IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA GHANA

CORAM: WOOD (MRS), CJ (PRESIDING)

DOTSE, JSC
ANIN YEBOAH, JSC
BAFFOE-BONNIE,JSC
GBADEGBE, JSC
BENIN, JSC
AKAMBA, JSC
WRIT.
No. J1/14/2016

5TH MAY 2016

1. ABU RAMADAN PLAINTIFFS

2. EVANS NIMAKO

VRS

1. THE ELECTORAL COMMISSION DEFENDANTS

2. THE ATTORNEY GENERAL

JUDGMENT

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GBADEGBE JSC:
On or about February 25, 2016 the plaintiffs issued a writ before us
seeking the following reliefs:

1. “A declaration that upon a true and proper interpretation of

article 45(a) of the constitution of the Republic of Ghana, 1992
(hereinafter, the “constitution”), the mandate of the Electoral
Commission of Ghana to compile the register of voters implies a duty
to compile a reasonably accurate and credible register

2. A declaration that the current register of voters which contains

the names of persons who have not established qualification to be
registered is not reasonably accurate or credible and therefore
inconsistent with article 45(a) of the constitution thereby making
same unconstitutional, null and void of no effect.

3. A declaration that the current register of voters which contains

the names of persons who are deceased is not reasonably accurate
or credible and is therefore inconsistent with article 45(a) of the
constitution thereby making same unconstitutional, null and void of
no effect.

4. (a) An order setting aside the current register of voters and

compelling the Electoral Commission to compile a fresh register of

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voters before the conduct of any new public election or referendum in
Ghana;

Or in the alternative,

(b) An order compelling the Electoral Commission to audit the

current register of voters through the validation of the registration of
each person currently on the register

i. To delete the names of unqualified persons and deceased

persons and
ii. To provide each validated registration with biometric evidence
thereof and
iii. To strike out the names of those persons who fail to validate
their voter validation within the stipulated period

Before the conduct of any new registration exercise or public election

or referendum in Ghana.”

A statement of case that provided both the factual basis of the

action and the applicable law on which the claim was planked
accompanied the writ. Also filed by the plaintiffs, as part of the
processes initiating the action herein is a verifying affidavit. We
wish to state at once that the practice by which the plaintiffs
exhibited documents to the statement of case is inappropriate; the
better practice is that such documents be exhibited to an affidavit

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in the form of a verifying affidavit as stipulated in rule 46( 2) of the
supreme Court Rules, CI 16. The issue of procedure turning on the
rule has been the subject of previous decisions of this court and it
is expected that in future parties would endeavor to comply with its
requirements. As the action herein raises matters, which require
to be dealt with expeditiously, we have enabled the action to
proceed to trial notwithstanding the said procedural lapse but hope
that this indulgence will not be construed as a relaxation of the
rules of procedure.

In their statement of case, the plaintiffs place great reliance on their

right to relief in the action herein on a previous decision of this
court in a consolidated action numbered as JI/11/2014 and
JI/9/2014 and entitled Abu Ramadan and Another v The
Electoral Commission and Another; and Kwasi Danso
Acheampong v The Electoral Commission and Another, an
unreported judgment of this court dated July 30, 2014. In the
judgment in the said case, the use of National Health Insurance
Identification Cards (hereinafter for convenience referred to as
“cards”) to establish qualification for registration was declared
unconstitutional. The plaintiffs contend that following the
declaration of the unconstitutionality of the use of the said cards,
names of persons who used it in the registration process conducted
under CI 72 cannot continue to remain on the register of voters for
them to exercise their franchise in any public elections or referenda
to be held within the jurisdiction.

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The plaintiffs also complain about the names of several minors and
decedents (deceased persons) which continue to be on the electoral
roll without being deleted and contend that it is of great
constitutional importance that the a fore-mentioned categories of
registered voters be deleted from the register as their continued
presence on it tends to render the register of voters bloated and
consequently devoid of reasonable accuracy and or credibility and
contrary to the provisions of the constitution.

The plaintiffs further allege that subsequent to the declaration of

the unconstitutionality of the use of the cards for registration in the
Abu Ramadan case (supra), they made several efforts to persuade
the Electoral Commission to take steps to delete names of persons
who used them for registration under CI 72 before the decision of
the Supreme Court. A similar complaint regarding the presence of
minors and deceased persons on the current register of voters was
also made but the first defendant refused and will not have those
names deleted from the register of voters before the holding of the
2016 presidential and parliamentary elections notwithstanding the
fact that a committee it had set up, the Crabbe Committee came to
the conclusion that the current register of voters is bloated. It
seems that in bringing the action herein the plaintiffs seek the
intervention of the Supreme Court in directing the first defendant to
have the names of ineligible and deceased persons deleted from the
register before the holding of the upcoming national elections.

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In the view of the plaintiffs, if the issues raised in the matter herein
are not adjudicated upon by this court in the exercise of its
exclusive original jurisdiction under articles 2(1) and 130(1) of the
1992 Constitution, it will result in ineligible persons continuing to
remain as registered voters contrary to article 42 of the
constitution. The said article 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 purpose of public elections and referenda”

The above words are free from any disputation as to their true
meaning, the corollary of which is that persons who are not
Ghanaians though resident in the jurisdiction do not qualify to be
registered as voters and that any such registration violates the 1992
Constitution. So stated, it appears that the plaintiffs in taking out
the action herein have been driven by a desire to resist the
inclusion of non- Ghanaians on the register of voters contrary to
article 42 of the constitution.

In answer to the plaintiffs’ claim, the first defendant contends that

the action herein raises no real interpretative or enforcement issue
within the meaning of articles 2(1) and 130(1) of the 1992
Constitution. The first defendant further contends that the real
intendment of the instant action is to enforce what the plaintiffs

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perceive to be the right interpretation of the court’s previous
decision in the case of Abu Ramadan and Another v The Electoral
Commission and Another (supra). The second defendant similarly
contends that the claim herein raises no issue that is properly
cognizable by this court under the exclusive original jurisdiction
conferred on it under articles 2 and 130 of the 1992 Constitution.

Our first task in the light of the said objections is to consider

whether we have the jurisdiction to inquire into the plaint herein.
The central questions for our narrow decision regarding the
jurisdictional point is whether the action herein raises any question
of interpretation or enforcement of the constitution. In our view, the
jurisdiction conferred on the court in its original jurisdiction may
relate to either its interpretative or enforcement function as was
decided in the case of Sumaila Bielbiel v Dramani [2011] 1 SCGLR
132, 143- 145. See also: Emmanuel Noble Kor v Attorney-
General and Another, an unreported judgment of the Supreme
Court in Suit Number JI/16/2015 dated March 10, 2016. For the
purpose of the jurisdictional question, the question is whether the
matter raises a fair case of interpretation or enforcement and the
court at this stage is not required to decide on the merits if the case
is weak and or sustainable. In the Sumaila Bielbiel case (supra), it
was observed on the jurisdictional point at page 144 thus:

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“At this point we need not inquire into whether or not the case of the
plaintiff is weak or one that is likely to succeed. It is sufficient if it
raises a case though weak, that might proceed to trial.”

Applying the decision in the above cases to the action herein, it

seems that it raises for our decision the question whether having
regard to the previous decision in the Abu Ramadan case (supra),
the current register of voters which includes names of persons who
utilized cards to be registered as voters and continues to have on
the voters roll names of minors and deceased persons can be said
to be reasonably accurate and credible such as to satisfy the
requirement imposed upon the Electoral Commission under article
45 ( a) of the 1992 Constitution “to compile the register of voters and
revise it at such periods as may be determined by law.”

The plaintiffs by the action herein may be said to be crying out

regarding the failure of the first defendant to delete the names of
minors and deceased persons as well as those whose registration as
voters was facilitated by cards for our determination in the exercise
of its power of judicial review. The question that arises in view of
the presence of those objectionable names on the register is
whether the first defendant has properly exercised his functions
under articles 42 and 45(a) to register qualified Ghanaians as voters
and to compile the register of voters subject to revisions at statutory
specified intervals. It seems that this is a fair invitation to urge on
us in order to give effect to the fundamental right conferred on

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Ghanaians of age 18 and above under article 42 of the constitution
to be registered as voters in order that they might exercise the
franchise in public elections and referenda. The importance of this
right cannot be brushed aside particularly when being entered on
the register of voters is an essential pre-requisite for contesting
parliamentary and presidential elections and indeed, being
appointed to certain positions such as a minister of state. The right
to vote cannot thus be taken for granted; for it gives a registered
voter certain rights that are unavailable to non-Ghanaians. The
concern, which fairly emerges from the allegation of the violation of
the fundamental right provided under article 42, is that it erodes its
availability to only Ghanaians with the requisite qualifications. Of
this fundamental right, Wood (Mrs.) CJ observed in the Abu
Ramadan case (supra) as follows:

“If the right to vote is important in participatory democracy, the right

to register is even more fundamental and critical. It is the golden key
that opens the door to exercising the right to vote.”

In our view, looked at from this standpoint, the plaintiffs action

seeks to give teeth and meaning to articles 42 and 45(a) of the
constitution by ensuring that names of ineligible person, minors
and decedents are deleted from the register before the upcoming
public elections. The pivotal nature of the right to vote has been
pronounced upon by this court in a collection of cases including
Tehn Addy v Electoral Commissioner [1996-97] SCGLR 589;

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Ahuma Ocansey v Electoral Commission; Center for Human
Rights and Civil Liberties (CHURCIL) v Attorney-General [2010]
SCGLR575. Accordingly, the objection to our jurisdiction, which is
raised by the defendants in their respective statements of case is
hereby dismissed; we hold that this court has jurisdiction under
articles 2(1) and 130(1) of the 1992 Constitution to inquire into the
issues raised in the action herein. It being so, we turn our
attention to examining the claims herein on the merits.

However, in the course of the hearing of the action, we dismissed

two interlocutory applications on March 3, and April 21, 2016, but
reserved our reasons to be incorporated in the judgment in the
substantive action. The first application sought an order of
interlocutory injunction restraining the first defendant whether by
itself, its agents, assigns, privies servants and whomsoever of
whatever description from conducting a limited or other voters
registration pending the final determination of the action herein. In
the supporting affidavit, the plaintiffs-applicants relied
substantially on the complaints relating to the current register of
voters which form the basis of the instant action. The application
was opposed by the first defendant-respondent. The reasons for
our refusal of the application are as follows.

In the first place as the issues on which the right of the plaintiffs-
applicants to the interlocutory order of injunction involved the same
considerations as those which we have to decide in the main action

10
we thought that in order not to prejudice a fair hearing of the action
the requirements of justice would be better served if we expedited
the hearing of the substantive matter. Again, the registrations in
respect of which the order of interlocutory injunction was sought is
a constitutional function of the first defendant contained in article
45 (a) of the constitution to “compile the register of voters and revise
it at such periods as may be determined by law” and to accede to
the order at that stage of the application when the plaintiffs-
applicants right to the reliefs claimed in the substantive action had
not been finally determined would result in greater inconvenience
to the first defendant in the event of those reliefs not being granted
at the end of the day. Further, as the registration exercise
concerned persons who had turned 18 years of age and were
utilizing the opportunity to register for the first time, an order of
restraint would have deprived them of the fundamental right to
register and vote subsequently at public elections and referenda.

In relation to that part of the application which sought to restrain

the first defendant from holding any public election or referenda
pending the final determination of the action herein, we were of the
opinion that to accede to the application would as regards the bye-
election which was about to be held in the Akim-Abuakwa- North
Constituency in the Eastern Region to fill a vacancy that had
occurred following the death of the member of Parliament, not only
deprive the members of the constituency of a representative in
Parliament, who are not parties to the action but that the

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constituents would be greatly inconvenienced by a grant of the
application.

We also took into account the fact that in view of the relief (4)
sought by the plaintiffs in the action herein namely setting aside
the voters register or in place thereof validating the voters register
to ensure that only eligible persons remain on the it, the applicants
were not likely to suffer any irreparable hurt or loss if either the
limited registration or bye-election in the Akim-Abuakwa North
Constituency were to be proceeded with and they succeed in the
action herein as the mischief which the action seeks to obviate and
for which the interlocutory injunction was applied for would
effectively have been cured by the grant in their favour of either of
the alternative reliefs. On the whole as regards the application for
interlocutory injunction, applying the test of relative convenience
and or inconvenience, we came to the view that the balance tilted in
favour of its dismissal.

The second application concerned an application at the instance of

the People’s National Convention Party for joinder as third Plaintiff.
The reasons for our decision are provided shortly as follows. In our
view, the applicant does not come within the designation of “a
party” within the meaning of rule 45(a) of the Supreme Court Rules.
The said rule provides as follows:

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“The Court may, on its own motion or on the application of a party
order that any other person shall be made a party to the action in
addition to or in substitution for any other party.”

The above rule appears to be narrower in scope than the

formulation contained in Order 4 rule 5(2) of the High Court ( Civil
Procedure) Rules by which the application for joinder is authorised
to be made not only by parties to the action but “ on application”
presumably of any person. As rule 45 (2) only authorizes an order
for joinder in the exercise of our original jurisdiction to be made
either at our own instance or on the application of a party to a
pending matter, which the applicant unfortunately is not, the
applicant lacked the requisite capacity to bring the application for
joinder.

Although the reasons provided in the preceding paragraph are

sufficient to dispose of the application made to us under rule 45 (2)
of CI 16, it appears from the processes filed in regard to the said
application that the applicant’s interest in the matter is not
coterminous with that of the plaintiffs to whom it seeks to be added.
Again, a careful examination of the processes before us in the
matter herein reveal that the applicant is not a person who ought to
have been joined as a party or whose presence is necessary for the
effectual and complete adjudication of all the matters in dispute in
the action herein. We think that this is the overriding principle in
applications for joinder which an applicant must satisfy. In the case

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of Vandervell Trustees Ltd v White [1970] 3 All ER 16, 24
Dilhorne LJ in the course of his judgment observed as follows:

“… I cannot construe the language of the rule as meaning that a

party can be added whenever it is just or convenient to do so. That
could have been simply stated if the rule was intended to mean that.
However wide an interpretation is given, it must be an interpretation
of the language used. The rule does not give power to add a party
whenever it is just or convenient to do so. It gives power to do so only
if he ought to have been joined as a party or if his presence is
necessary for the effectual and complete adjudication on all matters
in dispute in the cause or matter”

We are of the opinion that the issues raised for adjudication in the
action herein can be effectively and completely adjudicated without
the presence of the applicant herein, the People’s National
Convention Party. It was for these reasons that we declined to have
the applicant joined to the action herein.

We open the merit consideration of the action herein by observing

that under the 1992 constitution, this court and none other has the
onerous responsibility of determining whether an act, legislation
and or any act( conduct) is within the boundaries of the
constitution as provided for in articles 2(1) and 130(1). Article 2(1)
of the Constitution provides:

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“A person who alleges that-
(a) an enactment or anything contained in or done under the
authority of that or any other enactment; or
(b) any act or omission of any person is inconsistent with, or in
contravention of a provision of this Constitution, may bring an action
in the Supreme Court for a declaration to that effect.”

Article 130(1) of the constitution also provides as follows:

“ Subject to the jurisdiction of the High Court in the enforcement of

the Fundamental Human rights and Freedoms as provided in article
33 of this Constitution, the Supreme court shall have exclusive
original jurisdiction in-

(a) all matters relating to the enforcement or interpretation of this

Constitution; and
(b) all matters arising whether an enactment was made in excess
of the powers conferred on Parliament or any other authority or
person by law or under this Constitution.”

The essence of the jurisdiction conferred on us under the said

articles is to enable us intervene in appropriate instances to declare
and enforce the law regarding the extent and exercise of power by
any person or authority. Although the said constitutional provisions
have not used the words “judicial review”, their cumulative effect is
to confer on us the jurisdiction to declare what the law is and to

15
give effect to it as an essential component of the rule of law. The
nature of the court’s obligation it to measure acts of the executive
and legislative bodies to ensure compliance with the provisions of
the constitution, but the jurisdiction does not extend beyond the
declaration, enforcement of the constitution and where necessary
giving directions and orders that may be necessary to give effect to
its decision as contained in article 2(2) of the constitution. The
court’s original jurisdiction thus enables it to determine the limits
of the exercise of the repository’s powers.

It is observed that in the exercise of the court’s original jurisdiction,

it is not permissible for the court to substitute its own decision for
that of the body or persons exercising a discretion conferred on it by
the constitution. This is necessary to keep the court itself within its
proper limits in order to give effect to the supremacy of the law,
which appears to be the foundation of the original jurisdiction. The
court’s function is to set limits on the exercise of the discretion,
which by the constitution has been vested in an institution or body
of persons, and a decision made within these boundaries cannot be
impugned. We think the situation that confronts us in the matter
herein may be likened to an appeal from the exercise of a discretion
by trial courts. In such cases the question for determination by the
appellate court is whether the discretion was exercised properly
having regard to the available materials and not to substitute the
discretion of the appellate court for that of the trial judge even
though the justices may hold a different view on the discretion so

16
exercised. In the case of Ballmos v Mensah [1984-86] 1 GLR 724,
731, Osei Hwere JA (as he then was)emphasized the settled
principle in such cases when he approved a statement made in the
head note to Blunt v Blunt [1943] AC 517, 518 as follows:

“An appeal against the exercise of the court’s discretion may succeed
on the ground that the discretion was exercised on wrong or
inadequate materials if it can be shown that the court acted under a
misapprehension of fact in that it either gave weight to irrelevant or
unproved matters or omitted to take relevant matters into account.,
but the appeal is not from the discretion of the court to the discretion
of the appellate tribunal.”

In our opinion, it is important that this caveat be borne in mind as

we proceed to consider the issues raised for our determination in
the action herein.

The exercise of the original jurisdiction requires us to deliver

credible decisions in order to enhance public confidence in the
administration of justice as an independent decision making body
with the sole responsibility of having a monitoring role over acts of
the legislature and the executive for the purpose of ensuring
observance with the constitution. The situation with which are
concerned in these proceedings is not new and our courts have
exercised their original jurisdiction over the years properly drawing
inspiration from the landmark case of Marbury v Madison, 5 U.S.

17
137 (1803). The previous decision of this court in the Abu
Ramadan case (supra), like many others to which reference has
been made in the course of this judgment is a testimony to the
court’s robust commitment to ensure compliance with the
constitution in terms of our oath of office. Having disposed of the
preliminary legal objection to our jurisdiction, we now turn our
attention to the issues for determination that were contained in a
joint memorandum filed by the parties to the action herein. The
agreed issues set out in the memorandum filed on April 14, 2016
are as follows:

“1. Whether or not the original jurisdiction of this court has properly
been invoked by the Plaintiffs
2. Whether or not the presence of names of ineligible persons on
the Current Register of voters renders same not reasonably
accurate or credible and therefore inconsistent with article 45 (a)
of the constitution.
3. Whether or not the presence of names of deceased persons on
the Current Register of voters renders same not reasonably
accurate or credible and therefore inconsistent with article 45(a)
of the constitution.
4. Whether or not the decision by 1st Defendant not to use the
record validation process to revise the current register of voters
is unreasonable and inconsistent with articles 23 and 296 of
the constitution.

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5. Whether the court has jurisdiction and authority to make orders
compelling 1st defendant to discharge its functions in a
particular manner.
6. Whether Plaintiffs suit falls for determination within the
exclusive jurisdiction of the court.
7. Whether plaintiffs have proved the extent to which the register
of voters is inaccurate as for it to be unreasonable within the
meaning of article 45(a) of the 1992 Constitution.
8. Whether or not a Party is entitled to an order from the court to
compel 1st defendant to carry out its constitutional function of
compiling and revising the register of voters in a particular way,
form or manner?
9. Whether or not 1st defendant is bound by suggestions from
citizens and other stakeholders as to how 1st defendant must
carry out its constitutional function of compiling and revising the
register of voters?”

The first issue concerns the invocation of our original jurisdiction

by the plaintiffs. In view of the discussions had previously about the
jurisdictional point, we think that the question raised by issue (1)
receives an affirmative answer.

We next proceed to consider issues (2) and (3). The said issues
concern the question whether by the continued presence on the
current register of voters of ineligible persons as declared in the
Abu Ramadan case (supra) and deceased persons, the register can

19
be said not to be reasonably accurate or credible and therefore
inconsistent with article 45 (a) of the 1992 Constitution. As the two
issues raise common questions of law turning on undisputed facts,
we shall consider them conjunctively. In our opinion, death being
an inevitable occurrence in the life of any human being should have
had very clear provisions made in relation thereto for the purpose of
deleting such names from the register by for example, requiring the
Births and Death Registry to forward at specified intervals to the
first defendant through its district offices for deletion. The unhappy
situation, however is that the system of registration of births and
deaths in the country is woefully behind current trends in
development. This has the effect of rendering the current register of
voters not reasonably accurate or credible. We do not; however
think that the defect is so extensive in nature to result in an
inconsistency with article 45(a) of the constitution as the existing
law has made ample provisions for such names to be deleted when
the provisional register is exhibited before it is certified under
regulation 27 of CI 91 as the existing register. We think that the
elaborate scheme provided the law is sufficient to address the
presence on the register of voters of names of persons who might
have died since the last registration exercise. Although the issues
for our determination have not included minors, we think that
names of such persons can also be deleted using the processes
provided for in the law. From the complaint made in relation to
deceased persons, there is an implied admission that at the time of
their registration they were alive and eligible to be registered. There

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is also the added mechanism of biometric registration which when
enforced will prevent people impersonating such deceased persons
as the fingerprints and photo identifications will not match.

Turning to the presence on the register of voters’ of ineligible

persons who must have utilized cards for their registration, it
appears from the proceedings herein that that the exact numbers
are not known. This creates some difficulty in determining the
actual percentage in order to answer the question posed whether
the register may on such ground only be said not to be reasonably
accurate or credible. However, that should not present us with an
insurmountable problem. In our view, following the previous
decision of this court in the Abu Ramadan case (supra) by which
the use of the cards for registration was declared unconstitutional,
the continued presence of names on the register that derive their
identification from the said cards renders the register not
reasonably accurate or credible. In coming to this view of the
matter, we are not disregarding the report of the panel which is part
of the processes before us in these proceedings as exhibit “ABU6”
that the register of voters is bloated, a fact which is not
controverted by the defendants. We are in a great difficulty, however
agreeing with the plaintiffs that by virtue only of the said infraction,
the entire register has the attribute of unconstitutionality. The said
registrations were conducted under CI 72, which was the applicable
legislation under which eligible citizens were registered before the
2012 elections. As the registrations were made under a law that

21
was then in force, they were made in good faith and the subsequent
declaration of the unconstitutionality of the use of cards should not
automatically render them void. The legitimate way of treating them
is to have them deleted by means of processes established under
the law. In view of the fact that these registrations were not effected
in breach of the law, the persons affected thereby cannot be said to
be benefiting from their own wrong such as to be deprived of their
registration without being given the opportunity of being heard. As
the said registrations were done before the declaration of
unconstitutionality in the Abu Ramadan case (supra) to have their
names deleted will have the effect of disenfranchising persons
affected by it. This approach enables us to do justice in a manner
that preserves the rule of law and a stable constitutional order
without affecting acts and or things which were previously ordered
on the legality of the impugned provision in the Abu Ramadan case.
We think that any person whose registration is affected by the
decision in the Abu Ramadan case (supra) be given the opportunity
to go through the process of registration to establish his eligibility
or otherwise in order that the appropriate remedies provided under
the law may be applied. There being no credible dispute that the
current register of voters was compiled under legal provisions
deriving their legitimacy from the primary legal source, the entire
register of voters cannot be said to have been compiled
unconstitutionally. Accordingly, by way of answer to issues (2) and
(3) we are of the opinion that although the presence of the names of
ineligible and deceased persons on the register of voters renders

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same neither reasonably accurate nor credible, the register is not
thereby rendered inconsistent with article 45(a) of the constitution.

Issue (4) raises the question of validation, which from the

processes filed before us was suggested by some stakeholders as a
means of deleting or “cleaning” as it is popularly called, ineligible
names from the register of voters but rejected by the Electoral
Commission. It appears from the case of the plaintiffs that had the
first defendant made an accession to this proposal, there would not
have been the need for the instant action to be initiated before us.
While there appears to be some reason in the proposal for
validation, it is without statutory authority and seeks to introduce a
mechanism that the lawmaker did not make provision for to be
utilized in deleting the names of ineligible and deceased persons
from the register of voters. In carrying out its function under the
law, the Electoral Commission cannot employ non-statutory
remedies, as the law does not give it that mandate. It is observed
that it is unreasonable to demand from a public officer whose
authority is derived from the law, performance that is not
authorized by law and its effect is that non-compliance with the
proposal of validation does not constitute any inconsistency with
articles 23 and 296 of the constitution.

This leads to issue (5), which concerns the question whether the
court has jurisdiction to make orders compelling the first defendant
to discharge its functions in a particular way. In our view, our

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jurisdiction in so far as the action herein goes is only to determine
the limits within which the first defendant as a repository of
constitutional authority can lawfully exercise its functions. By
article 46, the first defendant is endowed with independence in the
performance of its functions including the initiation, regulation and
conduct of elections in the country as follows:

“Except as provided in this Constitution or in any other law not

inconsistent with this Constitution, in the performance of is functions,
the Electoral Commission, shall not be subject to the direction or
control of any other body.”

In our opinion and as part of our function to declare what the law
is, the above words which are unambiguous insulate the Electoral
Commission from any external direction and or control in the
performance of the functions conferred on it under article 45 in the
following words:

“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;
(b) to demarcate the electoral boundaries for both national and
local government elections;
(c) to conduct and supervise all public elections and referenda;
(d) to educate the people on the electoral process and its purpose

24
(e) to undertake programmes for the expansion of the registration
of voters; and
(f) to perform such other functions as may be prescribed by law.”

A fair consideration of the functions of the first defendant reveals

that the demand which was made on it by the plaintiffs regarding
the presence of ineligible and deceased persons and the latter’s
refusal to acquiesce in the said demands which provoked the action
herein relates to its mandate under article 45 (a) “to compile the
register of voters and revise it at such periods as may be determined
by law”. In order to determine if the performance of the function
conferred on it under article 45(a) is subject to any other
constitutional provision, we have to read the constitution in its
entirety paying particular attention to the various provisions in
order to find out if there are any exceptions to its independence.
Then we have to turn to our electoral laws and embark on the same
journey to discern if there are any limitations imposed on its
independence that to be good must not be inconsistent with the
constitution. A careful scrutiny of the constitution reveals that its
function under article 45(a) is not subject to any other provision,
therefore in performing the said function, we cannot make an
order compelling the Commission to act in a particular manner.

We think that the independence of the Commission is crucial for

the success of any election. If the Commission is perceived
otherwise, there is little prospect of the electoral administration on

25
Election Day being perceived as transparent and fair. If we are to
consolidate our democracy, it is incumbent on us all to defend and
protect its independence as provided for in the constitution. We
think that in the circumstances when a specific complaint is made
regarding the performance of any of the functions of the
Commission, it is our duty to inquire into it and ask if there is by
any provision of the constitution or any other law which detracts
from the presumption of independence that article 46 bestows on it.
If there is no such constitutional or statutory provision then what it
means is that the matter is entirely within its discretion and not
subject to the control of any other authority including the court. As
the plaintiffs have not disclosed any vitiating circumstances such as
illegality, irregularity, unfairness or failure to satisfy an essential
pre-requisite to the making of a decision that may justify our
intervention to set any such discretion aside, the decision as to
what to do is properly in the domain of the first defendant.

In further consideration of issue (5), we would like to refer to some

specific provisions of the constitution that have placed a fetter on
the exercise of the independence bestowed on the first defendant by
article 46.By article 48(1) its decision regarding the demarcation of
boundaries may be appealed to a special tribunal constituted by the
Chief Justice with a further right of appeal to the Court of Appeal
being provided for in article 48(2).Similarly, in its function relating
to the demarcation of the country into constituencies, the
constitution has made specific provisions in article 47 to regulate

26
its exercise. There are other exceptions provided for in article 49 of
the constitution, which regulate its function relating to the conduct
of elections in the following words;

49(1)” At any public election or referenda, voting shall be by secret

ballot
(2) Immediately after the close of the poll, the presiding officer
shall, in the presence of such of the candidates or their
representatives and their polling agents as are present, proceed to
count, at the polling station, the ballot papers of that station and
record the votes cast in favour of each candidate or question.
(3) The presiding officer, the candidates or their representatives and
in the case of a referendum, the parties contesting or their agents and
the polling agents if any, shall sign a declaration stating-
(a) the polling station; and
(b) The number of votes cast in favour of each candidate or
question,
And the presiding officer shall, there and then, announce the results
of the voting at that polling station before communicating them to the
returning officer.”

The effect of these specific provisions is that where the constitution

intended the exercise of any of the functions conferred on the
Commission to be subject to any other person or law, it is so
provided. Accordingly, where no such provisions have been
specifically made, the effect is that the constitution intended the

27
commission to exercise its discretion without the control or
direction of any person or authority. This court being the ultimate
judicial authority in the country must endeavor to respect the
boundaries of the jurisdiction conferred on it in order to give effect
to the supremacy of the constitution. To accede to the demand
made on it in the action herein would amount to subverting the
plain constitutional provisions. The result is that issue (5) receives
an answer in the negative.
However, before we end the consideration of the independent status
of the Electoral Commission, we wish to say that the independent
status of the first defendant does not make it immune from action
for the purpose of declaring that it has exceeded its authority or
acted in a manner that having regard to its unreasonableness,
irrationality or unfairness cannot be accorded the sanction of
legality in view of articles 23 and 296 of the constitution. We do not
agree with the contention pressed on us by the first defendant that
the 1992 Constitution “forbids any control or direction of the 1st
defendant as to how to accomplish its work.” Plainly, the said
statement is erroneous as article 46 itself recognises that its
independence may be derogated from either in the constitution or
by any other law including but not limited to the instances referred
to in regard to articles 48(1), and 49(1). There is also the point that
as a creature of article 43, the Electoral Commission is subject to
the constitution; to deny that it is so subject is to misconstrue the
nature of the independence bestowed on it in relation to our
exclusive jurisdiction, which is critical to effectuating the

28
supremacy of the law. We make reference to the observation of
Marshall CJ in the landmark case of Marbury v Madison (supra):

“It is emphatically the province and duty of the Judicial Department

(judicial branch) to say what the law is……..”

In our view having gone beyond the jurisdictional point, there is

before us a justiciable cause of action which we have to inquire into
by virtue of article 125 of the constitution in order that the matters
in dispute in the action herein may be completely and effectively
decided. That is the essence of judicial power as conferred on the
judiciary in article 125(5) in the words that follows:

“The Judiciary shall have jurisdiction in all matters civil and criminal,
including matters relating to this Constitution, and such other
jurisdiction as Parliament may, by law, confer on it.”

The correct position is that the courts as constituted under the

1992 constitution may intervene in acts of the first defendant to
ensure that it keeps itself within the boundaries of the law and also
to give effect to provisions of the constitution. This is a jurisdiction
that our courts have always exercised in relation to the first
defendant of which the recent decision in the Abu Ramadan case
(supra) is an example. In that case, one of the orders made by the
court following the declaration was “an order of perpetual
injunction restraining the Electoral Commission from using the

29
National Health Insurance Card in its present form and a voter
identification card other than as explained under relief (2) for the
purposes of registering a voter under article 42 of the 1992
Constitution.” The said order clearly was a direction which affected
the first defendant, of whom we observe complied therewith by
excluding the utilization of the card as qualification to register in
regulation 1 (3) of the Public Elections (Registration of Voters)
Regulations, 2016 (CI 91.)
Again, in the Tehn Addy case (supra), the essence of the
declaration granted against the Electoral Commission was an
intervention by the Supreme Court to set aside its exercise of
discretion in purporting to suspend the registration of voters; a
situation that emphasises that in appropriate cases the first
defendant is subject to the control and or direction of this court. We
make bold to say that had the Commission not complied with the
terms of the judgment in the Abu Ramadan case (supra), it would
have opened itself up to the sanctions provided in article 2 (3) and
(4 relating to a high crime. We do not think that our intervention
was unwarranted by the constitution. On the contrary, it was
justified by the provisions of article 2(1) and 130 (1) of the 1992
Constitution which are intended to give effect to the supremacy of
the constitution contained in article 1(2). The first defendant’s
independence is also subject to the High Court’s exercise of its
supervisory jurisdiction under article 141 of the constitution and
actions in which questions may be raised whether in carrying out
its functions, it has exceeded the authority conferred on it in

30
specified statutes; in such cases the High Court has the jurisdiction
to determine whether it has acted intra vires.

Regarding issue (6), we think that the answer to issue (1)

adequately takes care of the considerations that are raised by it and
accordingly, no useful purpose will be served by considering it
again.

Then there is issue (7) which raises the question whether the
plaintiffs before us have proved the extent to which the register of
voters is inaccurate for it to be unreasonable within the meaning of
article 45(a) of the constitution. The said article deals with the
obligation of the Electoral Commission to compile the register of
voters for use in public elections and referenda in the country. In
considering the point, which arises under this issue, we wish to
take judicial notice of the fact that since the delivery of judgment in
the Abu Ramadan case (supra) names that were entered on the
register with the utilization of cards during the registration exercise
conducted under the repealed legislation, C.I. 72, have not been
deleted from the register of voters. The continued presence of such
names being derived from a constitutionally declared wrong offers
sufficient proof of the extent of the inaccuracy of the current
register of voters and can therefore be said to be unreasonable. We
are of the opinion that any public document required to be compiled
under statutory authority that contains entries, which are instances
of non- compliance with mandatory constitutional provisions as is

31
the case with the current register of voters has the attribute of
unreasonableness. The presumption being that the law is intended
to be reasonable; any act that is derived from unconstitutionality
must be deemed unreasonable. Accordingly, issue (7) is answered in
the affirmative.

Turning our attention to issue (8), we note that it concerns

substantially the same question that has been previously discussed
and resolved in this delivery as issue (5) and so there is no need for
the court to consider the same question again. This leaves us with
the determination of issue (9) regarding whether the first defendant
is bound by suggestions from citizens and stakeholders in carrying
out its constitutional mandate. While conceding that there is no law
that obliges the first defendant, it seems to us that in order to
render its work acceptable to Ghanaians, it may engage in
consultation and collaboration with citizens and stakeholders that
are intended to deepen the participation of the citizenry in the
electoral process. Listening to others takes nothing from the
Electoral Commission but on the contrary, it has the effect of
engendering public confidence in the electoral process and trust in
the outcome. Accordingly, issue (9) receives an answer in the
negative.

The result is that we proceed to grant the following reliefs:

(1) That upon a true and proper interpretation of article 45 (a) of
the Constitution, the mandate of the Electoral Commission to

32
 compile the register of voters implies a duty to compile a
reasonably accurate and credible register.
(2) A declaration that the current register of voters which contains
the names of persons who have not established qualification to
be registered is not reasonably accurate or credible.
(3) A declaration that the current register of voters which contains
the names of persons who are deceased is not reasonably
accurate or credible.
(4) Reliefs (4) (a) and (b) are dismissed in their entirety.

In the exercise of the power conferred on us under article 2(2) of the

constitution, we make the following orders:

(a) That the Electoral Commission takes steps immediately to

delete or as is popularly known ‘clean” the current register of
voters to comply with the provisions of the 1992 Constitution,
and applicable laws of Ghana;

(b) That any person whose name is deleted from the register of
voters by the Electoral Commission pursuant to order (a) above
be given the opportunity to register under the law.

(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT

33
WOOD (MRS) CJ:-

I agree.

(SGD) G. T. WOOD (MRS)

CHIEF JUSTICE

DOTSE JSC:-

I agree.

(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT

YEBOAH JSC:-

I agree.

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

34
BAFFOE-BONNIE JSC:-

I agree
(SGD) P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT

AKAMBA JSC:-

I agree

(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT

CONCURRINIG OPINION

BENIN, JSC:-

I have had the priviledge of reading the well-reasoned opinion just

delivered by my able brother Gbadegbe JSC and I am in entire
agreement with it. However, I have decided to say a few words about
some aspect of the case which borders on the rule of law. I should
say, by way of introductory remark, that having fashioned a
Constitution unto ourselves to govern our actions and direct our
path to liberty and progress, it is the duty of every person, human

35
as well as corporate, to keep in mind that the rule of law is
indispensable in all our actions and behaviour. And when a person
is acting within the confines and limits of the law, none can compel
him to act in a particular way to suit that person’s desire. That
explains the oath of office that notable state actors take on
assumption of office to perform the functions attributed to them
without fear or favour, affection or ill-will. Article 46 of the
Constitution has reinforced these principles by granting the 1st
defendant independence in the performance of its functions, subject
only to the Constitution and to any other law for the time being in
force. And once they are acting within the law, no authority or
power can compel them to act in a different way. As observed by
Warren E. Burger in his address at the Law Day Service at St.
John’s Cathedral in Jacksonville, Florida on June 15, 1973, “the
(rule of law) places restrictions on individuals and on governments
alike. This is a delicate, a fragile balance to maintain. It is fragile
because it is sustained only by an ideal that requires each person in
society, by an exercise of free will, to accept and abide the restraints
of a structure of laws. ”In the lead opinion, my brother Gbadegbe,
JSC has set out some areas in which the powers of the 1st
defendant have been restricted in one way or the other by the
Constitution so I will not dwell on it. He has also set out the facts
and the issues so I will not repeat them. In this piece I will focus on
the exercise of discretionary power in the performance of the 1st
defendant’s core mandate as set out in Article 45 of the
Constitution.

For the purpose of the views I am about to express I will reproduce

issues 4, 5, 8 and 9 set down in the memorandum of issues. They
provide:

4. Whether or not the decision by 1st Defendant not to use the

record validation process to revise the current voters register is
unreasonable and inconsistent with Articles 23 and 296 of the
Constitution.

36
5. Whether this Court has the jurisdiction and authority to make
orders compelling 1st defendant to discharge its function in a
particular manner.

8. Whether or not a party is entitled to an order from this Court to

compel 1st defendant to carry out its constitutional function of
compiling and revising the voters register in a particular way, form
or manner.

9. Whether or not 1st defendant is bound by suggestions from

citizens and other stakeholders as to how 1st defendant must carry
out its constitutional function of compiling and or revising the
voters register.

These issues have arisen from the plaintiffs’ case that the current
voters register contains the names of persons who used the
National Health Insurance card as identification to establish
nationality under the repealed CI 72, which this court in its
decision of 30th July 2014 in Abu Ramadan case, referred to in the
lead opinion, declared unconstitutional. It is the plaintiffs’ case
further that the 1st defendant has since that decision not taken any
steps to remove the names of all those affected by that decision.
Also the names of several dead persons are on the register; these
factors do not make the register credible within the meaning of
Article 45(a) of the Constitution. The plaintiffs claim they have made
several efforts to get the 1st defendant to perform their
constitutional mandate but without success. Other stakeholders
and citizens of this country have played similar roles all to no avail.
The plaintiffs have therefore approached this court to compel the 1st
defendant to either compile a fresh voters register or to embark
upon a validation exercise to clean up the existing register, in order
to render same reasonably accurate and credible.

The defendants seriously challenge this on ground that the 1st

defendant cannot be compelled to act in a particular manner. They
claim they will not be able to identify those who used the NHI card

37
to register. Hence the four issues set down above. These issues
together have the same effect; that the court should be able to give
effect to its 2014 decision on the unconstitutionality of registering
with an NHI card, and also remove the names of deceased persons.

I begin this discussion by reminding ourselves that the court itself

is bound by the law and must act within the confines of the law,
and so too is every other institution or person in this country. This
court’s role in such matters is in the nature of judicial review of
executive and administrative actions, which the courts in
commonwealth jurisdictions have not shied away fromin exercising
since Marbury v. Madison was decided, a case which every student
of constitutional law is familiar with. But the courts have been
careful not to impose themselves on other institutions of state as to
how they should perform their functions. This caution is important
to observe because the law determines the extent of each
institution’s mandate, it is not the court which determines that. But
the court has a duty to bring other institutions to order if they stray
from the path of legality. More often than not, this role of the court
has been distasteful to the other institutions of state.

Needless to say that this problem was not resolved with ease, and
even the circumstances surrounding the Marbury v. Madison
decision bear testimony to it. It had its roots from what became
known as the ‘midnight appointments’ by the then outgoing US
President John Adams. I will not go further into this. But I must say
that since the problem was identified in the USA and first dealt with
by the courts there, any attempt to talk about it will necessarily
take us to the jurisprudence of that country. Not only the courts in
the USA were called upon to determine the extent of the court’s
supervisory power over other state institutions, the executive also
waded into that. Naturally the executive believed the court was
asserting too much influence over their sphere of authority. The
views expressed by some American Presidents and writers on the
subject, though not legal, are worth noting. These executive leaders

38
have articulated views and doctrines that avoid ultimate Supreme
Court authority over executive functions.

Commenting on the American sedition law, Thomas Jefferson wrote

a letter to Mrs. John Adams on September 11, 1804, published in 8
Works of Thomas Jefferson 310-31 (1897) as follows:

“You seem to think it devolved on the judges to decide on the

validity of the sedition law. But nothing in the Constitution has
given them a right to decide for the executive, more than to the
executive to decide for them. The judges, believing the law
constitutional, had a right to pass a sentence of fine and
imprisonment………..But the executive, believing the law to be
unconstitutional, was bound to remit the execution of it; because
that power has been confided to him by the Constitution.”

James Madison in 4 Elliott, Debates on the Federal Constitution,

550 (1836) wrote that;

“However true, therefore, it may be that the judicial department is,

in all questions submitted to it by the forms of the Constitution, to
decide in the last resort, this resort must necessarily be deemed the
last in relation to the authorities of the other departments of the
government, not in relation to the rights of the parties to the
constitutional compact, from which the judicial, as well as the other
departments, hold their delegated trust.”

And when he had the opportunity to write on the subject, Abraham

Lincoln, in 6 Richardson, Messages and Papers of the Presidents, 5,
9-10 (1897) wrote:

“I do not forget the position assumed by some that constitutional

questions are to be decided by the Supreme Court, nor do I deny
that such decisions must be binding in any case upon the parties to
a suit as to the object of that suit, while they are also entitled to
very high respect and consideration in all parallel cases by all other
departments of the government………At the same time, the candid
39
citizen must confess that if the policy of the government upon vital
questions affecting the whole people is to be irrevocably fixed by
decisions of the Supreme Court……….the people will have ceased to
be their own rulers.”

The views expressed above clearly summarize the views of the

executive in the USA on the role the court plays when it comes to
deciding its involvement in the performance of the functions of
other state institutions. These misgivings notwithstanding, the
courts have intervened where the act of the state institution
complained of was arbitrary, capricious or manifestly unlawful. See
cases like CHEVRON USA, INC vs. NATURAL RESOURCES
DEFENSE COUNCIL, INC., 467 US 817 (1984); UNITED STATES vs.
O’HAGAN, 138 L ED (2d)724 (1997).

The courts do apply the presumption of regularity to the acts of

state officials, but being a presumption it does not preclude the
court from probing the act to find out if it was performed in
accordance with the law; see the case of CITIZENS TO PRESERVE
OVERTON PARK, INC vs. VOLPE, 401 US 402 (1971). This
presumption has been legislated by section 37(1) of the Evidence
Act, 1975 (NRCD 323) which says there is a presumption in favour
of official acts that they have been regularly performed. So a party
who thinks otherwise, assumes the burden of displacing that
presumption by evidence.

In order to overcome the problems associated with judicial review of

executive and administrative actions, the US enacted into law the
Federal Administrative Procedure Act and this provides the scope of
review. I am aware that this Act is not applicable here, yet a lot of
its provisions were the result of court decisions and these decisions,
though not binding, are of persuasive influence. But more
importantly some of these provisions do find expression in our
Constitution, 1992. Section 706 of the Act sets out grounds for a

40
reviewing court to determine the validity of any order or action of
the authority, these are:

1. to compel agency action unlawfully withheld or unreasonably

delayed; and
2. to hold unlawful and set aside agency action, findings, and
conclusions found to be---
(a) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(b) contrary to constitutional right, power, privilege or immunity;
(c) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(d) without observance of procedure required by law.
(e) unsupported by substantial evidence……………
(f) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.

The long and short of all these is that the state institution must act
within the confines of the law, and must exercise discretion in
accordance with law. For this reason Article 296 of the
Constitution, 1992, assumes prominence in the conduct of the
affairs of all state actors. It reads:

Where in this Constitution or in any other law discretionary power

is vested in any person or authority-

(a) That discretionary power shall be deemed to imply a duty to be

fair and candid;
(b) The exercise of the discretionary power shall not be arbitrary,
capricious or biased either by resentment, prejudice or
personal dislike and shall be in accordance with the process of
law; and
(c) Where the person or authority is not a Justice or other judicial
officer, there shall be published by constitutional instrument
or statutory instrument, Regulations that are not inconsistent

41
 with the provisions of the Constitution or that other law to
govern the exercise of the discretionary power.

Clause (b) of Article 296 uses expressions like arbitrary and

capricious. These are not terms of art but must bear a legal
meaning by which the exercise of discretionary power will be
judged. When considered in context of Article 296 a person will be
in violation of use of arbitrary discretion if he applies his own
discretion in disregard of the law. In this respect it has the same
meaning as applied in New Zealand, for as stated by Gallen J. in the
case of RE M (1992) 1 NZLR 29 at 41: “Something is arbitrary when
it is not in accordance with law or which is not in accordance with
the principles which the lawregards as appropriate for a discretion
to be operated within.”

And capricious exercise of discretion when used in relation to an

individual person relates to individual behavior of impulsiveness
and unpredictability. And in reference to corporate bodies it is
applicable when they fail to consider rules of evidence or rules of
law, or if they act without principles or reason.

The actions of the 1st defendant will therefore have to be examined

in the light of these relevant constitutional provisions, namely
Articles 45(a), 51 and 296. The 1st defendant has a mandate under
articles 45(a) and 51 of the Constitution, 1992 to compile a voters’
register for the country after publishing the details of the exercise
by way of a constitutional instrument. As explained in the lead
opinion, this involves the compilation of a reasonable and credible
register. It also means that where for some legal reason there is
cause to believe that the register is not credible and therefore does
not satisfy the provisions of Article 45(a) of the Constitution, the
1st defendant has a duty cast upon it to rectify the situation. It is in
this scenario that the plaintiffs are calling upon this court to
compel the 1st defendant to perform its constitutional mandate. The
1st defendant is saying it is acting in accordance with existing law.

42
As at the time this action was brought to this court the relevant
regulations were contained in C.I 72, but this law was repealed and
replaced by C.I 91.

With these regulations in place, the plaintiffs assume the initial

burden of convincing the court that the 1st defendant has taken any
step in the process of cleaning up the register that is not governed
by the repealed CI 72and now CI 91. The plaintiffs also have to
satisfy this court that the 1st defendant has abused the
discretionary power vested in it by Article 296 of the Constitution,
1992 by taking steps which are arbitrary, capricious or
unwarranted by the law or regulations. The plaintiffs also have to
satisfy the court that the validation exercise is known to the laws of
this country or is within the regulations in force governing elections
in this country currently C.I 91.

However efficacious the system of validation may be, even the 1st
defendant cannot employ it unless it is sanctioned by the law or
regulations. That is the more reason why such issues should not be
brought before a court without the legal basis. The 1st defendant
may introduce the validation process by constitutional instrument
under Article 51 if need be. The plaintiffs have not told this court
that the 1st defendant has taken any step contrary to law, nor have
they been accused of breaching its discretionary power. In the
absence of such breaches, the court has no power to compel or even
to direct the 1st defendant as to how to exercise its constitutional
mandate to produce a credible register; it is the end that will justify
the means. I must emphasize here that even if there is provision in
the law and/or regulations for validation, the court cannot compel
the 1st defendant to follow that method unless it is the only mode
that is sanctioned by the law or regulations. If the law provides for
alternative ways of performing the task, the discretion is vested in
the actor in deciding within the limits imposed by Article 296 of the
Constitution as to which one of them will best suit the task on
hand.

43
It is certain the path embarked upon by the plaintiffs is not
supported by the law because the 1st defendant has not been found
to be acting contrary to law, whichever way one decides to
characterize their actions. As long as the process they have chosen
to clean up the voters’ register is authorized by the law or
regulations, they cannot be faulted, even if it is considered that a
more efficient mode exists.

I do not intend to comment on the status of the report of the

committee of experts, namely the Crabbe Committee, appointed by
the 1st defendant to help them address the issue of the voters
register, except to say that it is merely advisory without a legal
status enforceable by a court of law, because like all advisory
opinions it is not binding on the recipient.

I would take this opportunity to comment briefly on C.I 91. In view

of all the happenings in respect of the eligibility criteria of potential
voters on the register, one would have thought that any change in
the law would have made provision for the form of identification
used by a registered voter to be captured in the 1st defendant’s
database. This would have made it easier in future for the court to
make definitive pronouncements on the status of persons whose
names appear in the voters register. It is sad to recall that C.I 91
has been published without this important information. It is good to
draw lessons from court decisions in order to inform future conduct
of state actors. Regulation 22 of CI 91 did not improve upon CI 72.
If this court’s decisions do not guide the future conduct of state
actors, then problems of needless litigation will never be stopped
and the country will be poorer for it. An offshoot of court decisions
is to provoke and influence change or reform in the law to prevent
or reduce future litigation and conflict.

It is for these brief reasons that I fully agree with the decision
reached in this case that the plaintiffs’ action be dismissed in so far
as it seeks an order to compel the 1st defendant to compile a fresh

44
voters’ register or to use the validation process to clean the existing
register.

(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT

COUNSEL
NANA ASANTE BEDIATUO WITH HIM MISS OFOSUA AMAGYEI
FOR THE PLAINTIFFS.
THADDEUS SORY FOR THE 1ST DEFENDANT.
MRS. AFRIYIE ANSAH ( CHIEF STATE ATTORNEY) WITH HER
MISS. IVY VANDERPUIJE (SENIOR STATE ATTORNEY) FOR
THE 2ND DEFENDANT.

45