2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This case concerns a challenge to the authority of the Minister responsible for Local Government to create electoral areas in Ghana. The plaintiff argued that various legislative instruments created by the Minister contravened Article 45(b) of the 1992 Constitution, which grants the Electoral Commission the power to demarcate electoral boundaries. The Supreme Court held that the Minister does not have the authority to create or establish electoral areas, and any language in the legislative instruments suggesting such authority is void to the extent of its inconsistency with the Constitution. The Court declared the relevant parts of the legislative instruments null and void, and granted an injunction restraining the Electoral Commission from conducting elections based on these areas, unless they coincide with areas lawfully designated by the Commission. The case affirms the Electoral Commission's exclusive constitutional authority to create electoral areas and emphasizes the principle that legislative language conflicting with constitutional provisions is void to the extent of the inconsistency.
DR. DATE-BAH JSC:
This is the unanimous judgment of the Court. In this case, the plaintiff challenges the authority of the Minister responsible for Local Government to create electoral areas in districts, municipalities and metropolises, which, according to the plaintiff, he has purported to do under what he has construed to be enabling power under the Local Government Act 1993 (Act 462). The plaintiff has therefore brought this action invoking the original jurisdiction of the Supreme Court, seeking a declaration that various legislative instruments specified in a Schedule attached to his Writ were made in contravention of Article 45(b) of the 1992 Constitution. Article 45 of the Constitution reads as follows:
“The Electoral Commission shall have the following functions -
(a) to compile the register of voters and revise it at such periods as may be determined by law;
(b) to demarcate the electoral boundaries for both national and local government elections;
(c) to conduct and supervise all public elections and referenda;
(d) to educate the people on the electoral process and its purpose;
(e) to undertake programmes for the expansion of the registration of voters; and
(f) to perform such other functions as may be prescribed by law”.
The first defendant, which, from the above provision, is to be interpreted to have the exclusive constitutional authority to create electoral areas, admits that the Minister has no authority to create electoral areas. It, however, argues that the Minister responsible for Local Government did not, in fact and in law, establish or create electoral areas as contended by the Plaintiff.
The fact is, however, as illustrated by LI 1843, the Local Government (Ketu North District Assembly) (Establishment) Instrument, 2007 (which is appended, by way of a sample, as an exhibit to the plaintiff’s Statement of Case), the Legislative Instruments do contain a subsection 2(4) in the following terms:
“For the purpose of election to the Assembly the area of authority of the Assembly shall be divided into the electoral areas specified in the First Schedule to this Instrument.”
The issue is whether this provision (and similar provisions in the other Legislative Instruments listed in the plaintiff’s schedule) can reasonably be interpreted as amounting to the creation of electoral areas by the Minister. The first defendant’s contention is that by the Representation of the People (Parliamentary Constituencies) Instrument, 2004 (C.I.46), th