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Constitutional law –
Interpretation - Article 47
clauses (3) (4) and (7)
-
Constitution 1992 -
Boundaries of Constituencies -
Demarcation - Review of 230
Constituencies – Whether or not
the past practice and conduct of
the EC, has been arbitrary and
inconsistent with the letter and
spirit of the Constitution -
Whether or not the original
jurisdiction of the Court has
been properly invoked in this
instance -
HEADNOTES
The
Plaintiffs, by their Writ filed
claimed that upon a true and
proper
interpretation of
Article
47 clauses (3) (4) and (7) of
the Constitution 1992, the
boundaries of Constituencies, as
demarcated by the Electoral
Commission of Ghana shall be
made so as to ensure that it is
in accordance with the
egalitarian principle of fair
representation solidly embodied
in the Constitution and an order
directed against the Electoral
Commission of Ghana to review
the boundaries of all
constituencies as they exist now
by altering them in order to
conform with Article 47 (3) and
(4) emphasising more on
population distribution in
accordance with the egalitarian
principle of fair representation
solidly embodied in the
Constitution.
HELD
The
Plaintiff’s cause of action
herein is one in respect of
which the Constitution has
prescribed a specific course of
action, which clearly does not
include the Supreme Court. Even
though the declarations sought
appear, largely to be based on
basic Constitutional principles,
we have no doubt that, in this
case, what the Plaintiff seeks
to dispute is the manner in
which the EC has demarcated, is
demarcating and might demarcate
boundaries in the exercise of
its power under Article 47. Such
a challenge cannot be mounted in
this court through an invocation
of our original jurisdiction.
This matter is, therefore, not
properly before the court and
the case is hereby dismissed.
Fortunately,
the Tribunal stipulated by
Article 48 has, after so many
years of delay, been finally
constituted, as the Chief
Justice in November 2011
inaugurated the same.
Therefore, the Plaintiffs are
advised to mount their challenge
in that proper forum.
STATUTES
REFERRED TO IN JUDGMENT
Constitution
1992
CASES
REFERRED TO IN JUDGMENT
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
SOPHIA A. B.
AKUFFO (MS) J.S.C;
COUNSEL
AYIKOI OTOO
FOR THE PLAINTIFFS
A. K. DABI
FOR THE 1ST DEFENDANT
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE ATTORNEY
GENERAL.
______________________________________________________________________
J U D G M E N T.
_____________________________________________________________________
SOPHIA A. B.
AKUFFO (MS) J.S.C;
The
Plaintiffs, by their Writ filed
on 22nd July 2011,
claimed the following
reliefs: -
a.
“A
declaration that upon a true and
proper interpretation of Article
47 clauses (3) (4) and (7) of
the Constitution 1992, the
boundaries of Constituencies, as
demarcated by the Electoral
Commission of Ghana shall be
made so as to ensure that it is
in accordance with the
egalitarian principle of fair
representation solidly embodied
in the Constitution
b.
“An order
directed against the Electoral
Commission of Ghana to review
the boundaries of all
constituencies as they exist now
by altering them in order to
conform with Article 47 (3) and
(4) emphasising more on
population distribution in
accordance with the egalitarian
principle of fair representation
solidly embodied in the
Constitution.
c.
“A further order directed
against the Electoral Commission
of Ghana to
review
the 230 Constituencies as
they stand now by altering them
following the publication of the
enumeration figures after the
holding of the 2010 Population
Census in accordance with the
egalitarian principle of fair
representation solidly embodied
in the Constitution.”
In support of
these claims, the Plaintiffs in
their Statement of Case made
various assertions which may be
summarised as follows: -
a.
Despite the dictates of article
47, particularly clauses (1),
(3) and (7), the Electoral
Commission of Ghana (hereinafter
variously referred to as “EC or
1st Defendant”.) has
since the year 2000 made
alterations to constituency
boundaries that are in
contravention of these said
provisions.
b.
The practice adopted by the EC,
as evidenced by the manner in
which constituency boundaries
had been drawn in previous
years, fails to take into
account “the philosophy behind
representation of the people in
a democratic process which is to
ensure that the inhabitants of a
nation are adequately
represented in Parliament”, and
the same practice, moreover,
contravenes the letter and
spirit of Chapter 7 of the
Constitution, dealing with the
representation of the people, as
well as other laws and
Constitutional Instruments made
by Parliament and the EC.
c.
The past practice/conduct of the
EC, has been arbitrary and
inconsistent with the letter and
spirit of the Constitution;
such practice include:
i. the insistence by
the EC that each district of
Ghana must have a constituency.
ii. the EC’s insistence
on giving a 9 point weight to
population and a 1 point weight
to land size.
d.
Such practices have a tendency
to result in
under-representation in some
constituencies or
over-representation in others,
thereby failing to assure
equal/fair representation. As a
consequence of these anomalies
Ghana’s Parliament “can be
described as mal-apportioned and
disproportional” with a “wide
discrepancy between the share of
legislative seats and the share
of population held by
constituencies”.
e.
Since the EC has intentions to
review the number of
constituencies by creating 20
more through the application of
factors which are inconsistent
with the proviso to Article 47
(3), it is necessary for the
Court to interprete Article 47
in such a manner as will foster
the democratic principles
under-pinning Chapter 7 by
placing greater emphasis on
Article 47 (3) rather than 47
(4), which is the exception, and
ordering the EC to proceed
accordingly.
Article 47 of
the Constitution reads as
follows: -
(1)
Ghana shall be divided into as
many constituencies for the
purpose of election of members
of Parliament as the Electoral
Commission may prescribe, and
each constituency shall be
represented by one Member of
Parliament.
(2)
No constituency shall fall
within more than one region.
(3)
The boundaries of each
constituency shall be such that
the number of inhabitants in the
constituency is, as nearly as
possible, equal to the
population quota.
(4)
For the purposes of clause (3)
of this article, the number of
inhabitants of a constituency
may be greater or less than the
population quota in order to
take account of means of
communication, geographical
features, density of population
and area and boundaries of the
regions and other administrative
or traditional areas.
(5)
The Electoral Commission shall
review the division of Ghana
into constituencies at intervals
of not less than seven years, or
within twelve months after the
publication of the enumeration
figures after the holding of a
census of the population of
Ghana, whichever is earlier, and
may, as a result, alter the
constituencies.
(6)
Where the boundaries of a
constituency established under
this article are altered a
result of a review, the
alteration shall come into
effect upon the next dissolution
of Parliament.
(7)
For the purposes of this
article, “population quota”
means the number obtained by
dividing the number of
inhabitants of Ghana by the
number of constituencies into
which Ghana is divided under
this article.
Both of the
Defendants have filed their
statements of case in response
to that of the Plaintiffs, and
whilst the Plaintiffs, 1st
Defendant and 2nd
Defendant each filed their
separate memorandum of issues,
thereby presenting the Court
with a welter of issues to
ponder over in this matter, it
is quite clear to the Court that
the crux of the matter is
whether
or not the original jurisdiction
of the Court has been properly
invoked in this instance.
To start off
with, there is no question as to
whether the Plaintiffs have the
locus standi to bring this
action for interpretation and
enforcement of the provisions of
Chapter 7 of the Constitution.
As citizens of Ghana, which they
aver, and which averment has not
been seriously challenged by
either Defendant, they may bring
such an action, given the proper
circumstances.
As to whether
they have brought a proper cause
of action that is another
matter, however. Firstly, it is
rather late in the day to mount
any serious challenge based on
the manner in which the EC has
performed its functions in the
past. Secondly, and more
importantly, the crux of
the Plaintiffs action relates to
the manner in which the EC has
demarcated or is intending to
demarcate constituency
boundaries. Aside from the fact
that the EC is yet to perform
such task, and it is, at
present, entitled to the
presumption that it will perform
its functions in due form, there
remain the clear provisions of
Article 48 of the Constitution.
Since it is axiomatic that, in
reading or construing a
Constitution, the Court is
required (as with all other
legal instruments) to read the
entire provisions with a view to
assure that every provision is
given effect and any internal
conflict is duly resolved
without doing damage to any
provision thereof, it is quite
inexplicable that the Plaintiffs
chose to ignore totally the
impact of the Article on their
case, and did not attempt to
address the same, even in their
reply to the 1st
Defendant’s statement of case.
Now, Article
48 states as follow: -
1.
“A person aggrieved by a
decision of the Electoral
Commission in respect of a
demarcation of a boundary,
may appeal to a tribunal
consisting of three persons
appointed by the Chief Justice,
and the Electoral Commission
shall give effect to the
decision of the tribunal”.
2.
“A person aggrieved by a
decision of the tribunal
referred to in clause (1) of
this article may appeal to the
Court of Appeal whose decision
in the matter shall be final”.
The
Plaintiff’s cause of action
herein is one in respect of
which the Constitution has
prescribed a specific course of
action, which clearly does not
include the Supreme Court. Even
though the declarations sought
appear, largely to be based on
basic Constitutional principles,
we have no doubt that, in this
case, what the Plaintiff seeks
to dispute is the manner in
which the EC has demarcated, is
demarcating and might demarcate
boundaries in the exercise of
its power under Article 47. Such
a challenge cannot be mounted in
this court through an invocation
of our original jurisdiction.
This matter is, therefore, not
properly before the court and
the case is hereby dismissed.
Fortunately,
the Tribunal stipulated by
Article 48 has, after so many
years of delay, been finally
constituted, as the Chief
Justice in November 2011
inaugurated the same.
Therefore, the Plaintiffs are
advised to mount their challenge
in that proper forum.
(SGD) S.
A. B. AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
ACTING CHIEF JUSTICE
(SGD) S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. ADINYIRA
(MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
AYIKOI OTOO
FOR THE PLAINTIFFS
A. K. DABI
FOR THE 1ST DEFENDANT
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE ATTORNEY
GENERAL.
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