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Opinions of Wednesday, 5 February 2003

Columnist: Asare, Kwaku S.

The Wulensi Matter: When 1 is better than 4

So why does the highest court of the land, the Supreme Court (SC), lack jurisdiction to hear the appeal filed by Samuel Nyimakan on his disqualification as the MP for the Wulensi constituency?

According to Justice Seth Twum, writing for the court’s 4-1 majority, the answer can be found in the latin maxim, “generalia specialibus non deoragant,” which literally means “general things do not derogate from special things.” In the realm of statutory interpretation, the maxim simply means when 2 statutes (or article of a constitution) are in apparent conflict, the provisions of the general statute must yield to the specific statute.

And what has any of these got to do with the SC’s jurisdiction, or lack thereof, in the Wulensi case? Well, according to article 131 (a),

    “An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court, as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction."
This article clothes the SC with general jurisdiction to hear appeals of civil and criminal cases emanating from the court of appeal. Therefore, taken by itself, article 131 (a) unlocks the doors of the SC to Samuel Nyimakan.

There is, however, article 99 (1), which grants jurisdiction to the high court to hear and determine any question whether – “a person has been validly elected as an MP or the seat of a member has become vacant.”

Further, article 99 (2) provides that “a person aggrieved by the determination of the high court under this article may appeal to the court of Appeal.” This article clearly clothes the Court of Appeal with appellate jurisdiction to hear the election disputes described in 99 (1) but is notoriously silent on whether this jurisdiction is final. Thus, the controversial issue is whether article 99 (2) effectively shuts the doors of the SC to election disputes. If so, for purposes of determining election disputes, article 99 (2) may be said to have arrested or ousted the general jurisdiction of the SC.

Apparently, the court read these two articles as creating “rival appeal procedures:” a three-tier general appellate procedure, under article 131, and a two-tier election appellate procedure, under article 99. And by applying the “generalia specialibus non derogant” maxim, it concluded that article 99 (2) should have priority in election disputes. I have four problems with the court’s analysis.

First, while a maxim, such as the one relied upon by the majority, is a useful guide for interpretation, it is a not a binding rule. This means it is unsatisfactory for a court to mechanically invoke a maxim to resolve an apparent question of conflict, assuming that one exists, without commenting on either the general or specific statute. Maxims are best considered “axioms of experience,” which must bow to the intention of the framers, if that intention can be ascertained from all the relevant articles in the constitution. Put bluntly, maxims are secondary guides to interpretation but not a court’s initial, and certainly only, port of call when resolving an apparent inconsistency.

Second, since the fundamental issue, faced by the court, is whether article 99 (2) ousted the SC’s general jurisdiction in article 131, a more relevant exercise is to search the constitution to ascertain how, if ever, the framers ousted this general jurisdiction, elsewhere in the constitution. Such an exercise will take us to article 48, which deals with electoral demarcations. For these disputes, the framers invested original jurisdiction with a 3-person tribunal appointed by the Chief Justice. More significantly, appellate jurisdiction was granted as follows in article 48 (2):

    “A person aggrieved by a decision of the tribunal referred to in clause (1) of this article may appeal to the Court of Appeal whose decision on the matter shall be final.”
Article 48 (2) makes it rather clear that the framers, when they wanted to, knew how to arrest the general jurisdiction that it granted to the SC in article 131. Why do we have a finality clause in article 48 (2) but none in 99 (2)? There can be only reason, which is no finality was intended in 99 (2)!

Given that the framers knew how to grant and arrest jurisdictions, we should not find ourselves in a position, as we now do, where our Justices are divining final jurisdictions from a Latin maxim. Justice Seth Twum, writing for the majority, seemed to be aware of the importance of this when he states “it is trite law that all appellate jurisdiction must be conferred expressly by statute.” It would have been more refreshing if the majority had taken this trite law more seriously. What is conferred expressly must also be ousted expressly!

My third bone of contention, which, regrettably was poorly addressed by the court’s majority, is why the framers might have wanted to limit “election disputes” to the court of appeals. Had the court’s majority found and provided a plausible reason for such a limitation, their conclusion would have been more comforting and justifiable. Alas, the majority did not provide any plausible reasons. Rather, the majority appeared to find solace in the lame argument that the “election appeal process” was to save time and assure that a person, who was unlawfully elected, do not remain in parliament for any undue length of time. The court cites the 21 days limitation period in PNDCL 284 (i.e., a petition must be brought within 21 days after the date of the publication in the Gazette of the results of the elections) to support this hypothesis.

As Justice Sophia Akuffo noted, in her brilliant dissent, this time-saving justification is hooey because the slow pace of justice, in election disputes as in other disputes, are best redressed by case management rather than “through the supply of words not clearly or by necessary implication furnished by the constitution.”

The final point, which seems to have been lost to the court, is that “election disputes” come in many colors, some bordering on mechanics (e.g., vote counting and tallying, etc.) and some bordering on constitutional interpretation. The 1996 dispute between George Amoo and Rebecca Addo, for the Ayawaso constituency seat, fits the former profile. These types of disputes mainly involve factual and other clerical matters. It may well be that the SC need not burden itself with such clerical determinations. I believe article 99 sufficiently covers such determinations.

On the other hand, as I have opined elsewhere, the Wulensi case is inextricably linked with the interpretation of article 94, or what I call the "attachment clauses." The question that the trial judge faced, which is baffling all of us, is the meaning of “hail from a constituency” or “reside in a constituency?” Nyimakan’s appellate stand is that the trial judge misconstrued the meaning of these clauses. The practical effect of the court’s ruling is to bar the SC Justices from interpreting article 94, as long as one initiates the litigation under article 99. This is an unacceptably absurd result.
Further, it is trivial to see that election disputes may occur even before the elections, contrary to the maintained assumption in the majority opinion that election disputes must come after the elections, and no later than 21 days after the results are gazetted. Indeed, it is ideal for questions pertaining to qualifications to be raised and addressed before, rather than after, the elections. This will prevent the situation, as we now found ourselves, of seeking to disqualify a candidate that the voters have elected.
But supposing I decided to invoke article 94 to disqualify an “alien candidate” before the elections. Where must I go and under what article? Article 99 concerns itself with issues of whether an MP has been validly elected. Since the elections are yet to take place, only a tortured interpretation of that article can give me a basis for its invocation? Am I then stuck and must I wait for the country to have a general election, only for me to seek to undo the results, as is now happening in Wulensi?
On paper, it appears I simply could invoke the original jurisdiction of the High Court under article 131, which invocation will put me in the so-called three-tiered appellate process. In the alternate, I could assert my article 2 (1) rights and simply ask the SC to declare that the candidate is in violation of article 94. Either way, I have a found a way to get to the SC to determine the same question, which the SC now tells us it is not allowed to determine.
Unfortunately, this common sense route to disqualifying the “alien candidate” may not be available because of the SC’s ruling in Yeboah v. J. H. Mensah (1999 SCGLR 492). In that case, the plaintiff went to the SC, under article 2, for a declaration, inter alia, that under article 94 (1b), the defendant was not qualified to be an MP. The SC ruled that the plaintiff’s action was in substance and reality, an election petition determinable only by the high court under article 99. But how can that be if section 18 (1) of PNDCL 284 provides that “an election petition shall be presented within twenty one days after the date of the publication in the Gazette of the result of the election to which it relates” and subsection (2) says “the presentation of an election petition under subsection (1) shall not be valid unless within the time specified in subsection (1)?”
Either Yeboah v. Mensah does not fall under article 99, contrary to the SC ruling, or if it does, it evidences an unimaginable preference for waste. For why should we wait for an election only to then start disqualifying the elected candidates? Fortunately, I can see no reason why this bizarre result follows from the constitution itself. It seems to me that the difficulty in the Yeboah case, as continued in the Nyimakan case can be avoided by recognizing that election disputes take many forms and can occur at various times, including, before the election. This will dismiss all the absurdities that are beginning to characterize our election disputes. For instance, under this common sense regime, Yeboah and Nyimakan will properly be considered as qualification or pre-election issues, which can fall under article 140 or even article 2 (the constitutional questions). In contrast, Amoo will be considered as a post-election issue, to be decided under article 99, with its 21-day limitation period. Practically, this approach will disentangle the question of whether one is qualified to be an MP from that of whether one has been duly elected. But more important, this approach will reserve all election-related constitutional questions for the SC, as it should be!
In conclusion, whether it is article 131 or article 48 (2) or elsewhere, the framers EXPRESSLY and in plain words told us who has final jurisdiction in criminal cases, civil cases, electoral demarcation, etc. From this, we must conclude that the framers knew how to confer final jurisdiction and avid divining jurisdictions from Latin maxims! It is my hope that the SC will rectify this problem when it reviews the case on February 18. Further, it is my hope that the SC will adopt a common sense approach to the substantive question, which deals with “hail from” and “reside in.”