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Constitutional law – Enforcement
of the
Constitution –
Interpretation - Whether or not
C.I. 95 which is the subsisting
legislation that delimits
constituency boundaries in Ghana
is inconsistent with Article
47(2) of the Constitution, 1992
by virtue of C.I. 112
HEADNOTES
The plaintiff submitted that the
answer to the question posed
above should be in the
affirmative. His reason is that
under Article 47(2) no
constituency is allowed to
straddle two regions but by the
provisions of CI 95 made in
2016, the Hohoe Constituency
falls partly within the Volta
Region and partly within the Oti
Region that was created by CI
112 made by the president
pursuant to Article 5 of the
Constitution in 2019, The 1st
to 4th defendants on
the other hand submitted that as
CI 95 was in existence and in
force before C.I.112 was made by
the president, the president in
making C.I. 112 ought to have
acted in conformity with it by
ensuring that the traditional
areas of Santrokofi, Akpafu,
Lipke and Lolobi which at the
time were part of the Hohoe
Constituency remain part of the
Hohoe Constituency, and the
Volta Region for that matter, in
order not to breach Article
47(2) of the Constitution. The
effect of this argument is that
Article 47(2) constitutes a
limitation on the power of the
president in the creation of new
regions and it ought to take
precedence over Article 5 of the
Constitution. The Electoral
Commission on its part agreed in
substance with the position
taken by the plaintiffs and
submitted that since CI 112
designates a regional boundary
it ought to take precedence over
CI 95 which is on constituency
boundaries. In the view of the
Electoral Commission CI 95 ought
to be amended to conform with
the regional boundaries as set
out in CI 112.
HELD
For the reasons explained above,
we hold that, as things stand
now, CI 95 is inconsistent with
Article 47(2) of the
Constitution to the extent that
the traditional areas of
Santrokofi, Akpafu, Likpe and
Lolobi which fall within the Oti
Region are stated to be part of
the Hohoe Constituency which is
in the Volta Region and to the
extent of that inconsistency CI
95 is unconstitutional. We
therefore answer in the
affirmative the rephrased
question referred to us.
However, it is
provided under clause 6 of
Article 47 that any review of
constituencies shall take effect
upon the next dissolution of
parliament. That is
understandable because currently
there are sitting Members of
Parliament who were elected and
are serving on the basis of the
constituencies in CI 95. For
that reason we shall not declare
CI 95 as void despite our
holding that it is
unconstitutional. See;
Margaret Banful v
Attorney-General Writ No.
J1/7/2016, Judgment delivered on
22/6/2017. Accordingly,
we order the Electoral
Commission to amend CI 95 to
bring it in conformity with CI
112. Such amendment shall take
effect upon the next dissolution
of parliament, that is after
midnight of 6th
January, 2021.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Republic V Special Tribunal, Ex
parte Akosah [1980] GLR 592
Asare (No.2) v Attorney-General
[2015-2016] 2 SCGLR 899
Margaret Banful v
Attorney-General Writ No.
J1/7/2016, 22/6/2017.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL
C. K. KOKA FOR THE PLAINTIFF
CHRIS A. ACKUMMEY FOR 1ST
TO 4TH DEFENDANTS
JUSTIN AMENUVOR WITH HOPE
AGBOADO FOR THE 5TH
AND 6TH DEFENDANTS
PWAMANG, JSC:-
This case is a reference by the
High Court, Ho of a question
involving the
enforcement and
interpretation
of the
Constitution, 1992 that
arose on the face of the
processes filed in Suit No.
E12/09/2020 pending in that
court. We have examined the case
stated in the reference by the
trial judge and considered the
documents attached to it and are
of the view that the appropriate
question that has to be
answered in this reference is
whether
or not C.I. 95 which is the
subsisting legislation that
delimits constituency boundaries
in Ghana is inconsistent with
Article 47(2) of the
Constitution, 1992 by virtue of
C.I. 112 which contains the
boundaries of the newly created
Oti Region, to the extent that
C.I. 95 provides that the
traditional areas of
Santrokofi, Akpafu, Lipke and
Lolobi all in the Oti Region are
part of the Hohoe Constituency
in the Volta Region of Ghana
and therefore to the extent of
that inconsistency is
unconstitutional. We do not find
the reference in the case stated
to CI 119 which delimits
District Assemblies and
Electoral Areas boundaries
relevant to a resolution of the
real issue arising before the
High Court, so we shall not
consider it.
At the hearing of the case in
this court
the
plaintiff submitted that the
answer to the question posed
above should be in the
affirmative. His reason is that
under Article 47(2) no
constituency is allowed to
straddle two regions but by the
provisions of CI 95 made in
2016, the Hohoe Constituency
falls partly within the Volta
Region and partly within the Oti
Region that was created by CI
112 made by the president
pursuant to Article 5 of the
Constitution in 2019.
The 1st to 4th
defendants on the other hand
submitted that as CI 95 was in
existence and in force before
C.I.112 was made by the
president, the president in
making C.I. 112 ought to have
acted in conformity with it by
ensuring that the traditional
areas of Santrokofi, Akpafu,
Lipke and Lolobi which at the
time were part of the Hohoe
Constituency remain part of the
Hohoe Constituency, and the
Volta Region for that matter, in
order not to breach Article
47(2) of the Constitution. The
effect of this argument is that
Article 47(2) constitutes a
limitation on the power of the
president in the creation of new
regions and it ought to take
precedence over Article 5 of the
Constitution.
The Electoral Commission on its
part agreed in substance with
the position taken by the
plaintiffs and submitted that
since CI 112 designates a
regional boundary it ought to
take precedence over CI 95 which
is on constituency boundaries.
In the view of the Electoral
Commission CI 95 ought to be
amended to conform with the
regional boundaries as set out
in CI 112.
The relevant provisions of the
constitution for the
determination of the question
before us are Articles 5 and 47
and the issue is which of the
two articles ought to prevail
over the other. If Article 5
prevails then it is CI 95 that
is unconstitutional but if
Article 47 prevails then it is
CI 112 that is unconstitutional.
In the celebrated case of
Republic V Special Tribunal, Ex
parte Akosah [1980] GLR 592,
Anin JA identified this type of
situation as one that calls for
the Supreme Court to exercise
its exclusive jurisdiction of
enforcement or interpretation of
the Constitution. He said as
follows at page 604 of the
Report;
“From the foregoing dicta, we
would conclude that an issue of
enforcement or interpretation of
a provision of the Constitution
under article 118 (1) (a) arises
in any of the following
eventualities:
(a) where 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) where rival meanings have
been placed by the litigants on
the words of any provision of
the Constitution;
(c) where 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;” (emphasis
supplied).
Article 5 of the Constitution
provides in part as follows;
(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 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 merge.
(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.
Article 47 is 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 as 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.
In the case of
Asare
(No.2) v Attorney-General
[2015-2016] 2 SCGLR 899 at p 925
Wood, CJ said as follows in
respect of the interpretation of
our Constitution;
“In construing the relevant
article 289 and other
constitutional provisions, in a
bid to unlock the mind of the
framers of the 1992
Constitution, I have been guided
by the basic well-established
constitutional principles that
have influenced constitutional
interpretation in this court.
These include the need for a
purposively broad, liberal and
benevolent interpretation of the
Constitution as a whole, so far
as the language of the
constitution would admit, having
due regard to the underlying
values and principles that need
to be promoted to safeguard our
system of participatory
democracy, the principle that
the constitution is a document
sui generis, and allied to this,
the principle that the
constitution must be interpreted
in the light of its own words,
and not words found in some
other written constitution.”
So, in order to determine which
of these articles was intended
by the framers of the
Constitution to prevail over the
other, we have to interpret the
language used in the
Constitution itself and only
resort to other methods of
interpretation if the language
is found to be imprecise or
leads to an absurdity. A close
reading of Article 5 of the
Constitution reveals that the
power of the president to create
new regions by constitutional
instrument is subject only to
Article 5 itself and is not
subject to any other provision
of the Constitution. When
Article 5 is read as a whole
there is no substantive
limitation on the power to
create new regions. The only
conditions to the exercise of
that power are procedural in
terms of the president
consulting the Council of State,
setting up a commission to
enquire into the demand or need
for the new regions and the
holding of a referendum to
approve the proposed regions.
There is no limitation on the
number of regions or the
population or number of
traditional areas a region must
contain or the boundaries that
may be set for a new region.
Consequently, the argument of
the 1st to 4th
defendants that the president in
creating new regions is limited
by Article 47(2) is not
supported by the provisions of
the Constitution.
Article 47 on the other hand in
granting power to the Electoral
Commission to divide Ghana into
constituencies places some
substantive restrictions on the
exercise of that power. One of
those substantive restrictions
is in Clause 2 of the Article to
the effect that a constituency
shall not fall within more than
one region. Another substantive
restriction is that
constituencies created shall in
terms of population be nearly as
possible to the population
quota.
So when we compare and contrast
the provisions of the two
Articles, it becomes abundantly
clear that Article 5 prevails
over Article 47 as far as the
relationship of regions to
constituencies is concerned
since the restriction under
Article 47(2) is imposed on the
Electoral Commission in the
creation of constituencies but
no such restriction is imposed
on the president in creating
regions under Article 5. We
therefore hold that it is the
Constitutional Instrument on
constituency boundaries that
should be aligned to the
regional boundaries and not the
other way round. It is our
considered view that if the
framers of the Constitution had
intended it the otherwise they
would have expressly made
Article 5 subject to Article
47(2) of the Constitution. In
the circumstances, we reject the
argument of the 1st
to 4th defendants.
What this means is that whenever
regional boundaries are changed
in a manner that affects
existing constituencies, the
constituency boundaries have to
be amended to align with the new
regional boundaries.
For the reasons explained above,
we hold that, as things stand
now, CI 95 is inconsistent with
Article 47(2) of the
Constitution to the extent that
the traditional areas of
Santrokofi, Akpafu, Likpe and
Lolobi which fall within the Oti
Region are stated to be part of
the Hohoe Constituency which is
in the Volta Region and to the
extent of that inconsistency CI
95 is unconstitutional. We
therefore answer in the
affirmative the rephrased
question referred to us.
However, it is provided under
clause 6 of Article 47 that any
review of constituencies shall
take effect upon the next
dissolution of parliament. That
is understandable because
currently there are sitting
Members of Parliament who were
elected and are serving on the
basis of the constituencies in
CI 95. For that reason we shall
not declare CI 95 as void
despite our holding that it is
unconstitutional. See;
Margaret Banful v
Attorney-General Writ No.
J1/7/2016, Judgment delivered on
22/6/2017. Accordingly, we
order the Electoral Commission
to amend CI 95 to bring it in
conformity with CI 112. Such
amendment shall take effect upon
the next dissolution of
parliament, that is after
midnight of 6th
January, 2021.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
AVRIL LOVELACE- JOHNSON
(JUSTICE OF THE SUPREME COURT)
COUNSEL
C. K. KOKA FOR THE PLAINTIFF
CHRIS A. ACKUMMEY FOR 1ST
TO 4TH DEFENDANTS
JUSTIN AMENUVOR WITH HOPE
AGBOADO FOR THE 5TH
AND 6TH DEFENDANTS
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