No New Constituencies for Elections?

Though the controversial, corrected Constitutional Instrument (C.I. 73) for the creation of 45 new constituencies laid before Parliament will satisfy the constitutionally-mandated 21 sitting days in September and become law, there is uncertainty surrounding the existence of the constituencies for the December elections as a result of pending court cases and inadequate time.

The first uncertainty arises from the legal implications and effects of pending judgments of cases before the Supreme Court and the High Court on the fate of the proposed creation of 45 constituencies by the Electoral Commission (EC) and the creation of 45 Municipal and District Assemblies (MDAs) by the government.

If by their decisions the Supreme Court and/or High Court nullify the creation of the constituencies and MDAs, then the 45 additional constituencies will not be available for the forthcoming presidential and parliamentary elections, contend legal experts. The nullification of C.I. 73, and by extension the 45 constituencies, by the courts will affect the legality and operations of the MDAs since every district must have a constituency. Similarly, if the courts illegalise the newly-created MDAs, going by the legal requirement that every district must have a constituency, then it implies that the new constituencies cannot exist.

The court cases likely to affect the creation of the constituencies and the MDAs include a writ filed by Messrs Richard Odum Bortier and Daniel Quaye at the Fast Track High Court in Accra on May 28 restraining the EC from creating the new constituencies. The High Court, however, stroke out a contempt case against seven commissioners of the EC on Thursday. In an affidavit to supporting the contempt motion, the applicants stated that "the respondents were aware of the other reliefs seeking an order to restrain the Electoral Commission which acts through them, from creating new constituencies except upon publishing a Constitutional Instrument setting forth clearly the bases, process and methodology by which it does its work.

"Yet the commission acting through the respondents had proceeded to create the new constituencies with abandoned nonchalance which conduct is aimed at prejudicing and interfering with the administration of justice."

Also, four opposition New Patriotic Party (NPP) lawyers, namely Nii Ayikoi Otoo, Captain Nkrabiah Effah-Dartey(rtd), Frank Davies and Samuel Atta Akyea, in separate suits, have dragged the EC to the Supreme Court over the creation of the 45 constituencies and the 45 newly inaugurated districts.

The controversy over the creation of the new constituencies and MDAs is even murkier as a group calling itself Concerned Citizens of Ghana (CCG) led by Mr Frank Davies, a former Greater Accra Regional Bar Association President and an NPP constituency executive in the region, took the EC and the government to the High Court over the creation of the MDAs and constituencies. The CCG claimed in a writ of summons that the government failed to address the associated problems of equity and fairness, by ensuring equal representation in the re-alignment exercise. It claimed the creation of the new districts was in contravention of the provisions of the Local Government Act, 1993 (Act 462), describing the creation of several of the new districts and municipalities as illegal. The plaintiffs are seeking an order declaring the MMDAs and constituencies null and void.

Prior to this case, Nii Ayikoi Otoo, an ex-Attorney- General and Minister of Justice under the Kufuor administration, also filed a case at the High Court on behalf of the a group who want the newly created MMDAs and constituencies declared null and void. Ayikoi Otoo also sued the EC over the creation of 45 new constituencies. He said: "Under our Constitution - Article 47 (3) provides that the boundaries of each constituency must be such that the number of inhabitants in a constituency is as nearly as possible equal to the population quota. It is our view that this population quota is not being adequately addressed."

He noted: "If you look at the Constitutional provision, it enjoins the Electoral Commission to by Constitutional Instrument make regulations for effective performance of its functions, yet the EC has never published any Constitutional Instrument by which they over the years have been reviewing and creating constituencies in Ghana."

Majority Leader Cletus Avoka laid the C.I.73 before Parliament on Wednesday after he withdrew the error-ridden first instrument one which was laid before the House on July 17 and was due to come into force by the end of Wednesday. The corrected C.I. 73 needs 21 parliamentary sittings to take effect. Mr Avoka, therefore, before laying the C.I., informed the House that the Majority and Minority leadership, in conjunction with the Parliamentary Speaker, would find an appropriate date for Parliament to reconvene after it goes on recess on Thursday.

He explicated that although the EC had wanted to correct the C.I, it was impossible for it to do so as a result of some constitutional and Supreme Court rulings. "Confronted with this challenge, the only option opened to it was for the EC to withdraw the original C.I 73 and substitute it with the corrected version."

Mr Avoka said some mistakes detected in the new version of the C.I 73 had already been corrected to avoid the repetition of the situation in which the House found itself now. He said he asked the permission of the Speaker of the House, Mrs Joyce Bamford-Addo to recall Parliament, due to go on recess, to allow for the 21 days for the legislation to mature

On Tuesday, the Majority and Minority in Parliament and the EC agreed to withdraw the first C.I. 73 for rectification after exchanging heated differing arguments on the relevance and effects of the CI, and on the procedures and processes involved in husbanding and transforming it into a statute. The parliamentary leadership withdrew the C.I. because of what some Members of Parliament (MPs) described as "errors," "omissions" and "corrections."

Serious disagreements greeted the deliberation of CI 73 when it introduced to the House. MPs mainly from the governing NDC and the opposition NPP met to consider arguments for and against the withdrawal of the C.I. That was after the Committee on Subsidiary Legislation of Parliament found fault with several aspects of the ill-fated C.I. Many grammatical and typographical errors occurred, factual mistakes such as the misplacement of some electoral areas in certain constituencies irked the members of the committee to approve and recommend the rejection of the CI.

The second uncertainty with the coming into existence has to do with the inadequate time for the new constituencies to partake in the exhibition of the biometric voters register by the EC which takes on September 1-10. Political watchers ask: what happens to the new constituencies which are to come into being after that period?

Meanwhile, the General Secretary of the NPP, Mr Kwadwo Owusu Afriyie, has accused the EC Chairman Dr Kwadwo Afari Gyan of yielding to the governing National Democratic Congress's (NDC) manipulation to take advantage of the new constituencies which is tantamount to gerrymandering. According to Mr Owusu Afriyie, the several decisions by the EC including creation of 45 new constituencies gives backing to the NPP's claim.

Despite the uncertainty hanging on the creation of the constituencies, some parties are vetting parliamentary candidates for the proposed constituencies, while others are adopting a wait-and-see approach. The NDC has already started interviewing person to represent the yet-to-be created constituencies. The NPP says it awaiting the court decisions on the creation of the constituencies whilst the Convention People's Party calls for annulment of the creation of the new constituencies.

According to a report by The Ghanaian Times, the Subsidiary Legislation Committee considered petitions from some Ghanaians and civil society groups such as the Ghana Centre for Democratic Development (CDD-Ghana), a policy and governance think tank, gave about four reasons why the creation of the new constituencies must be stopped.

CDD observed that the EC appears to have misinterpreted the law that grants them power to review constituencies to mean increase in the number. For them, review means altering boundaries of constituencies and not necessarily to increase the number. Another reason put forth by CDD was that a subtle perception exists that the EC was favouring the NDC in creating the new constituencies. CDD also said MPs are currently without logistics and research assistances, noting that adding more will only worsen the situation. The CDD maintained that the existing ones must be maintained and well resourced instead. 

Credit: Public Agenda

Agyapong Arrest Seen as Pursuit of 'Political Vendetta'

Outspoken ruling National Democratic Congress (NDC) activist David Annan has confirmed the suspicion of many that the arrest of Kennedy Ohene Agyapong and his continued detention beyond the legally mandated forty-eight (48) hours has more to do with the pursuit of political vendetta than the rule of law. The Police CID requested the Member of Parliament (MP) for Assin North, Kennedy Ohene Agyapong, last Saturday 14th April 2012 to report to its head office in Accra the following Monday 16th April 2012 at 9 am. The invitation was in connection with inflammatory remarks the MP allegedly made on Oman FM radio station the previous day. When he reported as requested, he was kept in detention and only put before a court of competent jurisdiction seventy-five (75) hours later contrary to the constitutional injunction that no suspect can be kept in police detention beyond forty-eight (48) hours.

Speaking on Okay FM, an Accra-based radio station, on Thursday April 19, 2012 morning, David Annan, who described himself as a member of the NDC legal team, arrogated unto himself the role of a spokesman for the Attorney General's Department, explaining the actions of the prosecution, including the rationale for the choice of the court of trial in Wednesday's (April 18, 2012) botched attempt to initiate court proceedings in the matter in which the beleaguered Member of Parliament for Assin North, Kennedy Ohene Agyapong, is accused of treason felony, among others.

David Annan, who officially is not an employee of the Police CID and holds no official position in the government, said: "contrary to the position of the defence lawyers, the charge we (Mr Annan and his team) have proffered against the Assin North MP are sustainable."

He explained that the defence team is looking at only one section of the Constitution - article 3, which states in subsection (a) that, "Any person who by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this constitution or any part of it, or attempts to do any such act; or (b) aids and abets in any manner any person referred to in paragraph (a) of this clause, commits the offence of high treason and shall, upon conviction, be sentenced to suffer death." But, they (the prosecution team) are looking at other article including article 17, which talks of levying war against Ghana or assisting any state or person or inciting or conspiring with any person to levy war against Ghana..." He therefore invited the defence team to revise their notes.

On the botched attempt to commence trial, Mr Annan argued that the Adjabeng Magistrate court erred in declining jurisdiction over the matter. He said the stipulated procedures permit such trial to begin at the level of the Magistrate court. The sitting magistrate however cited a circular from the Chief Justice's outfit which directed that all first degree felony cases such as murder, treason, rape, drug offences, etc. should be referred to the Chief Justice, who will appoint or empanel judges to sit on the cases. Mr Annan was not the least enthused about the said circular, vowing that they, the legal team, will challenge any attempt by the Chief Justice to empanel judges to adjudicate the matter of the Republic vrs. Ohene Agyapong. In a veiled threat, he cautioned that if that happens... "asem be ba d'abi", meaning trouble will break out.

Referring to a previous incident in which he was reported to the General Legal Council for allegedly impugning the integrity of judges, he urged the Chief Justice to act transparently and above board to dispel any suspicion of bias. He said even though the problem between him and the General Legal Council has been resolved, he was still wary of possible manipulation of the legal process to the disadvantage of the NDC.

Asked whether in his view, the charges against Mr Agyapong would be dropped if he were to apologise for his supposed offensive comments, Mr Annan answered in the negative, arguing that if an apology from Mr Alfred Agbesi Woyome will not lead to an abatement of the proceedings against him, then he sees no reason why an apology from Mr Agyapong should have that effect. Using Woyome's treatment as the standard for measuring Police professionalism, Mr Annan sought to justify the detention of Mr Agyapong beyond the legally mandated forty-eight (48) hours on the grounds that similar treatment was meted out to Mr Woyome.

Meanwhile, Mr Agyapong's defence team has complained about the prosecution's handling of the legal processes relative to their client. A member of the team, Mr Andy Appiah Kubi told the media in Accra on Thursday April 19, 2012 that information on the court where their client was to be arraigned and the time were deliberately withheld from them, in an apparent move to deny their client the right to legal representation in court. The allegation, married with Mr Annan's submission on Okay FM's morning show, buttresses the point about an apparent NDC orchestrated political vendetta against Mr Agyapong.

Information at press time suggests that the tensions that have mounted over the past few days across the country, following the arrest and detention of Kennedy Agyapong, have been momentarily defused by the release of the suspect  on 19th April 2012.

Credit: Public Agenda newspaper (editorial for 20-04-2012)