2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, in a unanimous opinion authored by Dr. S. K. Date-Bah, addressed a constitutional challenge to the Minister responsible for Local Government’s purported creation of electoral areas through a series of Local Government Establishment Instruments. The plaintiff invoked the Court’s original jurisdiction, arguing that Article 45(b) vests the power to demarcate electoral boundaries exclusively in the Electoral Commission. The Court examined sample language from L.I. 1843 (Ketu North District Assembly) stating that the assembly area shall be divided into specified electoral areas, and noted the first defendant’s concession that the Minister lacks authority to create electoral areas. Rejecting arguments that section 3(2)(e) of Act 462 permitted inclusion of electoral areas as ancillary, the Court held any instrument language implying ministerial establishment of electoral areas is unconstitutional and void. The Court tailored injunctive relief so that elections may proceed where based on valid Electoral Commission enactments.
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