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Opinions of Tuesday, 20 March 2012

Columnist: Ata, Kofi

Is Danquah Institute’s Warning/Threat of Legal Action Against the EC is Folly?

By Kofi Ata, Cambridge, UK

The Danquah Institute is reported to have warned the Electoral Commission not to create new constituencies based on the boundaries of new forty two districts that are soon to be created. The Institute further threatened to challenge the Electoral Commission at the court if the EC creates new constituencies based on the new districts (see “DI Warns: EC Cannot Create New Constituencies Based on New District”, Ghanaweb 19 March 2012). The thrust of their argument were that, the government by creating the new districts is compelling the Electoral Commission to create new constituencies based on the boundaries of new districts. That, there is no legal basis to support the idea that constituency boundaries must be in conformity with district boundaries and suggests that they could overlap. Finally, it also alleges that the creation of new constituencies based on the proposed 42 districts would be an electoral advantage to the government in the 2012 elections. The Institutes quoted extensively from the 1992 Constitution, the Local Government Act 1993 and PNDC Law 284 of 1993 to buttress their arguments.

Interestingly, the Institute or those who wrote the statement failed to provide any shred of evidence by way of case law or “customary practice” to support their legal reasoning. That is, either past court decisions or what has been happening with the creation of new districts and constituencies in the past, particularly under the Fourth Republic? That made me to question the real motives of the Institute or those behind the statement in coming out with such weak legal analysis and a issuing an empty threat to take legal action against the Electoral Commission to stop it from creating new constituencies before the 2012 elections. This is very disingenuous on their part and smacks of a plain attempt to frustrate the creation of new districts before the elections.

I am not a lawyer but I am aware that the Director of the Institute is a qualified lawyer or solicitor. I am also sure that there may be other lawyers at the Institute and as lawyers, they know that the 1992 Constitution and all Constitutions do not cover every mater of administrative structures and governance (as they pointed out that the Constitution is silent on the subject of concern or interest to them). They should have also been aware that, in the absence of such directions and guidance from the constitution, primary and secondary legislation, the right approach in determining any ambiguity is to consider what is commonly known as “customary practice”. So before the Institute issued their misguided warning and threat of legal action against the Electoral Commission, they should have familiarised themselves with how new districts and new constituencies have been created under the Fourth Republic.

The answers to the following questions would have resolved their worries, fears and anxieties and perhaps could have avoided their uncalled for warning to the Electoral Commission. First, under the first NDC government from 1993 to 199/2000, were any new districts and constituencies created? If yes, were boundaries of the new constituencies based on the boundaries of the newly created districts? Second, under the government of the NPP between 2000 and 2008/9, were new districts and new constituencies created? If yes, were the boundaries of new constituencies based on the boundaries of the newly created districts? If the answers to either the first or second questions are affirmative, then Danquah Institute has no case and no justification for their warning as well as the threat of legal action against the Electoral Commission. Though I do not have the evidence, I would be surprised if the answers to both questions were anything but negative. I am very confident that both the NDC government under Ex-President Rawlings and the NPP government under Ex-President Kuffuor created new constituencies based on newly created districts and their boundaries also conformed to one another.

The Danquah Institute also alleged that the government is creating the new districts to compel the EC to create new constituencies based on the proposed districts for electoral advantage. That is absolutely true and should not have been surprising to the Danquah Institute. In fact, I am disappointed that a reputable institution such the DI should raise eye brows over this. I am disappointed because this is done in every democracy all over the world and I am positive that the NPP government under Ex-President Kuffour might have done the same.

In the UK, one of the oldest democracies in the world, governments after governments redraw constituency boundaries for electoral advantage. For example, the Prime Minister promised to reduce the number of MPs in the House of Commons from the current six hundred and fifty to six hundred in the next parliament. The new constituency boundaries proposed by the Boundaries Commission show that the Labour Party would lose 27 of its Westminster MPs but the Conservatives would lose only 10 MPs, whilst the Liberal Democrats will lose 9 MPs. In percentage terms, the Conservatives would lose only 3.2 percent of their current MPs with Labour losing 10.5 percent and Liberal Democrats 15.8 percent. There is no logic behind the new figures but simply done for electoral advantage. In addition to the numbers, the proposed constituency boundaries are such that they favour the Conservative Party to gain more MPs at the next elections. The Labour Party acted in similar fashion when they were in power and would have done the same if they are still in office. This also happens in most western democracies, despite the fact the constituency boundaries are redrawn by independent bodies. In the 2000 US elections some Republican Governors instituted measures that disproportionately disenfranchised Democratic voters in their States and it’s been reported that the tactics are being repeated by certain Republican Governors for the 2012 elections to ensure Obama’s defeat. It’s not fair but not unlawful.

In any case, redemarcation of the new district boundaries by the NDC government for electoral advantage (if the new constituencies are based on the new district) would only benefit the party in the parliamentary elections but not the Presidential elections since the Presidential elections would be decided on the total number of national votes. It is plausible for a presidential candidate to win more constituencies but still lose the elections as Nana Akufo Addo nearly won the Presidential elections in 2008 though he won fewer regional votes compared to President Mills. Though it’s better for both the candidate who wins the Presidential elections to have a parliamentary majority, I am positive that the Danquah Institute would be more than happy with victory for Nana Akufo Addo even if NPP does not regain its parliamentary majority in 2012.

But why is the Danquah Institute warning the Electoral Commission and threatening legal action over this matter when they have not done their home work well? Is the Institute an integral part of the NPP or mouth piece of the Nana Akufo Addo election campaign? Is the Institute a political party masquerading as a Think Tank? I have no qualms with the Danquah Institute for raising this matter. However, I find it preposterous for the institute to attempt to use the law without providing any evidence (case law or customary practice) to support its case. As an intellectual institution, it does its reputation no good by just restricting its analysis to only areas that favour its cause, whether good or ulterior. Such modus operandi discredits its integrity and reduces their argument to another political gerrymandering. The gospel fact is that, the real objective of the Danquah Institute is not to strengthen democracy but to frustrate or delay the creation of new constituencies before the 2012 elections with the ultimate objective of enhancing Nana Akufo Addo’s electoral fortunes in the 2012 elections. In other words, the Institute is attempting to misuse the law through threats or the Judiciary to secure the same political advantage they are complaining about. Clever, isn’t it?

The Institute sometimes comes across as all knowing but often ends up portraying arrogance, ignorance, naiveness or simply intellectual bankruptcy. They can fool some of the people some of the time but not all the people all the time, though I must admit that they get it right sometimes. My advice to Danquah Institute is that, prior to your planned legal action against the Electoral Commission, go back, analyse and examine the creation of all the districts and constituencies under the Ralwings and the Kufuor regimes. That may weaken or strengthen your case. I have no doubt that you might realise your folly after that and hope you would not act in an irrational manner that would make you look like legal suicide bombers. Have a good day.

By Kofi Ata, Cambridge