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JUDGMENT
MAJORITY OPINION
BENIN, JSC:-
The original matter that brought
the parties herein before this
court was an application
invoking our supervisory
jurisdiction for an order of
certiorari to quash some
decisions of the High Court,
Accra. The incumbent Member of
Parliament for the Klottey Korle
constituency, who is the 1st
interested party herein,
lost the opportunity to
contest for the seat again on
the ticket of the National
Democratic Congress (NDC) in the
2016 general elections because
he was defeated in the party
primaries by the applicant
herein. The 1st
interested party took an action
at the High Court to nullify the
election of the applicant on
ground that she was not a
registered voter when she took
part in the party primaries and
was thus unqualified. During the
pendency of the action before
the High Court, certain
decisions were taken by the said
court which the applicant
brought before this court to
quash. Hence the title to the
case as stated above. It was
when the court was deciding that
application that it concluded
that a question of
interpretation of Article
94(1)(a) of the 1992
Constitution had arisen from the
proceedings before the High
Court. The court decided to take
the issue suo motu since the
High Court had failed to make
the reference. The question
raised by the court for
interpretation is this:
When can it be properly said
that a Ghanaian citizen is by
reason of non-registration as a
voter not qualified to be a
Member of Parliament within
article 94(1)(a)
of the 1992 Constitution of
Ghana?
The question invites the court
to interpret this provision in
order to bring out clearly the
scope and intent of this
particular provision of the
Constitution, in particular when
the eligibility criteria become
applicable to a parliamentary
election. All the parties have
proffered what in their view is
the correct interpretation to be
placed on this provision. We
would sum up briefly, but to the
point, the arguments put across
by each party. However, we
noticed that the applicant and
the 2nd interested
party have several points of
convergence so we intend to put
their arguments together and
consider same vis-à-vis those of
the 1st interested
party.
The applicant’s Counsel
expressed the competing
positions in these words:
“The kernel of the
plaintiff/interested party’s (1st
interested party herein) claim
is that on the true and proper
interpretation of Article
94(1)(a) of the 1992
Constitution, the 2nd
defendant (applicant herein) was
not qualified to contest as
parliamentary candidate of the 1st
defendant (2nd
interested party herein) at the
time of the parliamentary
primaries of the 1st
defendant…….On the contrary, it
is the case of the applicant
that…(she) was duly qualified
and eligible to stand for the
position of parliamentary
candidate of the 1st
defendant (2nd
interested party herein) at the
time of the primaries and that
the requirement of being a
registered voter must be met
within the meaning of Article
94(1)(a) of the 1992
Constitution at the time when
nominations are opened or
invited by the Electoral
Commission pursuant to Public
Elections Regulation 2016
(C.I.91).”
Counsel for the 2nd
interested party made similar
observations when he said that “it
is the case of 1st
interested party that the
eligibility criteria laid out in
Article 94(1)(a) comes into
effect at the time when
political parties hold elections
in their parliamentary primaries
to select candidates who will
subsequently be registered for
the 2016 elections and not at
the time when the Electoral
Commission commences the process
of filing parliamentary
candidates for elections.”
Having set out the competing
claims, Counsel for the
applicant proceeded to argue
three main reasons as to why
their view should prevail. He
also addressed what he described
as an ‘ancillary matter’. To
begin with, counsel contended
that “the constitutional
requirement of being a
registered voter within Article
94(1)(a) of the 1992
Constitution relates only to an
election done under Public
Elections Regulations and since
the Electoral Commission of
Ghana is the body in charge of
public elections the only point
in time when the issue of being
a registered voter is material
for establishing qualification
as a parliamentary candidate is
when the Electoral Commission
has opened nominations for
parliamentary elections.”
Counsel for the 2nd
interested party expressed a
similar view and submitted “…..that
Article 94(1)(a) becomes
operative at the time when the
statutorily mandated body
(Electoral Commission) commences
the statutory processes for
nomination and filing of
parliamentary candidates for
parliamentary elections in the
various constituencies and not
at any time before this.”
Counsel made extensive
references to the processes
outlined in Public Elections
Regulations, 2012, (C.I.75).
Secondly, counsel for the
applicant argued that the view
being canvassed by the 1st
interested party should be
rejected because “it leads to
manifest absurdity,
discrimination and injustice as
it results in persons who are
similarly situated being treated
differently.” Counsel was here
referring to candidates standing
on the ticket of a political
party as distinct from those
contesting as independent
candidates. In counsel’s view if
the 1st interested
party’s view is accepted then
citizens of Ghana who are
otherwise qualified would be
disqualified a year or two
before the public elections if
their political party’s internal
mechanisms and regulations say
only those who are registered as
at the date of the primary
elections are eligible to
contest. That consideration does
not apply to independent
candidates. It seems this view
was not seriously pursued for
counsel subsequently said it was
a hypothetical situation he had
alluded to. It is observed that
in matters of interpretation the
internal mechanisms of a
political party should not be
applied to interpret or give
effect to a provision of the
Constitution. Consequently, the
present exercise has nothing to
do with what the NDC
constitution and for that matter
what any registered political
party’s constitution says of the
provision under consideration;
as far as law is concerned, they
are not relevant, helpful and
useful reference points. We
therefore take the position that
this particular reason has no
substance and is accordingly
rejected.
On this same point counsel
contended in relevant terms that
Article 51 of the Constitution
enjoins the Electoral Commission
to publish regulations to govern
public elections and that it is
only when that process has been
set in motion can it be said
that a person is qualified to
contest for a parliamentary seat
or not.
Thirdly, Counsel for the
applicant contended “that the
mere declaration of intent by
the National Democratic Congress
through its parliamentary
primaries to get a parliamentary
candidate elect before
nomination is done with the
Electoral Commission in
accordance with Public Election
Regulation, 2016 (C.I.91) cannot
be a violation of Article
94(1)(a) or any other law.
Article 94 of the Constitution,
1992, deals with eligibility and
qualification to contest public
elections…….and not political
party primaries…..”
The ancillary matter that
counsel addressed on was in
respect of the incorporation by
reference of the 1992
Constitution in the constitution
of the National Democratic
Congress. Counsel gave a legal
definition of the expression
‘incorporation by reference’ and
then related same to the
constitution of the 2nd
interested party. He proceeded
to analyse the national
constitution as applied to the
NDC constitution and came to the
conclusion that “article 43(9)
of NDC Constitution must be
read, understood and applied in
accordance with the national
laws to become operative due to
the incorporation of the
national law into its
provisions.”
For his part counsel for the 2nd
interested party submitted that
“the incorporation of the
eligibility criteria stated in
Article 94 into Article 43 of 2nd
interested party’s Constitution
does not in any way alter or
diminish the character of
Article 94 of the 1992
Constitution as the supreme law
of the land on the eligibility
of persons to become members of
parliament. What the
incorporation of the eligibility
criteria of the 1992
Constitution into the
constitution and parliamentary
primaries election guidelines of
2nd interested party
does is that it imports the
whole of Article 94 of the 1992
Constitution as the supreme law
of the land on the eligibility
of persons to become members of
parliament.” He then submitted
that “the 1992 Constitution with
all of its provisions cannot be
made secondary to any other
document. Even if a document
does not directly incorporate a
constitutional provision, the
requirement of Article 1(2) of
the 1992 Constitution that all
other laws, actions and
documents must be consistent
with the 1992 Constitution on
the pain of being rendered void
leads to the irrefutable
conclusion that any purported
incorporation of a
constitutional provision into a
document does not in any way
whatsoever alter or limit the
scope, meaning or effect of the
constitutional provision.”
Counsel for the 1st
interested party took a
different position on the
interpretation of Article
94(1)(a) of the Constitution.
Counsel began his argument by
reference to Article 55 of the
Constitution, 1992 which
guarantees the formation of
political parties. He emphasized
clause 3 of Article 55 which
entitles a political party to
sponsor candidate/s for
elections to any public office
other than the District
Assemblies and other lower local
government units. Having said
this, it appears counsel
descended into the merits of the
case before the High Court by
arguing on the materiality of
the NDC internal guidelines that
govern the selection of its
parliamentary candidates.
Counsel also emphasized clause 5
of Article 55 of the
Constitution, 1992, which
enjoins political parties to
ensure that their actions and
purposes do not contravene or be
inconsistent with the
Constitution or any other law.
He rightly stated that any
political party which decides to
sponsor a candidate for public
election must do so in
conformity with the law,
especially Article 94 of the
Constitution. Thereafter
Counsel’s view was that “a
parliamentary candidate elect
ought to be battle ready to
contest parliamentary elections
be it by-election or general
election………….It is common
knowledge that if by-election
had been held in Klottey-Korle
between November 22, 2015 and
April 27th 2016, by
reason of resignation or death
of the incumbent Member of
Parliament, the applicant could
not have been qualified to
contest the Parliamentary
elections in Klottey-Korle by
reason of non-registration as a
voter because it is public
knowledge that she was not a
registered voter as at 21st
November 2015.” Before
proceeding any further, we must
reject these submissions as
red-herring and of no
consequence in interpreting
article 94 in question. As to
which candidate a political
party would sponsor for a
by-election or a general
election is for the party to
decide; it may decide to sponsor
one person for a by-election and
then decide to sponsor a
different person to contest the
general election for the same
seat. There is no law that
forbids that. And the scenario
that is pictured by the 1st
interested party is not the
reason why Article 94(1)(a)
should be given an
interpretation that would suit
some person’s convenience.
Thereafter counsel’s arguments
were focused on the process of
becoming a member of parliament.
It is unfortunate counsel did
not make any meaningful
contribution to the question
posed by the court, but rather
he took us back to his previous
stand that Article 94(1)(a) did
not call for any interpretation.
In his words, “….the wording of
Article 94(1)(a) of the 1992
Constitution cannot be said to
admit of double meaning or
ambiguous to warrant an
interpretation into the meaning
and effect of the provision of
the Constitution…………it is clear
that the wording in a provision
must be imprecise or unclear or
ambiguous or admit of rival
meanings having been placed by
litigants for the Honourable
Court to interpret the said
provision……there is nowhere in
the submissions canvassed by
counsel for the parties that the
wording in Article 94(1)(a)
admits of double meaning or is
imprecise or unclear to warrant
this Honourable Court to
interpret the provision of the
Constitution”
This is unfortunate because this
court had firmly decided that
there is the need to interpret
the provision so for counsel now
to say something to the contrary
is disingenuous, to say the
least. And one even wonders
whether counsel really
appreciated the issue at stake,
for he himself had admitted in
his statement of case that “the
Constitution did not state when
this qualification criteria
ought to be met”. Is it not for
the same reason the court has
set the question down for
interpretation?
The fact that counsel did not
appreciate or understand the
question and thus made no
meaningful contribution to the
discussions is confirmed by his
final submissions that “the 2nd
interested party’s Guidelines
governing the conduct of the
Parliamentary primaries 2016 and
the NDC Constitution
particularly Article 43(9) were
made in obedience to the
National Constitution and
therefore consistent with the
provisions of Article 94 of the
1992 Constitution. Thus every
member who seeks to contest
parliamentary primaries of the
party and later be put forward
to contest parliamentary
elections ought to meet the
qualification criteria set out
in the National
Constitution…………..we humbly
submit that applicability of
Article 94(1)(a) of the 1992
Constitution was to apply at the
time of the Parliamentary
primaries to compel all members
to comply with the said
provision at the time of the
parliamentary primaries on 21st
November 2015.” The question
before the court is not the
applicability of Article 94 to
the NDC parliamentary primaries;
it is the meaning of the said
Article, clause 1(a) in
particular that the parties were
called upon to address the
court. After the interpretation
has been given by this court,
the court below will apply same
to the case before it.
Article 94(1)(a) of the 1992
Constitution provides that:
Subject to the provisions of
this article, a person shall not
be qualified to be a member of
parliament unless- (a) he is a
citizen of Ghana, has attained
the age of twenty-one years and
is a registered voter.
At what point in time do the
eligibility criteria come into
play? As rightly observed by the
lawyers herein, there is no time
element in the provision for a
person to satisfy the
qualification criteria. The
Constitution is a living
document and because it is a
brief expression of the
aspirations of the people and
also establishes key
institutions of state, it cannot
contain every conceivable
matter. Thus a lot of things are
left to Parliament to legislate
upon by Act of Parliament and in
some cases other persons, both
corporate and human, are allowed
to fill in the gaps by
subsidiary legislation. Thus the
Constitution does not leave the
people in a state of
helplessness when some element
is missing in a constitutional
provision. It is our view that
where time for doing an act is
not provided for in the
Constitution, as in the instant,
it is legitimate to have regard
to other provisions of the
Constitution or an Act of
Parliament or Regulations made
under the Constitution in order
to address the question of time.
In the absence of any such
legislation, the rules of equity
cognizable under the common law
could be applied under Article
11(2) of the Constitution.
In the present constitutional
dispensation, no person can
become a Member of Parliament
unless he has been elected at a
public election; that is the
true meaning of Article 93(1) of
the 1992 Constitution. For that
reason even where there is only
one candidate at the close of
nominations, the law requires
that the Electoral Commission
should declare such sole
candidate duly elected even
though no ballots are cast; see
section 11(1) of the
Representation of the People
Law, 1992 (PNDCL 284). And
Article 45(c) of the
Constitution entrusts the
responsibility of conducting and
supervising all public elections
to the Electoral Commission. It
follows that it is only the
Electoral Commission which is
empowered to appoint the time
for a person seeking to enter
Parliament as a Member thereof
to satisfy the eligibility
criteria set out in Article 94.
The Constitution in Article 51
has provided the avenue whereby
the Electoral Commission is to
perform its functions in
expression of its mandate and it
reads:
The Electoral Commission shall,
by constitutional instrument,
make regulations for the
effective performance of its
functions under the Constitution
or any other law, and in
particular, for the registration
of voters, the conduct of public
elections and referenda,
including voting by proxy.
It is our view that Article
94(1)(a) should not be read in
isolation but in conjunction
with Articles 45(c) and 51. It
becomes clear that Article
94(1)(a) when read together with
Articles 45(c) and 51, the power
to conduct and supervise public
elections including any
parliamentary election and also
the date to do so has been
conferred exclusively on the
Electoral Commission, subject of
course to any limitations
imposed by the Constitution and
any other law for the time being
in force. Thus when it becomes
necessary to conduct
parliamentary elections, the
Electoral Commission will have
to fix the date of the election
and other related matters in
accordance with guidelines set
out in a Constitutional
Instrument. Once the date has
been set and the writ of
election has been issued stating
the period of nominations, the
times thus stated should be read
as one with the provisions of
Article 94 so as to bring the
eligibility criteria into
immediate effect in respect of
that particular election.
Following these constitutional
provisions and in order to bring
the eligibility criteria in
Article 94 into effect for
purposes of particular public
elections, the Electoral
Commission, published Public
Elections (Presidential and
Parliamentary Election Dates)
Instrument 1996, (C.I. 14) and
Public Elections Regulations,
1996 (C.I. 15) to govern the
general elections of 1996. In
the same vein C.I. 31 of 2000
and C.I. 48 of 2004 were
published to govern the general
elections for the years 2000 and
2004 respectively. That has been
the practice and it flows
directly from and is in accord
with the provisions of Articles
94, 45(c) and 51 of the
Constitution in the conduct of
parliamentary elections.
Consequently, it is our view
that the eligibility criteria
set out in Article 94(1)(a) come
into force only when a public
election of a Member of
Parliament has been declared by
the Electoral Commission and it
has set the time to file
nominations. Thus a person who
qualifies to enter Parliament
must be a Ghanaian citizen, of
twenty-one years or beyond and a
registered voter as at the date
he files his nomination papers
within the time stipulated by
the Electoral Commission for
that particular election. That
is the true intendment of
Article 94(1)(a) of the
Constitution; the eligibility
criteria come alive from time to
time when the Electoral
Commission sets the date to file
nominations for parliamentary
election/s.
In support of the interpretation
we have stated, there are two
decisions of this court cited by
counsel for the applicant which
have relevance to this
discussion. The first in time is
YEBOAH v. J.H. MENSAH (1998-99)
SCGLR 492. That case was about
the qualification or otherwise
of the defendant to be elected a
member of parliament, on account
of residency criterion. In the
course of delivering his opinion
at page 548 of the report,
Atuguba JSC made reference to,
inter alia, article 71 of the
1969 Constitution which
contained a provision that
disqualified a person from being
eligible to be elected a member
of parliament on certain
occurrence and then proceeded to
state in material terms that
“……the provisions of article 71
concerning qualifications for
membership of the National
Assembly were inextricably bound
to the actual electoral process
and had significance only in
terms of the actual electoral
process. It is crystal clear
that……….no cause of action could
lie against anyone for failing
to meet the qualifications for
membership of Parliament unless
he took a step in the electoral
process.”
The electoral process the
learned judge was talking about
is the national one set in
motion by the body responsible
for conducting the process, and
not the internal process
conducted by a political party.
The learned judge went on to
cite and rely on the case of
LUGUTERAH v. INTERIM ELECTORAL
COMMISSIONER (1971) 1 GLR 109
which in his view “demonstrates
vividly the inseparable link
between the qualifications for
Parliament and the actual
electoral process.”
The other case is NEW PATRIOTIC
PARTY v. NATIONAL DEMOCRATIC
CONGRESS and Others (2000) SCGLR
461. In that case the 1st
defendant was said to have
decided to put up the 2nd
and 3rd defendants as
parliamentary candidates in the
2000 parliamentary elections.
The court’s original
jurisdiction was invoked because
the 2nd and 3rd
defendants were said to be
members of the Civil Service and
therefore not qualified to
contest for a seat in Parliament
by virtue of Article 94(3)(b) of
the 1992 Constitution. The court
upheld a preliminary objection
to the court’s jurisdiction on
ground, inter alia, that the
electoral body had not taken any
formal step in the electoral
process of inviting nominations
for parliamentary candidates, so
the cause of action was
premature.
These views expressed above are
apt and germane to the ongoing
discussion and the view of
Article 94(1)(a) that we have
expressed herein. In short the
eligibility criteria do not
arise unless the Electoral
Commission has put up a notice
of election of member of
Parliament.
To recap in a nutshell, the time
when a Ghanaian citizen of
twenty-one years of age can be
said not to be qualified to
contest for a seat in Parliament
because he is not a registered
voter, within the meaning of
Article 94(1)(a) of the 1992
Constitution, is when the
Electoral Commission, acting
under the mandate conferred upon
it by Articles 45(c) and 51, has
declared that a public election
of member of Parliament be held
on a particular date and has
also set the period for the
filing of nominations by
prospective candidates. That is,
the eligibility criteria under
Article 94(1)(a) will become
applicable only when the actual
electoral process has been set
in motion by the Electoral
Commission. For it is only then
that time could be imported into
the said provision to make it
completely viable and
enforceable.
A,
A. BENIN
JUSTICE
OF THE SUPREME COURT
W. A.
ATUGUBA
JUSTICE OF THE SUPREME COURT
YAW
APPAU
JUSTICE
OF THE SUPREME COURT
G.
PWAMANG
JUSTICE
OF THE SUPREME COURT
DISSENTING OPINION
ANIN YEBOAH, JSC
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL
GODWIN KODZO TAMEKLO ESQ WITH
HIM MRS SANJA MORRISON MAHAMA,
THEOPHILUS DONKOR AND REINDORF
TWUMASI ANKRAH FOR THE
APPLICANT.
GARY NIMAKO MARFO ESQ. FOR THE
1ST INTERESTED
PARTY.
MAAME SANA BARTON - ODURO ESQ.
FOR THE 2ND
INTERESTED PARTY
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