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JUDGMENT

ACQUAH, CJ:

The Plaintiff invokes the original jurisdiction of this court, for:—

"(c) A declaration that upon a true and proper interpretation of Article 47(1)(5)(6) and 113 of the Constitution of the Republic of Ghana 1992. The Electoral Commission has the right to include the newly created constituencies in the 2004, Presidential and Parliamentary Elections contrary to the position being held by the National Democratic Congress (NDC) and other section/sections of the public do contend otherwise and do support the position of the Electoral Commission thereby creating controversy in respect of the articles 47 and 113 of the Constitution, 1992 (sic).

(d) An order of perpetual injunction restraining any group of people, any Political Party that purports to derail the effort of the Electoral Commission to include the thirty (30) newly created constituencies in the 2004 General and Parliamentary Elections to be held in December, 2004."

The Plaintiff's writ was supported by a Statement of Case, and the written submissions of his counsel. There was no affidavit by the plaintiff verifying facts and particulars in his statement of case, as required by Rule 46(2) (a) of C.I. 16. And although the plaintiff's action is pegged on the views of the Electoral Commission (EC) and the NDC, neither the NDC nor the EC are made parties to the action, nor even served with copies of the writ and the supporting papers.

The plaintiff's action undoubtedly stems from the hue and cry by sections of the public in reaction to the EC's decision to feature the proposed 30 new constituencies in the December 2004 Presidential and Parliamentary Elections. There were varied views. Some contended that the newly created constituencies should not feature in the December 2004 General Elections but rather in the 2008 elections. There were still others who held that the election of candidates to represent the 30 newly created constituencies in Parliament should take place on 7th January 2005, when the alteration shall come into effect or soon thereafter.

Now having regard to the intense public controversy generated by the EC's decision, we decided that notwithstanding whatever flaws in the plaintiff's action we would go into the merits of his case. And in order to give opportunity to all registered political parties and the EC to be heard, we directed the EC and all registered political parties to be served with the plaintiff's writ and accompanying papers, and permitted them to file a Statement of Case. We then adjourned the suit to 25th February 2004 for hearing. On that day, our records showed that the writ and the accompanying papers had been served on:

1. New Patriotic Party (NPP)

2. National Democratic Congress (NDC)

3. Convention People's Party (CPP)

4. Democratic People's Party (DPP)

5. Egle Party (EP)

6. People's National Convention (PNC), and

7. Great Consolidated Popular Party (GCPP)

8. The Electoral Commission (EC)

Of these bodies, the following filed their respective Statement of Case:-

1. The Electoral Commission

2. DPP

3. PNC, and

4. GCPP

The PNC in particular, filed a notice of preliminary objection seeking to dismiss the plaintiff's action, together with a Statement of Case.

As stated earlier, it is because of the tremendous public interest generated by the decision of the EC that we decided to over look the flaws in the plaintiff's action, and deal with the substance of the action.

We are convinced that as the highest court of the land, charged with the constitutional authority to interpret and enforce the Constitution, and thereby promote rule of law in our society, we should, in fitting situations, rise up to the occasion and determine disputes likely to endanger our infant democracy. And we would do this, if the subject matter falls within our jurisdiction and the procedural errors committed by the plaintiff are not so fundamental as to amount to a denial of our jurisdiction.

In the instant case we are of the opinion that the errors do not vitiate our jurisdiction. They are due mainly to the inexperience of counsel. This inexperience is indeed manifested in the inelegant manner in which the plaintiff's writ and supporting papers are drafted. Thus the precise direction of the plaintiff arguments as advanced in his statement of case and written submission is not clear. The only sense one can gather from the plaintiff's papers is what is stated in his relief (a) and repeated in paragraph (6) of his statement of case, to the effect that the Electoral Commission is right in deciding to feature the thirty (30) newly created constituencies in the December 2004 Elections.

However in a detailed and well argued statement, the Electoral Commission, by references to Articles 45, 47 and 51 establishes his authority to review the existing 200 consistencies, the reasons for the review and the processes for giving legal backing to the new constituencies it has decided to create. The EC further alleges that there is currently laid before Parliament, the Representation of the People (Constituencies) Instrument, 2004 (C.I. 46) which will divide the country into 230 constituencies and revoke LI 1538. The EC then contends:

"On a proper interpretation of the relevant provision of the Constitution, and of the instruments and enactments referred to in this statement of Case, once the power to establish constituencies has been exercised by the Electoral Commission under Article 45(b) and 47(1), the election of members of Parliament must be conducted on the basis of the constituencies created under C.I. 46 to enable the new Parliament to commence under Article 112(4), and also to enable the President to be sworn in under article 66(1)".

In the Electoral Commission's view the controversy over its decision to include the 30 new constituencies in the December 2004 elections arises from a failure to distinguish between the scope of article 47(5) and that of 47(6).

In supporting the contention of the Electoral Commission, the DPP states in its statement of Case:

"(a) the boundaries of the 30 newly-created constituencies must be demarcated now

(b) the processes leading to the participation by the voters in these constituencies must then be accepted and implemented as part of the on going 2004 General Elections to await the inauguration of these to come into effect upon the next dissolution of Parliament as envisaged under article 47(6) of the Constitution".

In the DPP's view the controversy over the inclusion of the 30 new constituencies is not created by the Electoral Commission but by the failure of the Constitution to specifically deal with that situation.

The GCPP in its Statement of Case, also in support of the stand of the Electoral Commission, states in paragraph 8 thus:

"8. The GCPP states that on a true and proper interpretation of the letter and spirit of article 47 and 113 of the 1992 Constitution the newly created and the already existing constituencies which have been altered can properly feature in the said elections of December 2004".

In respect of the PNC, apart from its notice to raise a preliminary point to dismiss the plaintiff's action, its statement of case does not set out any well-reasoned argument in support of its opposition to the EC's stand.

For instance in paragraphs (6) and (8) of its Statement of Case the PNC states:

"6. Interested party contends that until a legislative Instrument has been passed and properly gazetted, the 30 new constituencies would not have been created. Further interested party contends that upon proper and true interpretation of Article 47 and 113 of the 1992 Constitution the 30 new constituencies do not exist as a matter of fact and law, until Parliament has passed a legislative Instrument giving the Electoral Commission the necessary legal authority to create the new constituencies. Therefore since the 30 new constituencies do not exist as a matter of fact and law, they cannot feature in the 2004 Parliamentary and Presidential elections regardless the position taken by any party either in support or opposition to the Electoral commission's intention to include or exclude the 30 new constituencies which it intends to create to participate in the 2004 Parliamentary and Presidential elections.

9. Interested party further contends that if the 30 new constituencies which the Electoral Commission intend to create are allowed to participate in 2004 Presidential and Parliamentary before their boundaries become effective upon dissolution of parliament in 2005, that act or conduct will be inconsistent with and contravention of Article 107 of the Constitution relating to retroactive legislation since the date the boundaries become effective in 2005, will have to be retroactively applied in order to validate their result in the 2004 Presidential and Parliamentary elections."

Certainly the issue that has generated public dabate is not on the making of the relevant legal instrument to give legal backing to the EC's creation of 30 new constituencies; the issue relates to the period for holding elections for Parliamentary members for the proposed newly created constituencies. In December 2004, January 2005 or December 2008?

Now the power of the Electoral Commission to demarcate the country into electoral constituencies for both national and district elections under article 45 and 47 is not doubted. Neither is the Commission's power to review these constituencies at times stated in article 47(5). Furthermore, following the exercise of these powers on the publication of the results of 2000 Census, there is also no dispute that, the Electoral Commission has decided to increase the existing constituencies from 200 to 230.

Now the controversy, as we see it, is when should these 30 new constituencies become operational.

TWO-STAGE PROCESS

For the 30 new constituencies to become operational requires a two-stage process.

The first stage requires legal backing for the proposed 30 new constituencies. In other words, the Electoral Commission's demarcation of the country into 230 constituencies must have the force of law. And in this wise article 51 authorizes the EC to have its decision made by a Constitutional Instrument. The article provides:

"51. The Electoral Commission shall, by constitutional instrument, make regulation for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy".

Thus the Electoral Commission's purported creation of 30 new constituencies will have the force of law, when it is made by a Constitutional Instrument. This is precisely what the Electoral Commission alleges in paragraph 1.12 of its statement of case, to wit, that it has placed before Parliament, the Representation of the People (Constituencies) Instrument, 2004 C.I. 46. And under article 11(7)(c) of the Constitution, this C.I. 46 becomes law at the expiration of 21 sitting days after being so laid unless Parliament, before the expiration of the 21 days, annuls the Regulation. Now on coming into force of C.I. 46, the 30 new Constituencies become legally created, resulting in the alteration of the existing constituencies from 200 to 230. For C.I. 46 not only alters the existing constituencies, but also revokes the legal instrument, LI 1538, which established the existing 200 constituencies.

The next process, after the alteration of the existing 200 constituencies by C.I. 46, is the coming into force of the 230 constituencies.

Indeed if there was no provision regulating the coming into force of the 230 constituencies, they would have come into force after the expiration of the 21 sitting days. For article 11(7) provides:

"Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall:-

(a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before Parliament; and

(c) Come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.

But the framers of the Constitution in their manifold wisdom provided that when the relevant legal instrument altering existing constituencies becomes law on the expiration of the 21 sitting days, the constituencies set out in that instrument (in this case C.I. 46) shall not be immediately brought into being, but that they shall come into existence upon the next dissolution of Parliament. In other words, the new constituencies established in C.I. 46, shall each have its Parliamentary representative in the next Parliament coming immediately after the dissolution of the current Parliament

It reads:

"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".

The rationale underlying the above provision is quite evident and sound. It is important to appreciate that the Electoral Commission cannot alter the boundaries of a constituency except by a Constitutional Instrument. And on the coming into force of the relevant constitutional instrument setting out the alteration, the said boundaries become legally altered under article 47(6), for same to come into effect upon the next dissolution of Parliament.

Thus by saying that the alterations shall come into force implies that each of the altered constituency as set out in the relevant instrument, shall have its elected representative in Parliament in conformity with article 47(1). The article reads:

"Ghana shall be divided into as many constituencies for the purpose of the election of members of Parliament as the Electoral Commission may prescribe, and each constituency shall be represented by one member of Parliament".

Thus if C.I. 46 goes through 21 sitting days in the current Parliament, the 230 constituencies created in it, should each be represented by a member of Parliament in the next Parliament beginning in January 2005.

If C.I. 46 does not go through the current Parliament, but the next Parliament (that is 2005-2008 Parliament) then the created constituencies have to have a member of Parliament in the Parliament beginning in January 2009.

It is therefore, extremely important to distinguish between the alteration of the boundaries of the constituencies as brought into being by a constitutional instrument and the representation of a member of Parliament for each of the altered constituencies. It is the representation of a member of Parliament for the altered constituencies that article 47(6) deals with. Article 47(6) does not permit the alteration of boundaries by a CI, and the representation of a member of Parliament for the altered constituencies, to happen in the lifetime of the same Parliament.

ELECTION OF MEMBERS FOR NEW CONSTITUENCIES

Now if C.I. 46 becomes law during the lifetime of the current Parliament, when do we elect members of Parliament for each of the new constituencies in the next Parliament? For article 47(1) and (6) require that the constituencies set out in C.I. 46 must each be represented by a member of Parliament in the next Parliament.

The answer to this question lies in the system we have adopted in electing members to our Parliament.

Generally, elections for members of the next Parliament are elected either before or after the dissolution of the previous Parliament. In Britain and Australia, for instance, elections for members of the next Parliament are conducted after the dissolution of the previous Parliament.

Other countries including Ghana hold their elections before the dissolution of the previous Parliament. In the specific case of Ghana, article 113(1) states that subject to clause (2) thereof Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved. Article 113(2) provides for an extension of the four-year period in a situation where Ghana is actually engaged in war. Now subject to this article 113(2), article 112(4) provides that a general election of members of Parliament for the next Parliament shall be held within Thirty days before the expiration of the four years term of the immediately preceding Parliament. The Article reads:

"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 14 days after the expiration of that period".

It is therefore clear that in Ghana, elections for members of the next Parliament is elected within 30 days before the end of the term of the previous Parliament.

It follows therefore that elections for members of Parliament for the altered constituencies as set out in C.I. 46 (if same becomes law in the lifetime of this Parliament), should be held within 30 days before the expiration of the four years' term of the present Parliament.

As for the proposition that elections for the 30 additional constituencies should be held as a by-election in January 2005 or soon thereafter, same is riddled with serious obstacles.

To begin with a by-election is really meant for vacancies occurring in the lifetime of a Parliament. Thus section 50 of the PNDCL 284 defines a by-election as:

"an election held to fill a vacancy occurring otherwise then on the dissolution of Parliament".

Following from this definition article 112(5) as amended by the Constitution of the Republic of Ghana (Amendment) Act 1996, Act 527, section 3 provides:

"Whenever a vacancy occurs in Parliament, the clerk of Parliament shall notify the Electoral Commission in writing within seven (7) days after becoming aware that the vacancy has occurred; and a by-election shall be held within Thirty days after the vacancy occurred except that where the vacancy occurred through the death of a member, the by-election shall be held within sixty (60) days after the occurrence of the vacancy".

How feasible can one rely on this article to conduct a by-election in January 2005 for the newly created constituencies?

But a more serious objection to holding a by-election in January 2005 is that the alteration of the boundaries invariably results in some constituencies being divided into two or more constituencies while the boundaries of others are bound to be affected by the alteration. Thus a by-election will obviously involve some of the parliamentarians of the old constituencies. Are they to take part in the by-election or what?

A by-election in January 2005 for the 30 new constituencies is therefore out of the question.

What about the view that the elections should be part of the December 2008 General Elections?

From what we have said above, if the C.I. 46 comes into force during the lifetime of this Parliament then article 47(6) makes it mandatory that the newly created constituencies should come into being in the next Parliament, beginning January 2005. For as the article provides, when the boundaries become altered (and this by article 51, must be done by a constitutional instrument) "the alteration shall come into effect upon the next dissolution of Parliament." There is therefore no discretion given the EC to do otherwise.

Furthermore since the review was based on the enumeration figures of the census held in 2000, the population distribution would have changed considerably by 2008 that the basis for the alteration, would no longer be valid for application.

Indeed in 2008 about five to six million people would have been added to the 2000 base year population through natural increase alone. There would obviously be various population shifts within the country due to migration, new industrial locations and other factors within the economy. In the face of the results of the 2000 population census and given the projected growth rate of 2.7 per cent if the additional 30 constituencies are not featured in the coming general elections, almost about three million Ghanaians will be under represented in the next Parliament. And this is certainly against the egalitarian principle of fair representation solidly embedded in our Constitution.

CONCLUSION

It is therefore quite evident that on the coming into force of C.I. 46 currently before Parliament, and having regard to the manner of electing our Parliamentary members as set out in article 112(4), and the plain and unambiguous language of Article 47(6), the election of Parliamentary candidates for 30 additional constituencies should feature in the December 2004 Presidential and Parliamentary elections, so that the next Parliament beginning in January 2005 shall satisfy the requirements of article 47(1) of the Constitution.

It follows therefore that the decision of the Electoral Commission to include the 30 new constituencies in the forthcoming general election is valid, and we accordingly declare so.

The request for an order of perpetual injunction is hereby refused.

There would be no order as to cost.

SGD.

G. K. ACQUAH

CHIEF JUSTICE

SGD.

MISS S. AKUFFO

JUSTICE OF THE SUPREME COURT

SGD.

S.G. BADDOO

JUSTICE OF THE SUPREME COURT

SGD.

DR. SETH TWUM

JUSTICE OF THE SUPREME COURT

SGD.

PROF. A.K.P. KLUDZE

JUSTICE OF THE SUPREME COURT

COUNSEL:

Mr. Asumah Kyeremeh for plaintiff,

Mr. James Quarshie Idun (Jr.) with Aduamoah Osei for the Electoral Commission

DR. Somtim Tobiga for PNC