In exercising the powers conferred on the Electoral Commission by Article 51 of the Constitution of Ghana, the Commission drafted the PUBLIC ELECTIONS REGULATIONS, 2012 (i.e., Constitutional Instrument 75). It was laid before Parliament on August 14, 2012, approved on September 26, 2012, and came into force on September 28, 2012:

http://www.judicial.gov.gh/images/stories/File/C.I.%2075.pdf

The illegality of voting without biometric verification, as claimed by the NPP, is based on Regulation 30 of C.I. 75.

Section 30 (1) of C.I.75 provides that “A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce (a) a voter identification card, or (b) any other evidence determined by the Commission, in order to establish by fingerprint or facial recognition that the person is the registered voter whose name and voter identification number and particulars appear in the register.”

Section 30 (2) requires that “The voter shall go through a biometric verification process.”

Section 18(1) also requires that “The returning officer shall provide a presiding officer with: (a) a number of ballot boxes and ballot papers; (b) a biometric verification equipment; and (c) any other equipment or materials that the Commission considers necessary.”

A “biometric verification equipment” is defined in C.I. 75 as “… a device provided at a polling station by the (Electoral) Commission for the purpose of establishing by fingerprint the identity of the voter.” The biometric verification process in the December 2012 elections used a “biometric verification equipment”. Parenthesis mine.

The NPP’s interpretation of C.I. 75 must hinge on the argument that section 30(2) of C.I.75 over-rides section 30(1). The latter regulation allows photo ID (facial recognition) as an alternative means of verification. But does section 30(2) over-ride section 30(1)? Or are they complementary regulations/laws?

According to one professor Paul Kuruk (http://www.wanep.org/wanep/wapi-peacebuilding-institute/yearly-wapi/132-faculty-2010.html?start=4also )

http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=260986

“The Public Elections Regulations adopted in 2012 pursuant to Constitutional Instrument 75 (hereinafter referred to as CI 75) provides that “[t]he voter shall go through a biometric verification process.” CI 75, Section 30(2). Significantly, the regulations do not impose specific legal penalties on the voter who fails to go through such a biometric verification process. The regulations certainly do not provide that a vote by such a person would be illegal and should not be counted to determine the results of an election.

Indeed, the types of acts that would invalidate the ballot of a voter are identified in CI 75, Section 37(1) which provides: “A ballot paper shall… be void and not be counted if the ballot paper (a) does not bear the official mark of the Commission; or (b) is not thumb printed by the voter to clearly identify the candidate for whom the vote was cast; or (c) is not thumb printed at all or (d) has on it a writing or mark by which the voter could easily be identified.”
It should be noted that the list in Section 37(1) does not include a ballot paper cast by a voter who has not gone through a biometric verification process. Furthermore, Section 37(1) deals exclusively with the acts and omissions of the individual voter and does not penalise the voter for acts and omissions of others.”

As one Kofi Ata has argued, the objective of biometric verification “… was to stop multiple voting and enhance the principle of Universal Adult Suffrage of “one person one vote” at the elections.”

herefore, I think section 30(2) of C.I.75 was only intended to significantly reduce the incidence of multiple voting. But in situations where a person cannot be biometrically verified (these machines could have about 2% probability of malfunction), section 30(1) of CI 75 was intended to accommodate such cases by using alternative means of verification.

Biometric verification is good for the sanctity of our elections and democracy. However, I don’t think that “No Verification, No Vote” (NVNV) is a sensible principle or interpretation of C.I 75. We have to strike a balance between benefits and costs. The benefit of NVNV is the reduction in the incidence of multiple voting and perhaps impersonation of other voters. The cost is the disenfranchisement of legitimate voters because the biometric machines can either break down or the machine may give a “false negative” (i.e., reject a legitimate voter whose name appears in the biometrically generated manual register). A sensible balance or middle ground is to insist that all voters must be biometrically registered and verified as section 30(2) of C.I. 75 demands. But in about 2 to 3% of cases where the machine may malfunction or breakdown, we should, consistent with section 30(1) of C.I. 75, allow a person to vote based on a photo ID and evidence of his/her name in the manual register (which was biometrically generated). Otherwise, it is very difficult to reconcile 30(1) and 30(2) of C.I. 75. If 30(2) supersedes or precludes 30(1) under every conceivable scenario, then why was 30(1) included in C.I 75?

The preceding argument also explains why the pink forms used in the December 2012 elections had the following question: “Number of ballots issued to voters verified by the use of Form 1C (but not by the use of BVD).” BVD is biometric verification device and Form 1C, I understand, is the photo ID verification/identification in conjunction with manual register (which was biometrically generated).

Under the above interpretation of section 30(1) and 30(2) of C.I. 75, an EC official has no discretion over whether to allow a person to be biometrically verified before casting his/her vote. Consistent with section 30(2) of C.I.75 all “voters shall go through a biometric verification.” An EC official would use a photo ID and the voter’s name in the voters’ register if and only if a prospective voter fails the biometric verification test or the biometric machine breaks down. Voters who fail the biometric verification test because the machine is able to detect that they have already cast their votes will not be allowed to vote.

Section 34(1) of C.I. 75 provides that “Where the proceedings at a polling station are interrupted or obstructed by (a) riot, open violence, storm, flood, or other natural catastrophe, or (b) the breakdown of an equipment, the presiding officer shall in consultation with the returning officer and subject to the approval of the Commission, adjourn the proceedings to the following day.”

Therefore, in the event of a breakdown of an equipment, the EC may decide not to adjourn proceedings. My understanding of section 34(1) is that the EC is allowed to find alternative ways of continuing with proceedings whenever possible so long as they are consistent with the law. Section 34 of C.I.75 is, however, silent on what should be done if there is also a breakdown of equipment on the following day. 

On the preceding point, the EC announced on November 15, 2012, about three weeks before the December 7 elections, that voting would be suspended at any polling station if the biometric verification machine broke down. This was why the EC extended voting at some polling stations to December 8, 2012. According to joyfmonline,“The EC Chairman explained that after considering several options regarding what to do in the event of a breaking down of a verification machine and the views expressed by the political parties on the matter, it has been decided that, “no verification machine, no voting”:

http://politics.myjoyonline.com/pages/news/201211/97325.php

It is important to note that a breakdown of the biometric verification equipment is not necessarily the same as a rejection of a voter by the equipment. Therefore,“no verification machine, no voting”does not necessarily imply “unsuccessful verification, no voting.” It is my view that a voter who fails the biometric verification test should have the right to vote subject to the conditions of section 30(1) of C.I. 75.

Even if the data from the biometric equipment show that the number of voters who were verified by the biometric equipment at a polling station is less than the number of votes in the ballot box at that station, this will not be sufficient evidence of an electoral irregularity unlessthe data from the biometric equipment also includes the number of voters who failed the biometric verification test. The evidence is much less convincing if this alleged electoral irregularity is based on the data recorded on the pink sheets. The NPP has to prove that the “Number of ballots issued to voters verified by the use of Form 1C (but not by the use of BVD)” recorded on the pink sheets refers to persons who did not go through the biometric verification process at all. They may have gone through the biometric verification process and failed the test, but were allowed to vote subject to the satisfying the conditions in section 30(1) of C.I. 75. In situations where the equipment had not broken down, I believe that those who voted without going through the biometric verification process violated the law.

The suspension of voting for several hours (e.g., extension to the following day) when the biometric equipment breaks down may be tantamount to the disenfranchisement of voters. A voter who stood in line for 3 to 4 hours to vote but could not cast his/her vote may not return to vote. We should have an ample supply of back-up biometric machines. The right to vote is useless if it cannot be exercised without incurring a significant cost.

Article 42 of the Constitution of Ghana says that:

“Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”

Therefore, only the following four conditions are required by the constitution for a person to vote in an election or referendum: (1) proof of citizenship, (2) proof that you are 18 or older, (3) proof sound of mind, and (4) your name appears in the voters’ register.

Based on the article 42 of the constitution, biometric verification is sufficient to satisfy (1) and (4) but it is not necessary. The manual voters’ register, hard copies of which were given to the political parties, was generated during the biometric registration exercise in May 2012. Based on the constitution, an acceptable form of identification (e.g., a photo ID) and the appearance of a voter’s name in the register are sufficient to satisfy (1) and (4).

Therefore, it may be unconstitutional to disenfranchise voters who failed the biometric verification test but whose names were in the manual register and whose identities were verified by a photo ID.

Views or opinions expressed by the writer does not necessarily reflect the views or opinions of the management of sankofaonline.com.

 

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