22 October 2012

Ghana: 'Creation of New Constituencies Valid'

Photo: AEP
President John Dramani Mahama of Ghana is the candidate of the National Democratic Congress in the 2012 elections.

The Supreme Court (SC), last Friday, unanimously ruled that the promulgation of Constitutional Instrument (C.I.) 78 was constitutional, as it dismissed an application filed by a businessman, Ransford France, challenging the instrument that recently lead to the creation of 45 new constituencies throughout the country.

The court, presided over by Justice William Atuguba, noted that the plaintiff, who sued the Electoral Commission (EC) and the Attorney General over the issue, failed to show that the C.I. 78 had infringed upon the Constitution.

The rest of the panel members were Justices Date-Baah, Sophia Adinyira, Rose Owusu, Annin-Yeboah, Sule Gbadegbe and Vida Akoto-Bamfo.

The court, which rejected the EC's argument that it was not the proper forum to handle the issue, noted that since the issue before it concerned the interpretation of the Constitution, it was powered by the Constitution in that respect.

According to the court, the EC was empowered by the Constitution to exercise discretionary powers, which were quasi judicial, and should not be described as an invalidity, since the Commission, under the Constitution, creates new constituencies every seven years or after the conduct of a Population Census.

The court was further of the view that the provision, Article 296 clause C, under which the plaintiff is challenging the C.I. 78, does not affect the powers given to the EC in exercising its discretionary powers in the creation of constituencies, and could therefore, not be declared invalid.

It also noted that if the discretionary powers of the EC, in creating constituencies, was declared invalid, it would affect several decisions taken by the EC from the coming into force of the 1969 Constitution up to the creation of the current new constituencies, which would lead to the "nuclear meltdown of government."

"This should be avoided," the court emphasised, adding that the Constitution must be interpreted as a living document to suit changing trends, since the mischief that may be caused by a minister in laying a C.I. before Parliament was cured following the scrutiny of the process in the law-making body, because of its multi-party nature.

The plaintiff was seeking to challenge the legality of C.I. 78, saying it was inconsistent with the Constitution.

According to plaintiff, the modalities followed by the EC in laying the Constitutional Instrument flouted the tenets of the 1992 Constitution, and, therefore, rendered it invalid and illegal.

Mr. Godfred Yeboah-Dame had argued that the discretionary powers and guidelines given the EC were not exhausted in the creation of the new 45 constituencies, since it did not publish the C.I. before laying it before Parliament.

This action, counsel pointed out, violated the Constitution, adding that the EC failed to provide reasons as to why it decided to alter the boundaries of the constituencies.

The plaintiff sought a declaration of the court that by Articles 23, 51 and 296 (c), the EC, in exercising its functions and discretionary power in creating new constituencies, was required to make by Constitutional Instrument, regulations that were not inconsistent with the Constitution or any other law.

Additionally, the plaintiff asked that the court to declare that by Articles 51 and 296 (c) of the 1992 Constitution, the EC was required to indicate specifications of the formula and mechanisms used in the creation of the new constituencies made by Constitutional Instrument.

The plaintiff further sought a declaration of the court that the failure of the EC to indicate the mechanisms and modalities by which it used in creating the new constituencies was a breach of the Ghanaian voters' fundamental human right to vote.

In a rebuttal, counsel for the EC, Mr. James Quarshie-Idun, noted that the action of the EC was not an exercise of discretionary powers, emphasising that the rules were clearly set out in Article 47 of the Constitution for his client to follow.

According to him, Article 47 of the Constitution provides the guidelines and modalities the EC must follow in creating new constituencies, adding that the C.I. 78 was an exercise of demarcation, which had a remedy in Article 48 of the Constitution, to enable aggrieved persons seek redress.

The representative of the Attorney General, Mr. Cecil Adadevor, a Principal State Attorney, in his response, pointed out that the C.I. 78 was laid in accordance with the Constitution, adding that the EC followed the specific guidelines it provided in creating the new constituencies.

Meanwhile, an Accra Fast Track Court (FTC), presided over by Justice Emmanuel Amoako Asante, has ordered the EC to register voters in eight affected registration centers in the Atosaale/Azaasi and Akunkongo/Abempingo electoral areas in the Upper East Region within 14 days, from October 18, this year, when the order was given.

The order further requested the Regional Police Commander of the Upper East Region to provide protection for the EC offiacls in the conduct of registering the people at the eight registration centers, who could not have their names captured in the recently held biometric registration exercise.

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