Feature Article of Tuesday, 23 October 2012
Columnist: Kuruk, Paul
By Professor Paul Kuruk
This article comments on the two recent rulings by the Supreme Court regarding the creation of
constituencies in 2012 and 2004.
I. THE CREATION OF 45 CONSTITUENCIES IN 2012
In a previous writing on the dismissal by the Supreme Court of Ransford France’s motion for an interlocutory injunction to restrain Parliament from proceeding with any action on Constitutional Instrument 78 (CI-78) with respect to the creation of new constituencies, I had concluded with reference to the then pending main action that:
[I]t is unlikely that the Supreme Court will strike down the law creating 45 new constituencies or act in any way to prevent or delay the implementation of the law. Individuals, groups or associations who may be opposed to the law should be well advised to act in accordance with that reality. To continue to resist the law in ostrich-like fashion in vain hope that the law will be blocked is an exercise in futility. Dismissal of the application for interlocutory relief should be a clear signal that the train set in motion by the EC is about to leave the station and the Justices of the Supreme Court are in no mood to cause an upheaval in the electoral process by standing in front of the train when it is in motion! All aboard!
(The relevant article which was dated September 22, 2012, can be found at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=251063).
The ruling by the Supreme Court on October 19, 2012 dismissing the main action is consistent with the conclusion reached in the article. Mr. France had claimed that CI-78 was unconstitutional because the Electoral Commission (EC) had gone ahead with the creation of new constituencies without first laying before Parliament a constitutional instrument indicating clearly the mechanism, formula or modalities by which it intended to undertake that exercise. However, I argued in my piece with reference to specific examples, that contrary to his assertion, the EC had adopted numerous regulations for the effective performance of its functions. I pointed out that acts of the EC in reviewing and altering the boundaries of constituencies in Ghana were in strict compliance with a constitutional duty imposed on the EC and did not amount to an abuse of discretionary power.
II. THE CREATION OF ELECTORAL AREAS DURING THE KUFUOR ADMINISTRATION
The Supreme Court also ruled on October 18, 2012 that the EC could not hold elections in electoral areas created between 2004 and 2007 by the former Minister of Local Government during the Kufuor administration. (The news report is available at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=253530). This Supreme Court decision came in a case filed by Dr. Clement Apaak challenging the constitutionality of 30 constituencies created during the Kufuor Administration.
In that case, the Supreme Court held certain electoral areas not to have been properly created since the former Minister of Local Government did “not have the constitutional mandate to do so.” However, the Supreme Court appears to have validated other electoral areas found in instrument(s) submitted by the former Minister of Local Government because the apparent defects were cured by the inclusion of those other electoral areas in CI-46, the instrument submitted to Parliament by the EC in 2004 and which created 30 additional constituencies.
According to the news report, “some of the areas created by the Minister were already exciting (sic) in a constitutional instrument.” It is unclear from the news report exactly how many constituencies were found to be in the instrument(s) submitted by the former Minister of Local Government but not included in CI-46. However, it is assumed from the caption of the report that the number was 38, but the news report could have been more precise on this point.
As an additional ambiguity, the legislative instruments of the former Minister of Local Government invalidated by the Supreme Court concerned “various districts, municipalities or metropolis in Ghana.” However, these terms do not necessarily have the same meaning as “constituencies”. It is an open question whether the former Minister of Local Government had set out to create districts or municipalities for administrative purposes, or rather, had sought to create constituencies per se for purposes of parliamentary elections.
III. THE CREATION OF 30 CONSTITUENCIES IN 2004
Another question that arises from the news report is what the Supreme Court really said about the validity of CI-46. Because the Supreme Court is reported also to have ruled that “the constituencies created by the Local Government, which were also in the one created in CI 46, could hold,” the inference can be drawn that the Supreme Court probably found CI-46 to be constitutional and therefore, did not invalidate at all the additional 30 constituencies created under CI-46!
From the news report, the Supreme Court had declined Plaintiff Dr. Apaak’s request for issuance of a permanent injunction to restrain the EC from holding elections in the affected electoral areas, finding such a remedy to be unreasonable. Presumably, the Supreme Court’s ruling would accommodate the current de facto, if not de jure, division of 230 constituencies. Therefore, contrary to the news headline (“38 MPs thrown out by Supreme Court”) the MPs from the affected constituencies could continue to act until the Supreme Court specifically and very clearly disqualified them.
IV. APPLICATION OF THE RULE OF LAW
Events surrounding the EC’s announcement in June to create additional 45 constituencies and leading up to the most recent Supreme Court rulings, illustrate the application of the principle of the Rule of Law in Ghana. Essentially, under the principle of the rule of law, individuals, institutions and government would be expected to submit to, obey and be regulated by law, and not arbitrary action by an individual or individuals.
The significance of the concept of the rule of law can be gleaned from the Preamble to the Universal Declaration of Human Rights which provides as follows:
It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law.
Thus, the rule of law is essential to the promotion of human rights as a guarantee of stability and peace in society.
Generally, adherence to the rule of law requires the existence of an executive invested with sufficient power and resources to discharge its functions with efficiency and integrity, the existence of a legislature elected by democratic process and not subject, either in the manner of its election or otherwise, to manipulation by the executive and the existence of an independent judiciary which will discharge its duties fearlessly. The rule of law also calls for the earnest endeavour of government to achieve such social and economic conditions within a society as will ensure a reasonable standard of economic security, social welfare and education for the mass of the people.
For the past five months, a number of institutions and individuals acted in ways consistent with the rule of law. Invested with exclusive powers to review the boundaries of the constituencies of Ghana and to alter them as necessary, the EC complied with its constitutional obligations in June by proposing additional constituencies to ensure a total of 275 constituencies that satisfied the population quota mandated by the Constitution. The EC also demonstrated the very broad degree of independence with which it is guaranteed. Amidst incessant criticisms of its actions, and sometimes verbal threats from some sections of the population, the EC remained resolute obviously convinced about the propriety of its actions.
It is quite remarkable that despite the clear polarization that had emerged following the EC’s decision, all Ghanaians, including the President, the political parties, and the general electorate, affirmed their confidence in the Judiciary as the final arbiter on this potentially explosive issue which if not carefully managed, could have plunged the nation into an unprecedented crisis and eroded the democratic gains the country had made in recent decades. Individuals not only exercised their fundamental human right of freedom of expression in commenting on the EC’s actions, some challenged the EC in court in unsuccessful bids to stop Parliament from acting on CI-78, and then to block implementation of CI-78 after it had matured into law.
In all this drama, the Judiciary did not disappoint. Some justices were recalled from vacation to assure the nation that pressing issues of national importance could not be ignored or delayed but would be given the urgent attention they deserved. In the cases with respect to which the justices were seised with jurisdiction, and regardless of their backgrounds and perceived parochial interests, the justices exhibited impartiality. They championed the basic tenets of the rule of law such as supremacy of the Constitution and equality of all before the law; separation of powers; the EC as a quasi-legislative and independent institution; judicial review and independence of the judiciary; immunity of Parliament; and above all, the fundamental obligation of all Ghanaians to abide by the Constitution, laws and decisions of our courts.
Accordingly, all stakeholders, despite the earlier reservations or opposition of some, have scrambled in recent days to comply with directives of the EC to ensure the conduct of peaceful elections in December on the basis of 275 constituencies. Kudos to all who have played key roles in such a classic demonstration of the operation of the principle of the Rule of Law in Ghana!
Professor Paul Kuruk,
Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, Oxford University (St. Peter’s College), England; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.