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All set for 6 new regions as S/Court throws out suit against referendum

BY MUNTALLA INUSAH    |     muntalla.inusah@dailyherirage.com.gh


A SEVEN-MEMBER panel of the Supreme Court has unanimously dismissed the suit challenging the constitutionally of the planned referendum for the creation of six new regions.

The apex court in its ruling said “provisions of Article 5 are clear and contain no ambiguity.”

According to the apex court, the three applicants who initiated the action failed to properly invoke the jurisdiction of the court, adding that Justice Brobbey Commission’s recommendation for a referendum based on Article 5(4) of the 1992 Constitution was unambiguous.

The three plaintiffs, Mayor Agbleze, Destiny Awlimey and Jean Claude Koku Amenyaoglo were asking the court for an interpretation of Article 5 of the 1992 Constitution, which deals with the creation of new regions, and merger of regions.

It was their case that, it was unconstitutional for the referendum exercise to be staged only at the proposed areas and contended that all persons in the entire region ought to vote.

Application dismissed 

But, the unanimous judgement of the panel, presided over by Justice Sophia Adenyira, was that Article 5 was clear, it has no double meaning, it is precise and unambiguous, and therefore, does not warrant any interpretation from the highest court of the apex court.

It said Article 5 mandates the Commission of Inquiry to specify the areas where the referendum should be held, while the Electoral Commission (EC) was mandated to prescribe the manner in which the referendum was to be held.

“Provisions of Article 5 are clear and contain no ambiguity. The plaintiffs have therefore failed to invoke the original jurisdiction of the court. The case is, accordingly, dismissed,” the court ruled.

Seven-member panel

The judgement was read by Prof. Justice Nii Ashie Kotey, one of the newly sworn-in Justices. Other members of the panel were Justice Jones Dotse, Justice Anin Yeboah, Justice Samuel K. Marful-Sau, Justice Agnes M. Dodzie and Justice Nene A. Amegatcher.

Background

The applicants in the action, were essentially seeking interpretation of the Article 5(4) of the 1992 Constitution, which states: “Where a commission of inquiry appointed under clause (2) and (3) of this article finds that there is the need and a substantial demand for the creation, alteration or merger referred to in either of those clauses, it shall recommend to the President that a referendum be held, specifying the issues to be determined by the referendum and the places where the referendum should be held.”

According to them, the recommendation of the Justice Brobbey’s Commission that the upcoming referendum should be carried out in the areas affected by the proposed regions and not the entire region was unconstitutional.

AG’s opposition

Mr Godfred Yeboah Dame, the Deputy Attorney General (AG) in his argument to oppose the plaintiffs’ application said “the plaintiffs through the invocation of this court’s original jurisdiction, subtly seek a review of how the Article 5 commission set up by the President as well as the EC, discharged the duties cast on it by the Constitution.

“We submit that the duties of an Article 5 Commission and the EC under Article 5 of the Constitution are not reviewable by any person or authority, save in the case of a violation of the law or Constitution. Where the Constitution has placed a duty on a person or authority, that duty must be performed.

“The performance of that duty is not questionable in the absence of an excess of the powers conferred by the Constitution or other forms of illegality committed by that person or authority. Plaintiffs have woefully failed to show any such unconstitutionality or illegality, and therefore the instant action ought to be dismissed.”

EC’s response

Lawyers of the EC, led by Justin Amenuvor also argued that, “what the plaintiffs in the case are asking the Supreme Court to do is to twist, alter and insert words into clear, precise and unambiguous provisions of the Constitution so as to substitute their preferred recommendation for that of a constitutionally mandated Commission that has exercised its powers and discretion within the confines of the law.

“We submit that this is an unnecessary invitation to this court; it is not supported by our constitutional provisions or the jurisprudence of this court and we invite Your Lordships to decline this invitation. My Lords, we submit that on this point alone, this action ought to be dismissed with costs,” the address said.

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