Local Gov’t Minister cannot create electoral areas – Supreme Court

Ofosu Ampofo – Local Govt. Minister

The Supreme Court has  ruled that it is unlawful for the Minister of Local Government to create electoral areas.

It, therefore, declared as null and void and of no legal effect, electoral areas which were created by the Minister of Local Government and Rural Development in 2004.

In a unanimous decision Wednesday, the court, presided over by Mr Justice William Atuguba, however, declared that “it will be unreasonable to restrain the EC from conducting national elections”.

It, therefore, gave the EC the go-ahead to conduct national elections and maintained that the EC could conduct future elections at the affected electoral areas on condition it created Legislative Instruments to cover those areas.

Other members of the court were Professor Justice S. K. Date-Bah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Annin Yeboah, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.

According to the court, Article 45 (b) of the 1992 Constitution gives the Electoral Commission (EC) the sole mandate to demarcate electoral boundaries for both national and local government elections.

The plaintiff, Dr Clement Apaak, had argued that the EC’s function was usurped by the Minister of Local Government in 2004 and had prayed the court to declare that it was illegal for the Minister of Local Government to create boundaries.

The court was giving its ruling in a suit brought against the EC and the Attorney-General by Dr Clement Apaak, the convener of an organisation called the Forum for Governance and Justice (FGJ), over the creation of 38 electoral areas across the country in 2004.

His lawyer, Dr Abdul Baasit Aziz Bamba, filed two suits on behalf of Dr Apaak — one challenging the constitutionality of then CI 46 which created new constituencies and the other praying the court to declare the 38 newly created districts by various LIs as illegal.

On October 4, 2012 counsel, however, withdrew the suit challenging CI 46 because it had been revoked. The Supreme Court, accordingly, struck  it out and later moved to hear the application challenging the LIs which created 38 new districts across the country.

A similar suit challenging the creation of electoral areas by the Minister of Local Government in 2010, will be determined by the court on October 24, 2012.

An Accra-based businessman, Mr James Armah Amartey, through his lawyer, Mr Ayikoi Otoo, is invoking the original jurisdiction of the Supreme Court to declare that the Local Government (Creation of New District Electoral Areas and Designation of Units) Instrument, LI1983 of 2010, laid in Parliament by the Minister responsible for Local Government and which came into force after 21 days from the day it was gazetted was made in contravention of Article 45(b) of the 1992 Constitution

In a related development, the Supreme Court will on Friday, October 19, 2012 determine the legality or otherwise of Constitutional Instrument (C.I. 78), which created 45 new constituencies in addition to the existing 230 constituencies.

A businessman, Mr Ransford France, on July 6, 2012 dragged the EC and the Attorney-General to the Supreme Court over its intention to create new constituencies.

The applicant, through his lawyer, Mr Godfred Yeboah Dame, is challenging the power of the EC to go ahead with the creation of new constituencies without indicating clearly the mechanism, formula or modalities by which it intended to undertake that exercise.

According to the applicant, due process was not followed in the demarcation of new constituencies and for that reason the court must declare the 45 constituencies, which came into force on October 3, 2012, a nullity.

Justices of the Supreme Court, namely Mr Justice William Atugubah, Professor Justice S. K. Date-Bah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Annin Yeboah, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo, are expected to settle the matter on Friday.

Despite numerous legal suits against the Electoral Commission (EC) and the Attorney-General which are disputing the creation of the new constituencies, Parliament passed CI 78 into law on October 3, 2012, thereby paving the way for the newly created constituencies to have representatives in Parliament in 2013.

Mr France had during the legal vacation prayed the court to restrain Parliament from considering CI 78 before the final determination of the suit, but the court on September 19, 2012 declined on grounds that Parliament was an independent body with its own privileges.

Source: Daily Graphic

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