A private legal practitioner and an activist of legal education reforms in Ghana Professor Kwaku Asare has clarified that the apex court of the land did not throw out the SALL (Santrokofi, Akpafu, Lipke and Lolobi ) case.
He stated that “for the avoidance of doubt, the Supreme Court has not ruled on the disenfranchisement of SALL. The review decision handed down yesterday was not about the disenfranchisement of SALL but rather on the injunction the Ho High Court placed on John-Peter Amewu”.
In a bid to explained his position on the review case ruled on yesterday 30th March, 2021, on his social media post he said “I have long said that SALL, not Hohoe, is the issue so I agree with the SC on quashing the injunction. The SALL issue is a simple one. SALL was assigned to Buem constituency under CI 128, which drew the constituency map for the 2020 elections. CI 128 superseded CI 95 and effectuated the SC directive in the Dzate case relating to ensuring the proper alignment of constituencies to avoid their straddling 2 regions”.
He again noted that “SALL voters voted in the Buem constituency for the Presidential elections but were directed by the EC not to participate in the Parliamentary elections because of the pendency of the creation of the Guan constituency”.
Read his full post below:
For the avoidance of doubt, the Supreme Court has not ruled on the disenfranchisement of SALL. The review decision handed down yesterday was not about the disenfranchisement of SALL but rather about the injunction the Ho High Court placed on John-Peter Amewu.
I have long said that SALL, not Hohoe, is the issue so I agree with the SC on quashing the injunction.
The SALL issue is a simple one. SALL was assigned to Buem constituency under CI 128, which drew the constituency map for the 2020 elections. CI 128 superseded CI 95 and effectuated the SC directive in the Dzate case relating to ensuring the proper alignment of constituencies to avoid their straddling 2 regions.
SALL voters voted in the Buem constituency for the Presidential elections but were directed by the EC not to participate in the Parliamentary elections because of the pendency of the creation of the Guan constituency.
The directive was unconstitutional because only another CI, not a directive, can undo an existing CI. Administrative bodies should be trained to understand that statutory instruments are law and cannot be dispensed with by fiat, directive or press release.
In consequence, SALL is not represented in Parliament. We are where we are because of an unconstitutional action by the EC in issuing a directive to amend CI 128.
What is the remedy?
The only viable one I see if for the EC to create the promised Guan constituency on an urgent basis to allow SALL to be seated in Parliament immediately. Everyday that the EC does nothing is another day that SALL voters are denied what the Constitution guarantees them.
Of course, the Constitution provides that when a new constituency is created, it shall come into effect upon the next dissolution of Parliament.
This makes sense because we do not want to empower the EC to affect or dilute the composition of Parliament after all the registered voters have been giving an opportunity and have spoken in a general election.
But what if not all the people were allowed to speak in the general election? What if the EC willfully excluded some people from participating in the general election?
Will the constraint hold or be applicable?
I think not!
The EC’s willful exclusion of some people from participating in general elections is something so extraordinary that no reasonable framer of the Constitution could contemplate that it could happen.
As such, the Constitution itself provides no direct remedy. This, however, does not mean the issue becomes an Article 298 issue calling for Parliament to fix with its residual power.
Rather, it is a clear violation of the Constitution that calls for judicial review and resolution.
A mandamus clearly lies here! But what should be its nature?
Should the EC be ordered to undo the Buem election and ask the people to vote again? I think not! Buem voters have done no wrong and should not be denied the benefit of their election bargain.
I can only see one justifiable order. The EC must be compelled to create the promised Guan constituency and to organize a special election within 30 days!
This solution is justified on grounds that the EC concedes that but for its negligence, SALL voters would have been assigned to Guan constituency for purposes of the Parliamentary election.
The other obvious solution which has no chance of happening is to hold the tortfeasor, here the EC, accountable for violating the Constitution.
The core mandate of the EC is to divide the country into as many constituencies for the purpose of election of MPs as it may prescribe, so that each constituency is represented by one MP.
The EC has 4 years to do this and did so with the issuance of CI 128 in August 2020.
What at all possessed the EC to issue the directive of December 6, 2020? That is what Parliament can and must investigate.
#SALL is the cardinal sin of the 8th Parliament. The only and obvious solution is the one I provided on December 8 —- create the Guan constituency and hold special elections as a matter of urgency!
Da Yie!
Filed By : Agaatorne Douglas Asaah / awakenewsroom.com
