The Anti-Delegate System (Ads) Lawsuit: On Wobbly Legal Legs (Part II)

Three eminent members of their parties, Prof. Frimpong-Boateng, Dr. Nyaho-Tamakloe and Dr. Amoako-Nuamah have filed suit number J1/05/2026 with the Supreme Court. They want the court to declare the delegate systems of their parties unconstitutional. Their suit seeks refuge in the following articles of the Constitution: 1, 17, 35(5), 35(6)(d), 42 and 55(5). The defendants are the NDC, NPP, CPP, the EC and the Attorney-General (A-G).

I will discuss the legal merits of the suit below. Full disclosure: I am not a lawyer; I base my reasoning on what is called ‘common sense.’

Article 1: This article says that sovereignty rests with the people of Ghana and that the Constitution is the supreme law of Ghana. It is difficult to fathom why this article should be roped in to defend an anti-delegate system suit. This may be the legal equivalent of throwing stuff at a wall in the hope that some will stick.

Article 17: This article guarantees Ghanaians equality and freedom from discrimination based on gender, race, colour, ethnic origin, religion, creed, social and economic status.  Article 17(3) defines discrimination as disparate treatment based on these attributes. By what stretch of the imagination can we say that the party delegate system discriminates on these bases?

Delegates usually encompass all genders, ethnic groups, religions, etc. The plaintiffs will need to prove that the delegate system of political parties discriminates on the bases enumerated in Article 17. Proving discrimination under Article 17 will be a Herculean task, to say the least. It is doubtful that the suit will find succour in this article.

Article 35(5): This article is similar to 17. It directs the state to promote integration and prohibit discrimination. How is a delegate system discriminatory? Who has been discriminated against? After all these years, why hasn’t the victim stepped forward to demand relief? Article 35(5) does not lend support to the suit.

The need for locus standi. A plaintiff is usually someone who has been hurt by a law or the actions or omissions of the defendant. The plaintiffs will need to show that they have been hurt by the actions of the defendants. Do the plaintiffs have locus standi?

Article 35(6)(b): This article requires the state to ensure regional and gender balance in public offices. The framers of the constitution recognised that many public offices lacked regional (read tribal) balance. The suit’s reliance on this article should be dismissed by the SC. Why? The article deals with ‘public office,’ but a political party office is not a public office. A public office is paid for with public funds.

The political parties have endeavoured to maintain regional and gender balance in the election of their officers. The parties have wings that ensure representation for women, the youth and Muslims (nasara or zongo) and their members in the diaspora. The presidential candidates have often selected their running mates with this need for regional and/or gender balance in mind.

Article 35(6)(d): The article enjoins the government to pursue a programme of decentralization. Decentralization is Prof. Kwamena Ahwoi’s baby. By what gymnastics of logic can we conclude that an open primary system (all members in good standing voting) is a pursuit of decentralization? The Constitution wants the government, not political parties, to pursue decentralization. Article 35(6)(d) does not lend support to the suit.

Article 42: This article says that certain qualified Ghanaians have a right to vote. It deals with national general elections and referenda, not elections within a political party. A literal application of this article will mean that any Ghanaian who is at least 18 years old and is in full possession of his or her mental faculties can vote in every party primary. You agree that this will be ridiculous. Article 42 does not lend support to the suit.

Article 55: This article prescribes the organization of political parties: political parties are to be democratic. Abraham Lincoln defined democracy as government of the people, by the people and for the people. The NDC, NPP and CPP are parties of their members, by their members and for their members. The political parties are democratic; they are not autocratic.

In conclusion, this suit stands on wobbly legal legs. And for good public policy and sound constitutional reasons, the SC should dismiss the suit in its entirety.

By Dr. Gheysika Agambila

The author is a former deputy minister of state, senior lecturer at GIMPA and vice president of the Ghana Association of Writers. He is the author of novels for adults and children. He now shares his retirement days between Bolga, Accra and McCandless, Pennsylvania.

 

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