18th March 2012


The Danquah Institute is concerned about what appears to be an unconstitutional attempt on the part of Government to compel the Electoral Commission to create new constituencies based on the apparent creation of 42 new districts recently.
This, we believe, is based on a wrong and strange interpretation of the law that a constituency cannot fall in two districts. Therefore, once the Executive, with the support of its parliamentary majority, goes ahead to create a new district, which then leads to the splitting up of a constituency into the old and new administrative areas, then the EC has to follow suit and create a new constituency for the new district.
To allow this thinking to inform the current move by the EC to create new constituencies would dangerously undermine the Constitution of the Republic. The Constitution gives the powers to create districts to the Executive and Parliament. It reserves powers to create constituencies exclusively with the EC.
The Constitution does not say a constituency cannot fall in two districts. It only states that the “boundaries of a constituency shall not fall within more than one region.” But, in order to insulate the Executive fully from tampering with the boundaries of regions, the Constitution has made the creation of regions an entrenched provision requiring a referendum. So to allow the creation of a new district to trigger or inform the alteration of electoral boundaries is to allow gerrymandering by the Executive through the backdoor.
The Constitution does not say a Member of Parliament cannot be a member of two district assemblies. The Local Government Act, 1993, (Act 462), also does not say so. So, there is absolutely no legal requirement, either constitutional or statutory, that behoves the EC to create new constituencies based on the creation of new districts. For the EC to do so is to submit itself to undue and unconstitutional control by the Executive – a dangerous departure, which the framers of the Constitution went to great lengths to avoid.
Indeed, MPs are merely non-voting members of the district assembly and making them members of two district assemblies poses no fatal implications. So, if an MP can be both a legislature and a member of the Executive as a Cabinet Minister then why can’t an MP attends meetings of two district assemblies? MPs are also free to be board members of a public body. If an MP can be a non-voting member of one district assembly what can be so fundamentally wrong with an MP being a non-voting member of two district assemblies, especially when to rule that out is to allow gerrymandering to take place? In fact, no law expressly provides that an MP cannot be a member of two district assemblies. And, if any such law exists, then it is our submission, that law is unconstitutional.
Even though, the EC had earlier indicated that based on indications from the provisional results of the 2010 census it was looking to create 20 more new constituencies, once the final census results are in. This would push the number of parliamentary seats to 250 based on specific criteria set out clearly under Article 47 of the Constitution. Subsequently, Government has, with all the accompanying errors of a hurried job, proceeded to create 42 new districts to bring the total number of districts to 212.
Ordinarily, the creation of districts, with its apparent purpose of bringing governance closer to the people, would be welcomed. However, the boundaries of the majority of the 42 are deliberately designed to cause a split in existing constituencies, with the expectation that this would compel the EC to create up to 20 more constituencies, in addition to the 20 the independent body originally intended to create. Moreover, a closer scrutiny of the voting patterns of these potential new constituencies suggests that those new boundaries have been drawn to evidently give a clear unfair electoral advantage to the ruling party.
The view of the Danquah Institute is that, whether or not the boundaries were drawn with ulterior motives in mind, it would be dangerous and a clear infringement of the Constitution if the EC went ahead to alter constituencies based on the creation of these 42 districts. We are therefore urging the EC to stick to its guns and do what is right by the Constitution or risk a legal challenge, which could delay the entire process of altering constituency boundaries for the 2012 parliamentary election.
End


EDITORS’ NOTES ON RELEVANT LAWS
1. Power to create new regions and process
The 1992 Constitution provides under its second chapter covering the “Territories of Ghana” that the President may by Constitutional Instrument, subject to the provisions of Article 5, create a new region, alter the boundaries of a region or provide for the merger of two or more regions. 1
Clauses (2) and (3) of Article 5 provide the premise on which the President may initiate the creation, alteration or merger of a region. Two alternate conditions are given: first where the President is presented with a petition and is advised by the Council of State to do so or where no petition has been presented to the President but on the advice of the Council of State, the President is satisfied that there is the need to create, alter or merge (a) region(s).
The President is then required to set up a commission of inquiry to inquire into this need and make the requisite recommendations.
Where the commission of inquiry set-up finds that there is the need and substantial demand *(emphasis ours) for the creation, alteration or merger, the commission must make a recommendation to the President that a referendum be held, spelling out the concerns to be addressed by the referendum and the places where the referendum should be held.
The recommendations made by the commission of inquiry must then be referred to the Electoral Commission by the President. The Electoral Commission must then determine the manner in which the referendum shall be held.
Any concern that was raised to be determined by the referendum is not considered to be dealt with unless it is voted on by fifty percent (50%) of all persons entitled to vote at the referendum and out of that number a minimum of eighty percent (80%) cast their votes in favour of that concern. In the case of the merger of regions the above does not apply, instead sixty percent (60%) of persons entitled to vote at eh referendum in each region must vote in favour of the merger.
After all the above conditions have been met the President must issue a constitutional instrument to give effect to the results of the referendum.

2. Creation of districts
Section 1(2) of the Local Government Act, 1993 (Act 462) bestows on the President the right to declare any area within Ghana to be a district and give it a name by executive instrument.
In using this power the President must refer to the Electoral Commission to make recommendations. The recommendations must take into account the population figures of the area to determine whether a metropolis, municipality or district ought to be created. The geographical contiguity and economic viability of the area must also be weighed up.
2.1. Establishment of a District Assembly
A district, municipal or metropolitan assembly is to be established by the minister in-charge of local government by legislative instrument upon the creation of the district by the President.
The instrument establishing the assembly must contain all details required by the Local Government Act and matters additional to the proper functioning of the Assembly.
2.2. Composition of a District Assembly
The composition of a district assembly is spelt out by section 5 of Act 462. It includes the District Chief Executive, a person from each electoral area within the District selected through voting, the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly, except that such member or members shall have no voting rights; other persons not exceeding 30 per cent of the total membership of the Assembly appointed by the President in consultation with the traditional authorities and other interest groups in the district.
Section 5(1)(c) relating to the membership of members of parliament of the district assembly in which their constituencies fall has often been interpreted to mean that a constituency cannot fall within the geographical area of more than one district assembly. In fact the only provision as to the physical limitation of the geographical boundaries of a constituency is to be found in Article 47(2) of the 1992 Constitution which provides that no constituency shall fall within more than one region. This is repeated ad verbatim in section 1(3) of the Representation of the People Law, 1993 (PNDCL 284) as amended.

3. Creation of Constituencies
This is catered for under Chapter 7 of the 1992 Constitution – “Representation of the People” and expatiated on by the Representation of the People Law, 1993 (PNDCL 284) as amended. Article 47 and section 1 respectively deal with the constituencies that are to be considered for the purposes of parliamentary election.
Section 3 of PNDCL 284 deals with the review of constituencies, this section mandates the Electoral Commission to review the constituencies every seven (7) years or within twelve months after the publication of census data after the conduct of a census whichever occurs prior in time and resultantly changes the boundaries of the constituencies. Where an alteration occurs as a result of the review, it only becomes effective on the next dissolution of parliament.
Aside the reasons given for a review in section 3 of PNDCL 284, there is absolutely no legal requirement either constitutional or statutory that behove the Electoral Commission to create new constituencies based on the creation of new districts.