All Roads Lead To Klottey Korle

Hon. Nii Armah Ashietey and Zanetor Agyeman Rawlings

The Member of Parliament for the Klottey Korle constituency, Hon. Nii Armah Ashietey, challenged the candidacy of Zanetor Agyeman Rawlings based on the Constitution of the National Democratic Congress (NDC) and the NDC’s National Executive Committee (NEC) regulations that were issued for the 2015 primaries.

Zanetor Agyeman Rawlings attempted twice to have the High Court throw out the case, but the High Court maintained that there was a case to be heard.  She then took the matter to the Supreme Court on the grounds that the interpretation of article 94(1)(a) of the 1992 Constitution was necessary for the resolution of the case.  The Supreme Court ruled that interpretation of the article was necessary for the case to proceed.

The Supreme Court therefore asked both sides to present submissions on: “when can it be properly said that a Ghanaian citizen is by reason of non registration as a voter ‘not qualified to be a Member of Parliament’ within article 94(1)(a) of the 1992 Constitution of Ghana”.

• The 1^st Interested Party’s position seems to be that if in fulfilment of article 94(1)(a) of the 1992 Constitution, political parties have drafted constitutions and formulated regulations that are aligned with the article, then members of the political parties must fulfil the rules and conditions set by their parties for contesting the Primaries.
• The Applicant’s position seems to be that members of political parties can contest their parties’ primaries without fulfilling article 94(1)(a) of the 1992 Constitution so long as they fulfil the conditions of the article by the time of filing nominations at the Electoral Commission.

The Supreme Court has set July 18, 2016, as the date for giving its judgment in the matter.

• A decision for the 1^st Interested Party will maintain the status quo for political parties in Ghana since it has been the position that members of political parties who wish to contest parliamentary elections on the party’s ticket, must follow due process and go by their party’s constitution and rules, which must be in line with article 94(1)(a) of the 1992 Constitution.
• A decision for the Applicant will change the status quo ante since those provisions in the party constitutions and regulations could become null and void leading to a new rule that article 94(1)(a) of the 1992 Constitution need be fulfilled for candidates of political parties only by the time of filing of nominations with the Electoral Commission.

Some major political players seem to be unaware of the dynamics of the case, but it is important that minds be averted thereto.

Will the Supreme Court determine whether the Constitution of the National Democratic Congress (NDC) and the rules for primaries as laid down by the NDC, contravene article 94(1)(a) of the 1992 Constitution?  Would it mean that portions of the NDC Constitution and/or the NDC regulations are ultra vires the 1992 Constitution and those portions must be scrapped?  Would this, in turn, affect the constitutions of other political parties as well as the rules governing their primaries?

Would stretching this further mean that certain contestants who were disqualified during political party primaries towards the 2016 election, will then have an opening to challenge their disqualification?  Could others who did not file to contest the primaries because they were of the opinion that they did not fulfil their party’s conditions, now raise issues of re-opening the primaries for their constituencies?

Maybe it is time to avert minds to this debate, which has the potential of re-shaping the legal parameters of our party political structures.

Find below submissions filed on June 28, 2016, at the Supreme Court, on behalf of the 1^st Interested Party in the case of The Republic v High Court Ex Parte Dr. Zanetor Agyemang Rawlings (Applicant), Hon. Nii Armah Ashietey (1^st Interested Party), National Democratic Congress (2^nd Interested Party) Suit No: J5/19/2016.

Written Submissions filed on Behalf of the 1^st Interested Party:

“FACTS

The 2^nd Interested Political Party organised Parliamentary Primaries on 21^st November, 2015, across the various constituencies in Ghana including Klottey-Korley Constituency in the Greater Accra Region of Ghana.  The Applicant herein, Dr. Zanetor Agyemang Rawlings, Hon. Nii Armah Ashietey who is the incumbent Member of Parliament for the Klottey-Korley Constituency and another took part in the contest.  At the close of polls, the Applicant was declared to have won the Parliamentary Primaries with 2,739 votes whilst the 1^st Interested Party polled 1,747 votes.

It is instructive to point out that the 2^nd Interested Party drew out an elaborate set of rules to govern the conduct of the Primaries, which was titled “Guidelines for the Election of NDC Parliamentary Candidates for the 2016 Parliamentary Elections”.

The Guidelines were prepared to guide the 2^nd Interested Party in its quest to select suitable Parliamentary Candidates to represent the NDC party in the 2016 National Elections.  The said Guidelines provided among others as follows:

1. QUALIFICATION

A person wishing to contest to be a Parliamentary Candidate of the party must:

1. Be a citizen of Ghana, who has attained the age of 21 years.
2. Be a card-bearing member of the party who has paid party membership dues.
3. Be a known and active member of a branch of the party in the constituency.
4. Not be a member of any other political party.
5. Be qualified in accordance with the 1992 National Constitution to be elected as Member of Parliament.

 

1. DISQUALIFICATION

A member shall not be qualified to contest primaries for any parliamentary seat if he:

1. Is disqualified under national electoral laws from contesting for any parliamentary seat.
2. Is not an active member of the party at the constituency level for four (4) years immediately preceding the date of filing the nomination.
3. Is for any reason disqualified from being a party member as spelt out under Article 8 of the party’s constitution.
4. Fails to meet the requirements for the election of Member of Parliament under Article 94 of the 1992 Constitution of Ghana.

My Lords, it is now public knowledge that prior to November 2015, when the Applicant participated in the Parliamentary Primaries, she was not a registered voter in Ghana and therefore never voted in the election in which she was said to have won.  It is also instructive to point out that the non-registration of the Applicant as a voter in Ghana violated the internal rules regulating the conduct of the primaries and thus the 1^st Interested Party mounted an action in the High Court seeking to declare the election of the Applicant null and void for violating the NDC Constitution and the Rules of the 2^nd Interested Party by reason of non-registration as a voter in Ghana.

On 19^th May 2016, this Honourable Court granted an application for certiorari to quash two rulings of the High Court dated 22^nd February, 2016 and 22^nd March, 2016.  The Honourable Court further referred unto itself the following question for interpretation:

“When can it be properly said that a Ghanaian citizen is by reason of non registration as a voter “not qualified to be a Member of Parliament” within article 94(1)(a) of the 1992 Constitution of Ghana.”

THE LAW AND ANALYSIS

My Lords, Article 94 (1) (a) of the Constitution 1992, provides thus:

“Subject to the provisions of this article, a person shall not be qualified to be a Member of Parliament unless:-

(a)       he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter; …”

My Lords, from the above constitutional provision it is clear that only Ghanaian citizens of twenty-one years of age who have registered with the Electoral Commission as voters are qualified to be Members of Parliament.

My Lords, the Constitution did not state the time when this qualification criteria ought to be met.  However My Lords, since the re-introduction of constitutional rule and multi party democracy in Ghana, political parties have largely been the conveyance through which citizens compete for elections to Parliament and the Presidency.  It is therefore not for nothing that the 1992 Constitution guaranteed the establishment of political parties in Ghana.

My Lords, Article 55 (1) (2) (3) (5) and (6) and (10), of the 1992 Constitution provides as follows:

(1)       The right to form political parties is hereby guaranteed.

(2)       Every citizen of Ghana of voting age has the right to join a political party.

(3)       Subject to the provisions of this article, a political party is free to participate in shaping the political will of the people, to disseminate information on political ideas, social and economic programmes of a national character, and sponsor candidate for elections to any public office other than to District Assemblies or lower local government units. …

(5)       The internal organisation of a political party shall conform to democratic principles and its actions and purposes shall not contravene or be inconsistent with this constitution or any other law.

(6)       An organisation shall not operate as a political party unless it is registered as such under the law for the time being in force for the purpose. …

(10)     Subject to the provisions of this Constitution, every citizen of voting age has the right to participate in political activity intended to influence the composition and policies of the government.”

My Lords, from the above constitutional provisions, it is clear that the right to participate in political activities in Ghana for the purpose of influencing the composition and policies of government is subject to registration as a voter and actually voting to affect such policies.  That an organisation such as a political party through which the citizen manifests his political ambition must be registered under the Political Party’s Act, 2000 (Act 574). Thus, once the political party is registered it has the constitutional mandate to sponsor a candidate such as the Applicant on its ticket to represent the party in parliament.  It is therefore not for nothing that the 2^nd Interested party drew out an elaborate set of rules to guide the conduct of its internal primaries so that persons who emerge as winners in the internal contest can also qualify within the meaning of the provisions of Article 94 of the 1992 Constitution.

My Lords, Article 55(5) of the 1992 Constitution places a constitutional injunction on all political parties in Ghana to ensure that their internal organisation shall conform to democratic principles and its actions and purposes shall not contravene or be inconsistent with the Constitution or any other law.

It therefore stands to reason that no political party in Ghana can conduct Parliamentary Primaries to select/elect a Parliamentary Candidate who does not satisfy the provisions of Article 94 of the 1992 Constitution of Ghana because such an act would clearly be inconsistent with the 1992 Constitution.

My Lords, where a political party for instance elects a Parliamentary Candidate who is twenty years of age, that act would be deemed unconstitutional and therefore null and void.

My Lords, it is further respectfully submitted that where a political party elects a Parliamentary Candidate who is not a citizen of Ghana or though a citizen of Ghana is not a registered voter, that candidate is not qualified to be a Member of Parliament and that would be deemed unconstitutional.

My Lords, it is this Constitutional injunction on political parties to adhere to the provisions of Article 94 of the 1992 Constitution that all the political parties in Ghana have since 1992, ensured that apart from satisfying the internal requirements of being a member in good standing, the contestant must also satisfy the requirements of Article 94 of the 1992 Constitution.  So the net effect is that once the Parliamentary Candidate is elected, he/she cannot be disqualified on grounds of not meeting any of the national requirements.

My Lords, rule 1 of the New Patriotic Party (NPP) Rules and Regulations Governing the Parliamentary Primaries – 2016 provides as follows:

“1. An aspiring Parliamentary Candidate must ensure that he/she meets the requirements of qualification and eligibility set out in Article 94 of Ghana’s 4^th Republican Constitution, 1992 and Articles 3, 11 and 17 of the party’s constitution, 2009.  It shall be the responsibility of the aspiring candidate to convince the party of his or her qualification and eligibility under these rules.”

My Lords, the above rule ensures that persons who contest in the Parliamentary Primaries of the New Patriotic Party meet the constitutional qualification of a Member of Parliament at the time of the primaries.  Thus it is not after the party has completed its primaries that it would be held back with legal suits on issues of eligibility or qualification of any of its candidates. My Lords, the position of the New Patriotic Party is very consistent with the provisions of the 1992 Constitution.

A similar provision was adopted by the 2^nd Interested Party and thereby made it a condition precedent that all contestants must meet the requirements of Article 94 of the 1992 Constitution at the time of the primaries and not after the said primaries.  It is therefore surprising that that the 2^nd Interested Party after making these elaborate rules has suddenly made a u-turn and put up a strong defence that the provisions of Article 94 of the 1992 Constitution are to apply only at the point of filing with the electoral commission and not at the time of the primaries.

My Lords, the fact of ensuring that all contestants including the Applicant meet the National requirements at the time of the primaries do not in any way relegate the National law to be subservient to the domestic rules of the 2^nd Interested Party but rather to ensure that the conduct of the internal contest for the parliamentary seat in Klottey-Korley would be consistent with the national criteria on qualification for a Member of Parliament.

My Lords, since this Honourable Court referred unto itself the issue of applicability of Article 94 (1) (a) for interpretation, it has generated public discourse and some of the questions being posed are as follows:

• Can a political party make rules to allow a person who is not a registered voter to contest primaries so long as that person can register with the Electoral Commission before National Elections?
• What if the person is unable to register before National Elections, can that candidate be presented by the political party to contest on its ticket?
• Can a political party allow a Ghanaian citizen who is twenty years to contest primaries so long as that person would be twenty-one years at the time of filing with the Electoral Commission?
• Can a person who is seventeen years register to vote so long as that person would be eighteen years at the time of voting in National Elections?
• Can a non-citizen contest primaries on the ticket of a political party so long as he/she would be able to adopt a Ghanaian citizenship and register just before filing his nomination with the Electoral Commission?
• Can a person elected as Parliamentary Candidate of a party file nomination with the Electoral Commission to compete in by-election if he/she is not a registered voter?
• Is it prudent for a political party to expend resources to prosecute a campaign to elect a Member of Parliament on its ticket only to be disqualified on account of dual citizenship after being sworn in?

My Lords, it appears without a doubt that the central purpose of Parliamentary Primaries organised by political parties in Ghana is to ensure that the candidate put forward by the party meets the constitutional qualifications under Article 94 of the 1992 Constitution.

It is needless to say that a Parliamentary Candidate-Elect ought to be battle ready to contest Parliamentary Elections be it by-election or general election.

My Lords, it is common knowledge that if by-election had been held in Klottey-Korley between November 22, 2015, and April 27^th, 2016, by reason of resignation or death of the incumbent Member of Parliament, the Applicant could not have been qualified to contest the Parliamentary Elections in Klottey-Korley by reason of non-registration as a voter because it is public knowledge that she was not a registered voter as at 21^st November, 2015.

My Lords respectfully, no purpose would have been served by the election of the Applicant to the 2^nd Interested Party if she is unable to contest national elections on its ticket. It therefore stands to reason that each political party would elect candidates that meet the requirements in Article 94 of the 1992 Constitution as well as the rules of their party at the time of the Parliamentary Primaries.

My Lords, it is respectfully submitted that on the true and proper construction of NDC rules governing the conduct of the Parliamentary Primaries – 2016, the NDC constitution and Article 94 (1) (a) of the 1992, the requirement of being a citizen of Ghana, twenty one years of age and a registered voter was to apply to every contestant at the time of the Parliamentary Primaries and not at the time of filing the candidate with the Electoral Commission.

My Lords, it is further submitted respectfully that the Applicant is not contesting the Klottey-Korley seat as an independent candidate and therefore is bound by the constitution and the rules of the NDC.  See Pennie v Egala [1980] GLR 234.

My Lords, it is the submission of Counsel for the Applicant and the 2^nd Interested Party that the Applicant can only be deemed to be disqualified to be a Member of Parliament at the time when she is nominated as a Parliamentary Candidate.  In fact the 2^nd Interested Party has further stated that “the fact that a person is not a registered voter at the time he/she becomes a proposed Parliamentary Candidate should not be used as the basis of disqualifying that person as a Member of Parliament”.

My Lords, we wish to respectfully submit that the quest to become a Member of Parliament is a process.  For political parties, it starts with the preparation of the aspirant for vetting and holding of Parliamentary Primaries.  The process of being a Member of Parliament does not end with the filing of nomination with the Electoral Commission.  In fact and indeed, the mere filing with the Electoral Commission of a Parliamentary Candidate’s nomination does not make that person so filed a Member of Parliament.

My Lords, even where a person wins Parliamentary elections, it does not make him a Member of Parliament but a Parliamentary Candidate-Elect.  It is only when a person has been sworn in as such as provided for under Article 100 of the 1992 Constitution that a person can be said to be a Member of Parliament.  Article 100 (1) of the 1992 Constitution provides thus:

100 (1)  A Member of Parliament shall before taking his seat in parliament, take and subscribe before the Speaker and in the presence of the Member of Parliament, the oath of allegiance and the oath of a Member of Parliament set out in the second schedule of this Constitution.

(2)  A Member of Parliament may before taking the oaths referred to in clause (1) of this Article, take part in the election the Speaker.

The oath of a Member of Parliament provides thus:

“I …………………, having been elected a Member of Parliament do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold, preserve, protect and defend the Constitution of the Republic of Ghana; and that I will faithfully and conscientiously discharge the duties of a Member of Parliament (so help me God).”

My Lords, it is respectfully submitted that it is only when a person has sworn the oath of a Member of Parliament, before the Speaker of the house, that that person can be said to be a Member of Parliament.

My Lords, it is clear that the filing of a person’s nomination with the Electoral Commission does not make that person a Member of Parliament. It is thus not for nothing that political parties in Ghana engage in serious preparations in selecting appropriate candidates as Parliamentary Candidates to contest on their tickets in the various constituencies across the country.  Thus, no serious political party would be happy to have its Member of Parliament duly sworn in after expending resources to campaign to be disqualified on ground that, that person was not a registered voter or did not meet any of the requirements in Article 94 of the 1992 Constitution.  Thus, the policy rational by all political parties in Ghana that every candidate on its ticket must meet both the party requirements and the national constitutional requirements is to ensure that the person presented to represent the party in parliament is duly qualified thereby giving effect to the full compliance of Article 94 of the 1992 Constitution.

It is therefore imperative that the political party as a conveyance for persons seeking to actualize their political dreams cannot act without regard to the constitutional provisions in respect of qualification criteria for a Member of Parliament.  Thus political party rules cannot be properly said to be inconsistent with the provisions of Article 94 of the 1992 Constitution if the said rules and the constitution of the party merely seek obedience of all members to the national constitutional qualification requirement of any member who intends to contest elections on its tickets at the National Level.

My Lords, this Honourable Court has the exclusive jurisdiction to enforce or interpret the provisions of the 1992 Constitution as provided for under article 130(1) and (2) thereof.

Article 130(1) provides as follows: …

“The Supreme Court shall have exclusive original jurisdiction in:-

(a)  all matters relating to the enforcement or interpretation of this Constitution.”

Article 1(2) of the 1992 Constitution, provides that:

“This Constitution shall be the Supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.

Article 2(1) further provides that:

“A person who alleges that:-

(a)       an enactment or anything contained in or done under the authority of that or any other enactment or

(b)       any act or omission of any person

is inconsistent with, or is in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect”.

My Lords, the original jurisdiction vested in the Supreme Court under Article 2(1) and 130(1) of the 1992 Constitution to interpret and enforce the provisions of the Constitution is a special jurisdiction meant to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution.”

My Lords, this Honourable Court has consistently insisted that for a party to invoke the original jurisdiction of the court, the action must raise a real or genuine issue of interpretation.  Thus the Plaintiff must show clearly that the question at issue can only be resolved by an interpretation of the Constitutional provision.

In Tait v Ghana Airways Corporation [1970] 2 GLR 572 @ 528, the court stated that “… unless the words of an article of the Constitution are imprecise or ambiguous, an issue of interpretation does not arise.  Where the language of the Constitution is not plain but admits of but one meaning, the task of interpretation can hardly be said to arise”.

Respectfully My Lords, the provision referred by this Honourable Court for interpretation is Article 94(1)(a) of the 1992 Constitution which simply provides that “a person shall not be qualified to be a Member of Parliament unless (a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter”.

My Lords, it is instructive to point out that the Citizenship Act, 2000 (Act 574) provides for various circumstances under which a person may qualify as a citizen of Ghana. However the 1992 Constitution of Ghana prohibits dual citizens from becoming Members of Parliament. The twenty-one years of age is the qualification year to contest for parliamentary elections.  A person is a voter, if he/she is registered with the Electoral Commission as such for the purpose of public elections.

My Lords, the wording of Article 94 (1) (a) of the 1992 Constitution cannot be said to admit of double meaning or ambiguous to warrant an interpretation into the meaning and effect of the provision of the Constitution.  Simply put, the words are clear and admit of only one meaning.

My Lords, it appears unfortunate that an attempt to save the Applicant has led to even the 2^nd Interested Party abandoning the clear provisions of its constitutional provisions particularly Article 43 (9) and the Guidelines governing the conduct of its primaries to urge on this Honourable Court that Article 94(1)(a) applies only at the time of filing the Applicant’s nomination with the Electoral Commission.

My Lords, the case of Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 provided the circumstances under which an interpretive issue may be said to have arisen:

1. where the words of the provision were imprecise or unclear or ambiguous. Put in another way, it would arise if one party invited the court to declare that the words of the article had a double meaning or were obscure or else meant something different from or more than what they said;
2. where rival meanings had been placed by the litigants on the words of any provision of the Constitution;
3. where there was a conflict in the meaning and effect of two or more articles of the Constitution and the question was raised as to which provision should prevail; and
4. where on the face of the provisions, there was a conflict between the operation of particular institutions set up under the Constitution. And in the event of the trial court holding that there was no case of “enforcement or interpretation” because the language of the article of the Constitution was clear, precise and unambiguous, the aggrieved party might appeal in the usual way to a higher court against what he might consider to be an erroneous construction of those words. Also where the submission made related to no more than a proper application of the provisions of the Constitution to the facts in issue, that was a matter for the trial court to deal with.

My Lords respectfully, it is clear that the wording in a provision must be imprecise or unclear or ambiguous or admit of rival meanings having been placed by litigants for the Honourable Court to interpret the said provision.

My Lords, there is nowhere in the submissions canvassed by Counsel for the parties that the wording in Article 94(1)(a) admits of double meaning or is imprecise or unclear to warrant this Honourable Court to interpret the provision of the Constitution.

My Lords, we respectfully submit that the provision of Article 94(1)(a) of the 1992 Constitution is clear and does not admit of any ambiguity.

My Lords, we wish to further submit that the NDC constitution particularly Article 43(9) and the Guidelines governing the conduct of the Parliamentary Primaries is consistent with the provisions of the 1992 Constitution.  It therefore stands to reason that NDC, as a law abiding political party, sought to make rules that would be in conformity with the National Constitution on the qualification criteria of Members of Parliament.

In conclusion, it is the submission of Counsel for the 1^st Interested Party that the 2^nd Interested Party’s Guidelines governing the conduct of the Parliamentary Primaries – 2016 and the NDC Constitution particularly Article 43(9) were made in obedience to the National Constitution and therefore consistent with the provisions of the Article 94 of the 1992 Constitution.  Thus every member who seeks to contest Parliamentary Primaries of the party and later be put forward to contest Parliamentary Elections ought to meet the qualification criteria set out in the National Constitution.

To compel obedience of its members to the National Constitution, the framers of the Guidelines and the NDC constitution ought to be highly commended by this Honourable Court that even at the time of their internal contest, they contemplated that the eventual winner would contest on the national level on the ticket of the party and therefore must meet the national qualification criteria provided for under Article 94 of the 1992 Constitution.

On the strength of the above submissions, we humbly submit that applicability of Article 94(1)(a) of the 1992 Constitution was to apply at the time of the Parliamentary Primaries to compel all members to comply with the said provision at the time of the Parliamentary Primaries on 21^st November, 2015.

Respectfully submitted.”