A constitutional lawyer and former Member of Parliament (MP) for Kumawu, Yaw Baah, has criticised the procedure used by Parliament to ensure that the guarantor system becomes one of the means through which a Ghanaian can register to vote.
He said the legislative body could not compel the Electoral Commission (EC) to include the guarantor system in the Constitutional Instrument (C.I.) for continuous voter registration, which the electoral body sought to lay before the House.
He said Parliament’s suggestion that the EC should include the guarantor system in the C.I. was, at best, a recommendation, which the electoral management body was not bound by any law to follow.
“If Parliament insists that its decision for the EC to include the guarantor system is binding, then the exercise it undertook on March 31 by voting to recommend to the EC to include the guarantor system is unconstitutional.
The recommendation is an opinion by Parliament,” he said.
Mr Baah premised his argument on Article 11(7) of the 1992 Constitution, the constitutional provision on subsidiary legislation, and the Supreme Court decision in Nii Tetteh Opremreh v EC and A-G, which interprets and enforces the said provision.
In that particular case, he said, the Supreme Court — speaking through Justice Sulemana Gbadegbe — distinguished between Article 11(7), which restricts Parliament’s powers with regard to subsidiary legislation, and Article 106(6) of the Constitution which gave Parliament the power to amend any substantive legislation.
In an exclusive interview with the Daily Graphic, Mr Baah — a former Chairman of the Legal, Constitutional and Parliamentary Affairs Committee of Parliament — said Parliament, per Article 11(7) of the 1992 Constitution, had the power to only annul subsidiary legislation, including C.I.s.
Recommendation by Parliament in respect of subsidiary legislation, he said, were only persuasive but not binding on the entity sponsoring the legislation.
In line with Article 11(7) of the 1992 Constitution, the EC is seeking to lay a C.I. before Parliament to regulate the continuous voter registration exercise.
Per Article 11(7), the C.I., which seeks, among other things, to make the Ghana Card the sole identification document for the exercise and the only means for registration when laid in Parliament, will come into force after 21 sitting days, except the House annuls it by a vote of not less than two-thirds of all Members of Parliament (MPs).
Mr Baah said in the case of Nii Tetteh Opremreh v EC and A-G, the Supreme Court — in interpreting and enforcing Article 11(7) of the Constitution — held that apart from annulment, other acts by Parliament such as amendment, variation or change in a subsidiary legislation was unconstitutional.
According to him, the insistence by Parliament for the EC to include the guarantor system before the C.I. would be considered not an annulment and, therefore, technically the House had no power to force it down the throat of the EC as that would sin against Article 11(7) of the 1992 Constitution as enforced by the Supreme Court in the case of Nii Tetteh Opremreh v EC and A-G.
“The Supreme Court has ruled that if Parliament does not take advantage of the annulment power under Article 11(7) of the 1992 Constitution, it cannot do any other thing that is binding on the body that presented the subsidiary legislation.
“The Supreme Court was emphatic that when it comes to subsidiary legislation, Parliament is only a conduit through which constitutional bodies vested with power can bring a subsidiary legislation into force,” he said.
Pre-laying
As part of the pre-laying process of the C.I., the Public Elections (Registration of Voters) Regulation, 2023, Parliament rejected the EC’s decision to make the Ghana Card the sole means for the registration.
The House unanimously recommended to the EC to include the guarantor system in the C.I. before it could present it for consideration.
Legislators were of the view that unless and until the challenges confronting the issuance of the Ghana Card were dealt with, using the card as the only medium of voter registration would negatively impact the electoral roll and thereby deny some otherwise qualified persons from registering to vote.
The House took the decision after legislators adopted the report of the Committee of the Whole on the draft C.I.
The report was signed by the Chairman of the Committee of the Whole, Alban Sumana Kingsford Bagbin, who is also the Speaker of Parliament,
Soon after the House had adopted the Committee of the Whole’s report, the Speaker said the House would now not depend on the assurances from the EC or the NIA, but “we are now making inputs into the preparation of the C.I.”.
No legal effect
However, Mr Baah, who is also a former Chairman of the Judicial Committee and former Vice-Chairman of the Subsidiary Legislation Committee of Parliament, was of the view that although Parliament had a right to go through a pre-laying process for the C.I., the decision made during the pre-laying process had no legal effect.
In view of that, he said, the report of the Committee of the Whole of the House and its subsequent acceptance by the House for the EC to include the guarantor system was not binding.
“Article 11(7), as interpreted and enforced by the Supreme Court in Nii Tetteh Opremreh v EC and A-G, is the current case law governing subsidiary legislation.
Therefore, whatever exercise undertaken by Parliament in respect of unanimously agreeing for the EC to include the guarantor system was not necessary because it would not have any legal impact.
He also wondered why Parliament unanimously voted to recommend to the EC to include the guarantor system when the C.I. had not been properly laid before the House.
Mr Baah said if Parliament was not happy about the exclusion of the guarantor system from the C.I., the lawful procedure was for the House to allow the EC to lay the C.I. and then annul it by two-thirds majority as stipulated by Article 11(7) of the Constitution and interpreted in Nii Tetteh Opremreh v EC and A-G.