On rights of prisoners to vote

NGO OPPOSES EC AT SUPREME COURT
...As gov`t insists their franchise should not be allowed
Posted: The Chronicle | Monday, June 22, 2009



By Charles Takyi-Boadu
All is set for the Attorney-General (A-G) and the Electoral Commission (EC) on one hand, and the Centre for Human Rights and Civil Liberties (CHURCIL) on the other to battle it out at the Supreme Court on July 7, this year, in a landmark suit brought against the state.

The suit, which was brought against the A-G (1st defendant) and the EC (2nd defendant), was filed by CHURCIL (plaintiff), a non-governmental organisation (NGO) committed to upholding the rights of remand prisoners, for the court to determine whether or not to give remand prisoners the right to vote.

But, even before the date set for the final hearing, the Government of Ghana (GOG) has, through its agents, the AG and the EC, have stated its opposition to the writ, which seeks to advocate for remand prisoners to have voting rights.

The Attorney-General says the fact that prisoners have the right to vote in some jurisdictions “should not ‘ipso facto’ give prisoners the right to vote in Ghana,” stressing that “the absence of the right to vote by prisoners is not a curtailment of their rights under the constitution.”

In her response to the suit filed by CHURCIL, the A-G noted: “in the attempt to get them to exercise the franchise, we do not forget the pain, the mental agony, despair and experiences of a vast majority of Ghanaians, who have at one time or the other been victims of criminals, and their hope, desire and expectations that criminals pay for their crimes.”

This was contained in a response filed by Chief State Attorney, Samuel Neequaye-Tetteh, on behalf of the A-G.

CHURCIL, represented by Kojo Graham of Law Group and Co, is seeking for a declaration, among others, that section 7 (5) of the Representation of the People Law, 1992 (PNDC 284) was inconsistent with, and in contravention of Article 42 of the 1992 Constitution, and that consequently, to the extent of such inconsistency the said PNDCL 285 is null and void, emphasising: “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.”

It is also seeking 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 to vote by reason of Article 42 of the Constitution.

It is the argument of Kojo Graham that section 7 (5) of law 284 was discriminatory in terms of article 17, because law 284, as amended, grants exemption of the same electoral laws and thereby creates a classification based on social status or standing, referring to the Representation of the People (amendment) Act, 2006 (Act 699) which exempts Ghanaians living abroad from the residency requirement of the same electoral law.

Considering the fact that this Act was enacted only recently, to give Ghanaians in the diaspora the right to vote, which had been guaranteed them by the Constitution since 1992, the A-G argues that whatever rights citizens have under Article 42 of the Constitution, those rights granted can only be exercised when the necessary procedures have been put in place by the EC.

For this reason, the A-G submitted: “those rights should not be granted to persons who have deliberately violated the laws of the land and the rights of other citizens.”

That notwithstanding, lawyers for CHURCIL noted: “if the impugned provision is ultimately found to be unconstitutional and void, the plaintiff respectively prays this honourable court to order the Electoral Commission to take steps and measures to ensure effective exercise of the universal adult suffrage of all remand prisoners in the upcoming 2008 elections.”

However, solicitors for the EC, Lynes Quarshie-Idun and Co, believe their client was not a substantive defendant in the instant suit, but was only a nominal, but submitted that the impugned provision is a common provision found in electoral laws, which is designed to prevent voter registers and electoral statistics in polling districts, in which prisons etc., are located from being inflated by reason of the location of prisons etc., in those districts, describing it as completely illogical.

In the light of the above, the EC says “it would be in order for this honourable court to strike out the 2nd defendant as a defendant in this suit, to enable the plaintiff to pursue his reliefs, if such reliefs are indeed valid, against the 1st defendant and to release the 2nd defendant, thereby enabling it to carry out its duties to the nation.”