Feature Article of Monday, 17 September 2012
Columnist: Kuruk, Paul
By Professor Paul Kuruk
A frequent complaint made by critics of the Electoral Commission’s (EC) decision to create new constituencies this year can be summed up as follows: WHY THE RUSH? However, the simple truth of the matter is that were the EC to proceed in any other way than it has set out to do (i.e., review and create the constituencies in 2012), the EC will not only spark a constitutional crisis, but also could be found to have failed to comply with its constitutional obligations, and thereby violated provisions of the Constitution.
Examined below are the constitutional implications of two scenarios commonly suggested as alternatives for the EC to pursue: (a) create new constituencies in 2012 but which will be used in the 2016 general elections; or (b) create new constituencies in 2013 which will be used in general elections after that date. It is also noted that even if the EC had decided not to increase the total number of constituencies to 275, but to leave the number at 230, it will still have been necessary to redraw the boundaries of some of constituencies in the country, with potential increases in the number of constituencies in some regions and corresponding decreases in the numbers in other regions.
I. CREATE CONSTITUENCIES IN 2012 BUT USE THEM IN 2016 GENERAL ELECTIONS
In an article posted on the Ghanaweb on September 12, 2012, and titled “Open Letter to Afari-Gyan and Electoral Commission”, Hon. Yaw Osafo-Maafo proposed that the EC “create the 45 new constituencies as he is about to do but use the same for the National Elections for the year 2016." However, as explained below, the proposal will not work due to the provision in article 47(6) of the Constitution that the new boundaries “come into effect upon the next dissolution of Parliament.”
Unlike other commentators, Hon. Osafo-Maafo recognizes, quite correctly, that when Constitutional Instrument 78 (CI-78) matures on October 3, 2012, the 45 new constituencies will be created as of that date and so it will be impossible to have a scenario where CI-78 would become law in October and the new constituencies are created at a later date. In this context, “creation of constituencies” should not to be confused with when the boundaries of the newly created constituencies will “become effective”. For, while the two concepts are linked to CI-78, they occur at different times. The new constituencies will be created in October 2012, but become effective in January 2013 upon the dissolution of Parliament.
Nonetheless, the Constitution does not provide the EC or the nation the type of flexibility Hon. Osafo-Maafo assumes exists. Indeed, from the explanation that follows, the EC has no choice but to conduct the elections on the basis of the new division of 275 constituencies and not 230 constituencies as proposed by Hon. Osafo-Maafo.
Conditioning the effectiveness of the alteration of constituencies in Article 47(6) on the dissolution of Parliament means the new division of 275 constituencies will replace the old division of 230 when the current Parliament is dissolved in January 2013. Thus, when the next Parliament is summoned (after the dissolution of the current one), the new Parliament will be meeting at a time the new division would have become effective. Because of the constitutional prescription in Article 47(1) that “each constituency shall be represented by one member of Parliament”, it should follow that there must be seating for 275 members of Parliament to reflect the now effective division of 275 constituencies when the new Parliament meets.
But how can one ensure that there will be 275 members of Parliament when the next Parliament meets in January 2013? The obvious and only method is for the EC to conduct the 2012 general elections on the basis of the 275 constituencies that would be created in October upon the maturity of CI-78. Thus, for the new division of 275 constituencies to be effective for purposes of Parliament under Article 47(6), the 275 persons must have been duly elected as members of Parliament in the general elections that would precede the dissolution of the current Parliament.
It will therefore, be a violation of the Constitution for the EC to use 230 constituencies in conducting the 2012 general elections and to seat 230 members of Parliament (and not 275) after the new division of constituencies had become effective in January 2013. Were the EC to operate on the basis of the 230 constituencies after the dissolution of Parliament, the EC will be using a division of constituencies that will no longer be valid or legal under the Constitution regardless of what any citizen of Ghana will say, do or prefer. Short of an amendment of the Constitution, the EC cannot do what Hon. Osafo-Maafo has proposed and proceed to conduct national elections up to 2016 on the basis of the old division of constituencies.
Several specific fundamental constitutional challenges are presented by Hon. Osafo-Maafo’s proposal.
First, if the general elections in December are held on the basis of the existing 230 constituencies after the maturity of CI-78, it means only 230 members of Parliament will be duly elected and not the 275 members of Parliament expected to be in the new Parliament. Membership in the new Parliament will therefore be incomplete.
Second, because the current division of 230 constituencies will no longer be effective in January 2013, many of the 230 members of Parliament who will be elected in constituencies affected by the alteration of the boundaries of constituencies by the Electoral Commission will be claiming to represent areas that they cannot legally represent on the basis of the new division of constituencies.
Third, where an existing constituency has been split into two or more new constituencies, at least one of the new constituencies will not have a representative in Parliament. This is unacceptable because of the directive in Article 47(1) of the Constitution that “each constituency shall be represented by one member of Parliament.” A related problem arises under the same constitutional provision because the elected member of Parliament will be claiming to represent what will legally be two or more constituencies in the new division of constituencies.
To move away from the abstract and situate the above issues in more concrete terms, let’s consider the following example. Suppose Hon. Indomitable Super One-Touch was elected during the last general elections in 2008 to represent a constituency in the current Parliament known as Oseikrom constituency that is actually comprised of three areas, Oseikrom, Kwasikrom and Abenakrom. Based on the census data that showed tremendous population growth in the constituency, the EC determined it was necessary to split Oseikrom into three constituencies which are now among the 275 constituencies listed in CI-78. The implications of the EC’s decision are as follows.
For purposes of the 2016 elections, the EC must conduct elections in the 3 constituencies, Oseikrom, Kwasikrom and Abenakrom, and not in the single and relatively large constituency which was referred to as Oseikrom for purposes of the 2008 elections. In addition, should Hon. Indomitable Super One-Touch choose to stand as a candidate in the 2016 elections in the Oseikrom constituency, if elected, he can only represent the population in the newly demarcated constituency of Oseikrom but not Kwasikrom and Abenakrom. Furthermore, the other two constituencies, Kwasikrom and Abenakrom, must elect their own members of Parliament in the 2016 elections, otherwise they will not be represented when the new Parliament is convened in January 2013.
While Hon. Osafo-Maafo’s proposal seeks to assuage concerns raised by some sections of the public about the pending creation of new constituencies, the proposal ignores the implications of various constitutional provisions that the EC simply has no control over. Were the EC to choose to conduct the 2012 general elections on the basis of 230 constituencies, it will not be able to ensure that the country will have 275 members in the next Parliament as will be required after the maturity CI-78.
II. CREATE CONSTITUENCIES IN 2013 BUT USE THEM IN ELECTIONS AFTER THAT DATE
Article 47(5) provides that “the Electoral Commission shall review the division of Ghana into Constituencies... within twelve months after the publication of the enumeration figures after the holding of the census of the population of Ghana, and may, as a result alter the constituencies.” Read in isolation, this provision appears to offer the EC the flexibility to comply with its constitutional obligations by first conducting the review in June 2012 (as it has done) and waiting until after the dissolution of Parliament but not later than May 2013 to create the new constituencies.
However, a difficulty emerges when Article 47(5) is read in conjunction with Article 47(3) which provides that “the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.” The term “population quota” is defined as the number obtained by dividing the number of inhabitants of Ghana by the number of constituencies in which Ghana is divided.
The obvious risk for the EC is that it could be found to be in breach of Article 47(3) by conducting general elections on the basis of constituencies which objective data from the national census indicated no longer met the population quota as of 2012. This will most certainly be the case where clear evidence from the census reveals that some constituencies exceeded by far the population quota, while others fell very far behind the quota. Although one is not privy to the EC’s deliberations, it can be surmised that the constitutional quagmire posed by Article 47(3) in the context of the EC’s review of the results of the national census probably played a major role in the EC’s decision to go ahead with the creation of constituencies this year instead of 2013.
To appreciate more fully the important considerations that informed the EC’s decision, some background information on the population quota system is necessary. Essentially, the Constitution confers on the EC the power to review and alter the boundaries of constituencies to address any changes in population concentration caused by various factors including migration, birth, death, etc. Maintaining the same boundaries for a long time can lead to vast inequalities in the populations of constituencies. Some constituencies will come to have very large populations while others will have very low populations. This creates inequality in the political process because the votes of people living in the very populous constituencies will be “worth less” than the votes of people living in less populated constituencies. To correct this anomaly, it is imperative that constituencies contain about the same number of people so that votes are “worth” about the same amount, similar to the one, person, one vote requirement. This is achieved if the population in a constituency approximates the population quota.
If the EC chooses to conduct the 2012 general elections on the basis of the 230 constituencies, it will be working with constituencies first created and used during the 2004 general elections. By waiting to create new constituencies in 2013, the new division of 275 constituencies will not be used to elect members of Parliament until the general elections in December 2016. This means a total of 12 years (2016-2004) will have gone by when the 230 constituencies would be used for elections. Twelve years is an inordinately long period to go about conducting elections without adjusting the boundaries of constituencies to “equalize” populations in the different constituencies, especially when it is considered that there is a mandatory constitutional obligation to review constituencies every 7 years except for times when a census is conducted, in which case the time for the review is even shorter.
Under these circumstances, it easy to understand why the EC will have profound difficulty fending off a constitutional challenge that it had failed to guarantee the equality of all voters, and therefore violated the constitutional guarantee of equality enshrined in Article 17. It would appear from the perspective of the EC, that creating the 45 new constituencies this year was unavoidably necessary to comply with its fundamental constitutional obligations to guarantee the equality of voters in Ghana.
Even if the EC had decided after its review in June not to increase the number of constituencies, but to let the number remain at 230, it will still have been necessary to redistribute the existing 230 constituencies on the basis of the census figures announced this year so as to “equalize” the populations in the constituencies. Such a redistribution inevitably, will have resulted in an increase in the total number of constituencies in some regions while decreasing the numbers in other regions. Perhaps, the EC increased the number to 275 to give effect to the equality of voters on the basis of the population quota, without having to reduce the number of constituencies in some regions - a development that would have provoked greater outrage from regions that would feel marginalized by the reduction of their voting strength in Parliament.
Professor Paul Kuruk, Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, Oxford University (St. Peter’s College); Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.