Friday, August 31, 2012

Case against creation of constituencies - EMPANEL JUDGES NOW - Lawyer appeals to CJ

AUGUST 28, 2012 (Lead story) A lawyer to one of the persons challenging the creation of 45 constituencies has petitioned the Chief Justice to empanel justices of the Supreme Court to hear the merit of the case during the legal vacation. Failure to do so, according to Mr Godfred Yeboah Dame, would create avoidable chaos in the country, as according to him, the issue on the creation of new districts “has overwhelming public interest”. The other defendant in the case is the Attorney-General, who according to counsel had not filed a response to the suit as of yesterday. The EC for its part, has put in a defence denying any wrongdoing. The EC has come under attack from the Minority in Parliament and other members of the public, some of whom have filed similar suits challenging the legality of the creation of new constituencies. A similar suit which was instituted by an Accra-based businessman, Mr James Amarh Amartey, is also challenging the legality in the intention of the EC to create 45 additional constituencies. A suit filed on behalf of the plaintiff by his lawyer, Mr Ayikoi Otoo, contends that L.I. 1983 of 2010, which created new electoral areas and laid before Parliament by the Minister of Local Government and through which the new constituencies have been created, should be declared an absolute nullity. According to the plaintiff, the outcome of the December 7, 2012 Presidential and Parliamentary elections would be rendered invalid if L.I. 1983 of 2010, was not deleted. The leadership of Parliament and the Electoral Commission (EC) on August 14, 2012 agreed to withdraw CI 73 which was to establish 45 new constituencies on account of several fatal errors on the CI. The EC has replaced the CI 73 which had matured after 21 sitting days with an amended version which was expected to mature in 21 Parliamentary sitting days. Parliament is currently on recess and is expected to be recalled on September 3, 2012 for an emergency sitting on the matter. The new CI 73 has recorded only a day of maturity since Parliament is currently on recess. Mr Dame on July 6, 2012 filed a suit on behalf of an Accra-based businessman, Mr Ransford France, challenging the power of the Electoral Commission (EC) to go ahead with the creation of new constituencies without first laying before Parliament, a constitutional instrument indicating clearly the mechanism, formula or modalities by which it intended to undertake that exercise. Counsel is praying the court to perpetually restrain the EC from laying before Parliament any Constitutional Instrument creating new constituencies and or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 [C.I. 46], until it laid before Parliament a Constitutional Instrument which clearly sets out the processes to be adopted by the EC. However, the matter has not been listed for hearing because the courts are on legal vacation until October, 2012. “Whilst recognising the absolute imperative for a legal vacation by the Superior Courts of Judicature, we wish to respectfully indicate that the suit, the subject matter of this letter, is one with overwhelming public interest to the extent that the outcome of same would affect the electoral process in the Republic of Ghana this year,” the petition dated August 27, 2012, a copy of which is available to the Daily Graphic, pointed out. “The plaintiff in filing his action, was motivated by the duty imposed on all Ghanaians to uphold and defend the Constitution through legal action, and in this context, ensuring a due compliance by the Electoral Commission with mandatory provisions of the Constitution in the upcoming Presidential and Parliamentary elections,” it continued. “It is in the light of this that we respectfully pray Your Ladyship to exercise your powers under Rule 1 of the Supreme Court Rules, 1996 ( C. I. 16) to empanel the Supreme Court to hear the merits of the Plaintiff’s action in the legal vacation,” the petition continued. Rule 1 of C. I. 16 provides as follows: “The sessions of the Supreme Court shall be held during term and at any other times directed by the Chief Justice”. “In view of all of the above, we respectfully pray you to exercise your powers under Rule 1 of C. I. 16 to empanel a court to hear the merits of plaintiff’s action,” counsel prayed. According to counsel, his plea to the Chief Justice had become necessary by the fact that failure to empanel a court to sit on the case will not only render the plaintiff’s action moot or nugatory but will also encourage further unconstitutional conduct on the part of the EC. Counsel continued, “It is pertinent to note that the Electoral Commission notwithstanding the pendency of the action, is continuing with the constitutional infractions complained of in the suit. If the suit is heard in regular term, chaos would undoubtedly result from non-adjudication thereof and that will not be in the interest of the nation.” Mr Dame maintained that the Electoral Commission would already have succeeded in creating the new constituencies and also well advanced in its preparations for the conduct of the elections if the Chief Justice did not empanel the Supreme Court during the vacation to hear the case. In the substantive suit, Mr France is seeking a declaration that upon a true and proper interpretation of Articles 23, 51 and 296 (c) of the Constitution, the EC in the exercise of its functions and discretionary power in creating new constituencies, is required to make by Constitutional Instrument, regulations not inconsistent with the Constitution or any other law to govern the exercise of its discretionary power. He is praying the court to compel the EC, as required by Articles 51 and 296 (c) of the 1992 Constitution, to come up with a Constitutional Instrument which is consistent with the Constitution or any other law, regulations to govern the exercise of its discretionary power to create new constituencies including in particular, the specification of the formula and mechanism to be used in the creation of new constituencies, among other reliefs.

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