Please pay attention to the gaps identified in the applicants’ briefs, which we sought to cure.
But first- According to national census data with appropriate adjustments made for net migration and population growth, there are only 350,000 foreigners in Ghana, out of a population of 30 million people. The likelihood therefore that a person claiming to be a Ghanaian is not in fact Ghanaian is 1%. Because the identity authentication and citizenship attestation dimensions of civil registration have become fused in most civil identity registers and in their derivative instruments (such as identity cards), this vast gap in security and forensic requirements is often confused.
In this Executive Summary, we outlined the legal positions that have been canvassed so far before the Supreme Court against the intent and actions of the Electoral Commission in this and related lawsuits and identified gaps in the compendium of arguments before the Court.
SKETCH OF CURRENT LEGAL POSITIONS AGAINST THE ELECTORAL COMMISSION OF GHANA
1. By article 42 of the Ghana Constitution, 1992, “[e]very 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.” We were concerned that citizens who have registered to vote are being removed from the voters’ register and being asked to re-register at a time when there is a global pandemic that heightens the likelihood that doing so will endanger the health of citizens, especially vulnerable individuals above the age of fifty years . As the Center for Strategic & International Studies, a think tank, recently noted in a wide-ranging study: “If a country opts to move forward with its election during COVID-19, it runs the risk of spreading the virus throughout the country.” Unless absolutely necessary, an individual, especially a vulnerable individual, who is already on the voters’ roll, should not be unreasonably compelled to take actions to re-register when doing so would increase risks to their health.
2. Further, we were concerned that because of global travel restrictions, tens of thousands of registered voters who are currently outside the country will not be able to come back home to engage in this proposed exercise, thereby disenfranchising them from partaking in the 2020 general elections. It would be recalled that the Government has shut the country’s borders, and repatriations of citizens stranded overseas are only being offered from just a few countries, and at great cost . Even more insidious, we are concerned that the Commissioner has imposed restrictions on proof of citizenship that are not grounded in law and will further disenfranchise many citizens.
3. Legal scholars that we conferred with and advocates for the plaintiff side in various suits before the honourable Court have made various arguments that can be summed up as follows:
(i) The current voters’ register that has been used for various elections, including the recent region-creating referenda, should be maintained.
(ii) The Commissioner should focus on registering qualified Ghanaians who are not on the register.
(iii) Where the Commissioner adopts a new electoral system, it has a duty to migrate all registered voters to the new system.
(iv) A registered voter has a right to remain registered. The Commissioner should have no power to delist a registered voter without her consent.
(v) Citizenship is a juridical question. Neither the Electoral Commission of Ghana nor other citizens have any power to determine who is a citizen. Only the Courts can determine citizenship . Parliament cannot seek to derogate from the clear intent of the Constitution through subsidiary legislation.
(vi) All government issued documents are entitled to a presumption of regularity. Thus, birth certificates, voter register cards, and other government identifications that are provided to citizens should create a presumption that the holder is a citizen.
(vii) The Electoral Commission of Ghana has no power to determine which government identification is acceptable to it to prove citizenship, and Parliament has neither jurisdiction nor residual power to grant that power.
(viii) The prior and existing voters’ register has been displayed to the public for challenges to be made. It must be presumed to be regular.
4. The Constitutional precept which establishes the Electoral Commission of Ghana’s freedom from control of any other authority in the “performance of its functions” has been widely misinterpreted. This precept applies to specific functions delegated to the Commission, which are clearly enumerated in the Constitutional provision. In performing some of those functions, situations arise where it cannot act alone and where absolute construal of “independence” must give way to policy pragmatism. It must, in those circumstances, cooperate with other state institutions in order to be able to effectively discharge its functions. These areas are: (a) Security (b) Finance (c) Medical and public health (when, for example, the Commission is ensuring that voters meet the psychiatric and psychological threshold in the Constitution to qualify to register); (d) civil identification (when affirming the age and nationality of the voter).
5. Just as Parliament has authority to oversee the appropriations of the Electoral Commission of Ghana in performing equally important tasks on grounds of fiscal prudence, various other bodies, such as the Births & Deaths Registry, the National Identification Authority and the Registrar General have been empowered by law, and are specially competent, to handle matters of civil registers and identification. The Electoral Commission of Ghana cannot justify absolute independence in any of the matters which impinge on the exercise of its core functions of facilitating registration and voting.
A. GAPS IN COUNSELS’ ANALYSIS SO FAR
6. While these arguments are compelling in our view, we are motivated to make our own contributions because we believe that these arguments do not sufficiently delve into the issue of discretion purportedly being exercised by Parliament and the Electoral Commission of Ghana in this matter.
7. Furthermore, in the course of the various proceedings and argumentation, there has occurred a muddling of the differences between legal identity authentication and citizenship attestation in many of the submissions currently before the court. In authenticating legal identity, one is confronted with a very narrow margin of success. Out of the current population of Ghana (some 30 million odd persons), only one person carries any particular legal identity. Forensic strategies and complex security mechanisms are therefore critical to make sure that people are who they say they are. In the case of citizenship attestation within Ghana, the margin of success is, conversely, extremely large. According to national census data , with appropriate adjustments made for net migration and population growth, there are only 350,000 foreigners in Ghana, out of a population of 30 million people. The likelihood therefore that a person claiming to be a Ghanaian is not in fact Ghanaian is 1%. Because the identity authentication and citizenship attestation dimensions of civil registration have become fused in most civil identity registers and in their derivative instruments (such as identity cards), this vast gap in security and forensic requirements is often confused. To emphasise: citizenship attestation requires a far lower standard of forensic authentication than identity verification due to much higher probability that a prima facie determination of citizenship would be correct versus a prima facie determination of identity.
8. The high margin of success in attesting to citizenship is reflected in the liberal adoption of witness testimony in many Ghanaian civil registration processes without any further measures. The Ghana Card and Voter Identification Card application processes both allow unverified witness testimony as evidence of citizenship. In fact, the proper conduct of voting requires anonymity thereby suggesting that legal identity is merely adjunct to the core requirement of citizenship attestation.
9. We note also that rigorous statistical analysis of the current voter roll reaffirms the conclusions drawn above because they underscore the typicality of Ghana’s current voters’ register from an international comparative perspective. The ratio of registered voters to total population (RV/TP) in Ghana is very close to 56%. If one adjusts for the number of deceased persons on the register (it is important to bear in mind, however, that due to biometrics, deceased persons are functionally removed anyway), the resultant ratio becomes 53% . Curiously, some commentators continue to persist in claims that the current voters’ register is bloated. A detailed comparative analysis of voter statistics from around the world suggests otherwise because it shows that the RV/TP ratio is influenced by the level of competitiveness in national politics, the urbanisation rate and urban population ratio, the degree of investment into the electoral system, and whether the voter ID card can be used for other identification purposes besides voting. A random sampling of countries based on this analysis, in this case merely using alphabetical order, is produced below to further illustrate the point: – See attached imagery re.
It would be observed from the table that the more a country’s attributes align in one direction of the four variables listed above, the lower or higher its registered voter population to total population ratio would be. Consider that the ratio in the case of Benin is 47%, that of Mali 44.5% and that of Liberia 46%, whilst that of Burkina Faso is a mere 26% and that of Angola 30%. Countries closer in democratic and technocratic features to Ghana, like Tunisia and Cape Verde, record an impressive 60% and 66% respectively.
10. The consistency with which these statistical results play out under analysis suggest that the perception of citizenship attestation being a lower-risk activity from a general accuracy point of view is correct. Most voter registers around the world and in Africa reflect democratic and technocratic realities rather than the forensic and security measures deployed by their minders. For this reason, measures for citizenship attestation compared to legal identity authentication, tend to be liberal and maximalist in all well-functioning democracies. In most advanced countries, any means of evidencing citizenship is acceptable. In many states in America, identity cards are not even a requirement. Analysis of these types of policy science issues, though highly germane to the matter at hand, has unfortunately not been sufficiently present in the current submissions made by various parties in various proceedings currently pending before this esteemed Court.
11. Wherefore, Amicus wished to have been granted hearing to expound more on the submissions made in this executive summary and further elaborated.
Research by the United Nations supports these anxieties. See, for example: https://unsdg.un.org/sites/default/files/2020-05/Policy-Brief-The-Impact-of-COVID-19-on-Older-Persons.pdf
2 Devermont, Judd. 2020. “Pandemic at the Polls”. March 30th, 2020. Center for Strategic & International Studies.
3 A fact acknowledged by the Minister of Foreign Affairs herself. Please see: https://allafrica.com/stories/202006180549.html
4Shalabi and Another v. The Attorney-General  1 GLR 259; Olympio v. Commissioner for the Interior, High Court, Accra, 30 July 1969, Unreported; Digested In (1970) C.C. 4
5Data available from the National Data Portal, accessible here: https://data.gov.gh/dataset/census-data-foreign-nationals
6 We arrive at this conclusion by the following analysis: the death rate in Ghana is 7.7 per 1000 people (page 16 of the latest Ghana Mortality Report published by the Ghana Statistical Service, and available here: https://statsghana.gov.gh/gssmain/fileUpload/pressrelease/Mortality%20in%20Ghana.pdf). Since the last mass registration in 2012, the number of voting age persons who have died is 1.156 million (based on the age-specific death statistics). We then adjust this number to account for the number of voting age individuals that are registered).