The court, in a unanimous decision, held that a birth certificate does not link the holder of the information on the certificate hence it cannot be used as a form of identification which qualifies a person to be registered on to Ghana’s Voters’ Register.
It was the opinion of the court that a birth certificate does not provide evidence of a person’s citizenship and, therefore, does not satisfy Article 42 of the 1992 Constitution which lays down the qualification for a person to be registered as a voter in Ghana.
The court gave the decision in a consolidated suit filed by the National Democratic Congress (NDC) and one Mark Takyi-Banson, challenging the decision of the Electoral Commission (EC) to compile a new register of voters.
In late March, this year, the NDC sued the Attorney General (AG) and attached the EC over the decision of the commission to compile a new voters’ register for the 2020 Presidential and Parliamentary Elections.
The party wanted the Supreme Court to declare that the EC, per the 1992 Constitution, can only compile a voters’ register once and subsequently review it over time and not compile a new one instead.
The NDC was also challenging the decision of the EC to exclude the existing voter ID cards as a document for verification of citizenship.
The party later abandoned its first relief that the EC cannot compile a voters’ register on multiple occasions and was rather pushing for the inclusion of the current voter ID cards as basis for proof of citizenship.
Besides, Mr. Takyi-Banson filed another suit seeking a similar suit except that he wanted birth certificates to be used as a document for proof of nationality.
The AG, which is a respondent in the case, opposed the suits through the Deputy AG, Godfred Yeboah Dame, stating that the NDC’s position was “patently absurd, far-fetched, outrageous and grossly erroneous.”
The EC in its opposition filed by its counsel, Justin Amenuvor, also contended that the NDC interpreted the Constitutional Article to suit its parochial interest.
It was the case of the EC that the current register of voters was over bloated and a new credible one was needed for the future.
The court later consolidated the two cases after it granted an application for consolidation which was filed by Godfred Yeboah Dame.
The Supreme Court on June 25, 2020 affirmed that old voters’ identity cards as well as birth certificates cannot be used as proof of eligibility of an applicant for the compilation of a new voters’ register.
A seven-member panel of the court, presided over by the Chief Justice, Justice Anin-Yeboah, with Justices Jones Dotse, Paul Baffoe-Bonnie, Sule Gbadegbe, Samuel Marful-Sau, Nene Amegatcher and Prof. Nii Ashie Kotey assisting, in a unanimous decision, also ordered the EC to compile a new register pursuant to Constitutional Instrument 126 (C.I. 126) which was passed by Parliament recently.
C.I. 126 makes provision for the use of passport and the Ghana Card as basis for eligibility and in the absence of any of this two cards, a person who has already registered as a voter can guarantee for up to 10 applicants .
The court decision shattered the hopes of the NDC which was pushing for the inclusion of the old voter ID cards as cardinal document for proof of eligibility.
In a detailed judgement, the Supreme Court said the birth certificate does not establish the bearer’s citizenship and, therefore, cannot be used as a document of identification.
The judgement which was written by Justice Nii Ashie Kotey held that the birth certificate is even worse than the National Health Insurance (NHI) cards which were held to be unconstitutional as evidence of identification of a person who applies for registration as a voter in the Abu Ramadan (NO.1) Abu Ramadan (N0.2) cases which were decided on by the court long time ago.
It said there is no merit or whatsoever in the applicant’s claim for the inclusion of a birth certificate as “it flies in the face of Article 42 of the Constitution and the decision of this court in the Abu Ramadan (NO.1) Abu Ramadan (N0.2).”
“It is little wonder that a birth certificate has never been included as one of the documents to be used as evidence of identification by a person who applies to be registered as a voter … we, therefore, hold that the non-inclusion of birth certificate as a document for the identification of a person who applies for registration as a voter by C.I. 126 is not inconsistent with or in contravention of the Constitution or any other law,” it added.
The court in justifying its decision to exclude the old voter ID cards stated that it has held in the two Abu Ramadan cases that in actualizing and giving effect to Article 42, the EC is of necessity called upon to make certain vital decisions and choices on how to guarantee the right of all Ghanaian citizens of 18 years and above to vote whilst keeping out those not qualified to vote.
The court held that “in choosing the three modes of identification, this court believes that C.I. 126 is seeking the most effective way of actualizing Article 42, ensuring that those with the right to vote are able to register whilst keeping out those without the right to vote and who are not entitled to register.”
“Additionally, there is evidence before us that there are serious questions about the legitimacy of the processes which led to the issuing of the current voter identification cards … In recognition of this fact, we are satisfied that the 2nd defendant (EC) in deciding not to include the current voter identification card as a document to be used in identifying applicants for voter registration was guided by the need to establish a credible and reliable voters register that would guard, protect and preserve the sanctity and credibility of the right to vote,” the court said.
The court delved into its decision in allowing the EC to compile a new register of voters as against the claims by Mr. Takyi-Banson that the EC can compile the register only once and subsequently update it from time to time as per the letters of Article 45(a), which is not accurate.
The court held that Article 45(a) when read together with Article 297 confers power on the EC to compile a register of voters which may be exercised from time to time, and not only once.
The court said it had noted that as a matter of fact, this is not the first time that a new register of voters would be compiled since coming into force of the 1992 Constitution as a new register was compiled by the EC in 2012 under C.I. 72.