The decision by the Supreme Court of Ghana in a suit filed by the National Democratic Congress in which it was challenging the decision by the Electoral Commission to compile a new voter’s register and exclude the use of the old voters’ ID card as a means of identification admits no ambiguity.

The decision rendered this morning by the apex court has sparked a rather unsavoury and needless debate in the public as to whether the Commission was asked to accept the old voter’s ID card in the new registration exercise or not.

In the decision of the court arrived at after hearings and deliberations by the seven-member panel, the Supreme Court stayed off its hands from meddling in the affairs of the Electoral Commission because of its status as a constitutionally independent body.

It will, therefore, be surprising for the court to direct the Commission to accept the old voter’s ID card and birth certificate as means of identification after holding that it is an independent body. This will paint a rather bizarre picture about the respected Ghanaian court.

But the General Secretary of the National Democratic Congress, Johnson Asiedu Nketia and some leading members of the party believe the Supreme Court has asked the Electoral Commission to accept those identity cards when the independent body has given a clear intention of excluding same in the public interest.

Among the many reliefs sought by the opposition political was the declaration that the Electoral Commission “…in purporting to exercise its powers pursuant to article 51 of the 1992 Constitution to exclude the existing voter identification cards from the documents required as of identification to enable a person register as a voter without any legal basis or justification is arbitrary, capricious and contrary to article 296 of the 1992 Constitution.”

Citing its decision in Abu Ramadan & Nimako (No.2) v. Electoral Commission & Attorney-General (No.2), the court was clear that the Electoral Commission in exercising its discretionary powers in the discharge of its constitutional functions should be deemed as “authorised to be acting within the law and the regulations therein, and cannot be faulted even if it is considered that there is a more efficient mode or method available.”

For me, this decision given by the court in dismissing relief six of the NDC is crucial in a future suit against the Commission by litigants who are often on a legal expedition. In the Abu Ramadan (No.2) the apex court stated unambiguously that in performing its function under Article 45 of the 1992 Constitution, the Electoral Commission cannot be subjected to the whims and caprices of individuals or political actors unless there is clear and incontrovertible evidence of acts that are unconstitutional.

In the absence of any, the EC should be deemed by everyone in Ghana, to be acting appropriately. This is where the legal team of the NDC failed. The NDC lawyers were, to me, patently unable to point out the constitutional sins of the Electoral Commission in seeking to compile a new voter’s register, and exclude the old voter’s ID card and birth certificates in the new voter registration exercise.

It is important for our political actors to know that mere, pirate and disparate allegations that are not backed by cogent evidence as required by the Evidence Act, 1975 (N.R.C.D 323) cannot ground a successful case.

The party responsible for proving the existence of a particular state of facts and affairs has still not shifted in this country.  Section 11 (1) of NRCD 323 is emphatic that: “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.” Similarly, Section 14(1) of NRCD 323 puts it bluntly: “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence, that party is asserting.”

In its consequential orders, the Supreme Court of Ghana has directed all stakeholders, including the National Democratic Congress and Ghanaian eligible voters to comply with Articles 42 and 45 of the Constitution and the new Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I.126) as regulated by the Electoral Commission. This gives clearance to the Commission to commence its registration exercise. There is, therefore, no ambiguity about this.

This decision of the apex court is unmistakably clear and some political elements should desist from reading extra meanings into it.

About the author

A. Kwabena Brakopowers is a development communications practitioner, journalist, essayist and a novelist whose works focus on politics, gender, migration, international relations and development. He could be reached at Brakomen@outlook.com