PHILIP KWAKU APALOO vs. ELECTORAL COMMISSION OF GHANA [2001]DLSC2371

Date	2001-01-17
Suit No.	WRIT NO. 5/2000.
Citation No.	[2001]DLSC2371

MRS. J. BAMFORD-ADDO J.S.C. (PRESIDING)

AMPIAH J.S.C.

KPEGAH J.S.C.

ATUGUBA J.S.C

LAMPTEY J.S.C.

PHILIP KWAKU APALOO.

MR. N.K KUDJAWU WITH SENA KUDJAWU (MISS) PER PLAINTIFF.

MR. LYNES QUASHIE LDUN WITH EBOW QUASHIE AND K ADUAMA OSEI FOR DEFENDANT

[2001]DLSC2371
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													<main id="main" class="content" style="min-height: 60rem" >PHILIP KWAKU APALOO<o:p></o:p>vs.<o:p></o:p>ELECTORAL COMMISSION OF GHANA<o:p></o:p>[SUPREME
COURT]<o:p></o:p>WRIT
NO. 5/2000.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
17th January 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
N.K KUDJAWU WITH SENA KUDJAWU (MISS), PER PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MR.
LYNES QUASHIE LDUN WITH EBOW QUASHIE AND K ADUAMA OSEI FOR DEFENDANT<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MRS.
J. BAMFORD-ADDO, J.S.C. (PRESIDING), AMPIAH, J.S.C., KPEGAH, J.S.C., ATUGUBA,
J.S.C., LAMPTEY, J.S.C., PHILIP KWAKU APALOO.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>MRS.
JOYCE BAMFORD-ADDO, J.S.C.:<o:p></o:p>On
the 4th December 2000 this case was heard at the Supreme Court which delivered
unanimous judgment on the same day but reserved the reasons, to be given on the
17th January 2001. Following is my reasons in support of the said unanimous
decision. The plaintiff who claims to be a citizen of Ghana and a registered
voter, issue a writ dated on 29th November 2000 invoking the Original
jurisdiction of this Court under Article 2(1)(b) of the 1992 Constitution for<o:p></o:p>"1. A declaration that the
decision and directives of the Defendant, that only a Photo Identity Card will
be accepted by the Defendant to enable voters to vote at the forth coming
Presidential and Parliamentary elections scheduled to take place on December
7th 2000 or in the alternative that Prospective Voters without a Photo ID will
be permitted to vote only with the unanimous affirmation of the said voters'
identity by the agents of all the candidates as contained in the Gazette Notice
dated November 27, 2000 and the Electoral Commission of Ghana's Guide to
Electoral Officials 2000, is an act of the Defendant which is inconsistent with
or is in Contravention of Articles 42 and 51of the Constitution of the Republic
of Ghana and therefore null and void.<o:p></o:p>2. An order of "perpetual
injunction restraining the Defendant by itself, its servants and agents from
enforcing the Defendants' "No Photo ID Card No vote Directives" or
the directives contained in the Gazette Notice dated 27th November 2000 in
respect of voters without a Voter ID Card contained in the Electoral
Commission's Guide to Election Officials 2000.<o:p></o:p>3. Any other directions as to give
effect to or enable effect to be given to the declaration herein sought"<o:p></o:p>The
basis of the plaintiff's claim is that even though numerous eligible voters in
the country were in possession of Thumbprint identity cards who have not as yet
been issued with Photo identity cards the Defendant had decided and published
in a Gazette Notice dated 27th November 2000, directives, that in the
forthcoming Presidential and Parliamentary elections scheduled for 7th December
2000 only photo identity card holders will be allowed by the Defendant to vote.<o:p></o:p>That
the Defendant had further directed that a prospective voter without a Photo ID
Card will only be permitted to vote with the unanimous affirmation of the said
voters identity, by all the candidates/party agents, that they know that person
as stated in the Guide to Election Officials 2000 at p. 24 Par. 1.2.<o:p></o:p>That
the act of the Defendant is inconsistent with or is in contravention of the
provisions of Articles 42, 51 and 296 of the Constitution as the said directives
contained in the said Gazette Notice are not in the form of a Constitutional
Instrument as required under Article 51 of the Constitution.<o:p></o:p>The
Defendant Commission on the other hand contended that in the attempt to ensure
proper identification of voters it was decided to replace the Thumbprint IDs
with Photo IDs and that this exercise began before the 1996 Elections but was
not completed so in 1999 the exercise was again mounted for the replacement of
Thumbprint ID cards with photo ID cards before the next Elections. The
Defendant continued that the said exercise commenced in all part of the country
by concentrating on one Region at a time in the ten regions and ended with
Greater Accra Region on the 18th November 2000.<o:p></o:p>That
after the 18th November 2000 voters who had lost their photo ID Cards could go
for replacement of photo ID Cards until 30th November 2000 which was extended
to Sunday 3rd December 2000. The Defendant did not deny that every registered
voter had been issued with a photo ID card at 3rd December 2000.<o:p></o:p>However
the Defendants admitted in Par. 6 of the Statement of Defendant's case that:<o:p></o:p>"6. In answer to paragraph 5, 6,
7 and 8 of the Plaintiffs Statement of case, the Defendant avers that in
Regulation 30 of the Public Elections Regulations 1996 (C.I. 15) as also in
Regulation 11 of the Public Elections (Regulation of Voters Regulation 1995
(C.I. 12), the Defendant made Regulations concerning the production by a voter
of an identity card or to furnish such other evidence as may be determined by
the Commission to the Presiding Officer before being given a Ballot Paper. The
said Regulation did not particularize the production of either a Thumbprint or
a photo ID card, and the defendant contends that with the replacement of the
Thumbprint ID Cards with Photo ID Cards it was unnecessary for the Defendant's
to publish another Constitutional Instrument."<o:p></o:p>I
wish to state here at once that this defence is untenable because according to <o:p></o:p>"Article 51. The Electoral
Commission shall by constitutional instrument, make regulations for the
effective performance of its functions under this constitution or any other
law, and in particular, for the registration of voters and conduct of public
elections and referenda, including provision for voting by proxy"<o:p></o:p>