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Constitutional law -
Interpretation - Articles 42,
43, 45 (c) and 51 - Whether or
not Parliamentary
Elections-Result Collation Form,
Form One E. L. 23A and
Presidential Elections-Result
Collation Form, Form One E. L.
23B, is unreasonable, unfair,
non-transparent and does not
promote or secure free and fair
election
HEADNOTES
The parties have, as is now
unhappily customary in
constitutional litigation, felt
that they must necessarily
haggle over the question whether
the Plaintiff’s writ discloses a
constitutional cause of action
involving either an
interpretation or enforcement of
the 1992 Constitution of Ghana.
Reading the Plaintiff’s writ and
the parties’ statements of case
it is quite clear that the main
issues involved in this case are
whether by omitting to make
provisions or clear provisions
for the Collation Results to be
signed by the returning officer
and the candidates or their
representatives as well as their
agents and the provision of
copies of these results to them
the 1st defendant has
breached the Constitution in
terms of the core values of
transparency, efficacy and
fairness embedded expressly or
by necessary implication in
articles 42, 43, 45 (c), 51, 23
and 296 (a) and (b) of the 1992
Constitution.
HELD
For the avoidance of doubt we order
the parties and their counsel to
settle the Clarifications and
orders forthwith for
consideration by this court. The
Court adopts the clarifications
and concluding orders as settled
by the parties and their counsel
as the final order of this court
and same to be pasted in the
Record Book of this court
STATUTES REFERRED TO IN JUDGMENT
Public Elections Regulations,
2016 (C. I. 94)
CASES REFERRED TO IN JUDGMENT
Tuffour v Attorney-General
[1980] GLR 637 C.A
Kuenyehia v Archer [1993-94] 2
GLR 525 S.C.
Osman v Tedam (1970) 2 G&G 466
New Patriotic Party v
Attorney-General [1993-94] 2 GLR
35 SC.
Sasu V Amua-Sekyi [1987-88]1 GLR
506 C.A
R v Opia (1946) 8 WACA 10.
Agyei-Twum v Attorney-General &
Akwetey [2005-2006] SCGLR 227
Appiah-Ofori v Attorney-General
[2010] SCGLR 484
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ATUGUBA JSC
COUNSEL
AKOTO AMPAW WITH HIM ALEX
QUAYNOO, KWAKU ASIRIFIE, KOFI
BENTIL AND REBECCA DILONG FOR
THE PLAINTIFF
THADDEUS SORY WITH HIM SEAN POKU
FOR THE 1ST DEFENDANT
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
ZEINAB AYARIGA (ASSISTANT STATE
ATTORNEY) AND VICTORIA ADORTEY
(ASSISTANT ATTORNEY) FOR THE 2ND
DEFENDANT
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JUDGMENT
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ATUGUBA JSC:
We heard this case on 21st
October 2016 and in view of its
obvious urgency, adjourned for
judgment today 27th
October 2016. The plaintiff by
his writ dated 27th
September 2016 claims as
follows:-
1.
“A declaration that on a
true and proper interpretation
of articles 42, 43, 45 (c) and
51 of the Constitution 1992, the
function of the 1st
Defendant under article 45 (c)
of the Constitution, “to conduct
and supervise all public
elections and referenda” implies
a duty to conduct such elections
in a free, fair, transparent and
credible manner.”
2.
A declaration that, on a
true and proper interpretation
of article 51 of the
Constitution, 1992, the power of
the 1st Defendant
under Article 51 by
constitutional instrument to
make regulations for the
effective performance of its
functions under the Constitution
or any other law implies a duty
to make regulations that promote
free, fair, credible and
transparent elections.
3.
A declaration that by the
combined effects of Articles 23,
45 (c), 51 and 296 (a) & (b) of
the Constitution and the core
constitutional values of
transparency, accountability and
the rule of law (legality), the
failure of the 1st
defendant to make mandatory
provisions in the Public
Elections Regulations, 2016 (C.
I. 94) requiring the returning
officer of the 1st
defendant to furnish the
contesting parliamentary and
presidential candidates, their
representatives or counting
agents with copies of the
Parliamentary Elections-Result
Collation Form, Form One E. L.
23A and Presidential
Elections-Result Collation Form,
Form One E. L. 23B, specified in
the schedule thereto, is
unreasonable, unfair,
non-transparent and does not
promote or secure free and fair
elections and is accordingly
inconsistent with and in
contravention of Articles 23, 45
(c), 51 and 296 (a) & (b) of the
Constitution and the core
constitutional values of
transparency, accountability and
the rule of law.
4.
A declaration that the
failure of 1st
defendant to make provision in
C. I. 94 requiring the returning
officer and the contesting
candidates, their
representatives or counting
agents to sign the Parliamentary
Elections Results Collation
Form, namely Form One E. L. 23A
and the Presidential
Elections-Result Collation Form,
namely Form One E. L. 23B in the
schedule thereto is
unreasonable, arbitrary, and
non-transparent, and does not
promote or secure free, fair and
credible elections, and is
accordingly inconsistent with,
and in contravention of, the
letter and spirit of the
Constitution, particularly
articles 23, 45 (c), 51 and 296
(a) & (b) thereof, and with the
core constitutional values of
transparency, accountability and
the rule of law (legality).
5.
A declaration that the
failure of the 1st
defendant to make provision for
any column or space on the
Parliamentary Elections-Result
Collation Form, namely Form One
E.L. 23A, in the schedule to C.
I. 94 and on the Presidential
Elections-Result Collation Form,
namely, Form One E. L. 23 B, for
the returning officer and the
contesting parliamentary and
presidential candidates, their
representatives or counting
agents to execute their
signatures is unreasonable,
arbitrary, non-transparent, and
does not promote or secure free,
fair and credible elections, and
is accordingly inconsistent
with, and in contravention of,
articles 23, 45 (c), 51 and 296
(a) & (b) of the Constitution
and with core constitutional
values of transparency,
accountability and the rule of
law.
6.
A declaration that the
failure of 1st
defendant to make clear
provisions in C. I. 94
prescribing the detailed steps
that the returning officer at
the constituency collation
centre shall methodically take
to collate the total valid votes
cast for each of the contesting
presidential candidates, and to
enter same in the relevant
forms, namely the Certificate to
be Endorsed on the Writ, Form
One E. L. 1B and Presidential
Elections-Result Collation Form,
Form One E. L. 23B of the
schedule thereto is
unreasonable, arbitrary,
non-transparent and does not
promote or secure free, fair
transparent and credible
elections, and is accordingly
inconsistent with, and in
contravention of, the letter and
spirit of the Constitution 1992,
particularly articles 23, 45
(c), 51 and 296 (a) & (b)
thereof and with the core
constitutional values and
principles of transparency and
the rule of law.
7.
A declaration that the
failure of 1st
defendant to make provision for
a form in the schedule to C. I.
94, which answers to “the
declaration of results form”
referred to in regulation 42 (1)
(d) of C. I. 94 is unreasonable,
arbitrary and non-transparent
and does not promote or secure
free, fair and credible
elections, and is accordingly
inconsistent with, and in
contravention of, articles 23,
45 (c), 51 and 296 (a) & (b) of
the Constitution 1992 and the
core constitutional values of
transparency, accountability and
legality.
8.
Consequential orders
directed at the 1st
Defendant:-
a.
To furnish the contesting
parliamentary and presidential
candidates, their
representatives or counting
agents at the constituency
collation centre with copies of
the Parliamentary
Elections-Result Collation Form,
namely Form One, EL 23A, and the
Presidential Elections-Result
Collation Form, namely Form one,
EL 23B both signed by the
returning officer and the
candidates.
b.
To set out the steps to be taken
in collating results of the
presidential election at the
constituency collation centre
and entering valid votes cast on
the Presidential
Elections-Result Collation Form,
Form One E.L23B.
c.
Requiring the returning officer
and the contesting parliamentary
and presidential candidates,
their representatives or
counting agents at the
constituency collation centre to
sign both the Parliamentary
Elections-Result Collation Form,
Form One E. L. 23A and the
Presidential Elections-Result
Collation Form, Form One E. L.
23B.
d.
To make provision on both the
Parliamentary Election-Result
Collation Form, Form One E.L.
23A and the Presidential
Election-Result Collation Form,
Form One E.L. 23B for relevant
columns or spaces for the
signatures of the returning
officer and the parliamentary
and presidential candidates,
their representatives or
counting agents.
e.
Any other consequential orders
and directions as this
Honourable Court may consider
appropriate for giving effect,
or enable effect to be given to,
the declarations made”.
The parties have, as is now
unhappily customary in
constitutional litigation, felt
that they must necessarily
haggle over the question whether
the Plaintiff’s writ discloses a
constitutional cause of action
involving either an
interpretation or enforcement of
the 1992 Constitution of Ghana.
Reading the Plaintiff’s writ and
the parties’ statements of case
it is quite clear that the main
issues involved in this case are
whether by omitting to make
provisions or clear provisions
for the Collation Results to be
signed by the returning officer
and the candidates or their
representatives as well as their
agents and the provision of
copies of these results to them
the 1st defendant has
breached the Constitution in
terms of the core values of
transparency, efficacy and
fairness embedded expressly or
by necessary implication in
articles 42, 43, 45 (c), 51, 23
and 296 (a) and (b) of the 1992
Constitution.
The ensuing judgment of this
court shows that the
interpretation of the said
provisions of the Constitution
in the light of articles 23 and
296 (a) and (b) of the
Constitution is called for since
they are couched in broad,
general terms and the confines
of their requirements can only
in most cases be determined in
the context and circumstances
within which questions as to
them arise. It will be needless
pedantry to set out the myriad
of decisions of this court to
the effect that a written
constitution of our kind
requires a broad, purposive,
generous and spirit oriented
mode of construction;see
Tuffour v Attorney-General
[1980] GLR 637 C.A (sitting as
Supreme Court), Kuenyehia v
Archer [1993-94] 2 GLR 525
S.C. In this regard it is
pertinent to note that the
Plaintiff’s action relates also
to certain omissions of the 1st
defendant which will presently
appear, as an omission relating
to the terms of a constitutional
provision can ground an action
under article 2 (1) (b) of the
Constitution. Furthermore an act
or omission to be actionable
under article 2 need not
contravene the relevant
constitutional provision in a
picturesque respect but also
suffices if it is inconsistent
with the relevant constitutional
provision. The latter situation
is the fertile ground for
actions based on the core
values, spirit, purposes and
implications of the provision
concerned, such as the
plaintiff’s action herein, see
New Patriotic Party v
Attorney-General [1993-94] 2
GLR 35 SC.
Although the pursuant relief
relating to the plaint regarding
the effect of inaccurate textual
renditions and inaccurate
references to the scheduled
forms of the Public Elections
Regulations, 2016 (C. I. 94) is
hidden in the debris of the
miscellany of the residual
consequential order prayed for
by the Plaintiff, it is one of
the matters agitated by the
Plaintiff at length between
paragraphs 40-47 of the
plaintiff’s statement of case in
this action. They are as
follows:-
“40. Where a form in the schedule
is referable to the main text of
the legislation and vice versa,
there is no problem. Where
however, a form is mentioned in
the main text of the legislation
but cannot and is not referable
to any of the forms in the
schedule as is the case with
some of the regulations of C. I.
94 and the schedule thereto, the
result is to create confusion,
incoherence and inconsistencies
in the conduct of public
elections, with the ultimate
outcome being elections that are
neither free, fair, credible nor
transparent.
41. For instance the text of
regulation 3 (1) (m) of C. I.
94, which deals with
presidential election results
provides thus:-
“3(1) A person appointed
as a returning officer shall
(m) collate and forward to
the Commission the endorsed writ
and collated provisional results
of the total of votes cast for
each candidate in respect of the
presidential election as set out
in Form One of the Schedule and
post a copy at the constituency
collation centre”. (Emphasis
added).
42. Clearly, regulation 3 (1)
(m) cannot be a reference to the
Parliamentary Elections- Result
Collation Form. Strangely and
erroneously, however, the
sub-heading to Form One E.L. 23
A in the schedule to C. I. 94
suggests it is. The text of the
regulation 3 (1) (m) refers to
“the endorsed writ and collated
provisional results of the total
number of votes cast for each
candidate in respect of the
Presidential election.” This is,
in fact, a reference to Form One
E. L. IA to be found at page 36
in the schedule to C. I. 94.
However, and strangely, both the
Parliamentary Elections-Results
Collation Form, Form One E.L.
23A and the Presidential
Elections-Result Collation Form,
Form One E.L. 23B are
erroneously identified as the
forms referred to in regulation
3 (1) (m) of C. I. 94. We shall
analyze these and other
unreasonable anomalies in the
interplay between the main text
of the regulations and the
purported corresponding forms in
the schedule thereto and thereby
demonstrate the confusion and
irrationality with which C. I.
94 is pregnant to make out the
case of the plaintiff.
43. Another example of such
confusion is a reference in the
interpretation section in
regulation 49 of C. I. 94 to
“constituency collation sheet”.
Curiously, excepting the single
instance in regulation 49, where
a reference is made to
“constituency collation sheet”,
nowhere else in C. I. 94 is
“constituency collation sheet”
mentioned or identified, neither
in the text of the main
provisions nor in the forms in
schedule thereto.
44. Furthermore demonstration
that the 1st
defendant in drafting C. I. 94,
simply employed the
terminologies used in the
repealed Public Elections
Regulations, 2012 (C.I. 75),
without a proper understanding
of what they referred to under
C. I. 75 is provided by the
misconceived use of the
“declaration of results form” or
“results declaration form” in
regulation 42 (1) (d) of C. I.
94.
45. Your Lordships will notice,
from an examination of
regulation 40 (d), (e) and (f)
of the repealed C.I. 75, and
paragraph 12. 2 (e) at page 10
of “A Guide to Election
Officials – Election 2012
(Presidential and Parliamentary
Elections) annexed as Exhibit
“A” to Plaintiff’s affidavit
verifying the facts that the
“Declaration of Results Form” at
the constituency collation
centre is in fact a reference to
Form E.L.24A and Form E. L. 24B,
specimens or samples of which,
inter alia, can be found at
pages 56 to 57 and annexed for
your lordships convenience as
Exhibit B. these forms are
however not in the schedule to
C. I. 94. We shall presently
elaborate this.
46. An examination of
regulations 3 (1) (k), 3 (1) (m)
and regulation 42 (1) (d), of C.
I. 94 however, reveals some
baffling inconsistencies and
contradictions. Regulation 42
(1) (d) directs the returning
officer to “invite the counting
agents of the candidates to sign
the declaration of results form
and when signed post a copy at
the constituency collation
centre”. However, no form
answers to that in the schedule
to C. I. 94. Rather, regulation
3 (1) (K) of C.I. 94 directs the
returning officer to “forward to
the Commission at the end of the
poll an endorsed writ and a note
of the total number of votes
cast for each candidate” in
respect of the parliamentary
elections. The endorsed writ and
the note of the total number of
votes cast for each candidate,
is with respect, Part II of Form
one E. L. 1A at page 36 of C. I.
94. On the other hand,
regulation 3 (1) (m) of C. I. 94
commands the returning officer
to “collate and forward to the
commission the endorsed writ and
collated provisional results of
the total number of votes cast
for each candidate in respect of
the presidential election as Set
out in Form One of the schedule
and post a copy at the
constituency collation centre.”.
The confusion is apparent my
lords. In regulations 40 (1)
(d), the returning officer is to
post a “declaration of results
form” which cannot be found
anywhere in the schedule. Yet,
in regulation 3 (1) (m) the
endorsed writ and the collated
provisional results of the total
number of votes cast for each
candidate in respect of the
presidential election as set out
in Form one of the Schedule”
(i.e. E.L. 1B which is headed
“PART II, Certificate To Be
endorsed on the Writ” at page 37
of C. I. 94) are to be forwarded
to the Commission and a copy
thereof posted at the
constituency collation centre.
Here it is no longer the
non-existent “declaration of
results form”, which is to be
posted at the constituency
collation centre. Finally, to
compound the confusion, instead
of ensuring consistency in the
use of phrases and directing
that “the endorsed writ and the
note of the total number of
votes cast for each candidate in
the constituency (regulation 3
(1) (k) be sent to the
Commission and a copy thereof
posted at the constituency
collation centre, the 1st
defendant rather directs in
regulation 40 (1) (d) that a
non-existent “declaration of
results form” in respect of the
Parliamentary election be posted
at the constituency collation
centre. In fact, as we show
below, the endorsed writ and a
note of the total number of
votes cast for each candidate
(regulation 3 (1) (k)) are a
reference to Form One E. L. 1A;
while the endorsed writ and the
total collated provisional
results of votes cast for each
candidate in a presidential
election, (see regulation 3 (1)
(m)) are a reference to Form One
E. L. 1B in the schedule to C.
I. 94. It is not a reference to
the “declaration of results
form” which is completely
omitted in the schedule to C. I.
94.
47. It is our respectful
contention that such internal
contradictions, inconsistencies
and muddle in the use of, and
interplay between, the
substantive text of the
regulations and the Forms in the
schedule thereto, do not promote
and/or secure free, fair,
credible and transparent
elections, but rather undermine
same and are accordingly
inconsistent with, and in
contravention of, article 45 (c)
and 51 of the Constitution
1992.”
With regard to this litany of
inaccuracies it is a settled
rule of construction that though
the language of a statute maybe
unhappily expressed and
difficult of comprehension, all
effort must be made to construe
it intelligibly ut res magis
valeat quam pereat. It is easy
to see that the references were
clearly aimed at the
Parliamentary and Presidential
results respectively.
Thus in Osman v Tedam
(1970) 2 G&G 466 the Court of
Appeal had to solve a puzzle in
which a statutory provision
sought to disqualify members of
a “Regional Executive Committee”
of the Convention People’s Party
from membership of Parliament
whereas the Constitution of that
party designated it’s executive
body at the regional level as
the “Regional Steering
Committee.” The Court held that
the two expressions referred to
one and the same body and
therefore the defendant was
disqualified.
See also Sasu V Amua-Sekyi
[1987-88]1 GLR 506 C.A and R
v Opia (1946) 8 WACA 10. In
the circumstances we order that
the inaccurate references and
expressions in C.I.94 stand
construed as relating to the
relevant intended matter or
form.
With regard to the other
declarations and consequential
orders sought it is clear from
Regulation 3 (1) (i) (j) K and
(m) read together with
Regulations 42 and 43 of C.I. 94
as well as forms One E. L. 23 A
and One E. L. 23 B that these
regulations contemplate and
provide for collation forms in
respect of both parliamentary
and presidential elections.
However whilst Regulation 42
sets out the steps to be
complied with for the purpose of
the collation of the
parliamentary results which
would depict, inter alia, the
signatures of the counting
agents of the candidates there
are no such corresponding steps
in respect of Regulation 43
relating to the Presidential
results. Similarly the
aforementioned collation forms
for both parliamentary and
presidential results are
inchoate in that they do not
have spaces for the signatures
of the returning officers and
the candidates’ agents.
It is quite clear from the
provisions of article 49 (2) and
(3) of the 1992 Constitution
read together with the
aforequoted Regulations of C. I.
94 that the legislative aim is
to afford the same transparency
in respect of the declaration of
the polling station results in
respect of the parliamentary and
presidential elections and the
collation of the results of the
same at the constituency
collation centre. However, as
noted supra there is a casus
omissus in respect of the steps
towards the collation of these
results as well as signature
spaces for the relevant
signatures on the collation
Results forms in respect of both
results.
In the result, the Declarations
which we think just and fair to
make in the circumstance of this
case are that, with regard to
the Declarations as expressed
and sought by the Plaintiff, the
1st defendant did
make provisions in respect of
the matters listed for the
purposes of transparency,
fairness and efficacy of the
conduct of the impending
Parliamentary and Presidential
elections but that such
provisions were, in the respects
set out by the Plaintiff
inaccurately expressed and ought
to be remedied, so as to bring
them in line with the
constitutional provisions and
core values relied on by the
Plaintiff. Id certum est quid
certum reddi potest.
Accordingly following
Agyei-Twum v Attorney-General &
Akwetey [2005-2006] SCGLR
227 and Appiah-Ofori v
Attorney-General [2010]
SCGLR 484 we would read words
into Regulation 43 of C. I. 94
to the effect that the
provisions of Regulation 42
relating to the collation of the
parliamentary results should
apply mutatis mutandis to the
collation of the presidential
results and that Forms One E. L.
23 A and One E.L. 23 B be
provided with spaces for the
signatures of the returning
officers and the candidates or
their representatives and
counting agents.
We further order copies of the
collated results be given to
each candidate or the
representative of each candidate
or counting agent as obtains
under Regulation 38 (3) (b) of
C.I.94.
For the avoidance of doubt we
order the parties and their
counsel to settle the
Clarifications and orders
forthwith for consideration by
this court.
The Court adopts the
clarifications and concluding
orders as settled by the parties
and their counsel as the final
order of this court and same to
be pasted in the Record Book of
this court as follows:-
1. Regulation 3(1)(k) of
the Public Elections
Regulations, 2016 (C.I. 94)
refers to Form One EL 1 A at
page 36 of C.I. 94 headed "Part
II CERTIFICATE TO BE ENDORSED ON
WRIT" (for the parliamentary
election)and not a reference to
the Parliamentary
Elections-Collation Form (Form
One EL 23 A) on page 37 of C.I.
94.
2. Regulation 3(1)(m)
refers to Part II Certificate to
be endorsed on the writ (Form
One EL 1B) to be found at page
39 of C.I. 94 headed
"Part II CERTIFICATE TO BE
ENDORSED ON WRIT" and not a
reference to Form One EL 23B.
3. The reference to the
declaration of results form
provided for in regulation
42(1)(d) which does not refer to
any Form in the Schedule shall
be understood to be a reference
to Form One EL 1A for the
parliamentary election.
4. For the Presidential
election the declaration of
results form shall be understood
to refer to Form One EL 1B.
5. Provision shall be
made on the Parliamentary
Elections-Result Collation Form
(Form One EL 23A) and on the
Presidential Elections-Result
Collation Form (Form One EL 23B)
for the names and signatures of
the returning officer at the
constituency collation
centre, the candidates or their
representatives or counting
agents.
6. The returning
officer, the candidates or their
representatives or counting
agents shall sign Form One EL
23A (for the parliamentary
election) and Form One EL 23 B
(for the presidential election).
7 The returning officer
shall give each candidate or
their representative or the
counting agent a completed and
signed copy of Form One EL 23A
(for the parliamentary election)
and Form One EL 23 B (for the
presidential election).
8. The returning officer
at the constituency collation
centre shall apply the same
procedure set out in regulation
42(1) for collating the polling
stations results for the
presidential election.
Regulation 42(1)(e) requiring
the returning officer to name
the person elected shall not
apply to the presidential
election.
9. The "Constituency
Collation Sheet" in regulation
49(1) shall be understood to
mean "PARLIAMENTARY
ELECTIONS-RESULTS COLLATION FORM
(Form One EL 23A) and
PRESIDENTIAL ELECTIONS-RESULTS
COLLATION FORM (Form One EL
23B).
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) S. O. A
ADINYIRA (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
AKOTO AMPAW WITH HIM ALEX
QUAYNOO, KWAKU ASIRIFIE, KOFI
BENTIL AND REBECCA DILONG FOR
THE PLAINTIFF
THADDEUS SORY WITH HIM SEAN POKU
FOR THE 1ST DEFENDANT
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
ZEINAB AYARIGA (ASSISTANT STATE
ATTORNEY) AND VICTORIA ADORTEY
(ASSISTANT ATTORNEY) FOR THE 2ND
DEFENDANT
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