|
Constitutional law –
interpretation - Article 47(6)
of the Constitution of the
Republic of Ghana, 1992 -
Alteration of electoral
boundaries - Representation of
the People (Parliamentary
Constituencies) Instrument, 2012
C.I. 78 – Perpetual injunction -
Whether or not Parliamentary
Constituencies of C.I. 78 shall
be included among the
constituencies to be contested
in the general elections seated
for December 7, 2012 - section
10(4) of the Interpretation Act,
2009 (Act 792).
HEADNOTES
The crux of
the plaintiff’s case centres
around
article 47(6) of the 1992
Constitution of Ghana which
provides 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.
Plaintiff’s interpretation of
this provision is captured
mainly in paragraphs 4.3 to 4.5
and 6 to 6.4 of his statement of
case states that his action
herein is to challenge the
constitutionality of the
Electoral Commission including
the newly-created constituencies
in the General Elections of
2012, in the face of Article
47(6)’s clear admonition that
any alteration of electoral
boundaries following a review of
such boundaries can only take
effect upon the next dissolution
of Parliament. Plaintiff
respectfully takes the view that
the simple and unambiguous
construction of Article 47(6)
requires that the “alteration” –
which simply refers to the
change of boundaries, without
more – will exist only upon the
next dissolution of Parliament.
The current position, endorsed
by this Court in Luke Mensah,
goes beyond alteration to allow
elections to be held in the
constituencies which would
otherwise exist once the
alteration has come in to effect
before the said constituencies
can be said to legally exist. In
other words, if the alteration
has not come into effect, can
the constituencies exist to
enable elections to be held
therein? In effect, what
Plaintiff is saying is that
notwithstanding the coming into
force of the constitutional
instrument altering electoral
boundaries, the constitution
itself has placed a further
condition precedent to the
effectiveness of the alteration
thereby caused
HELD
It is clear
that in creating the new
constituencies the Electoral
Commission is not altering any
electoral laws close to an
election but carrying out the
provisions of particularly
articles 47(1), (5) and 112(4)
of the Constitution. We sit
foribus apertis, and not in
camera, both by common law and
constitutional prescription (see
article 126(3)) because the
courts belong to the public, to
interpret and/ or enforce the
Constitution for the best
interest and welfare of the
people of Ghana, as enjoined by
article 1(1) of the Constitution
and we are convinced that, going
by such considerations, inter
alia, the plaintiff’s action is
misconceived. For all the
foregoing reasons we affirm the
decision of this court in Luke
Mensah v. Attorney-General,
supra as having been correctly
decided and consequently dismiss
the plaintiff’s action.
STATUTES
REFERRED TO IN JUDGMENT
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012 C.I. 78
section 10(4)
of the Interpretation Act, 2009
(Act 792).
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
Luke Mensah
v. Attorney-General [2003-2004]
SCGLR 122
Inland
Revenue Commissioners v. Hinchy
(1960) A C 748
Rao v
Attorney-General (1989) LRC
(Const.) 527 S.C
Hawkins v
Gathercole (1855) 6 De G M & G
1, (43 ER 1129 at 1136)
Escoigne
Properties Ltd v IRC [1958] AC
549
Donkor v. The
Republic of Ghana, Donkor v. The
Republic of Ghana (Consolidated)
(1971) 1 GLR 30 C.A
J H Mensah v
Attorney-General [1996-97] SCGLR
320
Whitfield v.
Attorney-General 1989 LRC
(Const.) 249
Ransford
France v The Electoral
Commission & The
Attorney-General, J1/19/2012, 19th
October, 2012,
Khoury v.
Mitchual (1989-90) 2 GLR 256 S.C
R v. Pora
(2001) 5 LRC 530 at 572 C.A
BOOKS
REFERRED TO IN JUDGMENT
Constitutional Law of Ghana
(1962) Bennion’s
44 Halsbury’s
Laws of England (4th
edn
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C.
COUNSEL
NANA ASANTE
BEDIATUO FOR THE PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 2ND
DEFENANT.
NO
APPEARANCE FOR THE 1ST
DEFENDANT
J U D G M E N T
___________________________________________________________________
ATUGUBA,
J.S.C.
On the 4th
of October, 2012 the plaintiff
issued in this court a writ,
J/1/2013 against the defendants
claiming as follows:
1.
“ A declaration that upon a true
and proper
interpretation of
Article
47(6) of the Constitution of the
Republic of Ghana, 1992
(hereinafter, the
“Constitution”) the
alteration of electoral
boundaries pursuant to the
Representation of the People
(Parliamentary Constituencies)
Instrument, 2012
(Constitutional Instrument
Number 78) which passed in
Parliament on October 2, 2012 (
hereinafter, “C.I.
78”) cannot come into effect
until the next dissolution of
Parliament in January 2013.
2.
A declaration that not having
come into effect, the
constituencies created as a
result of the alteration of the
electoral boundaries under C.I.
78 shall
not be included among the
constituencies to be contested
in the general elections seated
[SIC] for December 7, 2012.
3.
An order of
perpetual
injunction restraining the
Electoral Commission from
including the newly created
constituencies under C.I. 78 in
the general election of December
7, 2012 or any other election
howsoever described prior to the
next dissolution of Parliament
in January 2013.”
The issues
raised in this action, save as
regards the reliance on Article
2(1) of Protocol A/SP1/12/01 on
Democracy and Good Governance
Supplementary to the Protocol
Relating to the Mechanism for
Conflict Prevention, Management,
Resolution, Peacekeeping and
Security of the Economic
Community of West Africa States,
dated at Dakar on 21st
December, 2001and ratified by
Ghana on 18th
October, 2002 and Article 89(4)
of the Kenyan Constitution of
2010, arose and were decided by
this court on 5th
March, 2004 on virtually
identical facts and contentions
as in this case, in
Luke
Mensah v. Attorney-General
[2003-2004] SCGLR 122.
The parties did not find it
necessary to file any memorandum
of issues as there is no
difficulty as to them. The
Attorney-General did not file
any statement of case and did
not appear in court in any
manner, following the
unwholesome precedent of his
predecessor in Luke Mensah v.
Attorney-General, supra.
The crux of
the plaintiff’s case centres
around article 47(6) of the 1992
Constitution of Ghana which
provides
as follows:
“ 47. (6)
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.”
(e.s.)
The
plaintiff’s interpretation of
this provision is captured
mainly in paragraphs 4.3 to 4.5
and 6 to 6.4 of his statement of
case dated 18th
October, 2012 as follows:
“4.3
Plaintiff’s action herein is to
challenge the constitutionality
of the Electoral Commission
including the newly-created
constituencies in the General
Elections of 2012, in the face
of Article 47(6)’s clear
admonition that any alteration
of electoral boundaries
following a review of such
boundaries can only take effect
upon the next dissolution of
Parliament.
4.4
Plaintiff respectfully takes the
view that the simple and
unambiguous construction of
Article 47(6) requires that the
“alteration” – which simply
refers to the change of
boundaries, without more – will
exist only upon the next
dissolution of Parliament. The
current position, endorsed by
this Court in Luke Mensah, goes
beyond alteration to allow
elections to be held in the
constituencies which would
otherwise exist once the
alteration has come in to effect
BEFORE the said constituencies
can be said to legally exist. In
other words, if the alteration
has not come into effect, can
the constituencies exist to
enable elections to be held
therein?
4.5 In
effect, what Plaintiff is saying
is that notwithstanding the
coming into force of the
constitutional instrument
altering electoral boundaries,
the constitution itself has
placed a further condition
precedent to the effectiveness
of the alteration thereby
caused. ….
xxxxxx
6. The
Electoral Commission cannot
lawfully include the
constituencies created pursuant
to C.I. 78 in the December 2012
general elections.
6.1. The
plaintiff submits that the
Electoral Commission, per the
clear and unambiguous language
of Article 47(6), taken in its
ordinary meaning, cannot include
the constituencies created by
C.I. 78 in the December 7, 2012
general elections. While it is
admitted that the Electoral
Commission is clothed with
constitutional authority to
create constituencies pursuant
to an alteration of existing
constituency boundaries,
Plaintiff contends that the
clear and ordinary meaning of
“alteration” as used in Article
47(6) requires that the changes
to existing constituency
boundaries will only be
effective when parliament next
dissolves.
6.2
Plaintiff contends that the
current position endorsed by
this Court in Luke Mensah,
which enables the Electoral
Commission to conduct elections
in the constituencies which have
been created as a result of the
“alteration” is misconceived and
not in accord with the letter
and spirit of Article 47(6).
Indeed, to accept the current
position, Article 47(6) would
have to be unnecessarily
stretched in interpretation to
support the contention that the
“alteration” is effective upon
the coming into force of the
relevant constitutional
instrument save that the members
of parliament elected consequent
upon the conduct of elections in
such alteration – derived
constituencies cannot take their
seats in Parliament established.
In the face of the simple and
clear language of Article 47(6)
such an interpretation is
unwarranted.
6.3
With respect, Plaintiff contends
that there is absolutely no
legal or interpretive basis for
such a position to be adopted.
In the result, Plaintiff says
that interpretive fidelity to
the text of Article 47(6) could
only lead to one conclusion:
that the changes to existing
constituency boundaries
themselves (as a result of an
“alteration”) do not legally
exist until such time as the
constitutional condition
precedent, i.e., the dissolution
of Parliament has occurred. On
this view, Plaintiff says that
if the changes do not yet exist
legally, the Electoral
Commission cannot purport to
conduct elections in affected
constituencies (which do not yet
exist) as a matter of law. As
the age-old judicial dictum
goes, “you cannot put something
on nothing and expect it to
stand”.
6.4
Again, Article 47(6) does not
say at all that the
constituencies created as a
result of an alteration are
effective and therefore may be
the subject of electoral
contests. To assume same and
adopt it as an interpretive
outcome would be import words
unnecessarily into the
Constitution which are otherwise
no there at all and thereby
thwart the intent of the framers
of the Constitution.”
Admittedly Article 47(6) could
have been better formulated if
its literal purport were not
intended. However, it is trite
law that if the real intent of a
statute is ascertainable the
court may even modify the
drafting formulation employed in
several ways ut res magis valeat
quam pereat.
The first thing to notice about
Article 47(6) is that it
considers that the next
dissolution of Parliament would
be the opportune time for the
alteration of the constituencies
to take effect. What then is
attractive about the time of
dissolution of Parliament?
We know that under our
constitutional dispensation
Parliament is dissolved on the 6th
day of January marking the end
of a 4 year parliamentary term.
If one restricts oneself
literally to that day for the
altered constituencies to take
effect one would be left in the
wilderness as to the purpose for
which that date was chosen. In
Inland
Revenue Commissioners v. Hinchy
(1960) A C 748 at 768, that
great judicial mind, Lord Reid
said: “One is entitled and
indeed bound to assume that
Parliament intends to act
reasonably, and therefore to
prefer a reasonable
interpretation of a statutory
provision if there is any
choice.” Again in
Rao v
Attorney-General (1989) LRC
(Const.) 527 S.C. at 584 the
Zambian Supreme Court per Bweupe
AJS stated thus:
“
We now know from the foregoing
the circumstances under which s
2 was enacted. It was primarily
enacted to detain without trial
those engaged in activities of
burning bridges, violence,
intimidation, unlawful assembly,
riots. We have therefore to
visit s 2 in that light. To
visit the section so as to
include trafficking of emeralds,
elephant tusks, rhino horns,
cobalt, mandrax, illegal
externalisation of foreign
exchange by reason of the word
‘includes’ would mean carrying
the extension beyond the border
line of doubtful cases which was
not the intention of Parliament
and, to put it mildly, an abuse
of language. And to quote Turner
LJ in
Hawkins v Gathercole (1855) 6 De
G M & G 1 at 22 (43 ER 1129 at
1136) who said:
‘We have
therefore to consider not merely
the words of this Act of
Parliament, but the intent of
the legislature, to be collected
from the cause and necessity of
the Act being made, from a
comparison of its several parts,
and from foreign (meaning
extraneous) circumstances, so
far as they can justly be
considered to throw light on the
subject.’
I am not
unaware of the clear statement
of Lord Denning in
Escoigne
Properties Ltd v IRC [1958] AC
549 at 565-566 where he
said:
‘A statute is
not passed in vacuum, but in a
framework of circumstances, so
as to give a remedy for a known
state of affairs. To arrive at
its true meaning, you should
know the circumstances with
reference to which the words
were used: and what was the
object, appearing from those
circumstances, which Parliament
had in view. …”
This is
essentially the thrust of
section
10(4) of the Interpretation Act,
2009 (Act 792). If therefore
the Constitution tied the effect
of the new or altered
constituencies to the
Parliamentary calendar it
follows that the operation of
Parliament is relevant to the
effect accorded to the new
constituencies.
We do not
think that the expression “upon”
is any different from
“consequent upon”, for I would
think that the implication of
“consequent” is embedded in the
word “upon”. In
Donkor v.
The Republic of Ghana, Donkor v.
The Republic of Ghana
(Consolidated) (1971) 1 GLR 30
C.A the court had to
construe section 13(3) of the
Transitional Provisions of the
1969 Constitution giving
immunity “in respect of any act
or omission relating to, or
consequent upon,
(a)
the
overthrow of the government in
power before the formulation of
the National Liberation
Council; or
(b)
the
suspension of the Constitution
which came into force on the
first day of July, 1960, or any
part thereof; or
(c)
the
establishment of the National
Liberation Council; or
(d)
the
establishment of this
Constitution.”
The
plaintiffs’ cars were seized on
the order of the National
Liberation Council and their
suits were for damages for their
wrong seizures. Delivering the
judgment of the court Apaloo
J.A. (as he then was) said at 33
thus:
“The question
for which an answer is required
is really a short one which does
not admit of a great deal of
elaboration. It is, were the
seizures of the cars consequent
upon the overthrow of the former
government? The words
“consequent upon” are not terms
of art and have no recognised
legal meaning. They must
therefore be given their
ordinary dictionary meaning.
According to the Concise Oxford
Dictionary, the key adjective
“consequent” means “following as
a result.” In one case, the
seizure was effected only four
days after the overthrow of the
former government and in the
other case the seizure was made
within a month of it. The
seizures were so proximate in
time to the overthrow of the
government that it would be a
perfectly normal use of language
to say that the seizures
followed as a result of the
change or were “consequent upon”
it. And in so far as we are
entitled to draw any inference
from this, we think the National
Liberation Council must have
considered the seizures
necessary for its own purposes.
The fact that it enacted
legislation several months
afterwards to enable it make a
good title to a prospective
purchaser does not affect the
question.” (e.s.)
The analogy being drawn in this
case from that case is that acts
done or events occurring shortly
after the dissolution of a
previous regime are relevant to
that act of dissolution and are
interconnected with the same. In
the present case article 112(4)
of the Constitution has the
closest connection with the
effect of a dissolution of
Parliament under article 113(1)
and therefore constitutes the
range and catchment area of the
expression “upon the next
dissolution of Parliament” in
article 47(6). Article 47(6) is
therefore referable to article
112(4). This is so because
article 47(6) cannot and was not
intended to operate in the
wilderness or vacuum of a
dissolution of Parliament
simpliciter. The courts,
aforesaid, have often stressed
that Parliament does not act in
a vacuum. Articles 112(4) and
113(1) are as follows:
“112. (4)
Subject to clause (2) of article
113 of this Constitution, a
general election of members of
Parliament shall be held within
thirty days before the
expiration of the period
specified in clause (1) of that
article; and a session of
Parliament shall be appointed to
commence within fourteen days
after the expiration of that
period.
xxxxxxxxxxxxxxx
113. (1)
Subject to clause (2) of this
article, Parliament shall
continue for four years from the
date of its first sitting and
shall then stand dissolved.”
(e.s.)
Clause 2 of
this article relates to war time
situations and therefore not
relevant to the facts of this
case.
It stands to reason that article
47(6) has its eyes on the
constituent representation of
the people in Parliament after a
dissolution of Parliament.
Article 47(6) therefore means
that the effect of altered or
new constituencies shall
manifest or come to play in the
constituent representation of
the people of Ghana in the new
Parliament after the dissolution
of the earlier Parliament. What
this means is that even though a
review of constituencies under
article 47(5) may result in the
alteration of the boundaries of
constituencies those
pre-existing constituencies, by
virtue of article 47(6) should
remain as they were before the
alteration and function in
Parliament without being
affected by the said alteration
until after the dissolution of
the old Parliament during which
the alteration occurred and have
then effect in the next new
Parliament. After all without
its representation in Parliament
how can the effect of a
constituency whether intact or
altered be felt or made real?
Consequences
of the Position taken by the
Plaintiff as to the proper
construction of article 47(6)
The plaintiff is quite certain
that by reason of article 47(6)
an altered constituency does not
legally exist until the
dissolution of Parliament.
However, article 47(5) and (6)
clearly are to the effect that a
review of the division of
constituencies can result in an
alteration of the boundaries
thereof, but that “the
alteration shall come into
effect upon the next dissolution
of Parliament.” Clearly if there
has been no alteration at all
there will be none that can come
into effect upon the next
dissolution of Parliament.
The plaintiff also contends that
elections in respect of the
newly created constituencies
cannot take place until after
the dissolution of Parliament.
What this means is that only
persons who were elected in
respect of the surviving
unaltered constituencies can
take their seats in Parliament
as soon as the first session of
the new Parliament takes off
under article 112(4). It will
then mean that new budgetary
allocation has to be made and
new plans will be put in place
by the Electoral Commission to
fill the newly created
constituencies. This will run
counter to article 47(1) which
provides as follows:
“47. (1)
Ghana shall be divided into as
many constituencies for the
purpose of election of members
of Parliament as the Electoral
Commission may prescribe, and
each constituency shall be
represented by one Member of
Parliament.” (e.s.)
In the face
of this provision and going by
the plaintiff’s position some
constituencies will be
represented in Parliament whilst
others (the new ones) will
remain unrepresented for as long
as supplementary elections
cannot be held. Were such a
situation within the acceptable
contemplation of Parliament it
is startling that no period of
time is specified for the
expeditious holding of such
elections since the Constitution
hates a vacuum in Parliament by
reason of articles 47(1) and
112(4) and (5). Again it will
mean that by virtue of articles
97(1)(a) and 113(1) the members
of Parliament under the
unaltered constituencies will
have a parliamentary term of 4
years whilst the supplementary
ones would have lesser terms.
The occurrence of new vacancies
in the course of the functioning
of a Parliament under article 97
would be what is the subject of
a by-election under article
112(5) and is inapplicable to
the facts of this case.
Again the
plaintiff’s case runs counter to
article 112(4) which requires
that “a general election of
members of Parliament shall be
held within thirty days before
the expiration of the period
specified in clause (1) of’
article 113; and “a session of
Parliament shall be appointed to
commence within fourteen days
after the expiration of that
period”. Quite clearly this
provision permits the premature
holding of a general
Parliamentary (not partial or
fractional) election even though
the term of a current Parliament
has not yet run , no doubt, a
welcome departure from the
position under the 1969
Constitution, for the sake of
continuity and good governance.
Both the letter and spirit of
this provision would also
warrant the holding of elections
in respect of the altered
constituencies even though such
constituencies will have effect
in their altered form only after
the dissolution of the current
Parliament and the members of
Parliament-elect then take their
new seats in Parliament along
with their colleagues coming
from unaltered constituencies,
all on an even and clean sheet
of membership of Parliament.
If the
plaintiff’s position is
sustained it would mean that
since article 112(4) requires “a
general election of members of
Parliament ... within thirty
days before the expiration of
the period specified in clause 1
of” article 113, the Electoral
Commission will be compelled to
hold elections throughout the
pre-existing constituencies in
their unaltered form and then
when Parliament is dissolved and
according to the plaintiff the
newly created constituencies
then come into existence a new
election will now be held in
respect of them. The grave and
startling implications of such a
situation should be clear. It
would mean that only those
members of Parliament who were
elected in respect of
constituencies that have not
been affected by the new
alterations to constituency
boundaries will survive the
quake that would have hit the
old constituencies. However, if
the alterations affect the
boundaries of two adjoining
constituencies or result in the
break up of an existing
constituency into two new
constituencies, what would be
the resultant position? Could
the elected parliamentary
candidates contend that they
have a vested right in respect
of their elections which cannot
be affected by the new changes
affecting the boundaries of
their constituencies? What then
will be the correct effect of
the creation of the new
constituencies? Wait until the
next dissolution of Parliament?
No, because according to the
plaintiff’s contention they were
to come into existence and
elections held in their respect
“upon the dissolution of
Parliament” which must mean the
immediate past Parliament. Utter
confusion and chaos would abound
in the wake of the plaintiff’s
interpretation of article 47(6).
Despite the maxim that lex non
cogit ad impossibilia, the
plaintiff presses on his stance!
The plaintiff
overlooks the importance of
reading the Constitution or any
document for that matter as a
whole. The danger of not doing
so is real and was exposed in
J H
Mensah v Attorney-General
[1996-97] SCGLR 320 at 361
to 363, per Acquah JSC (as he
then was, his brethren
concurring) as follows;
“The
Attorney-General finds solace in
article 64(2)(a) of the 1969
Constitution of Ghana which
provides, that a minister’s
office becomes vacant, inter
alia, on the dissolution of the
National Assembly. In his view,
once such a provision is absent
in article 81 of the 1992
Constitution, the dissolution of
the National Assembly in the
first term of the Fourth
Republic did not terminate the
office of a minister or deputy
minister.
Now article
81 of the 1992 Constitution
provides that the office of a
minister or deputy minister
becomes vacant if:
“(a) his
appointment is revoked by the
President; or
(b) he
is elected Speaker or Deputy
Speaker; or
(c) he
dies.”
By the
defendant’s contention , it
logically follows that a
minister or deputy minister in a
previous government whose
appointment is not revoked
before a new President comes
into power, will continue to be
a minister even under this new
President, unless the said
President revokes the
appointment. And even if the
succeeding President is of a
different political party from
that of the previous minister,
that previous minister will
continue to be a minister under
the opposition party’s
President. And unless the new
President revokes that
minister’s appointment, the
minister will continue to hold
himself out as such and be
entitled to the salary and
benefits attached to that
office. Even when the new
President appoints his own
minsters, the previous ministers
whose appointments still stand
unrevoked by the new President
(for the defeated President’s
mandate would have expired with
his defeat) would, on the
defendant’s submission, be
deemed to be in office. Is this
not absurd?
Certainly,
the correct position is that,
even if the same President is
re-elected for a second term,
his previous ministers whose
appointments were not revoked
before he was inaugurated for a
second term, cannot claim to
continue indefinitely as such in
the second term, unless they are
re-appointed by the President.
Indeed the very fact that the
President announced that some of
his former ministers were to be
retained, is an implied
admission that none of the
previous ministers has an
indefinite tenure of office or
an automatic right to continue
as a minister in the second term
of the President. Otherwise why
should the announcement be made,
if subject to article 81, the
previous ministers hold an
indefinite tenure of office?
I think it is
now firmly settled that a better
approach to interpretation of a
provision of the 1992
Constitution is to interpret
that provision in relation to
the other provisions of the
Constitution so as to render
that interpretation consistent
with the other provisions and
the overall tenor or spirit of
the Constitution. An
interpretation based solely on a
particular provision without
reference to the other
provisions is likely to lead to
a wrong appreciation of the true
meaning and import of that
provision. Thus
in
Bennion’s Constitutional Law of
Ghana (1962) it is explained
at page 283 that it is important
to construe an enactment as a
whole:
“… since it
is easy, by taking a particular
provision of an Act in
isolation, to obtain a wrong
impression of its true effect.
The dangers of taking passages
out of their context are well
known in other fields, and they
apply just as much to
legislation. Even where an Act
is properly drawn it still must
be read as a whole. Indeed a
well-drawn Act consists of an
inter-locking structure each
provision of which has its part
to play. Warnings will often be
there to guide the reader, as
for example, that an apparently
categorical statement in one
place is subject to exceptions
laid down elsewhere in the Act,
but such warnings cannot always
be provided.”
I am
therefore of the considered view
that having regard to the
obvious absurdity involved in
determining the tenure of office
of a minister or deputy minister
solely on article 81, a recourse
must be made to the broad
outline of the type of
government created in the 1992
Constitution. Our 1992
Constitution provides for a
government, as distinct from the
legislature and the judiciary,
of an Executive President
(article 58(1) and (4); assisted
by the Vice-President (article
60), ministers and deputy
ministers of state (article 78
and 79). The President is both
the Head of State and the Head
of the Government (article 57),
and he is assisted in the
determination of the general
policy of the Government by the
Cabinet which is made of the
above team minus the non-cabinet
ministers (article 76). Now
because the ministers are part
and parcel of the Executive
President’s Government, article
58(5) acknowledges that the
signature of a minister is
sufficient to authenticate any
constitutional or statutory
instrument made or issued in the
name of the President.
The 1992
Constitution therefore creates a
government of an Executive
President. And thus the term of
office of the Executive
President is the term of office
of that government. Of course,
where the Executive President
dies before the end of his term
of office, the Constitution
empowers his Vice-President to
complete that term. Accordingly,
the term of office of the
Executive President is the term
of office of those who
constitute the government,that
is the Vice-President, ministers
and deputy ministers. Thus
understood, it becomes clear
that article 81 provides for
circumstances under which the
office of the minister or deputy
minister will become vacant
within the tenure of office of
the government under which that
minister or deputy minister is
serving. The term of office of a
minister or deputy minister does
not extend beyond that of the
Government which appointed that
minister. If that government is
re-elected into power, the
minister or deputy minster may
be reappointed to the same
office. And that was why it was
necessary for the NDC Government
to announce that some of the
previous members were going to
be re-appointed or retained.
The
contention therefore that unless
the office of a minister or
deputy minister becomes vacant
in any of the ways provided for
in article 81, he has an
indefinite term of office, is
certainly untenable and
inconsistent with the
governmental structure provided
for in the Constitution. I would
therefore uphold the plaintiff’s
contention that the term of
office of a minister or deputy
minister is coterminous with
that of the government which
appointed the minister, and that
in-between that term, the
minister or deputy minister may
lose his office in any of the
ways specified in article 81.”
(e.s.)
Assuming even
that the plaintiff’s argument is
a possible one the alternative
construction pursued in this
judgment is also possible. It
would therefore mean that
article 47(6) is somewhat
ambiguous. In such a situation
it is settled law as stated (per
Gonsalves-Sabola J) in the
Bahamas case of
Whitfield
v. Attorney-General 1989 LRC
(Const.) 249 at 263 that:
“In
44
Halsbury’s Laws of England (4th
edn) para 896 there appears
the following passage dealing
with the interpretation of
statutes:
‘If the
language of a statute is
ambiguous so as to admit of two
constructions, the consequences
of the alternative constructions
must be regarded, and that
construction must not be adopted
which leads to manifest public
mischief, or great
inconvenience, or repugnance,
inconsistency, unreasonableness
or absurdity, or to great
harshness or injustice. …”
I have left
out such portions of the
quotation that tend to hold that
if a statute is plain and
unambiguous it must take its
literal course regardless of the
consequences, as such a view is
now outmoded, see
Ransford
France v The Electoral
Commission & The
Attorney-General, J1/19/2012,
dated 19th October,
2012, unreported.
Where the
legislature intends that certain
provisions should move together
the subsequent mention of only
one of them does not necessarily
dismiss the other from
application to the one expressly
mentioned, see
Khoury v.
Mitchual (1989-90) 2 GLR 256 S.C.
and Newns v. Macfoy, Leading
Cases in Sierra Leone 82. This
court was therefore right in
Luke Mensah v Attorney-General,
supra in holding that article
47(6) cannot be construed free
from article 47(1) which clearly
shows that for a constituency to
be complete there must be the
demarcation of the constituency
as well as representation in
Parliament by one member of
Parliament thereof. Accordingly
article 47(6) addresses itself
to the consequent representation
in Parliament pursuant to the
alteration of the boundaries of
a constituency and it is that
aspect which it holds in check
until after the dissolution of a
current Parliament.
It must be
emphasized that in including the
new constituencies in the
upcoming elections the Electoral
Commission is merely preparing
to give effect to them, for
smooth governance, like a deed
delivered in escrow and does not
infringe any part of the
Constitution but is rather
warranted, apart from article
112(4), also by article 297(c).
It is as follows:
“297. In this
Constitution and in any other
law –
xxxxxxx
(c) where a
power is given to a person or
authority to do or enforce the
doing of an act or a thing, all
such powers shall be deemed to
be also given as are necessary
to enable that person or
authority to do or enforce the
doing of the act or thing; …”
(e.s.)
Gerrymandering
The plaintiff contends that
article 47(6) of our
Constitution is to forestall
gerrymandering, which he
perceives involves a situation
where electoral boundaries are
manipulated through alteration
to suit a particular electoral
outcome. He seeks to bolster
this stance, aforesaid, by
reliance on article 2 (1) of
Protocol A/SP1/12/01 on
Democracy and Good Governance
Supplementary to the Protocol
Relating to the Mechanism for
Conflict Prevention, Management,
Resolution, Peacekeeping and
Security of the Economic
Community of West Africa States
ratified and Article 89(4) of
the Kenyan Constitution. The
former provides that
“[n]o
substantial modification shall
be made to the electoral laws in
the last six (6) months before
the elections, except with the
consent of a majority of
political actors.”
It is
sufficient to say of this, that
article 46 of the Constitution
makes the Electoral Commission,
which has the sole mandate to
create and review parliamentary
constituencies in Ghana, “in the
performance of its functions”
completely independent of “the
direction or control of any
person or authority”. Clearly
it is a notorious common law and
statutory presumption that
official acts when performed are
duly and regularly performed.
The reliance by the plaintiff on
some alleged adoption by the
Electoral Commission of
electoral areas created by the
Minister of Local Government is
misconceived since the law
expects even high officers of
state to collaborate, see the
New Zealand Case of
R v. Pora
(2001) 5 LRC 530 at 572 C.A.
It was only recently that this
court held that the Minister of
Local Government has no
constitutional power to create
electoral areas. In such
circumstances the Electoral
Commission cannot be faulted for
such prior collaboration.
It is clear
that in creating the new
constituencies the Electoral
Commission is not altering any
electoral laws close to an
election but carrying out the
provisions of particularly
articles 47(1), (5) and 112(4)
of the Constitution.
The Kenyan
Constitution expressly provides
the contrary of its Ghanaian
counterpart and it is clear that
our Constitution is the supreme
law under article 1(2)
overriding all other laws. Its
amendment can only be effected
in accordance with its express
provisions under Chapter 25
thereof. The plaintiff also
quibbles about the stance of the
Electoral Commission that for
every new District there should
at least be one constituency. As
magnus continent in se minus and
on sheer common sense of
purposive governance this stance
of the Electoral Commission is
so logical and irresistible that
one can only be amazed at the
plaintiff’s equation of this
with gerrymandering! This stance
of the Electoral Commission was
championed strongly at the
Consultative Assembly by Mr.
S.P. Adamu. And even though his
further proposal that no
constituency should fall within
not only within two Regions but
also within two Districts was
not carried, it is now a known
convention of the Electoral
Commission. Mr. S.P. Adamu had
during the debates of the
Consultative Assembly on the
“Representation of the People 11
February 1992 Consideration
Stage” said as follows:
“Madam
Speaker, the creation of a
District automatically comes
with the creation of a new
constituency... I am saying that
if there is a need to create a
new District, then for the very
reason they were given the
District should also entitle
them to a new constituency.”
(e.s.)
We sit
foribus apertis, and not in
camera, both by common law and
constitutional prescription (see
article 126(3)) because the
courts belong to the public, to
interpret and/ or enforce the
Constitution for the best
interest and welfare of the
people of Ghana, as enjoined by
article 1(1) of the Constitution
and we are convinced that, going
by such considerations, inter
alia, the plaintiff’s action is
misconceived.
For all the foregoing reasons we
affirm the decision of this
court in Luke Mensah v.
Attorney-General, supra as
having been correctly decided
and consequently dismiss the
plaintiff’s action.
[SGD] W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
[SGD] J. ANSAH
JUSTICE OF THE SUPREME
COURT
[SGD] R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME
COURT
[SGD] ANIN-YEBOAH
JUSTICE OF THE SUPREME
COURT
[SGD] P. BAFFOE-BONNIE
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
NANA ASANTE
BEDIATUO FOR THE PLAINTIFF.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 2ND
DEFENANT.
NO
APPEARANCE FOR THE 1ST
DEFENDANT. |
