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Feature Article of Monday, 10 September 2012

Columnist: Kuruk, Paul

Creation of 45 New Constituencies: Matters Arising (Part 2)

By Professor Paul Kuruk

This article responds to issues raised since the posting of my previous work titled “Creation of 45 New Constituencies: Matters Arising” on the Ghanaweb on September 7, 2012.

I. CI-78 AS LAW OF GHANA

Individuals who may be overly excited about moving to restrain Parliament in relation to Constitutional Instrument 78 (CI-78) which seeks to create 45 new constituencies in Ghana should understand that in dealing with CI-78, Parliament is not exercising a power to make law in the usual sense of debating, amending, and adopting bills initiated independently by the members of Parliament. Under the Constitution, certain authorities other than Parliament are also given exclusive power to make rules which can become law, such as the Electoral Commission (EC) which has the power to review and create constituencies in Ghana under Article 47(5). However, before such rules can be enforced as law in Ghana it is necessary for the rules to be first introduced in Parliament as a constitutional instrument, and for the instrument to be published in the Gazette on the day it is laid before Parliament. After the instrument is laid for 21 days before Parliament, it would automatically come into force as law in Ghana unless two-thirds of the members of Parliament vote to annul it. Article 11(7). Therefore, CI-78 which was laid before Parliament on September 4, 2012 is now in the process to become law on October 3, 2012. Given that the majority of the members of Parliament appear to favour the passage of CI-78, it is highly unlikely that members of Parliament who may be so motivated can muster enough support to annul the instrument before then, and so it can be concluded with virtual certainty that CI-78 would become law in Ghana.

From this background, it is readily apparent that it is not realistic for individuals or groups outside Parliament to try to stop the maturity of CI-78 by seeking to restrain Parliament after the instrument has been laid before Parliament. As explained above, other than the parliamentarians themselves, no one else can stop the process after the 21 day count has begun. Those who want to challenge the instrument and who cannot get two-thirds of the members of Parliament to support them will simply have to wait patiently till the instrument becomes law before they can seek appropriate remedies, if valid legal grounds exist for doing so.

II. EFFECTIVENESS OF THE BOUNDARIES OF CONSTITUENCIES DRAWN UNDER CI-78

Although CI-78 will come into force as law on October 3, 2012, the boundaries of the new constituencies will be not be effective until the dissolution of the current Parliament. For, as provided in the Constitution, where as a result of the review of the division of Ghana into constituencies by the EC, “the boundaries of a constituency... are altered..., the alteration shall come into effect upon the next dissolution of Parliament.” Because Parliament is due to be dissolved on January 6, 2013, the new constituencies will become effective on that date.

The practical legal implication of this is that the existing division of 230 constituencies will be maintained until January 6, 2013 when it will be replaced by the division of 275 constituencies. It also means that when the next Parliament convenes for the first time following the dissolution of the current one, there will be seats available for 275 duly elected members of Parliament to reflect the number of recognized constituencies. Therefore, it is erroneous to think in this context (as some have) that it is only after the dissolution of Parliament on January 6, 2013 can political parties be expected to begin selecting candidates in the new constituencies for subsequent elections. Quite to the contrary, as elaborated upon in the next section, immediately after the announcement of the EC’s decision to create new constituencies, political parties should embark on a mission to identify candidates to contest the next general elections. This will ensure that if the candidates are successful, they will be sworn in as members of Parliament the very first day the next Parliament meets in January 2013.

III. LEGALITY OF ACTIVITIES IN THE NEW CONSTITUENCIES

With regard to activities by political parties in the new constituencies, the Constitution does not impose a duty on political parties to take any action whatsoever after the creation of the new constituencies. However, it is obvious that persons interested in representing their constituencies in the next Parliament will find it expedient to take the necessary steps to qualify and present themselves as candidates at the general elections that will precede the dissolution of the current Parliament. In this context, political parties are free to sponsor candidates but they are not compelled to do so. Therefore, any political party that wishes to do so can organize its campaigns to select candidates from the party to compete in the elections in those constituencies.

To say that the boundaries of the constituencies are not yet effective does not mean political parties could not use for their own purposes, the information provided by the EC about the new boundary demarcations. There is no legal requirement that the new constituencies be effective before they can be used for organising political activities. To the extent no law prohibits the political parties from using the boundaries drawn by the EC, they should be free to use those boundaries as the basis of selecting their candidates in the primaries. Therefore, the legality of the conduct of primaries by the NDC in those constituencies can be sustained by reference to the absence of any laws prohibiting political parties from organising their political activities on the basis of the newly drawn boundaries. Seen from this perspective, the NDC acted properly and did not break any laws by organising primaries in the new constituencies.

The maturity of CI-78 should not be regarded as an event without the happening of which political parties could not legally organize in the new constituencies. Nothing therefore prevents political parties from selecting their candidates for the new constituencies while awaiting the maturity of CI-78. Indeed, to omit to do so would amount to an intentional infliction of injury by a political party on itself - just like shooting oneself in the foot! Furthermore, the political party would be denying its supporters in those constituencies the opportunity to select persons from the party to represent them in Parliament.

Therefore, it is quite understandable why even before CI-78 has entered into force as law, some political parties (mainly the NDC and a few parliamentary candidates of the NPP as reported in the media) have been jockeying to identify and rally around suitable candidates to represent the respective parties in the new constituencies.

The EC has been accused of committing illegal acts by conducting and supervising the NDC primaries in the new constituencies. However, such criticism reflects a fundamental misunderstanding of the EC’s functions. Under Article 45(c) of the Constitution, the EC has power “to conduct and supervise ALL PUBLIC ELECTIONS...” (emphasis added). The EC’s power here is quite broad and is not qualified in any way other than by the requirement that the elections be public. The EC routinely supervises political party primaries essentially because they meet the definition of public elections. For the same reason, the NDC primaries in the new constituencies that the EC supervised should also be considered to be public elections and it makes no difference whatsoever that the EC’s decision to create the constituencies had not yet received legal backing from Parliament at the time the NDC primaries were conducted. In other words, the main reason the EC covered the NDC primaries was due to their nature as very important public events and not because they were held in localities that conformed strictly to specific geographical configurations used at the time by the government for administrative and other purposes.

Because the NDC primaries satisfied the constitutional requirement that the elections be public, the EC acted properly when it conducted and supervised those primaries. It cannot be over-emphasized that in this case, the only critical issue to consider is whether the elections were public. Those who contend that the EC must conduct elections only in constituencies legally recognized as such either lack a basic understanding of the law or are being disingenuous.

IV. ISSUES OF TIMING: THE RELATIONSHIP BETWEEN THE CREATION OF CONSTITUENCIES AND THE GENERAL ELECTIONS

The Constitution does not address the relationship between the alteration of the boundaries of constituencies by the EC and the general elections that precede the dissolution of Parliament. Thus, no time period is stated within which the law giving legal backing to the decision of the EC must be passed prior to the general elections. In part, this may be due to the recognition that the timing of the decision could be affected by matters beyond the control of the EC, and therefore will be difficult to determine in advance.

For example, even though the Constitution requires that the review on the basis of which the EC’s decision to alter boundaries is made should be conducted within 12 months after the publication of the results of the national census, alleged difficulties faced by the country’s Statistical Authority delayed the release of the results of the 2010 population census until May 31, 2012, with a corresponding dilatory effect on the EC’s review of the division of constituencies and decision on June 18, 2012 to create 45 constituencies. In this case, the EC did not have control over the release of the census results and when they came, the EC had to act quickly to avoid violating its constitutional obligations concerning review and alteration of the boundaries.

The EC has assured the general public of its ability and capacity to discharge in an efficient manner, its duties regarding the conduct and supervision of elections in 275 constituencies in December 2012. From the EC’s satisfactory record in supervising previous elections, there is no reason to doubt the EC in this regard. In light of the assurances from the EC, it would appear that the time period between the EC’s decision to create new constituencies and the general elections is adequate for the EC to prepare for and supervise those elections. Therefore, concerns that organising and conducting elections in the 45 constituencies in December will pose logistical and other challenges for the EC are not well-founded.

Significantly, the Constitution does not mandate that the EC provide formal notice directly to political parties when it alters the boundaries of constituencies, let alone regulate the amount of notice the EC should be required to give to such political parties prior to the conduct of elections. Rather, the Constitution is concerned in this context only with the circumstances under which the decision to alter boundaries is to be made and when the alteration would become effective. Notwithstanding the omission, however, the Constitution presumably relies on the political parties to act quickly in a self-interested manner when credible information is available to the general public regarding the creation of new constituencies, including pertinent public announcements by the EC and the presentation of the relevant constitutional instrument to Parliament.

If a political party on becoming aware of the creation of constituencies by the EC decides not to sponsor candidates for any or all of the newly created constituencies, that is its choice, and the decision will be respected. However, should it change its mind later on and decide to field candidates as the general elections approach, it cannot in good faith complain that it had become shortchanged because not much time was now left for it to select candidates. Under these circumstances, that political party will be considered to have had sufficient advanced information and the fact that it may not agree with the decision to create constituencies should not excuse it from acting in the meantime to promote its interests in the new constituencies. Were it to wait until the clock virtually run out, the political party would be barred under the equitable doctrine of estoppel from claiming there was insufficient time left before the elections for it to organize and compete in the new constituencies.

Furthermore, in assessing the reasonableness of the time available for political parties to select candidates for the general elections following the creation of new constituencies by the EC, it should be kept in mind that the minimum notice period under the Constitution for the conduct of elections to select a member of Parliament is 30 (THIRTY) days as provided in Article 112(5) with respect to the conduct of by-elections. Because the decision of the EC to create new constituencies was first announced on June 18, 2012, the political parties effectively had about 172 (ONE HUNDRED AND SEVENTY TWO) days notice to select and present candidates for the general elections scheduled for December 7, 2012. It is submitted that the notice period of nearly 6 months in this case to select candidates for the new constituencies exceeds by far the mandatory constitutional notice period for elections and cannot therefore be challenged as unreasonable as contended by others.

V. INDEPENDENCE OF THE ELECTORAL COMMISSION

Critics of the EC tend to forget that it is a body whose independence is guaranteed by the Constitution and in the performance of its functions, the EC “is not subject to the direction or control of any person or authority.” (Article 46). As noted above, the EC has exclusive power to alter the constituencies of Ghana. Thus, the proposal of the Trade Union Congress (TUC) to compel the EC to sit down with political parties to agree on criteria for the alteration of constituencies on the basis of a consensus before the alteration is made would encroach on such independence, and for that reason, is misguided. While others may be frustrated by the “persistence” of the EC to create 45 new constituencies barely a few months to the 2012 general election, the manner in which the EC has proceeded with its review and decision to alter constituencies not only complies with the applicable constitutional obligations but also reflects the EC’s independence which must be respected. For this reason, the reported death threats and other acts of intimidation against the Electoral Commissioner and staff of the EC are unacceptable and should be condemned in no uncertain terms.

VI. CONSTITUTIONAL IMPLICATIONS OF SUSPENDING ELECTIONS IN THE 45 CONSTITUENCIES

Finally, the call by the TUC and other groups for the EC to suspend elections in the soon to be created 45 constituencies until 2013 is utter nonsense and should be dismissed with the contempt it deserves. Their suggestion will provoke constitutional crises in the country and pose significant procedural challenges for Parliament. A fundamental constitutional issue with the call is that the votes of people in the 45 constituencies will not be counted in choosing the next President, a clear violation of their constitutional right in Article 42 to vote for that purpose. Moreover, recalling the closeness of the results in the 2008 elections and the heightened national significance assumed by the runoff elections in just a single constituency (the Tain constituency), it is apparent that in a close December 2012 election, the votes in the omitted 45 constituencies will be extremely important as they could easily determine not only who will become the next President but which political party will control Parliament. It will be absurd to expect the entire country to wait in limbo for answers to these issues until elections were held in the new constituencies at some indeterminate time in 2013.

Professor Paul Kuruk, Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.

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