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Opinions Fri, 7 Sep 2012

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Creation of 45 New Constituencies: Matters Arising

By Professor Paul Kuruk

This article comments on recent developments surrounding the decision of the Electoral Commission (EC) to create 45 new constituencies, including criticisms of the timing of the decision and the lawsuit filed last week in the Supreme Court to restrain Parliament and /or the EC.

I. TIMING OF CREATION OF NEW CONSTITUENCIES

Some have questioned the timing of the creation of new constituencies by the EC and have ascribed sinister motives to the EC’s action. In this regard, however, it must be pointed out that the EC has followed to the letter the schedule mandated by the Constitution. In relevant part, Article 47(5) of the Constitution obligates the EC “to review the division of Ghana into constituencies ... within twelve months after the publication of the enumeration figures after the holding of a census of the population of Ghana” and authorises the EC to “alter the constituencies” based on such review. Given that the results of the 2010 population census were announced this year, the EC fully complied with and in a timely manner, the constitutional obligations to review the existing constituencies and to create new ones.

Significantly, Article 47(6) of the Constitution provides that “where the boundaries of a constituency ... are altered as a result of a review, the alteration shall come into effect upon the next dissolution of Parliament.” (Article 113(1)). Neither Article 47, nor any other provision in the Constitution for that matter, imposes a duty on political parties to take any action whatsoever after the creation of the new constituencies. However, it is obvious that persons interested in representing their constituencies in the next Parliament will find expedient to take the necessary steps to qualify and present themselves as candidates at the general elections that will precede the dissolution of the current Parliament.

In this context, political parties are free to sponsor candidates but they are not compelled to do so. If a political party on becoming aware of the creation of constituencies by the EC decides not to sponsor candidates for any or all of the newly created constituencies, that is its choice, and the decision will be respected. However, should it change its mind later on and decide to field candidates as the general elections approach, it cannot in good faith complain that it had become shortchanged because not much time was now left for it to select candidates. Under these circumstances, that political party would be considered to have had sufficient advanced information and the fact that it may not agree with the decision to create constituencies should not excuse it from acting in the meantime to promote its interests in the new constituencies. Were it to wait until the clock virtually run out, the political party would be barred under the equitable doctrine of estoppel from claiming there was insufficient time left before the elections for it to organize and compete in the new constituencies.

The role of Parliament in the process of creating constituencies is to pass a law that would give legal backing to the decision of the EC pursuant to Article 11(7). This requires that the relevant constitutional instrument (CI-78 in this case), mature in 21 days after it is laid before Parliament. The practical legal effect of the maturity of CI-78 is that the next general elections must be held on the basis of the revised boundaries of constituencies indicated in CI-78. In this context, maturity of CI-78 should not be regarded as an event without the happening of which political parties could not legally organize in the new constituencies. Nothing therefore prevents political parties from selecting their candidates for the new constituencies while awaiting the maturity of CI-78. Indeed, to omit to do so would amount to an intentional infliction of injury by a political party on itself - just like shooting oneself in the foot!

In assessing the reasonableness of the time available for political parties to select candidates for the general elections following the creation of new constituencies by the Electoral Commission, it should be kept in mind that the minimum notice period under the Constitution for the conduct of elections to select a member of Parliament is 30 (THIRTY) days as provided in Article 112(5) with respect to the conduct of by-elections. Because the decision of the Electoral Commission to create new constituencies was first announced on June 18, 2012, the political parties effectively had about 172 (ONE HUNDRED AND SEVENTY TWO) days notice to select and present candidates for the general elections scheduled for December 7, 2012. It is submitted that the notice period of nearly 6 months in this case to select candidates for the new constituencies exceeds by far the mandatory constitutional notice period for elections and cannot therefore be challenged as unreasonable as contended by others.

II. MOTION IN THE SUPREME COURT FOR AN INTERLOCUTORY INJUNCTION

It was reported in the Daily Graphic issue of September 4, 2012 that the Supreme Court had fixed the date of September 12, 2012 to hear the motion for an interlocutory injunction filed by Plaintiff Ransford France in relation to CI-78 (referred to as CI-73 at the time of the application). However, the general public should not read too much into the scheduling of a hearing date as it is routine to set such dates when motions are filed in court, even for motions that appear to be frivolous and vexatious as the current effort to restrain Parliament (if that is the intention of plaintiff’s lawyers). There are tough legal burdens to overcome in such cases and for the reasons explained below, Plaintiff France is not likely to succeed in his interlocutory injunction application.

The Daily Graphic news report on the request for an interlocutory injunction is a bit confusing as the first paragraph of the report refers to “an interlocutory injunction to restrain Parliament” whilst near the end of the report the writer notes that the “applicant is entreating the Supreme Court to restrain the EC.” Is the injunction being sought against the EC or Parliament or both?

If the injunction is sought against Parliament, it is not possible to do so because: (a) Parliamentary immunity exists under the Constitution; (b) the matter is not ripe for judicial review as Parliament has not yet acted; and (c) plaintiff cannot meet the requisite proof of likelihood of success on the merits as well as irreparable harm for an interlocutory injunction to issue. On the other hand, if the application is against the EC, the result will be the same because the plaintiff cannot point to a threat of harm posed by the EC that is imminent.

III. ADMISSIBILITY OF SUIT AGAINST PARLIAMENT

The Speaker of Parliament has an unfettered constitutional power to determine when Parliament can meet - a prerogative that cannot be interfered with even by the judiciary in the absence of proof that the Speaker had exceeded her constitutional authority in convening Parliament. The relevant constitutional provision is Article 112 of the Ghana Constitution which provides “A session of Parliament shall be held at such place within Ghana and shall commence at such time as the Speaker may, by constitutional instrument, appoint.” By a proper instrument, the Speaker recalled Members of Parliament to Parliament House in Accra in Ghana for a session of Parliament beginning September 3, 2012. On these facts, her action cannot be challenged as an unconstitutional exercise of her authority.

Plaintiff France’s effort to disrupt the parliamentary session through the motion for an interlocutory injunction before the Supreme Court would run afoul of various constitutional privileges and immunities granted to Parliament. Article 115 for example, guarantees “the freedom of ... proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.” Under a liberal interpretation of the provision, the convened session of Parliament would qualify as a proceeding and the purported request for a temporary injunction would therefore violate a fundamental parliamentary immunity guaranteed by the Constitution.

In similar vein, Article 116 prohibits the institution of “civil ... proceedings ... against a member of Parliament in any court or place out of Parliament for any matter or thing brought by him in or before Parliament by petition, bill or otherwise....” Because CI-78 is a matter that has been brought before Parliament by certain members of Parliament, naming such persons as defendants in the request for injunctive relief (a civil proceeding) would violate Article 116.

On account of these Parliamentary immunities, the Supreme Court will likely rule that it does not have jurisdiction to entertain an action that seeks to prevent Parliament from deliberating on CI-78, and accordingly, will dismiss Plaintiff’s motion to enjoin Parliament.

IV. JUDICIAL REVIEW OF ACTS OF PARLIAMENT

It should be noted that the concept of Parliamentary immunity does not mean that Parliament is above the law. Indeed the judicial power conferred on the Judiciary under the Constitution allows the Judiciary to review acts of Parliament except where Parliament has immunity as noted above. The doctrine of judicial review that underlies the system of checks and balances enshrined in the Constitution is founded on the principle that Parliament has the latitude to meet and act on constitutional matters assigned to it, and that the courts may only review such acts of Parliament after they had occurred. Thus, the Supreme Court will respect Parliament’s freedom to meet and deliberate on CI-78 as permitted by the Constitution and will not interfere in the proceedings of Parliament through an interlocutory order. However, when CI-78 matures and becomes law, the courts could entertain lawsuits after that date which challenge the law.

Plaintiff’s attempt to restrain Parliament by way of an interlocutory order from the Supreme Court is a premature manouevre to challenge CI-78. It will fail as the matter is not yet ripe for judicial review to the extent Parliament has not yet passed the law.

V. ADMISSIBILITY OF SUIT AGAINST ELECTORAL COMMISSIONER

If Plaintiff France is seeking an interlocutory injunction against the EC (which will not be entitled to constitutional immunity like Parliament), it should be noted that Article 48 of the Constitution sets out a special procedure to be followed involving the appointment by the Chief Justice of a three person tribunal to hear complaints regarding the “demarcation of a boundary’ by the EC and whose decision is subject to final review by the Court of Appeal. To the extent the decision of the EC to create 45 additional constituencies amounts to a demarcation of boundaries, Article 48 can be invoked by the plaintiff. However, it is unclear from plaintiff’s affidavit as summarised in the news report whether plaintiff has used or intends to use that special procedure.

If plaintiff does not plan to invoke Article 48, but instead seeks to restrain the EC from engaging in an act, it must be noted that injunctive relief is generally preventive in nature, and an injunction cannot be sought to undo what has already been done. Therefore, if the specific goal is to stop the EC from creating 45 new constituencies, seeking an injunction for this purpose does not make any sense as the decision has already been taken. The only legal act that could take place prior to the hearing on plaintiff’s main action in the Supreme Court in October is the enactment of CI-78 as law by Parliament, but that is a matter that does not directly implicate the EC. For this reason, a motion for a temporary injunctive relief against the EC will be dismissed as there is no imminent act by the EC that could possibly threaten the plaintiff pending the hearing on the main action.

VI. GROUNDS FOR INJUNCTIVE RELIEF

Among the factors courts take into consideration in ruling on applications for interlocutory injunctions are: (a) the likelihood of success on the merits; and (b) potential for irreparable harm in the absence of an injunction. The first factor would require Plaintiff France to present legal arguments showing why it is more likely than not that CI-78 would be found by the courts to be unconstitutional. Other than the emotional knee-jerk reaction of opponents of CI-78, there is so far no cogent legal reason given as to why CI-78 when eventually adopted as law could be found to be unconstitutional. Opponents of CI-78 do not have the law to support their arguments and being emotional is not the law. On the other hand, those who argue for the constitutionality of CI-78 can point to the mandatory and exclusive power of the EC to review and create constituencies within 12 months of a national census and which come into effect upon the next dissolution of Parliament. (Article 47 of the Constitution).

The second factor would require Plaintiff France to demonstrate irreparable harm to himself in the interim while his main action in the Supreme Court was pending. Here, plaintiff does not identify any harm he would suffer personally. Instead his lawyers talk of “chaos” if CI-78 is later found to be unconstitutional. Obviously, that reference does not respond directly to the second factor because the reference focuses on developments AFTER the ruling in the main action in the Supreme Court rather than what would happen in the interim. It is submitted that if CI-78 matured and became law during the pendency of his main action before the Supreme Court, there is nothing inherent in CI-78 that should precipitate any chaos in Ghana. The fact that some people do not like the law and may create confusion is an entirely different matter that could be handled by the law enforcement authorities. As noted above, the passage of CI-78 is not even a pre-condition to the selection of candidates in the general elections and accordingly, the political parties (mainly the NDC and some parliamentary candidates of the NPP as reported in the media) have begun to make the necessary adjustments to their campaigns in a peaceful manner devoid of “chaos,” rancor and bitterness.

Because plaintiff will not be able to sustain the burden of proof on these critical matters, his application for an interlocutory injunction before the Supreme Court will likely be summarily dismissed.

Professor Paul Kuruk Cumberland School of Law of Samford University, Birmingham, Alabama; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV), Accra.

Columnist: Kuruk, Paul

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