Saturday, February 28, 2015

Fisherman floors EC; As Supreme Court stops March 3 district-level elections

Mr Benjamin Eyi Mensah (left) and his layer, Mr Alexander Afenyo-Markin, after the court decision
The District-level elections slated for March 3, 2015 has been put on hold. This followed a unanimous decision by the Supreme Court to stop the Electoral Commission (EC) from proceeding with the conduct of the poll.
The seven-member panel, presided over by Mr Justice William Atuguba also directed the EC to start afresh, the processes for the opening and picking up of nomination forms.
On Thursday, February 26, 2015, the court directed the EC to stop advertisements on the polls until the final determination of the matter.
It is also expected to accept nomination forms from candidates who had earlier been rejected for presenting their forms late. The EC would have to come out with a new date for the conduct of the poll.
However, prospective candidates can continue campaigning while they await new directives and timelines from the EC.
Other members of the panel were: Ms Justices Sophia Akuffo, Mr Justice Julius Ansah, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie and Mr Justice N. S. Gbadegbe.

Illusive law

Upholding a writ which sought to invoke its original jurisdiction on the constitutionality or otherwise of the barring of the plaintiff, Benjamin Eyi Mensah, from standing for elections, the court said the law the EC sought to rely on to justify its disqualification of the applicant was non-existent.
Lawyers for the EC had sought to rely on Constitutional Instrument 78 (C.I. 78) to back its decision not to accept the plaintiff’s nomination forms on the grounds that he had filed it out of time.
But the lawyer for the plaintiff, Mr Alexander Afenyo-Markin, dragged the Attorney-General and the Electoral Commission (EC) to the Supreme Court on the grounds that his client had been illegally disqualified from contesting the election as an assembly member.
Reading the court’s terse decision on behalf of his colleagues, Mr Justice Atuguba said the EC’s reliance on C.I. 78 was “illusive” because such law was not listed in the EC’s manual.
The court admitted that it was mandatory for the EC to hold district-level elections under Article 45 and 51 of the 1992 Constitution, but held that the law which the EC sought to rely on did not exist.
It said there was no parliamentary record showing that the EC had gone under a matured C.I. to warrant the holding of the polls.
Based on those grounds, the court said it was only proper for the EC to be ordered to start the process “afresh”.

Declarations sought and granted

Mr Afenyo-Markin had prayed the court to declare that on a true and proper interpretation of Article 51 of the 1992 Constitution, a Constitutional Instrument to demarcate the boundaries for both the national and local government elections comes into force only after the expiration of 21 sitting days after it has been laid before Parliament and that Constitutional Instrument 85 (C.I. 85) only comes into force after Parliament has passed same.
Another relief sought was that upon a true and proper interpretation of Article 51 of the 1992 Constitution, the court should declare as unconstitutional, the opening and closing of nominations for district-level elections because there was no existing Constitutional Instrument empowering the EC to receive nominations.
It said the court should also rule that the opening and closing of nominations for district-level elections by the EC when the Constitutional Instrument empowering it to do so had been laid before Parliament for consideration was an usurpation of the Constitutional mandate of Parliament as enshrined in Article 106 of the 1992 Constitution.
The applicant also urged the court to declare that the opening and closing of nominations by the EC when C. I. 85 was still pending before Parliament for consideration was an affront to the dignity of Parliament conferred on it by Article 122 of the 1992 Constitution.

Further reliefs

The plaintiff had also prayed the court to declare that the opening and closing of nominations by the EC on Sunday, December 21, 2014, when C. I. 85 was not in force was an infringement on the right of the plaintiff to contest in the local elections after having met all the preconditions to be registered as a candidate and awaiting the passage of C. I. 85 before filing his nomination forms.
Another relief sought by the plaintiff, who is a fisherman, also pleaded with the court to declare that the nomination forms received and the filing of same by the EC for the purposes of the district-level  elections prior to the coming into force of the C.I. 85 was unconstitutional and of no legal effect.
Mr Mensah, who was in court and looked excited after the court’s decision, had also implored the court to order the EC to open nominations to enable him and other law-abiding citizens who were awaiting the passage of C. I. 85 to file their nominations to participate in the upcoming district-level  elections.

Grounds of suit

According to the plaintiff’s statement of case, he (plaintiff) was a fisherman seeking to contest the upcoming district-level elections at Eyipeh Electoral Area of the Effutu Municipality in the Central Region.
It said the plaintiff picked nomination forms, filed them and obtained tax clearance certificate while awaiting the C.I. 85, “the enabling law governing the demarcation of electoral boundaries to be considered by Parliament as provided for under Article 51 of the 1992 Constitution.”
After observing the expiration of the 21 days period as provided for by law, the plaintiff proceeded to submit his forms to the EC on December 22, 2014 but was informed that nominations closed on Sunday, December 21, 2014.
His nomination forms were accordingly rejected but the statement of case has argued that the EC’s action was unconstitutional because the plaintiff had acted in consonance with law.
It held that the EC opened and closed nominations before the 21-day-sitting of Parliament adding that there was no existing law that enabled the EC to open and close nominations in the first place.
According to Mr Mensah, the enabling instrument could only come into force after 21 sitting days of Parliament and not before.

Rights of others infringed upon

The plaintiff further argued that the rights of other prospective law-abiding candidates who waited patiently for the 21 days sitting period to elapse before submitting their nomination forms had been infringed upon.
According to the plaintiff, the EC “in grabbing authority that does not belong to it ignored the all-important constitution and adopted some strange administrative procedures to open and close nominations.
By so doing, the EC immediately curtailed the right of the plaintiff to contest in the district-level elections.”

Constitutional Instrument

Arguing the case for his client, Mr Afenyo-Markin held that C.I. 85 was gazetted and laid before parliament on November 21, 2014 and for that reason, it could only come into force on December 22, 2014.
He, therefore, found it surprising for the EC to opt to close nominations a day before C. I. 85 could take legal effect and stated that the EC did not have a concurrent mandate with parliament to deliberate on orders, rules and regulations or any other law and pass same.
Counsel also held that the EC did not have the mandate to take administrative decisions that manifestly undermined the authority of parliament.
Mr Afenyo-Markin accordingly prayed the Supreme Court to frown on the action of the EC, declare it as null and void and also allow the plaintiff and other prospective candidates to file their nominations to contest the upcoming district assembly elections.

Arguments upheld

After three consecutive days of deliberations, the court yesterday upheld Mr Afenyo-Markin’s submissions and accordingly blocked the EC from proceeding with its plans to conduct district assembly and unit committee elections on March 3, 2015.
Mr Afenyo-Markin thanked the court for its decision and in an interview with journalists, he said the court’s pronouncement was a clear indication of the independence and fairness of Ghana’s judiciary.
The plaintiff told journalists he was happy about the court’s decision because he would now have the opportunity to contest in the elections.

EC’s reaction 

In a press release issued and signed by Ms. Georgina Opoku Amankwaa, Deputy Chairperson shortly after the decision, the EC said “with regard to the maturity of C.I. 85, the District Level Elections and all activities connected with them had been suspended forthwith until further notice.”

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