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Opinions Tue, 4 Sep 2012

Parliament cannot act unconstitutionally – Lawyer

[Quotation Forming the heading of this article was taken from one of the General News of Monday, 3 September 2012 that bore same heading; Source: Joy Online].

“....Majority Leader Cletus Avoka said the court processes could not impeach Parliament’s powers as an independent constitutional body. He insisted that merely filing an application at the courts could not bar the House from performing its constitutional duties.” [This quotation was taken from the context of Ghanaweb General News of Monday, 3 September 2012 with above heading; Source: Joy Online].

By Otchere Darko

Having recently written on the subject of the need for the Electoral Commission to either stop or delay the creation of the forty-five new constituencies, which the commission wants to bring into effect before dissolution of the current Parliament to enable them, the 45 new constituencies, to be included as part of the overall contestable constituencies in the December elections, contrary to clause (6) of article 47 of the 1992 Constitution, I would not have come back to write on the same topic again, had it not been the comment quoted above and made by the Majority Leader, Mr Cletus Avoka. The purpose of my write-up today is to challenge the claim by Mr Avoka that the court cannot “impeach Parliament’s power as an independent constitutional body”.

Before challenging the Honourable Member of Parliament’s claim, I want first to tell readers that I am not Gabby, and also that I am not a member of the NPP; neither am I an NPP sympathiser. I am a politically independent Ghanaian; but that does not mean that I cannot condemn a decision or action of the Electoral Commission over the creation of the 45 new constituencies simply because NPP members are against the creation, or that I cannot criticise both the Electoral Commission and NDC for rushing to conduct elections for NDC members aspiring to stand for their party (NDC) in the forth coming December elections for constituencies that do not in law exist and, therefore, that do not currently have lawful constituents. Politically independent Ghanaians can criticise any party, as long as they believe that such party is doing something that calls for criticism. *It is this ability to be in a position to criticise any party that gives such Ghanaians their political independence status.

On the claim that a court, the Supreme Court in this case, cannot “impeach” or grant an injunction to stop Parliament from sitting or deliberating on an issue that is before, and waiting for court decision is grossly wrong, in my opinion. A court, in this case the Supreme Court of Ghana, through the granting of an injunction lawfully applied for by a Ghanaian with the right to file such an application, can stop Parliament from sitting and debating on an issue involving a case before the courts. This, of course, is one of the most important principles of democracy; and it is rooted specifically in the principle of “checks and balances”. If the courts could not stop or “impeach” Parliament from doing certain things, then Parliament, and for that matter the country, would be autocratic. We all know, however, that Ghana is a democratic country and therefore Ghana’s Parliament cannot claim to be sacrosanct.

Apart from the power of the courts to control Parliament through the democratic principle of “checks and balances”, clauses (1) and (2) of article 48 of the 1992 Constitution also grant power to the Chief Justice and the courts to exercise control over the executive decisions and actions of the Electoral Commission on matters concerning the review of the division of Ghana into constituencies. Through this power of the courts over the Electoral Commission, it is apparent that the courts can indirectly stop Parliament from doing what it, Parliament, would have otherwise considered as “its constitutional duties”, because, if the Supreme court were to grant an injunction duly filed by any Ghanaian relating to the constitutional instrument dealing with the creation of the 45 new constituencies, then the Electoral Commission would be obliged, in accordance with article 48 of the 1992 Constitution, to comply with the injunction and withdraw the constitutional instrument complained about until the court dealing with the case decide it. The courts’ power over the Electoral Commission with respect to the review of constituencies is, in fact, part of the same democratic principle of “checks and balances” mentioned above; but, in this instance, it is an example of the Judiciary’s exercise of controlling power over executive powers, though, in this case, such “checking and balancing” would indirectly affect Parliament in the same way as it would affect the Electoral Commission, which is part of the Executive.

The Electoral Commission, the Government, Parliament, NDC, NPP and all other Ghanaians and Ghanaian bodies with vested political interests on the issue of the creation of the 45 new constituencies must, therefore, handle this matter creation of 45 new constituencies with absolute care to insure that they do not through their decisions, actions and utterances precipitate trouble prior to the December elections and, thereby, create the kind of socio-political atmosphere that can mar the elections and make any results that will be declared by the EC challengeable.

Source: Otchere Darko

Columnist: Darko, Otchere