What is the Legal Effect of ……

Feature Article of Tuesday, 9 April 2013

Columnist: Jajah, Mahmoud

…. “The voter shall go through a biometric verification process”?

I have listened to countless commentators discuss the election petition currently before the Supreme Court of Ghana. And I have in equal measure (if not more) read about same, and yet I’m yet to be convinced that John Dramani Mahama “did not” win the December 2012 elections. I am not going to discuss the merit or demerit of the petition as I will be violating the basic rule of sub-judice if I delve into it.

> However, my interest, as a student of the law is to briefly raise some possible legal challenges of the now famous Regulation 30(2) of C.I.75 (Public Election Regulations, 2012).

Regulation 30(2) of C.I.75 says that “The voter shall go through a biometric verification process.” In other words, no registered voter should be allowed to vote without first and foremost going through a biometric verification process. This provision is very clear, and the use of the word “shall” makes it mandatory for all voters to be verified biometrically before being allowed to vote.

What is not clear, however, is the effect of non-compliance of Regulation 30(2). Under our criminal jurisprudence, we do not punish a person except the offence is “defined and the PENALTY (emphasis mine) for it is prescribed in a written law.” Regulation 30(2) state the law, which is “The voter shall go through a biometric verification process.” Now, what is the “Penalty” as stated in any written law for the violation of this Regulation? Since the “Penalty” for it has not been defined by any written law, can one be punished, or at least can a vote be rejected on the basis that it did not go through a biometric verification process? What is a “rejected” ballot under our laws?

The issue of what constitute a “rejected ballot” have been dealt with under Regulation 37 of C.I.75. According to the relevant provisions:

“(1) A ballot paper shall subject to subregulation (2) be void and not counted if the ballot paper (a) does not bear the official mark of the Commission; or

(b) is not thumbprinted by the voter to clearly identify the candidate for whom the vote was cast; or

(c) is not thumbprinted at all; or

(d) has on it a writing or mark by which the voter could easily be identified.”

Clearly, base on the aforementioned provisions, one can argue that voting without going through biometric verification process DOES NOT constitute a rejected ballot or an invalid ballot since it was not stated under Regulation 37. The law is silence on that, and did not make any provision for curing the mischief. In my view, to the extent that the law fails to provide the remedy or the punishment for not going through a biometric verification process, the Electoral Commission should have the discretion to deal with such votes that failed the test of Regulation 30(2). It will be unconstitutional to punish all those who did not go through biometric verification process as that will be in clear violation of Article 19(11) of the Constitution, 1992.

In the meantime, lets see how the lawyers will be arguing out on this particular issue, and how the Supreme Court is going to deal with the matter.

Mahmoud Jajah is a law student at the MountCrest University College in Accra. He can be contacted through [email protected] or at www.mahmoudjajah.com > >