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Feature Article of Saturday, 8 September 2012

Columnist: Asare, Kwaku S.

The Constitutional History of the Number of Constituencies

S. Kwaku Asare


In 2003, the Electoral Commissioner (EC) created 30 new constituencies, bringing the total number of Members of Parliament (MP) to 230. At that time, I opined that the creation of the constituencies was a useless enterprise that was neither legally required nor economically justified (see http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=49546). I reasoned that it is an anachronism and fundamentally unsound to invest in an unelected bureaucrat the power to increase the number of constituencies when this bureaucrat does not know the cost of creating a constituency. At that time (in 2003), I estimated the cost of an MP to be in excess of ¢427,308,889 for every term of parliament. It was my opinion then that the nation could not afford the increase in the number of constituencies. I suggested that the nation should reject the proposed increase and called for a constitutional amendment to cap the number of MPs at no more than 200.

My pleas were predictably ignored. The Supreme Court blessed the EC’s useless enterprise in Luke Mensah v. AG. Not very surprising to me, we are “back to the future in 2012,” dealing with a new proposal by the EC to create 45 new constituencies. I hold the same views about the 2012 creation as I did about the 2003 creation and I would say no more.

Incidentally, in 2003 I bemoaned the EC’s incompetence and inefficiency in creating voters’ registers. Specifically, I said, “In 1992, we spent billions and ended up with a flawed register, which we had to throw away. In 1996, we spent billions and ended up with a flawed register, which we had to throw away. In 2000, we spent billions and ended up with a flawed register, which we had to throw away. Now, in 2004, we are about to spend another ¢113B cedis and the EC is telling us he does not know why things went wrong in 1992, 1996 and 2000.” The reader can now add 2008 and 2012 to this list.

But my intention here is not to talk about the EC’s proclivity to burden us with cost. It is my fervent hope that, one day, we would realize that democracy is not the same thing as throwing away money. Rather, my intention is to discuss the constitutional history of the number of constituencies and repeat my call for an amendment to impose a cap on the number of constituencies.

The 1957 Constitution addressed the number of constituencies in Article 20(2), which provided that “The National Assembly shall consist of a Speaker and not less than 104 members to be known as Members of Parliament (MP); but the number of MPs may be increased from time to time by the creation of further electoral districts under the provisions of sections 33, 70 and 71, but in any event the total number of MPs shall not exceed 130.’ In turn, Articles 70 and 71 made provision for the creation of Delimitation Commissions that would divide the regions into electoral districts (constituencies) using a formula similar to the current population quota with the caveat that no electoral district shall fall into two regions.

Further, there was a clear procedure for increasing the number of constituencies. In particular, “if the Commission is satisfied that the number of persons resident in an electoral district is, on the basis of the best available information, in excess of 170% of the average number of persons resident in each of all the other electoral districts, the Commission shall submit a report to the Governor-General together with a recommendation for the divisions of the said electoral districts into two electoral districts.”

In effect, the Constitution itself imposed a cap on the number of constituencies and the task of demarcating electoral boundaries was assigned to a Commission. This is reasonable and assured that the national budget was not shocked by an unexpected increase in the number of MPs. There was also an in-built mechanism to assure that the size of each electoral district is not significantly different from the population quota.

This scheme was changed in 1960, following the promulgation of the 1960 Republican Constitution. Article 21(1) of that Constitution provided that “The National Assembly shall consist of the Speaker and not less 104 Members, to be known as Members of Parliament.” Neither that Constitution nor the National Assembly Act, 1961, provided a clear basis for creating or increasing the number of constituencies. However, because that period heralded the era of the imperial presidency, it is reasonable to assume that the lack of a cap on the number of MPs was just a device to allow the President to manipulate the legislature by creating more constituencies as needed to allow him to exercise his imperial powers.

As expected, the 1969 Constitution rejected the model in the 1960 Constitution. In Article 70, the 1969 Constitution provides that “The National Assembly shall consist of not less than 140 and not more than 150 elected members.” It also created an office of Electoral Commission, charged with dividing the country into as many constituencies as there are members of the national assembly (Article 32(1)). However, the Electoral Commission had no power to determine the number of members of the National Assembly and could neither increase nor decrease it. Thus, as with the 1957 Constitution, the delimiting of constitutional boundaries was decoupled from the number of constituencies. The former was assigned to an independent bureaucrat and the latter was assigned to the National Assembly with a hard cap on the number of MPs.

The pendulum swung to the 1960 model with the inauguration of the 1979 Constitution. Here, Article 75 provides that “There shall be a Parliament of Ghana which shall consist of not less than 140 elected members.” However, the 1979 Constitution does not provide an explicit mechanism for increasing the number of MPs. At Article 39(1), it provides that “Ghana shall be divided into as many constituencies as there are members of parliament in such manner as the Electoral Commissioner may prescribe.” This, of course, suggests that the Electoral Commissioner is responsible for delimiting boundaries subject to the number of MPs in Article 75. Further, at Article 39(5), that Constitution provided that “The Electoral Commissioner shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months of the publication of enumeration figures after the holding of a census of the population of Ghana, whichever is earlier and may, subject to the provisions of article 75 of the constitution, alter the constituencies in accordance with the provision of this article to such an extent as it may be considered desirable in the light of the review or by reason of the holding of the census of the population of Ghana.”

While the lengthy Article 39(5) appears to give the Electoral Commission the power to alter the constituencies, that power itself is subject to Article 75. However, because Article 75 provides only a minimum number of MPs, the question of whether and who can increase the number of constituencies was ill-defined. But because legislative powers were vested in Parliament, a reasonable interpretation is that it is Parliament alone that could increase the number of MPs.

Finally, the current constitution provides at Article 93(1) that “There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members.” Clearly, there is no ceiling on the number of MPs. Further, Article 47(1) removes any ambiguities as to who determines the number of constituencies by providing that “Ghana shall be divided into as many constituencies for the purpose of election of members of parliament as the Electoral Commission may prescribe, and each constituency shall be represented by one member of Parliament.”

We have experimented with different approaches to determining the number of constituencies. The approach used in 1957 and 1969, when incidentally we had the Cabinet form of Government, imposes a cap on the number of constituencies. The 1960, 1979 and 1992 models had no ceilings on the number of constituencies, creating an avenue for mischiefs of the type that we saw in 2003 and again 2012. The worst approach, in my opinion, is the 1992 approach, which has no caps on the number of constituencies and cedes the power to create constituencies to an unelected bureaucrat who is in no position to assess the financial implications of his choices. As in 2003, I call for a constitutional amendment to put a cap on the number of constituencies.

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