2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
A Ghanaian citizen challenged the Electoral Commission’s creation of new parliamentary constituencies, initially seeking declarations and injunctions to compel publication of regulations under Articles 51 and 296(c), and later to invalidate the Representation of the People (Parliamentary Constituencies) Instrument, 2012 (C.I. 78). The Electoral Commission argued that any boundary-related complaint belonged before the Article 48 tribunal, citing Richard Odum Bortier; the Supreme Court distinguished Bortier, holding that a challenge to the validity of an enactment invokes Article 2(1) and its original jurisdiction. On the merits, the Court, per Dr. Date-Bah JSC, adopted a purposive, “living Constitution” approach and followed Captan to limit Article 296(c)’s regulation obligation to quasi-judicial exercises of discretion. It rejected a literal reading that would cause governmental “meltdown,” found no breach of Article 296(a) or (b), and upheld C.I. 78. Acting Chief Justice Atuguba concurred, emphasizing context, the Interpretation Act’s guidance, and Article 1(1)’s welfare principle. The suit was dismissed.
J U D G M E N T
DR. DATE-BAH JSC:
On 6th July 2012, the plaintiff, a citizen of Ghana, issued a writ to invoke the original jurisdiction of this Court indorsed with the following reliefs:
“A declaration that upon a true and proper interpretation of Articles 23, 51 and 296 (c), the 1st defendant in the exercise of its functions and discretionary power in creating new constituencies, is required to make by Constitutional Instrument, regulations not inconsistent with the Constitution or any other law to govern the exercise of its discretionary power;
An order directed at the 1st Defendant compelling the 1st Defendant to, as required by Articles 51 and 296 (c) of the 1992 Constitution, make by Constitutional Instrument not inconsistent with the Constitution or any other law, regulations to govern the exercise of its discretionary power to create new constituencies including in particular, the specification of the formula and mechanism to be used in the creation of new constituencies;
A declaration that failure by the 1st Respondent as required by Article 51 and 296 (c) of the 1992 Constitution to make the Constitutional Instrument referred to in (i) above is a breach of the fundamental human right to vote of all citizens of Ghana qualified to vote;
An order of perpetual injunction restraining the 1st Defendant from laying before Parliament any Constitutional Instrument creating new constituencies and or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 [C.I. 46], until and unless the 1st Defendant has laid before Parliament a Constitutional Instrument which sets out clearly, regulates and governs the manner in which the 1st Defendant intends to exercise its discretionary powers in creating new constituencies including particularly, the specification of the formula and mechanism to be used in the creation of new constituencies, and that Constitutional Instrument has come into force;
An order of perpetual injunction restraining the 1st Defendant from laying before Parliament any Constitutional Instrument creating new constituencies and or revoking the Representation of the People (Parliamentary Constituencies) Instrument, 2004 [C.I. 46] until the hearing and final determination of this matter.
Any other order or orders as this Honourable Court may seem meet.”
On the 3rd October, 2012, the plaintiff filed a motion for leave to amend the writ of summons by adding the following further reliefs:
“a declaration th