This is not the first time under the 4th republic, that a people have been denied representation at the commencement of a new parliament. In 2008, the people of Akwatia were denied such a representation, and this is how; A Koforidua High Court in December 2008 issued an interlocutory injunction restring the Electoral Commission from rerunning in 6 polling stations in the Akwatia constituency following the snatching of ballot boxes and adjourned the matter to 19 January 2009 for trial. The application was brought by National Democratic Congress parliamentary candidate for the constituency, Baba Jamal, and two independent candidates. They insisted a rerun of the entire constituency as against EC’s decision to rerun only the 6 polling stations.
That decision meant that the people of Akwatia constituency were without representation from day one of the 5th Parliament. It was not until July 2009 that the Supreme Court ordered the Electoral Commission (EC) to re-run elections in six polling stations in the Akwatia Constituency of the Eastern Region.
In 2020, we have witnessed challenges of Parliamentary results and eligibility of parliamentary candidate. A high court decision stresses the need for representation from day one. In the other it denies representation. Perhaps a decision from the Court of Appeal, the final court of appeal in a parliamentary election petition may solidify a precedent.
The other matter-the more contentious one which demands attention is the case of the people of Santrokofi, Akpafu, Likpe, and Lolobi popularly known now as SALL.
Constitutional instrument (C.I.) 95 placed the people of SALL under the Hohoe constituency. The SC in a ruling on C.I 95 declared the C.I as unconstitutional but not void because there are sitting members of parliament who were elected and were serving on the basis of the constituencies in C. I95. The SC ordered the EC to amend it to bring it in conformity with C.I 112., meaning to place the people of SALL in the Oti Region. C.I 112 is the instrument that created the Oti Region.
Don’t get confused yet. Under C.I 95, the people of SALL voted in the parliamentary election in Hohoe. However, the constitution requires that no constituency must straddle between two regions. Since the people of SALL are now under Oti region, it stands to reason that, they no longer can vote in Hohoe which is in the Volta region.
SALL is no more in Volta Region, and so they can’t vote in Hohoe. Now for purposes of 2020 elections, the EC is required by law to lay an instrument to guide it. So, the Representation of People (Parliamentary Constituencies) Instrument 2020 (C.I. 128) was created. Since the people of SALL are now in the Oti Region, EC placed them under Buem in the Oti Region.
This is where it gets interesting. Article 47 (6) of the constitution, 1992 provides that; “Where the boundaries of a constituency established under this article are altered as a result of a review, the alteration shall come into effect upon the next dissolution of Parliament”.
This means the changes that have occurred, I.e SALL falling under Buem Constituency cannot take effect until dissolution of the 7th Parliament. This means, they cannot vote in the Beum constituency by law until the next elections.
And this explains why the EC issued that notice to the people of SALL not to take part in parliamentary election. But was it the best legal remedy?
The EC intends to create a new constituency for the people of SALL, to be called Guan constituency. Even if this was created during the elections or after the elections but before 5th December, it could not have materialized until the next elections because of article 47 (6). Which means, they cannot be represented at the start of the 8th parliament.
So you ask, what could have been the best way forward because SALL from the explanation legally cannot vote at Hohoe due to C.I 112 and the effect of the decision by SC as stated above and SALL cannot vote also at Buem due to article 47 (6).
Perhaps the best legal remedy was for the people to have challenged the constitutionality of C.I 128 early. And I think this is what the venerable Tsatsu Tsikata tried to do in the Certiorari application by Attorney general against the decision by the Ho High Court. The SC declined the invitation and rightly so on grounds that it was not a matter before them.
Written by Sammy Darko; Lawyer, Journalist & Lecturer
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