The Supreme Court on Wednesday by a unanimous decision declared the new Local Government Legislative Instrument (LI) 1983, which came into effect on November 24, 2010 null and void and unconstitutional.
This followed a writ filed at the Court by a group of people from Ledzokuku-Krowor Municipal Assembly (LEKMA), to restrain the Electoral Commission (EC) from going ahead to conduct elections, based on the LI.
The defendants, EC and the Attorney-General contended that LI 1983. which followed a previous one, was an amendment, therefore, Parliament had every right to amend such subsidiary legislations.
The nine-member panel whose decision was read by Mr Justice Sulley Gbadegbe, however, could not agree with that contention and stated that when a subsidiary legislation was laid before Parliament, the legislative body had the option of nullifying such instruments rather than an amendment.
He said the Attorney-General’s argument that LI 1983 was to amend the previous subsidiary legislation could not hold per the 1992 Constitution since the mandatory 21 days of which such an instrument becomes part of the laws of Ghana had elapsed.
It would be recalled that a group of people from the Ledzokuku-Krowor Municipal Assembly, issued a writ to restrain the EC from conducting the elections, and sought a declaration from the court that the LI was made in contravention of Article 11(7) of the 1992 Constitution.
In addition, the group sought an order from the court to declare LI 1983 null and void, and of no legal effect.
The plaintiffs were Stephen Nii Bortey Okane, Sheriff Bortei Borquaye, Anum Kattah, Eric Tawiah, Edward Borketey and Alfred Mensah Tawiah.
Also joined in the suit were, Minister of Local Government and Rural Development, and the Attorney General and Minister of Justice.
The plaintiffs said on October 19, 2010, Mr Joseph Yieleh Chireh, Minister of Local Government and Rural Development, laid the Local Government (creation of new district electoral areas and designation of units) LI 1983 before Parliament, after Cabinet’s approval and gazette, in accordance with the Constitution.
In their statement of claim, they said Article 11 (7) of the 1992 Constitution said; ‘Any order, rule or regulation made by a person or authority under a power conferred by the constitution or any other law shall (a) be laid before Parliament and (b) be published in the gazette on the day it was laid before Parliament.
“And (3) come into force at the expiration of 21 sitting days after being so laid, unless Parliament, before the expiration of 21 days, annuls the order, rule or regulation by the votes of not less than two-thirds of all the Members of Parliament.’
The group claim further that before LI 1983 came into force, each of the two traditional areas that formed the Ledzokuku-Krowor Municipal Assembly (LEKMA), Ledzokuku (Teshie) and Krowor (Nungua), had four electoral areas, but when LI 1983 was laid before Parliament, the number of electoral areas increased from four to 12 each.
However, ‘In pursuant to Order 77 of the Standing Orders of Parliament, the Speaker of Parliament referred the Instrument to the Subsidiary Committee on Legislation, which said the order has pari materia with article 11(7) of the 1992 Constitution,’ the group noted.
The plaintiffs continued that when finally, Parliament announced the coming into force of LI 1983, they discovered that the number of electoral areas within the Ledzokuku-Krowor Municipality, which was 24, had become 28, with Krowor maintaining the 12 electoral areas, but Ledzokuku moved up to 16 electoral areas.
They contended that LI 1983, as gazetted on October 19, 2010, and referred to the Committee on Subsidiary Legislation, was not what had now been passed as LI 1983.
“This is because the Ledzokuku-Krowor list of electoral areas of 24, which dramatically changed to 28, was not as a result of not less than two-thirds of all Members of Parliament annulling the said instrument, before the expiration of 21 sitting days, in accordance with article 11(7) of the Constitution,’ the plaintiffs explained.
Quite apart from that, they said the EC had also declared its intentions, and in fact, given out clear notices for the conduct of the district assembly and unit committee elections, scheduled to take place on December 28, 2010, based on the LI 1983. GNA