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Opinions of Monday, 4 January 2021

Columnist: Dr. Richard Amoako Baah

High Court erroneous ruling creates unnecessary tension

File photo: An injunction has been placed on the swearing in Peter Amewu as MP for Hohoe File photo: An injunction has been placed on the swearing in Peter Amewu as MP for Hohoe

The Attorney General has filed a suit in the Supreme Court to stop a Ho High Court order not to swear in MP Elect Peter Amewu.

Reacting to this development, Mr. Abraham Amaliba, one of the leading lawyers for NDC said,

I was so shocked to my bone marrow. What is the interest of the State in this matter? Once again democracy in this country has been thrown to the dogs. Our democracy is suffering. Why would the Attorney General in a matter like this go to the Supreme Court requesting that the Supreme Court quashes the decision of the High Court? What is the interest of the Attorney General in this matter? This is the between the citizens of the Guan area against the MP-elect for Hohoe John Peter Amewu. So where does the AG come in?

Well, I beg to differ with Abraham on this. Instead of being shocked, he should have consulted the Constitution of Ghana. If he had done that, he would have found the following:

1. Article 88 states,

(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.

(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State, and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.

Article 88 clearly explains why the AG went to court. Since the suit involved the Electoral Commission, it means the same as the Attorney General been sued because the AG represents all agencies of government.

Article 33, section 2 states

The High Court may, under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warrant as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.

I have no doubt that the honourable Judge at the Ho High Court based his ruling on the above. However, if the judge had scrutinized the constitution further, he would have found Article 130, which states,

(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in –

(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.

In addition, Since the EC followed CI 51 in doing its job concerning the vote in Hohoe, the High Court cannot interfere unless the EC did not follow the electoral process as dictated in section 41:

(1) Subject to regulation 40 of these Regulations, immediately after the results of the poll for all the stations in his constituency have been given to him, the returning officer shall, in the presence of the candidates or their representatives or not more than two counting agents appointed by each candidate -

(a) assemble the results from the polling stations without recounting the ballots in the ballot boxes, except where there is a challenge by a candidate or counting agent in respect of a specific ballot box;

(b) give public of the total number of votes cast for each candidate;

(c) publicly declare to be elected in a parliamentary election the candidate to whom the most votes have been given;

(d) endorse on the writ the name of the person elected; and

(e) forward to the Commission the endorsed writ and a note of the total number of votes cast for each candidate.

(2) On receipt of a writ endorsed in accordance with this regulation, the Commission shall –

(a) in a parliamentary election publish in the Gazette a notice stating the name of the person elected and the total number of votes cast for each candidate; and

(b) inform the Clerk to Parliament soon after that of the name of the candidate elected.

If the EC followed the law, the Ho High Court cannot prevent the EC from carrying out the provisions outlined in 2 (a) above. The Court must set aside the High Court ruling.