Press Releases of Tuesday, 20 March 2012

Source: citifmonline

EC can’t create new constituencies – Danquah Institute

The Danquah Institute is concerned about what appears to be an unconstitutional attempt on the part of Government to compel the Electoral Commission to create new constituencies based on the apparent creation of 42 new districts recently.

This, we believe, is based on a wrong and strange interpretation of the law that a constituency cannot fall in two districts. Therefore, once the Executive, with the support of its parliamentary majority, goes ahead to create a new district, which then leads to the splitting up of a constituency into the old and new administrative areas, then the EC has to follow suit and create a new constituency for the new district.

To allow this thinking to inform the current move by the EC to create new constituencies would dangerously undermine the Constitution of the Republic. The Constitution gives the powers to create districts to the Executive and Parliament. It reserves powers to create constituencies exclusively with the EC.

The Constitution does not say a constituency cannot fall in two districts. It only states that the “boundaries of a constituency shall not fall within more than one region.” But, in order to insulate the Executive fully from tampering with the boundaries of regions, the Constitution has made the creation of regions an entrenched provision requiring a referendum. So to allow the creation of a new district to trigger or inform the alteration of electoral boundaries is to allow gerrymandering by the Executive through the backdoor.

The Constitution does not say a Member of Parliament cannot be a member of two district assemblies. The Local Government Act, 1993, (Act 462), also does not say so. So, there is absolutely no legal requirement, either constitutional or statutory, that behoves the EC to create new constituencies based on the creation of new districts. For the EC to do so is to submit itself to undue and unconstitutional control by the Executive – a dangerous departure, which the framers of the Constitution went to great lengths to avoid.

Indeed, MPs are merely non-voting members of the district assembly and making them members of two district assemblies poses no fatal implications. So, if an MP can be both a legislature and a member of the Executive as a Cabinet Minister then why can’t an MP attends meetings of two district assemblies? MPs are also free to be board members of a public body.

If an MP can be a non-voting member of one district assembly what can be so fundamentally wrong with an MP being a non-voting member of two district assemblies, especially when to rule that out is to allow gerrymandering to take place? In fact, no law expressly provides that an MP cannot be a member of two district assemblies. And, if any such law exists, then it is our submission, that law is unconstitutional.

Even though, the EC had earlier indicated that based on indications from the provisional results of the 2010 census it was looking to create 20 more new constituencies, once the final census results are in. This would push the number of parliamentary seats to 250 based on specific criteria set out clearly under Article 47 of the Constitution. Subsequently, Government has, with all the accompanying errors of a hurried job, proceeded to create 42 new districts to bring the total number of districts to 212.

Ordinarily, the creation of districts, with its apparent purpose of bringing governance closer to the people, would be welcomed. However, the boundaries of the majority of the 42 are deliberately designed to cause a split in existing constituencies, with the expectation that this would compel the EC to create up to 20 more constituencies, in addition to the 20 the independent body originally intended to create. Moreover, a closer scrutiny of the voting patterns of these potential new constituencies suggests that those new boundaries have been drawn to evidently give a clear unfair electoral advantage to the ruling party.

The view of the Danquah Institute is that, whether or not the boundaries were drawn with ulterior motives in mind, it would be dangerous and a clear infringement of the Constitution if the EC went ahead to alter constituencies based on the creation of these 42 districts.

We are therefore urging the EC to stick to its guns and do what is right by the Constitution or risk a legal challenge, which could delay the entire process of altering constituency boundaries for the 2012 parliamentary election.**