General News of Thursday, 20 September 2012
The Supreme Court (SC) on Wednesday dismissed an injunction brought against the Electoral Commission (EC) in respect of the creation of the 45 new constituencies saying it could not interfere in the work of Parliament.
The court presided over by Mr Justice Julius Ansah, a SC judge, said the court could not restrain Parliament and if plaintiff had some problems with the CI 78 he could go to court to remedy it.
Citing public interest, the court noted that granting the interim injunction would inconvenience the nation as a whole rather than that of an individual.
The court declared “I am not by this ruling saying that the Electoral Commission could go ahead and create constituencies and I am not saying that the EC had been restrained from creating constituencies.”
It did not award any cost saying it was a constitutional matter and ruled that the substantive issue would be heard by the SC on October 4.
Mr Ranford Frances, a businessman, had dragged the EC to court over the creation of 45 new constituencies. Also joined in the suit was the Attorney General.
The plaintiff, Mr France, had gone to the SC to restrain the EC from carrying out its intention of creating new districts until the hearing and final determination of the matter.
The businessman was challenging the power of the E. C. to go ahead with the creation of new constituencies without first laying it before Parliament, a constitutional instrument indicating clearly the mechanism, formula or modalities by which it intended to undertake that exercise.
Arguing on the interlocutory injunction at an earlier sitting, Mr. Joe Ghartey, former Attorney-General, one of the lawyers for Mr. Frances, said they were in court to seek a constitutional relief, adding that, before an application receives the necessary attention, it ought to meet certain requirements.
These requirements, he said, were that whether there were issues to be tried and whether the defendant was going to suffer an irreparable damage.
He noted that there are issues to be tried in the substantive matter and that the EC was not going to suffer from any irreparable damage.
According to him, the assertion that halting a Constitutional Instrument would derail the election process was incorrect and the court had the power to halt any illegality.
He opined that the court ought not to wait until an illegality had been committed before remedying it.
He argued that the decision to create the new constituencies were in contravention of constitutional provisions, hence the need to grant the injunction.
The EC however, noted that granting an injunction would only amount to “removing the EC from a moving train.”
It argued that the plaintiffs could wait and apply for judicial review or come under Article 48 of the Constitution which spelt out the remedy.
Mr. Benjamin Kumbuor, the Minister of Justice and Attorney General, previously associated himself with submissions put in by the EC, adding that, the court could restrain Parliament if it was engaged in an unconstitutional matter.
According to Mr. Kumbuor, Parliament had not engaged in any clear illegality.
He said CI 78 was to address issues of Public Law and interest which was also time bound.
According to him, if the EC does not exercise its constitutional power by January 8, 2013 it was bound to face some consequences.
On July 16 this year, the plaintiff proceeded to the SC praying it to declare that upon a true and proper interpretation of Articles 23, 51 and 296 (c), the EC, in the exercise of its functions and discretionary power in creating new constituencies as required by Constitutional Instrument, regulations not inconsistent with the Constitution or any other law to govern the exercise of its discretionary power.
The plaintiff further wanted the SC to perpetually restrain the EC from laying before Parliament any Constitutional Instrument creating new constituencies and or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 [C.I. 46], until it lays before Parliament a Constitutional Instrument which clearly sets out the processes to be adopted by the EC.
The CI will fully mature in 21 days and become law.
In a related development, Mr. Chris Akummey has filed an application so he could be joined in the substantive case.
However, Mr. Samuel Attah Akyea, one of the lawyers for the plaintiff had prayed the court not to allow him to be joined in the suit as that would amount to abuse of the court process.
Meanwhile the AG and EC did not oppose the application which seeks to join him as an interested party in the case.
The court is expected to deliver its ruling on September 25.