The need for this piece has arisen as a result of a feature written by Dr. Arthur Kennedy and posted on www.myjoyonline.com on 17th November, 2011. In spite of the fact that the Good Doctor wrote a very insightful feature, it belied the gravamen of the Supreme Court’s decision and necessarily invokes the question as to whether the whole decision of the Supreme Court was read. This decision can be found in the Supreme Court of Ghana Law Report edited by Dr. S.Y. Bimpong Buta. Just like the good Dr. Arthur Kennedy said, the courts are not beyond criticism; however it is my humble view that these criticisms must be done only after a careful consideration of the ruling in question. The writer here will also shy away from any political undertone that was implied in the said feature, since that is not the point of this piece. The writer’s only beef in that regard is the ease and speed with which our politicians are ready to start counting our ‘have nots’ when resources must be expended to do something that we as a people are mandated to do anyway. The writer will now consider the ruling of the Supreme Court in this case, i.e. AHUMAH-OCANSEY v ELECTORAL COMMISSION; CENTRE FOR HUMAN RIGHTS & CIVIL LIBERTIES (CHURCIL) v ATTORNEY GENERAL & ELECTORAL COMMISSION (CONSOLIDATED) [2010] SCGLR 575. The writer in doing this will also quote copiously from the [2010] SCGLR report to determine whether Dr. Arthur Kennedy’s criticisms are justified. The case in question was a consolidation of 2 suits brought separately by Ahumah Ocansey and CHURCIL, seeking almost similar reliefs. While CHURCIL wanted a declaration that remand prisoners have a right to vote in national elections and as such must be registered to vote. Ahumah Ocansey’s claim on the other hand covered all prisoners, both remand prisoners and convicts. The Gravamen of the Plaintiffs claim was that the provisions of s.7 especially s.7 (5) of the Representation of People Law, 1992 (PNDCL 284) as amended by Act 699 had the indirect effect of taking away the constitutionally guaranteed right of prisoners to vote. Section 7 of PNDC 284 sets out the legislative criteria on who qualifies to be registered as a voter. Section 7(1) provides that a person qualifies to be registered as a voter if he is: (a) a citizen of eighteen years of age or above, and (b) of sound mind, and (c) resident in a polling division, or hails from the constituency and (d) not otherwise disqualified to be registered as a voter by law.” “More importantly, section 7(5) provides that: “A person who is a patient in an establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness or who is detained in legal custody in a place shall not be treated as resident there for purposes of this section” The effect of these is that, since a prison doesn’t qualify as residence then prisoners can’t be registered to vote since s.7 (1) (b) says that for a person to be registered to vote one of the conditions is that of residence. The Supreme Court upheld the Plaintiff’s arguments by holding among other things that, there could be no constitutional justification for denying Prisoners their right to vote. The Court relied on the preamble to the 1992 Constitution which endorses the principle of universal adult suffrage in considering as a whole the constitution, in the construction of article 42 of the constitution which expressly sets out the criteria to be met to be eligible to vote. Article 42 of the Constitution provides: “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.” This obviously doesn’t exclude prisoners. The court was mindful of the principle of interpretation that if a provision seeks to take away a fundamental right then it must be interpreted narrowly; as such a proper interpretation of article 42 cannot operate to extinguish the rights of prisoners to vote. The Supreme Court speaking through Georgina Wood CJ at page 593 of the report had this to say: “Admittedly, s. 7 (5) of PNDCL 284, the impugned legislation, is not a direct right creating or right extinguishing provision. The section 7 (5) merely defines what constitutes residence for purposes of voter registration. But in doing so, prisoners find themselves in positions where they cannot meet the “resident in the polling division” voter qualification requirement, of s.7 (1) (c) of PNDCL 248. The impugned legislation thus effectively takes away prisoners’ right to register or vote, in that it refused to recognise prisons as residence within the meaning of that specific law, leading to the following far reaching negative consequences, as contended by CHURCIL. ‘By virtue of s. 7 (1) (c), a conclusive presumption of loss of residence in a polling division, is thereby established in those instances where the prisoner has been absent from his or her place of residence for a continuous period of six months ending on the qualifying date.” Similarly, all prisoners find themselves unable to meet the residency requirement under s. 1 (d) of the Public Elections (Registration of Voters Regulations, 1995 [C1 12]. Since the offending legislation disqualifies them from being “resident or ordinarily resident in an electoral area”, they are unable to have their names included in a voters’ register. PNDCL 284 was enacted principally for the purposes of concretising the representation of the people of Ghana. The crucial question for our consideration is not whether Parliament has power to enact PNDCL 284 to regulate the division of Ghana into constituencies for the purpose of giving effect to the right to vote as provided under article 42 of the Constitution. The general residency requirement is also not the matter in contention. The central question in these two cases is whether ss 7 (5) & 8 of PNDCL 284, are inconsistent with article 42 of the Constitution, leading to the violation of prisoners voting rights as guaranteed by the express provisions of the said Constitutional provision. Consequently, it is the validity of the express stipulation under s. 7 (5) of PNDCL 284, that prisons shall not qualify as places of residence and the legal consequence or effect of the non –recognition of prisons as places of residence that is under challenge. It bears emphasis that the Constitution did not set down the residency criteria; it (the residency criteria) is the product of the subordinate PNDCL 284. But the people of Ghana adopted and enacted for themselves a democratic regime of constitutionally guaranteed adult suffrage for all Ghanaians, save only persons under eighteen years of age and persons of unsound mind. We crafted for ourselves a Constitution that set out its own limitations on the right to vote and perhaps having regard to the value it places on the right in question, never ceded any of its authority to either the E C or some other authority to add further to the list of who shall not have the right to vote” Another point the court considered was whether any legitimate or constitutionally permissible state or governmental interest is served by the non recognition of prisons as places of residence for voter qualification and registration purposes. Here, the court applied the proportionality test at page 609 of the report: “But to meet the proportionality test, the following must be established. First that the infringement of the right achieves a constitutionally valid purpose and that the chosen means are reasonably and demonstrably justified. This calls for identifying particular problems that require the denial of the right, and the impairment is directed at a pressing and substantial purpose. (see Suave v Canada(Chief Electoral Officer) [2002] 3 SCR 519; 2002scc 68. The Ghanaian decisional law on the proportionality test, known also as the Oakes test, with its two tier approach, was formulated by Acquah JSC, as he then was in Republic v Tommy Thompson Books Ltd. (No2) [1996-97] SCGLR 484 at 500-501 as follows: “Now from the language of article 164 and similar provisions like 21 (4) c, the law in question must be ‘reasonably necessary or required’ in the public interest, national security etc. This really implies that, for any law to qualify as being reasonably necessary or required the objective of that law must be of such sufficient importance as to override a constitutionally protected right or freedom. In other words, the objective of that law must not be trivial or frivolous, otherwise that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial. After this, it must further be shown that, the law itself is a fairly proper means of achieving this important objective. This will involve an examination of the provisions of the law to determine inter alia, whether the provisions infringe any fundamental principle of law like natural justice, and whether they unduly impair the constitutional right. The nature of the examination in the second stage will depend on the nature of the law and issues at stake”. The 1st defendant failed to demonstrate that the s. 7 (5) of PNDCL 284, is in any way justified. Counsel failed to identify any substantial or pressing matters of such importance that justifies the infringement of prisoners’ rights. Not surprisingly, he was unable also to demonstrate any clear benefits arising from the impairment. I find no rational connection between the impugned legislation as it stands in achieving the objectives or purpose of PNDCL 284, namely that the denial of prisoners’ right to vote is reasonably required in the public interest for the purposes of facilitating or achieving the objectives of dividing the country into constituencies for the election of members of Parliament. I find it extremely difficult to understand what constitutionally legitimate interest is served by the non recognition of prisons as places of residence for the purposes of voter registration; even for those who have been convicted of high crime against the State, such as subversion or high treason. Even for those who attempt to derail the democratic process, voting remains an important means of teaching them democratic values.” How could anybody describe the safeguarding of constitutional rights as high-minded principles? As the Supreme Court rightly observed, if a national census were to be ordered, prisoners would be counted, not discounted. More over prisoners do not lose other fundamental constitutional rights by virtue of their status or deprivation of their liberty, whether temporary or permanent. To the contrary, they are entitled to a full enjoyment of these rights and liberties enshrined under the Constitution accorded to other citizens not similarly circumstanced, and the judiciary’s duty, as guardians of the constitution, is to unremittingly protect these rights. The cardinal principle of criminal jurisprudence is that for an act to constitute a crime the proscribed act must be defined and punishment for it prescribed. Aside fines and incarceration, have we prescribed denial of voting rights too as part of the punishments imposed in this country? In France and Germany their laws allow judges to sentence persons to include a denial of their voting rights for certain offences, but that is their law. As Dr. Kennedy rightly pointed out some countries allow prisoners to vote and others do not. However, based on our constitution, prisoners must vote and there is nothing high-minded about this. Even the Supreme Court bore this point out when Wood CJ at 598 of the report said: “On the crucial issue of who qualifies to vote, there is a vast difference between Ghana’s constitutional arrangement and that of other countries, including Australia, as is clearly borne out from Roach v Electoral Commissioner [2007] HCA 43 (26 September 2007). In such countries, the disenfranchisement of some category of serious criminal offenders is a, deliberate constitutional choice. These offenders are, by express constitutional provisions, forbidden from participating in public elections, in order, as was explained in the Roach case, to “deliver a message to both the community and offenders themselves that serious criminal activity will not be tolerated by the community.” Such disenfranchisement is therefore a product of the Supreme Law, not a subordinate law in contravention of the Superior Law. Gleeson CJ points out the underlying philosophy in the Roach case. The learned Chief Justice explained that: “It is consistent with our constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences as having suffered a temporary suspension of their connection with the community, reflected at the physical level in incarceration, and reflected also in the temporary deprivation of the right to participate by voting in the political life of the community.” We must also be mindful of these words by the Supreme court at page 606 of the report “denial of the right to vote…undermines the legitimacy of government, the effectiveness of government, and the rule of law…It countermands the message that everyone is equally worthy and is entitled to respect under law.” “the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and person hood. Quite literally, it says that every body counts.” “the lawful punishment of persons is not tantamount to psychological annihilation, nor political depersonisation; that denying prisoners the right to vote deprives the nation of a vital plank in its democratic machinery and compromises the integrity of our democracy.” Having as a people chosen democracy as our preferred system of government, we must recognise the kind of government we have chosen as a people and this must continuously guide the courts in all its interpretation exercises and decision making in general. Any ardent student of modern legal interpretation will remember the words of Aharon Barak, the learned President of the Supreme Court of Israel which he wrote in his celebrated book Purposive Interpretation in Law(2005 Princeton University Press) at page 239 thus: “Democracy is not just about legislative supremacy- it requires actualizing the values and principles at its core. There can be no true democracy without protecting human rights, rule of law, and the independence of the judiciary. Democracy is not just rule by the majority. It is also rule by fundamental values, in general, and human rights, in particular. Democracy is not just formal democracy (concerned with the electoral process governed by the majority and expressed in legislative supremacy). Democracy is also substantive democracy (concerned with fundamental values and human rights).” Now, let’s look at some of the Doctor’s other criticisms. To him the decision lacked practicality and was high-minded. Indeed we can look at the challenging prospects that will ensue from most decisions, brand the decision as impractical and stay away from it. We can conveniently stay in our comfort Zones and decide not to be proactive in finding solutions to our shortcomings as a nation. The crux of the matter here is, have prisoners the right to vote? If yes, then we must find the way to ensure their rights are respected. As has been shown from the erudite judgment of the court, they do actually have the right to vote in consonance with our democratic tenets and principle and making a case that, their voting is not practical is not enough to deny them that right. If issues of practicality were to carry the day in the scheme of things then most of the things we are doing now wouldn’t be done for not being practical at the time they were conceived. But for practicality alone, we shouldn’t be voting in places like Bawku and Dabgon during elections(no disrespect intended to registered voters in these places) People normally throw the question of which constituency prisoners are supposed to vote in and Dr. Arthur Kennedy all but joined the fray. Must we always as a people highlight why we can’t do something? Prisoners are voting elsewhere; why can’t we just take a cue and learn instead of always finding excuses. Prisoners can be made to register and vote in the constituency where the prison is located since indirectly the decisions made in those constituency affects them or they can register with their home constituency and vote by proxy or by post as is done elsewhere. We can find that which is most convenient and implement it instead being too elitist to care, with the reason that it is impractical. Ironically, these same persons who make this constituency argument almost always clamour for implementation of ROPAL without asking themselves the same questions. If addressing issues of parliamentary constituencies can be made to work for ROPAL, why can’t it work for prisons located right here? After all what is good for the goose is also good for the gander. The Doctor also raises concerns in relation to the risk of subtle coercion by government in power. Thankfully, he said subtle. One cannot play the proverbial Ostrich and deny the likelihood of this playing out. However, in the same vein, we can’t also deny that as it pertains we have such subtle coercions in various institutions in the country but that has never for once driven us as a nation to deny the Police, the Army, workers of Ghana Broadcasting Corporation (GCB) etc from exercising their right to vote. Just like we have been doing with these other institutions, we can put systems in place to further deepen the subtlety of this risk of coercion. We can’t use this ground to deny any set of Ghanaians their right of universal adult suffrage, why should prisoners be an exception, even those who work with the EC register to vote. We are definitely not going to be throwing the baby away with the bath water. On the issue of finding enough personnel from the security agencies to police the electioneering process, one wonders whether the very fact that the issue concerns prisoners clouds the judgment of those making these analyses. A country that is ready to consolidate its democratic credentials should not be thinking along these lines. So are we saying if we think we don’t have enough officers to go to Abotoase and Gambaga (no disrespect intended to these communities) those there should not vote. It is the responsibility of the administration to project and prepare for the task ahead. Is Dr. Arthur Kennedy implying that since in 2008 we had to rely on Prison Officers to supervise elections, we remain static and expect to rely on the same number of prison officials to aid the electioneering process? How then do we develop as a people, if instead of anticipating challenges that we have to eventually deal with, we just stay fixed in time hoping to make the same last minute contingency arrangement or is the Doctor saying that prisoners should never vote because we can never have enough security personnel to supervise them? He also talks about rioting but he has forgotten that, it is less likely for a prisoner who feels he can change his decision makers periodically to riot than one who knows he will never have that chance as a means of registering his grievances with his decision makers. One line of argument the writer has always found depressing is the issue of there being no money. In the words of Dr. Arthur Kennedy, “Fourth, how much will all this cost? Can the nation that cannot afford to equip its hospitals or pay teachers a decent wage afford this?” We first have to realize that it is arguably more costly to vote in places in Ghana where there have been turmoil like Dagbon and Bawku (no disrespect intended towards registered voters in these communities) than it will be to vote in prisons. The cost of the heavy security presence cannot be overemphasized. Also the cost of transporting registration and voting materials to some places in the farthest points of the country are also relatively high. We haven’t considered the issue of cost as being enough to disenfranchise these people but the prisoners are game. We have people in this country that can’t even afford three square meals a day and have no potable water and yes we haven’t refurbished our hospitals and are paying our teachers peanuts but we buy planes, helicopters, build presidential palaces etc. Do we only realize we don’t have money when the elite have to spend in relation to rights of the minority in this society? It can’t be denied that in the 50’s and 60’s during the Civil Right movement in the US, in places like Alabama, there were hungry and sick Coloured Persons who would have wished to vote for free food or equal access to better equipped white only hospitals, but the leaders fought for voting rights. This is because, as it has been said already, this is the very essence of citizenship. Likewise we might say the Doctor is not wrong in saying some of the prisoners will vote for better food and health conditions, however a more insightful analysis will show that most of the prisoners will rather have the opportunity to determine the general decision maker and with it make the necessary demands and not be limited to just voting for food as the veritable Doctor suggests. Prisoners like all of us will not sell their birthrights for food. It is admitted that a lot of work need to be done by the bench and the bar to forestall delays and inefficiencies in the legal system. More lawyers should be willing to do pro bono work and the judiciary must rid its system of all bottlenecks and ensure speedy adjudication of matters brought before it. This does not however mean a right due prisoners should be denied them. Both ends can be met side by side. The right to vote is a right independent of how the system works and everybody must be given an opportunity to exercise this right. The argument for favouring voting by our siblings in the Diaspora to voting by prisoners is also very unfortunate and portrays a very fundamental lack of appreciation for the issues at hand. Yes! Those outside must vote; likewise the prisoners. But basing the right to vote on the financial contribution those in the Diaspora make to the country makes the whole argument petty. What about those in Ghana who are unemployed or even the employed ones who do not pay their taxes? Should we say they shouldn’t vote because they don’t make any financial contribution? Are we as a people seeking to tie the right to vote to financial contribution? Dr. Kennedy must come again. Even looking at this in the jurisprudential sense using the classical theory of Hohfeld, Prisoners have been denied a right. It is this right the Supreme Court is guaranteeing them by the decision in the case. ROPAL on the other hand, only confers a privilege. Those in the Diaspora always had the right to vote. They could exercise that right by coming down to register and to vote although to a large extent it was inconvenient. ROPAL is seeking to confer on them a privilege so that this can be made easier for them. Before ROPAL, we must note that there was no legal impediment on their way. Same cannot be said for the prisoners. This pathetic comparison must therefore stop. In conclusion, the final words of the Chief Justice at page 610 of the report will be apt. She opined thus: “I have based the call on Ghana to join the league of nations who place a high premium on prisoners’ fundamental right to vote, not on sentimentality or some other non legal reasoning, but on the just requirements of the Constitution, the Supreme Law of the land we voluntarily enacted for ourselves.” By Seyram Darbi Project Legal Advisor Centre For Human Rights And Civil Liberties (Churcil) nickyrasis @yahoo.com