Tango over creation of constituencies - COURT DECIDES SEPT 19... On mandate of Parliament to consider CI 78

Thursday, September 13, 2012 (Lead Story) THE Supreme Court will on September 19, 2012, decide whether or not to stop Parliament from considering the Representation of the People (Parliamentary Constituencies Instrument), 2012 C. I.78 until the final determination of a suit filed against the creation of the new constituencies. It fixed the date after lawyers for the parties in the case had 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 additional 45 constituencies. Earlier, the presiding judge, Mr Justice Julius Ansah, questioned, “can’t both sides decide on something until the next adjourned date?” in apparent move to bring both sides to reason. Both sides sat in their seats and remained mute in apparent resolve to leave the matter to the court to resolve. The applicant, Mr Ransford France, on July 6, 2012 sued the EC and the Attorney-General for the creation of the constituencies on the premise that due process was not followed. His lawyers also filed an application for interlocutory injunction praying the court to restrain Parliament from deliberating on the C.I. which was initially labelled C.I. 73, C.I. 77 and now C.I. 78. The move by the Electoral Commission (EC) to create the 45 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 other Ghanaians some of whom have filed various suits challenging the creation of the constituencies. A former Attorney-General and Minister of Justice, Mr Joe Ghartey, led a team of lawyers to move the motion for the interlocutory injunction seeking to restrain Parliament. He argued that C.I. 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. Mr Ghartey told the court, that 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. The presiding judge then indulged Mr Ghartey to state how the Supreme Court could restrain Parliament to which Mr Ghartey cited authorities in his bid to prove his claim that the court had the power to bring Parliament to order. He said the court had the power to contain Parliament because the latter was answerable to the Constitution, adding that C.I. 73 was laid, replaced with C. I. 77 and finally C. I. 78 at a time a case was pending against the EC. “The Constitution is superior. The Electoral Commission is an independent body but subject to the 1992 Constitution,” he said, adding that hearing of the substantive case had been fixed for October 4, 2012 and accordingly prayed the court “for a very limited injunction”. Mr Ghartey prayed the court not to allow itself to be stampeded into believing that the election process would be derailed if Parliament was restrained. In his reply, a lawyer for the EC, Mr James Quashie-Idun, told the court that granting an injunction to the applicant would amount to “removing the EC from a moving train”. He said 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 Attorney-General and Minister of Justice, Dr Benjamin Kunbuor, associated himself with the EC’s argument and submitted further that there was no clear indication that Parliament had committed an illegality. He said 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 Kunbuor 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. He reminded the applicant that Parliament had the power to annul a subsidiary legislation it approved and, therefore, prayed the court to dismiss the applicant’s motion which, he said, had no merit. After the Attorney-General had argued his case, Mr Ghartey sprung to his feet and told the court to rescue the EC “from the train which is moving to crash”. His comments drew a bout of laughter from the parked courtroom. The leadership of Parliament and EC on August 14, 2012 agreed to withdraw C.I. 73 which was to establish 45 new constituencies on account of several fatal errors on the C.I. It replaced the C.I. 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 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 additional constituencies and/or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 [C.I. 46], until it lays before Parliament a Constitutional Instrument which clearly sets out the processes to be adopted by the EC.