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Supreme Court cannot order automatic deletion of NHIS registrants - Atuguba
According to him, such an order will be dangerous for the constitutional democracy in Ghana.
Raymond Atuguba
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The Apex court earlier this week directed the Electoral Commission to with immediate effect remove the names of the 56,000 people it presented as persons who registered with NHIA cards as proof of Ghanaian citizenship.
The five-member panel chaired by the Chief Justice, Georgina Theodora Wood, in a unanimous decision on Tuesday explained that the EC must give adequate notice to persons to be affected and give them the opportunity to re-register ahead of the general elections.
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But in an article, Dr Atuguba argued that the directive did not mean an automatic deletion of the names.
He said: “Read my lips: the Supreme Court has not and cannot order automatic deletion of names from the Register. Names on the Voters Register can only be deleted with and through the safeguard of due process.”He added: “In the orders the Supreme Court gave on Monday [July 5], it added that those affected should not only be allowed to re-register, they should be informed about the deletion and the opportunity to re-register. They also added that the information and opportunity should reach them and be afforded them in time for them to take advantage of it and participate in the 2016 elections. These are further due process safeguards that underline the right to information and the right to vote of the NHIS Registrants”.
“The Supreme Court is acutely aware that requiring automaticity will be dangerous for our constitutional democracy, as such automaticity may be applied to everything else. As I have noted before, in an election year, this could mean automatic shutdown of social media without due process; automatic throwing of people in jail by the Bureau of National Investigations (BNI) without due process for alleged election infractions,” Dr Atuguba added.
Below is the full article from Dr. Atuguba
On Monday, the Supreme Court spoke, hopefully for the last time, on the Abu Ramadan case. What exactly did they say?
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You will recall that the Plaintiffs returned to court, ostensibly for a clarification of the judgment of the Supreme Court delivered on the 5th of May, and seeking a number of reliefs.
The first was for a declaration that the order of the Supreme Court to delete certain names from the Voters Register “means the immediate removal of names of persons who registered with the National Health Insurance Scheme Card and who had otherwise not established qualification to register or remain on the register of voters”.
As explained in greater detail below, the Supreme Court amended this relief and proceeded to grant part of it.
The second relief sought for was another declaration to the effect that article 2(2) of the 1992 Constitution, which allows the Supreme Court to make consequential orders in cases such as this one, constitutes enough authority for the deletion of names from the Register. The Supreme Court was of the opinion that the Plaintiffs were here seeking a fresh relief, and this could not be done in an application to the court for directions. The Supreme Court, therefore, dismissed this relief.
The third relief was for yet another declaration that the dismissal of Plaintiffs reliefs 4(a) and (b) in the original case on the 5th of May, “does not bar the [EC] from adopting the validation process as an auditing tool to clean the current register of voters.” Here, the Supreme Court was emphatic that the Plaintiffs had unsuccessfully sought this relief in the original action and was merely repackaging the relief for a double-dip. The Supreme Court, therefore, dismissed this third relief.
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The fourth relief was for an “order further directing the [EC] to remove the names of persons who used the National Health Insurance Scheme Card and others who had not lawfully established qualification to register from the current register of voters forthwith and provide those who remain eligible and subsequently establish qualification to register under law an opportunity to do so in time to participate in the general elections of 2016.” The long-winding language in the expression of the reliefs is theirs, not mine. Here again, the Supreme Court thought that the Plaintiffs were simply asking them to repeat what they had already said on the 5th of May, and so declined to do so, thus dismissing this relief also.
Again, when the EC submitted the list of names of NHIS Registrants, the Plaintiffs objected to the list and invited the court to reject it. The Supreme Court declined to accede to this request. This can be said to be the fifth relief sought by the Plaintiffs in this leg of the case, and this was also dismissed.
Thus, of the five reliefs sought by the plaintiffs, four of them, including the substantive reliefs, were dismissed by the Supreme Court. This is what the Supreme Court said in respect of the four reliefs it dismissed on pages 3-6 and 10 of the judgment: “In our view, as these proceedings are based on a judgment by which the substantive dispute between the parties had been determined, the applicants cannot seek from the court orders that are new and have the effect of altering the judgment in the main action dated 05 May 2016.
As already noted the court’s power to clarify judgments arises from its inherent jurisdiction. Applying the settled practice in such applications, the respondent’s contention that reliefs (b) and (c) are not properly cognizable by this court is justified. We emphasise in regard to the relief (c) by which the applicants invite the court to adopt the process of validation, that it was specifically sought in the action that was determined on 05 May 2016 and refused. It is therefore surprising, if not baffling that the applicants thought it fit to re-package the same relief and present it to this court by way of a post judgment motion when the real purpose is to seek an alteration or modification of the judgment or orders of 05 May 2016. This is a jurisdiction which we cannot assume in an application for clarification.
In regard to relief (d) by which an order is sought directing the removal of certain names from the current register of voters, our view is that it is a subsisting order of this court dated 05 May, 2016 on which this application for clarification is based. It being so, we cannot be invited in an application that derives its source from that judgment to make the same order again…It is plain that we are precluded from determining the same reliefs.
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We are of the opinion that an inquiry into the authenticity and credibility of the list submitted might result in the modification or alteration of the substance of the judgment. The issues raised by the objections to the list submitted by the [EC] seek to introduce new elements which are outside the judgment on which this post judgment application is based…”
Only the first declarative relief of the Plaintiffs was adopted, modified by the Court, and granted. Whilst admitting that the relief was technically wrongly phrased, the court decided to look beyond technicalities and do substantive justice. The Court “thought that as issues affecting the right to be registered are at the heart of democratic governance, a strict adherence to technicalities would undermine the quest for justice. The fundamental principle is that the court looks at the substance of every application and not the form and this principle must apply with greater force in issues arising under the constitution…” As I noted in my previous article, we need to congratulate the Supreme Court for this move.
How did the Supreme Court reach its decision on Monday on the one issue: the issue of what their judgment of the 5th of May actually means. The Plaintiffs argued that the order of the court requires the EC to immediately delete the names of persons who registered with NHIS cards as well as those of deceased persons and minors, as the Court put it, “ostensibly without recourse to those affected”. The EC argued that the process of deletion should be done under the Public Elections (Registration of Voters) Regulations, C.I. 91 of 2016.
Given the many and varied interpretations of Monday’s judgment, it is important to quote the precise words the Supreme Court used to resolve the issue before it: “After reading the processes filed by the parties before us and listening to their arguments in open court, our view is that the consequential orders on which this application turns should not be read in isolation but as part of the entire judgment to which it properly belongs. In construing judgments, which are a species of documents, the rules which guide the construction of documents should be applied in order to ascertain its true meaning. And a disjunctive reading of the orders made in the judgment as though they stand alone does not reflect its true meaning.
By way of clarification of the orders made under the judgment of 5th May 2016, the [EC] was to take immediate steps that is forthwith to take steps to remove from the current register of voters all persons who had used NHIS cards to register.
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This order having been made under Article 2 (2) of the constitution therefore takes precedence over any existing statutory provision including CI 91. Accordingly, the [EC] was to take steps forthwith to remove the names of all persons who had registered with NHIS cards.
In order not to violate their fundamental electoral rights and in order not to disenfranchise such persons, the [EC] was to give adequate notice to those affected by the order of the processes of deletion and re-registration subject to proof of eligibility. The removal of the names from the register was to precede the processes of re-registration as clarified.
By the order requiring the [EC] to ‘delete” we meant that the [EC] was to take the necessary steps to remove the names of such affected persons from the register and give them the opportunity to re-register early enough to take part in the 2016 general elections.”
The first thing to note about Monday’s ruling of the Supreme Court is that of the five things the plaintiffs asked the Supreme Court for, the Court gave them less than one.
Four reliefs were dismissed outright and one relief was granted only partially. Also note that the four things that were dismissed included the two substantive reliefs. The one relief that was granted was a declarative relief and even that was only partially granted.
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The details of this have been painstakingly analysed above and below. It may be argued that the Supreme Court by implication granted part of relief 2 by hinging part of its decision on article 2(2) of the Constitution. Such an interpretation will bring the tally to 1 for the plaintiffs, and 4 for the EC.
The second thing to note is that the Court rejected the interpretation placed by the Plaintiffs on their 5th May judgment. That interpretation was to the effect that “delete” means “automatically delete” and “delete without due process”. This is because the Supreme Court clearly indicated that automatic deletion of the names of NHIS registrants would “violate their fundamental electoral rights” and “disenfranchise such persons”. And so the EC should “give adequate notice to those affected by the order of the processes of deletion and re-registration…”
The third thing to note about Monday’s ruling is that the EC is required to give two types of notices when deleting the names of NHIS registrants, although both may be contained in one release. The first is notice “of the processes of deletion”, which must be given before deletion. The second is notice “of the processes of …re-registration”, which may be given before or after deletion, but with enough notice so as to “give them the opportunity to re-register early enough to take part in the 2016 general elections.” Anything less than this will compromise the right to vote, the right to information, and several other rights of NHIS registrants.
Also note that in the very last paragraph, the Supreme Court again ordered the EC to “take steps” to delete. These steps are due process steps, such as informing those affected about the deletion and the opportunity for re-registration. A Supreme Court, interpreting a Constitution such as ours, could not have come to any other conclusion.
The fourth thing that the ruling did was to order the EC to delete the names of NHIS Registrants based FIRST OF ALL on the judgment of the Supreme Court given under Article 2(2) of the 1992 Constitution, as this takes precedence over a process of deletion under C.I. 91. In other words, whilst a process of deletion under C.I. 91 is valid and may be used as a subsidiary mechanism for deletion, as far as this case was concerned, the primary mechanism for deletion must be the judgment of the Supreme Court given under Article 2(2) of the 1992 Constitution.
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The fifth thing to note is that the Supreme Court ignored the incompetence of the application before it and proceeded to take on the case in order to do substantive justice. This has already been explained in this and in my previous article. In other words, the Supreme Court has sent us all a message that in important cases involving our democracy, our Constitution, our human rights, the Court is prepared to ignore technicalities and do substantive justice.
The sixth thing to note is that of the four possible reliefs the Supreme Court could have given, the Court chose the relief that is protective of the constitutional independence of the EC. As predicted in my previous article, the four options are:
a. An order of the Supreme Court automatically deleting all “undesirable” names from the Register.
b. An order of the Supreme Court directed at the EC to automatically delete all “undesirable” names from the Register.
c. An order of the Supreme Court directed at the EC to delete all “undesirable” names from the Register through a due process mechanism established by the EC.
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d. An order of the Supreme Court deleting all “undesirable” names from the Register through a due process mechanism established by the Supreme Court itself.
Read closely, all four options are very different reliefs. In two of the reliefs, the Supreme Court takes action and in the other two, the EC takes action. Again, two of the reliefs are automatic and the other two are through Due Process mechanisms. I have already noted that by choosing option three above, the Supreme Court had rejected automatic deletion and deletion contrary to the due process of law. Another point I wish to underline here is that by choosing option three the Supreme Court was seeking to emphasise the constitutional independence of the EC. In other words, the Supreme Court decided that they will not do what the EC was set up to do.
The seventh thing to note is that the Plaintiffs and the Supreme Court were more focused on NHIS registrants than on dead persons, minors, and other “undesirable” names on the Register, though the latter categories are far greater in number. As less than 1% of NHIS registrants are foreigners, the effect of the order of the Supreme Court will lead ultimately to the deletion of 56,772 and the immediate re-registration of more than 99% of them.
Effectively, only between 0 and 568 names will be deleted from the register. If the Plaintiffs and/or the Supreme Court had concentrated on say dead persons on the register, and working from a 14.5 million register and a 2015 median year death rate in Ghana of 8.82 per 1000, the number of people on the register who died between 2014 and 2016 is potentially 383,670, more than the winning margin in the 2012 elections. I still do not understand why the focus has been on NHIS Registrants.
PLEASE NOTE THAT “DEAD PERSONS” ARE KNOWN TO VOTE IN GHANA, AND IN SEVERAL OTHER COUNTRIES, OTHERWISE WE WOULD NOT HAVE THE PHENOMENON OF 100% TURNOUT IN SOME POLLING STATIONS. SO ANY ARGUMENT THAT THEY ARE DEAD AND DO NOT POSE A PROBLEM IS NOT GOOD ENOUGH.
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Finally, and for the long-term, I suggest, as I did in my previous article, that we must start linking our various personal and personnel databases, (and there are over 100 databases in Ghana to work with), to create a more robust or reliable national database, and use that as a control for all registrations for the purpose of voting in the future. We can then prepare a new Voters Register with adequate control built in. The control is a first logical step before a reasonably credible and clean Voters Register can be achieved.
Before I conclude, let me say that it is important we do two seemingly contradictory things: lift the debate in the Abu Ramadan cases, and also lower it. We need to lift the debate because we are talking about the very integrity of our Nation in this critical election year; and what our Courts do in such cases will determine whether or not we have a fair or unfair electoral contest in November or December 2016. So far, all the discussions on the case have generally lifted the debate.
But we also need to lower the debate. We need to lower the debate because it is very easy for us, spoilt urban folks, with our big English, smart phones, car radios, multiple television sets and channels, laptops, ipads, drivers licences, air tickets and passports, to sit in the diaspora, in Accra, and a few other cities, propound lofty theories, insult our opponents, whilst ignoring the needs of the majority of Ghanaians who currently live outside the big cities and who have a greater stake in our democracy.
We, the Elite, especially the urban elite, must constantly be aware that we are not representative of the nation, even though we are very privileged and can be extremely garrulous. If we were, we would not be struggling so hard to disregard and suppress the non-urban compatriots in many ways, in this particular case, to risk disenfranchising many of them. No Ghanaians, who, before 2014, and acting legally, registered with an NHIS card to vote, should be disenfranchised by two citizens of Ghana. That is not how to run a constitutional democracy.
At the heart of the central argument in the 2014 Abu Ramadan case is this: since we suspect that a few foreigners may have registered to vote using an NHIS I.D. card, we must automatically remove from the Register the names of all the many, many thousands of names of innocent law-abiding citizens who registered with an NHIS card. This is an extremely dangerous legal proposition. To allow such a proposition to stand could lead to disaster.
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For example, it will mean that at anytime anyone is able to prove that a few members of a particular ethnic group, say the Kassena-Nankani, to which I geographically belong, are from Burkina Faso, and yet registered to vote, one could call for the automatic deletion from the Register of all the names of Kassena-Nankanis from the Register. This is what some Ghanaians are clamouring for.
On the 5th of May the Supreme Court suddenly realised that it had made a grievous mistake in its earlier judgment delivered in 2014. Fortunately, the Constitution in Article 129(3) permits the Supreme Court to depart from their earlier judgments, and that is what the Supreme Court did. They held that registration with an NHIS card, which registration was legal before the Supreme Court decision, was not void ab initio.
In simple language what the Supreme Court did was to refuse to go further down the road of disenfranchising a whole category of voters, simply because a few of them are found to have registered with an I.D. that was declared invalid after they had legally and validly registered. They therefore ordered on May 5th that anyone who belongs to that category of persons, and whose name is removed, be given an opportunity to reregister.
I cannot imagine why any Ghanaian would want to quarrel with this. If the Supreme Court had gone further down the original route, two other gentlemen could commence cases in that court to disenfranchise persons who registered with Travel Passports or Drivers Licences because, in fact, the case could be successfully argued that there are non Ghanaians who hold those I.D.s in Ghana. Ghana is too civilised for this.
Whilst agreeing entirely with the Supreme Court for truncating a precipitous journey down a path that is disastrous to the rights of Ghanaians, my argument has been that a quicker, cheaper and more accurate way of doing this would have been to order the NHIA to produce the list of all FOREIGN NHIS registrants and to require the EC to delete any of those names which may be on the Register. In my extended family household in Mirigu-Nabango today in the Upper East Region, only one of my cousins has a single radio.
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This radio depends, not on electricity, but on batteries, dry cells, to function. Due to the fact that he is a man of meagre resources, from what he earns as a watchman at the village clinic, he has to moderate the times he switches the radio on, to save cash. Consider him as a typical example in many non-urban communities across our nation, and what we, the urban elite, are saying is that word about the deletion of the names of all the AsaaTuguba Clan who registered with NHIS I.D. cards, would somehow reach all of them on that one radio in good time, and that news of the possibility of re-registering will also reach them in good time for the scheduled election date. We further assume that the 100 or so members of the great AsaaTuguba Clan, for example, will have the means to leave their farms and trade and travel to a registration center to re-register.
We again assume that there is enough time between now and the elections for all those de-registered, to re-get registered. In short, if we just for a moment, take off what Robert Bates of Harvard University calls “Urban Bias” from our spoilt urban eyes, we will see that the Abu Ramadan cases have one purpose: to disenfranchise a section of Ghanaians, mainly the poor and marginalized or non-urban. I am, therefore, deeply concerned that civil society groups and faith-based organisations have largely remained silent or in some cases sided with the plaintiffs in those cases. My very final point is that our Constitution abhors automaticity when it comes to the rights of the citizen. Every proper Constitution does.
Due process, the opposite of automaticity, leads to transparency, accountability, fairness, and is one of the greatest guardians of the rights of the people. What some lawyers and social commentators are seeking when they ask for automatic deletion of the names of NHIA registrants is a replacement of Due Process with Automaticity.
The Supreme Court CANNOT and WILL NOT do that. They are too smart to do that. In the Orders the Supreme Court gave on the 23rd June, reiterating their earlier Orders of 5th of May, they provided THREE NON-AUTOMATIC, DUE PROCESS SAFEGUARDS.
First, the Supreme Court asked that the deletion be done according to “modalities” set forth by the EC. These “modalities” are Due Process modalities.
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Secondly, the Court asked that the deletion be done “to comply with the provisions of the 1992 Constitution and applicable laws of Ghana”. Again this is a Due Process mechanism.
Thirdly, the Supreme Court ordered that anyone whose name is deleted, but who qualifies be afforded the opportunity to re-register. This is also a Due Process mechanism. In the orders the Supreme Court gave on Monday, it added that those affected should not only be allowed to re-register, they should be informed about the deletion and the opportunity to re-register. They also added that the information and opportunity should reach them and be afforded them in time for them to take advantage of it and participate in the 2016 elections.
These are further due process safeguards that underline the right to information and the right to vote of the NHIS Registrants. The Supreme Court is acutely aware that requiring automaticity will be dangerous for our constitutional democracy, as such automaticity may be applied to everything else. As I have noted before, in an election year, this could mean automatic shutdown of social media without due process; automatic throwing of people in jail by the Bureau of National Investigations (BNI) without due process for alleged election infractions, etc.
It is really amazing that some lawyers and social commentators, self-acclaimed adherents of constitutional democracy and human rights, are calling for the rough truncation of our constitutional rights in order to achieve specific political ends. We must rise above them. Read my lips: the Supreme Court has not and cannot order automatic deletion of names from the Register. Names on the Voters Register can only be deleted with and through the safeguard of due process.
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