NEW PATRIOTIC PARTY v. RAWLINGS and ANOTHER
May 3, 1994
SUPREME COURT
GHANA
CORAM
- ABBAN
- AMUA-SEKYI
- AIKINS
- BAMFORD-ADDO
- AMPIAH JJSC
Areas of Law
- Constitutional Law
- Administrative Law
- Civil Procedure
May 3, 1994
SUPREME COURT
GHANA
CORAM
AI Generated Summary
After the Supreme Courts ruling in New Patriotic Party v Electoral Commission, President Jerry John Rawlings appointed district secretaries under section 21(1) of PNDCL 207. The plaintiff challenged these appointments as inconsistent with articles 242, 243, 246 and 247 of the 1992 Constitution, seeking declaratory and injunctive relief. The court examined the Constitutions transitional scheme, finding section 23(1) a specific, unqualified saving that allowed existing laws regulating district assemblies to continue until Parliament enacted new legislation. Consequently, PNDCL 207 remained operative until the Local Government Act, 1993 (Act 462) and the President lawfully exercised appointment power on 17 September 1993, aided by provisions construing PNDC references as references to the President and the Interpretation Act. On amenability, all judges agreed official acts of the President may be challenged under article 2; several judges emphasized that the Attorney-General is the proper defendant, while others considered the President directly amenable. The action was dismissed.
JUDGMENT OF AMUA-SEKYI JSC.
On 16 September 1993 this court unanimously decided in New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC, ante, that elections which were then due to be held by the Electoral Commission set up under article 43 of the Constitution, 1992 for the purpose of approving nominations purported to have been made by President Rawlings, the first-named defendant, under article 243(1) to the office of district chief executive, would violate the Constitution, 1992 as the district assemblies established under the provisions of section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no power to give such approval. The next day, it was announced that the first-named defendant had appointed those same persons as district secretaries under section 21(1) of PNDCL 207. The plaintiff says that this was unlawful and it has filed this writ to challenge his right to do so. The Attorney-General is named as the second defendant.
As formulated in its writ and statement of case, the complaint of the plaintiff is that the appointments are inconsistent with, and a contravention of articles 242, 243, 246 and 247 of the Constitution, 1992. It asks for a declaration to that effect, an order setting aside the appointments which were made and an injunction restraining the first-named defendant from making other such appointments in the future. If the plaintiff is right, then there is a hiatus in the law for whereas, by our decision, the first-named defendant could not lawfully appoint district chief executives, he could not also appoint district secretaries.
Article 242 of the Constitution, 1992 deals with the composition of district assemblies, article 243, with the office of district chief executive; article 246, with the term of office of members of district assemblies; and article 247 gives Parliament power to make laws on the qualifications for membership and the procedures of district assemblies. Article 247 does not seem to be relevant to the matter before us. As at the time the appointments were made, indeed when the writ was filed, Parliament had not exercised the power conferred on it, there were no laws made pursuant to the article which could have been contravened. Articles 242, 243 and 246 of the Constitution, 1992 formed the basis of the opinions we delivered in the earlier case and which resulted in the order of injunction restraining the Electoral Commission, I stated (supra) at 136:
[p.199]
"The defendant-commissi