Two Take EC To Court Over Creation Of Constituencies

Dr Kwadwo Afari Djan - Chairman of Electoral Commission

Two residents of Nungua near Accra have sued the Electoral Commission (EC) and Attorney-General (A-G) at the Supreme Court seeking an order to compel the EC to review the 230 constituencies.

They want the EC to alter the constituencies, following the publication of the enumeration figures after the 2010 Population Census and in accordance with the egalitarian principle of fair representation embodied in the 1992 Constitution, especially Article 47(3) and (4) of the 1992 Constitution which emphasise more on population distribution.

The plaintiffs are further seeking any or further reliefs as the court may deem fit.

The plaintiffs are Richard Odum Bortier of H/No. J807/1 Negba - Nungua and Daniel Quaye of H/No. J57/1 Sutsuru Naa - Nungua. They brought the action in their capacity as citizens of Ghana. The writ was filed by Mr Ayikoi Otoo of Otoo & Associates, an Accra legal firm.

A statement of case accompanying the writ said the EC was a constitutional body charged, inter alia, with the responsibility for organising elections throughout the country, including the demarcation of electoral boundaries for national and local government elections.

The A-G, it said, was the principal legal adviser to the Government of Ghana and required by law to be served with all processes involving the invocation of the original jurisdiction of the Supreme Court under the 1992 Constitution.

According to the plaintiffs, the matter is of a public interest and not a personal action and, therefore, the requirements of controversy or dispute or personal interest were unnecessary.

Article 47(1) of the 1992 Constitution, mandates the EC to divide Ghana into as many constituencies for the purpose of election of Members of Parliament.

A national population census was held throughout Ghana in the year 2010. The provisional enumeration figures were published sometime in February 2011, which gave the provisional population of Ghana as 24,223,431.

Following the publication of the enumeration figures, after the holding of the 2010 population census, the EC, by Article 47(5) of the 1992 Constitution, has twelve months within which to review the division of Ghana into constituencies.

Article 47(5) of the 1992 Constitution provides as follows: “The EC shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies.

Article 47(3) of the 1992 Constitution provides as follows: “The boundaries of each constituency shall be such that the number of inhabitants in the constituency is as nearly as possible equal to the population quota though clause 4 provides for other factors to be considered by way of exception.”

The plaintiffs contended, however, that the previous alterations of boundaries which had taken place since the year 2000 had been done in contravention of Article 47 particularly 47 clauses (3) (4) & (7) of the 1992 Constitution.

In the year 2004, the EC altered the then existing constituencies whereby thirty (30) more constituencies were added to the existing two hundred (200) bringing the total number of constituencies to two hundred and thirty (230).

According to the plaintiffs, what the Electoral Commission of Ghana had done in the past was arbitrary and inconsistent with the letter and spirit of the 1992 Constitution.

The plaintiffs said although the power and authority was granted the EC by the 1992 Constitution to review and alter constituencies, that power needed to be regulated.

For, although there was no provision in the 1992 Constitution or under any other law that each district must have a constituency, the Electoral Commission of Ghana in utter disregard for the letter and spirit of the 1992 Constitution and the laws of Ghana particularly the Local Government Act, 1993 (Act) 462 had insisted over the years that each district of Ghana must have a Constituency, they said.

The EC, according to them, had been preparing to create twenty (20) more constituencies, after the publication of the enumeration figures for the 2010 Ghana Population Census in accordance with Article 47(5) of the 1992 Constitution to bring the total number of constituencies for the 2012 elections to two hundred and fifty (250) and, therefore, had feverishly been preparing a Constitutional Instrument as required by law to that effect.

“In creating the twenty (20) new constituencies, the EC must comply with all the provisions of Article 47 of the 1992 Constitution and ensure that only areas that are over-represented via regions or districts are altered into multiple constituencies and not necessarily to combine smaller constituencies without regard to equal representation or as it has done in the past in relying more on clause (4) which is the exception rather than the constitutional rule for demarcation of boundaries,” they said.

They said that using the current population of 24, 223,431,431, the creation of 250 parliamentary seats, would result in a population quota of 96,894 persons per constituency as envisaged under Article 47 (7) of the 1992 Constitution.

“Based on the population quota as worked out above , the new regional constituencies would stand as follows; Ashanti Region with a population of 4,909,764 should now have forty (40) constituencies, Eastern Region with a population of 2,596,013 should now have 27 constituencies, Northern Region with a population of 2,468,557 should now have at least twenty-five (25) constituencies, Western Region with a population of 2,325,597 should now have twenty-four (24), Brong-Ahafo Region with a population of 2,282,129 should have twenty-three (23), Central Region with 2,107,209 will now have twenty-two (22) Constituencies, Volta Region with a population of 2,099,876 should maintain the twenty-two (22) constituencies, Upper-East with a population of 1,031,478 should have eleven (11) constituencies instead of thirteen (13) constituencies and Upper East with a population of 677,763 should have seven (7) constituencies instead of ten (10) constituencies,” they said.

They said the EC should have regard to the population distribution as captured in regional constituencies above when creating the new twenty (20) Constituencies throughout Ghana, otherwise its act would be inconsistent with or in contravention of both the letter and spirit of the 1992 Constitution.

The plaintiffs contended that if population were not the most important factor in the review and alteration of the boundaries of constituencies, the Constitution would not insist on such reviews and alterations taking place at intervals of not less than seven years or within 12 months after the publication of the enumeration figures after the holding of a census of the population of Ghana.

They said unless directed by the Court, the EC intended to create the new twenty (20) constituencies as it had done previously in breach of the 1992 Constitution and place emphasis on factors which were not consistent with the proviso to clause 3 of Article 47 of the 1992 Constitution, which act would amount to a slap in the face of democratic principles which regulated representation of the people.

The plaintiffs averred that the factors currently used by the EC in the demarcation of constituency boundaries which lead to under-representation or over-representation, as well as distortion, dis-proportionality and mal-apportionment of constituencies, and sin against the egalitarian principle of fair representation embodied in the 1992 Constitution, should be discountenanced in the future.

The plaintiffs contended that the factors which the EC took into consideration in demarcating the boundaries of constituencies, in practice led to some of the constituencies being either under-represented or over-represented which was against the principle of fair representation solidly embodied in the constitution.

For instance in 2004, the plaintiffs said, the Weija Constituency had a registered voter population of 155,658 whilst Nadowli East had a voter population of 13,053.

What it meant was that the Member of Parliament for Weija Constituency had as much as twelve (12) times registered voters as the Member of Parliament for Nadowli East yet both were duly elected to represent their respective constituencies with equal privileges and allocation of resources to their constituencies.

They said that in the year 2008, Weija Constituency had 186,627 registered voters whilst Nabdam had only 26,766 registered voters. Weija, therefore, had as much as 12 times registered voters than Nabdam. Again that was a case of under-representation and over-representation.

They said because Article 47 clauses (3) and (4) were not seriously taken into consideration or at all, in the creation of constituencies for both 2004 and 2008, the total combined number of voters in Weija and Ablekuma South Constituencies in the Greater Accra Region alone was higher than the whole of Upper West Region which had ten (10) constituencies.

According to them, a total number of voters in the Greater Accra Region in the years 2000, 2004 and 2008, all election years, revealed that while Greater Accra had a voter population of 1,845,889 for the year 2000, the total combined number of voters in the Northern, Upper East and Upper West Regions stood at 1,715,069.

In 2004, Greater Accra had 2,098,780 while Northern, Upper East and Upper West had 1,596,476 and in the year 2008, while Greater Accra had 2,387,458 the three regions mentioned had 1,928,359.