WHO WILL BE OUR HONOURABLE MP? THE CITIZENS MAY ASK BUT THE SUPREME COURT WILL NOT ANSWERAN EXAMINATION OF THE DECISION IN PARLIAMENTARY ELECTIONS FOR WULENSI CONSTITUENCY

Benjamin Alpha Aidoo*[*]

DEDICATION

I grudgingly (don’t take the use of the word grudgingly too serious lol) dedicate this work to my friend, Dr. (Med) Gideon Assan, Family Physician Specialist trainee at the Ghana College of Physicians and Surgeons. At his dining table inside his Westlands apartment, 90% of this work was written in one night. If I had not responded to his encouragement to stay up that night, this paper wouldn’t have been written. This work is an ongoing tribute to the quality of friendship he offers. Kindly subscribe to his YOUTUBE channel for some good health related content.

ACKNOWLEDGMENTS

I want to thank all my colleagues who engaged me in support and in disagreements with my position when I first made the submission on this subject in class. Those constructive discourses prompted the writing of this paper.

Thank you to my friend and senior, Gideon Koku Abotsi Esq who stayed on phone with me for many minutes disagreeing with my position. His probing questions and counter arguments assured me that I had covered the subject quite well. Shafic Kwabena Osman Esq. as well went through the manuscript. Many thanks to him.

Thank you to the brilliant Frederick Agaaya Adongo Esq. who edited the initial manuscript.

I am grateful to my colleague Paul Mensah (Paulus) who was on hand to send me all the cases I was looking for.

I am also grateful to my learning brothers; Kabu Nartey, Frank Pedro Asare, Oswald Kevin Azumah, Kwabena Amankwaah Addae-Marfo and Christopher Amoasi who all looked at the final draft script and gave me complimentary feedback.

Portia Etornam Kornu did the final proofreading and formatting.

While I remain grateful to these individuals, all the errors and shortcomings of this work, if any, are entirely mine.

PART I

INTRODUCTION

Ghana’s return to multiparty democracy in 1993 after decades of experimenting with varying political forms and periods of military interregnums marked a significantly new era in the life of this nation. The 4th Republican Constitution has survived over 3 decades and unlike previous Constitutions which were truncated by military interventions, this dispensation has witnessed a stable period of democratic continuity. A main feature has been periodic elections. At least every four years, the people get to exercise their sovereign rights in deciding who gets executive power and who represents them in the legislature. As Kumado (2021) notes, elections when they are free and fair, when they are based on universal adult suffrage and when they are conducted by secret ballot constitute the purest form of self-expression by the people through which they determine the government.[2]

On the global front, the optimism generated by Ghana’s series of successful elections has led to the depiction of Ghana as a “bastion of democracy”. One of the main reasons for which we have attained this relative stability and enviable reputation is because of the crucial role that the Court has played in resolving electoral disputes. Even though there have been disagreements on the eligibility of candidates, the conduct of the elections, and even the validity of electoral results, actors in the political space have largely resorted to the Court and have accepted the outcomes of the court processes rather than foment large scale violence capable of plunging the country into civil wars. The Courts have, therefore, become an important institution for the maintenance of our democracy as far as electoral disputes are concerned, for both Presidential and Parliamentary elections.

In the performance of its functions as a final arbiter of electoral disputes, the Judiciary takes its guiding principles from the 1992 Constitution in which provision is made for the courts that have original jurisdictions in Parliamentary election disputes as well as Presidential election disputes.[3] But we know that like all disputes, parties may not be satisfied with the outcome from the forum of first instance and may want to appeal the decision. It is well settled that Presidential election disputes originate and end at the Supreme Court, of course, with no further right of appeal to any court except to invoke the review jurisdiction of the Supreme Court which is an entirely different jurisdiction from its appellate jurisdiction. What is in focus in this article is the procedure that a litigant has, to be able to exhaust his rights under our Court system if he intends to challenge the validity of Parliamentary elections. This piece puts the focus on the decided case of In Re Parliamentary Election for Wulensi Constituency; Zakaria v Nyimakan[4] (hereinafter referred to as the Wulensi case) which is the authority on the matter under scrutiny.

In the first place, it is important to point out what this article is not and what it is.

This piece is not to answer whether or not a litigant can challenge Parliamentary elections up to the apex court. Indeed, that has been settled by the case in focus to the effect that Parliamentary election appeals end at the Court of Appeal and this ratio being the existing jurisprudence of the Supreme Court, still holds sway. This piece simply only constitutes the questing thoughts of a “struggling” Part 1 PLC student at the Ghana School of Law on the subject and a written clarification of a submission orally made during a Civil Procedure Guest Lecture on Election Petition delivered by the learned Dr Justice Srem Sai on the invitation of our substantive Lecturer, His Lordship Justice Samuel K.A. Asiedu.

As already stated, it is settled that the appellate jurisdiction of the Supreme Court cannot be invoked in respect of a Parliamentary election dispute when a party is dissatisfied with the decision of the Court of Appeal. This decision means that the Supreme Court’s appellate jurisdiction is foreclosed in terms of Parliamentary election petitions. It also means that the Court of Appeal becomes the final appellate court in matters of Parliamentary election disputes when the Constitution has not said so. The present writer contends that the ratio of this decision needs to be re-examined and possibly moved away from by the Supreme Court which has the constitutional power to do so.[5]

This brief is structured into six (6) parts with Part I being this introduction. Part II looks at the general character of Parliamentary election disputes together with some salient procedural issues. Part III sets out the brief facts and holdings of the case and proceeds with the analysis of the decision. Part IV points out the jurisprudential consequences of the decision. In Part V, the author borrows from established legal minds to support his argument. Part VI ends the piece with the author’s concluding remarks.

PART II

A GENERAL LOOK AT PARLIAMENTARY ELECTION DISPUTES

Parliamentary election disputes are actions that in theory relate to whether or not a Member of Parliament has been validly elected. In practice, they are issues that either challenge the eligibility of candidates standing/elected as Members of Parliament, the processes leading to their election, or the validity of the election result. Regardless of the form it takes, the Supreme Court has decided in Yeboah v J.H Mensah[6] that once the action leads to a determination of whether or not an individual has been validly elected as a Member of Parliament, it is effectively a parliamentary election petition which only the High Court has jurisdiction over in accordance with article 99(1)(a) of the Constitution.

That action was couched as an interpretation and enforcement of a constitutional provision where the plaintiff invoked the exclusive original jurisdiction of the Supreme Court under articles 2(1) and 130 of the 1992 Constitution for a declaration that the defendant (Mr. J. H. Mensah who had been elected Member of Parliament for Sunyani East in the 1996 Parliamentary elections) was ineligible to be a Member of Parliament on grounds that he did not qualify per the criteria under article 94(1)(b) because he was not a resident of nor hailing from that Constituency. The Defendant raised a preliminary objection that the action was effectively a Parliamentary election dispute which only the High Court has jurisdiction to hear.

The Supreme Court ruled upholding the objection, stating that the plaintiff’s action was in essence an election petition to challenge the validity of the defendant’s election to Parliament and was consequently cognizable by the High Court only under its original jurisdiction in article 99(1)(a)[7] of the Constitution 1992.

In so holding, the majority stressed that the Court’s enforcement jurisdiction was not appropriate in challenging the validity of a person’s election to Parliament. This decision suggest that the exclusive jurisdiction of the High Court under article 99(1)(a) shall not be compromised irrespective of how a party crafts his pleadings and regardless of the form in which his action takes-once the action is going to determine one of the three factors stated above i.e. the eligibility of candidates standing/elected as Members of Parliament, the processes leading to their election or the validity of Parliamentary election result, it shall be regarded as a Parliamentary election issue. Despite this decision, it appears from the Supreme Court’s jurisprudence that where the action is to enforce a provision of the Constitution bordering on the qualification or disqualification of a person to become a Member of Parliament specifically under article 94[8], which effect may be the same as that initiated with an election dispute, the Supreme Court can properly assume jurisdiction in line with article 2(1) and 130(1)(a) of the Constitution to the exclusion of the High Court.

As enunciated in the cases of Federation of Youth Association of Ghana (FEDYAG) (No.2) v Public Universities of Ghana & Ors (No.2)[9]and Adjei Ampofo (No.1) v Attorney General & A.M.A[10], the Supreme Court has the power to entertain an action in which a citizen is alleging that some act or law is inconsistent with the Constitution and to declare such an act as unconstitutional if it so finds, even if on those same facts a person affected by those facts can invoke the exclusive jurisdiction of the High Court. Even though these two cases just cited were decided later in time, it appears that the reasoning in those cases is what influenced the minds of their Lordships at the time when they sat to consider the Sumaila Beibel[11] cases where the Supreme Court assumed jurisdiction over a matter which was effectively going to determine who becomes a Member of Parliament for a Constituency, even though that matter was materially similar to the J.H Mensah case where the Supreme Court refused to assume jurisdiction.

Where one desires to challenge the validity of a Parliamentary election the entire election process must have been completed with the results declared and gazetted before the action can be ripe for the jurisdiction of the High Court stated under article 99(1)(a). It is the reason why the Supreme Court granted the application for certiorari to quash the decision of the High Court Koforidua, in Republic v High Court Koforidua; Ex Parte Asare (Baba Jamal & Others Interested Parties)[12]. In that case, the High Court had dismissed an application challenging its jurisdiction in a matter where a plaintiff had brought an action for a declaration that a Parliamentary election was fraught with pervasive irregularities and misconduct and therefore an order must be directed at the Electoral Commission to conduct fresh Parliamentary elections for the entire Akwatia Constituency.

The brief facts are that following the December 7, 2008 Parliamentary elections, the Electoral Commission had announced that due to tampering with some ballot boxes in the Akwatia Constituency, the Commission would re-run the Parliamentary election in only six polling stations in that Constituency. The NDC and the Independent candidate in the election filed a writ at the High Court to challenge this decision by the Electoral Commission and in the process obtained an injunction restraining the Electoral Commission from conducting the said re-run. The NPP candidate applied and was joined to the case and in an amended writ of summons, sought an order to effectively annul the entire elections. The second defendant, the applicant at the Supreme Court, after being served with the writ of summons filed an application at the High Court to strike out the writ of the Plaintiff (who became the second interested party in the certiorari suit at the Supreme Court) for want of jurisdiction. That application was dismissed and wherefore the second defendant, now the applicant filed an application in the Supreme Court seeking an order of certiorari to quash the decision of the High Court dismissing the application, on grounds of wrongful assumption of jurisdiction.

The Supreme Court held that an electoral exercise in which the Electoral Commission had not declared a result in relation to that election as required by article 99(1)(a) and the relevant sections of PNDCL 284 would be construed as an incomplete election. Since no person had been declared it was premature to bring an action to challenge the validity of an election that was not completed and as such the High Court had no jurisdiction. The decision to dismiss the application to set aside the writ for lack of jurisdiction was therefore quashed. This decision relied on Republic v High Court, Sunyani Ex Parte Collins Dauda (Boakye Boateng Interested Party)[13] where the Supreme Court had laid down the ratio in a similar matter that came before it.

Court with Jurisdiction

By the plain text of article 99(1)(a), the High Court has exclusive original jurisdiction to determine any matter involving whether a person has been validly elected as a Member of Parliament. For the avoidance of doubt article 99(1)(a) provides:

“The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected as a Member of Parliament….”

This jurisdiction, the High Court exercises to the exclusion of all other Courts including the Supreme Court. As alluded to earlier in the J.H Mensah case, article 99(1)(a) has been further pronounced on as giving jurisdiction exclusively to the High Court such that not even the Supreme Court can exercise concurrent jurisdiction in entertaining parliamentary election disputes.

The Representation of the People Law, PNDC Law 284 regulates Parliamentary elections. It also provides in section 16(2) in line with article 99(1)(a) that every election petition shall be presented before the High Court for hearing.

Under article 99(2) a person aggrieved by the decision of the High Court may appeal to the Court of Appeal. This particular provision is the gravamen of this piece, and I shall therefore reserve commentary on it for later pages of this piece.

Procedure

Parliamentary election disputes are commenced by way of petitions. As a trite issue of procedure, all civil actions are generally commenced by way of writ of summons unless an existing enactment says otherwise[14]. Seeking redress on the validity of Parliamentary elections is one of the exceptions[15] as seen in section 16(1) of the Representation of the People’s Law (PNDC Law 284) which states that the validity of an election to Parliament may be questioned only by a petition.

Even though a writ and petition are practically different in form, a petition is theoretically speaking, a writ as well as our rules under Order 82 Rule 3 of the High Court Civil Procedure Rules, C.I. 47 defines a writ to include a petition.

The rules and procedure for presentation and hearing shall be the same (mutatis mutandis) as the rules of procedure applicable to a civil cause or matter before the High Court. In other words, the rules in C.I. 47 apply to an election petition, with the necessary modifications.

Who is competent to bring a Parliamentary election petition?

A person who lacks capacity cannot be heard on a matter even when he has a good case[16]. Locus standi is important in Parliamentary election challenges and a person who fails to prove his locus risks having his action dismissed for want of capacity.

Only four categories of persons are eligible to file a Parliamentary election petition and it may be brought by one or more of these persons. Under section 17 of PNDC Law 284, it may be brought by a person who voted or had the right to vote at the election to which the petition relates, a person claiming to have had a right to be elected at the election, a person alleging himself to be a candidate at the election and or a person claiming to have had a right to be nominated as a candidate at the election.

Timelines for presenting the petition

Under section 18 of PNDC Law 284, a strict[17] timeline is provided for the filing of the petition. The petition is to be filed within 21 days after the date of the publication in the gazette of the result of that election. But where it is alleged that the petition is in respect of the prohibited act of payment of money or other awards to electorates, then the petition may be brought within 21 days after the date of the alleged payment.

Gazetting is the process by which the Electoral Commission certifies the final result by way of publication. Its sole purpose as stated in Amidu v Electoral Commission & Assembly Press[18] is to give formal notice of the result of an election and further clothe persons who seek to challenge the result with the requisite capacity to commence the action. Therefore, as seen from the Ex Parte Asare case cited earlier, where there has been no declared and gazetted result and the High Court assumes jurisdiction to hear a Parliamentary election petition, the Court’s decision will be a nullity as the Court won’t have the requisite jurisdiction to entertain the matter.

The Supreme Court speaking through Wiredu JSC in Republic v High Court, Bolgatanga; Ex Parte Hawa Yakubu[19] had cause to explain the policy rationale behind the need to commence Parliamentary election petitions only after results have been gazette:

“…The period before the publication of the results may be used by dissatisfied candidates or their agents to seek amicable resolution of their complaints with the Electoral Commission.”

There is also the requirement of security of cost where GHC20,000 shall be deposited with the Court within the time limit as a precondition for the validity of the action.[20]

Reliefs

After the hearing of an election petition, the High Court may declare that election void, declare another candidate apart from the one whose election is being challenged as duly elected, or dismiss the petition and declare the one whose election is being contested as duly elected.[21]

PART III

BRIEF FACTS & HOLDINGS OF THE WULENSI CASE

I now turn to the case (Wulensi case) under review. 

The facts are that one Mr Samuel Nyimakan had contested the December 2000 Parliamentary elections in the Wulensi Constituency on the ticket of the National Democratic Congress and had been declared the elected Member of Parliament for the Wulensi Constituency in that election. Mr Fuseini Zakaria, a registered voter in the Constituency then filed a petition in accordance with the relevant laws stated supra in the High Court, Tamale, praying for a declaration that the election of Mr Nyimakan was void as he was not qualified to be so elected as a Member of Parliament for the Wulensi Constituency. After a full trial where evidence, both oral and documentary, was taken, the High Court Presided over by Aninakwa J (as he then was) upheld the petition that indeed Mr Nyimakan was not qualified to be elected a Member of Parliament and therefore his election was void. Mr Nyimakan appealed this decision at the Court of Appeal the same day the High Court delivered its ruling.

By a unanimous decision, the Court of Appeal dismissed Mr Nyimakan’s appeal wherefore he filed a further appeal to the Supreme Court which is the instant case under review. The Supreme Court by a majority decision of four to one[22] held that there was no right of further appeal to the Supreme Court from the appeal determined by the Court of Appeal in respect of the election petition adjudicated by the High Court and therefore dismissed the appeal.

ANALYSIS OF THE DECISION

The majority held that the Supreme Court had no jurisdiction to adjudicate on the substantive appeal essentially for three reasons.

First, that notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137(1) of the 1992 Constitution, article 99(2) had expressly provided that a person aggrieved by the determination of an election petition by the High Court under article 99(1)(a) may appeal to the Court of Appeal. Thus, that provision in article 99(2) had the effect of taking it “out of the article 137(1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court”[23].

Second, the Court held following its previous decision in Yeboah v JH Mensah[24] (supra) that the Constitution by article 99 had provided the fora namely the High Court and the Court of Appeal for dealing with a Parliamentary election petition and by that provision, the Constitution sought to provide an appeal procedure which ended at the Court of Appeal.

Third, the Supreme Court applied the interpretative maxim generalia specialibus non derogant (general words do not derogate from special ones) in holding that the “special” provision set out in article 99(2) granting the right of appeal to the Court of Appeal from the determination by the High Court of an election petition under article 99(1) should supersede the general appellate jurisdiction of the Supreme Court under article 131(1)(a)

There are a number of technical issues with the reasoning of the Court.

Did Article 99(2) Oust the Supreme Court’s Appellate Jurisdiction in Article 131?

An election petition is a civil matter and is attended with all the rules and procedure of civil suits. This was emphasized by Ansah JSC in Re Presidential Election Petition; Nana Akufo-Addo & Ors v John Mahama & Ors[25] in the following words:

“It is needless to repeat that this is an election petition which was a civil suit and therefore partook of all the incidents known to it …”

We must therefore begin with a general reading of the relevant provisions regarding the appellate power of the Supreme Court in civil suits. Article 131(1)(a) provides:

“An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgement of the High Court in the exercise of its original jurisdiction.”

This provision grants the Supreme Court the general jurisdiction to entertain appeals of civil cases coming from the Court of Appeal. There was a judgment from the Court of Appeal dismissing Mr Nyimakan’s application and so by this provision alone he could come to the Supreme Court on further appeal. That would mean that the procedure for a Parliamentary election petition would be three-tier if a litigant so wishes to go the full haul – the High Court having original jurisdiction under article 99(1), the Court of Appeal having appellate jurisdiction under article 99(2) and then the Supreme Court having a final appellate jurisdiction under article 131(1).

But as has been set out supra, article 99(2) clothes the Court of Appeal with appellate jurisdiction to hear the election dispute from article 99(1) without saying whether this jurisdiction is final or not. The question therefore was whether the two-tier procedure expressly stated under article 99 ousts the appellate jurisdiction of the Supreme Court under article 131(1) especially when under article 129(1) the Supreme Court is the “final court of appeal”. It is reasonable to say that article 99(2) not having said that the appellate jurisdiction of the Court of Appeal shall be exercised as a final one in election petitions, one can go to the Supreme Court under article 131 because nothing in the Constitution or any enactment says otherwise. Their Lordships however conceived article 99(2) and 131(1)(a) as creating rival appeal procedures and by applying the generalia maxim, settled on 99(2) as evincing an intention by the framers of the Constitution to make the Court of Appeal a final appellate Court in Parliamentary election petitions.

First of all, since the fundamental question faced by the Court was whether article 99(2) took out the general jurisdiction of the Supreme Court in Article 131, one would expect the majority to search the Constitution to ascertain if the framers ever ousted this general jurisdiction anywhere and second, point to the travaux preparatoires and relevant pieces of Constitutional history to show that indeed their interpretation was what the framers intended with the wording in article 99(2) even though there was no mention of what they ascribed to it.

If their Lordships had done this exercise, two issues would have come up. That first of all, where the Constitution had intended to restrict an issue from the appellate jurisdiction of the Supreme Court, it had expressly stated it. And that second an examination of relevant historical records concerning the 1992 Constitution would not have given them any support in their argument.

On the first point, a clear example is what Her Ladyship Justice Sophia Akufo JSC (as she then was) alluded to in her rather simple but formidable dissenting opinion thus:

“I am fortified in this view by the fact that when the Constitution intends to limit the right of appeal to the Court of appeal alone, it does so specifically as in article 48 where it is stated thus:

  • A person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary may appeal to a tribunal consisting of three persons appointed by the Chief Justice and the Electoral Commission shall give effect to the decision of the tribunal.
  • A person aggrieved by a decision of the tribunal referred to in clause 1 of this article may appeal to the Court of Appeal whose decision on the matter shall be final.

There is no such finality clause in article 99(2) because none was intended.”

The Court of Appeal is mentioned about 35 times[26] in the 1992 Constitution and it is only in this provision where clear and express reference was made to it having final appellate powers in a matter.

A Reply to the Other Logical Argument from a Reading of Article 99(2)

The converse argument too would be that article 99(2) did not also state that there’s a further appeal to the Supreme court and so an intention of finality could be evinced from that silence. It is respectfully submitted that given the general nature of article 131, that repetition was only going to be superfluous. The true nature of article 99(2) was for emphasis and not finality. Emphasis because even though under article 137 it is stated that an appeal shall lie as of right from a judgement of the High Court to the Court of Appeal, a restatement of same was done here under 99(2) to show that whilst jurisdiction had been given to the High Court, one can still appeal to the Court of Appeal. It was not necessary to add that “and a further appeal shall lie to the Supreme Court” given the provision in article 131(1) and 129(1) and it is untenable to suggest that the repetition of appeal to the Court of Appeal in 99(2) or the lack of express reference of a further appeal to the Supreme Court means that there’s no further appeal to the Supreme Court in respect of Parliamentary Election petitions.

There’s further illustration of the above point when we look at article 280(2). Article 280(2) provides;

“Where a Commission of inquiry makes an adverse findings against any person, the report of the commission of inquiry shall for the purposes of this constitution be deemed to be a judgment of the High Court; and accordingly an appeal shall lie as of right from the finding of the commission to the Court of Appeal”

Here, a similar language in article 99(2) is used to say that an appeal shall lie as of right to the Court of Appeal from the findings of a Commission of Inquiry[27] without express mention of a further appeal to the Supreme Court. Can it therefore be reasonably concluded that the said provision intended to deny a person whom (or the state) a Commission of Inquiry has made adverse findings against, the right of further appeal to the Supreme Court? Take the Ayawaso West Wuogon Bye-Election Commission of Inquiry for instance. If there was a finding of say criminality against any of the persons brought before the commission and this is unsuccessfully appealed against at the Court of Appeal, can this provision which is in pari materia to that in article 99(2) be said to have foreclosed the Supreme Court’s final appellate jurisdiction to such a person? Indeed, if we are to follow the existing ratio which is in the case under review, the answer to this question should be in the affirmative. The Supreme Court must decline jurisdiction and shut its doors to such a litigant. Will this be a tenable Constitutional position given that the protection of fundamental human rights is at the core of our Constitutional order and same is cognisable in our Courts even up to the Supreme Court? It is submitted that if the Court is to indeed follow this reasoning, it will put the appellate jurisdiction of the Supreme Court in atrophy in respect of these two actions; Parliamentary election disputes and appeals against adverse findings from Commissions of Inquiry when there’s nothing unique about these actions for which the highest court of the land must decline jurisdiction to entertain on appeal.

A Search for the Intention Through History

The other important exercise was also to ascertain by some reference to our Constitutional history, the intention of the framers in respect of the appellate procedure for Parliamentary election petitions.

The Committee of Experts appointed to put together a proposal for a draft Constitution of Ghana made two recommendations in terms of what the Court structure should be. For the purpose of this piece, I would only focus on the First Alternative which was eventually adopted by the Consultative Assembly, and which formed the basis for the Court structure we have in our constitution today. At paragraph 270 of the Report, the Committee wrote:

“The High Court would continue to have its current jurisdiction as provided under the 1979 Constitution including adjudicating on human rights issues. Appeals from the High Court will lie to the Court of Appeal and then to the Supreme Court. This structure it is argued would enable the citizens to have access to two courts of appeal from a decision of the High Court”[28]

For the avoidance of doubt, the 1992 Constitution heavily mirrors the 1979 Constitution and most of the provisions of the 1979 Constitution, with the necessary modifications, were adopted into the 1992 Constitution.

The extract above which seems to be the raison d’etre for our Constitutional architecture in terms of appellate route in the Superior Courts lends further support to the view that the idea was to make all civil matters cognizable on appeal up to the Supreme Court, of course subject to the Constitution’s own express indication to the contrary.

When it comes to the Court of Appeal’s jurisdiction, what is in article 137 of the 1992 Constitution is essentially a reproduction of what the Committee of Experts recommended in paragraph 33 of Appendix H of their Report. Both inchoate and its corresponding complete provision do not have the word “final” in their renditions unlike what we see for that of the Supreme Court’s appellate jurisdiction which has the word “final” both in its inchoate form contained in paragraph 20 of the Report and its complete provision in article 129(1).

I have gone through pages of the Consultative Assembly Report, and I did not see any debate or commentary which evinces an intention to depart from paragraph 270 in respect of one particular civil matter called Parliamentary election dispute and restrict its appellate procedure only to the Court of Appeal. Neither did I come across any intention that paragraph 33 of Appendix H should have either expressly or by necessary implication, the idea of finality for Parliamentary election dispute when it is adopted.

Given that the framers of the Constitution knew when to grant jurisdiction and when not to as illustrated by article 48, supported by the palpable lack of support in any of the travaux preparatoires for the idea that article 99(2) intended to give final appellate jurisdiction, there can be only one reason attributed to the wording of article 99(2)- that no finality was intended.

The Problem of Interpretative Technique

The majority deployed the canon of interpretation known as the generalia rule as the basis for their decision.

To begin with, it is trite constitutional knowledge that a Constitution must be interpreted in a manner that its written word and the spirit that animates it coexist in perfect harmony. It must be interpreted sui generis and not as an ordinary enactment.[29] Judges are usually therefore slow in calling in aid, a single maxim of interpretation as the sole basis for their interpretation of the Constitution. Maxims are only a guide to interpretation and not binding rules. They are only secondary aides called upon to unravel the intention of the framers when it is clear that the provision in question admits ambiguities and or technical difficulties. Where the intention of the framers can be discerned either from a general reading of the Constitution or from the historical context of the provision, maxims as guides must not be invoked. It is therefore, with the greatest of respect, undesirable that the Court’s first and only resort to interpreting a Constitutional provision will be a maxim especially when the Court has failed to embark on that excursus to know the intention behind that provision. In any case, assuming that a conflict exists in interpretation and the generalia rule can be called in aid, the Court still failed to point out why 99(2) is a “special provision” enacted to give finality and precedence over 131(1)(a). Moreso, that provision could also be interpreted in the light of the expressio unis, est exclusio alterius rule as the only dissenting Judge did in the case. This rule is to the effect that where one or more things of a class are expressly mentioned, others of the same class are excluded. While in article 48(2) it is expressly mentioned that the decision of the Court of Appeal shall be final in respect of matters involving the demarcation of electoral boundaries, article 99(2) is silent on whether the decision from an appeal from the High Court in respect of Parliamentary election petitions is final. By the application of this rule, one can conclude that if the framers had intended to exclude further appeal from the decision of the Court of Appeal they would have expressly provided for as they did in article 48. The majority failed to address why it should not be this maxim that is called in aid and rather the generalia maxim even if we are to assume that maxims of interpretation is what should decide this apparent conflict.

It must also be observed that even though the decision was handed down a few years before the Modern Purposive Approach (MOPA) to interpretation began to hold sway in our Courts by the passage of the Interpretation Act,[30] it appears that the majority was applying this approach either knowingly or unknowingly. The Modern Purposive approach as has been touted by its proponents[31] aids the Court to, in interpreting a provision, move beyond the plain written text and consider the scope, purpose and context of that provision to give it a meaning that achieves the ends of justice[32]. Its advocate will usually take us back to the often-cited dictum of Justice Sowah in Tuffour v Attorney General[33] about a broad and liberal spirit being required for the interpretation of the Constitution and a doctrinaire approach not sufficing. The danger in the application of this approach has however been the tendency for Judges to read into provisions, words that are not there (as seen in the instant case) or take away from provisions, words expressly written into them in order to achieve this mechanism and to ostensibly do justice. In the instant case, the majority fell into this danger when they read into the provision in article 99(2), words such as “and the decision of the Court of Appeal on the matter shall be final” or “…and there shall be no further appeal to the Supreme Court” when these words were not in the provision. This is a danger that the Supreme Court warned of in Republic v Fast Track High Court, Accra; Ex Parte Daniel.[34] The Court speaking through Prof Kludze JSC remarked instructively:

“We cannot under the cloak of Constitutional interpretation rewrite the Constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution”[35]

More often than not, the Supreme Court has used the “unruly” public policy[36] rationale as the basis for invoking this approach in situations where giving effect to the literal text of a provision will lead to “absurdity[37]”(emphasis mine). The question therefore is, what absurdity was the majority preventing in the instant case when they sought to discard the literal interpretation and resort to an exercise to ascertain the intention of the framers, even if we are to accept that the MOPA approach was correct? What was going to be the effect of maintaining the strict text of article 99(2) and therefore recognizing that there’s further appeal to the Supreme Court under article 131(1)(a)? Would that lead to an abuse of the appellate jurisdiction of the Supreme Court? Certainly not.

The maximum number of cases that can emanate from Parliamentary elections in a given election cycle are 275, even though it is improbable that we will get anywhere close to this number given the trend of the number of disputes that come out from Parliamentary elections. In fact, at the time the decision was made, the number of Constituencies were even less. If all 32 million or so Ghanaians are entitled to the final appellate jurisdiction of the Supreme Court in respect of our lands, contracts and any other civil matter (of course subject to procedural issues of leave etc), how will a maximum number of 275 cases be what will abuse the appellate jurisdiction of the Court? The majority in trying to provide a semblance of rationale seem to have opined that the reason for limiting appeals in Parliamentary election petitions to the Court of Appeal is to save time and assure that a person who may be indeed unlawfully elected does not remain in Parliament for any undue length of time. Their Lordships cite the 21 days limitation period in section 18 of PNDC Law 284 to buttress the need for speed. Justice Sophia Akufo in her dissenting opinion brilliantly responds to the majority on this. If there is tardiness in the conduct of election petitions as there may also be for other disputes, the way to address this is through effective procedural rules which ensures speedy case management. Indeed, for Presidential election petitions, the Rules of Court Committee has taken cognisance of this and recently enacted C.I 99 with definite timelines to ensure the speedy disposal of Presidential election petitions that may come before the Supreme Court. The way to go therefore is not to tinker with the jurisdiction of the apex court by the addition of words not expressly provided if speedy disposal of adjudications for Parliamentary election dispute is a concern undergirding this decision.

Indeed, public policy concerns should rather have led the majority to acknowledge how Parliamentary representation is so important a matter for our democratic dispensation which the Supreme Court should not deny itself the opportunity to adjudicate over on appeal if need be. Once again, this point was not lost on Justice Sophia Akufo as she remarked;

“An election petition raises a question of the proper and lawful representation of the people, a crucial and fundamental factor in constitutionalism and democratic governance”[38]

PART IV

THE JURISPRUDENTIAL CONSEQUENCES OF THE DECISION

The result of the decision is that it raises two key issues for our constitutional jurisprudence.

First, that it creates by judicial decision, a “strange” final appellate power for the Court of Appeal which power is not conferred by the Constitution.

Second, it restricts by judicial decision, the appellate jurisdiction of the Supreme Court by taking out one civil action that becomes not cognizable at the Supreme Court on appeal.

But can the Supreme Court by judicial decision, grant and limit its jurisdictions?

The jurisdiction of a Court is the authority of that Court to entertain or decide a case. It connotes the limit or extent of the power of that Court.[39] It is so crucial for a Court because the absence of it, as was noted by Bamford Addo JSC (as she then was) in Edusei (No.2) v Attorney-General,[40] renders any ruling of the Court null and void. There are different types but as may have been observed, we are dealing with the appellate jurisdiction of the Supreme Court and of course the jurisdiction of the Court of Appeal.

It has been established by a plethora of judicial decisions that any appellate jurisdiction has to be a creature of a statute or the Constitution.[41] No Court has an inherent right to hear an appeal. Akufo-Addo CJ delineates this principle when he delivered the judgement of the Full Bench of the Court of Appeal in Nye v Nye[42]:

“It must be appreciated that there is no inherent right of appeal, in a litigant; nor indeed is there an inherent power in any court to hear appeals. Both the right and the power are creatures of statute and unless the enactment creating the right of appeal and the power to hear an appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialize.”

Indeed Dr. Justice Seth Twum writing for the majority in the case under review acknowledged this principle when he remarked that:

“It is trite law that all appellate jurisdiction must be conferred expressly by statute”.

He surprisingly however went on from here to confer a type of appellate jurisdiction-a final appellate jurisdiction- on the Court of Appeal which is not expressly created by the Constitution or statute. Nothing in the Constitution, nor the Courts Act, nor PNDC Law 284 nor any Rules of Court expressly or even remotely provides for a final appellate jurisdiction for the Court of Appeal in Parliamentary election petitions.

A logical corollary of the principle of express statutory conferment of jurisdiction is that what is to be conferred expressly must also be ousted expressly. If this principle is true, then unless there is an express provision in the Constitution ousting the appellate jurisdiction of the Supreme Court in respect of a matter (like it has for the demarcation of electoral boundaries under article 48(2)), it will be grave harm to interpret article 131(1)(a) to take out Parliamentary election petitions from its scope when its text says “an appeal shall lie as of right in a civil matter to the Supreme Court from a judgement of the Court of Appeal”.

These two major jurisprudential issues in the opinion of the present writer, forms an important basis for which the decision needs to be re-examined by the Supreme Court.

PART V

ARE THERE OTHER EXTERNAL REASONS WHY THE DECISION NEED TO BE REXAMINED?

Why should the foregoing analysis be given any weight beyond they being the questing thoughts of an uninitiated legal mind?

In the literature, a number of legal academics and personalities have equally looked at the decision with some level of disapproval and criticisms.

Dr Seth Bimpong-Buta is a Former Director of Legal Education and Director the Ghana School of Law and a Former Editor of the Ghana Law Reports. In his magnum opus “The Role of the Supreme Court in the Development of Constitutional Law in Ghana”[43] he comments on the decision as follows:

“Given the reasoning proffered by the judges in support of the majority and minority opinions in the Wulensi case, the minority view is, on balance, more preferable and convincing.”[44]

He continues in subsequent commentary:

“Given the plain and unambiguous provision in article 99(2), there was no need for the majority to put any gloss on or any additional words on the words stated in the article. It is respectfully submitted that article 99(2) simply means that an aggrieved person has the right to appeal to the Court of Appeal from the determination of the High Court in respect of an election petition. The decision of the majority in the Wulensi case to the effect that the decision of the Court of Appeal shall be final constitutes an unjustifiable gloss on article 99(2) which is not reasonably justifiable.”[45]

My own Faculty Dean, the venerable Professor Raymond Akongburo Atuguba in his well-researched Constitutional Law textbook[46] views the decision as not in tandem with the ideals of justice. He remarks that:

“This decision of the Supreme Court, denying itself jurisdiction which the Constitution has not expressly denied it, seems to be irreconcilable with the ideals of justice”[47]

A revered teacher of Constitutional Law, Dr Peter A. Atupare, who I was privileged to be his student of the course Jurisprudence, looked at the decision in terms of the jurisprudential technique that the Ghanaian Supreme Court is known for. In his seminal work,[48] the learned law teacher expressed concerns about how the decision does not reflect the approach to interpretation that the Court was known for:

“However, there may be some concerns that the Ghanaian Court may not be consistent with its largely acknowledged non-positivist approach to interpretation, at least in some areas of constitutional law. That is there are also signs of the restrictive constitutional-positivist approach and a case in point that illustrates this is Zakaria v Nyimakan”[49]

“That is if the express words of article 99 are conclusive of the legal values that the state intends to protect, as the majority conceives of it, then the opinion of the majority committed three interrelated blunders: first it is rooted on the factual basis of the provision in question; second it refrained from looking outside the legal text to the surrounding terrain of political morality and third, it subordinated the judge’s interpretative role to the narrow efforts of identifying facts about the intentions of the drafters on the provision in question.”[50]

Perhaps the most instructive critique of the case under review was offered by Kpegah JSC (as he then was) in his valedictory judgment. Even though Justice Kpegah was at the Supreme Court at the time, he was not in coram on this case. He therefore decided to take the opportunity in Republic v Nana Osei Kwadwo II[51] to as part of his final judgment, examine some of the decisions of the Court which he had reservations with, especially those in which in his own words “the Court has declined jurisdiction on grounds which appear to be too technical or to be a clear case of missaprehesnion of the relevant law”. What is most intriguing about Justice Kpegah’s exercise in this case is that the case in which he offered these opinions had nothing to do with election petitions or anything remotely related to the issues in the Wulensi case. In fact, it was a criminal appeal and not even in the broad category of a civil issue. Yet, the learned judge dedicated ink to comment on the Wulensi case which was decided 5 years or so before then. This demonstrates how this decision had always been of concern to him and for which he was waiting for the right time to express his views on. For reasons which should be obvious, I shall set out excerpts of the views of Justice Kpegah in extenso:

‘With much respect to my learned and respected colleagues I think this was a situation of what Shakespeare described in one of his plays as the devil citing the scriptures to suit his purpose. I say so because there are well established and more valid principles of interpretation in favour of the Supreme Court having appellate jurisdiction in such matters. For example, presumption of jurisdiction in favour of a Superior Court unless expressly denied; especially when the court is designated as the final appellate court of the land. The argument about a party not having an inherent right of appeal unless granted by statute cannot hold either. This is because it is expressly stated in article 131(a) that “an appeal shall lie from a judgment of the Court of Appeal to the Supreme Court” as of right in “a civil or criminal cause or matter”. This is because even the majority speaking per Twum, J.S.C. held the ambivalent position that “admittedly, in a wider sense, it may be said that article 137(1)(a) should give a further right of appeal to the appellant”. This reasoning to me means that although there is no express provision denying the Supreme Court appellate jurisdiction, this court decided, for unexplained reasons, to deny itself appellate jurisdiction in such matters. However my learned and respected sister Sophia Akuffo, J.S.C. in a sensible and practical approach hit the nail right on the head when she held “article 99(2) makes no mention of a further appeal to the Supreme Court … given the language of article 131(1) and (2) and the structure of the constitution, 1992 there was no need to do so; and the mere fact that no such mention is specifically made in article 99, cannot justify a conclusion that an appeal cannot lie from a decision of the Court of Appeal in such matters”.

He continues by asking these questions:

“Can the Supreme Court then ever exercise the powers granted it under article 131(2) to grant special leave to appeal in matters involving election petitions or not, when there is no provision identifying the cases in which it can grant the special leave to appeal. Or the framers have inserted this provision intending it not to be used in such cases even if the applicant can meet the standard set for the exercise of this special power reserved for the highest Court to prevent the failure of justice!”

He concludes by making the following points:

“However, I hold the view that under the current dispensation and considering the constitutional structure, unless expressly or by necessary implication so stated, the Supreme Court is not only an octopus but a hydra as well. My view is that a careful reading of the whole of article 136 the Supreme Court can hardly be said not to have appellate jurisdiction in any justiciable cause or matter, be it civil or criminal. I have come to this conclusion because of the dramatic change in language when it came to specifying the residuary appellate jurisdiction of the Supreme Court, in article 129(4) which vests “the Supreme Court with all the powers, authority and jurisdiction vested in any court established by this constitution or any other law”. In respect of the High Court and the Court of Appeal however their residuary appellate jurisdiction is limited to the court from which the appeal emanated. See article 140(5) and 137(3) respectively.”

It is my hope that these words of Justice Kpegah will continue to echo in the corridors of the Supreme Court so that when the opportunity present itself, the Court will have a cause to re-look the decision in question.

PART VI

CONCLUSION

This piece has put the decision in the Wulensi case under scrutiny. By way of introductory comments, it began by pointing out how fundamental periodic elections have been for the stability of our democracy. It then commented on the general character of Parliamentary election petitions pointing out some salient procedural issues. The author proceeded to put out the brief facts of the case and to analyze the decision in the light of the relevant constitutional provisions and the faulty interpretative technique which the Court used in arriving at the decision as well as the jurisprudential consequences arising from this decision. The crux has been that the decision does not, with the greatest of respect, accord with our Constitutional and democratic tenets because of its palpable lack of support for it from the plain text of the relevant constitutional provisions as well as the purpose, context, and history behind them. The piece also relied on similar opinions of weightier legal minds in support of its main position.

Since this year[52] is an election year, I would like to adopt the words of Justice Kpegah in the Osei Kwadwo case cited supra in my concluding comments, with the necessary modifications.

“This country is going into an election which can be described as cliff hangar elections. We need to have the final say in such matters as the final appellate court of the land. It was the ballot-box which shattered the peace and stability in Kenya.”

Every election in Ghana, at least those I have seen in my adult life, has been described as a “cliff hanger” and a decisive one. That is because we operate a very competitive system where the victor takes it all and the vanquished loses it all. This makes our elections, both Parliamentary and Presidential, a “do-or-die” affair for its players and with it comes the concern for effective and final dispute resolution. This, even if the legal arguments canvassed will not suffice, should be a major public policy concern for which Parliamentary election disputes should be cognizable at the apex court on appeal. When this happens, the Supreme Court’s role as a lynchpin institution of our democratic journey will further be deepened.

*****END*****

[*] *B.A, LLB, BL (Candidate). The author is a Communications Professional with close to a decade’s experience working with and consulting for local and multinational organizations. His forte is in Communications Strategy development, Stakeholder Mapping and Building, Media Relations & Influence, Brand Positioning and Corporate Editorial Services. He can be reached on alphaben30@gmail.com

[2] Kumado, Kofi (2021): A Handbook of the Constitutional Law of Ghana and its History, p.473

[3] Article 99 gives the High Court the original jurisdiction in Parliamentary election disputes, while Article 64 gives exclusive jurisdiction to the Supreme Court in cases of Presidential election dispute

[4] [2003-2004] SCGLR 1

[5] Per article 129(3), the Supreme Court can depart from its previous decision when it appears to it right to do so.

[6] [1997-98] 2 GLR 245

[7] Article 99(1)(a) states that “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant”

[8] Article 94 provides for the grounds on which a person may be disqualified from becoming a member of Parliament

[9] [2011] SCGLR 1081

[10] [2007-2008] SCGLR 611

[11] [2011] SCGLR 132

[12] [2009] SCGLR 460

[13] [2009] SCGLR 447

[14] Order 2 Rule 2 of the High Court Civil Procedure Rules, 2004 (C.I.47 as variously amended)

[15] Example of actions to be commenced by petition include matrimonial causes as found under the Matrimonial Causes Act 1971 (Act 367)-See Order 65 Rule 2 of C.I.47, and Insolvency proceedings under the Companies Act, Act 992 and Order 60 of C.I.47

[16] Sarkodee I v Boateng II [1982-83] GLR 715, Manu v Nsiah [2005-2006] SCGLR 25

[17] Under subsection 3 of section18, the timelines provided for presenting the petition is not to be extended

[18] [2000-2001]SCGLR 595

[19] [2001-2002]1GLR 311

[20] Section 18(2) of PNDC Law 284

[21] Section 19 of PNDC Law 284

[22] Per Wiredu CJ, Acquah, Afreh, Dr Twum JJSC with Sophia Akuffo JSC dissenting.

[23] As stated in the judgment at p.16

[24] Ibid at 6

[25] [2013] SCGLR (Special Edition)

[26] Gleaned from the author’s own cursory word search of the digital version of the 1992 Constitution.

[27] Which becomes a judgement of the High Court on the occurrence of any of the conditions stated in clause 5 of same article 280

[28] Committee of Experts Report for Draft Proposal of Constitution (1991) para-270

[29] As noted by Francois JSC(as he then was- one of my all time favourite jurists because of the beauty of his language-God bless his soul wherever he is) in NPP v GBC [1993-94] 2 GLR 354

[30] The Memorandum to the Interpretation Act, Act 792 indicates that the Courts has now actively moved away from the strict constructionist view to finding the purpose of a provision.

[31] Notably Date Bah JSC as he then was in many of his judgments

[32] Date-Bah S. (2015) Reflections on the Supreme Court of Ghana p.171

[33] [1980] GLR at p.647

[34] [2003-2004] SCGLR 364

[35] Ibid at p.370

[36] It was Burrough J way back in 1824 who first described public policy as “a very unruly horse and when you get astride you never know where it will carry you”

[37] As the Supreme Court in Ransford France (No.3) v Electoral Commission & AG [2012]1SCGLR 705 applied the MOPA and held that a literal interpretation of the provision in question would lead to a “a nuclear meltdown of government”. Similar thinking influenced the decision in Ayine v Attorney General (J1/05/2018) [2020] GHASC 21 (13 May 2020)

[38] Ibid at 3. p.16

[39] Brobbey, S.A (2011) Practice and Procedure in the Trial Courts & Tribunals of Ghana (2nd Edition) p.31

[40] [1998-1999] SCGLR 753

[41] See for instance In Re Okine [1960] GLR 80; Nye v Nye [1967] GLR 76; In Re Yendi Skin Affairs; Yakubu v Abudulai [1984-86] 2 GLR 226; Bosompem v Tetteh Kwame [2011] 1 SCGL 397

[42] [1967] GLR 76 at p.83

[43] (2007) 1st Edition- Black Mask Publication

[44] Ibid at p.540

[45] Ibid at p.541

[46] Atuguba, A. Raymond (2022) The New Constitutional and Administrative Law of Ghana; From the Garden of Eden to 2022. UG Printing Press

[47] Ibid at p.292

[48] Atupare ., P. A (2013) Constitutional Justice in Africa: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria. PhD thesis, Queens University.

[49] Ibid at p.134

[50] Ibid 42 at p.136

[51] Supreme Court, Criminal Appeal No.2/2000, 11 July 2008 (Unreported)

[52] If you are reading at a later year, this article was authored in 2024 which was an election year in Ghana.

Source - Benjamin Alpha Aidoo