Constituents In The 45 New Constituencies Cannot Vote On December 7th......

Unless new voters’ registration is opened for the re-registration of affected Ghanaians

This is the fourth article I have written on the proposed creation of 45 new constituencies, for which CI-78 has been laid before Parliament, and is nearing maturity. I said in the first three previous write-ups that the Electoral Commission has full powers to create all the new constituencies, by virtue of the mandate granted it by article 47(5) of the 1992 Constitution. What I have always worried about though, and still spend sleepless nights on is the timing of the creation. Just as many other critics argue, the time available for the new constituencies to prepare for the 7th December general elections is too short to ensure trouble-free elections. The shortness of the interval will, in fact, exert too much pressure on parties, as well as on staff of the Electoral Commission, to properly do what they need to do to make the 45 new constituencies part of the December polls. I fear that the shortness of the interval will create numerous legal problems for the Electoral Commission and the candidates who will contest those new constituencies. Paramount among these numerous problems will be:

(1) THE PROBLEM OF REGISTRATION OF THE CONSTITUENTS IN THE NEWLY CREATED CONSTITUENCIES THAT WILL ARISE FROM THE REVIEW AND THE RESULTANT BOUNDARY CHANGES; In theory, and in practice, all polling stations within constituencies whose boundaries will change will have no legitimate voters’ registration numbers to enable them to be identified by the electronic voting machines that will be used in the December polls. For example if, as a result of the review, constituency “A” is divided into two, to become newly created constituencies “A1” and “A2”, then the constituents residing and voting in those two new constituencies will not have polling stations where they will be lawfully registered to vote, because the old constituency “A” in which they previously registered shall have ceased to exist, while the new constituencies (“A1” and “A2”) will not be found in the old voters’ register compiled in March this year, and recently reopened for inspection.

(2) PROBLEM (1) ABOVE WILL LEAD TO PROBLEM (2), WHICH IS THAT, THERE WILL BE MASSIVE LEGAL CHALLENGES AGAINST THE ELRECTORAL COMMISSION OVER THE RESULTS OF ANY POLLING STATION THAT COMES ABOUT AS A RESULT OF ANY ALTERATION OF BOUNDARIES IN ANY CONSTITUENCY ESTABLISHED UNDER ARTICLE 47(5) OF THE 1992 CONSTITUTION, AND WHICH USES THE OLD VOTERS’ REGISTER TO CONDUCT THE DECEMBER ELECTIONS; In my opinion, if constituents of newly created constituencies are not reregistered between the date after the next dissolution of Parliament and 7th December 2012, they (the constituents of newly created constituencies) cannot lawfully vote in the December polls, because such people will have been disenfranchised by reason of the absence of their names the old voters’ register compiled in the first quarter of 2012. This will mean that, should they be allowed to vote by any polling station agent, their votes can be challenged in court after the elections. It should be noted that the cumulative effect of challenging the results in 45 constituencies cannot be regarded as a small problems confined to the 45 constituencies only. Such massive challenges will put the overall results of the entire elections on hold for as long as the challenges will persist in the law courts. This will not be a light matter that can be sorted out in days, or weeks, or even a few months.

*I know that some people will agree with me on this issue, while others will not. Yes, these two groups of people have a right to agree or disagree with me. It does not matter. What matters, I believe, is that after the successful creation of the 45 new constituencies, if a new voters’ registration is not opened before 7th December to enable the affected people to register in their newly created constituencies, then people like me will challenge the results of all voters who will vote in the 45 newly created constituencies. The legal basis for such a challenge will be article 48(1) of the 1992 Constitution, which states that “a person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by the Chief Justice, and the Electoral Commission shall give effect to the decision of the tribunal.

Similarly, people who disagree with the view I have expressed in the paragraph above, will certainly feel aggrieved by a decision of a tribunal appointed by the Chief Justice under article 48(1) of the 1992 Constitution in favour of a challenge from people like me, mounted against any decision of the Electoral Commission concerning any alteration of the boundaries of a constituency established under article 47(5). Such people can appeal against any such decision of the tribunal, by virtue of the provisions of article 48(2) that state say that “a person aggrieved by a decision of the tribunal referred to in clause (1) of this article may appeal to the Court of Appeal whose decision on the matter shall be final.”

(3) BY ALL MEANS, THERE WILL BE A LEGAL CHALLENGE INVOLVING INTERPRETATION OF ARTICLE 47(6) OF THE 1992 CONSTITUTION, WHICH SAYS, “WHERE THE BOUNDARIES OF A CONSTITUENCY ESTABLISHED UNDER THIS ARTCLE ARE ALTERED AS A RESULT OF A REVIEW, THE ALTERATION SHALL COME INTO EFFECT UPON THE NEXT DISSOLUTION OF PARLIAMENT.” [*Capitalisation is my own.] Clause (6) of article 47 can be interpreted differently by different people. These different interpretations are as follows:

Some people, including myself, hold the view that any action taken before the next dissolution of Parliament which relates to implementation of article 47(6) cannot be right in law, because the constituencies which such action may relate to can never exist in law, until the Parliament that create them is dissolved. If this view is correct, the elections that the NDC have held for the 45 new constituencies are null and void. Again, if the view is correct then the 30 constituencies created in 2004 under Kufuor’s NPP administration were also illegal and results from those 30 constituencies can be challenged in a court of law, even now. *Could this be the reason why almost all NPP people who for any reason oppose this year’s creation of new constituencies haved failed, as at now, to refer to article 47(6) as the basis for their opposition?

Other people, on the other hand, hold the view that as long as everything that needs doing can be, or has been done and completed properly before the date for the next general election falls due, any action taken after the creation of any new constituency before the next dissolution of Parliament cannot be deemed illegal. Members of NPP and those of NDC certainly [though inexplicitly] hold this view.

Where different groups of people hold a strong disagreement over interpretation of a constitutional matter, as it is with the creation of the 45 new constituencies, there is always the likelihood that people aggrieved by such matter will apply to the Supreme Court for a final determination. *I have a strong feeling that this is what will happen after the December elections. The challenge based on interpretation, together with other likely challenges, will make the results of the impending Presidential and Parliamentary elections very uncertain for a long time after the actual completion of the polls. This may be an unpalatable recipe for election 2012, unless the Electoral Commission, Parliament, the Government and the main Opposition Party tread more carefully between now and 7th December.

Otchere Darko