescribed by law.
The African Charter on Human and Peoples’ Rights, which came into force on 21st October, 1986, was ratified by Ghana on 24th January, 1989, and is binding on Ghana. It also makes the right to vote a human right. Article 13 (1) of the African Charter provides thus:
“(1) Every citizen shall have the right to participate freely in government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”
Article 27 of the Charter imposes duties on individuals who have been granted rights to exercise them in a manner that shall not destroy or violate the rights of others, taking into account the rights of others, collective security, morality, and common interests. Article 27 (1) and (2) of the Charter provides thus:
“1. Every individual shall have duties towards his family and society, the State and other legally recognised communities, and the international community.
2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”
The import from the above provisions of the Charter is that a citizen’s right to vote may be curtailed or suspended where that citizen does an act concerning the right to be registered as a voter or the right to vote which was exercised without due regard to the rights of others, collective security, morality, and common interests. Therefore, a citizen’s right to vote or to be registered as a voter in public elections may be curtailed or suspended by a court of law where the State, by law, provides limitations that are proportionate and necessary to protect the rights of others, and to provide collective security, morality, and common interest of the citizens in the State concerned.
The International Covenant on Political and Cultural Rights (ICCPR) was adopted to guarantee political and cultural rights, and political rights include the right to be registered as a voter and to participate in national elections in one’s country when that citizen is eligible. The ICCPR came into force on 23rd March 1976, and was ratified by Ghana on 7th September 2000, and Ghana’s Constitution must align with it. Article 25 of the ICCPR provides thus:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
The Human Rights Committee, a body established by the ICCPR as a treaty body, has the capacity to interpret its various provisions through General Comments, and further receives applications brought against State parties on alleged violations of the Covenant within the context of their national constitutions and statutes, and decides on them. The relevant part of the Human Rights Committee’s General Comments under article 40, paragraph 4, which was adopted at its 1510th meeting, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996) provides thus:
“1. Article 25 of the Covenant recognises and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.
10. The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.
14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their rights to vote. The grounds of such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”
According to the UN Human Rights Committee, the right of a person to vote can be curtailed or suspended by taking into account matters such as age limitations, or persons who have been convicted of a particular offence as a result of which he has been deprived of his right to vote but the restrictions shall be objective and reasonable, the suspension from or deprivation of the right to vote or to be registered as a voter shall be proportionate to the offence, and the restrictions shall be made with regards to specific crimes such as corruption or electoral fraud or any offence that directly target the integrity of the electoral system.
The States parties including Ghana, Italy, United Kingdom who have criminalised electoral related offences that directly affect the integrity of the electoral system and confer jurisdiction on the courts as part of the appropriate sentence to be imposed include the power to suspend a citizen’s right to vote or to be registered as a voter are mandated to report to the Human Rights Committee in accordance with the Covenant. The State shall satisfy the Committee that the restrictions on the suspension of the right to vote or to be registered as a voter are objective and reasonable; and in terms of proportionality the duration of the suspension must be proportionate to the offence; and the sentence to be imposed after conviction which include the deprivation of the right to vote or to be registered as a voter shall relate to electoral fraud or corruption that touch and concern the integrity of the electoral system. A citizen’s right to vote shall not be suspended unless that citizen has been convicted of an offence by a court of competent jurisdiction, which is prescribed by law, and it is proportionate and necessary.
The Human Rights Committee in the case of Yevdokimov and Rezanov v Russian Federation (21 March 2011, No. 1410 /2005) (HRC 2005) where Russian laws deprived any citizen of Russia convicted of any offence from voting, the Human Rights Committee held that any blanket deprivation of a person’s right to vote or being registered as a voter shall be considered as not proportionate, and furthermore, the restrictions shall not be considered to be reasonable unless it is tied to specific serious offence especially those that have the propensity to undermine democratic process such as electoral fraud or corruption.
The Human Rights Committee in the case of Dissanayake v Sri Lanka, Comm.1373/2005, U.N. Doc. A/63/40, Vol. II, at 109 (HRC 2008) found that the conviction, which banned Dissanayake from voting, was arbitrary and capricious and denied him a fair trial, and that the deprivation of his fundamental human right to vote violated his right under article 25 of the ICCPR. The Committee further that the suspension of a citizen’s right from voting shall be valid in electoral fraud when the trial is based on fair trial and the conviction is not arbitrary.
We will at this stage embark upon comparative studies with the decisions rendered by some of the international human rights courts, particularly, the European Court of Human Rights that has determined the parameters of restrictions that may be imposed on the right to vote within the context of Article 3 of Protocol No.1 to the European Convention on Human Rights in numerous cases, and may have persuasive effect on our jurisprudence. The Protocol does not provide exceptions to the right to vote or deprivation of the right to register as a voter and vote, but the Court, in its interpretation of human rights provisions with respect to a right that is not absolute, has provided exceptions under which a person’s fundamental right to vote may be suspended or deprived without violating the Protocol. Article 3 of Protocol No.1 of the European Convention on Human Rights provides thus:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature.”
In the case of Scoppola v Italy (No. 3) Application No. 126/05, the European Court of Human Rights (Grand Chamber), on 22 May, 2012, where the majority of sixteen votes to one held that article 29 of the Criminal Code of Italy under which the Applicant was sentenced to life imprisonment and was banned from public office which amounted to his permanent forfeiture of his right to vote in conformity with section 2 of Presidential Decree no. 223 of 20 March 1967 was not in violation of Article 3 of Protocol No.1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court in its reasoning stated that the right to vote is not an absolute right and to curtail the right, there are three considerations that ought to be addressed, namely; that the restrictions to be imposed by law on the right to vote do not curtail the rights in question to the extent that they would impair their very essence and deprive them of their effectiveness, the restrictions shall be imposed to pursue legitimate aim, and that the means employed are not disproportionate to thwart the free expression of the people in choice of political leadership. The Court held that the restrictions imposed on the applicant’s right to vote did not affect the right of the people in the choice of their legislature and was intended to maintain the integrity and effectiveness of the electoral procedure with the aim of identifying the will of the people through the universal adult suffrage, and the interference with his right to vote was made with a legitimate aim to prevent crime and enhance civic responsibility and respect for the rule of law, and the punishment was proportionate to the offence committed.
In the case of Hirst v United Kingdom (no.2) [2005] ECHR 681; 42 EHRR 41; 74025/01, a landmark judgment delivered on 6th October 2005, the Grand Chamber by a majority of twelve to five, held that a system that stripped all convicted prisoners of their right to vote notwithstanding the length of their sentence and the nature of the offence and their individual circumstances was incompatible with Article 3 of Protocol No.1. to the Convention as the restriction was not considered to be proportionate to any legitimate aim to prevent crime or maintaining civil order.
The case of Soyler v Turkey ( Application no. 29411/07, judgment on 17 September 2013, the European Court of Human Rights held that Turkey’s ban on every convict prisoner from voting regardless of the nature of the offence was automatic and indiscriminate and violated Article 3 of Protocol No.1 to the Convention, by the fact that the restrictions failed to take into account the legitimate aim of enhancing civic responsibility and respect for rule of law, and disregarded the proportionality rule to determine whether the punishment commensurate with the offence for which a citizen was convicted.
There are other cases from domestic jurisdictions from Canada, Australia, and South Africa whose established jurisprudence on the citizens’ right to vote may have a persuasive effect, despite the fact that the Constitution of Ghana is sui generis. The Supreme Court of Canada in the case of Sauve v Canada (Attorney-General) [1993]2 S.C.R. 438 unanimously struck down a legislative provision that barred all prisoners from voting. The State later introduced amendments to limit the ban to prisoners serving sentences of two years or more, which was allowed by the Federal Court of Appeal on the grounds that the amendment did not violate Articles 1 and 3 of the Canadian Charter of Rights and Freedoms. Articles 1 and 3 of the Canadian Charter provide thus:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
The majority of five to four by the Supreme Court of Canada in Sauve v Attorney-Canada ( Chief Electoral Officer) [2002] 3 S.C.R. 519 held that the Government failed to identify the particular problems which should necessitate the suspension or deprivation of a person’s right to vote, and the measure failed to meet the proportionality test, in particular, the Government failed to establish a rational connection between depriving a person’s right to vote and its stated objectives of promoting civil responsibility and respect for rule of law, and imposing appropriate sanctions. The Supreme Court also used the three yardstick to determine restrictions, legitimacy, and proportionality before holding that the amendments to be introduced were in violation of the Charter.
The High Court of Australia, the apex court in the country in Roach v Electoral Commissioner [2007] HCA 43 ( 26 September 2007), by majority held that a general voting ban which failed to take into account the seriousness of the offence to make a person unfit to participate in electoral process, beyond the bare fact of imprisonment failed to meet the three test principle of restrictions, legitimate aim and proportionality shall fail and will amount to unlawful deprivation of a citizen’s right to vote which is a fundamental human right that entitles a citizen to participate in the political process of his country.
In August and Another v Electoral Commission and Others (CCT8/99: 1999(3) SA1), the Constitutional Court of South Africa considered the application of prisoners who had not been banned from voting but the Electoral Commission did not take measures to enable them to register and vote while in prison, and proceeded to hold that voting by its nature imposes positive obligations upon the executive and the legislature to ensure that every person discharges his civil responsibilities as there are no voting disabilities on prisoners in South Africa. However, limitations may be imposed upon the exercise of fundamental rights by law, provided they were reasonable and justifiable. The Court further held that in the absence of legislation preventing prisoners from voting, prisoners have the constitutional right to vote and neither the Electoral Commission nor the Constitutional Court had the power to disenfranchise them.
The Case of Ahumah Ocansey v Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v Attorney-General [2010] SCGLR 575 falls on all fours with August and Another v Electoral Commission and Others, supra which provides that prisoners whose rights to vote have not been curtailed by a court of competent jurisdiction in accordance with law cannot be deprived of their right to vote due to administrative bottlenecks or for whatever reasons.
The present case invites this Court to determine whether an Act of Parliament, such as the Representation of the People Law, P.N.D.C.L. 284, can be used to regulate a human rights provision contained in the Constitution by providing additional exceptions to the two provided by the framers of the Constitution and have been expressly stated. The Representation of People Act, P.N.D.C.L. 284 is an Act of Parliament by virtue of the Laws of Ghana (Revised Edition) Act, 1998 (Act 562), and all the existing laws made by the colonial masters and the military governments, which were not called as Acts of Parliament, are now Acts of Parliament. Article 42 of the Constitution provides thus:
“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 Plaintiff’s submission is that the framers of the Constitution provided two limitations, thus a person under eighteen years, and a person of an unsound mind who has been disqualified from voting and being registered as a voter and the limitations provided by the Representation of the Peoples Act, P.N.D.C. L. 284 is in violation of article 42 of the Constitution and should be struck down as unconstitutional. The Defendants, on the other hand, have submitted that it falls within Parliament’s powers to restrict persons who commit certain grave electoral offences and to disqualify them from voting for a certain number of years or from being registered as voters for a certain number of years. The relevant part of the Plaintiff’s written statement of case on the offending provisions provides thus:
“41. The Plaintiff’s contention is that the failure of the Defendant to register persons who qualify under Article 42 but have been convicted under PNDCL 284 is an unjustified interference on their right to vote and a breach of Articles 42 and 45 of the 1992 Constitution. The Plaintiff invites the Honourable Court to declare the impugned sections of PNDCL 284 and this practice of the Defendant as unconstitutional.
47. Each of the questions or legal issues raised here for determination by this Court, which issues are set forth, particularly in Section F below, invites this Court, in the exercise of its power under Article 130(1) (a)to interpret and/or enforce a provision or provisions of the 1992 Constitution”.
The dispute arises from the Plaintiff’s contention that sections 27, 28, 29, 36, and 41 of PNDCL 284, to the extent they prohibit persons convicted thereunder from registering and voting in elections, are unconstitutional. Also, the 2nd Defendant’s practice of denying the affected persons registration of quarantining them from voting is unconstitutional.
The 1st Defendant admits that there is a real issue of interpretation to be resolved but the Court should interpret it purposively to achieve enlightened objectives of the Constitution, and supports it position with the landmark case of Tuffour v Attorney-General [1980] GLR 637 which emphasised the position that a written constitution such as the 1992 Constitution has its letter and spirit and shall be interpreted benevolently and liberally to take accounts of its principles to address the needs of the time. The 1st Defendant, in its written statement of case, made the following observations.
“74. My Lords, without a doubt, the said provisions of PNDCL 284 are a proportionate response to the seriousness of electoral offences in that individuals who engage in malpractice demonstrate a disregard for the democratic process. Accordingly, the consequences reflect the severity of their actions.
75. My Lords, PNDCL 284 is not merely a punitive measure aimed at disenfranchising certain individuals as the Plaintiff alleges. Rather, it is a regulatory measure aimed at protecting the integrity of the electoral process. This would ensure that all persons uphold the law and respect the democratic process.
76. My Lords, since the Constitution grants mandate to Parliament to regulate elections and ensure integrity, PNDCL 284 is a lawful exercise of this power aimed at protecting electoral process.
77. Accordingly, my Lords, the provisions of PNDCL 284 has a legitimate aim to protect the integrity of elections and maintain public confidence in the democratic process. This aim is consistent with the Constitution’s emphasis on promoting good governance and democracy.”
The 2nd Defendant equally admits that there is an interpretation issue and invites the Court to disregard the doctrinaire approach to constitutional interpretation adopted by the Plaintiff and uphold that the right to vote is a fundamental human right, but not an absolute one that cannot be curtailed by the Constitution itself or any other law. The 2nd Defendant, in paragraph 14 of its statement of case, quoted Article 12 of the Constitution on the protection of fundamental human rights, stating that every fundamental human right and freedom provided by the Constitution, irrespective of the Chapter in which they are found, is not absolute and is subject to respect for the rights and freedoms of others. It continued to justify its position in paragraph 15, thus:
“15. The constitutional provision places an obligation on all governmental entities to uphold and enforce provisions related to fundamental rights. Additionally, Clause 2 specifies that the entitlement to basic human rights and freedoms must be balanced with the rights and freedoms of others and the public interest. This means that individuals have a right to their fundamental human rights, but this entitlement must be exercised in such a way that does not infringe upon the rights of others or the greater good of society. This shows that fundamental human rights and freedoms are not absolute and without restrictions.”
We proceed to determine whether, upon a proper interpretation of Article 42 of the Constitution, sections 27, 28, 29, 36, and 41 of PNDCL 284, which prevent persons convicted thereunder from registering as voters or voting, are unconstitutional. The parties have agreed that even though article 42 of the Constitution is under chapter seven on representation of the people and not under chapter 5 which is on fundamental human rights and freedoms, the right to vote or to register as a voter is fundamental human rights guaranteed by the two out of the three international instruments which are referred to as the international bill of rights, namely the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. The African Charter on Human and Peoples’ Rights, which Ghana has ratified, also makes the right to vote a fundamental human right but not an absolute one, as discussed above.
As have been well discussed above from international treaty bodies, international human rights courts and national jurisdictions, the right to vote or to be registered as a voter is not an absolute fundamental human rights and the right may be suspended, banned or deprived provided the restriction is made in accordance with law, the restriction has a legitimate aim to prevent crime and enhance civic responsibility and respect for rule of law, and the restriction proportional to the offence for which the person was convicted. The UN Human Rights Committee on its General Comment 25 adopted in July 1996 as an authoritative interpretation of Article 25 of the International Covenant on Civil and Political Rights on the right to participate in public affairs, voting rights, and the equal access to public provides that the right to vote or be registered as a voter and to participate in the political affairs of their country is a universal citizen rights that specifically protects the rights of every citizen, unlike the other rights that apply to all individuals, and therefore must be available to all without discrimination based on political opinion, religion, sex or race, and any restrictions to be placed on that right shall be based on objective and reasonable criteria including minimum age. Paragraph 14 of the General Comment 25 mandates State parties who have enacted laws to deprive citizens of their rights to vote or registered as voters after having been convicted of some electoral offences or other serious offences on objective and reasonable grounds which are meant to achieve legitimate aim, and the suspension of the right to vote is proportionate to the offence and sentence shall include it in the reports of the Committee for scrutiny. Any State party that disqualifies a citizen from exercising their voting right is to report to the Committee for scrutiny to satisfy itself that the disqualification was made in accordance with the three-part test of necessity, legitimacy, and proportionality.
The States Parties that have laws that restrict the rights of convicts of particular crimes are to submit reports to explain the limitations, and it is permissible for a country to restrict the rights of some convicts from voting, provided it is made on reasonable and objective grounds. We address the restrictions imposed on voters and eligible persons to be registered as voters upon conviction to satisfy ourselves that they meet the international standards. Section 27 of P.N.D.C.L. 284 which provides that a person who is convicted of registration offence under electoral offences upon conviction is liable to a fine exceeding five hundred penalty units or to a term of imprisonment not exceeding two years or to both the fine and imprisonment and is disqualified for a period of five years from the date of the expiration of the term of imprisonment, from being registered as a voter or voting at an election. Section 28 of P.N.D.C.L. 284, which is an electoral offence relating to nomination papers and ballot papers, also provides the same punishment and suspension of rights as provided in section 27 of P.N.D.C.L. 284. Section 29 also provides that a person who is convicted of unauthorised voting shall suffer the same punishment and suspension of the right to vote at an election or to be registered as a voter as provided in section 27. Section 36, which addresses interference with the electioneering activities of other persons, prescribes the same punishment and disqualification for five years from the date of the expiration of the term of imprisonment for being registered as a voter at a public election. Section 41 also provides for a person convicted of personation under section 32, bribery under section 33, treating under section 34, and undue influence under section 35 is liable to a fine or term of imprisonment not exceeding five hundred penalty units or to a term of imprisonment not exceeding two year or to both fine and the imprisonment and is disqualified for a period of five years after the date of the expiration of the term of imprisonment, from being registered as a voter or voting at public election.
It is instructive to note that persons who are convicted of offences under sections 27, 28, and 29 are disqualified from voting or being registered as a voter at an election, and section 50 of P.N.D.C.L. 284, the interpretation section, has defined election as an election held to elect members of Parliament. Therefore, they can take part in public elections other than parliamentary elections. Section 36 disqualifies convicts from being registered as a voter at a public election, and section 41 disqualifies convicts under sections 32, 33, 34, or 35 from being registered as a voter or voting at a public election. Public elections include all forms of elections conducted by the public, such as presidential, parliamentary, and district assembly elections. The disqualifications for these elections vary, with some limited to parliamentary elections and others applying to all public elections.
Parliament has the right to enact laws to regulate rights which are not absolute, including the right to vote or being registered as a voter, but the restrictions shall be fair and reasonable to achieve a legitimate aim, and the restriction shall be proportional to the offence for which a citizen was convicted. In addition to the UN Human Rights Committee’s General Comment on restrictions and cases decided by it including Yevdokimov and Rezanov v Russian Federation, supra, Dissanayake v Sri Lanka, supra,; Articles 13 and 27 of the African Charter on Human and Peoples’ Rights if read jointly provides that enjoyment of fundamental human rights and freedoms is inseparable from duties and obligations; cases from the European Human Rights Court including Hirst v United Kingdom (No. 2), supra, and Scoppola v Italy (No.3), supra; and the cases of Sauve v Canada, supra,; Roach v Electoral Commissioner, supra; and August and Another v Electoral Commission and Others, supra from Canada, Australia, and South African respectively provide that voting rights of a citizen can be restricted after having been convicted of electoral offences or serious offences. The three conditions for the restrictions of voting rights, being restrictions with objective and reasonable grounds, a legitimate aim, and the proportionality test, have been met by the P.N.D.C.L. 284 and cannot be said to have been made contrary to the Constitution.
The Supreme Court, which is the only body clothed with the interpretation of the Constitution of Ghana, should interpret it as a living instrument whose letter requires broad and benevolent interpretation to reveal its spirit or purpose, notwithstanding how narrow its language may seem to be, to be able to discover its objective purpose which is the objective meaning at the time of its interpretation. In constitutional interpretation, account shall be taken of time, circumstances, political, economic, social, and cultural developments to be able to ascertain both subjective purpose and objective purpose. The Constitution provides rights and limitations and not catalog of powers, and any right such as a voting rights which has been found not to be absolute can be restricted by Parliament provided the restriction is necessary to provide legitimate aim to ensure proper functioning and preservation of democratic regime having regard to the changing conditions in the country and the effect of the act of the citizen who was convicted of any of the impugned electoral offence would have had on the election. A written constitution such as ours, treaties, and conventions are interpreted within the context of the living instrument doctrine to ensure that they are interpreted within the present-day conditions as discussed in Tyrer v United Kingdom, supra. The living instrument doctrine allows for an interpretation that takes account of new technologies and modern crimes and their effects on democratic regimes, and the appropriate restrictions to be imposed to promote a legitimate aim, with the corresponding sanctions. We find that the spirit of the Constitution requires parliament to restrict the voting rights of citizens who have been convicted of serious or electoral offences. Parliament is right in restricting the voting rights of citizens who used unlawful acts to influence the outcome of a public election, in complete disregard of the Constitution’s introduction of universal adult suffrage as a significant milestone in Ghana’s democratic journey.
We are satisfied that the restrictions were properly made on a right to vote and to be registered as a voter under the universal adult suffrage, the restriction was made with a legitimate aim to disenfranchise the citizens convicted of the impugned crimes to prevent crimes involving some electoral offences to ensure that democratic regime is preserved to function to promote civic responsibility and respect for rule of law, and the five years disqualification from elections or public elections as the case may be is proportional to the offences concerned. The electoral wrongs that have been criminalised, and whose convicts lose their rights to vote or to be registered as voters are serious wrongs that have the propensity of changing the outcome of an election conducted in accordance with universal adult suffrage in the current democratic dispensation in the country, and therefore make the convicts unfit to participate in elections for five years after serving their prison terms which is a reasonable time for them to change to become fit persons for the purposes of elections.
The Constitution imposes duties and obligations of every citizen of Ghana to exercise in the exercise of enjoyment of rights and freedoms provided by the Constitution, and a citizen who exercises those his rights and freedoms but refuses to discharge the corresponding duties and obligations associated with them and rather destroys the rights and freedoms of others, and when convicted of an act amounting to electoral offences by a court of competent jurisdiction, that citizen shall by additionally described as unfit to exercise his electoral rights provided by the same Constitution and the appropriate laws in addition to the term of imprisonment or fine both the fine and imprisonment imposed on that citizen. Article 41 of the Constitution on the duties of citizens provides thus:
“The exercise and enjoyment of rights and freedoms is separable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen:
(b) to uphold and defend this Constitution and the law;
(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons.”
A citizen who fails to uphold defend the Constitution and the law and further fails to respect the rights and freedoms of others in the discharge of their freedoms and rights by voting at elections but commits an act that is detrimental to the welfare and others who have voted or voted for and have been convicted of an electoral offence shall be considered as an unpatriotic citizen and unfit to be registered to vote or vote at elections as may be prescribed by law. The disqualification for convicts of the specified offences is meant to achieve a legitimate aim, and the periods of the disqualifications are proportional to the nature of the offences prescribed by the Representation of the People Act, P.N.D.C.L. 284.
The duties imposed on every citizen of Ghana by the Constitution and other human rights instruments require him or her to exercise the rights and freedoms granted by those instruments with due regard for the rights of others, collective security, morality, and common interest. Unlawful interference with election processes creates collective insecurity in a country, and a person who commits any of the serious electoral offences should be made ineligible to exercise their electoral rights for a specified period.
The Plaintiff has failed to prove that sections 27, 28, 29, 36, and 41 of the Representation of the People’s Act, P.N.D.C.L. 284, and issue (a) of the action fail.
Having resolved that issue (a) fails, the issue (b) shall also fail as the 2nd Defendant only performs both its constitutional and statutory functions under article 45 of the Constitution and enforces the decisions rendered by the courts in the exercise of their jurisdiction under the Representation of the People Act, P.N.D.C.L. 284.
We dismiss the action and hold that the restrictions made by sections 27, 28, 29, 36, and 41 of the Representation of the People Act, P.N.D.C.L 284 are legitimate and constitutional.
(SGD.) D. D. ADJEI
(JUSTICE OF THE SUPREME COURT)
(SGD.) P. BAFFOE-BONNIE
(CHIEF JUSTICE)
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
(SGD.) J. BARTELS-KODWO
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
ACKAAH-BOAFO, JSC:
i. Introduction/Overview:
[1] My Lords, I find it apposite to commence this opinion with a reflection attributed to Aberjhani, an American poet, writer and columnist from his book Splendid Literarium: A Treasury of Stories, Aphorisms, Poems, and Essays, which reads:
“Democracy is not simply a license to indulge individual whims and proclivities. It is also holding oneself accountable to some reasonable degree for the conditions of peace and chaos that impact the lives of those who inhabit one’s beloved extended community.”
[2] In the instant action, the Plaintiff has invoked the jurisdiction of this Honourable Court, as the apex court of the Republic, seeking a declaration that certain provisions of the Representation of the People Act, 1992 (PNDCL 284), which operate to disqualify persons convicted of electoral offences from exercising the franchise, are unconstitutional. The gravamen of the Plaintiff’s case is that the impugned provisions are inconsistent with, and in contravention of, Article 42 of the 1992 Constitution, and are therefore void to the extent of their inconsistency.
[3] My Lords, the Plaintiff has invoked the original jurisdiction of this Honourable Court pursuant to Articles 2 and 130(1) of the Constitution and Rule 45 of the Supreme Court Rules, C.I. 16 (as amended by C.I. 24, 1999), and prays for the following reliefs:
“a. A declaration that, upon a true and proper interpretation of Article 42 of the 1992 Constitution every Ghanaian of 18 years and of sound mind has the right to be registered and to vote in public elections and referenda.
b. A declaration that, upon a true and proper interpretation of Article 42 of the 1992 Constitution in conjunction with other relevant provisions of the Constitution, an individual convicted of an election-related offence shall not be deprived of their right to be registered as a voter or to participate in public elections or referenda.
c. A declaration that on a true and proper interpretation of Article 42 of the1992 Constitution, Section 28 of the Representation of the People Act, 1992 (PNDCL 284), which prohibits a person convicted of an offense relating to nomination papers and ballot from being registered as a voter or voting at an election is unconstitutional and an unjustified interference with their constitutionally guaranteed right.
d. A declaration that on a true and proper interpretation of Article 42 of the 1992 Constitution, Section 29 of the Representation of the People Act, 1992 (PNDCL 284), which prohibits a person convicted of an offense relating to unauthorized voting from being registered as a voter or voting at an election is unconstitutional and an unjustified interference with their constitutionally guaranteed right.
e. An order directed at the 2nd Defendant to register all persons who meet the criteria outlined in Article 42 of the Constitution but have been convicted of an electoral offense.
f. An order directed at the 2nd Defendant mandating the reinstatement of all individuals who fulfill the criteria set forth in Article 42 of the Constitution but whose names were excluded from the voter register after being convicted of an electoral offense.
g. An order for the payment of the Plaintiff’s legal fees and costs for the enforcement of the action.
h. Any other orders this Honourable Court may deem fit and just in the circumstances”.
ii. Background Facts:
[4] The Plaintiff contends that, further to the adoption of the Constitution in 1992, the Constitution affirmed and incorporated into the body of Ghanaian law all enactments in force prior to 1992, pursuant to Article 11 of the Constitution. These existing laws include enactments such as the Representation of the People Law, 1992 (PNDCL 284), passed by the Provisional National Defence Council (PNDC) government.
[5] The Plaintiff further contends that PNDCL 284 provides extensive regulation of the conduct of parliamentary elections, including the creation and definition of a range of electoral offences under the rubric “Election Offences,” and prescribes sanctions upon conviction for such offences.
[6] The Plaintiff refers specifically to sections 27, 28, 29, 36, and 41 of PNDCL 284, which stipulate that persons convicted of the enumerated offences are liable to prescribed penalties, including disqualification from registration as voters and from participation in elections for a period of five (5) years subsequent to the completion of any sentence imposed.
[7] The Plaintiff further alleges that the Electoral Commission has, on occasion, invoked the referenced provisions of PNDCL 284 to deny otherwise qualified Ghanaian citizens the right to register as voters or to vote in public elections, contrary to the guarantees enshrined under Article 42 of the Constitution.
iii. Summary of Plaintiff’s Case:
[8] The Plaintiff’s case is founded on Sections 27, 28, 29, 36, and 41 of PNDCL 284. In the Plaintiff’s view, the conduct of the Electoral Commission, which disqualifies persons convicted of electoral offences from registering and voting, is unconstitutional.
[9] The Plaintiff contends that, under Article 42 of the 1992 Constitution, the right to vote is a fundamental human right guaranteed to all Ghanaian citizens who are eighteen years or above and of sound mind. This right, according to the Plaintiff, is a two-tier procedure, comprising the procedural right to be registered as a voter and the substantive right to cast a ballot at the time of voting. The Plaintiff submits that both components are inseparable, and that denial of registration effectively nullifies the right to vote. The Plaintiff refers to the case of Abu Ramadan and Another v. The Electoral Commission and Another [2013–2014] 2 SCGLR 1654 (Abu Ramadan No. 1) and the opinion of Wood CJ to support his argument.
[10] The Plaintiff further argues that the constitutional limitations on the right to vote are exhaustive. In the view of the Plaintiff, the Constitution limits the right to vote only by excluding persons below eighteen years and persons of unsound mind. He argues that these are the only permissible restrictions, and that no additional limitations — such as disqualification based on criminal conviction — are contemplated by Article 42.
[11] The Plaintiff refers to what he contends are the applicable principles for interpreting constitutional matters, such as the instant case, and submits that the right to vote is an inalienable right. He argues that the authorities establish that fundamental human rights are inherent, inalienable, and cannot be curtailed by any person or authority. Consequently, this Court is duty-bound to interpret constitutional provisions in a manner that preserves, respects, and enforces these rights rather than diminishes them, as affirmed in New Patriotic Party v. Inspector-General of Police [1993–94] 2 GLR 459–509.
[12] Further, the Plaintiff submits that this Court should interpret constitutional provisions so as to give full effect to the language, traditions, and purpose underlying fundamental rights, recognizing the Constitution as a legal instrument that guarantees enforceable individual rights, as stated in Minister of Home Affairs v. Fisher [1980] AC 319.
[13] The Plaintiff further submits that this Court, applying the above principles in Ahumah Ocansey v. Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v. Attorney-General [2010] SCGLR 575, reaffirmed that Article 42 of the Constitution confers the right to vote on all Ghanaians, subject only to limited exceptions — namely, persons under eighteen years and those of unsound mind.
[14] The Plaintiff further submits that the impugned sections of PNDCL 284 impose a five-year voting disqualification on persons convicted of electoral offences. This statutory disqualification, according to him, is unconstitutional. The Plaintiff submits that the impugned provisions introduce an extra-constitutional limitation on the right to vote, which is unconstitutional because Parliament lacks authority to expand restrictions on fundamental rights without express constitutional authorization. Consequently, the provisions are inconsistent with Article 42 and are void under Article 1(2) of the Constitution. The Plaintiff refers to Martin Kpebu v. Attorney-General [2016] GHASC 15 (5 May 2016), and Derrick Adu-Gyamfi v. The Attorney-General, Writ No. J1/18/2022, judgment delivered on November 8, 2023, in support of his argument.
[15] According to the Plaintiff, fundamental rights must be broadly protected and not restricted. He argues that such rights must be given a liberal and purposive interpretation, and that any limitation must be strictly and narrowly construed. No implied or inferred restrictions are permissible unless expressly stated. Thus, the absence of any reference to convicted persons in Article 42 means that such a restriction cannot be implied.
[16] Referring to Tehn-Addy v. Attorney-General and Electoral Commission [1997–98] 1 GLR 47 and Ahumah Ocansey v. Electoral Commission (supra), the Plaintiff submits that the constitutional right of all sound-minded Ghanaians aged eighteen and above to vote cannot be restricted, diminished, or denied unless a specific constitutional provision allows for such limitation or denial.
[17] The Plaintiff further argues that the Electoral Commission has a mandatory, non-discretionary constitutional duty under Articles 42 and 45 to register all eligible voters and to facilitate their participation in elections. To that extent, the Plaintiff contends that the Electoral Commission cannot impose additional eligibility criteria, and that its refusal to register convicted persons constitutes a breach of constitutional duty and an unlawful restriction on the right to vote.
[18] The Plaintiff contends that, by refusing to register persons convicted under PNDCL 284, the Electoral Commission’s conduct is unconstitutional, as it unlawfully excludes qualified Ghanaian citizens and imposes unauthorized restrictions on voting rights, thereby undermining the principle of universal adult suffrage. Such conduct, according to the Plaintiff, is inconsistent with Articles 42 and 45 of the Constitution.
[19] The Plaintiff further argues that denying voting rights based on conviction constitutes unjustified discrimination, as it fails to meet the test laid down by this Court in Nartey v. Gati [2010] SCGLR 745. He submits that the differentiation fails the test of justifiability, as it conflicts with the constitutional objective of universal suffrage. Thus, the exclusion of convicted persons amounts to unlawful discrimination.
[20] Based on the above and other submissions in the Statement of Case filed, the Plaintiff submits that the impugned provisions of PNDCL 284 are unconstitutional and void; that the Electoral Commission’s refusal to register affected persons is unlawful; and that this Court should declare the provisions null and void and compel compliance with Article 42 by ensuring that all eligible citizens are registered and allowed to vote.
iv. First Defendant’s Summary Arguments:
[21] The 1st Defendant, the Attorney-General, in its statement of case filed on July 7, 2025, affirmed that Ghana’s electoral framework is firmly grounded in the principle of universal adult suffrage, as guaranteed by the Constitution, with the right to vote recognized as a fundamental entitlement of every qualified citizen. The Attorney-General emphasized that the Electoral Commission, the 2nd Defendant, as the constitutionally mandated body, bears the responsibility of ensuring that the right to vote is effectively exercised.
[22] The Attorney-General argued that the courts, particularly the Supreme Court, have consistently underscored the centrality of the right to vote. Thus, in Ahumah-Ocansey v. Electoral Commission (supra), the Court extended the right to vote to prisoners, while cautioning that no authority may impose limitations beyond those expressly provided under Article 42. The Attorney-General further stated that cases such as Ahumah-Ocansey v. Electoral Commission (supra) and Apaloo v. Electoral Commission [2010] SCGLR 575 reinforce the position that the right to vote is a foundational pillar of democracy in Ghana, deserving of the highest level of protection because it underpins all other rights and freedoms.
[23] The Attorney-General further submitted that, notwithstanding its importance, the right to vote — like all fundamental human rights — is not absolute. The 1st Defendant referred to Article 12 of the 1992 Constitution, which makes it clear that the enjoyment of rights is subject to respect for the rights of others and the public interest. The Attorney-General also referenced this Court’s decision in Mark Darlington Osae v. Food and Drugs Authority (Suit No. J1/05/2023, dated June 2024), where it was held that constitutional rights may be lawfully limited, provided such limitations are justifiable within the spirit of the Constitution. This position, it was argued, is further supported by scholarly authority, particularly Aharon Barak, the eminent jurist, who articulates that human rights exist within the context of society and must be balanced against the needs of the state. Thus, a constitutional equilibrium must be maintained — one that neither sacrifices the state for individual rights nor undermines rights in the name of state power.
[24] The 1st Defendant further submitted that the courts have developed clear criteria for assessing the validity of limitations on rights. In CLOGSAG v. Attorney-General [2016–2017] 1 GLR 462, it was submitted that any restriction must satisfy the tests of necessity and proportionality; that is, it must serve the public good and must not be so excessive as to effectively extinguish the right in question. It was further submitted that, in Gorman v. Republic [2003–2004] SCGLR 784, this Court cautioned against treating human rights as an absolute defence, reiterating that the Constitution envisions a careful balance between individual liberties and the legitimate interests of the community. On this basis, the 1st Defendant contends that limitations on rights are not only permissible but essential within a constitutional democracy.
[25] Building on the above foundation, it was submitted that the impugned provisions of PNDCL 284 are justifiable. It was argued that these provisions, which criminalize various forms of electoral misconduct, serve a critical regulatory function aimed at safeguarding the integrity of the electoral process. The Attorney-General argued that, by penalizing offences such as fraudulent registration, ballot interference, and other corrupt practices, the law seeks to deter misconduct and ensure that elections are conducted in a free, fair, and transparent manner. The restrictions imposed, including limitations on voting rights for offenders, are presented not as punitive disenfranchisement but as necessary safeguards to preserve public confidence in the democratic system.
[26] Furthermore, it was contended that these measures are both necessary and proportionate. Individuals who engage in electoral malpractices demonstrate a willingness to undermine democratic legitimacy, and restricting their participation serves to protect the system as a whole, the Attorney-General argued. Such measures, according to the Attorney-General, also act as a deterrent to potential offenders and contribute to maintaining order and credibility in elections. The provisions, it was further argued, strike an appropriate balance between individual rights and the broader public interest, including the protection of vulnerable groups from manipulation and exploitation.
[27] Based on the above submissions and others contained in the statement of case filed, the Attorney-General argues that PNDCL 284 is a lawful exercise of Parliament’s constitutional mandate to regulate elections and uphold their integrity. Its objectives, according to the Attorney-General, align with the Constitution’s commitment to good governance and democratic accountability. It was further submitted that there are similar restrictions in other jurisdictions, such as the United States; therefore, such limitations are neither novel nor inherently unjustifiable. Ultimately, it was submitted that the impugned provisions are a legitimate and necessary response to the realities of electoral malpractice, aimed at preserving the sanctity and credibility of Ghana’s democratic process. The 1st Defendant therefore prayed that the Plaintiff is not entitled to the reliefs sought and that the Court should dismiss the suit as unmeritorious.
v. Second Defendant’s Summary Arguments
[28] The 2nd Defendant, the Electoral Commission, is also opposed to the Plaintiff’s case. Counsel for the 2nd Defendant, in his statement of case, referred to Article 12 of the 1992 Constitution of Ghana, particularly in relation to statutory provisions that disqualify individuals convicted of electoral offences from voting for a period of five years.
[29] Counsel emphasized that fundamental human rights, though constitutionally guaranteed under Article 12, are not absolute. Counsel argued that the Constitution itself contemplates limitations on rights, requiring a balance between individual freedoms, the rights of others, and the broader public interest. Counsel referred to the case of Gorman & Others v. The Republic (supra) and the dictum of Modibo Ocran JSC to underscore that, while human rights protections are robust, they must coexist with societal interests such as public safety, order, and the integrity of state institutions. Counsel therefore submitted that the legislative restrictions based on the provisions of PNDCL 284, aimed at safeguarding the electoral process, are permissible and constitutionally valid.
[30] The 2nd Defendant’s counsel further argued that Article 42, which guarantees the right to vote, cannot be interpreted as conferring an absolute or unqualified right. It was submitted that disqualification arising from electoral offences does not constitute a violation of voting rights but rather a necessary and proportionate restriction intended to preserve the integrity of elections.
[31] It was further argued, on the equitable principle that one must come to equity with clean hands, that individuals who undermine the electoral process cannot subsequently invoke constitutional protections to challenge sanctions imposed for their misconduct. Counsel referred to the United States case of Richardson v. Ramirez, 418 U.S. 24 (1974), to support the proposition that disenfranchisement based on criminal conduct is a recognized and lawful limitation.
[32] Additionally, the 2nd Defendant maintained that the Constitution must be read holistically. According to Counsel, while Article 42 guarantees the right to vote, other provisions — such as those outlining the functions of the Electoral Commission under Article 45 — implicitly empower the enactment of laws necessary to ensure free, fair, and credible elections. It was further argued that statutory provisions such as those in PNDCL 284 form part of this broader constitutional framework, serving legitimate objectives such as deterrence, rehabilitation, and the protection of democratic processes.
[33] The further argument of the Electoral Commission is that the temporary nature of the five-year disqualification of voting rights is proportionate to the severity of the offence. According to the 2nd Defendant, the suspension demonstrates proportionality and fairness. To the 2nd Defendant, therefore, the impugned provisions of PNDCL 284 are constitutional, as they represent justified limitations aligned with the spirit and letter of the Constitution.
[34] Counsel referred to the case of Mensima v. Attorney-General [1996–97] SCGLR 676 to submit that it was authoritatively stated by Acquah JSC that the 1992 Constitution, like its predecessors, recognizes that fundamental human rights and freedoms are subject to limitations. Consequently, in determining whether a law is unconstitutional, the Court is enjoined to undertake a two-stage inquiry: first, to ascertain whether the law is inconsistent with the Constitution on its face; and second, if so, to determine whether such inconsistency can nonetheless be justified under any constitutional limitation. Where such justification exists, the law remains constitutional; otherwise, it is rendered null and void.
[35] Flowing from this settled position, Counsel further submitted that it is the case of the 2nd Defendant that the Plaintiff’s contention that sections 27, 28, 29, 36 and 41 of PNDCL 284 are inconsistent with Article 42 is unsustainable. The Electoral Commission submits that the provisions are constitutionally valid, as the temporary restriction of voting rights for persons convicted of electoral offences serves a legitimate and vital purpose — namely, the preservation of the integrity of the electoral process and the maintenance of public confidence therein.
[36] Importantly, it was submitted that the restrictions do not amount to a permanent deprivation of rights but constitute a measured and temporary suspension. Counsel further referred to the decision in Abu Ramadan and Another v. Electoral Commission and Another (No. 1) (supra), where this Court, per Wood CJ, emphasized that the effective realization of the right to vote under Article 42 depends on the establishment of credible and reliable electoral systems and processes by the Electoral Commission.
[37] Guided by the above legal precedents, the 2nd Defendant maintains that sections 27, 28, 29, 39, and 41 of PNDCL 284 are designed to give full effect to Articles 42 and 45 of the 1992 Constitution rather than undermining the same. Consequently, the 2nd Defendant submits that, the impugned provisions reinforce the integrity and proper functioning of the electoral framework, and thus remain constitutional and good law. It therefore prayed the Court to dismiss the suit.
vi. The Issues for Determination:
[38] Further to the filing of the Statements of Case by the Plaintiff and the Defendants, the parties submitted a joint Memorandum of Issues on 17 December 2025 pursuant to Rule 50 of the Supreme Court Rules, 1996 (C.I. 16). The parties initially agreed on three issues; however, at the hearing held on 24 February 2026, the Court struck out one of the grounds on the basis that it disclosed no issue for determination. The two remaining issues, as set down by the Court for determination, are as follows:
“(a) Whether upon a true and proper interpretation of Article 42 of the 1992 Constitution, sections 27, 28, 29, 36, and 41 of PNDCL 284, which prevents persons convicted thereunder from registering or voting, is unconstitutional.
(b) Whether upon a true and proper interpretation of Articles 42 and 45 of the 1992 Constitution, the Defendant’s refusal to register all Ghanaians who are 18 years old and of sound mind simply because they have been convicted under PNDCL 284 is unconstitutional.”
vii. Opinion & Analysis:
[39] My Lords, this Court’s jurisdiction to interpret and enforce the Constitution is conferred by Articles 2(1) and 130(1) of the Constitution. In this case, it is noted that the 1st Defendant conceded that the Plaintiff satisfies the Article 2(1) threshold. Article 1(2) of the 1992 Constitution unequivocally establishes the supremacy of the Constitution by providing that it shall be the supreme law of Ghana, and that any other law found to be inconsistent with any of its provisions shall, to the extent of such inconsistency, be rendered void. This provision affirms the hierarchical superiority of the Constitution over all other enactments within our country’s legal order.
[40] Furthermore, Articles 2(1)(a) and 130(1)(b) of the Constitution delineate the procedural and substantive framework for invoking the jurisdiction of the Supreme Court in constitutional matters. Article 2(1)(a) confers standing on any person who alleges that an enactment, or any act done under the authority of that enactment, is inconsistent with or in contravention of a provision of the Constitution, to institute proceedings before this Court for a declaration to that effect.
[41] Complementarily, Article 130(1)(b) vests this Court with exclusive original jurisdiction, subject to the High Court’s jurisdiction in matters relating to the enforcement of fundamental human rights under Article 33, over all questions concerning whether an enactment has been made in excess of the powers conferred on Parliament or any other authority or person under the Constitution.
[42] Taken together, these provisions confer both locus standi and the requisite jurisdiction upon the Supreme Court to entertain actions challenging the constitutional validity of enactments. Accordingly, any person, such as the Plaintiff in the instant case, who contends that a provision of an enactment is inconsistent with the Constitution is entitled to invoke the jurisdiction of this Court to obtain a declaration that such enactment is void, either wholly or to the extent of its inconsistency.
[43] My Lords, based on the case presented by the parties, it is my view that a genuine issue of interpretation arises for determination. Consequently, our jurisdiction under Article 130 of the Constitution has been properly invoked. See: Osei Boateng v National Media Commission & Apenteng [2012] 2 SCGLR 1038; and Republic v Special Tribunal; Ex Parte Akosah [1980] GLR 592.
[44] Having established that this Court’s jurisdiction is properly invoked to determine the Plaintiff’s case, I now proceed to address the issues set down for determination. I understand the first issue to mean that sections 27, 28, 29, 36, and 41 of PNDCL 284 punish and disqualify certain persons from registering or voting in elections in Ghana, particularly persons convicted of certain offences under that law. The question to be answered, therefore, is whether PNDCL 284 can lawfully take away the right to vote from persons who have been convicted of electoral offences, when the Constitution appears to grant that right broadly. Put differently, is it unconstitutional for a law to prevent convicted persons from voting when the Constitution provides that all adult citizens of sound mind have the right to vote?
[45] My Lords, since the gravamen of the Plaintiff’s case is that the impugned provisions are inconsistent with, and in contravention of, Article 42 of the 1992 Constitution, and are therefore void to the extent of their inconsistency, we are called upon to determine whether the impugned provisions are unconstitutional vis-à-vis Article 42 of the Constitution.
[46] It is my respectful opinion that any inquiry into the meaning or scope of Article 42 and the provisions of PNDCL 284 must commence with a holistic reading of the constitutional provision together with the impugned statutory provisions. This settled principle of interpretation was articulated by this Honourable Court in Tuffuor v. Attorney-General [1980] GLR 637 at 667.
[47] Further, in Banful & Another v. Attorney-General & Another [2017–2018] 1 SCGLR 82, this Court affirmed that guidance on constitutional interpretation may properly be drawn from section 10(4) of the Interpretation Act, 2009 (Act 792). In that decision, the Court emphasised that section 10(4) mandates a purposive and value-oriented approach to interpretation, providing as follows:
“(4) Without prejudice to any other provision of this section, a Court shall construe or interpret a provision of the Constitution or any other law in a manner –
(a) that promotes the rule of law and the values of good governance,
(b) that advances human rights and fundamental freedoms,
(c) that permits the creative development of the provisions of the Constitution and the laws of Ghana, and
(d) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana.”
[48] My Lords, my view is that this purposive, value-oriented approach should be applied to the interpretation of Article 42 of the Constitution together with the impugned provisions of PNDCL 284 in order to answer the questions raised in this case. In doing so, I am of the opinion that each provision should be given effect in a manner that advances its underlying purpose while remaining faithful to its language.
[49] I now wish to address the first issue set out by the parties and adopted by the Court and explained above. Before doing so, however, I find it useful to refer to Article 42 of the Constitution and the five provisions of PNDCL 284 which form the fulcrum of the Plaintiff’s case, and which he contends are unconstitutional, namely sections 27, 28, 29, 36, and 41.
[50] Article 42 of the Constitution provides:
“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.”
My understanding of the above is that the provision guarantees that any Ghanaian citizen who is at least 18 years old and mentally sound has a constitutional right to both register and vote in elections and referenda. The provision also imposes an obligation on the state to make this right practical and accessible. In effect, the Constitution acknowledges registration and voting as foundational pillars of our democracy.
[51] Section 27 of PNDCL 284 on the other hand, disqualifies a person convicted of registration offences from being registered as a voter or from voting in any election for a period of five years from the date of the expiration of the term of imprisonment.
[52] Similarly, section 28 of PNDCL 284 disqualifies a person convicted of any offence relating to nomination papers and the ballot from being registered as a voter or from voting in any election for a period of five years from the date of the expiration of the term of imprisonment.
[53] Section 29 of PNDCL 284 also provides that a person convicted of unauthorised voting shall, for a period of five years from the date of the expiration of the term of imprisonment, be disqualified from being registered as a voter or from voting in any election.
[54] Section 36 of PNDCL 284 addresses the offence of interference with the electioneering activities of other persons. It further provides that a person convicted of any offence under that section shall be disqualified, for a period of five years from the date of the expiration of the term of imprisonment, from being registered as a voter at a public election. Additionally, where the offender is a political party, that party shall be declared a prohibited organisation.
[55] The next impugned provision, according to the Plaintiff, is section 41 of PNDCL 284, which deals with penalties and incapacities arising from corrupt and illegal practices. It imposes disqualification on persons convicted of offences such as personation, bribery, treating, or undue influence. The section provides as follows:
“(1) A person convicted of the offence of personation, bribery, treating, or undue influence under sections 32, 33, 34 or 35 is liable on conviction to a fine not exceeding five hundred penalty units or to a term of imprisonment not exceeding two years, or to both the fine and the imprisonment, and is disqualified for a period of five years after the date of the expiration of the term of imprisonment from being registered as a voter or from voting at a public election.”
[56] In my considered view, the foregoing provisions are clear and admit of no ambiguity. Section 27 addresses offences relating to registration, including the making of false statements in connection with an application for the inclusion of one’s name in the register of voters. Section 28 concerns offences pertaining to nomination papers and the ballot, encompassing, inter alia, the forging, fraudulent defacement, or destruction of a nomination paper or any document connected with the registration of a voter. Section 29 provides for the offence of unauthorized voting, specifically where a person knowingly votes in an election in which he or she is not entitled to participate. Section 36 deals with the interference with the electioneering activities of other persons, whilst section 41 prescribes the penalties and incapacity attendant upon corrupt and illegal practices.
[57] From the statement of case filed, I understand the Plaintiff to contend that the disqualification of persons convicted under any of the impugned provisions is unconstitutional, on the basis that Article 42 of the Constitution does not provide for such disqualification. According to the Plaintiff, Article 42 of the Constitution admits of only two principal limitations, namely, that a citizen must have attained the age of eighteen years and must be of sound mind in order to register and vote. The Plaintiff relies on cases such as Ahumah Ocansey v. Electoral Commission (supra) to argue that the constitutional right of all sound-minded Ghanaians aged eighteen and above to vote cannot be restricted, diminished, or denied unless a specific constitutional provision expressly permits such limitation or denial.
[58] It is noteworthy that each of the impugned provisions stipulates that a person convicted of any such offence shall be liable to a fine, a term of imprisonment not exceeding two years, or both, and shall, in addition, be disqualified from voting for a period of five years. Accordingly, it is my opinion that the disqualification complained of by the Plaintiff forms an integral part of the prescribed punishment for the offences and is neither distinct from nor independent of it. This, in my view, is different from the scenario in Ahumah Ocansey v. Electoral Commission (supra), where the issue was whether persons convicted of non-election-related offences and imprisoned could be denied the right to vote. In my view, the Plaintiff’s contention suggests that the punishment regime of the impugned provisions is unconstitutional, a contention I outrightly reject. It is my respectful opinion that the Plaintiff’s position does not accord with a careful and faithful reading of the text.
[59] It is my view that the impugned provisions, when read together with Articles 12(2) and 19(11), create an additional barrier to Article 42. To that effect, the provisions of PNDCL 284 are complementary, not contradictory or unconstitutional. It is a well-established principle of constitutional law that where the Constitution grants a right, Parliament has the power — and indeed the duty — to enact laws that provide the framework for the practical realization of that right.
[60] It is therefore my opinion that section 27 of PNDCL 284, which requires that a prospective voter must not make a false statement to have his or her name included in a voter registration, and which addresses offences relating to such registration, does not contravene Article 42. Rather, it is a necessary administrative measure to verify that the individual meets the criteria set out in Article 42 (citizenship, age, and sound mind). Without such verification, the integrity of the register would be compromised, and the rights of others would be adversely affected by fraud.
[61] In New Patriotic Party v. Electoral Commission [1993–94] 2 GLR 35–192, the Supreme Court held that while the Constitution grants rights, the Electoral Commission has the power to make regulations (under laws such as PNDCL 284) to ensure the effective exercise of those rights, provided that such regulations do not fundamentally undermine the right itself.
[62] In my view, the provisions identified by the Plaintiff relate to how the 2nd Defendant, the Electoral Commission, may create a reliable voters’ register. The question to be asked is whether the State, specifically Parliament — is interfering with the rights of Ghanaian citizens to vote. As pointed out by the Defendants, the rights of citizens are not absolute. Article 12(2) of the Constitution provides that the enjoyment of fundamental rights and freedoms of any individual is subject to “respect for the rights and freedoms of others and for the public interest.”
[63] My Lords, as stated elsewhere in this opinion, one core principle of constitutional interpretation is that the Constitution must be read as a whole. Accordingly, Article 42 cannot be interpreted in isolation from the rest of the Constitution. I am therefore of the opinion that the 1992 Constitution, when read holistically, recognises that the enjoyment of political rights, such as participation in political activities — is protected but also subject to limitations within the parameters set out by law and the Constitution.
[64] Article 21(3) of the Constitution provides that:
“(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.” [Emphasis mine]
[65] From the above, it is clear that Article 21(3) guarantees to citizens the freedom to form or join political parties and to participate in political activities, subject to qualifications and laws that are necessary in a free and democratic society and consistent with the Constitution. The act of registering as a voter, as well as the act of voting itself, constitutes one of the clearest forms of political participation. As such, participation may lawfully be limited within the parameters of the law. To my mind, on a holistic reading, the Constitution protects political rights but does not present them as incapable of qualification. Article 42 must, accordingly, be construed harmoniously with the rest of the Constitution. [Emphasis Mine].
[66] My Lords, some of the clearest examples of limitations on a person’s participation in political matters, within the context of the present discussion, are found in the eligibility requirements for standing as President or as a Member of Parliament, as set out in Articles 62 and 94 of the Constitution. Article 94(2) (c) (iii) disqualifies from Parliament a person convicted “for an offence relating to, or connected with, elections under a law in force in Ghana at any time,” while Article 94(2)(f) disqualifies a person who “is not qualified to be registered as a voter under any law relating to public elections.” [Emphasis Mine].
[67] Additionally, Article 62(c) makes presidential qualification dependent on a person being otherwise qualified to be elected as a Member of Parliament, while preserving the disqualifications in Article 94(2)(c), (d), and (e). These provisions are constitutionally significant. In my view, they demonstrate, first, that election-related convictions may carry disabling consequences in the political sphere and, second, that a person’s lack of qualification to be registered as a voter may arise under an election law, in this case, P.N.D.C.L. 284. It would therefore be an unduly erroneous reading of Article 42 to suggest that the Constitution excludes every statutory disqualification affecting registration or other aspects of political participation.
[68] The proposition that the Constitution itself may attach conviction-based consequences to the enjoyment of political rights is further supported by the decision of this Court in Ekwam v Pianim (No. 2) and Others [1996–97] SCGLR 121. In that case, the Court interpreted Article 62(c) as incorporating into presidential qualifications the conviction-based disqualifications set out in Article 94(2)(c), and the action succeeded on the basis that the defendant was not qualified to contest the presidential election due to his previous conviction. Although that case concerned eligibility for high office rather than the franchise under Article 42, it remains instructive for present purposes: the Constitution recognises that conviction may, in appropriate circumstances, limit the exercise of political rights.
[69] From the foregoing, it is evident that qualifications for participation in elections may lawfully be limited by sections 27, 28, 29, 36 and 41 of P.N.D.C.L. 284, which expressly attach to conviction a five-year period of incapacity — running from the expiration of the offender’s term of imprisonment — during which the individual is disqualified from being registered as a voter or from voting in an election. These consequences are clearly set out in a written law and constitute statutory incapacities expressly linked to conviction for specified election offences.
[70] Article 19(11) of the Constitution provides that:
“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”
From the above constitutional provision perspective, once both the offence and its consequences have been expressly defined by law, the constitutional inquiry that remains is not whether the Constitution, in principle, forbids all forms of electoral incapacity, but whether the specific incapacity imposed is necessary and proportionate. Accordingly, it is my opinion that the challenged provisions meet the constitutional standard. Therefore, the true constitutional issue, is not whether electoral misconduct may be sanctioned at all, but whether, within the scope of Article 42, the sanction of temporary electoral disqualification is reasonable and proportionate.
[71] Considering the Plaintiff’s case, the impugned provisions of PNDCL 284 that are at play, and the reasonableness and proportionality of the sanction, the pertinent questions to be asked are the policy reasons underlying these provisions and what they are meant to achieve. In my view, the rights and freedoms of Ghanaian citizens may be limited, provided that such limitations are prescribed by law, reasonable, proportionate, and demonstrably justified in a free and democratic society. Additionally, we ought to determine whether there is a rational connection between the law and what it seeks to achieve. Is there proportionality between the offences created by the impugned provisions and the punitive objectives of the law? In other words, is there a balance between the salutary and deleterious effects?
[72] The origin and structure of the proportionality test were developed by the Supreme Court of Canada in R v Oakes [1986] 1 S.C.R. 103, otherwise known as the Oakes test. In that case, Oakes was found in possession of cannabis and a sum of money, leading to his conviction under the Narcotic Control Act. A key issue arose from section 8 of the Act, which imposed a “reverse onus” by requiring Oakes to prove that his possession was not for the purpose of trafficking. Ordinarily, the burden of proof lies with the prosecution, so Oakes challenged this provision as violating the presumption of innocence guaranteed under section 11(d) of the Canadian Charter of Rights and Freedoms.
[73] The Ontario Court of Appeal agreed that section 8 infringed the presumption of innocence because it shifted the burden of proof onto the accused. When the case was considered by the Supreme Court of Canada, the Court discussed whether section 8 violated section 11(d) and, if so, whether that violation could nonetheless be justified under section 1 of the Charter, which permits reasonable limits on rights in a free and democratic society. The Court ultimately held that section 8 was unconstitutional because it unjustifiably infringed the presumption of innocence, thereby affirming the primacy of section 11(d).
[74] The Supreme Court of Canada developed the Oakes test as a framework for determining when limitations on Charter rights can be justified. Section 1 of the Charter allows rights to be limited only where such limits are reasonable, prescribed by law, and demonstrably justified. The Oakes test provides the standard for assessing this justification by asking whether a restriction on a right is both rational and defensible in a democratic society.
[75] The test operates in two main stages. First, it must be shown that the limitation is prescribed by law and pursues a pressing and substantial objective. This means that the law must address an important concern and not a trivial or arbitrary purpose.
[76] Second, the test evaluates whether the means used to achieve that objective are proportionate. This proportionality analysis has three components. The first is the rational connection test, which examines whether the measures adopted are logically connected to the objective; a law will fail if it is arbitrary or incapable of achieving its intended goal. The second is the minimal impairment test, which requires that the law impair the right as little as reasonably possible — meaning that the least restrictive and most appropriate means must be used. The third is proportionality in the strict sense, which involves balancing the benefits of the law against its harmful effects on rights, ensuring that the overall impact of the law is justified in light of the public good it seeks to achieve.
[77] In essence, the Oakes test provides a structured method for courts to determine whether limitations on fundamental rights are justified, ensuring that any restriction is carefully scrutinized and proportionate to its intended purpose.
[78] My Lords, it is instructive to note that this Court has formulated its own proportionality test similar to the Oakes test. This was developed by the venerable Acquah JSC in Republic v Tommy Thompson Books Ltd. (No 2) [1996–97] SCGLR 484 at 500–501. The learned jurist presented the test as a structured, two-tier inquiry for determining whether a law that limits a constitutionally guaranteed right can nonetheless be justified.
[79] At the first stage, the Court examines the objective of the impugned law. Drawing from the language of Article 164 and analogous provisions such as Article 21(4)(c) of the Constitution, the Court emphasized that a law must be “reasonably necessary or required” in the public interest, national security, or similar concerns. This requirement is interpreted to mean that the purpose of the law must be sufficiently important to justify overriding a fundamental right. The objective cannot be trivial, frivolous, or merely convenient; rather, it must address concerns that are pressing and substantial in a constitutional sense.
[80] At the second stage, the focus shifts from the importance of the objective to the means adopted to achieve it. Here, the Court assesses whether the law constitutes a proportionate and appropriate mechanism for realizing its stated aim. This involves a careful examination of the law’s provisions to determine, among other things, whether they conform to fundamental legal principles such as natural justice, and whether they impair the protected right more than is necessary. The inquiry is thus concerned with the rationality, fairness, and necessity of the legislative measures.
[81] In other words, the Ghanaian proportionality test requires both a compelling objective and proportionate means: a law must pursue a sufficiently important aim and must do so through measures that are fair, rational, and minimally impairing of constitutional rights. See also Mark Darlington Osae v. Food and Drugs Authority (supra).
viii. Conclusion & Disposition:
[82] My Lords, applying the test to the case at bar, it is my opinion that the impugned provisions address the compilation of the voters’ register and the role of citizens during registration, including prohibiting false or fraudulent statements to secure inclusion on the register, as well as regulating conduct relating to nomination papers, ballots, and related offences. These provisions, in my view, are reasonably necessary or required in the public interest, national security, or similar concerns regarding elections in our country. Allegations that the voters’ register contains names of persons not qualified to vote may be a recipe for violence, thereby threatening national security. It is therefore in the public interest to prevent such occurrences.
[83] Further, in my view, the objective of disqualifying persons who are arrested, tried, and convicted for violating these provisions is appropriate and proportionate to the overall objective of the law. The law seeks to deter misconduct and to ensure that elections are conducted in a free, fair, and transparent manner. To that extent, it is not unreasonable to disqualify, for a period of time, an individual who fraudulently registers to vote when unqualified or who engages in acts such as ballot box snatching or destruction, which ultimately prevent the votes of qualified citizens from being counted.
[84] Undoubtedly, persons who engage in electoral malpractices demonstrate a willingness to undermine democratic legitimacy; to permit them to vote immediately in subsequent elections, despite their convictions, is, to my mind, an affront to common sense and good governance, as it sends the message that their actions did not incur the general outrage of reasonable people in our democratic society.
[85] In my respectful view, to hold that such disqualification is unconstitutional would diminish the meaning of freedom and fundamental rights, because no right or liberty can be meaningfully exercised without responsibility. The penalties for violating the impugned provisions of PNDCL 284 are logical and practical consequences and are not unconstitutional in relation to Article 42 of the Constitution.
[86] The lawfulness of limiting political rights is also recognised under international law, particularly Article 25 of the International Covenant on Civil and Political Rights (ICCPR). The provision guarantees to every citizen the right and opportunity, “without unreasonable restrictions,” to take part in public affairs, to vote and to be elected at genuine periodic elections, and to have access to public service on general terms of equality. The critical point is that the Covenant does not treat political rights as entirely immune from restriction; rather, it prohibits unreasonable restrictions.
[87] Within the context of Ghanaian law, it is my opinion that it is reasonable to conclude that a temporary incapacity to vote following conviction for a serious election-related offence constitutes a reasonable restriction, as it is directed at safeguarding the integrity of the electoral process and maintaining public confidence in the franchise. Based on all of the analysis, it is my opinion that the answer to the first question set out in paragraph 38 of this opinion should be in the negative. The impugned provisions are not unconstitutional vis-à-vis Article 42 of the Constitution.
[88] Having answered and determined that the first issue must be resolved in the negative, and resolved against the Plaintiff, it is my considered opinion that it is neither necessary nor desirable to attempt to discuss the second issue. It must also fail. The reason is simple and straightforward: the Electoral Commission, the 2nd Defendant, acts strictly within the confines of its constitutional and statutory mandate, as prescribed under Article 45 of the Constitution. It merely gives effect to decisions duly rendered by courts of competent jurisdiction pursuant to PNDCL 284.
[89] Finally, my Lords, I find it appropriate to conclude my opinion by referring to my opening quotation, which, to my mind, means that democracy is not merely about people having the freedom to do whatever they wish or to pursue their personal desires without limits. Instead, it ought to be understood that the exercise of rights comes with corresponding responsibilities. In a democratic society, individuals are expected to be accountable for their actions and to consider how their conduct affects others as well as the overall peace of the community/country. In other words, freedom in a democracy is balanced with duty, as people must act in ways that help maintain order, respect the rights of others, and contribute to peaceful coexistence. Simply put, democracy is both about enjoying rights and accepting responsibility for keeping society stable and harmonious.
[90] My Lords, I find no merit in the Plaintiff’s case as presented. The submissions advanced on behalf of the Plaintiff do not persuade me that the impugned provisions of PNDCL 284 are unconstitutional. In my considered opinion, the Plaintiff’s action is wholly unmeritorious and ought to fail in its entirety. I so hold and declare accordingly.
(SGD.) K. T. ACKAAH-BOAFO
(JUSTICE OF THE SUPREME COURT)
COUNSEL
NOAH EPHRAEM TETTEH ADAMTEY ESQ. FOR THE PLAINTIFF.
JONATHAN ACQUAH (CHIEF STATE ATTORNEY) FOR THE 1ST DEFENDANT WITH REGINALD NII ODOI ( STATE ATTORNEY) LED BY DR. JUSTICE
SREM-SAI (DEPUTY ATTORNEY GENERAL).
JUSTIN AMENUVOR ESQ. FOR THE 2ND DEFENDANT.
