AHUMAH OCANSEY vs. THE ELECTORAL COMMISSION AND CENTRE FOR HUMAN RIGHTS & CIVIL LIBERTIES vs. THE ATTORNEY-GENERAL & ANOR. [2010]DLSC6138

AHUMAH OCANSEY vs. THE ELECTORAL COMMISSION AND CENTRE FOR HUMAN RIGHTS & CIVIL... [2010]DLSC6138

Date	2010-03-23
Suit No.	WRIT NO. JI/4/2008
Citation No.	[2010]DLSC6138

WOOD (MRS) CJ (PRESIDING)

DATE-BAH (DR) JSC

OWUSU (MS) JSC

DOTSE JSC

ANIN YEBOAH JSC

AHUMAH OCANSEY PLAINTIFF IN PERSON IN THE 1ST SUIT.

KOJO GRAHAM FOR THE PLAINTIFF IN THE 2ND SUIT.

SAMUEL N. TETTEH CHIEF STATE ATTORNEY FOR THE 1ST DEFENDANT IN THE 2ND SUIT.

JAMES QUARSHIE-IDUN FOR THE DEFENDANT IN THE 1ST SUIT AND 2ND DEFENDANT IN THE 2ND SUIT.

[2010]DLSC6138
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													<main id="main" class="content" style="min-height: 60rem" >AHUMAH OCANSEY<o:p></o:p>vs.<o:p></o:p>THE ELECTORAL COMMISSION
AND CENTRE FOR HUMAN RIGHTS &amp; CIVIL LIBERTIES<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL
&amp; ANOR.<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

WRIT NO. JI/4/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 23RD MARCH, 2010<o:p></o:p>

JAMES
QUARSHIE-IDUN FOR THE DEFENDANT IN THE 1ST SUIT AND 2ND DEFENDANT IN THE 2ND
SUIT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>WOOD
(MRS) CJ (PRESIDING), DATE-BAH (DR) JSC, OWUSU (MS) JSC, DOTSE JSC, ANIN YEBOAH
JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>WOOD (MRS), CJ <o:p></o:p>These
two consolidated cases raise important constitutional questions pertaining to
the right of prisoners to vote in public elections and referenda, pursuant to
article 42 of the 1992 Constitution, as do other citizens of the Republic, save
those below the age of eighteen years, and persons of unsound mind. <o:p></o:p>SUIT NUMBERED J/1 5/
2008-(THE CHURCIL CASE) <o:p></o:p>In
the suit numbered J1/5/2008, instituted by The Centre for Human Rights and
Civil Liberties (CHURCIL), pursuant to article 2 (1) of the Constitution, this
court is being invited to determine the question in relation to persons being
held in prisons and who are usually referred to as remand prisoners. These are
persons who have been arraigned before court on criminal charges, are awaiting
trial, but are being kept in prison custody, i. e. legal custody, on court
orders.&nbsp; Incidentally, not all remand
prisoners are detained in prisons Contrary to the law; some spend their period
of detention in police cells. CHURCIL is an advocacy- based organisation, dedicated
to the promotion of human rights and the protection of civil liberties through
a number of activities including public interest litigation. CHURCIL’s action
was triggered by the decision of the Electoral Commission (E C), to preclude
remand prisoners from exercising their electoral franchise in the then upcoming
December 2008 elections, in full recognition of their voting rights under
article 42 of the Constitution, unless otherwise ordered by a court of
competent jurisdiction to allow them to do so.&nbsp;
The Commission had persistently refused to heed to the calls of human
rights activists and organisations to respect the voting rights of remand
prisoners on the basis that the electoral laws of Ghana, particularly s. 7 (5)
of The Representation of The People Law, 1992, P. N. D. C. L.284 (PNDCL 284),
disqualify prisons as places of residence for purposes of voter registration, a
pre-requisite to voting, thus effectively disenfranchising remand prisoners. <o:p></o:p>By
this court’s decision in NPP v A-G (CIBA case) [1996-97] SCGLR 729, the word
“person” appearing in article 2 (1) of Constitution, encapsulates natural and
artificial or corporate persons. CHURCIL declares its corporate status as a
not- for- profit civil society organisation and as plaintiff prays for the following
reliefs: <o:p></o:p>1. "A declaration that section
7(5) of the Representation of the People Law, 1992 (PNDCL 284) is inconsistent
with, and in contravention of Article 42 of the 1992 Constitution, and that
consequently, to the extent of such inconsistency the said PNDCL 284 is void; <o:p></o:p>2.&nbsp;
A declaration that section 7(5) of the Representation of the People Law
(PNDCL 284) is null and/or void because the enactment was made in excess of the
powers conferred on Parliament by section 93(2) of the 1992 Constitution, or
any other head of legislative power; <o:p></o:p>3. A declaration that section 7(5)
when read together with section 8 of PNDCL 284 is inconsistent with and in
contravention of article 17(1) and 17(2) of the 1992 Constitution and that
consequently, to the extent of such inconsistency the said PNDCL 284 is void. <o:p></o:p>4. Consequential orders in exercise of
the Supreme Court’s jurisdiction under article 2(2) of the 1992 Constitution
compelling/ordering the Electoral Commission to exercise its constitutional
powers under the electoral laws and where necessary under article 45 of the
Constitution to facilitate and ensure the registration for effective voting of
all remand prisoners entitled to vote by reason of article 42 of the
Constitution.” <o:p></o:p>SUIT
NUMBERED J/1/4/2008 <o:p></o:p>The
second action, numbered J1 / 4/ 2008, is at the instance of Ahuma-Ocansey, a
private legal practitioner.&nbsp; He instituted
the action, in his capacity as a citizen of Ghana, and an advocate of
prisoners’ rights.&nbsp; The reliefs he
sought, though substantially the same as CHURCIL’s, is broader in scope; to the
extent that his action covers all categories of prisoners, that is, both remand
and convicted prisoners.&nbsp; It is also not
restricted to the 2008 elections, but all future public elections, including
all bye elections and referenda. He sought the following declaratory reliefs: <o:p></o:p>