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Constitutional law –
Interpretation – Creation
electoral areas - Perpetual
injunction - Invoking the
original jurisdiction of the
Supreme Court - various
legislative instruments in
contravention of the 1992
Constitution – Whether or not
the provision can reasonably be
interpreted as amounting to the
creation of electoral areas by
the Minister - Whether or not
the Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 (C.I.46), the
Electoral Areas specified in the
Instruments made by the Minister
had already been earlier
created by the first defendant -
Whether or not the Minister was
not really creating an electoral
area, but merely referring to
one already in existence -
Whether or not
HEADNOTES
The plaintiff
has therefore brought this
action invoking the original
jurisdiction of the Supreme
Court, seeking a declaration
that various legislative
instruments specified in a
Schedule attached to his Writ
were made in contravention of
Article 45(b) of the 1992
Constitution. Article 45 of the
Constitution - Article 45(b) The
first defendant, which, from the
above provision, is to be
interpreted to have the
exclusive constitutional
authority to create electoral
areas, admits that the Minister
has no authority to create
electoral areas. It, however,
argues that the Minister
responsible for Local Government
did not, in fact and in law,
establish or create electoral
areas as contended by the
Plaintiff.
HELD
For the
reasons given above, we would
grant the plaintiff the first
two reliefs endorsed on his Writ
of Summons, namely: that the
various legislative instruments
specified in the Schedule
attached to the writ, laid in
Parliament by the Minister of
Local Government, and which came
into force after 21
Parliamentary sitting days, were
made by the Minister in
contravention of Article 45 (b)
of the Constitution to the
extent that those legislative
instruments purported to create
electoral areas for various
districts, municipalities or
metropolises in Ghana;
An order declaring
the said legislative instruments
null, void and of no legal
effect to the extent that they
sought to create electoral areas
in said districts,
municipalities or metropolises
in Ghana. However it would be
unreasonable to restrain the
first defendant from conducting
national or local elections on
the basis of the electoral areas
specified in the impugned
legislative instruments, if
those electoral areas coincide
with electoral areas that the
first defendant has lawfully
designated. We would thus only
grant the third relief sought by
the plaintiff subject to a
qualification, an order of
perpetual injunction restraining
the 1st Defendant
from conducting any national or
local elections on the basis of
the electoral areas specified in
the impugned legislative
referred to in the Schedule
until those electoral areas are
properly constituted in
accordance with law in a manner
that is not inconsistent with
Article 45 (b) of the
Constitution It is granted
subject to the qualification
that the said injunction shall
not apply where any national or
local elections are held on the
basis of any enactment by the
first defendant which complies
with the Constitution.
In sum, subject to
the qualification noted above,
the plaintiff’s action succeeds.
STATUTES
REFERRED TO IN JUDGMENT
Local
Government Act 1993 (Act 462).
1992
Constitution.
Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 (C.I.46),
CASES
REFERRED TO IN JUDGMENT
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC
COUNSEL
DR. ABDUL
BAASIT AZIZ BAMBA FOR THE
PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE 2ND
DEFENDANT.
________________________________________________________________________________________
J U D G M E N
T
________________________________________________________________________________________
DR. DATE-BAH
JSC:
This is the
unanimous judgment of the
Court. In this case, the
plaintiff challenges the
authority of the Minister
responsible for Local Government
to create electoral areas in
districts, municipalities and
metropolises, which, according
to the plaintiff, he has
purported to do under what he
has construed to be enabling
power under the Local Government
Act 1993 (Act 462). The
plaintiff has therefore brought
this action invoking the
original jurisdiction of the
Supreme Court, seeking a
declaration that various
legislative instruments
specified in a Schedule attached
to his Writ were made in
contravention of Article 45(b)
of the 1992 Constitution.
Article 45 of the Constitution
reads as follows:
“The Electoral Commission shall
have the following functions -
(a) to compile the register of
voters and revise it at such
periods as may be determined by
law;
(b) to demarcate the electoral
boundaries for both national and
local government elections;
(c) to conduct and supervise all
public elections and referenda;
(d) to educate the people on the
electoral process and its
purpose;
(e) to undertake programmes for
the expansion of the
registration of voters; and
(f) to perform such other
functions as may be prescribed
by law”.
The first
defendant, which, from the above
provision, is to be interpreted
to have the exclusive
constitutional authority to
create electoral areas, admits
that the Minister has no
authority to create electoral
areas. It, however, argues that
the Minister responsible for
Local Government did not, in
fact and in law, establish or
create electoral areas as
contended by the Plaintiff.
The fact is,
however, as illustrated by LI
1843, the Local Government (Ketu
North District Assembly)
(Establishment) Instrument, 2007
(which is appended, by way of a
sample, as an exhibit to the
plaintiff’s Statement of Case),
the Legislative Instruments do
contain a subsection 2(4) in the
following terms:
“For the
purpose of election to the
Assembly the area of authority
of the Assembly shall be divided
into the electoral areas
specified in the First Schedule
to this Instrument.”
The issue is
whether this provision (and
similar provisions in the other
Legislative Instruments listed
in the plaintiff’s schedule) can
reasonably be interpreted as
amounting to the creation of
electoral areas by the
Minister. The first defendant’s
contention is that by the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2004 (C.I.46), the
Electoral Areas specified in the
Instruments made by the Minister
had already been earlier
created by the first defendant.
Accordingly, in spite of the
language of subsection 2(4),
quoted above, the Minister was
not really creating an electoral
area, but merely referring to
one already in existence. In
paragraph (5) of the first
defendant’s Statement of Case,
it affirms as follows:
“We admit
that Section 2(4) purports to
divide the area of authority of
the Assemblies into the
electoral areas specified in the
1st Schedule to the
Instrument. This may seem to be
ultra vires the powers of the
Minister for Local Government or
attributed to inelegant
drafting.”
This is a
clear admission by the first
defendant that there is a
problem. This court can help to
solve the problem by affirming
that the Minister responsible
for Local Government does not
have authority to create or
establish electoral areas and
that to the extent there is any
language in the Instruments
listed in the Schedule to the
plaintiff’s writ that suggests
that he has any such authority
that language is void to the
extent of its inconsistency with
Article 45(b).
The first
defendant argues that because
section 3(2)(e) of Act 462
empowers the Minister
responsible for Local Government
to specify “any other matters
that are required to be included
in the instrument or are
consequential or ancillary to
it”, the inclusion of the
electoral areas in the offending
Instruments should be construed
as consequential or ancillary to
the establishment of the
Assemblies set up by the
Instruments pursuant to enabling
power under Act 462. There is
danger in this ambivalence.
This Court should make it clear
that, to the extent that section
2(4) of the Instruments gives
the impression that the Minister
is establishing the electoral
areas, this is ultra vires and
unconstitutional. Accordingly,
this court should so declare.
The Minister needs to use
language which makes it plain
that the electoral areas he
refers to in the Instruments are
pre-existing and already created
by the first defendant. Any
ambiguity in this regard should
be resolved against him and any
offending statutory language
struck down to the extent of its
inconsistency with the first
defendant’s powers under Article
45(b) of the Constitution.
For the
reasons given above, we would
grant the plaintiff the first
two reliefs endorsed on his Writ
of Summons, namely:
1.
“A declaration that the various
legislative instruments
specified in the Schedule
attached to the writ, laid in
Parliament by the Minister of
Local Government, and which came
into force after 21
Parliamentary sitting days, were
made by the Minister in
contravention of Article 45 (b)
of the Constitution to the
extent that those legislative
instruments purported to create
electoral areas for various
districts, municipalities or
metropolises in Ghana;
2.
An order declaring the said
legislative instruments null,
void and of no legal effect to
the extent that they sought to
create electoral areas in said
districts, municipalities or
metropolises in Ghana.”
However, it
would be unreasonable to
restrain the first defendant
from conducting national or
local elections on the basis of
the electoral areas specified in
the impugned legislative
instruments, if those electoral
areas coincide with electoral
areas that the first defendant
has lawfully designated. We
would thus only grant the third
relief sought by the plaintiff
subject to a qualification. The
third relief sought is in the
following terms:
3.
“An order of perpetual
injunction restraining the 1st
Defendant from conducting any
national or local elections on
the basis of the electoral areas
specified in the impugned
legislative referred to in the
Schedule until those electoral
areas are properly constituted
in accordance with law in a
manner that is not inconsistent
with Article 45 (b) of the
Constitution;… “
It is granted
subject to the qualification
that the said injunction shall
not apply where any national or
local elections are held on the
basis of any enactment by the
first defendant which complies
with the Constitution.
In sum,
subject to the qualification
noted above, the plaintiff’s
action succeeds.
(SGD)
DR. S. K. DATE-BAH
JUSTICE OF THE
SUPREME COURT
(SGD) W. A.
ATUGUBA
ACTING CHIEF JUSTICE
(SGD) S. O.
A. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME
COURT
(SGD) R. C.
OWUSU (MS.)
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN -YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO – BAMFO (MRS.)
JUSTICE OF THE
SUPREME COURT
COUNSEL
DR. ABDUL
BAASIT AZIZ BAMBA FOR THE
PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE 2ND
DEFENDANT.
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