Challenge to new constituencies -Supreme Court rules today

September 19, 2012 (Page 3 Lead) The first legal hurdle on whether or not Parliament should be stopped from considering the Representation of the People (Parliamentary Constituencies Instrument), 2012 CI 78 is to be cleared at the Supreme Court today. A businessman, Mr Ransford France, is entreating the Supreme Court to restrain Parliament from considering CI 78 which has been laid and is expected to mature on October 3, 2012 until the final determination of a suit he has filed against the creation of the new constituencies. The applicant went to court on July 6, 2012, praying it to declare as unconstitutional and illegal the creation of 45 new constituencies by the Electoral Commission (EC). Also sued alongside the EC was the Attorney-General. According to Mr France, due process was not followed in the creation of the new constituencies. The 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. 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 calling for Parliament to be restrained from considering the creation of the 45 new constituencies. The presiding judge, Mr Justice Julius Ansah, had, on that day, asked 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 Ghartey, moved the motion for interlocutory injunction, while the Attorney-General and Minister of Justice, Dr Benjamin Kunbuor, argued for the state. The EC was represented by Mr James Quarshie-Idun. Mr Ghartey submitted that CI 78 infringed on articles 51 and 296 of the 1992 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 that until Parliament was restrained, grave harm would befall the applicant and other Ghanaians. Opposing the motion, Dr Kunbuor said there was no clear indication that Parliament had committed an illegality, adding that the laying of CI 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,” he maintained, and said it was also not clear how much the applicant would be inconvenienced, as against the national inconvenience that would be occasioned when Parliament was restrained. Justifying the EC’s action, Mr Quarshie-Idun told the court that granting an injunction 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, pointing out that the proper remedy for the applicant was to apply for judicial review in the event that he emerged victorious. The leadership of Parliament and the EC, on August 14, 2012, agreed to withdraw CI 73 which was to establish the 45 new constituencies on account of several errors in it. It replaced 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 CI 73 and replaced it with CI 77, which was eventually substituted with CI 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. He is praying the court to perpetually restrain the EC from laying before Parliament any CI creating new constituencies and or revoking the Representation of the People (Parliamentary Constituencies Instrument), 2004 [CI 46] until it laid before Parliament a CI which clearly sets out the processes to be adopted by the EC.