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Opinions of Sunday, 16 September 2012

Columnist: Atugiya, David

The Supreme Court Must Uphold The Rule Of Law

CI 78: The Supreme Court Must Uphold The Rule Of Law And Protect Its Integrity And Independence

On the 19th September 2012, barring any last minute hiccups, the eyes of Ghanaians and the whole world will be fixed at the Supreme Court to hear the rule on a frivolous and unmeritorious interim injunction by an individual Ghanaian to prevent Parliament from passing the C178 to give legal backing to the Electoral Commission (EC) to create 45 new constituencies. And that the EC breached the law in laying the CI78 before Parliament

The reason shamelessly argued in Court by the counsel of the plaintiff is that the plaintiff was or is seeking the interim injunction pending hearing of a substantive suit filed challenging the constitutionality of the CI 78 which is before Parliament. Hence the plaintiff lawyers prayed the Court to restrain Parliament from sitting on the case until the plaintiff substantive case is heard.

In my candid opinion based on my cursory look at the Constitution (which I urge other Ghanaians to have a look at and not leave it to only our legal friends) especially Article 47(5) that gives EC powers to 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; the Supreme Court has no other option than to rule in favour of the EC and the Attorney for two simple reasons.

First, as indicated the case before the Supreme Court has no merits. It is a cynical attempt and abuse of court process by the plaintiff and his lawyers. The lawyers of the plaintiff know to well that injunctions are mostly sought from the lower courts. The fact that the plaintiff has a substantive case pending at the Supreme Court does warrant him to bypass the low courts and head to the Supreme Court to seek an injunction. This is a typical spinning of the court processes.

Secondly, the Constitution provides for the independence of the three arms of government namely the Executive, Judiciary and the Legislature. There is nowhere in the Constitution that gives power to the Judiciary to interfere with the work of Parliament. The provision of checks and balances in the constitution for the three arms of government must not be misconstrued to mean one arm of government can interfere with the work of others.

Even in the substantive suit which the plaintiff is praying the Supreme Court to perpetually restrain the EC from laying before Parliament any Constitutional Instrument (CI) creating new constituencies and/or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 (C.I.46), until it laid before Parliament a Constitutional Instrument which clearly sets out the processes to be adopted by the EC; one cannot see how the Supreme Court would rule otherwise in favour of the plaintiff when on 4 March 2004, the Supreme Court ruled in support of the Electoral Commission’s decision to create 30 new constituencies prior to the conduct of the December 2004 elections.

For the Supreme Court to rule otherwise in favour of the plaintiff in both the Interim Injunction and the substantive cases, as counter argued by the EC and the AG, will cause a legal and political ‘Tsunami’ that will cause an unimaginable chaos not only for the EC but the country as a whole.

The opposition NPP and its cohorts have sadly and vainly been attempting to influence the outcome of decision of the Supreme Court by their sickening campaign of vilification against Dr Afari Gyan and the EC.

Ghanaians should know that it is not for nothing that the NPP gurus like former President Kufour, Sir John, Nana Akomea, Nyaho, Tamakloe, Osafo Maafo and co have waged a relentless orchestrated attacks on Dr Afari Gyan for the decision the EC has taken to create 45 new constituencies for the December 2012 elections; even though they concede the legitimacy of the actions of the EC except the timing of the actions taken.

The game plan of the NPP rabble rousers and their political friends is to up the stakes on the CI 78 and make it seem like the creation of the 45 new constituencies close the elections will cause hell to break loose in Ghana. And in so doing they will play into the minds of the Supreme Court Justices who may sit on the interim injunction and substantive case to rule against the EC, and stop them from going ahead to create the new 45 constituencies; even though the NPP and its ilk know too well that the EC in laying CI 78 before Parliament has not broken or contravened any law.

While there may be merits in the arguments about the timing of the actions of EC, the solution does not lie in people heading to the Courts or attacking the EC when no wrong has been done by the EC. Infact the delays and errors that characterised the laying of the CI as well presented by the PPP in one of its press statements rest with Parliament, which the minorities MPs are partly to be blamed for their actions and inactions.

The EC faced the same opposition in 2004 when Justice George Lamptey, a former Supreme Court Judge and past President of the Ghana Bar Association, Sam Okudzeto, advised the EC against the creation of the additional constituencies for the 2004 election because it would amount to a violation of the 1992 Constitution.

Afari Gyan and the EC therefore must be commended for standing their grounds in the face these shameless attacks.

The interim injunction and the substantive suits before the Supreme Court are cases that will test the resolve of the highest court of the land, the Supreme Court. It is therefore incumbent upon the Supreme Court Justice (s) to rise above any undue political interference or influence and uphold the rule of law to protect their integrity and independence.

David Atugiya

The author is a Human Rights and Social Justice Campaigner, Finance and Management Consultant; Specialist in NGO; Chartered Fellow CMI and Millennium Awards Fellow.