The Electoral Commission (EC) has decided to compile a new voters register.  According to the EC, a new register has become necessary in view of challenges with the current voters register. The challenges identified by the EC include obsolescence of equipment and poor maintenance of the datacentre physical infrastructure. However, it is doubtful the current state of the law including article 45(a) of the Constitution permits the EC to compile a new voters register incorporating facial recognition technology without express legislation enacted for that purpose by Parliament.     The Current Voters Register The current biometric voters register was compiled and revised from 2012 on the basis of the Public Election (Registration of Voters) Regulations 2012 (CI 72) and the Public Election (Registration of Voters) Regulations 2016 (CI 91).  Under both CI 72 and CI 91, the biometric data required to be captured during voter registration consisted of “ the ten finger prints and the photograph of the head, showing the bare face and two ears without any obstruction, of the applicant”. CI 91 further required the EC to certify the register of voters by, among other things, “ matching fingerprints in the database of the [EC] by automatic fingerprint identification system.” In 2014 and 2016, the current register was the subject of litigation in the Supreme Court in the Abu Ramadan & Nimako Cases, which decided, among other things, that the mandate of the EC to compile the voters register implied a duty to compile “ a reasonably accurate and credible register”.   “The need for a credible and reliable multipurpose national identification system comprising the relevant data and communication infrastructure that would answer to most of our national needs, whether for electoral, planning or developmental, or other purposes, is greater than ever before.  We think the time has come for the appropriate authorities to respond to this need,” the Supreme Court further counseled. Legal Mandate of the EC to compile and revise the Voters Register  By Article 45(a) of our Constitution “The Electoral Commission shall have the following functions – (a) to compile the register of voters and revise it at such periods as may be determined by law”. It is not too clear to me whether the proper meaning of the phrase “determined by law” in article 45(a) of our Constitution is that, the Electoral Commission has the legal mandate to compile and/or revise the voters register only when a specific law passed by Parliament enables it to do so, or that the EC can compile a voters register solely on the basis of article 45(a) of our Constitution without waiting for a specific law passed by Parliament authorizing it to compile the voters register. I think the more reasonable meaning of the words “determined by law” in article 45(a) of the Constitution is that the EC’s authority to compile a new voters register must be traced to a law specifically passed by Parliament. Voter Registration is always done on the basis of specific legislation My understanding of 45(a) of the Constitution is further supported by the legal history and practice of voter registration in our country. This history shows that voter registration has always been done on the basis of specific legislation besides Article 45(a) of our Constitution.   From 1995 until 2012 voter registration was carried out on the basis of the Public Elections (Registration of Voters) Regulations, 1995 (CI2). In 2012, voter registration was done in line with the Public Election (Registration of Voters) Regulations 2012 (CI 72). From 2016 to date, voter registration has been carried out pursuant to the Public Election (Registration of Voters) Regulations 2016 (CI 91). Prior to and after the inception of the 4th Republic on 7th January 1993 voter registration for the period spanning 1968 to 1995  was done in accordance with the Registration of Voters Regulations, 1968 (LI 587). No law authorizes the EC to compile a New Voters Register    Given the above history, we should therefore expect the EC to refer to a law, besides 45(a) of the Constitution, which specifically authorizes it to compile a new voters register incorporating facial recognition technology. The Public Election (Registration of Voters) Regulations 2016 (CI 91) do not provide the EC any such authorization. Regulation 9 of CI 91 deals with “register[ing] voters on a continuous basis” and regulation 30 provides for the revision of “the register of voters annually”.      If the current state of the law, including article 45(a) of the Constitution, does not permit the EC to compile a new voters register incorporating facial recognition software without express legislation enacted for that purpose by Parliament what is required is for the EC to seek the intervention of Parliament to amend or replace CI 91 with a law that permits it to do so.     The legal test of reasonableness    The enactment of a specific law authorizing the EC to create a new register that incorporates facial recognition software does not appear to end the matter. There is still an unanswered question whether the decision to have a new register is reasonable considering all the relevant facts, the challenges the EC is attempting to resolve and the difficulties ongoing registration exercise for the multipurpose Ghanacard under the National Identification Authority.     Our courts tend to avoid policy matters with their myriad underlying value judgments, believing that the executive and legislative arms of government are better suited to deal with such policy decisions. In appropriate and very limited circumstances, however, our courts may subject such policy matters/decisions to the legal test of reasonableness, particularly on the basis of  articles 23 and 296 of the Constitution.    Conclusion    The existing law on voter registration, that is CI 91, does not authorize the EC to compile a new voters register that incorporates facial recognition software. Nonetheless, Parliament has already approved funding for a new voters register     One unanswered question is whether without specific legislation the EC can even commence procurement processes for a new voters register that incorporate facial recognition software.    Another issue likely to confront the EC is whether the decision to create a new register incorporating facial recognition technology will address privacy concerns and meet the test of legality and reasonableness under articles 23 and 296. These are matters that can only be determined finally and conclusively by a court of law.    It is regrettable though that the wise counsel of the Supreme Court in the Abu Ramadan Case (2016) for “a…multipurpose national identification system… whether for electoral, planning or developmental, or other purposes” has not been heeded by the Electoral Commission and relevant authorities, who have decided to create another expensive, single-purpose and duplicitous voters register.