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Opinions of Friday, 25 December 2020

Columnist: Kow Essuman, Esq

The creation of the Guan Constituency: The true position of the law

Lawyer Kow Essuman, Author Lawyer Kow Essuman, Author

In the last few days, there have been discussions in the media and on social media regarding the creation of a new Guan Constituency. It is important that as these discussions are taking place, there is accurate information in the public domain to give Ghanaians the opportunity to understand the constitutionally laid down process for the creation of a new constituency, and the steps taken so far by the relevant constitutional institutions in respect of creating the Guan Constituency.

First of all, on 9th November, 2020, Parliament passed the legislative instrument for the creation of Guan District – Local Government (Guan District Assembly) (Establishment) Instrument, 2020. Until its creation, Guan District was part of Jasikan District, and under Buem Constituency. The creation of the Guan District meant that the Electoral Commission (“EC”) was now under an obligation to create the Guan Constituency, to preclude the Member of Parliament for Buem from representing the people in both Jasikan and Guan Districts, which is unconstitutional.

With this in mind and given the very limited time that the EC had to begin the processes to create the Guan Constituency, the EC decided that registered voters in the newly created Guan District should only vote in the presidential elections and not the parliamentary elections, which would elect an MP for the Buem Constituency.

The Guan Constituency is yet to be created because Parliament went on recess on 9th November, 2020, ahead of the general elections and resumed on 14th December 2020, after the general elections. The break in parliamentary sitting days made it difficult for the EC to lay the constitutional instrument that will amend the Representation of the People (Parliamentary Constituencies) Instrument, 2020 (C.I. 128) (the current regulations on the creation of constituencies). Furthermore, Parliament’s timetable is so tight that the EC is constrained in laying the amending constitutional instrument. The 7th Parliament will not sit for 21 days, which is required for subsidiary legislation such as the one amending C.I. 128 (see article 11 (7) of the Constitution), before it is dissolved on the midnight of 6th January, 2021. Parliament rose on 22nd December, 2020, and as at the time of rising, the amending constitutional instrument had not been laid. Moreover, the EC has, by a notice to the public dated 21st December, 2020, announced that it was going on a break on Wednesday, 23rd December, 2020 and would resume duty on Tuesday, 19th January, 2021.

In the circumstances, the only logical, constitutional and practical thing for the EC to do, is to wait for the 8th Parliament to be sworn in on 7th January, 2021, and then lay the constitutional instrument amending C.I. 128. The constitutional instrument, when laid, must stay in Parliament for 21 sitting days and shall come into force if two-thirds of Members of Parliament do not annul it. (See article 11 (7) of the Constitution). It is after the passage of the amended constitutional instrument that the EC can contemplate the holding of any election in that created constituency.

It should be noted that the Supreme Court has ruled on when elections can be held in a newly created constituency, which must be read together with article 47 (6) of the Constitution, which states: “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.”

Accordingly, even when the constituency is created in the 8th Parliament, it will not come into effect until the dissolution of the 8th Parliament, but rather, it will come into effect in the 9th Parliament. This will also ensure that the Guan Constituency is represented in Parliament for a full 4-year term in accordance with article 113 (1) of the Constitution.