Supreme Court Ruling, Has NPP Bitten More Than They Can Chew?

By Kofi Ata, Cambridge, UK

Yesterday, the Supreme Court ruled that the Constitutional Instrument (CI), which created 38 constituencies based on electoral areas established under the NPP administration was unconstitutional (see “38 MPs thrown out by Supreme Court”, Ghanaweb October 18, 2012). This followed a suit filed by Dr Clement Apaak an NDC member or sympathiser, which was the direct consequence of NPP challenging the Electoral Commission’s decision to create 45 new constituencies for the December general elections at the Supreme Court. As I am not a lawyer, let alone a Constitutional Lawyer, I do not intend to analyse the legal or constitutional implications of this judgement. Instead, I want to pose a number of burning questions that I have been struggling with since I read the Supreme Court decision on the electronic media and leave the analyses for the experts (legal brains and luminaries) to do justice to them rather confused readers.

First, let say that the decision, though legally sound came to me as a surprise because I assumed initially that the claim by Dr Apaak was frivolous and vexatious as I thought the main objective was to achieve the usual NDC/NPP “politics of equalisation”. I was unaware that the CI was introduced in parliament by the then Minister for Local Government based on electoral areas that were established by the minister and not on behalf of the Electoral Commission (EC) as required under the Constitution.

My first questions are: for how long has Dr Apaak known about this unconstitutionality and why did he not take the appropriate steps to challenge this constitutional anomaly or illegality until NPP aligned lawyers went to the Supreme Court to challenge the creation of the 45 new constituencies by the EC?

Though late, the outcome of Dr Apaak’s suit should be welcomed as it is a contribution to developing constitutional governance in Ghana and will also strengthen democratic institutions through separation of powers (checks and balances between the Executive, the Legislature and the Judiciary). These are critical to the success of democracy, particularly, since Ghana’s Legislature has become an appendix of the Executive, instead of scrutinising and making sure that the Executive is accountable.

This case has also thrown up the existing weakness of the citizenry, civil society groups and corporate bodies in demanding and exercising their rights under the Constitution. It also shows that the Judiciary may be handicapped in the exercise of its oversight functions over the actions and omissions of the Executive and the Legislature if citizens do not exercise the right to challenge actions and omissions of the two organs of state through the Judiciary. As it is clear from this case, the ‘illegality’ has been allowed to stand for at least, eight good years because there was no challenge by an individual or corporate body. Had this suit not been instigated by default, Ghana’s Parliament would have been acting under a cloud of unconstitutionality for generations to come.

The next questions go to the NPP and those who were strongly opposed to the creation of the 45 constituencies by the EC. If they aware that this would be one of the unintended consequences of the legal challenge, would the NPP supporters have embarked upon their legal action? Those who instituted the court action against the EC claimed that the decision of the EC to create the new constituencies very close to the December elections would create chaos and potential for conflict in Ghana. Is this ruling not creating confusion and possible tension that they allegedly tried to forestall? For example, though the Justices were very reasonable not to prevent the EC from conducting further elections in the affected constituencies and electoral areas since that would have been detrimental to the interest of the state and cause irreversible or irrecoverable damage to Ghana, had the Justices decided on the contrary, what would have happened? Would the originators of the claim be licking their wounds for throwing the December elections into a state of uncertainty?

I have assumed rightly or wrongly that there were legal luminaries amongst the NPP (as they claim) who are capable of dealing effectively with such matters than the NDC. Form this case, it appears I may be wrong and in fact, the NPP is no different from NDC on most or all issues. I suspect the NPP may be as incompetent as the NDC but may be pretending to be clever than clever and only take up matters in the courts when in their view, such matters are against their political and personal interests. Did the so-called NPP legal luminaries not spot the unconstitutional CI?

Notwithstanding the above, we should be thankful to those who initiated this case because it has yielded an unintended positive outcome, whatever the final outcome of the original claim next week.

My next sets of questions are for legal luminaries and constitutional experts and I hope Professor Paul Kuruk and others who have written some excellent articles on this subject will be providing some educative analyses on Ghanaweb and other electronic media for those of us who are not legally knowledgeable on such a complicated subject.

If the CI that was introduced in parliament and for which the 38 constituencies or electoral areas were created was unconstitutional, were the presence of those MPs in Parliament constitutional? If no, could legislation passed with the support of those MPs be unconstitutional and if so, what would happen to such Acts, CIs, agreements, particularly international agreements between Ghana and other countries and corporate bodies? If the MPs have been representing the affected constituencies for the past eight years unconstitutionally, will they also be receiving the new salary increment and their end of service sufferance? Are they legally entitled to even their salaries and all the privileges they have enjoyed as MPs when they were elected under unconstitutional CI? Could there be further legal challenges at the Supreme Court on the questions raised herein?

This case may throw up many inconveniences and also a good case study for legal experts and law students. One lesson that I hope Ghanaian politicians, especially from the two leading political parties (NDC and NPP) will learn from, is that, they must work in a bi-partisan cooperation on bills, agreements and CIs in the august house in the interest of Ghana, rather than opposing anything and everything to score points against each other for political expediency. Such antagonistic approach is in no one’s interests but would in the future embarrass the nation when a bill that has been debated by the house and passed into Act would be ruled unconstitutional by the Supreme Court. In the unlikely event of that happening to an international agreement between Ghana and a corporate body, that could have serious financial ramifications for the country. Bearing, the huge amount of scarce state resources that have been wasted on judgement debt payments, is it not time for NDC and NPP to reason and find a common platform for cooperation in the next parliament, whoever wins the Presidency?

Rawlings and Nana Akufo Addo have opened a new chapter of cooperation and coexistence in the annals of Ghanaian politics by offering the olive branch. Can their respective parties, members, supporters and sympathisers seize this golden opportunity to embrace a new dawn of partnership, collaborative and consensus politics? They should remember the saying that, when two elephants fight, it the grass that suffers, though in this case, it’s only one Big Elephant against a Giant Umbrella.

I hope to read from the legal experts with analyses and the implications of this important judgement as well as answers to my questions.

Kofi Ata, Cambridge, UK