Mr
Speaker, I beg to ask the Attorney-General and Minister for Justice, the status of the draft Constitutional Instrument for the creation of a constituency for Santrokofi, Akpafu, Lolobi, Likpe Traditional Area.
Attorney-General and Minister for
Justice (Mr Godfred Y. Dame): Mr Speaker,
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Background
Mr Speaker, until the enactment of the
Representation of the People (Parliamentary
Constituencies) Instrument, 2020 (C. I. 128),
for electoral purposes, the traditional areas of
Santrokofi, Akpafu, Likpe and Lolobi
(SALL) were part of the Hohoe Consti-
tuency. Administratively, these areas were
also in the Volta Region.
On 15th February, 2019, by Constitutional
Instrument No. 112, the boundaries of the Volta Region were altered after due recourse to the mandatory procedures stipulated in article 5 of the Constitution, resulting in the creation of the Oti Region. The traditional areas of Santrokofi, Akpafu, Likpe and Lolobi ceased to be part of the Volta Region as they were included in the territories constituted by law into the Oti Region.
The formation of the new Oti region had
the further consequence that even though administratively, Hohoe District remained in the Volta Region, parts of the Hohoe Constituency (specifically the SALL areas) had become a part of the Oti Region by dint of C. I. 112. In point of fact, the SALL areas were placed under the Jasikan District in the Oti Region. A clear constitutional violation was imminent. Article 47(2) of the Consti- tution provides thus: "No constituency shall fall within more than one region".
Mr Speaker, this situation necessitated the
enactment of a new constitutional instrument to alter the boundaries of the Hohoe Consti- tuency as the continued placement of SALL within the Hohoe Constituency, as indicated above, was going to be a flagrant violation of article 47(2).
The Supreme Court on 24 June, 2020 in Suit No. J6/01/2020 entitled Valentine Edem Dzatse vrs. 1. Henry Ametefe 2. The Chairman, Hohoe Constituency (NDC) 3. The Secretary, Hohoe Constituency (NDC) 4. Professor Margaret Kweku 5. The Regional Electoral Officer (Ho) 6. The Municipal Electoral Officer (Hohoe) indeed under- scored the necessity for the SALL areas to cease to be part of the Hohoe Constituency in the Volta Region, and for a new constituency to be created for them, when it held at pages 5-6 of the judgment as follows:
"We therefore hold that it is the Consti- tutional Instrument on constituency boun- daries that should be aligned to the regional boundaries and not the other way round. It is our considered view that if the framers of the Constitution had intended it otherwise they would have expressly made Article 5 subject to Article 47(2) of the Constitution — What this means is that whenever regional boundaries are changed in a manner that affects existing constituencies, the constituency boundaries have to be amended to align with the new regional boundaries.
For the reasons explained above, we hold that, as things stand now, Cl 95 is incon- sistent with Article 47(2) of the Consti- tution to the extent that the traditional areas of Santrokofi, Akpalu, Likpe and Lo/obi which fall within the Oti Region are stated to be part of the Hohoe Constituency which is in the Volta Region and to the extent of that inconsistency CJ 95 is unconstitutional."
With the benefit of this clear decision of
the Supreme Court of Ghana, the Electoral
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Commission set out to realign the boundaries of the Hohoe Constituency and to place the SALL areas within a constituency in the Oti Region.
A new constitutional instrument, C. 1.
128, was enacted. This C. I. placed the SALL areas within the Buem Constituency with its headquarters being Jasikan in the Oti Region. This situation should not have created any problem at all and should have ensured a due exercise by the people of SALL of their right to participate in the parliamentary election in the Buem Constituency in the December, 2020 elections.
New District — the genesis of the "SALL problem"
Mr Speaker, the problems of the SALL
people began in November 2020, when
Parliament allowed the Local Government
(Guan District Assembly) (Establishment)
Instrument, 2020 (L. I. 2416) for the creation
of the Guan District, which had been laid
before Parliament on Tuesday, 6th October,
2020, to come into effect. On Monday, 9
November, 2020 (less than a month before
the December 2020 elections), L. I. 2416
came into force after having satisfied the
constitutional prerequisite of being laid
before Parliament for twenty-one sitting days
and same had not been annulled by Parlia-
ment. It is pertinent to note that the areas
carved into the Guan District by L. I. 2416
were hitherto part of the Jasikan District.
Consequent on the enactment of L. I.
2416, the four traditional areas of SALL were
placed under the new Guan District and
ceased to be part of the Jasikan District.
This development necessarily required the
Electoral Commission to create a new
constituency for the SALL areas (called the
Guan Constituency) as the Commission took
the view that, to allow for them to remain
within the Buem Constituency would unleash
another constitutional anomaly of having the
Member of Parliament (MP) for Buem being
a member of both the Jasikan and Guan
Districts at the same time. It is noted that
article 242(b) of the Constitution provides
that:
"A District Assembly shall consist of ....
(b) the Member or Members of
Parliament for the Constituencies that
falls within the area of authority of the
District Assembly as members without
right to vote".
The provision is repeated in section
5(1)(c) of the Local Governance Act, 2016
(Act 936) as amended by Act 940.
A constituency must, therefore, fall within
the area of authority of a District Assembly
and a member of Parliament is required to be
a member of one District Assembly and no
more.
Efforts by Electoral Commission to
address anomaly
The Electoral Commission in its quest to
ensure a due exercise of the franchise by the
people of SALL proceeded to take steps to
create a constituency for the areas forming
part of the newly created Guan District, i.e.
SALL, by amending the Representation of
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the People (Parliamentary Constituencies)
Regulations, 2020 (C.I. 128) as well as the
District Electoral Areas and Designation of
Units Regulations, 2019 (C.I. 119). Copies of
the Draft Constitutional Instruments were
submitted to the Office of the Attorney
General by correspondence dated 13
November, 2020.
Subsequently, the Office of the Attorney-
General and Ministry of Justice by a letter
dated 18 November, 2020, forwarded the
draft Representation of the People (Parlia-
mentary Constituencies) (Amendment) Instru-
ment, 2020, and comments thereon to the
Electoral Commission for their consi-
deration. The Attorney-General particularly
drew the attention of the Electoral Com-
mission to the limited time available for the
dissolution of the Seventh Parliament, having
regard to clause (7) of article 11 of the
Constitution which requires twenty-one
sitting days for the draft Instrument to come
into force after being laid in Parliament.
On 26 November, 2020, by a letter dated
25th November, 2020, the Electoral Commis-
sion requested the Attorney-General to
finalise the draft Constitutional Instrument.
Further to the receipt of the correspondence,
the Office of the AttorneyGeneral finalised
work on the draft Constitutional Instrument
and forwarded same to the Electoral Com-
mission under cover of correspondence dated
30 November, 2020.
The Office further advised the Electoral
Commission to, in line with Parliamentary
procedure, engage the Parliamentary Com-
mittee on Subsidiary Legislation to consider
the draft Instrument before the Instrument is
laid in Parliament.
Indeed, as the Office of Attorney-General
had earlier cautioned in its letter of 18
November, 2020, processes leading to its
creation could not materialize since Parlia-
ment went on recess for the December 2020
elections on 9 November 2020 (the same day
that the L.I. creating the Guan District — L. I. 2416, came into effect), implying that the
Constitutional Instrument for the creation of
the Guan Constituency could not be laid
before Parliament. The record shows that
Parliament resumed only on Monday, 14
December, 2020, a week after the election.
In order to prevent a palpable consti-
tutional crisis to be occasioned if the
residents of the Guan District, i.e. the SALL
areas, voted for a member of Parliament in
the Buem Constituency (part of Jaskian
District), on the eve of the 7 December
General Elections, the Electoral Commission
directed the residents of the Guan District to
only vote in the Presidential and not the
Parliamentary election.
When Parliament resumed sitting on 14th
December, 2020, the Electoral Commission
could not lay the amendment to C. I. 128 for
want of the mandatory twenty-one (21)
sitting days for same to come into force
before the dissolution of the 7 Parliament on
the midnight of Wednesday, 6 January, 2021.
The Commission therefore was compelled
to wait for the 8th Parliament to be sworn-in
on 7 January, 2021 before the C.I. to amend
C. I. 128 could be laid before Parliament.
In 2021, the Electoral Commission started the process for the creation of a new Consti- tuency for the Guan District. The Com- mission held a consultative meeting with stakeholders in the new Guan District for a proposed name and headquarters of the new Constituency. The stakeholders unanimously agreed on a constituency name, Guan Consti- tuency, with the headquarters being Likpe- Mate.
A Constitutional Instrument to amend C.I. 128 has been drafted and submitted to the Office of the Attorney General for review. The reviewed Constitutional Instrument will be laid before Parliament in accordance with clause 7 of article 11, before same comes into force.
Way to go
Presently, even if the C. I. is laid before Parliament and same comes into force in accordance with clause 7 of article 11, the creation of a new Guan Constituency consisting of the SALL areas shall only come into effect upon the next dissolution of Parliament, i.e. 6" January, 2025. This is the effect of article 47(6) of the Constitution.
Alternatively, the way to achieve a representation of the people of SALL in Parliament in this term of Parliament, is to do two things:
(i) revoke L.I. 2416 establishing the Guan District, which would imply that the residents of SALL would remain under the Buem District;
(ii) annul the 2020 Parliamentary
election organized for the Buem
Constituency to allow residents of
the four (4) SALL communities
qualified to vote under article 42 of
the Constitution, to exercise their
right to elect a member of Parliament
to represent them, since C. I. 128
used for the conduct of the 2020
Parliamentary elections, had already
placed the SALL areas under Buem
Constituency.
A placement of the SALL areas under the
Buem District and an annulment of the Buem
parliamentary election in order to allow the
residents of SALL to vote for a member of
Parliament in the Buem constituency, will
eliminate the risk of a violation of article
242(b).
It is observed that there is currently
pending in the High Court, Hohoe, a suit
challenging the validity of the election of Mr.
Kofi Adams as member of Parliament for the
Buem Constituency on account of a denial of
the right to vote of the SALL people in the
December, 2020 Buem Parliamentary
election. The suit is numbered CRP/E/1/2021
and entitled IN THE MATTER OF
