Sunday, September 30, 2012
Furore over 45 constituencies - NO WAY - Supreme Court refuses injunction
September 20, 2012 (Lead story) THE Supreme Court yesterday dismissed an application that sought to restrain Parliament from sitting on Constitutional Instrument 78 (CI 78) which seeks to create 45 constituencies for the 2012 general election. “Parliament is completely privileged from judicial intervention,” the presiding judge, Mr Justice Julius Ansah held and submitted that the state stood a greater chance of suffering an irreparable loss should Parliament be stopped from performing its statutory functions and in the end the applicant lost the substantive suit. The court held that the electoral process would be grounded to a halt “and the nation a whole would suffer” should the EC in the interim, be stopped from performing its statutory function and in the long run won the case. Citing legal authorities to justify the court’s ruling on a interlocutory injunction which prayed the court to restrain Parliament from contemplating on C.I. 78, the presiding judge held that “I, myself would be unable to grant the interlocutory injunction. It will be unjust and inconceivable to so.” A businessman, Mr Ransford France, had entreated the Supreme Court to restrain Parliament from considering C.I. 78 which has been laid and is expected to mature on October 3, 2012 until the final determination of a suit he had filed against the creation of the new constituencies. The applicant went to court on July 6, 2012 imploring the topmost court of the land to declare as unconstitutional and illegal the creation of 45 new constituencies by the Electoral Commission (EC). Also sued alongside the EC is the Attorney-General. According to Mr France, due process was not followed in the creation of the new constituencies. His substantive suit would be heard on October 4, 2012. Dismissing the motion, the court was of the view that it would have been improper for it to interfere in the work of Parliament, an independent body through an injunction. However, it quickly, reminded parties in the case that the mechanisms adopted by the EC in creating the C.I. 78 which were being challenged, could be annulled if the applicant eventually emerged victorious in the substantive case. “I hope parties would be present to do real legal battle on October 4, 2012,” Mr Justice Ansah intimated first legal hurdle on whether or not Parliament should be stopped from considering the Representation of the People (Parliamentary Constituencies Instrument), 2012 C. I.78 will be cleared at the Supreme Court tomorrow (Wednesday, September 19, 2012). EC’s move to create the 45 new constituencies has received stiff opposition from the Minority in Parliament, the Trades Union Congress (TUC), former President J. E. A. Kufuor, a former Minister of Finance and Economic Planning, Mr Yaw Osafo-Maafo and several Ghanaians some of whom have filed various suits challenging the creation of the new constituencies. On September 12, 2012, lawyers for the parties in the case argued their cases for and against the motion for interlocutory injunction which is calling for Parliament to be restrained from considering the creation of the 45 new constituencies. A Supreme Court judge, Mr Justice Julius Ansah, had on that day questioned both sides if they could not reach a consensus on the matter but they both remained adamant. A former Attorney-General and Minister of Justice, Mr Joe Ghatey, moved the motion for interlocutory injunction while the Attorney-General and Minister of Justice Dr Benjamin Kumbuor argued for the state. The EC was represented by Mr James Quashie-Idun. Mr Ghartey, submitted that C.I. 78 infringed on Articles 51 and 296 of the 1992 (c) Constitution because the EC failed to state the mode or manner in which it used its discretionary power to create the constituencies. He said serious issues were at stake because the constitution was being subverted by the defendants and until Parliament was restrained, grave harm would befall the applicant and other Ghanaians. Opposing the motion for interlocutory injunction, Dr Kumbuour said there was no clear indication that Parliament had committed an illegality adding that the laying of C.I. 78 was of public interest and was also time bound because there would be serious constitutional crisis if the time was not met. “If by January 8, 2013 the EC does not exercise its constitutional power we are likely to have no government in Parliament,” Dr Kumbuor maintained and said it was also not clear how much the applicant will be inconvenienced as against the national inconvenience that will be occasioned when Parliament was restrained. Justifying the EC’s action, Mr Quashie-Idun told the court that granting an injunction to Mr France would amount to “removing the EC from a moving train.” Counsel argued that in the event that the EC succeeded in the legal action, the lost time could not be regained continuing that the proper remedy for the applicant was to apply for judicial review in the event that he emerged victorious eventually. The leadership of Parliament and 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 73. It replaced the CI 73 which had matured after 21 sitting days with an amended one which was expected to mature in 21 Parliamentary sitting days. However, Parliament reconvened on September 3, 2012, withdrew C.I. 73 and replaced it with C.I. 77 which was eventually substituted with C. I. 78. In the substantive suit, the applicant is challenging the power of the 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.