Can Ghana’s Electoral Commission compile a “credible” voters’ register?

Ahead of Ghana’s 2020 election, the Electoral Commission (EC) set out to compile a new voters’ register. The EC contends that the existing register has credibility issues as there were no due processes to ensure that it was only citizens who enrolled in the past. The compilation of a credible voters’ register is a crucial step in the electoral process. A credible register prevents the inclusion of ineligible voters and the omission of eligible voters. This is likely to support more democratic elections. However, given the complexities of ascertaining Ghanaian citizenship, there are concerns that the processes by which the new register is updated may undermine the purpose of ensuring that only those eligible to vote are included.

Exercising its constitutional discretion and independence, the EC defined two key mechanisms for registering citizens. First, individuals would have to prove their citizenship by either presenting a passport or national identification card (henceforth, Ghana card). Second, two registered persons can serve as guarantors for the registration of ten other persons who have neither a passport nor Ghana card. To the EC, these voter registration methods would guarantee the credibility of the register and ensure that only Ghanaians have the entitlement to register and vote, consistent with Article 42 of Ghana’s 1992 Constitution.

There have been objections to this approach. The National Democratic Congress (NDC), and one private citizen, Mark Takyi-Banson, filed a suit against the EC in the Supreme Court. The NDC demanded the inclusion of the existing voters’ ID cards in the EC’s registration methods, whereas Takyi-Banson argued for the inclusion of birth certificates and existing voter ID cards.

However, the Court dismissed the NDC’s and Takyi-Banson’s suits, arguing that existing voters’ ID cards and birth certificates are not proofs of citizenship and should, therefore, be excluded from the EC’s voter registration methods. Moreover, the Court suggested that, unless there is clear evidence of an unconstitutional act by the EC, the Court cannot order the Commission to adapt their approach even if there is a more efficient method or mode available to update the voters’ register.

This ruling seemingly endorses the EC’s authority in deciding who gets to vote in Ghana’s elections. Yet, the EC’s methods for compiling the register have fundamental flaws. This may contradict the very purpose for which it set out to produce an updated register, to include only eligible voters.

Interrogating the EC’s methods.

The EC’s defence of passports and Ghana cards as voter registration methods is indicative of its faith in how these methods could produce a credible and reliable register. However, the Court’s condemnation of existing voter ID cards and birth certificates as identification methods for voter registration provides further complications for the EC due to their role in the issuance of passports and Ghana cards.

For example, Ghana’s Passport Office accepts birth certificate as a proof of Ghanaian citizenship for passport application. Nevertheless, the country’s Birth and Death Registry issues birth certificates to Ghanaians and non-Ghanaians, implying that not all Ghanaian passport holders are citizens. The Passport Office may have internal mechanisms to verify applicants’ citizenship, but these are unclear. Therefore, foreigners who have access to Ghanaian birth certificates could also apply for Ghanaian passports. The Court’s disapproval of a birth certificate as a proof of citizenship potentially invalidates a passport as a citizenship document.

Similarly, the National Identification Authority (NIA) recognises three primary verification documents for Ghana card application, namely: a birth certificate; passport; and citizenship certificate. Although a birth certificate is the most commonly used, the NIA also accepted existing voter ID cards for the Ghana card application mostly because many Ghanaians lack the primary verification documents outlined above. Thus, since the Ghana card hugely depends on birth certificates and existing voter ID cards, there are concerns that this card is unsuitable in authenticating a person’s citizenship and their right to register to vote. In this regard, it is unclear why the EC would approve the Ghana card as fit for compiling a reliable voters’ register.

Consequently, the EC’s sanctioning of a passport and Ghana card as voter registration methods is logically, if not legally, tenuous and further problematizes the provision that two registered citizens can guarantee for the registration of ten other persons. In the light of legal definitions of citizenship, these voter registration methods become conspicuously puzzling.

How is citizenship defined?

Chapter three of the Constitution and the Citizenship Act, 2000 (Act 591) define citizenship in six ways: First, persons who were Ghanaians before the Constitution came into force continue to be citizens. Second, people became citizens if one parent or grandparent is, or was, a Ghanaian citizen before the promulgation of the 1992 Constitution. Third, a child of seven years or under, whose parents are unknown, is presumed to be a Ghanaian citizen. Fourth, a non-Ghanaian child, sixteen years or below, adopted by a Ghanaian citizen, becomes a citizen by adoption. Fifth, citizens of other countries can also become citizens of Ghana (dual citizenship). Sixth, non-Ghanaians can register or naturalize to become Ghanaian citizens.

These definitions make it hard to verify a person’s citizenship based on an identification document such as a passport, Ghana card or even birth certificate. Essentially, the question of who gets to vote in Ghana is a complex one. The only document that arguably conclusively proves citizenship is naturalization or registration certificate. However, it is unrealistic for the EC to sanction only registration and naturalization certificates to compile a credible register, because few Ghanaians acquire citizenship by registration or naturalization.

The process of updating the electoral register in Ghana is, therefore, beset by numerous challenges. Given that passports and Ghana cards are inadequate verifications of citizenship, it is apparent that the EC’s methods are unlikely to produce a credible register without violating Article 42 of the Constitution, which reserves the right and entitlement to register as a voter to citizens alone. If Article 42 is breached, then the EC might have also abused its independence and discretionary powers granted in Articles 46 and 296 of the Constitution.

While constitutional lawyers can best address these rising legal matters, the EC cannot debatably compile a credible and reliable register with the methods it has chosen.

Complications and way forward. 

Given the analysis above, a potential lawsuit challenging the EC’s methods for compiling the new voters’ register could result in a Supreme Court order for the EC to change its methods if the Court regards the Commission’s methods as unconstitutional.

However, such a directive may stop the EC from compiling a new register, since the only conclusive proofs of citizenship [i.e. naturalization and registration certificates] are also not ideal for producing a credible register. Under these circumstances, a constitutional crisis could arise in Ghana, because there cannot be an election without a voters’ register.

To navigate this crisis requires a consensus to use the existing register. Despite its credibility challenges, this register appears legitimate given that it allowed for the election of the NDC in 2012 and the governing New Patriotic Party in 2016. Returning to the existing voters’ register would, therefore, minimise the risk of election disputes arising from perceived manipulation.

Isaac Haruna Ziaba is a PhD candidate with the LSE’s International Development Department. His research examines the political economy of Artisanal and Small-scale Mining (ASM) in Africa. Isaac worked as a research and project officer, with the Institute for Democratic Governance (IDEG), Ghana, for 2 years.