March 23, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In these consolidated constitutional suits, the Supreme Court of Ghana addressed whether prisoners may vote under Article 42 and whether statutory and regulatory provisions disenfranchising them are valid. The Centre for Human Rights and Civil Liberties (CHURCIL) challenged PNDCL 284 s.7(5) and CI 12 s.1(d) for denying prisons as places of residence for voter registration, focusing on remand prisoners, while Ahumah Ocansey sought relief for all prisoners. The Attorney-General defended the provisions on residency and public interest; the Electoral Commission questioned its role. Applying a purposive interpretation, strict scrutiny of rights limitations, the effect test, and the proportionality (Oakes) test, the Court unanimously held that Article 42 confers universal suffrage that includes prisoners of sound mind, invalidated the impugned provisions to the extent of inconsistency, and ordered the Electoral Commission to make regulations enabling prisoners to register and vote. The Court rejected mootness and public interest arguments and emphasized the Constitution’s supremacy over subordinate laws.
J U D G M E N T
WOOD (MRS), CJ:
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.
SUIT NUMBERED J/1 5/ 2008-(THE CHURCIL CASE)
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. 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. 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.
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:
“A declaration that section 7(5) of the Representation of the People Law, 1992 (PNDCL 284) is inconsistent with, and in contravention of Article