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Opinions of Wednesday, 12 September 2012

Columnist: Osafo-Maafo, Yaw

Open Letter To Afari-Gyan And Electoral Commission

The creation of the 45 additional Constituencies has raised a lot of controversy in the country and systematically undermining the peace prevailing in the country. Certainly there is tension in the country. The controversy does NOT challenge the Constitutional Powers of the Electoral Commission (E.C.) under Dr. Kwadwo Afari-Gyan to create new constituencies at a point in time as stipulated in the Constitution but the TIMING of it with special reference to the next elections slated for the 7th of December, 2012 less than 3 months from now.
The most dangerous thing to do in the interpretation of any Law or the Constitution of 1992 for that matter is to give it a narrow interpretation disregarding the overall intention of the document. In interpreting the Constitution people always talk about the LETTER and SPIRIT of the Constitution. While the “Letter” refers to the specific clauses in the Constitution and powers such clauses confer on people, institutions, etc., the “Spirit” refers to the relationships of the various specifics, the rationale underpinning the various clauses as well as their overall intentions in the attainment of the ideals of rule of law, good governance and the promotion of democracy, peace and stability in the country.

The whole document-Constitution guarantees the Freedom and Rights of all Ghanaians and provide for adherence to democratic principles in all our undertakings. Yes, the E.C. has the right and power to create new constituencies, so is the leadership of various political parties in the country enjoined by the same constitution to run their respective political parties along democratic lines. Article 55(5) under “Organization of Political Parties” of the 1992 Constitution states that “The internal organization of a political party shall conform to democratic principles and its actions and purposes shall not contravene or be inconsistent with this Constitution or any other law.” This places a responsibility on Political Parties to adhere to democratic practices. So should any Ghanaian seeking to hold any office in any political party forgo his or her right to contest in accordance with one’s Party’s Constitution and the Political Party’s Law and the National Constitution just because the time left after creating the constituencies does not permit the observance of democratic principles in the parliamentary primaries for the newly created constituencies?

As a former member of the Consultative Assembly and the Chairman of the Committee on the “Rights of the People” which handled all the constitutional provisions related to the functions of the Electoral Commission, Political Parties and all Chapters which dealt with the Rights of the People under the 1992 Constitution, I am firmly of the view that the timing of the implementation of the creation of new constituencies is as important as the powers of the E.C. to create the same.

This is particularly so when account is taken of the fact that the Constitution in its Article 47(5) accords to the E.C. flexibility in the determination of when to create new constituencies after every population census. Article 47(5) states that “The Electoral Commission shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies.” This article thus grants to the E.C. a period of up to one year after a population enumeration exercise to conduct a review of electoral boundaries in the country, in consequence of which the E.C. may decide to alter the boundaries. The E.C., as admitted, is altering the existing electoral boundaries pursuant to the population enumeration figures published in May, 2012. This clearly gives the E.C. up to May, 2013 to alter the constituencies in place. So in the first place, the E.C. is not under any constitutional or legal imperative to create new constituencies before the 2012 elections on 7th December.

On timing, Article 47(6) states that “Where the boundaries of a constituency established under this article are altered as a result of a review, the alteration shall come into effect upon the next dissolution of Parliament”. With respect to the dissolution of Parliament, Article 113 (1) states that “Subject to clause (2) of this article, Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved.” For the purposes of clarification, clause 2 deals with a situation when the country is in crisis such as at war. This alteration is to come into effect on the next dissolution of Parliament which in this case is January, 2013 because of the timing of the laying of the Constitutional Instrument which is currently before Parliament for consideration. The E.C. chose to exercise the power conferred on him at the beginning of the 12 month period necessitating the creation of the new constituencies before the end of the year which makes the time for implementation by Political Parties such as nomination, filing and canvassing for votes, etc extremely short.

On the other hand, if as allowed under the law, the EC had decided to create the new constituencies next year so as to allow him sufficient time to prepare, the additional ones would have come into effect following the dissolution of Parliament in January, 2017.

As you are aware of, the issue of timing has been addressed variously when it comes to the Representation of the People. For instance, whenever a vacancy occurs in Parliament 3 months to the next dissolution of Parliament the vacancy is not filled till the next General Elections. Obviously, this is too short a period for a new person to function as a Member of Parliament with the possibility of another person being elected to take his place in less 3 months on a more permanent basis.

In the Spirit of the 3 month period, this should guide the actions of the EC not to mention the longer time the 12 months given the EC to put things in place properly. It gives time also for the bigger issue of the optimum number of constituencies to be dealt with in a more holistic manner. Currently the EC has to ensure that we have a reliable and credible voters register for the 2012 General Elections on the 7th of December.
The concern of the former President, Mr. J.A. Kufuor, the Moderator of the General Assembly of the Presbyterian Church of Ghana, the Trades Union Congress and all others who have expressed concern about the timing of the creation and the consequential implementation as a possible source of problem in the country should NOT be ignored by Dr. Kwadwo Afari-Gyan.

Dr. Afari-Gyan, the Constitutional Instruments should be prepared with care and in a very meticulous manner so as to avoid possible confusion and disaster. Why should Political Parties set aside the mandatory provisions of their own internal regulations, Party Constitution and the Political Party Law only to comply with the wish of the E.C. to create new constituencies at this time? As noted earlier, the Constitution requires all political parties to conduct their internal affairs democratically, and this implies respecting the rights of all candidates who wish to present themselves as candidates enough opportunity to campaign and compete effectively in primaries to be conducted.
Perhaps if the Consultative Assembly knew that the rights of the Leadership of Political Parties to conduct Constituency Elections, Parliamentary Primaries and all other internal arrangements which will enable Political Parties cope with the creation of new constituencies about 10 weeks before elections would be disregarded in such a manner, a time limit would have been imposed on the Electoral Commission to the effect that there should be at least one year between the maturity of the Constitutional Instrument creating new constituencies and the use of such constituencies in an election. This type of time limitation is unnecessary if Dr. Afari-Gyan would be fair and reasonable with the other stakeholders in the political arena. After all, the law gives you 12 months or 7 years to review constituency boundaries.

Dr. Afari-Gyan in steering the affairs of the E.C., is also bound by the provision in Article 23 to act fairly and reasonably, and in accordance with the dictates of any law affecting the E.C.'s work to act reasonably implies taking due account of time frames and limits for the taking of any decision.
Dr. Afari-Gyan was worried about the call on him to listen to the voice of reason and NOT the Commission – Yes some International Institutions gave awards to Dr. Afari-Gyan for the good work done by the Commission and did not reward all the 7 members of the Commission.

Dr. Kwadwo Afari-Gyan was invited by the AU, the World Bank, etc., to assist with the conduct of elections in other countries but NOT the whole Commission. It is natural for the Chairman of the Commission to be rewarded for the good works of the Commission and also for the Chairman, Dr. Kwadwo Afari-Gyan, to be blamed for any shoddy work of the Commission.

In this vein, I call upon the leadership of the National Peace Council, leadership of the various religious bodies, the Trades Union Congress, Civil Societies and all Peace Loving Institutions and Individuals in the country to call on the Chairman of the Electoral Commission, Dr. Kwadwo Afari-Gyan, to create the 45 new constituencies as he is about to do but use the same for the National Elections in the year 2016.

Dr. Afari-Gyan, you have led the Commission to keep the peace of this country during some turbulent periods-you must NOT undermine your own good record. You must keep both the LETTER and SPIRIT of the 1992 Constitution. Yes create the new constituencies as envisaged under the Law but such constituencies should not be used for the 7th December, 2012 elections.

Please, Dr. Kwadwo Afari-Gyan, pay heed to the counsel of those who are advising you for the sake of democracy, peace and stability of the country.

Thank You.

Ing. Yaw Osafo-Maafo, FGhIE.
Former Member of Parliament.