One of the important principles of constitutional adjudication is judicial restraint. And one of the important lessons in judicial restraint is that, in deciding a case and writing a judgement, a judge or court need say no more than is necessary to decide the matter before it.
In particular, where a case turns on certain peculiar facts, the court should strive to limit the decision to its facts.
The issue before the Supreme Court in the recent NDC v EC with respect to the birth certificate question was a simple one: Whether the EC's decision, captured in CI 126, to not include a birth certificate as one of the documents one might tender to establish eligibility (citizenship, age) for the purposes of getting registered to vote in the current registration exercise, is unconstitutional as an unlawful exercise of discretion. This was, strictly speaking, not a citizenship case; it was not even a case about the validity of a birth certificate as an identity document.
All the Court needed to say, in ruling in favour of the EC on the birth certificate issue, in this case, was that the EC's decision not to include a birth certificate as one of the documents for establishing, was not an unreasonable exercise of discretion. In support of that conclusion, the Court could say a few things about the FACTS or reality of Ghana's existing birth certificate system that might make a birth certificate unreliable for the EC's purposes. That is all that was necessary to decide the case on the birth certificate question.
The court could recognize and acknowledge the usefulness and importance of birth certificates in multiple contexts and still conclude that for so and so reason, it is not unreasonable under the present circumstances for the EC to exclude it (like the NHIS card) from the list of state-issued documents that could be used in the current voter registration exercise. The Court could also have said that while the birth certificate is useful, it is not, by itself and for certain specified reasons, currently sufficient to establish identity for voter eligibility purposes. (But why couldn't CI 126 also say, for example, that if you have a birth certificate, you could come with one guarantor, instead of 2?) Neither approach would necessarily make the court's ruling unimpeachable, but at least it would limit the decision to its facts and, for that matter, to what was necessary to decide the matter. All the plenty negative talk in the judgement about birth certificate was unnecessary and, frankly, unhelpful.
Birth certificate data, and the recording of births generally, have important everyday policy and planning uses besides elections or voter registration. No need to create the impression, albeit unintended, that one need not even care to obtain a birth certificate at birth or to have a birth officially recorded. Elections and registration of voters are not the only things, or the most important business, this country is about. No matter what this or any other EC or Supreme Court thinks of birth certificates, birth certificates are a necessary and useful document to obtain, both individually and for the State.
As stated in articles 7 and 8 of the UN’s Convention on Children’s Rights, each child shall be “registered immediately after birth” and this “official record” safeguards the child’s “name, nationality, and family ties.” Birth certificates are thus critical in securing children's rights and identity. Interestingly, Ghana signed the Convention of the Rights of the Child (which was adopted by United Nations Member States on 20th November 1989), on 29th January 1990 and one week later, on 5th February 1990, we became the first country in the world to ratify the treaty – committing to adopt it into national law. (Yet another instance of our well-known habit of "outside gentility, home cry").
No EC or Supreme Court decision should close the door forever to the prospect that a birth certificate could, one day, be accepted as one document for establishing nationality or citizenship for the purpose of voter registration. Arguably, for one or the other reason, now might not be that time. And that's as far as the Court should go on the matter of the birth certificate. We all, the Court included, should feel regret and shame that we have failed as a country to build, over the course of six decades, a system of birth registry and certificate worthy of a sovereign state. It is not a laughing matter. The fault lies not with the birth certificate; it lies with us! And the Court should have said that too.
In short, talking disparagingly and generally about the birth certificate as if it was some piece of toilet paper is needlessly counterproductive. Apart from spoiling business for the people at the Births and Deaths Registry, talk like that makes it all the more difficult to convince many people of the necessity of getting births registered. We still have a country to build and live in after the drama of Supreme Court litigation and voter registration and 2020 elections are over. And in that more important business of building and developing a country, biodata, including birth records and certificates, matter for all manner of reasons and purposes, including for establishing a child's identity. Our words, whether in court judgments or elsewhere, should not convey a different impression.
By: H Kwasi Prempeh