Feature Article of Saturday, 1 September 2012

Columnist: Darko, Otchere

Is The EC Right In Creating 45 New Constituencies At This Time?

By Otchere Darko

The decision of the Electoral Commission to create 45 new constituencies has led to many protests by various Ghanaian groups and individuals. Sadly, though, most of the protests have always followed partisan lines, instead of following the provisions of the 1992 Constitution. As a result of this partisan approach, various arguments adduced, as well as the relevance and validity of such arguments, have always failed to get the public attention and consideration they otherwise deserve. The purpose of this write-up is to bring to the attention of readers three important provisions in the 1992 Constitution that deal with the subjects of: (1) review of the boundaries of constituencies; (2) commencement of the effect of a review; and (3) how a decision of the Electoral Commission in respect of a demarcation of a boundary can, and may be challenged. The precise important provisions being referred to readers are:-

(1) Clause 5 of article 47 of the 1992 Constitution that deals with the creation of new constituencies. It says “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 a census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies.” *Two phrases in the wording of clause (5) should be noted. These two phrases are: “not less than seven years”, and “whichever is earlier”. The phrase “not less than seven years” indicates that the review of the country’s constituencies can be delayed beyond seven years and for as long as the EC wants, provided it is not delayed beyond twelve months after a national population census enumeration figures have been published. The phrase “whichever is earlier” directs that the EC must undertake a review of constituencies before twelve months elapse, after the publication of the results of a national population census, even if it is less than seven years since a previous review of the country’s constituencies has been made. (2) Clause 6 of article 47 of the 1992 Constitution that deals with the coming into effect of newly created constitutions. This says “where the boundaries of a constituency established under this article [47] are altered as a result of a review, the alteration shall take effect upon dissolution of Parliament”. **It should be noted that this clause indicates that newly created constituencies never become effective and, therefore, are not legally recognised as existing constituencies, until the particular Parliament sitting at the time of their creation has come to an end. (3) Clauses (1) and (2) of article 48 of the 1992 Constitution, which deal with the remedies available to individuals or groups that feel aggrieved by a decision of the Electoral Commission concerning the review of existing division of Ghana into constituencies. These two clauses separately provide as follows: Clause (1) says “A person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by the Chief Justice and the Electoral Commission shall give effect to the decision of the tribunal.” Clause (2) says “A person aggrieved by a decision of the tribunal referred to in clause (1) of this article [48] may appeal to the Court of Appeal whose decision shall be final.” ***It is clear from the wording of clause (1) of article 48 that the decision of the EC to create 45 more constituencies can be challenged by any person, individual or group, even before the decision is effected. It is also clear that even if the Electoral Commission and the NDC succeed to use their executive and parliamentary powers to ‘bulldoze’ into law the proposed creation, any person or persons aggrieved by any demarcation arising out of the EC’s decision can challenge it and hopefully get it annulled.

It is clear from the three itemised provisions above that the 1992 Constitution has amply and clearly dealt with the matter of creation of new constituencies by the Electoral Commission and there should be no ambiguity whatsoever as to what are the powers and limitations of the EC, Parliament, the Government, and Ghanaian individuals who may feel aggrieved by a decision of the Electoral Commission in the exercise of his powers.

I therefore strongly appeal to all Ghanaians to put party politics aside and deal with the real issues involved in the decision of the Electoral Commission to create 45 new constituencies, because the wellbeing of Ghana as a whole should take priority over partisan interests.

In my personal opinion, the Electoral Commission’s decision to review the current division of Ghana into 230 constituencies and, by so reviewing, increase the total number of constituencies by 45 constituencies BEFORE the December elections is wrong. Firstly, the EC could create the new constituencies after the December elections, because it would still be within the twelve months time frame within which he is mandated to review the constituencies. Secondly, clause (5) of article 47 that mandates the Electoral Commission to review the division of the country into constituencies does specify that the review shall be upwards or downwards. Since the constitution fully empowers the EC to set the basis of dividing Ghana into constituencies in accordance with the “population quota”, for which the 1992 Constitution gave “a constitutional definition”, for avoidance of doubt; but whose measurement the constitution chose not compel the Electoral Commission to make in relation to any specific “base year”. This means the constitution gives the Electoral Commission enough scope, within the spirit behind article 47, to think and manoeuvre to effect the required review, without saddling the nation with too many MPs to deplete the nation’s coffers, or too few MPs to immobilise effective governance of the country. Thirdly, if clause (5) of article 47 is interpreted to mean that the Electoral Commission must increase the number of MPs in direct proportion to increases in population growth, without regard to other considerations such as the real growth in the country’s economic base, then such interpretation would mean that as Ghana’s population doubles or triples over time, as it does with third-world countries, the number MPs should also double or triple, with the consequential crippling of Ghana’s economy; an interpretation that would be suicidal to Ghana’s economy and its people.

Strangely, even though these 45 new constituencies have not yet been created, NDC and the EC have gone ahead to conduct elections for NDC members to select people to contest in the forth coming parliamentary elections these so-called “new constituencies”, while clause (6) of article 47 of the 1992 Constitution clearly states that “where the boundaries of a constituency established under this article [47] are altered as a result of a review, the alteration shall take effect upon dissolution of Parliament.” This clause (6), in effect, means the NDC elections are being conducted for constituencies that do not exist in law. If these so-called “new constituencies” do not exist in law, then those voting to elect people are not lawful constituents, and those elected are also not lawful.

Were the NDC and EC advised by lawyers before they went ahead to conduct these elections? Do the two bodies, NDC and EC, know that, even if the gerrymandering efforts by the two bodies to create the so-called “45 new constituencies” succeed, the NDC members who have been elected before the lawful coming- into existence of these constituencies can, in future, be challenged in the law courts?

Mr Afari Gyan commands a lot of respect within the West African sub-region because of his record as someone who has successfully conducted about four general elections in Ghana. His rush to do what is certainly ‘uncalled for’ constitutionally, and what is also morally doubtful, casts insinuation on his integrity, and raises the question as to whether he truly deserves all the praises he gets. If Mr Afari Gyan is not worried about his own integrity, he should, at least, be aware that Ghanaians worry about possible marring of the elections as a result of legal protestations that his decisions can create before and after the elections. Ghanaians expect him to desist from doing anything that has the potential to mar the peaceful conduct of the coming elections. If he can create the constituencies after the December elections, assuming that there is economic sense to do that, why can’t the boss of the EC exercise the wide discretionary powers given to him by the 1992 Constitution and wait until the beginning of 2013 before creating the new constitutions, so that Ghanaians can have time to understand the implications and decide to fully embrace the new constituencies and use them in future elections? WHAT IS AFARI GYAN RUSHING FOR? It is always better to make haste slowly.

I use this write-up to appeal to all Ghanaians, irrespective of their political affiliation and inclination, to put pressure on the Electoral Commission to respect public opinion and do what will assure broad acceptability of any review to be made in future, and to ensure tranquillity that leads to the development and progress of Ghana. After all, Ghanaians would certainly prefer having fewer but better MPs, to having more numbers of useless, selfish, and “greedy bastard” MPs who say and do nothing in Parliament, except squandering and looting the resources of the state for themselves, their families and their friends.

Source: Otchere Darko