Wulensi Case is far From Over

Is the Wulensi parliamentary seat up for grabs or not?
According to the Electoral Commissioner, it is, and he has scheduled a bye-elections on February 20, 2003. It is reported that both the NPP and NDC are getting ready for this election, which is expected to cost each party over 100 million cedis.

However, it is doubtful that this bye-election will come on at all as the incumbent MP, honorable Samuel Nyimakan, has asked the Supreme Court to review its 4-1 decision that effectively disqualified him as as MP.

Honorable Samuel Nyimakan is also asking the Supreme Court to empanel all its members, for the review, to prevent a situation where an additional two is added to the original 5 justices, which will all but ensure an affirmation of the earlier decision. The Supreme Court has scheduled the review for February 18, 2003.

Meanwhile the honorable MP has scheduled a press conference for tuesday and the talk radios and print media have picked up their intensity in the coverage of the case, which has far reaching implications for many of the current MPs as well as future aspiring MPs.

The facts of the case as narrated by one of Ghanaweb's columnists is as follows:

Mr. Nyimakan filed his papers on September 12, 2000, on the ticket of NDC, to contest for the Wulensi parliamentary seat in the December 2000 elections. As is the norm, the Electoral Commissioner (EC) screened his nomination papers to determine his eligibility as a candidate, according to criteria stipulated by article 94 of the constitution. The EC did not find any defects in the nomination papers and placed him on the ballot. Moreover, none of the citizens, in Wulensi constituency or elsewhere, challenged his eligibility. By a notice published in the Gazette dated January 5, 2001, the EC declared Samuel Nyimakan the winner in the December 2000 parliamentary elections.

Shortly after Nyimakan had been sworn in, Mr. Fuseini Zakaria, a Wulensi constituent, petitioned a Tamale high court to declare the elections of Nyimakan null and void. The petitioner alleged that Nyimakan (a) does not hail from the constituency; or (b) he is not resident in the constituency; or (c) he has not lived there for periods that add up to 5 years in the last 10 years. Article 94 (1b) specifies that a candidate for a parliamentary seat must meet at least one of these 3 criteria. It seems the framers of the constitution wanted a candidate to demonstrate some attachment to the constituency, and such attachment was demonstrable by "hailing from," "current residency" or "significant past residency" (5 out of the last 10 years), in the constituency.

On July 6, 2001, Justice Aninakwa, presiding at the Tamale high court, agreed with the petitioner and disqualified Nyimakan as the MP for Wulensi. However, Nyimakan appealed this decision, which stayed the execution of Aninakwa's ruling. On April 12, 2002, the high court's decision was affirmed, on appeal, by a 3-man panel headed by Justice Georgina Woode (with Justice Stephen T. Farkye and Justice Omari-Sasu as members). However, the court granted an application for a stay of execution to allow Nyimakan to appeal the decision at the Supreme Court (SC).

This allowed Nyimakan to continue to serve as an MP pending resolution of the case at the SC. On November 27, 2002, a five-member panel of the SC, presided over by Chief Justice E.K. Wiredu, adjourned the case sine die. No reasons were assigned for the adjournment. Then, on January 16, 2003, the SC, by a 4-1 decision, ruled that, under article 99, it lacked the jurisdiction to entertain an appeal, after an appeal has been made to the Court of Appeal.

Chief Justice Wiredu, Justice G. K. Acquah, Justice Kwame Afreh and Justice Seth Twum sided with this view while Justice Sophia Akuffo dissented. On the same day, Nyimakan expressed utter outrage at this decision and has, appropriately, initiated steps to review the SC decision.