Case of the week: Prisoners’ Right to vote affirmed

Supreme Court · Writ Nos. J1/4/2008 & J1/5/2008 · 23rd March 2010 · Ghana Ahumah Ocansey v. The Electoral Commission Centre for Human Rights & Civil Liberties (CHURCIL) v. Attorney-General & Electoral Commission

Introduction:

This landmark case tested the strength of Ghana’s constitutional guarantees, asking can parliament or administrative rules strip prisoners of the right to vote when the constitution does not? The supreme court’s resounding answer was no.

Background and Facts of the case:

These consolidated constitutional cases were initiated by Ahuma Ocansey, a legal practitioner and prisoners’ rights advocate, and CHURCIL, a civil society organisation. Both actions challenged the Electoral Commission’s refusal to register prisoners – both remand and convicted—to vote in public elections, including the 2008 general elections.

The EC had relied on section 7(5) of the Representation of the People Law, 1992 (PNDCL 284) and section 1(d) of C.I. 12, which excluded prisons as places of residence for voter registration purposes. This effectively disenfranchised prisoners who, due to long custody periods, could not meet the residency requirement for voting.

CHURCIL’s suit focused on remand prisoners, while Ahuma Ocansey’s action extended to all categories of prisoners. Both argued that the EC’s actions violated Article 42 of the 1992 Constitution, which grants the right to vote to all citizens of sound mind above eighteen, with no express exclusion of prisoners.

Legal issue

The core legal issue was whether the electoral commission’s exclusion of the prisoners from registering to vote, based on statutory and regulatory provisions, violated Article 42 of the 1992 constitution, which guarantees the right to vote to all citizens of sound mind aged eighteen and above. Specifically, could subordinate legislation override this constitutional right without express constitutional authority?

Holding:

The Supreme Court held in favor of the plaintiffs, holding that:

1. Section 7(5) of PNDCL 284 and section 1(d) of C.I. 12 are unconstitutional to the extent that they deny prisoners the right to vote.
2. Article 42 of the Constitution guarantees the right to vote to all citizens, with exceptions only for persons below eighteen or of unsound mind.
3. The EC’s reliance on subordinate legislation to exclude prisoners was an unjustifiable infringement on a constitutional right.
4. Prisons, though not designated polling divisions, must be accommodated within the electoral process in accordance with constitutional mandates.

The Court emphasized that any law limiting constitutional rights must pass the proportionality test and be demonstrably justified in a democratic society. The EC failed to show any compelling public interest reason for denying prisoners their right to vote.

Implications of the Decision:

This landmark decision affirms that:

1. Voting is a constitutional right for all citizens of sound mind over eighteen – even prisoners.
2. Subordinate legislation cannot override constitutional guarantees. The principle of constitutional supremacy renders any conflicting law void to the extent of inconsistency.
3. Ghana joins other democracies in recognizing the political rights of prisoners, contributing to a more inclusive democratic system.
4. The Electoral Commission is mandated to facilitate voter registration for prisoners, regardless of their conviction status.

Significant Quote:

“The express provisions of article 42 of the Constitution confer the right to vote on all Ghanaians, save those below eighteen years and persons of unsound mind. The denial of this right to prisoners is inconsistent with our democratic values.“

– WOOD CJ

Commentary/Insight:

This case is a major victory for constitutional and human rights jurisprudence in Ghana. It affirms the universal nature of suffrage and underscores the judiciary’s role in protecting rights against arbitrary administrative or legislative limitations. Importantly, it reorients the EC’s responsibilities, ensuring that democracy remains participatory and inclusive, even for incarcerated citizens, and that the EC is constitutionally obliged to develop mechanisms for prisoner voter registration in all future elections.