So which constituency does honorable Sam Nyimakan, MP for Wulensi constituency, hail from? This seemingly innocuous question has been haunting the Superior Courts since the voters of Wulensi constituency elected Sam Nyimakan as their MP in the December 2000 elections. Nyimakan claims that he hails from Kumboni, in the Wulensi Constituency, but one Fusieni Zakaria contends that the MP hails from Saboba. Zakaria’s claim, if correct, will put Nyimakan in a different constituency and disqualify him from being the MP for Wulensi constituency. In addition, the question has brought to the fore many issues, including the meaning of “hail from a constituency,” and “resident in a constituency,” as used in article 94 (1b) of the constitution; the Jurisdiction of the Supreme Court; and the need to have a precise timetable for resolving election disputes. But, first, the facts of the case:
Mr. Nyimakan filed his papers on September 12, 2000, on the ticket of NDC, to contest for the Wulensi parliamentary seat in the December 2000 elections. As is the norm, the Electoral Commissioner (EC) screened his nomination papers to determine his eligibility as a candidate, according to criteria stipulated by article 94 of the constitution. The EC did not find any defects in the nomination papers and placed him on the ballot. Moreover, none of the citizens, in Wulensi constituency or elsewhere, challenged his eligibility. By a notice published in the Gazette dated January 5, 2001, the EC declared Samuel Nyimakan the winner in the December 2000 parliamentary elections.
Shortly after Nyimakan had been sworn in, Mr. Fuseini Zakaria, a Wulensi constituent, petitioned a Tamale high court to declare the elections of Nyimakan null and void. The petitioner alleged that Nyimakan (a) does not hail from the constituency; or (b) he is not resident in the constituency; or (c) he has not lived there for periods that add up to 5 years in the last 10 years. Article 94 (1b) specifies that a candidate for a parliamentary seat must meet at least one of these the 3 criteria. It seems the framers of the constitution wanted a candidate to demonstrate some attachment to the constituency, and such attachment was demonstrable by “hailing from,” “current residency” or “significant past residency” (5 out of the last 10 years), in the constituency.
On July 6, 2001, Justice Aninakwa, presiding at the Tamale high court, agreed with the petitioner and disqualified Nyimakan as the MP for Wulensi. However, Nyimakan appealed this decision, which stayed the execution of Aninakwa’s ruling. On April 12, 2002, the high court's decision was affirmed, on appeal, by a 3-man panel headed by Justice Georgina Woode (with Justice Stephen T. Farkye and Justice Omari-Sasu as members). However, the court granted an application for a stay of execution to allow Nyimakan to appeal the decision at the Supreme Court (SC). This allowed Nyimakan to continue to serve as an MP pending resolution of the case at the SC. On November 27, 2002, a five-member panel of the SC, presided over by Chief Justice E.K. Wiredu, adjourned the case sine die. No reasons were assigned for the adjournment. Then, on January 16, 2003, the SC, by a 4-1 decision, ruled that, under article 99, it lacked the jurisdiction to entertain an appeal, after an appeal has been made to the Court of Appeal. Chief Justice Wiredu, Justice G. K. Acquah, Justice Kwame Afreh and Justice Seth Twum sided with this view while Justice Sophia Akuffo dissented. On the same day, Nyimakan expressed utter outrage at this decision and has, appropriately, initiated steps to review the SC decision.
Issue 1: Where Do You Hail From?
“n33gb3 oj3?” That is the Ga version of "where is thy haildom,” a deceptively simple question, which, on closer scrutiny, does not have an easy or unique answer. Further, the answer to this question is so irrelevant that it should not affect any employment decision, except, regrettably, if you are applying for the job of an MP. Needless to say, because this question does not lend itself to an easy answer, it is not likely to be satisfactorily resolved by statutory declarations. We must, of necessity, turn to convention and perhaps, customary law, to the extent that we know them, to attempt to answer this question.
Conventionally, one answers this question by repairing to either (a) the hometown, as defined by the place of birth of one’s parents or grandparents or ancestors, depending on how far one wants to go or how knowledgeable one is about his ancestry, or (b) the place of birth, if known.
Consider the issue of a hometown, which depends on your ancestry! Because Ghana has both paternal and maternal communities and because cross marriages between these communities abound, it is not easy to determine one’s hometown with any degree of certainty. If your father comes from a paternal community and your mother comes from a maternal society, then it is anybody’s guess as to what your hometown is. Your father's customs indicate that you are from his hometown and your mother's indicate that you are from her hometown. And, it is easy to compound this problem by imagining that your parents are also born of cross-customs. So assuming we could agree that "hometown" is the apposite yardstick of “hail from,” we will still be stuck with a concept that is difficult to operationalize. Of course, one could claim multiple hometowns, a claim that does violence to both customs and official records, (e.g., enrolling in school or the military), which admit only 1 hometown. Hometown, which is widely referred to in casual conversation and other official records, therefore, fails as a definitive yardstick.
Next, consider the place of birth, which, if you believe in the doctrine of jus soli (right of soil), should be given as much, if not definite, weight in determining where you hail from. While that seems to be a less ambiguous indicator, it, too, is fraught with operational problems. Suppose, I was born at the midwife next to the Adabraka market! Where should I say I hail from, assuming birthplace is the way to determine where you hail from?
Is it Adabraka, Circle, Odorna, Accra, Greater Accra region, Southern Ghana or what? All of the above and many others are correct, depending on what you want to use as the unit of analysis: zone, village, district, town, municipality, administrative region, etc. Parenthetically, the same issue arises if we were to use hometown as the basis for answering the question.
The law can, therefore, take a very narrow view and use the smallest geographical entity (e.g., zone) as the unit of analysis or it could take a broader, yet reasonable view, such as the municipality or even the region. Prescriptively, for a country that is trying to come together, it is prudent to be very broad in defining our origins rather than narrow, which tends to unduly accentuate our non-existent differences.
In the case of Wulensi, honorable Nyimakan claims he hails from Kumboni but Justice Aninakwa found that he hails from Saboba. The judge reached his decision by looking at the MP's school records. But who is right? Saboba and Kumboni are contiguous communities. Depending on what one uses as a unit of analysis, Nyimakan could “hail from” both places, and many more, including Tamale, Dagbon or even northern Ghana.
But wherever Nyimakan “hails from,” or “not from,” the worst place to look for an answer to the question is his school records, unless one is totally alien to the Ghanaian culture. It is a notorious fact that most of our school records, especially as they pertain to where we “hail from,” are completed without much thought to the legal implications. Indeed, most parents, if they are literate, provide convenient or approximate responses (i.e., they write down the nearest big town to the village, Nkawkaw rather than Akwasihu, etc.). But for most of rural Ghana, these responses are probably provided by the head teacher, as a favor to the families and to expedite the schooling process, which is a challenge by itself. Moreover, because where one hails from never mattered, until article 94 (1b) as interpreted by Justice Aninakwa, few ever corrected, or sought to correct, their records as they moved on to higher education. Yet, Justice Aninakwa gave more weight to these school records than the affidavit sworn by Nyimakan. And it must not be lost that these school records seldom ask the question where do you hail from? Rather, it asks for hometown and, hence, reliance on these records accept hometown as the default answer to the question, which introduces circularity because Justice Aninakwa does not tell us what he thinks “hail from” should mean.
But hometown and birthplace do not exhaust the “hail from” space. Some, for instance, may even choose to go to the pre-Ghana days and indicate that they hail from one of the kingdoms that were put together to constitute Ghana. Others may repair to their tribe or clan. But these considerations only add another layer of complication to what seems to be an already very complicated question.
While it should now be obvious that the question of where one hails from does not lend itself to an easy or an obvious answer, that question itself is only part of the problem. Article 94 (1b) repairs to “hailing from a constituency” not any of the unit of analysis discussed above. Thus, after one has successfully determined where one hails from, one must then turn to the EC’s constitutional map to determine where one fits. That is, constituencies are arbitrary divisions of the country for purposes of elections and representation. A constituency could be here today and gone tomorrow. In 1979, we had 140 constituencies. In 1992, we had 200 and we could have more by 2004. So one must constantly refer to this map to see where one has been assigned. Further, just because someone hails from Saboba (the town) does not mean he hails from Saboba (the constituency). Likewise, a person who hails from Saboba (the town) may belong to Wulensi (the constituency) or some other constituencies. This follows because there is no algorithm, known to man, that will allow the EC to fit existing geographical entities “neatly and nicely” into the arbitrary constituted constituency. Parts of Saboba (the town) will belong to Wulensi constituency and vice versa. And this problem will be true of most contiguous communities. In fact, because of this problem, it is entirely meaningless to say you hail from a constituency. Further, because of population density, municipalities will necessarily comprise of more constituencies than districts or villages. While most people born in the municipalities, will use the municipality for school record purposes, those born in the villages are more likely to use the village or a smaller unit. Thus, undue reliance on school records will likely introduce a bias in favor of those born in the municipalities, as their responses make them eligible to hail from more constituencies. Born in Accra helps you much more than born in Kumboni!
So what is the court doing in the Wulensi case? It is “guessing” where Nyimakan “hails from” and then superimposing this “guess town” on a map that is arbitrary created by the EC to determine whether Nyimakan is eligible to represent the people in that arbitrary constituency. This is an absurd exercise because constituencies do not mean anything and are arbitrarily drawn. It follows that “hail from a constituency” should be defined very broadly to embrace all the absurdities that an artificial demarcation is likely to visit upon people with contiguous borders and traditional affiliations. Issue 2: Who is a Resident of a Constituency?
From the foregoing, it is apparent that there are many problems with Justice Aninakwa’s verdict, including his over reliance on Nyimakan’s school records, which asked for hometown or place of birth (not hail from); discounting Nyimakan’s affidavit that he hails from Kumboni; and failing to specify how he interpreted the “hail from” clause. Nevertheless, let us make the unrealistic assumption that Nyimakan does not hail from Wulensi constituency.
Even with this flawed assumption, it appears that Nyimakan is still qualified under the “current residency” rule of article 94 (1b) to represent Wulensi. The article requires that a candidate must be resident in the constituency for which he stands as a candidate for election to Parliament. The import of this clause must not be lost. There is a “hail from” clause as well as a “substantial past residency” clause, both of which look to the past to establish the attachment needed to qualify as an MP. Yet, the framers did not stop there but added the current residency requirement, without specifying any conditions.
Why? In my opinion, the "current residency" requirement was the framer’s way of showing a preference for a politics of inclusion rather than exclusion. The “current residency” requirement allows any Ghanaian, to move anywhere in the country, at any time, rent a house, register to vote there, file papers with the EC and qualify to be an MP of the area. In the case of the homeless, the registration to vote in the constituency should meet the “current residency” criteria. In effect, the framers anticipated “carpetbagging” and addressed it by affirming that carpetbaggers also qualify as long as they have established current residence. And this is, as it should be, given the other provisions in the constitution that encourage nationhood as opposed to parochialism.
The records, in the Wulensi case, are clear that honorable Nyimakan resided in Wulensi. In the words of judge Aninakwa, "the petitioner has stated categorically in his evidence that apart from the period of campaigning for the election, Mr Nyimakan never resided in the Wulensi Constituency." Further, according to the judge, "there is ample evidence that Mr. Nyimakan registered as a voter in Accra in 1995 and in the year, 2000 transferred his vote to Banduli, in the Wulensi constituency." But why is the period of campaigning not sufficient to meet the “de minimis” current residency requirement specified in article 94 (1b)? Justice Aninakwa, as in the “hail from” controversy, does not tell us why. The vote transfer, coupled with his residence during the election purposes, should suffice for “the current residency requirement.” As they did with the past residency requirement, the framers could have specified a period for the current residency requirement. But they emphatically chose not to, for reasons adduced earlier! In any event, by excluding the period of campaigning, when the constitution does not exclude that period, Justice Aninakwa opened the doors of the Supreme Court to the litigants.
Issue 3: Jurisdiction of the Supreme Court
Perhaps, the most disturbing and surprising aspect of this saga is the Supreme Court’s 4-1 decision that it lacked jurisdiction, under article 99, to hear this case, which is pregnant with constitutional questions. Article 99 (1) states:”The High Court shall have jurisdiction to hear and determine any question whether -
- (a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant; or
(b) a person has been validly elected as a Speaker of Parliament or, having been so elected, has vacated the office of Speaker.
(2) A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.”
- "An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court - (a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction."
There is another subtle reason why the language of article 99 (2) is not enough to arrest jurisdiction from the SC. That is, conceptually one can envision the SC itself as part of the court of appeal mentioned in 99 (2). This point is underscored by article 129 (1), which reads:
- ”The Supreme Court shall be THE FINAL COURT OF APPEAL and shall have such appellate and other jurisdiction as may be conferred on it by this Constitution or by any other law.”
Unfortunately, this may not be known immediately since the SC seldom issues its opinions in a timely fashion, a practice that must come to an immediate end, if we take judicial accountability seriously. It is equally distressing that the SC will take close to a year to decide that it lacks jurisdiction, in a matter, this important. There are many constitutional issues raised in this litigation, with far reaching implications, and to shut the window of review, relying on such a tortured interpretation of article 99 (2) is exceedingly absurd. Nyimakan’s decision to seek a review of the SC’s decision is most welcome and it is hoped that the full bench will be empanelled soon to resolve this matter once and for all.
Issue 4: The Need for a Precise Timetable for Resolving Election Disputes Even if the SC sets aside the ruling of the high court, the continued uncertainty surrounding the Wulensi seat has done significant damage to all the parties and to our democracy. Why, one must ask, has the courts failed to act in a timely manner in a matter where timing is of the essence? The right to be an MP has a 4-year useful life and the courts have an important duty to ensure that every day of that useful life accrues only to the rightful occupant.
Alas, such an untenable state of affair is hardly new. In the 1996 elections, the dispute surrounding the Ayawaso West parliamentary seat was not resolved in a timely manner, thereby, allowing a “stranger” to occupy that seat for the full term of parliament. At best, this is a stunning indictment of the Judiciary.
Rather than wait for 2004 to confront the same issues, I call on the EC, parliament and all stakeholders to proactively address these and similar issues in a manner that will allow for better future outcomes. In my opinion, all these problems can be addressed by having a fixed election schedule that delineates the election dates, contest periods, inaugral dates, etc.
I propose the following dates and schedule as a starting point for a national debate:
Last Friday in June: Deadline for filing nominations for candidates
Last Friday in July: Deadline for filing all contests (e.g., article 94 issues)
Second Friday in September: Deadline for courts to settle all disputes including appeals.
First Saturday in November: General Elections.
Tuesday 5PM after General Elections: All results and winners are declared.
Next Tuesday 5PM: Deadline for filing all contests (e.g., counting issues).
Second Tuesday in December: Deadline for courts to settle all disputes including appeals.
First Saturday in December: Presidential and other runoffs if needed.
First Saturday in January: Inaugration.
One can see that if this proposal is adopted only the “Amoo” type cases will arise during the election contest period while the “Nyimakan” type cases will be adjudicated before the elections. This will preclude the situation where voters elect a candidate only for their decision to be set aside by the courts on grounds that the elected candidate was not eligible to contest. The wishes of the people, as expressed by their votes, should be respected and set aside rather sparingly. In any event, such a schedule will significantly reduce the probability of the wrong persons serving as our elected representatives with the concomitant cost of tainting our democratic institutions.
Another observation about the schedule is its tightness. Under this schedule, the courts are not only empowered to adjudicate electoral disputes but are also asked to do so in a timely manner. The judicial service must plan for and emplace the logistics to meet these deadlines or be held accountable. Without such accountability, our courts will fail our democracy! The usual excuses for delays must drown in the sea of positive change.
The Nyimakan case is a test of our democracy. Among others, it raises the question of who will decide who is best qualified to represent them. Shall it be the voters or a judge, examining information on school records? While it may be an interesting constitutional exercise to determine where Nyimakan “hails from,” it is manifestly clear that it is very difficult, if not impossible, to just show up as a stranger in Wulensi, get on the ballot and convince the people to vote for you. In any event, how useful is this interesting exercise, especially in the case of Wulensi, where the voters have already decided who should represent them?
Views expressed by the author(s) do not necessarily reflect those of Ghanaweb.
