The Accra Fast Track High Court Thursday cautioned and discharged the Chairman of the Electoral Commission (EC) and two other officials of the commission of contempt charges brought against them.
The court, presided over by Mr Justice Uuter Dery, discharged the EC Chairman, Dr Kwadwo Afari-Gyan; Mr Sarfo Kantanka, the Deputy Chairman of the EC, and Mr Nicholas Pawiah, the Kasena-Nankana District Electoral Officer, after they had purged themselves by organising biometric registration of some voters in the Kasena-Nankana East District in the Upper East Region.
Costs of GH˘1,000 were awarded in favour of the four applicants.
On Friday, November 30, 2012, the court gave the Chairman of the EC up to Wednesday, December 5, 2012, to conduct biometric registration for some 3,000 voters in the Kasena-Nankana municipality or face its wrath.
That was after it had found the EC Chairman and the other two officials guilty of contempt for disregarding an order to conduct biometric registration of the voters in the area.
The court suspended its sentence until Wednesday to enable the respondents to purge themselves.
After the court had given an order to the EC at its sitting on Friday November 30, the EC quickly issued a press release and made announcements that it was organising the biometric registration in the affected areas from Monday to Wednesday.
But the reality is that the about 3,000 eligible voters cannot vote in the general election tomorrow, because the Public Election (Registration of Voters) Regulation 2012 (CI 72) debars voters who register less than 60 days to an election from taking part in such exercise.
According to Regulation 9 (5) of CI 72 on "Period to Vote", the EC shall not include in the register of voters the name of the person who qualifies to register as a voter for an election but who registers less than 60 days to that election.
Delivering the sentence Wednesday, Mr Justice Dery said the court's order to the respondents to organise the registration exercise did not go further to say that the applicants and others in the affected area should participate in Friday's elections.
He said if there were legal impediments in their way that were not affected by the order and that if the names of the applicants and those affected had been entered in the voters register on October 18, 2012, the date of the judgement, they would still not have been eligible to partake in the election.
"The court cannot make an order contrary to statute," he said, and accordingly cautioned and discharged the respondents.
Mr Ekow Dadson, counsel for the applicants, had prayed the court to deal harshly with the respondents since they had deliberately refused to register all those affected.
He said as of Thursday only 900 of them had been registered, noting that there had been mild or feeble attempts by the respondents at purging themselves.
He said provisions in CI 72 which debarred the applicants and other people from voting were not applicable in the case, since the CI was a subsidiary legislation whose provisions could not supercede the guaranteed rights of citizens enshrined in the 1992 Constitution and that it did not have retrospective effect.
According to him, the rights of the people accrued long before CI 72 was passed and, therefore, the 60 days rule commenced from when the rights accrued.
Lead counsel for the EC, Mr James Quashie-Idun, indicated that soon after the court's ruling on Friday, steps were taken to have those affected registered and that on the day the court's judgement was given, the 60 days rule would have caught them and debarred them from voting even after they had been registered.
He said the registration exercise was only one aspect of a process and urged the court to consider the fact that the respondents moved expeditiously to register 900 voters on the first day of the exercise.