Feature Article of Wednesday, 5 September 2012
Columnist: Osei-Prempeh, Kwame
CREATION OF FORTY FIVE NEW CONSTITUENCIES: OPEN LETTER TO CHURCH LEADERS, CHIEFS, CIVIL SOCIETY ET AL
BY KWAME OSEI- PREMPEH, MP
The decision of the electoral commission to create 45 new constituencies is an issue which should concern all fair minded Ghanaians, especially the clergy, opinion leaders, Council of State, civil society groups and all who da- in and day-out are preaching peace.
We all need to work for the peace of our country. I have always have problems with those whose only concern is for PEACE without justice. We need peace but we need to look at the other side of the coin.
All those who seek peace would be blessed as the Bible says but like the Prophet Isaiah says in Isaiah 59:4 “None calleth for justice nor any pleaded for truth”. I therefore get worried when our religious leaders, opinion leaders, civil society groups all join hands for peace in our country before, during and after the elections but show no concern when issues which can cause disaffection crop up
‘Before, during and after’ alone should tell all that election is a process and not an event and therefore all should be interested in the processes leading to the election. It is in the light of the above that i find it amusing that none of our religious leaders, chiefs and civil society groups apart from AFAG and CDD have had anything to say about the disturbing creation of the forty-five constituencies on the eve of 2012 elections.
Let me state here and now that we owe a lot of gratitude to the Afari Gyan-led Electoral Commission for the peace and stability we have enjoyed in the 4th Republic. So far the EC has maintained its credibility and some of us believe that by and large that has contributed to the peace we are enjoying even after 2008 elections when an incumbent government lost by just forty thousand votes. There is therefore the need for the EC to avoid acts of omissions or commission which will make a section of the populace perceive it as having compromised its neutrality. It is therefore important for chiefs, religious leaders and civic society groups to let their voices be heard on matters that would affect the EC and the election process.
The EC has announced the creation of forty-five new constituencies in exercise of its mandate under the constitution. What the EC has not told the ordinary Ghanaian is that the constitution does not say any where that it should “CREATE”. Article 47(5) of the Constitution states that the EC shall “REVIEW” the division of constituencies. Review and create are not the same.
If after census it is found that the population of the country has shifted to a part of the country, the EC should necessarily create constituencies in that part of the country and may abolish other constituencies where the population has moved from. Members of Parliament (MPs) represent people not land mass. So the argument by Dr. Afari Gyan and his Public Relation Officer that they are obliged to create constituencies is not tenable and not supported by the constitution.
Let’s assume that the EC has the power to create, does that mean that they can create without regard to the timing. In 2004, the Electoral Commission created constituencies with C.I. 46. The legal backing to the instrument was laid in Parliament on 26th January 2004 and matured by first week of March 2004. In 2012, the instrument was laid on 15th August and is supposed to mature on 27th September 2012 which would just be two months before the election and Dr. Afari Gyan believes that two months is enough for parties to conform to the demands of the constitution which demands that the internal workings of political parties should be on democratic principles.
The parties should hold elections to put in place their constituency executives and hold primaries to choose their parliamentary candidates all within the space of two months. In 2004, by March all constituencies had been legally created and all parties had started their preparations. The argument that political parties can start choosing their candidates as being done by the ruling NDC is hollow. The constituencies have not been created yet and especially, for the opposition parties, it would be untenable to throw their scarce resources into primaries for yet to be created constituencies. And the cost of additional forty-five constituencies to the taxpayer is unnecessary.
LEGAL AND CONSTITUTIONAL CHALLENGES
Apart from what has been stated above, the C.I. 73 has very serious challenges. As would be recalled the first one laid in parliament had very serious mistakes. From the day it was laid in parliament without a number to the day it was withdrawn, I kept on telling the majority leader and the electoral commission that the instrument could not pass because of the mistakes in it but they won’t listen until the last minute when it was withdrawn. What was laid also has mistakes in it. There is a very serious handicap which to me if not curable and can throw the election into chaos. Article 45(b) of the constitution requires the EC to demarcate the electoral boundaries for both national and local government elections. In 2010, the Minister of Local Government brought L.I. 1983 to Parliament against proper advice that the Local Government Act, Act 462 on which the Minister was relying did not give him (Minister) the power to create electoral areas as that is a function given to the EC by the constitution. This was allowed to pass without taking into account the advice that was given. There were several mistakes in the L.I.1983 which were corrected at the committee level. The lawful thing was that the instrument be withdrawn and the corrected version laid for 21days. At that time the District Assembly elections had been postponed twice and to avert a third postponement it was allowed to pass. Subsequent to that four suits were filed in the Supreme Court challenging the right of Parliament to amend an instrument laid in accordance with Article 11(7) of the constitution. All the four plaintiffs won and the Supreme Court held that the original L.I 1983 with all its mistakes is the valid L.I. and therefore annulled the corrected version which was passed by Parliament and published by the government printer for the public.
Two issues arise here; the EC relied on flawed L.I. 1983 and so the corrected L.I. 73 has in it all the problems that the L.I. 1983 has. There are many electoral areas in the C.I 73 which are therefore not electoral areas whilst some electoral areas are not captured in it. As stated above it is the EC which is mandated by the constitution to demarcate electoral areas for national and local government elections. Article 51 of the constitution mandates the EC to by constitutional instrument to make regulations for the effective performance of its functions and therefore it is in the EC which must create electoral areas by a constitutional instrument. Already, the EC has conducted local government elections using the L.I 1983 illegally brought into being by the Minister of Local Government. The EC wants to use the same electoral areas created by L.I 1983 for national elections by incorporating those electoral areas to designate the areas of the constituencies and this is totally unconstitutional and the EC should be advised to rescind its decision. The EC needs to bring a C.I. to create electoral areas for future use in national elections and local government elections. The EC argues that once the districts have been created they must create constituencies. If the EC allows the executive to create districts and force its hands to turn those districts into constituencies it would be doing the bidding of the executive. Secondly, nowhere in the constitution is it stated that every district should have an MP. What the constitution says in Article 47(2) is “No constituency shall fall within more than one region”. The Local Government Act says that no person shall belong to two district assemblies but interestingly during the creation of the new districts the NDC argued in parliament that it does not apply to MPS WHO ARE ONLY EX-OFFICIO MEMBERS. AS I write now, there are twenty districts including ASANTE AKYEM CENTRAL,ASANTE AKYEM, KUMAWU, SEKYERE AFRAM PLAINS NORTH,KRACHIE WEST AND KRACHIE NCHUMURU which have one member of parliament serving two districts. So, Dr Afari Gyan’s insistence that he must give every district a member of parliament has no basis
Ghana needs peace and we must all contribute to that peace. Ex-President Kuffour needs to be commended for speaking publicly on the issue. I wish, however, to make the correction that it would be TWO MONTHS to elections and not three months .The former president is only being consistent with his quest for peace for Ghana. In 2005 the ROPAA was passed. I was the chairman of the parliamentary committee that handled the bill. Dr Afari Gyan said it could be implemented if the resources could be provided. President Kuffour in the light of the opposition to the ROPAA decided it would be better not to use for the 2008 election to preserve the peace of the country despite the obvious political advantage to his party. I humbly invite Chiefs, the Clergy, the Council of State, Civil Society groups and all to tell the EC that it is better to err on the side of caution. No Ghanaian would be left unrepresented if new constituencies are not created for 2012 elections and the C.I. 46, the existing law should not be revoked and replaced with a C.I. 73 whose foundation is suspect.
In 2004, there was a legal challenge; LUKE MENSAH V ELECTORAL COMMISSION. By March 2004 the Supreme Court had dealt with the matter because the EC started its preparation early, thereby, giving room to the courts to resolve issues rising out of its conduct. As I write there are pertinent issues in court which time may not allow the courts to decide, is that what the EC wants? “Discontent boils bloody”, so says a poet. HOUSE OF CHIEFS, CHRISTIAN AND MUSLEM LEADERS,CIVIL SOCIETY GROUPS AND ALL CONCERNED GHANAIANS MUST ACT NOW The writer is Chairman of Parliamentary Committee on SUBSIDIARY LEGISLATION