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Constitutional law –
Interpretation - invoking the
original jurisdiction of the
court - Local Government -
Creation of New Districts
Electoral Areas and Designation
of Units – Annulment of
instrument - Whether or not
Parliament in the exercise of
its functions under Constitution
may effect changes to any
instrument laid before it –
Whether or not the method by
which Parliament altered the
Instrument laid before it (i.e.
for the creation of the new
Electoral Areas) is inconsistent
- Article 11.7 of the 1992
Constitution
HEADNOTES
The plaintiff
who described himself as a
citizen of Ghana, the Chief of
Shiashie, Accra and the
custodian of the Apaitse We
Family Lands also in Accra and
on which some of the newly
created electoral areas under
L.I. 1983 the Local Government
(Creation of New District
Electoral Areas and designation
of Units ) Instrument for the
2010 District Assembly
Elections, the subject matter of
the instant suit are located,
claims against the defendants a
declaration that the Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983),
which purportedly came into
force on 24th
November, 2010 is
unconstitutional and therefore
null and void and an order
restraining the 1st
defendant, its agents and
assigns from in any way, using
the new electoral areas created
under the schedule to L.I. 1983
for the District Assembly
Elections and that on the
expiration of 21 parliamentary
sitting days, the original copy
of L.I. 1983, which was laid
before parliament on 19th
October, 2010 automatically came
into force in accordance with
article 11 (7) of the
Constitution, 1992. - Section 3
(3) and (4) of the Local
Government Act, 1993, (Act 462)
HELD
I conclude
that the Local Government
(Creation of New Districts
Electoral Areas and Designation
of Units) Instrument, 2010, LI
1983 is unconstitutional and
therefore null and void. I also
grant a declaration that on the
expiration of twenty-one sitting
days, the original copy of LI
1983 which was laid before
Parliament on 19th
October, 2010 automatically came
into force in accordance with
article 11.7 of the
Constitution, 1992. In order to
give effect to the conclusion
reached in this judgment and by
virtue of the powers conferred
on this court under article 2.2
of the 1992 to “make such orders
and give such directions as it
may consider appropriate for
giving effect, or enabling
effect to be given, to the
declaration so made.”, It is
hereby directed that elections
held in electoral areas not
specified in NTO1 are hereby
invalidated.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Local
Government Act, 1993, (Act 462)
CASES
REFERRED TO IN JUDGMENT
NMC v
Attorney-General [2000] SCGLR 1
at 11
Stephen Okane
v Electoral Commission and
Another J1/2/2011 23 June 2011
J H Mensah v
the Attorney General [1996-97]
SCGLR 320
Boyefio v
N.T.H.C [1996-97] SCGLR 531
R v Secretary
of State for Social Services,
ex-parte Association of
Metropolitan Authorities [1986]
1 WLR 1
Council of
Civil Service Unions v Minster
for the Civil Service [1985] AC
374
R v Secretary
of State for Social Services,
ex-parte Camden London Borough
Council [1987] 1 WLR 819.
BOOKS
REFERRED TO IN JUDGMENT
Baron’s Law
Dictionary Fifth Edition
Judicial
Remedies in Public Law by Clive
Lewis, Sweet and Maxwell 1992
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
MR. PETER
OKUDZETO (WITH HIM LYDIA ASANTE)
FOR THE PLAINTIFF.
MR. JAMES
QUARSHIE – IDUN (WITH HIM
ANTHONY DABI) FOR THE 1ST
DEFENDANT.
MR.
SYLVESTER WILLIAMS
(PRINCIPAL STATE ATTORNEY)
FOR THE 2ND
DEFENDANT.
J U D G M E N
T
_____________________________________________________________________________________
GBADEGBE JSC:
My Lords, by
the writ of summons herein, the
plaintiffs seek from us in the
exercise of our
original
jurisdiction the following
reliefs.
1.
A declaration that the Local
Government (Creation
of New Districts Electoral Areas
and Designation of Units)
Instrument, 2010, LI 1983, which
purportedly came into force on
24th November 2010 is
unconstitutional and therefore
null and void.
2.
An order restraining the 3rd
defendant, its agents and
assigns from in any way, using
the new electoral areas created
under the schedule to LI 1983
for the District Assembly
Elections, scheduled for 28th
December 2010.
3.
A declaration that on the
expiration of 21 parliamentary
sitting days, the original copy
of LI 1983, which was laid
before Parliament on 19thOctober,
2010 automatically came into
force in accordance with article
11(7) of the Constitution, 1992.
4.
An order directed at the 3rd
defendant to use only the
original copy of LI 1983 as laid
before Parliament on 19thOctober,
2010 to conduct the District
Assembly Elections, scheduled
for 28th December,
2010.
In the course
of the proceedings, the
plaintiffs discontinued against
the 1st defendant
and, at the direction of the
Court, 2nddefendant
was struck out leaving the
Electoral Commission and the
Attorney-General as the only
defendants. In this regard, the
Electoral Commission became the
first defendant and the Attorney
General, the second defendant.
From the processes filed before
us by the parties to the action
herein, there does not appear to
be any conflict on the facts.
What is in contention for our
determination turning on those
facts is a simple question of
law. The said question is
whether
Parliament in the exercise of
its functions under article 11.7
of the 1992 Constitution may
effect changes to any instrument
laid before it? This
requires a careful reading not
only of
Article 11.7 of the 1992
Constitution but also other
provisions of the constitution
that deal with the law making
power of Parliament. Reference
is made to the speech of Acquah
JSC (as he then was) in the case
of
NMC v Attorney-General
[2000] SCGLR 1 at 11 as
follows:
“But to begin
with, it is important to remind
ourselves that we are dealing
with our national constitution,
not an ordinary Act of
Parliament. It is a document
that expresses our sovereign
will and embodies our soul. It
creates authorities and vests
certain powers in them. It gives
certain rights to persons as
well as bodies of persons and
imposes obligations as much as
it confers privileges and
powers. All these duties,
obligations, powers, privileges
and rights must be exercised and
enforced not only in accordance
with the letter, but the spirit,
of the Constitution.
Accordingly, in interpreting the
Constitution, care must be taken
to ensure that all provisions
work together as part of a
functioning whole. The parts
must fit together logically to
form a rational, internally
consistent framework. And
because the framework has a
purpose, the parts are also to
work together dynamically, each
contributing something towards
accomplishing the intended goal.
Each provision must therefore be
capable of operating without
coming into conflict with any
other.”
I commence
with a consideration of article
11.7 of the constitution that is
formulated as follows:
“Any Orders,
Rules or Regulations 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 after
expiration of twenty –one
sitting days after being so laid
unless Parliament, before the
expiration of twenty-one
sitting days, annuls the Orders,
rules or Regulations by the
votes of not less than
two-thirds of all the Members of
Parliament.”
In my view,
the above provision, that deals
with the power of Parliament in
relation to subordinate or
subsidiary legislation under the
1992 Constitution is expressed
in language that is free from
any ambiguity and if I may say
so by the use of words that do
not suffer from imprecision. It
appears that since Parliament is
ordinarily engaged in the making
and or passing of substantive
legislation as opposed to
subordinate or subsidiary
legislation that are variously
described as constitutional
instruments, executive
instruments or legislative
instruments; its role in the
bringing into being of the
latter category of legislations
is quite different from its role
that involved in the making of
substantive legislation as
provided for in articles 106 –
108 of the 1992 Constitution.
The rationale for the difference
is not too difficult to
comprehend. While in the case of
its exercise of legislative
power under Articles 106-108,
Parliament is engaged in an
activity that is reserved for it
by the Constitution as the
legislative authority, in
matters that come before it
pursuant to Article 11.7 of the
1992 Constitution, Parliament as
an institution of state is only
being used as the medium to
enable the power conferred on
persons or authorities other
than Parliament to make “any
Orders, Rules and Regulations”
as provided for in Article
11.1(c) to conform to the
requirements of the law.
A careful
reading of the entire provisions
contained in Article 11of the
1992 Constitution enhances its
understanding than merely
reading clause 7 of the said
article in isolation. When so
read in conjunction with the
exercise of legislative power by
Parliament that is contained in
articles 106-108 of the 1992
constitution, the purpose of the
restrictive power conferred on
Parliament in respect of
subordinate or subsidiary
legislation becomes tolerably
clearer and renders the meaning
of the words by which the
article is expressed that is
pressed on us by the 2nd
defendant fallacious and or
perhaps strained. So approached,
our task of ascertaining the
true meaning of the words and
giving effect to them by way of
their enforcement also becomes
lighter. When the true meaning
of the words are measured
against the circumstances in
which LI 1983 came into being,
we are enabled after considering
whether those circumstances are
in conformity or conflict with
the constitutional provisions
either to validate or nullify
it. This plainly is the essence
of our original jurisdiction
under Article130 of the 1992
Constitution. This, we must
approach guided by the
pronouncement of this court in
the case of NMC v
Attorney- General(supra)
by not reading article 11.7 as
if it existed on its own but as
part of a functional working
document. As a matter of fact
while in the exercise of its
legislative power under the 1992
Constitution, Parliament is
authorised in appropriate cases
to make amendments in article
106.6, in the case of subsidiary
and or subordinate legislation,
the Constitution only authorises
Parliament to “annul” any
instrument laid before it before
the expiry of twenty-one days.
When Parliament does not
exercise its power of
annulment
within the specified period then
the
instrument automatically
becomes law. That the framers of
the constitution made specific
provision in the case of the
exercise by Parliament of its
legislative power in article
106.6in the course of
considering any bill to amend it
but withheld this power from it
regarding subordinate or
subsidiary legislation is in our
opinion supportive of the
position that in the case of
subsidiary and or subordinate
legislation, no such authority
was intended to be conferred on
Parliament. Article 11.7 does
not confer on Parliament any
power of making changes to the
instrument so laid before it and
I am unable to acquiesce in the
invitation urged on us by the
2nd defendant to hold that any
such power could be inferred
from article 297(c) of the
Constitution as to “annul”
means “to make void, to
dissolve that which once existed”
See:
Baron’s Law Dictionary Fifth
Edition page 26.
Measuring the
above against the facts before
us in these proceedings, since
the instrument laid previously
before Parliament that is before
us as exhibit NTO 1 was neither
withdrawn by the maker nor
annulled by Parliament before
the expiry of the twenty-one
sitting days, it matured into an
order within the designation of
article 11.7 of the constitution
by operation of law. It being
so,NTO2, a document that
surfaced for the first time
after the expiry of the
twenty-one sitting days of NTO1
having been previously laid
before Parliament and purported
to deal with the same matter
that was covered by NTO1, was
made without constitutional and
or lawful authority. In my
thinking it must have been made
to avoid the conditions spelt
out in article 11.7 of the
constitution but the
non-compliance with the
conditions spelt out in the
article are such as to deprive
it of any validity. This latter
document not having gone through
the processes spelt out in
artcle11.7 such as its
publication in the gazette on
the day it is laid before
Parliament cannot be accorded
any recognition as an instrument
under article 11.7 of the
Constitution. The explanation
offered by the 2nddefendant
regarding its making is that the
changes were made by Parliament
after NTO1 was laid before them.
Unfortunately throughout the
proceedings, the 2nddefendant
was unable to call in aid of the
changes allegedly made by
Parliament any constitutional or
statutory authority and frankly
speaking no such lawful
authority exists. See: the
unreported judgment of this
court in suit number
J1/2/2011
entitled
Stephen
Okane v Electoral Commission and
Another dated
23 June
2011.
In order to
extricate himself from the
obvious want of authority in
Parliament to make the alleged
changes, the 2nd defendant
vainly contended that the
changes made to NTO 1 are part
of the procedure of Parliament
and as such we cannot inquire
into this. The case of
JH
Mensah v the Attorney General
[1996-97] SCGLR 320 was
cited to us in support of this
contention. The case relied on
by the 2nd defendant does not
really assist its case as the
point in issue here is in
respect of the nature of the
powers conferred on Parliament
under article 11.7 of the
constitution and not the
procedure to be employed by it
in law making. As said earlier,
NTO2 must have been made
purposively to avoid compliance
with the mandatory requirements
of article 11.7. Not having been
annulled by Parliament, at the
end of twenty-one sitting days,
NTO 1 by operation of law became
part of the laws of Ghana. In my
opinion, NTO2 came into being
for the very first time after
the twenty-one sitting days
provided for in article 11.7 and
as such does not have any of the
attributes that are essential
prerequisites to it being given
recognition and consequently
must be struck down as
unconstitutional. It is to be
observed regarding the insertion
at the back of the said
document, NTO2 that it was
published previously on 19th
October 2010 that it cannot be
legally correct as the enabling
constitutional provision
contained in article 11.7 of the
constitution contemplates only
one order being laid before
Parliament in respect of the
same subject matter-the
“Creation of New District
Electoral Areas and Designation
of Units”. I do not make
any accession to the contention
by the 2nd defendant thatNTO1
was substituted with NTO2 on the
same day that it was laid. As
NTO2 was purportedly laid after
NTO1 whatever was done in
respect of it to bring it within
article 11.7 is without any
significance at law. After
having been so laid over the
requisite sitting days of
Parliament, NTO1 must be
accorded the recognition of law
in preference to NTO2. This
conclusion should bring the
action herein to an end, but
then there is one matter that we
must consider.
It relates to
the submission by the 2nd
defendant that to so construe
article 11.7 would result in an
absurdity as its effect is to
constitute Parliament into a “rubber
stamp”. I have carefully
examined the point made on
behalf of the 2nd defendant and
have come to the view that in
cases where Parliament after
considering an instrument laid
before it under article 11.7
comes to the decision (which it
is entitled to as the
representatives of the people)
that any order, rule or
regulation so laid before it
need not become part of the laws
of Ghana for reasons including
those provided for in Order 166
of the Standing Orders of
Parliament, then it may before
the expiry of the twenty-one
sitting days “ annul” it
in which case the paper so
laid before it may not thereby
come into law. In my view, this
is an effective and potent tool
in the hands of Parliament and
there is therefore no substance
in the contention by the 2nd
defendant to the contrary. It
seems to me that our law-makers
are reasonable persons who would
in appropriate instances utilise
the sanction of annulment to
prevent undesirable orders,
rules or regulations from coming
into effect.
I do not
think that for the purpose of
our decision in this matter we
are required to embark upon any
inquiry as to what the law ought
to have provided for in article
11.7 regarding the role of
Parliament when an Order, Rule
or Regulation is laid before
it. Our duty is to apply the
very clear words of the article
to the case before us and
determine whether or not in
bringing into being LI 1983, the
provisions of the 1992
Constitution were complied with.
This, in our thinking answers
the substance of the submissions
urged on us by the 2nd
defendant. Having resolved the
question that was posed at the
opening of this delivery in the
negative,
I conclude that the Local
Government (Creation of New
Districts Electoral Areas and
Designation of Units) Instrument,
2010, LI 1983 is
unconstitutional and therefore
null and void. I also grant a
declaration that on the
expiration of twenty-one sitting
days, the original copy of LI
1983 which was laid before
Parliament on 19th
October, 2010 automatically came
into force in accordance with
article 11.7 of the
Constitution, 1992. In order to
give effect to the conclusion
reached in this judgment and by
virtue of the powers conferred
on this court under article 2.2
of the 1992 to “make such
orders and give such directions
as it may consider appropriate
for giving effect, or enabling
effect to be given, to the
declaration so made.”, It is
hereby directed that elections
held in electoral areas not
specified in NTO1 are hereby
invalidated.
(SGD)
N. S. GBADEGBE
[JUSTICE OF THE SUPREME COURT]
CONCURRING
OPINION
JONES DOTSE
JSC:
The plaintiff
who described himself as a
citizen of Ghana, the Chief of
Shiashie, Accra and the
custodian of the Apaitse We
Family Lands also in Accra and
on which some of the newly
created electoral areas under
L.I. 1983 the Local Government
(Creation of New District
Electoral Areas and designation
of Units ) Instrument for the
2010 District Assembly
Elections, the subject matter of
the instant suit are located,
claims against the defendants
as
per his writ filed on 23rd
December, 2010 the following
reliefs:
1.
A
declaration that the Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983),
which purportedly came into
force on 24th
November, 2010 is
unconstitutional and therefore
null and void.
2.
An order
restraining the 1st
defendant, its agents and
assigns from in any way, using
the new electoral areas created
under the schedule to L.I. 1983
for the District Assembly
Elections, scheduled for 28th
December, 2010.
3. A
declaration
that on
the expiration of 21
parliamentary sitting days, the
original copy of L.I. 1983,
which was laid before parliament
on 19th October, 2010
automatically came into force in
accordance with article 11 (7)
of the Constitution, 1992.
4. An
order directed at the 1st
Defendant to use only the
original copy of L.I. 1983 as
laid before Parliament on 19th
October, 2010 to conduct the
District Assembly Elections,
scheduled for 28th
December, 2010
In a
supporting statement of case,
the plaintiff averred that
pursuant to
section 3
(3) and (4) of the Local
Government Act, 1993, (Act 462),
the Minister of Local Government
has statutory responsibility for
making Instruments in the nature
of creation of District
Electoral Areas for the purposes
of conducting District Assembly
Elections.
In pursuit of
the said statutory functions and
powers, the Minister for Local
Government in preparations
towards the holding of District
Assembly Elections in 2010 on
the 19th of October
2010 laid before Parliament the
Local Government (Creation of
New Districts Electoral Areas
and Designation of Units)
Instrument 2010 L.I. 1983.
The plaintiff
further averred that the said
Instrument was referred to the
Parliamentary Subsidiary
Committee on Legislation which
considered the said Instrument
pursuant to Order 77 of the
standing orders of Parliament.
It is the
case of the plaintiff that in
considering the Instrument, the
subsidiary legislation committee
altered some of the original
electoral areas as was contained
in L.I. 1983 and laid before
Parliament.
Contending
that the
method by which Parliament
altered the Instrument laid
before it (i.e. for the creation
of the new Electoral Areas) is
inconsistent with article 11
(7) of the Constitution 1992, in
that when Parliament eventually
announced the coming into force
of L.I 1983, it was discovered
that the Legislative Instrument,
so put forward by the
Parliamentary Subsidiary
Committee on Legislation, is not
what the Minister for Local
Government originally laid
before Parliament on 19th
October 2010, but that
Parliament unlawfully and
unconstitutionally altered the
said L.I. 1983 by its subsidiary
Committee on Legislation.
The thrust of
the plaintiff’s argument is
that, as provided under article
11 (7) of the Constitution
1992, once the original copy of
the L.I. 1983 that was laid
before Parliament was not
annulled by two thirds of the
votes of the members of
Parliament that L.I. 1983
remained the authentic L.I. The
plaintiff therefore contends
that the L.I. 1983 in so far as
it sought to change the status
of the said electoral areas is
unconstitutional.
In view of
the fact that article 11 (7) of
the Constitution 1992 features
prominently in this judgment, it
is quoted verbatim as follows:
“Any Orders,
Rules or Regulations 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 Orders, Rules
or Regulations by the votes of
not less than two-thirds of all
the members of Parliament”.
In support of
his case, the plaintiff has
attached hereto Exhibit NTO 1
which is the original copy of
the L.I. 1983 that was laid
before Parliament on 19th
October 2011.
On page 106
of that exhibit, is headed
District: - KPESHIE – with BURMA
CAMP as item 6 and the following
names appearing thereunder>
“Max mart
shopping Mall, Airport City
Road, Accra Mall/Spintex Road,
Airport/Afgo Road, Burma-Camp”
Total
Electoral Areas under Kpeshie
District total 10 under exhibit
“NTO” 1. On the same page 105
under the sub-heading DISTRICT
LEDZOKUKU KROWOR appears
Agblesaa- Martey-Tsuru as item
7. On page 106 the following
divisions appear,
AGBLESAA-MARTEY-TSURU, Agblesaa,
Regimanuel Estates, Obediben,
Manet Villa, Manet Court and
Martey Tsuru.
The total
number of electoral areas stated
under LEDZOKUKU KROWOR District
are 24.
Also attached
to the Plaintiff’s case and
marked as Exhibit NTO 2 is the
L.I. 1983 purportedly passed by
Parliament after it has been
reviewed by the Subsidiary
Legislation Committee of
Parliament. Under this exhibit
NTO 2, Burma Camp continues to
be under KPESHIE-District with
the following as the new
divisions:-
“Max mart
shopping mall, Airport City
Road, Korjoor stream Airport/Aviance
Road, Burma Camp”
Under exhibit
NTO 2, Accra mall/Spintex Road
no longer form part of Burma
Camp, electoral area.
Under Exhibit
NTO 2, AGBLESAA and MARTEY-TSURU
have been severed into two
distinct electoral areas
numbered 7 and 8 with the
following divisions:
AGBLESAA
Agblesaa,
Penny, Obediben, New England
MARTEY-TSURU
“Regimanuel
Estates, Manet Villa, Manet
Court and Martey Tsuru,
Action Chapel area, Accra
Mall area, Bank of Ghana
Warehouse” (all these are on
the Spintex road)
The total
number of electoral areas
therein in exhibit NTO 2 is 28
instead of 24 in exhibit NTO 1.
Another clear
difference is the fact that,
divisions such as Spintex Road,
which includes Action Chapel
area, Bank of Ghana warehouse
area which were all under Burma
Camp under Kpeshie District in
exhibit NTO 1 have now been
moved to Martey-Tsuru under
Ledzokuku-Krowor with the
creation of Agblesaa as a
distinct and separate electoral
area still under
Ledzokuku-Krowor.
The above
clearly demonstrates that in so
far as the Greater Accra Region
was concerned, the subsidiary
Legislation Committee of
Parliament reviewed, varied,
amended and modified the
original L.I. that was laid
before Parliament in respect of
the Kpeshie and Ledzokuku-Krowor
districts.
If this
situation is considered
alongside the memorandum of
issues filed by the plaintiff
before this court, then the
facts of the plaintiff’s
argument about the procedure in
the passage of subsidiary
legislation such as Legislative
Instruments in this case L.I
1983 vis-à-vis article 11
(7)becomes really critical.
What then are
the memorandum of issues filed
by the plaintiff?
1.
Whether or not Parliament has
the constitutional power to
amend, review or re-write a
legislative instrument laid
before it in accordance with
Article 11 of the 1992
Constitution.
2.
Whether or not the original copy
of the Local Government
(Creation of New Districts
Electoral Areas and Designation
of Units) Instruments, 2010 L.I.
1983 which was laid before
parliament on 19th
October 2010 was rejected by
majority of two thirds vote by
parliament.
3.
Whether or not the original copy
of the Local Government
(Creation of New District
Electoral Areas and Designation
of Units) Instrument, 2010 L.I.
1983 which was laid before
parliament on 19th
October 2010 automatically came
into force in accordance with
article 11(7) of the
Constitution 1992 on the
expiration of 21 parliamentary
sitting days.
4.
Whether or not the version of
the Local Government (Creation
of New District Electoral Areas
and Designation of Units)
Instrument, 2010 L.I. 1983
amended and released to the
public by Parliament should be
declared null and void and
struck down as unconstitutional.
It is clear
that in the formulation of the
memorandum of issues, the
plaintiff took into
consideration the fact that the
District Assembly Elections
scheduled for 28th
December, 2011 has already been
held.
As a result,
reliefs 2 and 4 of the
plaintiffs writ have become
redundant or superfluous as the
event sought to be prevented
from taking place has already
been held.
In a well
prepared statement of case, the
2nd Defendants raised
so many legal arguments
prominent among them is that of
Parliamentary sovereignty and
supremacy. This connotes the
fact that, Parliament as a body
and an organ of state has the
right to regulate its own
procedure and that no court can
question this procedure when
adopted and applied by
Parliament.
The
traditional view has long been
held that Parliament is
sovereign and there are
basically no legal restrictions
on its legislative competence.
However, once
there is a written Constitution
in Ghana, which is the basic and
primary source of all laws in
Ghana, the Constitution itself
has conferred on the Supreme
Court to strike down any
legislation that is inconsistent
with or in contravention with
the Constitution. See article 1
(2) and 130 (1) (b) of the
Constitution 1992. It is
therefore possible for the
Supreme Court to intervene in
the work of Parliament.
In the case
of subsidiary legislation such
as the one with which we are
concerned with here, L.I. 1983,
which takes its source from the
Constitution 1992, article 11
(7) to be precise and statutory
law, the Local Government Act,
1993 Act 462 section 3 (3) and
(4) thereof the L. I. must
conform to the mode of passage
contained therein. It follows
therefore that Parliament in the
passage of the said subsidiary
legislation must comply with the
procedure provided in the
Constitution and any other
substantive law.
In my quest
to examine whether Parliament
complied with the procedure
outlined in article 11 (7) of
the Constitution, care must be
taken not to erode the time
honoured caution of the courts
in their relationship with
Parliamentary Sovereignty.
Fortunately
for this court, the issues
raised for determination in this
case have recently been dealt
with by this court in a similar
case Suit No JI/2/2011 dated 23rd
June 2011 intitutled Stephen
Nii Bortey Okane & 5 others –
plaintiff v Electoral Commission
of Ghana and Attorney-General –
Defendants.
During the
reception of arguments in this
case, learned counsel for the
plaintiff Peter Okudzeto cited
and relied on the said case as
his authority in addition to the
case of
Boyefio v N.T.H.C [1996-97]
SCGLR 531 at 533
holden 5.
On his part,
learned Principal State
Attorney, Sylvester Williams for
the 2nd Defendant, in
the best traditions of the Bar,
conceded the fact of the force
of the legal authority in the
unreported case just referred to
supra.
What then are
the facts of this Stephen Nii
Bortey Okane & Others v
Electoral Commission & Another
case?
In view of
the fact that this case falls on
all fours with the decision of
the Supreme Court in the
Stephen Okane case, I am
inclined to quote the facts of
the case as recounted by my well
respected brother Brobbey JSC in
his lead and unanimous judgment.
“The
plaintiff in this case issued a
writ invoking the original
jurisdiction of this court. The
reliefs sought in the writ were
as follows:
a. A
declaration that Local
Government (Creation of New
District Electoral Areas and
Designation of Units) Instrument
L.I 1983 which came into force
on 24th November 2010 was made
in contravention of the
Constitution 1992.
b. An
order declaring the said L.I.
1983 null and void and of no
legal effect.
c. An
order directed at the 2nd
defendant restraining the
Commission from holding any
District level and Unit
Elections as scheduled to take
place on 28th day of December
2010, based upon the said Local
Government (Creation of New
Districts Election Areas and
Designation of Units)
Instrument L.I. 1983 which came
into force on 24th November
2010.”
The
Ledzekuku-Krowor District
Assembly was made up of two
constituencies of Ledzekuku for
Teshie and Krowor for Nungua.
The electoral areas for the two
constituencies were twelve for
Ledzekuku and twelve for Krowor,
thus making a total of twenty
four.
The Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instruments, 2010 (LI 1983) was
prepared and laid before
Parliament. When LI 1983 was
first laid before Parliament, it
had twenty four electoral areas.
As required
by the 1992 Constitution, art
11(7), such a Legislative
Instrument had to be published
in the Gazette and laid before
Parliament for twenty-one days
from the day of being published
in the Gazette. When it was laid
before Parliament, Parliament
referred it to its Committee on
Subsidiary Legislation, in
accordance with its Standing
Orders.
The rule is
that after 21days, the LI
automatically came into force.
In the instant case, by the time
the LI came into force, the
number of electoral areas in
Ledzekuku had been increased to
16 while the electoral areas for
Krowor remained as twelve.
By increasing
the numbers, Parliament, through
the Subsidiary Legislation
Committee had interfered with
the LI as laid before
Parliament. The main question
raised in this case was how far
Parliament could interfere with
such legislation when it is laid
before it for 21 days under the
1992 Constitution.
The answer to
this question was provided in
paragraph 4 of the statement of
case filed on behalf of the
first and second defendants
which read as follows:
“As part of
the said committee’s work a lot
of memoranda were received
from the catchment area of the
Ledzekuku – Krowor Municipal
Assembly, These were in addition
to representations made by
interested parties in the same
areas as well. These memoranda
and representations assisted the
committee enormously.
The effect of these memoranda
and representations was that the
committee saw the need to add
four more electoral areas to the
Ledzekuku (Teshie), thus giving
it sixteen (16) Electoral Areas
instead of the original figure
of twelve (12) Electoral Areas,
whilst Krowor still has twelve
Electoral Areas.”
In the
instant case, the 2nd
defendants have stated virtually
the same position in their
erudite statement of case thus.
This has been
captured in their paragraphs 10,
13, 14, 15, 16 and 17 of the
statement of case which states
as follows:-
10. “My
Lords, the plaintiffs are
contending that the passage of
the Local Government Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983) is
unconstitutional and therefore
null and void is untenable.
Their main reason appears to be
that Parliament should have
passed the original L.I. 1983
into law, otherwise Parliament
should have by two-thirds
majority annul the L.I. 1983.
That is to say that Parliament
has no constitutional mandate to
even refer the L.I 1983 to the
Committee for deliberation, and
for that matter the amendments
made to the original L.I. 1983
are unlawful and
unconstitutional and sins
against article 11 (7) of the
Constitution 1992 and therefore
renders L.I. 1983 null and void.
13. My
Lords, it is quite clear that
the plaintiffs’ case hinges on
the true
interpretation of subsection
C of article 11 (7) of the 1992
Constitution. By their
interpretation, the plaintiffs
are saying that whenever any
Order, Rule or Regulation is
laid before Parliament, the
Speaker has no business
referring the matter to the
Committee. This assertion is
contained in paragraphs 8 and 9
of the Plaintiff’s Statement of
Case filed on 23rd
December, 2010. Additionally,
the Plaintiffs are saying that
Parliament cannot introduce any
amendment to any Order, Rule or
Regulation, except to pass it in
its original form or annul it.
14. My
Lords, it is submitted that this
interpretation placed on article
11 (7) especially subsection C
is wrong and cannot stand the
test of time. It is incongruous
with real parliamentary practice
and procedure. Indeed, there is
no provision in our
Constitution, 1992, which
restricts parliament from
referring an Order, Rule or
Regulation to a committee of
parliament. Parliament works
through committees and the work
of any committee of Parliament
is deemed to be that work of
Parliament. Article 11 (7) as
formulated does not imply that
Parliament cannot effect any
changes to any such order, rule
or regulation. What it does say
is that Parliament, before the
expiration of the twenty-one
sitting days can annul the
order, rule or regulation.
15. My
Lords, it is submitted that any
legal notion which says that a
Legislative Instrument has to be
passed in it’s original form
unless annulled by Parliament
has outlived its usefulness in
Ghana’s legal system since 1992,
when we chose to be ruled by a
written Constitution. Our
Constitution, 1992 contains
among other things the hopes and
the aspirations of our people
and may not contain all details
needed in our democratic
dispensation.
One of the
details that supplement the
Constitution and make it work to
achieve the aims and aspirations
of the people of Ghana is for
example the procedure adopted by
Parliament in dealing with
delegated legislations. Article
103 of the constitution empowers
Parliament to set up standing
committees for effective
discharge of the work of
Parliament. The changes made to
the original L.I. 1983 were done
in accordance with procedures
adopted by Parliament, and which
in effect was meant to assist
the 1st defendant
conduct credible elections. Any
objections thereof were matters
for the Executive to deal with
and not the Courts.
16. My
Lords, the referral of the L.I.
1983 to the select committee of
Parliament is in tandem with
Parliament’s own procedure. In
fact it would be absurd to
suggest that when any L.I. is
submitted to the Committee, the
Committee has no rights to
effect any changes to the L.I.,
even if that change is to
further the course of the L.I.
in question. To advance such an
argument is to suggest that, the
said Committee and for that
matter Parliament is to “rubber
stamp” any Legislative
Instrument that comes before it.
17. My
Lords, the plaintiffs by their
interpretation of article 11 (7)
of the Constitution 1992 suggest
that Parliament is obliged to
annul any order, rule or
regulation instead of effecting
any change should there be the
need to do so. It is submitted
that it would take an unduly
long time or no legislative
instrument could be passed if
that was the ture intendment of
the said article. These
subsidiary legislations are
needed to assist government
machinery to run smoothly or to
solve problems peculiar to
certain sectors of the economy,
and it would be absurd to
suggest that the framers of the
Constitution 1992 intended the
meaning placed on article 11 (7)
by the Plaintiffs.”
By the above
statements the 2nd
Defendants have as it were
tacitly admitted that Parliament
indeed made changes to the
original L.I. 1983 that was laid
before it in Parliament on 19th
October, 2011 in the manner
stated supra in the Kpeshie and
Ledzokuku and Krowor Districts.
Learned
Counsel for the 2nd
Defendant has argued that
Parliament has power to pass
this delegated legislation in
the form of the L.I. There is
certainly no doubt about that.
What must be well noted is that,
the courts exist to ensure that
the power to make or enact such
laws are always conferred by the
Constitution or the statute
dealing either with substance,
form or procedure. The courts
will therefore ensure that in
the performance of their duties
in the passage of this delegated
legislation the procedure and or
substance are not ultra vires
the enabling constitutional
provision or parent legislation.
It is also the duty of courts of
law to ensure that in the
passage of such laws whenever a
discretion exists, there is no
arbitrariness or
unreasonableness in the exercise
of this discretion such as will
result into abuse of power.
For instance
the courts as in this case will
be called upon to make a
determination as to whether
procedural requirements e.g.
prior consultation with the body
required to be consulted or
laying before and approval by
Parliament have been complied
with, and if not, whether the
failure to observe such basic
requirements renders the
legislation invalid. See cases
like:
1. R
v Secretary of State for Social
Services, ex-parte Association
of Metropolitan Authorities
[1986] 1 WLR 1
2.
Council of Civil Service Unions
v Minster for the Civil Service
[1985] AC 374
3. R
v Secretary of State for Social
Services, ex-parte Camden London
Borough Council [1987] 1 WLR
819.
In all the
above cases, it was held that
failure to comply with rules of
procedure rendered the passage
of delegated legislation void.
The same
point has been restated with
emphasis by the learned Authors
in
Judicial Remedies in Public Law
by Clive Lewis, Sweet and
Maxwell 1992, reprinted in
1996 pages 118-119.
In the case
under review, it is quite clear
that after the work of the
Subsidiary Legislation Committee
on L.I. 1983, Parliament made
changes to it and as was
interpreted by the Supreme Court
in the Stephen Okane & others
v Electoral Commission
and another case, the legal
effect of article 11 (7) of the
Constitution 1992 is that
Parliament cannot do what it
did.
This matter
has been dealt with unanimously
by a panel of nine Justices of
this court with characteristic
clarity and logic by Brobbey JSC
with a concurring and masterly
written opinion by Atuguba JSC,
in the said case, and since this
court has not seen any good
reason to depart from the said
decision, I consider it binding
upon this court and accordingly
apply it.
This is how
it was put by my respected
brother Brobbey JSC in the
seminal judgment under reference
as follows:
“In effect,
what the Constitution mandates
Parliament to do is to annul the
Regulation in question. When
that happens, the Regulation
will have to go back to source
from where it was prepared for
such comments, suggestions or
memoranda as Parliament or the
Committee on Subsidiary
Legislation will deem necessary
to be considered in the making
of the Regulation. In fact, it
is that source which has the
power to amend the legislation.
This is supported by the 1992
Constitution, art 297(d) which
provides that:
“Where a
power is conferred to make any
constitutional or statutory
Instrument, Regulations or Rules
or to pass any resolution or
give any direction, the power
shall be construed as including
the power exercised in the same
manner, to amend or to revoke
the constitutional or statutory
instrument, Regulations or
Resolutions or direction as the
case may be.”
This article
affects the power which is
making the regulation. The
question to be considered is
“Who is making the Regulation or
who are the makers of the
Regulation?” The makers of the
Regulation are those who
initiated the Regulation and
actually drew up its terms. They
are the source from where the
Regulation was made. They
comprise people on the ground
who are conversant with the
issues, facts and circumstances
which informed the making of the
Regulation. If suggestions,
comments or memoranda are made,
it is the makers who are in the
best position to appreciate and
consider them, their
implications and ramifications
before coming to the final
determination on the form and
content that the Regulation
should take when it becomes law.
That is why article 297(d),
gives the power to the makers to
make amendments to the
Regulation.
The makers
are different and distinct from
Parliament. While article 297(d)
empowers the makers to make
amendments, article 11(7)
empowers Parliament to annul
Regulations.
If the power
to make amendments were to be
given to Parliament, it would
mean that Parliament could
interfere with Regulations laid
before it without the
involvement of the very people
who saw reason for initiating
and bringing about the
Regulation. That would be wrong.
That cannot be taken to have
been the intendment of the
framers of the Constitution as
far as article 11(7) is
concerned.
In the
instant case, what Parliament
did by increasing the number on
the electoral area of Ledzekuku
from twelve to sixteen amounted
to amending the Regulation laid
before it. That amounted to
usurping the powers of the
makers as provided in article
297(d). There is no provision
in article 11(7) quoted above
for Parliament to amend the
Regulation as laid before it.
Parliament is authorized to
annul the Regulations. To annul
has been defined in the
Annulment differs from
amendment. Annulment, as defined
in the Chambers 21st Dictionary,
1996 ed., at page 49 as:
“To declare … publicly as
invalid.”
To amend is
to alter or vary. The effect of
annulment is to revoke, abolish
or render legally nonexistent.
The effect of amendment is to
bring about a variation,
alteration or change. The latter
pre-supposes the continued
existence of a fact or
situation. The former
pre-supposes the abolition of
the fact or thing or its
non-existence.
Amendment
therefore differs from
annulment. If the legislature
intended to give power to
Parliament to amend such
regulations, it would have done
so in no uncertain terms.
Standing
Order 2 which counsel for the
defendants relied on does not
empower Parliament to make
amendments to such regulations.
To the extent
that Parliament amended the
Local Government (Creation of
New District Electoral Areas and
Designation of Units Instrument,
2010 (LI 1983) differently from
what was laid before Parliament
instead of annulling it, the LI
is ultra vires article 11(7) of
the 1992 Constitution. It is
therefore void and of no legal
effect.”
CONCLUSION
With the
above decision as a guide and
binding authority, my decision
in this matter is that:-
i.
Parliament has the
constitutional power to amend,
review, or re-write a
legislative instrument laid
before it in accordance with
article 11 of the Constitution
1992. This they can do by
annulling what has been so laid
before them by the votes of not
less than two thirds of all the
members of Parliament. In such a
situation it would mean that
Parliament has rejected the
legislative instrument so laid
before it, and in common
parlance means “return to
sender”. It would then be sent
back to its source of origin,
perhaps with the amendments,
variations and reviews of
Parliament for that body to
consider and re-submit to
Parliament. In essence the power
of Parliament in this respect is
pyrrhic and is of no real
moment.
ii.
It is also clear that the
original L.I, 1983 that was laid
before Parliament on 19th
October, 2011 was not rejected
or annulled by the votes of two
thirds of the members of
Parliament.
iii.
By the interpretation given
above, it is correct that the
Local Government (Creation of
New Districts Electoral Areas
Designation of Units) Instrument
2010 L.I. 1983 which was laid
before Parliament on 19th
October, 2010 automatically came
into force by virtue of the
operation of article 11 (7) of
the Constitution 1992 after
proof that there were 21 sitting
days of Parliament after it was
so laid before it.
iv.
The combined effect of the above
decision is that, the L.I. 1983
marked in these proceedings as
Exhibit NTO 2, which contains
the variations, amendments and
or reviews made by the
Subsidiary Legislation Committee
of Parliament to the original
L.I. 1983 and which was released
to the public by Parliament in
so far as it relates to the
affected electoral areas is
hereby declared null and void
and accordingly struck down as
unconstitutional.
(SGD)
J. V. M. DOTSE
[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)
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)
B. T. ARYEETEY
[JUSTICE OF THE SUPREME COURT]
(SGD)
V. AKOTO-BAMFO [MRS]
[JUSTICE OF THE SUPREME COURT]
COUNSEL:
MR. PETER OKUDZETO (WITH HIM
LYDIA ASANTE) FOR THE
PLAINTIFF.
MR. JAMES QUARSHIE – IDUN (WITH
HIM ANTHONY DABI) FOR THE 1ST
DEFENDANT.
MR. SYLVESTER WILLIAMS
(PRINCIPAL STATE ATTORNEY) FOR
THE 2ND DEFENDANT. |
