Contempt suit against EC adjourned

AUGUST 15, 2012 (Page 19) A contempt of court suit brought against the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari Gyan and six others has been adjourned to Thursday, August 16, 2012. Two residents of Nungua in Accra, Mr Richard Odum Bortier and Mr Daniel Quaye, are praying the Fast Track High Court to imprison the seven for contempt of court because they had in spite of a pending court action against the creation of new constituencies had gone ahead to lay a paper before Parliament in further pursuit of their agenda to create the new constituencies. The other respondents are Amadu Sulley, Kwadwo Sarfo Kantanka, Mrs Pauline Adobea, Ebenezer Aggrey Fynn, Mrs Rebecca Kabuki Adjafo and Mrs Sa-Adatu Maida, all commissioners of the EC. At the Fast Track High Court’s sitting in Accra today, it emerged that Mrs Adjafo and Maida were absent because they had not been served and that prompted the presiding judge, Mr Justice Edward Amoako-Asante to adjourn the case to enable them to be served. The plaintiffs were represented by Mr Ayikoi Otoo while the EC was represented by Mr James Quashie-Idun. An affidavit deposed by Mr Bortier, said although he and the other plaintiff had filed a writ on May 28, 2012, seeking to stop the EC from going ahead with the creation of the constituencies, because due process was not followed, the EC has laid the Constitutional Instrument for the new constituencies before Parliament. According to the plaintiffs, after they had duly served the EC, the EC caused its Solicitors, Lynes Quashie-Idun & Co. to enter a Conditional Appearance and that it was “an indication beyond all reasonable doubt that the Commission and the Commissioners had, had notice of the Writ and Statement of Claim and were ready to submit themselves to the jurisdiction of this Court.” “Thereafter, the EC proceeded to file a Motion praying the “Honourable Court to stay proceedings and refer the Suit to the Supreme Court.” Another High Court, presided over by Mr Justice K. A. Ofori-Atta is expected to rule on the application to refer the matter to the Supreme Court on Thursday, July 16, 2012. The affidavit said “the Writ, Statement of Claim, Entry of Appearance, Motion to Stay Proceedings together with its Affidavit were all pending before this Honourable Court, when I heard that the Chairman of the Electoral Commission (the 1st Respondent herein) had evinced an intention to go ahead with the demarcation of new constituencies which he fully knew would affect the subject-matter of litigation.” “Our Lawyer, therefore, caused a letter to be sent to all the Commissioners of the Electoral Commission, warning them that once they had become aware of the pendency of the Action before the Court, any conduct on their part, which is likely to prejudice a fair hearing of the case or interfere with the due administration of justice would amount to contempt for which those interested in wrong would be shown that the law is irresistible,” it pointed out and attached copies of the letters as exhibits. It said nothing was heard from the EC until sometime on or about the July 17, 2012, when it appeared on the Order Paper in Parliament that, a Constitutional Instrument (C.I.) dealing with the creation of new constituencies entitled “Representation of People (Parliamentary Constituencies) Instrument 2012” had been prepared by the EC. “I am advised by Counsel and verily believe same to be true that the Constitutional Instrument now numbered 76 of 2012 is the act of the Electoral Commission being a Subsidiary Legislation and not a Bill since Subsidiary Legislation are made by persons and authorities to whom Parliament had delegated its Legislative functions”, it said. “Thus, Constitutional Instrument No.76 was made by the Electoral Commission and it is therefore the Electoral Commission which could be held liable for the laying of the said Instrument during the pendency of the Suit No.HP9/2012 and not Parliament” the affidavit in support continued. According to the plaintiffs, the conduct of the respondents in laying of the Constitutional Instrument No.76 of 2012 in Parliament on July 17, 2012 more than nearly 3 months after the writ had been pending to the knowledge of the respondents and after their counsel had warned them of the possible citing for contempt, “have tended to bring the administration of the law into disrespect or disregard and to interfere with the cause of justice or prejudice, ourselves and our witnesses.” It said although the respondents were aware of the other relief seeking an order to restrain the EC from altering or creating new constituencies, except it had followed due process,” it had through the seven respondents proceeded to create new constituencies with abandoned nonchalance which conduct is aimed at prejudicing and interfering with the administration of justice.” “They intend to obstruct the work of the Court and deserve nothing short of imprisonment which course alone in the circumstances can purge their contemptuous behaviour,” the affidavit added. Consequently, the plaintiffs are inviting the court to demonstrate to the respondents that the law was irresistible “and that those in leadership position who decide to execute leadership by show of brinkmanship should be shown that the Courts do not possess feet of clay.”