TEHN-ADDY vs. ATTORNEY-GENERAL AND ELECTORAL COMMISSION [1997-98] 1 GLR 47

CASES REFERRED TO

(1) Westbury v Sanders, 376 US 17 (1884).

(2) North Perth, Re; Hessein v Lloyd (1891) 21 OR 538.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a qualified Ghanaian, for a declaration, inter alia, that the failure or refusal of the Electoral Commission, the second defendant, to register him as a voter for the 1996 Presidential and Parliamentary Elections was inconsistent with and in contravention of articles 42, 45 and 46 of the Constitution, 1992. The facts are sufficiently stated in the judgment of the court delivered by Acquah JSC.

COUNSEL

Dick Anyadi for the plaintiff.

Avah, Chief State Attorney, for the defendant.

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JUDGMENT OF ACQUAH JSC

Acquah JSC delivered the judgment of the court. On 16 July 1996 we heard this suit and ordered the National Electoral Commissioner to register the plaintiff and all those who in the exercise of the commissioner’s discretion are qualified to be registered in terms of the provisions of the Public Elections (Registration of Voters) Regulations, 1995 (CI 12). We now proceed to give our reasons.

The plaintiff, a 57 year old Ghanaian citizen, invoked the original jurisdiction of this court against the Attorney-General and the Electoral Commissioner for:

“(i) A declaration that the conduct of the second defendant in failing or refusing to register the plaintiff as a voter is inconsistent with and in contravention of articles 42, 45 and 46 of the Constitution, 1992.

(ii) A declaration that the second defendant having exercised its discretion to register voters between 1 June to 9 June 1995 is bound to register or fix a new period for the registration of the plaintiff as a voter in accordance with articles 42, 45 and 46 of the Constitution, 1992.

(iii) An order of perpetual injunction restraining the second defendant from certifying the provisional register of voters until the plaintiff has been registered as a voter.”

After describing the parties, the plaintiff sets out the basis of his action in the following paragraphs of his statement of case:

“(4) In October 1995 the second defendant embarked on a compilation of a register of voters.

(5) The plaintiff was unavoidably outside the country as between May and November 1995 he was on a pastoral visit to his church, the ARS Church, in Toronto, Canada.

(6) After the plaintiff’s return to Ghana in November 1995 he wrote a letter dated 27 March 1996 to the second defendant who received it on 15 April 1996 applying for re’-registration and the voters identity card. The said letter together with its attachments is annexed hereto and marked exhibit A.

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(7) The plaintiff received no acknowledgement to his said letter.

(8) On 28 May 1996 the second defendant in exercise of its constitutional powers to compile a comprehensive register of voters announced in pursuance of section 7 of the Public Elections (Registration of Voters) Regulations, 1995 (CI 12) that from 1 June to 9 June 1996 it will continue the compilation of the register of voters for specifically designated areas for all the electoral areas in the country.

(9) The second defendant’s announcement also indicated that only persons who had attained the age of eighteen since the beginning of the current registration exercise and those who were above eighteen years but could give tangible reasons for their inability to register in the October 1995 would be allowed to register during the registration exercise.

(10) The plaintiff says that the exercise of the second defendant of this discretion for the registration of voters was in accordance with articles 42, 45 and 46 of the Constitution, 1992 which give every citizen of the age of eighteen years and above the right to vote, and also guarantee the independence of the second defendant, respectively.

(11) When the plaintiff presented himself for registration, the second defendant failed or refused to appear at the designated place to register him.

(12) The conduct of the second defendant in failing or refusing to register the plaintiff is inconsistent with and in contravention of articles 42, 45 and 46 of the Constitution, 1992.”

In their statement of defence, the defendants conceded the gravamen of the plaintiff’s claim by admitting paragraphs (1) to (10) of his pleadings, but sought to explain why he was not Registered as follows:

“(5) The second defendant says that just as it was ready to carry out the supplementary registration it was served [p.51] of [1997-98] 1 GLR 47 by a writ of the High Court No MISC 915/96 in the suit entitled:

‘New Patriotic Party

Peoples Convention Party v

Electoral Commission’

(6) The writ asked for:

‘(1) a declaration that the purported compilation by the defendant of a supplementary register of voters from 1 June to 9 June 1996 is illegal, being in violation of the applicable law, ie the Public Elections (Registration of Voters) Regulations, 1995 (CI 12), specifically section 26 thereof, and is therefore null and unenforceable.

(2) An injunction restraining the defendant, whether by itself, agents, servants or officers from compiling a supplementary register of voters from 1 June to 9 June 1996 or at any other time thereafter which is inconsistent with the provisions of CI 12.’ (7) The second defendant says that having been served with the writ, it was under obligation to suspend the supplementary registration until the matter was disposed of by the court one way or the other.

(8) The second defendant says that its decision to exercise its function in carrying out a supplementary registration is protected by the independence guaranteed it by the Constitution, 1992 and that it has the authority of the Constitution, 1992 to specify a period of registration of voters outside a general revision of the register.

(9) The second defendant further says that its suspension of the supplementary registration exercise is solely due to the action pending before the High Court and not that it has not got the authority so to do.

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(10) The second defendant says it is entitled by law to designate a period within which such registration of voters is carried out. The plaintiff will be eligible for registration when the commission designates a period of registering other eligible voters.”

Now, the right to vote is viewed by some thinkers as a mere civil right dependent on laws, while other commentators see it as a fundamental political right. Yet to another group, it is just a franchise—a privilege. Patrick Boyer in his classic work, Political Rights: The Legal Framework of Elections in Canada (1981) at p 121 classified the right to vote as a fundamental political right as it “. . . produces the most direct verdict by the citizens on the performance of those who govern them.” In Westberry v Sanders, 376 US 17 at 30 (1884) the court testified to the fundamental character of the right to vote when it said’:

“No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights even the most basic are illusory if the right to vote is undermined.”

Similarly in Re North Perth; Hessein v Lloyd (1891) 21 OR 538 at 542, Boyd C stated that: “the franchise is not an ordinary civil right, it is historically and truly a statutory privilege of a political nature being the chief means whereby the people organized for political purposes have their share in the function of government.”

On the other hand, it has been postulated that the right to vote stands in a peculiar category. It is not a natural, inalienable inherent or absolute right, but a franchise dependent on law by which it must be conferred to permit its exercise. That is, the right might be a mere political right, privilege or civil right to be given or withheld at the exercise of the law-making powers of the sovereign.

Whatever be the philosophical thought on the right to vote, article 42 of the Constitution, 1992 of Ghana makes the right to

[p.53] of [1997-98] 1 GLR 47 vote, a constitutional right conferred on every Ghanaian citizen of eighteen years and above. The article reads:

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

As a constitutional right therefore, no qualified citizen can be denied of it, since the Constitution, 1992 is the supreme law of the land.

Article 45 of the Constitution, 1992 entrusts the initiation, conduct and the whole electoral process on the Electoral Commission, and article 46 of the Constitution, 1992 guarantees the independence of the commission in the performance of its task. A heavy responsibility is therefore entrusted to the Electoral Commission in ensuring the exercise of this constitutional right to vote. For in the exercise of this right, the citizen is able not only to influence the outcome of elections and therefore the choice of a government, but also he is in a position to help influence the course of social, economic and political affairs thereafter. He, indeed, becomes involved in the decision-making process at all levels of governance.

In the preamble to the Constitution, 1992 we the people of Ghana, in the exercise of our natural and inalienable right to establish a viable democratic government solemnly declared and affirmed our commitments, inter alia, to “The Principle that all powers of Government spring from the Sovereign Will of the People; The Principle of Universal Adult Suffrage.” Accordingly article 1(1) of the Constitution, 1992 strikes the keynote when it provides:

“ 1. (1) The Sovereignitysic(2) of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of Government are to be exercised in the manner and within the limits laid down in this Constitution.”

And in order to give meaning and content to the exercise of this sovereign power by the people of Ghana, article 42 of the Constitution, 1992 guarantees the right to vote to every sane

[p.54] of [1997-98] 1 GLR 47 citizen of eighteen years and above. The exercise of this right of voting, is therefore indispensable in the enhancement of the democratic process, and cannot be denied in the absence of a Constitutional provision to that effect.

In the instant case, the defendants whilst admitting that the plaintiff is qualified and entitled to be registered, nevertheless contend that because of the High Court action by two political parties, they suspended the registration exercise. Looking at the timetable for the 1996 Presidential and Parliamentary Elections, and further on the balance of hardship, the plaintiff and other qualified unregistered citizens as opposed to the political parties in the High Court suit, stand to be deprived of their voting rights on the election day. We therefore realised that it would be unfair to deny the plaintiff and the unregistered citizens such a constitutional right. Especially so, since under the Constitution, 1992 as opposed to the previous Constitutions of Ghana, failure to register does not only forbid one from voting at national and district level elections, but also disqualifies one from being a member of Parliament. For article 94(1)(a) of the Constitution, 1992 provides that a person shall not be qualified to be a member of Parliament unless: “he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter.” (The emphasis is ours.) And if one is not qualified to be a member of Parliament, that person is thereby disqualified from holding a number of public positions, like:

(a) a minister of state—article 78(1)

(b) a member of the Electoral Commission—article 44(1)

(c) President or Vice-President—article 62(c)

(d) a member of the Public Services Commission—article 194 (1), and (e) a member of the National Commission for Civic Education—article 232 (3).

The disabilities attached to non-registration are therefore quite onerous. It is for the above reasons that we made the order set out above on the 26 July 1996.

DECISION Order accordingly.

Endnotes

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