Tuesday, 9th January, 2024

The Chairperson
Electoral Commission, Ghana
Accra.

Dear Madam Chairperson,

NOTICE OF MATERIAL LEGAL BREACH

1. This is to convey my compliments of the new season to you and

your staff.

2. On or about 18th December 2023, news broke of your

administrative directive to the effect that “indelible ink” would no
longer be a feature of authentication in our electoral and voting
process. Indeed, www.myjoyonline.com captured it thus: On
December 18th 2023, the EC announced that in the 2024 elections
and beyond, there would be no need for indelible ink. Speaking at
a press conference, EC chair, Jean Mensa, said this was part of
measures by the Commission to improve the electoral process and
ensure a robust identification system.

The Material Legal Breach

3. I thought this was some cooked joke however, on the appointed

date of 19th December 2023, the day slated for the just ended
District Level Elections, true to the said news, your Commissioners
and staff conducted the said elections without the use of the
“indelible ink” as part of the authentication process of all those
who voted including myself.
4. This deliberate, wilful and intentional refusal to include the
“indelible ink” in the just ended DLE process constituted such a
material breach of our electoral laws and the penal consequences
have to be brought to your attention and to those of your staff
who obeyed this obviously unlawful administrative directive.

5. Article 51 of the Constitution 1992 states:

The Electoral Commission shall, by constitutional instrument,
make regulations for the effective performance of its functions
under this Constitution or any other law, and in particular, for
the registration of voters, the conduct of public elections and
referenda, including provision for voting by proxy.

6. In pursuance of article 51, your Commission gazetted and brought

to Parliament in 2020, a Constitutional Instrument to govern the
electoral activities of the Commission. It was presented and laid,
and after 21 Parliamentary sitting days, the said Constitutional
Instrument matured, got serially numbered as CI 127 and has
since become part of our electoral laws. Regulation 33 of CI 127
mandates as follows:

“33. (1) A voter who desires to vote shall be present at the

allotted station and the presiding officer or a polling
assistant shall, after being satisfied that the voter
(a) is registered and has not already voted, or
(b) is voting as a proxy,
deliver the ballot paper to the voter.
(2) Immediately before the ballot paper is delivered to the
voter
(a) the ballot paper shall be marked with the
official validating stamp of the Commission;
(b) a mark shall be placed on the copy of the
register against the number of the voter to indicate
that the ballot paper has been received; and
(c) a mark which shall so far as possible be
permanent shall be made on the voter.
 (3) The voter on receiving the ballot paper shall
(a) immediately proceed to one of the places set aside in
the polling station for the thumb printing of the ballot
paper;
and
(b) secretly make on the ballot paper an imprint of the
thumb of the voter in the box and column provided for
that purpose directly against the name and symbol of the
candidate for whom the voter wishes to vote.
(4) The voter shall then fold up the ballot paper and in the
presence of the presiding officer and the polling agents and in full
view of the general public cast a vote by putting the folded ballot
paper into the ballot box and leave the polling station.
(5) This regulation applies subject to the provisions on transferred
voters list and special voters list as specified under regulations 22
and 23.”
The above provisions arguably remain the bulwark verification
procedure that protects the sanctity of our electoral system
against fraud-whether internally or externally induced.

7. Regulation 45 sub-regulation 2 of the same Constitutional

Instrument 127 stipulates as follows:

‘An election officer who is required to perform a function

under these Regulations but fails to perform that function
commits an offence and is liable on summary conviction to a
fine of not more than five hundred penalty units or to a term
of imprisonment of not more than two years or to both and
shall for a period of five years from the date of expiration of
the term of imprisonment be disqualified from being
engaged as an election officer.’ Emphasis mine.

8. In Boyefio vrs. NTHC Properties Ltd. [1997-1998] 1 GLR

768-786, SC, the Supreme Court of the Republic of Ghana, held
inter alia, that, “where an enactment had prescribed a
special procedure by which something was to be done, it
 was that procedure alone that was to be followed.”
Emphasis mine.

9. Therefore, the administrative directive to your staffs, to blatantly

ignore the lawful requirement of the use of the indelible ink
much in blatant breach of the very succinct statutory procedure
outlined in CI 127, 2020, by Parliament pursuant to article 51 of
the Constitution, 1992, has violently breached the material
provision(s) copiously referenced supra.

10. Be reminded that, our Courts have settled their duty in

relation to statutory breaches and summed up same in the
consolidated cases of Republic vrs. High Court, Kumasi; Ex
parte Bank of Ghana, & Others (Sefa & Asiedu, Interested
Parties) (No. 1); Republic vrs. High Court, Kumasi; Ex
parte Bank of Ghana & Others (Gyamfi & Others,
Interested Parties) (No.1) (Consolidated) [2013-2014] 1
SCGLR 477. In these cases, the apex Court noted that:

‘A Court could not shut its eyes to the violation of

a statute as that would be very contrary to its raison
d’etre. If a Court could suo moto take the question of
illegality even on mere public policy grounds, then a Court
could not fail to take up the issue of illegality arising from
statutory infraction which had duly come to its notice. The
Courts were servants of the Legislature. Consequently, any
act of a Court that was contrary to statute would be a nullity
unless expressly or impliedly provided. No judge had
authority to grant immunity to a party from the
consequences of breaching an Act of Parliament.’’ Emphasis
mine.

11. By this letter therefore, I demand that you reverse within

7days, upon receipt of this letter, the said administrative directive
unlawfully removing the use of the indelible ink as part of our
electoral authentication process as it undoubtedly amounts to a
unilateral REPEAL of Regulation 33, sub-regulation 2, Paragraph
(c) of Constitutional Instrument 127, 2020 without any recourse to
 Parliament, the only Constitutionally mandated organ of state so to
do. That is tantamount to the usurpation of the legislative powers
of Parliament of Ghana.
12. Be assured that if you fail to heed to this request, I shall
employ every other lawful remediable steps available to me
without any further recourse to you including but not limited to the
invocation of the penal sanctions contained in Regulation 45 of CI
127 against you and your staff(s).

13. You are accordingly advised.

Sincerely,

DAFEAMEKPOR, Etse Kwami Rockson-Nelson, Esq. MP.

cc:

1. The Rt. Hon. Speaker

Parliament of Ghana
Parliament House
Accra.

2. The Clerk to Parliament

Parliament of Ghana
Parliament House
Accra.

3. The Chairman,
Subsidiary Legislation Committee
Parliament Of Ghana
Parliament House
Accra.
4. The Media