By Professor Paul Kuruk

I. DISMISSAL OF APPLICATION FOR INJUNCTIVE RELIEF

On September 19, 2012, the Supreme Court dismissed Mr. Ransford France’s motion for an interlocutory injunction to restrain Parliament from proceeding with any action on Constitutional Instrument 78 (CI-78) with respect to the creation of new constituencies. The Supreme Court’s decision was quite predictable. (See for example, my earlier writing titled “Creation of 45 New Constituencies: Matters Arising” posted on the Ghanaweb on September 7, 2012). Indeed, Mr. France and his attorneys should count themselves very lucky that the Supreme Court did not fine him and sanction his attorneys for filing such a frivolous motion and wasting the Court’s time.

While the Supreme Court’s decision does not preclude further legal challenges to the creation of 45 constituencies in Ghana, the decision makes it clear that such challenges will have to wait until after CI-78 becomes law on October 3, 2012. However, the statements of the Supreme Court as reported in the media should put Mr. France on notice that he stands no chance of success should he seek as part of his main suit (currently pending before the Supreme Court) to enjoin the EC on a more permanent basis, from implementing the provisions of the new law. According to the news story, “Justice Ansah [of the Supreme Court]....stated that ...to grant the injunction application, the plaintiff must show beyond doubt that he will suffer serious implication if the injunction is not granted. On the contrary, he explained, it is rather the respondents - EC and the Attorney General - who will suffer serious implications with regards to a successful organisation of the election if the injunction is granted.” (The news story is available at http://edition.myjoyonline.com/pages/news/201209/94182.php).

The Supreme Court Justice’s utterances indicate that the Supreme Court did not believe Mr. France’s claim he would be harmed if the injunction was not granted. To the contrary, the statements showed that the Supreme Court was more persuaded by arguments of the Attorney General that granting the injunction would prevent the EC and the government from organising the general elections properly. The inference to be drawn from this is that Supreme Court would likely look with disfavor on legal manoeuvres it perceives to be aimed at disrupting plans of the EC to organise elections in the country.

II. CHALLENGING THE CONSTITUTIONALITY OF CI-78

What are the possible grounds for challenging the law that is now certain to mature in October and which will create the 45 new constituencies? Under a special procedure set forth in Article 48 of the Constitution, a person who is aggrieved by a decision of the Electoral Commission regarding the demarcation of a boundary can appeal to a tribunal consisting of three persons appointed by the Chief Justice. Because the procedure involves a tribunal whose decision is subject to final appeal to the Court of Appeal, it can be surmised that the procedure is more suitable for addressing errors in drawing the boundaries of individual constituencies and cannot be used to invalidate in its entirety, the law creating the new constituencies. In this sense, the procedure is analogous to an election petition to review the results of a disputed election in one constituency without overturning the results of the elections in all the other constituencies in the country.

Generally, any law of Ghana can be challenged as unconstitutional, and if the challenge is sustained by the courts, the law will not be enforced. None of the arguments that have been advanced so far against CI-78 provide any cogent legal grounds for striking down CI-78 when it becomes law. It is quite obvious that the law cannot be successfully attacked on the ground that the EC lacked the authority to make the law because Article 47(6) of the Constitution gives the EC the exclusive power to “review the division of Ghana into constituencies...and alter the constituencies.”

III. REGULATIONS AND THE EXERCISE OF DISCRETION

Mr. France’s case against the EC, as reported in the media, is for a declaration that “upon a true and proper interpretation of Articles 23, 51 and 296(c), the EC in the exercise of its functions and discretionary power in creating new constituencies, was required to make by constitutional instrument, regulations not inconsistent with the Constitution or any other law to govern the exercise of its discretionary power.” As Mr. France alleges, the law was unconstitutional because the EC went 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.”

However, a closer examination of the three provisions of the Constitution relied upon by Mr. France does not reveal adequate grounds for invalidating the creation of constituencies under CI-78. Article 23 merely requires administrative bodies to “act fairly and reasonably and comply with the requirements imposed on them by law...” Mr. France has not indicated how in creating the law, the EC acted unfairly and unreasonably. In defence of the EC, it should be noted that the alteration of the boundaries was necessary to ensure that with the changing demographics of the country, each constituency met the population quota set by the Constitution. Moreover, the EC was required by the Constitution to review the division of constituencies within 12 months of the publication of the results of the national census and the EC fully complied with this obligation in a timely manner.

On its part, Article 51 requires the EC to “make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy. ” The EC has complied with this provision by adopting numerous regulations for the effective performance of its functions. The regulations include: the Law of Demarcations; the Law on Presidential / Parliamentary Elections; the Laws of Registration; the Political Parties Law; the Local Government Elections Laws; and the Elections Laws for Other Organisations. Nowhere in Article 51 does it mandate that the EC create an instrument regarding the mechanism, formula or modalities by which the EC intended to create constituencies.

Under Article 296(c), a person vested with discretionary power is required to publish regulations to govern the exercise of the discretionary power. Because this provision is substantially similar to Article 51, the same regulations that demonstrate the EC’s compliance with Article 51 constitute evidence of regulations published by the EC regarding the exercise of its powers.

To accept Mr. France’s argument that the EC has never adopted regulations before creating constituencies, means the same legal defect would taint the creation of constituencies in 2004. Would he seriously contend that the law creating 30 constituencies in 2004 should also be stricken because the relevant regulations were not adopted by the EC prior to the creation of the constituencies in 2004?

IV ASSESSING THE MAGNITUDE OF HARMS

If Mr. France’s complaint against the EC is on account of a harm caused by an abuse of discretion through a failure to adopt regulations for the creation of constituencies, it is submitted that the alleged omission is not an adequate basis for invalidating the law. To constitute a proper basis for overturning the law, the omission should relate to a grave or gross abuse of discretion. The failure to adopt regulations prior to the creation of constituencies, even if true, does not rise to such a level of gross abuse of discretion as would warrant striking down CI-78.

In this context, the Supreme Court will weigh the harm caused by the alleged failure to adopt a regulation for creating constituencies before CI-78 was passed on the one hand, and the constitutional crisis that could be sparked should the Supreme Court invalidate the law. The potential for a constitutional crisis exists because the creation of the constituencies would immediately set in motion a chain of events and acts of legal significance which will play out with precision and lead ultimately to a very certain result clearly mandated by the Constitution to be obtained by the time the current Parliament is dissolved. Any disruption of the process will therefore have wide-ranging constitutional repercussions.

To elaborate on this point, it must be noted that with the maturity of CI-78 on October 3, 2012, the Constitution automatically fixes the dissolution of the current Parliament (January 6, 2013) as the date the new division of constituencies becomes effective. To ensure that there will be 275 members of Parliament in the next Parliament based on the now effective division of boundaries, the EC will have to prepare for and conduct the general elections on the basis of the newly created constituencies. The Ghanaian electorate will also proceed in reliance on the constitutional requirement that the 275 constituencies will constitute the primary structures for representative governance in the next Legislature. Given these important developments that occur automatically after the maturity of CI-78, the Supreme Court is not likely to set aside the law creating the new constituencies, and thereby disrupt all the arrangements of the EC for the general elections, as well as the political campaigns that would already be underway – all because of the unfounded claim that the EC had failed to meet a technical procedural requirement to adopt regulations.

The statements of the Supreme Court on September 19, 2012 are strong indications of the disposition of the Supreme Court not to rule in a manner that could cause an upheaval in the political process. They indicate appreciation by the Supreme Court that the potential destabilizing impact of blocking the law would far outweigh any harm that could be caused to the Mr. France should the law creating the constituencies be allowed to stand. As reported in the news media regarding the dismissal of the application for injunctive relief by the Supreme Court: “[c]iting public interest, the court noted that granting the interim injunction would inconvenience the nation as a whole rather than that of an individual.” (The quotation can be found at http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=250895)

The news report is quite revealing of the current thinking of the Supreme Court on the magnitude of harms related to CI-78, particularly in light of the public interest.

To the extent there may be errors in the manner in which the boundaries of particular constituencies are drawn under CI-78, the errors can be corrected in petitions filed under Article 48, rather than through a wholesale effort to block the entire law in the Supreme Court allegedly for errors. Blocking the law under these circumstances will be inappropriate as too excessive a remedy for the alleged errors or omissions.

V. SUSTAIN BUT DELAY IMPLEMENTATION OF THE LAW?

Should the Supreme Court be inclined to sustain the law creating the new constituencies but defer its implementation until after January 2013, the question arises whether the Supreme Court would have the power to make such a ruling. As noted earlier, the Constitution mandates that when constituencies are created by the EC, they become effective upon the next dissolution of Parliament. Where the Supreme Court chooses to defer implementation until after January 2013, of the law that would create new constituencies in October, the Supreme Court in effect, will be changing the time of effectiveness of the division of the constituencies from the dissolution of the current Parliament to a different time in the future. By so doing, the Supreme Court will be setting a new date for the effectiveness of the division of constituencies that is inconsistent with Article 47(6) and thereby, will establish a new rule applicable to the constituencies. In other words, while the Constitution very clearly mandates that the division of constituencies be effective on January 6, 2013 where the constituencies are created in October 2012, the Supreme Court essentially will disregard that date and substitute an arbitrary date that was not provided for in the Constitution.

However, because the Judiciary is not vested with legislative power, it would follow that the Supreme Court should have no power to create rules for when the newly created constituencies can become effective. Moreover, to the extent the new rule would conflict with Article 47(6), a decision of the Supreme Court to defer the date of effectiveness of the division of constituencies could be seen as an attempt to amend the Constitution. This would be problematic because under Article 289, the power to amend the Constitution is conferred on Parliament and not the Judiciary. Accordingly, the Supreme Court cannot indirectly amend a constitutional provision through a ruling that would postpone the date of effectiveness of constituencies created in October.

Therefore, it is submitted that though the Supreme Court has the power to review laws, it does not have the power as part of such review, to change the date of implementation of a law from that which has been fixed by the Constitution. To be able to change the date in this manner requires a constitutional amendment, in the absence of which the Supreme Court will have no power to make a ruling that defers implementation of CI-78. It cannot be overemphasized that in this context, the power of the Supreme Court to review laws passed by Parliament does not include the power to make its own laws, much less the power to amend the Constitution unilaterally.

CONCLUSION

In light of the foregoing considerations, it is unlikely that the Supreme Court will strike down the law creating 45 new constituencies or act in any way to prevent or delay the implementation of the law. Individuals, groups or associations who may be opposed to the law should be well advised to act in accordance with that reality. To continue to resist the law in ostrich-like fashion in vain hope that the law will be blocked is an exercise in futility. Dismissal of the application for interlocutory relief should be a clear signal that the train conducted by the EC is about to leave the station and the Justices of the Supreme Court are in no mood to cause an upheaval in the electoral process by standing in front of the train when it is in motion! All aboard!

Professor Paul Kuruk, Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, Oxford University (St. Peter’s College), England; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.