The Guan Parliamentary Election Crisis: Exploring ‘The Lesser of Two Evils’
1.Introduction
On the eve of the 7 December 2020 general elections, the Electoral Commission (‘EC’) issued a press statement in which it directed that registered voters in the newly created Guan District of the Oti Region ‘will only vote in the Presidential Election but not in the Parliamentary Election’.[1] The general election has since been completed, albeit with some threats of legal action by the two major parties over alleged irregularities. As things currently stand, both the NPP and the NDC won 137 seats out of the 275-member Parliament.
The NPP MP for Fomena, who contested as an independent candidate for the 8th Parliament, won the remaining one seat. With the 7 January 2021 date for inauguration of the 8th Parliament approaching and no plans for voters in Guan District to elect an MP before that date, there is a continuing violation of the Constitution as well as the right of voters in Guan to have representation in the 8th Parliament from day one.
In this essay, I discuss the constitutional implications of the Guan parliamentary election situation and the possible legal options by which it may be remedied. In particular, I consider whether there is a way by which it may be constitutionally possible to ensure that Guan District is made or added to a constituency in Oti Region for them to elect an MP before the critical date of 7 January 2021. Let me however begin with a brief account of the circumstances that led us to the present crisis.
2.New Region, New Troubles: Origin of the Guan Parliamentary Election Crisis
When President Akufo-Addo assumed power in 2017, he immediately set processes in motion to fulfil his campaign promise of creating new regions for parts of the country that had, for a long time, called for their areas to be demarcated as new regions. Those processes—the appointment of a minister for Regional Re-Organization; the establishment of the Justice Brobbey Commission to determine whether there was a substantial demand for the creation of new regions; and the referendum on new regions—led to the creation of six regions. One of those regions was the Oti Region which was carved out of the Volta Region. The Oti Region Instrument 2019 (CI 112) by which the President completed the creation of the Oti Region placed Santrokofi, Akpafu, Likpe and Lolobi traditional areas (‘SALL’) within the new Oti Region although the chiefs and people of those communities claim they did not support the petition for the new region or vote in the referendum.
Administratively, the SALL communities were now in Oti Region and were seemingly placed under Jasikan District for purposes of local government.[2] Yet, as far as parliamentary representation was concerned, they were still technically part of the Hohoe Constituency in Volta Region under the Representation of the People (Parliamentary Constituencies) Instrument 2016 (CI 95). In Dzatse v Ametefe,[3] decided in June 2020, the Supreme Court, under a reference from the Ho High Court, considered the question whether the inclusion of the SALL communities in the Oti Region was contrary to CI 95 and, by extension, Article 47(2) of the 1992 Constitution which provides that boundaries of a constituency should not straddle regions.
The plaintiffs argued that the President’s inclusion of the SALL communities in Oti Region was unconstitutional since it had the effect of placing the Hohoe Constituency (including SALL) across two regions. In other words, since CI 95 which puts the SALL communities under Hohoe Constituency pre-dated the creation of Oti Region, the President should have had regard to CI 95 by not including SALL in Oti Region contrary to Article 47(2). The Supreme Court disagreed, holding that the President’s power to create new regions is limited only by the prerequisites stated in Article 5 of the Constitution.
Consequently, neither Article 47(2) nor CI 95 was a limitation on the President’s power to create the Oti Region. Instead, the Court held that with the creation of the Oti Region and inclusion of the SALL communities in it, relevant provisions of CI 95 which delimited the SALL communities as part of Hohoe Constituency had rather become unconstitutional. The net effect of the Court’s decision was that ‘whenever regional boundaries are changed in a manner that affects existing constituencies, the constituency boundaries have to be amended to align with the new regional boundaries.’[4] The Court therefore ordered the EC to amend CI 95 to reflect the new regional boundary between the Volta and Oti Regions created by CI 112.
Following the Supreme Court decision, the EC, in July 2020, made the Representation of the People (Parliamentary Constituencies) Instrument 2020 (CI. 128) by which it revoked CI. 95 and placed the SALL communities under Buem Constituency in Oti Region. (Note that Buem Constituency covers Jasikan District under which the SALL communities had been placed for purposes of local government.) However, Government decided in October 2020 (after the EC had realigned the Hohoe Constituency boundaries via CI 128), to split the SALL communities from Jasikan District.
The Minister of Local Government laid the Guan District Local Government (Guan District Assembly) Instrument 2020 in Parliament to make the SALL communities a separate ‘Guan District’. The Guan District Assembly Instrument came into force on 9 November 2020. The EC, then decided that it would create a Guan Constituency for the SALL communities based on their current District Assembly boundaries to prevent a situation where the MP for Buem would have to represent both the people of Jasikan District and the newly created Guan District. The EC however failed to lay a constitutional instrument in Parliament for that purpose before Parliament went on recess for the general elections. It is this chain of events that prevented voters of the Guan District (SALL) from voting in the parliamentary elections on 7 December 2020.
3.Implications of the Guan Parliamentary Election Crisis
Every Ghanaian who is at least 18 years and is of a sound mind is entitled to be registered and allowed to vote in all public elections.[5] The fact that voters in Guan District have not been able to vote in the parliamentary elections is a continuing violation of their constitutional right to vote and of their right to be represented in the 8th Parliament from day one. The Constitution requires that the first order of business when a new Parliament first meets is to elect the Speaker.[6]While the Speaker is duly elected by a simple majority of members of Parliament, it takes three-quarters majority for his or her removal. As it stands, if the voters in Guan District are unable to elect an MP before 7 January 2021, they will not have a say in that first important order of business—election of the Speaker. Since it requires three-quarters majority to remove a Speaker, even if Guan District is able to vote for an MP later in the life of the 8th Parliament, it would be a near-impossible task to remove the incumbent Speaker to allow the MP representing the people of Guan to participate in the election of a new Speaker. The Guan parliamentary election situation is therefore an important constitutional question that requires urgent resolution.
4.Solutions to the Guan Parliamentary Election Crisis: ‘The Greater Evil’
So far, the option the EC appears to be considering is to wait until the 8th Parliament is inaugurated (without a representation for the people of Guan); lay a constitutional instrument in the 8th Parliament to create its proposed Guan Constituency; and then organize an election for the people of Guan to elect an MP.[7] Some legal analysts have said that if the EC creates a new constituency during the life of the 8th Parliament, it can only be effective for the 2024 general elections to elect the 9th Parliament. They base that view on Article 47(5) and (6) of the Constitution and the dictum of Pwamang JSC in Dzatse v Ametefe on that provision.[8] Clauses (5) and (6) of Article 47 provide that:
(5) The Electoral Commission shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies.
(6) Where the boundaries of a constituency established under this article are altered as a result of a review, the alteration shall come into effect upon the next dissolution of Parliament.
In a Facebook post on 22 December 2020, I addressed how the Supreme Court is likely to decide if the creation of a Guan Constituency and/or the holding of an election there to elect an MP for the 8th Parliament is challenged. My view then, which I still stand by, is that the Court would likely hold that the ‘creation of a Guan constituency cannot be properly characterised as a “review” of constituencies within the meaning of Article 47 because (i) a review connotes creating or altering the boundaries of more than just a single constituency; and (ii) that, in any event, the conditions for a review namely, a seven-year interval since the last review or the publication of census results are not the factors that [would have] informed the creation of the Guan constituency.’
The special factors that would warrant a Guan Constituency under the 8th Parliament are the creation of the Oti Region and Guan District coupled with the failure of the EC to amend CI 128 to give Guan District their own constituency before the end of the 7th Parliament. Given that those special factors are different from the constitutional requirements for a review of constituencies under Article 47, I concluded in that Facebook post that the Supreme Court would likely say that ‘it is constitutional for the EC to organise an election for the people of Guan to elect a Member of Parliament to represent them in the 8th Parliament, although belated.’
Expressing his views on this matter in a Facebook post on 25 December 2020, Prof. H. Kwasi Prempeh comes to a similar conclusion. He states, and rightly so in my view, that the Guan parliamentary election situation ‘is not an Article 47(5) or 47(6) issue. In fact, no article 47 review has occurred at all. The people of [Guan] are uniquely without an MP going into the 8th Parliament. The situation of the people of [Guan District] is an extraordinary one brought about by a bizarre series of omissions by various state actors who ought to know better.’ He concludes that ‘[n]othing in article 47 or any other part of the Constitution says persons in the situation of the people of [Guan District] must wait until 2025—that is until after the dissolution of the next Parliament—for the constitutional violation visited upon them by the state to be cured.’
From the foregoing analysis, it seems that people of Guan District may not have to wait until 2025 to have representation in Parliament. While that is somewhat comforting, it still does not resolve the issue that voters in Guan will likely not have a say in who becomes the Speaker of the 8th Parliament. This is because Parliament would have to be inaugurated and a Speaker elected before the EC is able to lay an instrument in the House to amend CI 128 to create a Guan Constituency and organise a parliamentary election there. The prospect of this political injustice raises the question whether there is some other way(s) by which a parliamentary election can be lawfully held for voters in Guan to elect an MP before 7 January 2021. I address that question in the next and final section of this essay.
5.Solutions to the Guan Parliamentary Election Crisis: ‘The Lesser Evil’(a) and (b)
Given the irreparable injustice that will be done the people of Guan District if they are not represented at the first meeting of the 8th Parliament, the only appropriate remedy is to ensure that they can vote for an MP before 7 January 2021. For such a vote to be held, one of two things must occur. Either Guan District is retained within the Buem Constituency under CI 128 as it currently exists, or CI 128 is amended to create the EC’s proposed Guan Constituency.
(a)Retaining Guan District in Buem Constituency.
The option of retaining Guan District under Buem would disturb the gazetted parliamentary election results of the constituency warranting a possible re-run. But it is the least disruptive to our constitutional system as the discussions in this part will show. The only reason why that option is not being explored is the same reason the EC thinks that it must necessarily create a Guan Constituency. Article 242(b) of the Constitution provides that the membership of a District Assembly shall comprise ‘the member or members of Parliament for the constituencies that fall within the area of authority of the District Assembly as members without the right to vote’.
The EC has read this provision to mean that just as a constituency must not straddle regional boundaries, there should not be a constituency that falls within more than one district. Consequently, whenever the government has created new districts, the EC has felt compelled to create new constituencies or alter the boundaries of existing ones to ensure that no constituency falls within more than one district. The decision to create a Guan Constituency is born out of this reading of Article 242(b).
Yet, the Supreme Court has not endorsed this interpretation. And there appears to be no cogent reason why the Court should, if it gets the opportunity. First, unlike Article 47(2) there is no express language in Article 242(b) that prohibits the situation where a constituency might fall within more than one district. Second, an MP’s membership of a District Assembly is merely ex officio and without voting rights. There is therefore no reason why an MP should not be a member of more than one District Assembly for this nominal representation of different sections of his or her constituents. Third, given that the continued practice of creating or altering constituencies to align with new district assemblies can be exploited by a party in power for gerrymandering, there is every reason to discontinue it. If we can quickly get the Supreme Court to adopt this alternative interpretation of Article 242(b), and therefore overturn the EC’s practice of reviewing constituency boundaries to align with those of District Assemblies, then the SALL communities can be retained in Buem Constituency.
Such a decision from the Supreme Court will have a dual implication. It will mean that the EC’s directive on the eve of the general election that stopped voters in Guan District from voting in the parliamentary election was invalid. The second implication flowing from the first would be that the 2020 Buem parliamentary election was not validly conducted and must therefore be re-run for all voters in the constituency including those in Guan District to exercise their franchise. This should be a fair price to pay to ensure that the SALL communities are represented in the 8th Parliament from day one.
Rejecting this approach would leave us with the second alternative, that is, the difficult and perhaps counterproductive option of creating a Guan Constituency for the people of Guan to elect an MP before 7 January 2021.
(b)Creating a Guan Constituency before 7 January 2021
In the Dzatse case, the Supreme Court held that the inclusion of the SALL communities (now Guan District) in Oti Region rendered provisions of CI 95 that delimited the SALL communities as part of Hohoe Constituency inconsistent with Article 47(2). If we insist that, by analogy, constituency boundaries must align with those of district assemblies, then Buem Constituency currently covering both Jasikan District and the newly created Guan District is inconsistent with Article 242(b).
The necessary implication is that CI 128 would have to be amended to make Guan District a separate constituency to allow the election of their own MP. Under the Constitution, the process of amending CI 128 to create a Guan Constituency would involve laying a gazetted draft CI in Parliament for the constitutional maturation period of 21 sitting days.[9] But with the number of days left for the 7th Parliament to dissolve, going by that normal route of amending CI 128 is impossible.[10] In effect, amending CI 128 to create a Guan Constituency to pave way for a parliamentary election before 7 January 2021 is only possible if there is a way to do so without going through the Article 11(7) procedure.
Such a route may exist under a controversial and obscure power to rectify statutes that the Supreme Court claimed in Martin Kpebu v Attorney General (No. 3) (J1/22/2016) (18 December 2019). In Kpebu (No. 3), the plaintiff challenged the notorious practice where security agencies would arrest suspects and keep them in custody during weekends and public holidays without bringing them to Court within the constitutionally prescribed 48 hours. He argued that on a proper interpretation of Article 14(3) of the 1992 Constitution, Saturdays, Sundays, public holidays, anytime during a civil unrest and any other day that the courts cannot sit (such as during labour strikes) must be counted in reckoning the 48 hours within which a person arrested or detained and not released must be brought before a court. In a landmark decision, the Court agreed, holding that ‘[t]he language of Article 14(3) is clear and unambiguous and, in our view, “within 48 hours” means exactly that.’[11]
To enforce this reading of Article 14(3)(b), the Court examined the extent to which provisions of the Holidays Act 2001(Act 601), the Labour Act 2003 (Act 651) and the High Court (Civil Procedure) Rules 2004 (CI 47) that bar courts in Ghana from sitting on weekends and public holidays were consistent with the right of a detainee to be brought before a court within 48 hours. Regarding the Holidays Act, the Court held that to the extent that section 4 of the Act ‘has the tendency to bar, or effectively bars, the Courts from sitting on public holidays to determine issues of personal liberty’, it was unconstitutional. It similarly declared as unconstitutional section 42 of the Labour Act and Order 79, Rule 2(3) of CI 47 that bar courts from sitting on weekends.
Having made these determinations, the Court proceeded to make certain consequential orders and directions to give effect to its decision. It invoked ‘its power of rectification’ to insert into the impugned statutes provisions that the Court itself had drafted to make them ‘compliant with’ Article 14(3)(b). So, for example, in respect of the Holidays Act, the Court held: ‘In order to make section 4 of Act 601 compliant with Article 14(3) of the Constitution, this Court hereby exercises its power of rectification and exempts “court services” by the addition to the exemption list in subsection 3 after paragraph (k) the following:
(l) court services for the determination of issues concerning the personal liberty of any person.’
For the same reasons, the Court rectified section 35(3) of the Labour Act (Act 651) and Order 79 Rule 3(2) of C.I. 47 by adding new language that would allow courts to sit on holidays and weekends to determine issues concerning the personal liberty of any person.
Any constitutionalist who believes in separation of powers would agree that the Supreme Court’s power to review the constitutionality of statutes cannot be used as a tool to legislate from the bench. There may obviously be instances where the Court makes a declaration of unconstitutionality but striking down the impugned provision would not be sufficient to neatly bring the statute in conformity with the Constitution. But even in such cases, an order directing Parliament (or the maker of the subsidiary legislation as the case may be) to amend the statute to conform to the Court’s decision would be the most appropriate course. It is bizarre where, as in Kpebu (No.3), the Court goes beyond its judicial role to rectify (or amend) impugned statutes.
Admittedly, under Article 2(2) of the Constitution, the Supreme Court can make orders or give directions it considers appropriate for giving or enabling effect to be given to a declaration of unconstitutionality made under Article 2(1). Yet, in Kpebu (No.3), the Court did not state that the extraordinary power it claimed to rectify unconstitutional provisions of statutes was founded on Article 2(2). Rather, the court cited as its authority, Sasu v Amua-Sakyi [1987-88] GLRD 45, a case in which the Court inserted the words ‘with leave of the Court of Appeal’ into section 3(2) of the Courts Act, 1971 (Act 372) to make it intelligible. The Sasu case which presented a question of statutory interpretation and was not decided during a constitutional era, let alone under the 1992 Constitution, can hardly be the source of constitutional authority for the court to rectify statutes. Despite the doubts about its constitutional foundation and scope, the Court has since affirmed its power of rectification in the subsequent case of Republic v High Court, Cape Coast, ex parte John Bondzie Sey (UEW, Interested Party) (J5/74/2019) (12 February 2020).
Undoubtedly, this doctrine of rectification of statutes is unsettling. But until it is reversed, it remains part of our constitutional law. Therefore, if we agree that it is a constitutional imperative for people of Guan to be represented in Parliament from day one, but we will not retain them under Buem Constituency for whatever reason, then this doctrine of rectification may be the only arrow left in our quiver. It would be the only practicable and sufficiently constitutional means by which we can ensure that voters in Guan are able to elect an MP before 7 January 2021 in order to avert what will be an irremediable injustice.
The Attorney General or the EC could ask the Supreme Court to declare as inconsistent with Article 242(b) the relevant provisions of CI 128 delimiting Guan District (SALL) as part of Buem Constituency which presently covers both Jasikan District and Guan District. As part of the consequential reliefs, the Court may be requested to rectify those provisions of CI 128 by severing the SALL communities (Guan District) from Buem Constituency and designate them as a separate constituency. If this is done in time, it could pave the way for the EC to organize a parliamentary election for voters in Guan before 7 January 2021. But given the time constraints, it may also be necessary for the Court to direct that the EC abridges the time limited for electoral processes such as the filing of nominations. This solution is far from ideal; there are lingering questions about its jurisprudential foundations. But given the current circumstances, it may be the only route to avert an irreparable political injustice that threatens Ghana’s Constitution and democracy if we decide not to go with the much ‘lesser evil’ of retaining Guan District in Buem Constituency.
Author’s Note: An earlier version of this essay incorrectly stated that the Electoral Commission failed to amend CI 95 following the Supreme Court decision in Dzatse v Ametefe. The EC in fact did revoke and replace CI 95 with CI 128 under which it moved the SALL Communities from Hohoe Constituency in the Volta Region to the Buem Constituency in Oti Region. The essay has been revised to take account of this fact.
Photocredit: BBC Africa
[1] Electoral Commission of Ghana, ‘Conduct of Presidential and Parliamentary Elections in the Buem Constituency’ (Press Release, 6 December 2020).
[2] Under Section 1 of the Local Governance Act 2016 (Act 936), it is the President who has the authority to declare any area in the country as a district. Thus, following the creation of the Oti Region, it was expected that the President would initiate the legal process to move the SALL Communities from Hohoe Municipality (which was their District) and either make them new district in Oti Region or add them to an existing district. Instead, it was the Electoral Commission which purported to place the SALL Communities under Jasikan District through the District Electoral Areas and Designation of Units Regulations, 2019, (CI 119). See Malik Sulemana, ‘EC dragged to court over placing Lolobi, Akpafu under Jasikan District’ (18 February 2020, Ghanaian Times) https://www.ghanaiantimes.com.gh/ec-dragged-to-court-over-placing-lolobi-akpafu-under-jasikan-district/
[3] (J6/01/2020) (24 June 2020).
[4] Dzatse v Ametefe (J6/01/2020) [2020] GHASC 45 (24 June 2020)
[5] 1992 Constitution, Article 42.
[6] 1992 Constitution, Article 95(3).
[7] See Ghana News Agency, ‘EC to initiate processes to create a new constituency in Guan’ https://www.myjoyonline.com/ec-to-initiate-process-to-create-new-constituency-in-guan/ (‘By law, if a new constituency is created they have to join the new parliament, and whether the people will have a representation or not in the 8th Parliament, it will be another huddle. As a Commission, we will do our part and leave the rest to the judicial process’.)
[8] In Dzatse, Justice Pwamang noted that ‘that any review of constituencies shall take effect upon the next dissolution of parliament.’
[9] 1992 Constitution, Article 11(7).
[10] Were it possible for Parliament to amend CI 95, it could probably do so under a certificate of urgency. But the Constitution does not permit Parliament to interfere in rule making functions that the Constitution itself has given various independent constitutional bodies such as the EC. Indeed, the Supreme Court has gone as far as to hold even when a subsidiary legislation has been laid before Parliament by a rule-maker under the Article 11(7) procedure, Parliament may not amend or make changes to rules or regulations so laid. Parliament’s power extends only to annulling the rule or regulation if it does not wish for it to come into operation. See Opremreh v Electoral Commission (J1/3/2011) (07 December 2011).
[11] Martin Kpebu v Attorney General (No. 3). J1/22/2016
Chris is a Lecturer at the Faculty of Law, Kwame Nkrumah University of Science and Technology in Kumasi, Ghana where he has taught Legal Writing, Public International Law and African Union Law.
Another great piece from Sir Chris Nyinevi. You are an unacknowledged constitutional law authority. You have created another examination question for students of law at all levels. I am proud to have ever been your student. In the light of this deep discussion, the one who’s lack of foresight created this constitutional challenge, the EC Chairperson, must resign, immediately.
William AWUKU AHIADORMEY
An excellent piece, Chris!