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KOTEY, JSC:-
Introduction
By a writ of summons issued on
12th September 2018,
the plaintiffs invoked the
original jurisdiction of this
court under articles 2(1) and
130(1)(a) of the
1992Constitution.
The Plaintiffs in the action are
Mayor Agbleze, Destiny Awlimey
and Jean-Claude Koku Amenyaoglo
and the 1stDefendant
is the Attorney-General while
the 2nd Defendant is
the Electoral Commission.
The Plaintiffs are seeking
inter alia, a declaration
that upon a true and proper
interpretation of articles 5, on
the creation of new regions and
article 42, on the right to
vote, all persons in the
affected regions are entitled to
be registered and to vote in a
referendum on the creation of
new regions scheduled for 27th
December 2018.
Background
Following various petitions to
the President for new regions to
be created out of the Western,
Volta, Brong-Ahafo and Northern
regions, the President, in
accordance with article 5(2) of
the Constitution, on 29th
June 2017, referred the
petitions to the Council of
State for advice.
On 15th August 2017,
the Council of State advised the
President to appoint a
Commission of Inquiry to
“inquire into the need and to
make recommendations on all the
factors involved in the creation
of the new regions”.
Subsequently on 12th
October 2017, a Commission of
Inquiry (Brobbey Commission)
chaired by Mr. Justice S. A.
Brobbey was set up under The
Commission of Inquiry into the
creation of New Regions
Instrument, 2017 (C.1. 105) to
“Inquire into the need and to
make recommendations on all the
factors involved in the creation
of the new regions” in
accordance with article 5(2) of
the Constitution.
On the 27th June
2018, the Brobbey Commission
presented its report to the
President and recommended the
creation of six (6) new regions
out of the Western, Volta,
Northern and Brong-Ahafo
regions. The six (6) proposed
regions are Western North, Oti,
North East, Savanna, Ahafo and
Brong East.
The Brobbey Commission also
recommended to the President the
holding of a referendum,
specified the issues to be
determined by the referendum and
the places where the referendum
should be held. These places
were limited to where the new
regions were proposed to be
created.
The President referred the
recommendations of the Brobbey
Commission to the 2nd
Defendant, pursuant to article
5(5) of the Constitution.The 2nd
Defendant then set 27th
December 2018, for a referendum
to be held in the places where
the new regions are proposed to
be created.
The Plaintiffs appear to be
dissatisfied with the
recommendation of the Brobbey
Commission and the decision of
the 2nd Defendant to
hold the referendum only in the
places where the proposed new
regions are to be created. They
contend that this is
unconstitutional and that on a
true and proper interpretation
of Articles 5 and 41 of the
Constitution, the referendum
should be held in the entirety
of the existing regions from
which the new regions are
proposed to be created. They
also say that all qualified
persons in these regions are
entitled to be registered and to
vote in the referendum. This, in
summary, prompted the
Plaintiff’s Writ before this
court.
Reliefs Being Sought by the
Plaintiffs
By their writ of summons, the
Plaintiffs seek:
1. That on a true and proper
interpretation of Article
5(1)(a) and (b) and Article 5(4)
of the Constitution, 1992, the
decision by the Government to
hold the Referendum to decide
whether or not new regions
should be created out of four
existing administrative regions,
only in the areas where there
was substantial need and
demand for the creation of the
new regions is unconstitutional,
null and void as a result.
2. That on a true and proper
interpretation of Article
5(1)(a) & (b) and clause 4 of
the Constitution, 1992, the
recommendations by the
Commission of Inquiry for the
Creation of New Regions for the
Referendum to create new Regions
out of the existing regions to
be held only in the areas
where there was substantial need
and demand for the creation
of the new region is
unconstitutional, null and void
as a result.
3. A declaration that on a true
and proper interpretation of
Articles 5(1)(a) & 5(4) of the
Constitution, 1992, any
Referendum to determine whether
a new region should be created
or whether the boundaries of
regions should be altered must
take place in and involve
inhabitants of the whole of that
region that is to be altered is
entitled to be registered and
allowed to vote such referendum
in accordance with article 42 of
the Constitution of Ghana, 1992.
4. That on a true and proper
interpretation of Article
5(1)(a) & (b) and clause 4 of
the Constitution, 1992 it was
unreasonable for the Commission
of Inquiry for the Creation of
New Regions to have recommended,
that the Referendum to determine
whether a new region should be
created or not out of four
existing administrative regions,
should be held only in areas
where there was substantial
demand for the creation of
new regions.
5. An order of discovery
directed at the 1st
defendant to produce a certified
true copy of the final report of
the Commission of Inquiry for
the Creation of new regions
containing the recommendations
submitted to the President for
the benefit of the Plaintiffs.
6. An order for interlocutory
injunction directed at the 2ndDefendant
to prevent the 2nd
Defendant from holding or
organizing or authorizing the
holding of a referendum to
create new regions until the
final determination of the suit.
7. An order for interlocutory
injunction against the 2nd
defendant which will have the
effect of restraining/preventing
the 2nd defendant
from taking any steps including
but not limited to the
registration of voters under a
limited voter registration
exercise scheduled for 16th
to 25th September,
2018 for persons intended to
vote in a referendum to
determine whether or not new
regions should be created out of
four existing administrative
regions which referendum is
scheduled for 27th
December, 2018 pending a final
determination of this suit.
8. Any order/orders or such
directions the Supreme Court
considers appropriate for giving
effect, or enabling effect to be
given, to the declarations so
made.
On 31st October 2018
, the Court drew both counsel’s
attention to a preliminary issue
of law raised by the defendants
in their statements of case to
the effect that the Plaintiffs’
writ did not disclose any cause
of action and that the original
jurisdiction of the court has
been improperly invoked; and
directed the parties to address
it on the preliminary legal
point, to wit,“ Whether the
Plaintiffs’ action raises any
interpretative or enforcement
issue to warrant the invocation
and exercise of the court’s
jurisdiction under Articles 2
and 130 of the 1992
Constitution.”
All the parties consequently
filed legal opinions addressing
the court on this issue.
The Law on the Invocation and
Exercise of the Original
Jurisdiction of this Court to
Interpret the Constitution.
We start our consideration of
this issue by quoting Articles
2(1) and 130(1)(a) of the
Constitution.
2(1). A Person who alleges
that...
(a) an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b)any act or omission of any
person is inconsistent with, or
is in contravention of a
provision of this Constitution,
may bring an action in the
Supreme Court for a declaration
to that effect.
130(1). Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in.
(a)
all matters relating to the
enforcement or interpretation of
this Constitution.
This is not the first time this
court has been called upon to
examine the original
jurisdiction powers of the
Supreme Court as provided
currently in Articles 2(1) and
130(1) of the 1992 Constitution.
The original jurisdiction of the
court has been considered in a
number of cases including the
following;
Republic v. Special Tribunal,
Ex parte Akosah [1980] GLR529.
Osei Boateng v. National Media
Commission [2012] 2SCGLR1038.
Bimpong Buta v. General Legal
Council [2003 -2004] SCGLR1200.
Abu Ramadan v. The Electoral
Commission (Writ No.J1/14/2016).
Ghana Bar Association v.
Attorney General and Another
[2003-2004] 1 SCGLR 250
Osei-Boateng v. National Media
Commission and Appenteng [2012]
2 SCGLR 1038.
Danso v. Daaduam II & Another
[2013-2014] 2 SCGLR 1570.
The Republic v. High Court (Fast
Track Division) Accra; Ex parte
National Lottery Authority
(Ghana Lotto Operators
Association & Others Interested
Parties) [2009] SC GLR 390;
National Media Commission v.
Attorney-General [2000] SCGLR 1.
Our understanding of the law
especially as expounded in the
cases cited above is that the
existence of an ambiguity or
imprecision or lack of clarity
in a constitutional provision is
a precondition for the
invocation and exercise of the
original interpretative
jurisdiction of this Court.
Where the words of a provision
are precise, clear and
unambiguous, this court has
insisted that its exclusive
original interpretative
jurisdiction cannot be invoked
or exercised.
For instance in Ghana Bar
Association v. Attorney General
[2003-2004] 1 SCGLR 250,
Bamford Addo, JSC held at page
269 thus,
“Is there a question of
interpretation in relief 1? The
answer is that where words in
the Constitution are plain and
unambiguous and there is no
dispute as their meaning, the
question of constitutional
interpretation does not arise
and the court would decline to
give an interpretation is such
circumstances.”
Further in Osei-Boateng v.
National Media Commission and
Appenteng [2012] 2 SCGLR 1038
this court held that:
“The requirement of an
ambiguity/imprecision or lack of
clarity in a constitutional
provision was as much a
precondition for the exercise of
the exclusive original
enforcement jurisdiction of the
Supreme Court as it was for the
exclusive original
interpretation jurisdiction
under Articles 2(1) and 130 of
the 1992 Constitution; that was
clearly right in principle since
to hold otherwise would imply
opening floodgates for
enforcement actions to overwhelm
the Supreme Court. Accordingly
where a constitutional provision
was clear and unambiguous any
court in the hierarchy of courts
might enforce it and Supreme
Court’s exclusive original
jurisdiction would not apply to
it.”
Again in Danso v. Daaduam II
& Another [2013-2014] 2 SCGLR
1570 at 1574, this court
speaking through Anin Yeboah JSC
at page 1574 opined as follows:
“It is clear that the Plaintiff
is inviting this court to
interpret Article 267(1) which
obviously calls for no
interpretation. The words are
clear and unambiguous and it is
a cardinal rule of
interpretation of statutes and
national constitutions for that
matter, that if the provisions
are clear and unambiguous, no
interpretation arises.
It is on the basis of the strong
stance taken by this court
specifying the circumstances
under which its interpretative
power would be triggered that
this Writ would be measured.
Does a Real, Genuine
Interpretative Issue Arise in
this Case?
We now examine whether this case
discloses a genuine or real
interpretative issue and whether
the original interpretative
jurisdiction of this Court has
been properly invoked.
As can be gleaned from the Writ,
apart from the consequential and
ancillary reliefs, the
Plaintiffs primarily seek an
interpretation of Article 5 of
the Constitution.
Article 5 of the Constitution
provides that:
5.(1) Subject to the provisions
of this article, the President
may, by constitutional
instrument
(a) create a new region;
(b) alter the boundaries of a
region; or
(c) provide for the merger of
two or more regions.
(2) If the President, upon a
petition being presented to him
and, on the advice of the
Council of State, is satisfied
that there is a substantial
demand for-
(a) the creation of a new
region;
(b) the alteration of the
boundaries of a region, whether
or not the alteration involves
the creation of a new region; or
(c) the merger of any two or
more regions;
he shall, acting in accordance
with the advice of the Council
of State, appoint a Commission
of Inquiry to inquire into the
demand and to make
recommendations on all the
factors involved in the
creation, alteration or merger.
(3) If notwithstanding that a
petition has been presented to
him, the President is, on the
advice of the Council of State,
satisfied that the need has
arisen for taking any steps
referred to in paragraphs (a),
(b) and (c) of clause (1) of
this article, he may, acting in
accordance with the advice of
the Council of State, appoint a
Commission of Inquiry to inquire
into the need and to make
recommendations on all the
factors involved in the
creation, alteration or merger.
(4) Where a Commission of
Inquiry appointed under clause
(2) or (3) of this article finds
that there is the need and a
substantial demand for the
creation, alteration or merger
referred to in either of those
clauses, it shall recommend to
the President that a referendum
be held, specifying the issues
to be determined by the
referendum and the places where
the referendum should be held.
(5) The President shall refer
the recommendations to the
Electoral Commission, and the
referendum shall be held in a
manner prescribed by the
Electoral Commission.
(6) An issue referred for
determination by the referendum
under clauses (4) and (5) shall
not be taken to be determined by
the referendum unless at least
fifty percent of the persons
entitled to vote cast their vote
at the referendum, and of the
votes cast at least eighty
percent were cast in favour of
that issue.
(7) Where a referendum involves
the merger of two or more
regions, the issue shall not be
taken to be determined unless at
least sixty per cent of the
persons entitled to vote at the
referendum in each such region
voted in favour of the merger of
the two or more regions; and
accordingly, clause(6) of this
article shall not apply to the
referendum.
(8) The President shall, under
clause (1) of this article, and
acting in accordance with the
results of the referendum held
under clauses(4) and (5) of this
article, issue a constitutional
instrument giving effect, or
enabling effect to be given, to
the results.
It is also important to refer to
the terms of reference of the
Commission of Inquiry as
provided for by Rule 4 of C.I.
105.
“The terms of reference of the
Commission are:
(a)To inquire, pursuant to the
petitions, into the need and
substantial demand for the
creation of new regions and,
thereby the alteration of
Western Region, Brong-Ahafo
Region, Northern Region and
Volta Region.
(b)To make recommendations to
the President, based on its
findings, on the creation and
alteration of the regions; and
(c)To specify the issues to be
determined by referendum and the
places where the referendum
should be held, where it makes
recommendations for the creation
and alteration of regions.
We have taken pains to reproduce
in full the provisions of
Article 5 of the Constitution
and the Rule 4 of C.I. 105 to
demonstrate that the provisions
of articles 5(4) and 5(5) on the
creation and/or alteration of
the boundaries of a region are
clear and contain no ambiguity.
Article 5(4) provides that the
Commission of Inquiry shall
recommend to the President the
issues to be determined in a
referendum and the places where
the referendum should be held.
Clause (5) provides that the 2nd
Defendant will prescribe the
manner the referendum shall be
held.
In their submissions to the
court, Counsel for the parties
quoted in extenso the holding by
Anin JA (as he then was) in the
case of Republic v. Special
Tribunal; Ex parte Akosah [1980]
GLR 592 where the Court of
Appeal sitting as a Supreme
Court identified four principles
under which the interpretative
jurisdiction of the Supreme
Court under the 1979
Constitution would be triggered.
The Court stated at page 605
that the original,
interpretative jurisdiction of
the Supreme Court is invoked
where inter alia
“(a) the words of the provision
are imprecise or unclear or
ambiguous. Put in another way,
it arises if one party invites
the court to declare that the
words of the article have a
double-meaning or are obscure or
else mean something different
from or more than what they say;
(b) rival meanings have been
placed by the litigants on the
words of any provision of the
Constitution;
(c) there is a conflict in the
meaning and effect of two or
more articles of the
Constitution, and the question
is raised as to which provision
shall prevail;
(d) on the face of the
provisions, there is a conflict
between the operation of
particular institutions set up
under the Constitution, and
thereby raising problems of
enforcement and of
interpretation.”
While counsel for the Defendants
invited the court to apply the
holding of that case to mean
that no genuine issue of
interpretation arises in this
case because the Constitution
mandated the Brobbey Commission
to determine the “places” the
referendum shall be held,
counsel for the Plaintiff argued
otherwise and invited this court
to interpret “places” in Article
5 to mean every person in the
regions affected by the creation
of the new regions. In the eyes
of counsel for the Plaintiffs,
because the parties were not ad
idem on who is qualified to vote
in the referendum a genuine
issue of interpretation arises
under principle (b) Ex-Parte
Akosah (supra).
We have reviewed the submissions
of the parties and have no doubt
in our minds to decline the
invitation by Plaintiffs’
counsel. We find the invitation
untenable and based on a
misapprehension of the nature
import and circumstances
envisaged in by eventuality (b)
in Ex parte Akosah
(supra).
It is clear that the Plaintiffs
are inviting this court to
interpret Article 5 of the
Constitution which obviously
calls for no interpretation. The
words are clear and unambiguous
and it is a cardinal rule of
interpretation of statutes and
national constitutions for that
matter, that if the provisions
are clear and unambiguous, no
interpretation arises.
The Plaintiffs must have misread
or misunderstood the clear
provisions made in the various
clauses of Article 5 of the
Constitution. For example, the
Plaintiffs submits before this
court that “the framers
always intended the decision to
create, alter and merge regions
to be a regional matter”. No
doubt, Plaintiffs’ confusion
stems from the fact that they
purported to lump together, the
intention of the framers of the
Constitution in referendums
leading to the creation,
alteration and merger of
regions. However, the framers
never intended a one size fit
all.
The framers drew a clear
distinction between situations
where the referendum would be
held when a region in Ghana has
to change by reason of creation
and alteration on one hand as in
Article 5(6) and on the other
hand the provisions where
referendum shall be held where
regions change by merger of two
or more regions as in Article
5(7).
In the first situation on
creation and alteration of a
region, power has been given to
the Commission established in
Clause 2 of Article 5, to
identify the places where the
referendum shall be held
after which the Electoral
Commission shall hold the
referendum in those areas. The
Constitution provides that at
least fifty percent of the
persons entitled to vote must
cast their votes and at least
eighty percent votes must be
cast in favour of the issue for
it to pass.
In the second situation on
merger of two or more Regions, a
separate provision has been
made. At least sixty percent of
persons entitled to vote at the
referendum in EACH SUCH
REGION voted in favour of
the merger. Thus, it is clear
that in change of regions by
merger of two or more regions,
the Constitution specifies that
the referendum takes place in
the regions affected; it is
not the Commission which
determines the PLACES the
referendum should be held in
that situation.
If we were to accede to
Plaintiff’s counsel’s
invitation, the floodgate would
be open for parties to place
rival meanings on any provision
of the Constitution and that
alone should be sufficient to
trigger this court’s
interpretative powers, a step
that would create chaos in the
functioning of the Court.
From the arguments advanced by
the parties, it appears the
Plaintiffs’ issue with the
Brobbey Commission is that they
are not happy with the
discretionary power given to the
Commission to determine the
places where the referendum
should be held. Plaintiffs argue
as follows:
“can the Commission of
Inquiry recommend for the
referendum to be held in two (2)
towns because they have the
discretion to determine the
“place” where the referendum
should take place? My Lords, it
is the unfettered discretionary
power the 1st and 2nd
Defendants claim the Commission
of Inquiry has which the
Plaintiffs humbly submits should
be checked by judicial
interpretation or review so that
it is exercised in non-arbitrary
and reasonable manner as
required by Article 296…”
Throughout the Constitution,
discretion has been vested in
persons or bodies charged with
the responsibility to exercise
one power or the other. Where
the discretionary power is not
exercised according to law, the
recourse by an aggrieved party
lies in some other remedy
provided for in the Constitution
and not an invitation to invoke
the original jurisdiction of
this court, as submitted by the
Plaintiffs “to check by judicial
interpretation or review the
power so that it is exercised in
a non-arbitrary and reasonable
manner”.
Conclusion
We conclude by emphasizing that
we have carefully considered the
issues in this case. The
provisions of Article 5 of the
Constitution are clear and
contain no ambiguity. No rival
meanings have been placed on any
other words or phrases. The
mandates of the Commission of
Inquiry and the 2nd
Defendant are clear. The
Commission of Inquiry
recommended the places where the
referendum should be held
pursuant to article 5(4) of the
Constitution.
The 2ndDefendant has,
pursuant to article 5(5)
prescribed the manner the
referendum shall take place.
Therefore no question of
interpretation arises.
We therefore hold that the
exclusive original
interpretative jurisdiction
conferred on this court by
articles 2(1) and 130(1)(a) of
the Constitution has not been
properly invoked by the
plaintiffs in this case.
Accordingly, the Plaintiffs Writ
is dismissed in limine.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS), JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME
COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS), JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the conclusion and
reasoning of my brother Kotey,
JSC.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALBERT QUASHIGAH FOR THE
APPLICANTS.
GODFRIED YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL WITH HIM YVONNE
BANNERMAN, SENIOR STATE
ATTORNEY, ENID MARFUL-SAU,
ASSISTANT STATE ATTORNEY FOR THE
1ST RESPONDENT.
JUSTIN AMENUVOR WITH HIM MATTHEW
APPIAH, MIRACLE ATATSI AND HOPE
AGBOADO FOR THE 2ND
RESPONDENT.
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