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Supreme Court
-Invoking the original
jurisdiction - Article 241(2)
and 106(1) of the 1992
Constitution – Whether or not
section 1(2) of the Local
Government Act, 1993 (Act 462)
is inconsistent with article
241(2) and 106(1) of the 1992
Constitution - Whether or not
the Creation of Districts
Instrument, 2011 (E.I. 80),
Creation of Municipalities
Instrument, 2011 (E.I. 81) and
Declaration of Municipalities
Instrument. 2011 (E.I. 82) all
made by the President gazette on
25th November, 2011
are inconsistent with Article
241 (2) of the 1992 Constitution
and consequently void.
HEADNOTES
A declaration
that section 1(2) of the
Local
Government Act, 1993 (Act 462)
which provides that the
President may declare an area a
district and assign a name to
the district by executive
instrument is inconsistent with
article
241(2) and 106(1) of the 1992
Constitution and is
consequently void and that the
Creation of Districts
Instrument, 2011 (E.I. 80),
Creation of Municipalities
Instrument, 2011 (E.I. 81) and
Declaration of Municipalities
Instrument. 2011 (E.I. 82) all
made by the President on 22nd
November, 2001(sic) and gazette
on 25th November,
2011 are inconsistent with
Article 241 (2) of the 1992
Constitution and consequently
void. declaration that section
1(3) of the Local Government
Act, 1993 (Act 462) which
provides that the President
shall in the exercise of the
power under subsection (2)(a) of
section 1 of the Local
Government Act, 1993 (Act 462)
direct the Electoral Commission
is inconsistent with articles
45, 241(2) and 106(1) of the
1992 Constitution and is
consequently void and an order
restraining the Electoral
Commission from acting in any
way whatsoever pursuant to
directions made by the President
HELD
In two recent
Supreme Court decisions: namely
Okane & Ors v Electoral
Commission and the
Attorney-General, and Nii
Tetteh Opremreh v The Electoral
Commission and the
Attorney-General, the
restricted role of Parliament
with regard to subsidiary
legislation was made quite clear
by the Court. Indeed these
decisions clearly show that it
cannot be said that Parliament
makes subsidiary legislation.
The approach to the
interpretation of section 241(2)
that we recommend, ensures the
enhanced participation of the
people of Ghana in the creation
of districts through their
elected representatives. It
must be noted also that the
interpretation we favour does
not exclude the President from
the process. These arguments
(which were opposed by 1st
Defendant in a Statement of Case
filed on his behalf on 20th
June 2012), however, cannot
succeed in the light of the
decision that this Court has
just delivered today in
Naakarley Amegatcher v
Attorney-General and Electoral
Commission (Suit no.
J1/8/2012). The material issues
in the present case are
identical with those in the
Naakarley Amegatcher case. In
that case, this Court held that
none of the contested provisions
in the Local Government Act,
1993 (Act 462), which are the
same as those impugned in the
present case, was
unconstitutional, because the
legislative authorisation given
to the President’s executive
action in the redrawing of the
boundaries of districts was not
unlawful. In the light of that
precedent, this court has no
option but to dismiss the
plaintiff’s action in this suit
as well.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Local
Government Act, 1993 (Act 462)
Creation of
Districts Instrument, 2011 (E.I.
80)
Creation of
Municipalities Instrument, 2011
(E.I. 81)
Declaration
of Municipalities Instrument.
2011 (E.I. 82)
CASES
REFERRED TO IN JUDGMENT
Naakarley
Amegatcher v Attorney-General
and Electoral Commission (Suit
no. J1/8/2012).
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
BRIGHT
OKYERE-AGYEKUM ( WITH HIM TETTEH
JOSIAH) FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY) FOR THE 1ST
DEFENDANT .
JAMES
QUASHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 2ND
DEFENDANT
J U D G M E N T
______________________________________________________________________
DR. DATE-BAH
JSC:
The plaintiff
invoked
the original jurisdiction of
this Court by a writ issued on
27th January, 2012 endorsed with
the following reliefs:
i.
“A
declaration that section 1(2) of
the Local Government Act, 1993
(Act 462) which provides that
the President may declare an
area a district and assign a
name to the district by
executive instrument is
inconsistent with article 241(2)
and 106(1) of the 1992
Constitution and is consequently
void.
ii.
A declaration
that the
Creation of Districts
Instrument, 2011 (E.I. 80),
Creation of Municipalities
Instrument, 2011 (E.I. 81) and
Declaration of Municipalities
Instrument. 2011 (E.I. 82) all
made by the President on 22nd
November, 2001(sic) and gazette
on 25th November,
2011 are inconsistent with
Article 241 (2) of the 1992
Constitution and consequently
void.
iii.
A
declaration that section 1(3) of
the Local Government Act, 1993
(Act 462) which provides that
the President shall in the
exercise of the power under
subsection (2)(a) of section 1
of the Local Government Act,
1993 (Act 462) direct the
Electoral Commission is
inconsistent with articles 45,
241(2) and 106(1) of the 1992
Constitution and is consequently
void.
iv.
An order restraining the
Electoral Commission from acting
in any way whatsoever pursuant
to directions made by the
President
in furtherance of section 1(3)
of the Local Government Act,
1993 (Act 462).
v.
A declaration that sections 3(1)
and (2) of the Local Government
Act, 1993 (Act 462) which
provide that the Minister shall,
by legislative instrument,
establish an Assembly for each
district, municipality and
metropolis which, in accordance
with clause (3) of Article 241
of the Constitution shall
constitute the highest political
authority in the district and
also provides for what shall be
specified in the said
legislative instrument
respectively, are inconsistent
with article 241(2) and 106(1)
of the 1992 Constitution and are
consequently void.
vi.
An order restraining the
Minister responsible for Local
Government or any other
Minister, from laying in
Parliament any legislative
instrument made pursuant to
section 3 of the Local
Government Act, 1993 (Act 462)
or pursuant to any other section
or provision in any enactment.
vii.
An order restraining the Speaker
of the Parliament of the
Republic of Ghana from
permitting to be laid in
Parliament for the consideration
of Parliament by the Minister
responsible for Local Government
or any other Minister, any
legislative instrument made
pursuant to the section 3 of the
Local Government Act, 1993 (Act
462) or pursuant to any other
section or provision in any
enactment.
viii.
Any further order(s) that this
Honourable Court may deem fit.”
In the
plaintiff’s Statement of Case in
support of his writ, he urges a
purposive interpretation of
article 241(2) of the
Constitution that enhances the
sovereignty of the people. In
paragraphs 26 to 29 of his
Statement of Case, he argues as
follows:
“26. If
article 241(2) of the
Constitution is interpreted to
allow Parliament to delegate
power to the President as in
(sic) the case, to create
districts, the article would
have been interpreted narrowly
and in a manner that undermines
the sovereignty of the people.
This is because the
participation of the people,
through their elected
representatives, in Parliament
will be fatally curtailed and
restricted to a mere footnote.
In two
recent Supreme Court decisions:
namely Okane & Ors v
Electoral Commission and the
Attorney-General, and Nii
Tetteh Opremreh v The Electoral
Commission and the
Attorney-General, the
restricted role of Parliament
with regard to subsidiary
legislation was made quite clear
by the Court. Indeed these
decisions clearly show that it
cannot be said that Parliament
makes subsidiary legislation.
27.
The
approach to the interpretation
of section 241(2) that we
recommend, ensures the enhanced
participation of the people of
Ghana in the creation of
districts through their elected
representatives. A bill
presented to Parliament can be
improved and the general public
is afforded the opportunity to
participate through the
submission of various memorandum
to the Parliamentary Committee
that considers the bill:
Judicial notice should also be
taken of the fact that
Committees of Parliament hold
public hearings just not in
Accra, but also around the
country. People are allowed to
appear before Committees and
express the opinions. This
informs the bill, enriches it
and ensures the involvement of
the people.
28. The
question of creation of
districts which directly affects
the people surely must be done
by the people through their
elected representatives.
It must be noted also that the
interpretation we favour does
not exclude the President from
the process. First of all,
because it is a bill that has
financial implications it can
only be introduced by the
Executive and not by a private
member. Secondly, the President
after introducing the bill has
another ‘bite at the cherry’.
The President must assent to the
bill for it to become law and if
the President disagrees with
what has been passed by
Parliament he can send it back
to Parliament for
reconsideration.
29. My
Lords, it is this
unconstitutional section of the
Local Government Act, section
1(2) that created a snowballing
effect that led the legislature
from unconstitutionality to
unconstitutionality. This
section which has been the focus
above was the basis for the
other sections which we submit
are unconstitutional.”
These
arguments (which were opposed by
1st Defendant in a
Statement of Case filed on his
behalf on 20th June
2012), however, cannot succeed
in the light of the decision
that this Court has just
delivered today in Naakarley
Amegatcher v Attorney-General
and Electoral Commission (Suit
no. J1/8/2012). The material
issues in the present case are
identical with those in the
Naakarley Amegatcher case.
In that case,
this Court held that none of the
contested provisions in the
Local Government Act, 1993 (Act
462), which are the same as
those impugned in the present
case, was unconstitutional,
because the legislative
authorisation given to the
President’s executive action in
the redrawing of the boundaries
of districts was not unlawful.
In the light of that precedent,
this court has no option but to
dismiss the plaintiff’s action
in this suit as well.
[SGD] DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD] W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
[SGD] S. A. B.
AKUFFO[MS.]
JUSTICE OF THE SUPREME COURT
[SGD] S. O. A.
ADINYIRA[MRS.]
JUSTICE OF THE SUPREME COURT
[SGD] ANIN YEBOAH
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;
BRIGHT
OKYERE-AGYEKUM ( WITH HIM TETTEH
JOSIAH) FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY) FOR THE 1ST
DEFENDANT
.
JAMES
QUASHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 2ND
DEFENDANT.
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