In a 31-page legal argument filed at the Supreme Court, the EC says it had the sole constitutional responsibility to compile voters register and to determine how that compilation would be effected and it was not subject to the direction or control of any other body.
The EC explained that three ID cards were obtained under three different Constitutional Instrument: CI 12, CI 72 and CI 91 and three ID cards should not be included in the upcoming Registration.
In the supplementary statement of case, the EC said it had placed before Parliament a Constitutional Instrument that did not include the use of the existing or old voters ID cards.
“The second defendant (EC) through its own internal review and due diligence mechanism has realized that CI 12 did not require any proof of qualification to register as a voter. It means that anyone who registered under CI 12, cannot be said to have satisfied the constitutional test of providing qualification since no proof was required even though the criteria for qualification under Article 12 was set out therein,” it recounted.
It explained that a review of CI 12 showed that what was provided in it was a “changed mechanism to enable a person’s registration to be challenged but again an applicant for registration did not have to prove first that he or she actually qualify”.
According to EC that clearly showed that the Voter ID card derived from the CI 12 Registrations were legally and constitutionally doubtful and therefore same could not relied on as the basis for “meeting the constitutional qualification test.
Additionally the EC said with respect to CI 72, the Supreme Court found in “Abu Ramadan No.1” that the use of the NHIS card to register was unconstitutional because it did not prove qualification.
The Commission said an anecdotal evidence provided by registration officials during the compilation of the Voter Register under CI 72, showed that a majority of applicants used the NHIS to register as it was the “most widely accessible card at the time”.
The EC said that led the Supreme Court to conclude as a matter of law that the 2012 Voters Register produced under CI 72 was neither reasonably credible nor accurate as constitutionally required:
“In fact at page 16 of the EC’s own Training Manual used for the teaching of its Registration Officials in 2012, it was stated that “proof of eligibility was not required”.
Indeed, to make it impossible to require proof of eligibility, the Form 1A which is required to be filed out before an applicant may register did not provide any place on the form that the registration officials could record proof of eligibility except the National ID card.
“Furthermore, the training manual referred to set out a list of acceptable documents to proof eligibility which included documents like the birth and baptismal certificates which C.I. 72 had not sanctioned.
“Indeed the 2nd defendant [EC] simply has no way of identifying either in its database or the source forms who used the NHIS card. So its unable to clean the register of such registrations at all,” the EC argued.
According to the EC, the voters registration made under C.I. 91 were constitutionally and legally doubtful for the reason adduced for the voters ID Cards produced pursuant to C.I. 12 and C.I. 72.
The EC explained that although the Supreme Court had injuncted the use of the voters ID card under C.I. 72 the voters ID cards procured under C.I. 12 could still be used to register under C.I. 91.
“We have already demonstrated above that the provenance of the voters ID cards under C.I. 12 is legally and constitutionally doubtful and cannot be relied upon as credible proof of qualification to register.
“In addition, it is noteworthy, that even though you could not use either the C.I. 72 voters ID card to register holders of voters ID cards under C.I. 12 and C.I. 72 could still guarantee the registrations of those who had none of the forms of identification that proved qualification.
In effect we have the problem of the fruit of the poisonous tree on our hand. If the tree is poisonous the fruit is poisonous,” the EC argued.
Finally, the EC said it was important to state that the exclusion of previous or old voters ID cards, quite apart from being unconstitutionally permissible and lawful will not in any way disenfranchise any prospective registrants.
“It is not always the case that prospective registrants possess existing or old voters ID card to be used to register and yet such persons are able to register.
“For example, first time applicants for voters’ registration will never have an existing or voters ID card and yet are able to be registered even when they do not have other acceptable forms of identification.
“We respectively remind the Court that the issue is not whether Ghanaians are on the register or not. Not every Ghanaian is qualified to be on the register. It is the duty of the 2nd Defendant [EC] to ensure that only Ghanaians who meet the constitutional qualification test are registered.”
The Supreme Court had ordered the EC to provide the legal grounds why it was refusing to accept the existing voters’ identification card as a form of identification in the upcoming mass voters registration exercise.
A seven-member panel of the Supreme Court, presided over by the Chief Justice, Justice Anin Yeboah, gave the order hearing of a suit filed by the opposition National Democratic Congress (NDC) challenging the upcoming compilation of a new voters register by the EC.
It further directed the NDC and Attorney General to file supplementary statement if any on the point of law at the Supreme by June 8.
The hearing has been fixed on June 11.