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Creation of New Regions Case: Supreme Court throws out suit Challenging its constitutionality

A seven member Supreme Court panel presided over by Justice Sophia Adeniyira has dismissed the suit challenging the constitutionally of government’s decision to create six (6) new regions and the conduct of the Electoral Commission supervised referendum only in the areas directly affected by the proposed regions.

The Applicants in the action, Mayor Agebleze, Destiny Awlimey and Jean-Claude Amenyaoglo, 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 sues to be determined by the referendum and the places where the referendum should be held”.

It was their argument that the recommendations of the Justice Brobbey Commission that the upcoming referendum should be carried out in the areas affected by the proposed regions and not the entire regions affected by the possible division was unconstitutional.

At the last Court sitting, Deputy Attorney General, Godfred Yeboah Dame, representing the State; lawyer for the Electoral Commission, Justin Amenuvor, and Albert Quashigah, lawyer for the Applicants, all told the Supreme Court that they rely entirely on the addresses they have filed in court. Their submissions paved way for the judgement of the Court as delivered today.

In the written address filed by lawyers of the EC, they 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 in limine and with costs,” the address said.

The Deputy Attorney General in his argument in the written address submitted that, “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”.

The Deputy Attorney General concluded by saying that, “For failure to satisfy the essential requisites for an invocation of the Court’s original jurisdiction under articles 2(1) and 130(1), the instant action is devoid of a cause of action, and ought to be dismissed”.

In their Unanimous Decision, read by Justice Professor Nii Ashie Kotey, the Supreme Court said they agree with lawyer for the Electoral Commission, Justin Amenuvor and the Deputy Attorney General, Godfred Yeboah Dame, that Article 5(4) of the 1992 Constitution is clear in meaning, no ambiguity whatsoever about it and therefore there is nothing that arises for interpretation. To this end the Apex Court ruled that the Justice Brobbey Commission’s recommendation stands and the Plaintiff’s action is dismissed. The panel that decided the case comprises Justices Sophia Adeniyira, Jones Dotse, Anin Yeboah, Samuel Marful Sau, Agnes Dordzie (Mrs), Professor Nii Ashie Kotey and Nene Amegatcher.

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