The Member of Parliament (MP) for Effutu in the Central Region, Mr Alexander Afenyo-Markin, has made known his intention to institute contempt proceedings against President John Dramani Mahama for appointing a new Chairperson for the Electoral Commission (EC), in spite of the pendency of a legal suit on the same subject matter.
In May this year, Mr Afenyo-Markin, who is also a lawyer, filed a suit on behalf of a broadcast journalist, Mr Richard Dela Sky, invoking the original jurisdiction of the Supreme Court to seek interpretation as to who had the constitutional mandate to appoint the chairman of the EC.
But while the suit was pending, President Mahama, on June 25, 2015, appointed Mrs Charlotte Osei to replace Dr Kwadwo Afari-Gyan, who has retired.
Mrs Osei, who was sworn in on June 30, 2015, was until her appointment the Chairperson of the National Commission for Civic Education (NCCE).
According to Mr Afenyo-Markin, the President’s action undermined the court’s authority, as a result of which he should be cited for contempt.
DAG rebuts However, a Deputy Attorney-General and Minister of Justice, Dr Dominic Ayine, has dismissed Mr Afenyo-Markin’s claims. He said the President’s action did not amount to disobedience to the highest court of the land.
“That action does not undermine the authority of the court,” he stressed.
‘You know what to do’
The Chief Justice, Mrs Justice Georgina Theodora Wood, advised Mr Afenyo-Markin to take the proper course of action.
Other members of the panel were Mr Justice William Atuguba, Mrs Justice Sophia Adinyira, Mr Justice Anin Yeboah, Mr Justice Jones Dotse, Mr Justice N. S. Gbadegbe and Mr Justice Anthony A. Benin.
The MP told the Daily Graphic after the hearing that he hoped to file the application for committal for contempt by the close of work on Thursday or latest by Friday, July 17, 2015.
Consolidating cases Earlier, the court had directed the parties to consolidate their cases.
Another applicant, Kwasi Danso Acheampong, is seeking similar reliefs like Mr Sky’s but the court directed the legal teams for Messrs Sky and Acheampong to formally apply to join a suit filed by the Ghana Bar Association (GBA) and three others over the duties of the President in the appointment of Supreme Court justices.
According to Messrs Sky and Acheampong, the President was bound by Article 70(2) of the 1992 Constitution to appoint an EC Chairman based on the advice of the Council of State, while the GBA and others are praying the court to declare that upon true and proper construction of Article 144 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Supreme Court are valid on the condition that they are made in strict accordance with the advice of the Judicial Council.
Although the GBA is seeking the interpretation of a different provision under the 1992 Constitution, the binding effect is that they all border on the powers and limitations of the President.
The court was of the view that the GBA’s suit was well prepared, and for that reason the other parties should apply to join. The matter was adjourned sine die to enable the parties to comply with the court’s directives.
Suits The interpretation being sought by Mr Sky arises from a friction between two constitutional provisions.
The first one enjoins the President to make such an appointment based on the advice of the Council of State.
However, another provision states that the President is not bound by the recommendations of the Council of State.
In his statement of claim, the plaintiff averred that what in his view was pivotal in the determination of the suit was whether or not the operative phrase “acting on the advice of the Council of State” had any mandatory binding effect.
Binding on President “My humble view is that the use of the phrase is not accidental and, therefore, has a binding effect, as used in the context of the 1992 Constitution,” the statement posited.
Section 2 of Article 70 of the 1992 Constitution provides that “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman and other members of the Electoral Commission”.
However, Clause 3 of Article 91 of the Constitution states that “the Council of State may, upon request or on its own initiative, consider and make recommendations on any matter being considered or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution, except that the President, Minister of State, Parliament or any other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause”.
The statement contended that those provisions had brought to the fore many divergent views on the appointment of the Chairman of the EC, vis-a-vis the roles of the President and the Council of State.
It said if that issue was not settled once and for all, it could lead to unnecessary political apprehension when eventually an announcement was made on the appointment of a new Chairman of the EC.
The statement averred that it was evident, per Article 91, Clause 4 of the Constitution, that the functions of the Council of State in the appointment of the chairman and deputies, as well as other commissioners of the EC, was one conferred on the Council of State by the Constitution and not one of opinion sought by the President.
“Thus, any such advice in this direction by the Council of State becomes constitutionally binding on the President. The President has no unfettered discretion to take or disregard such advice,” it maintained.
“The present action seeks the intervention of this Honourable Court to determine the true and proper meaning of the relevant aforementioned provisions in the 1992 Constitution,” it added.
GBA Suit Meanwhile, the GBA and three others have instituted legal action to bring an end to what the association termed “persistent” failure of Presidents in the Fourth Republic to seek the advice of the Judicial Council before appointing judges to the Supreme Court.
In a 66-page writ of summons and statement of case seeking to invoke the original jurisdiction of the Supreme Court, the plaintiffs are praying the highest court of the land to direct the President to fully comply with Article 144 (2) and (3) of the 1992 Constitution, which admonishes the President to appoint justices to the Supreme Court upon advice from the Judicial Council.
The other plaintiffs in the case are the President of the GBA, Nene Amegatcher; Mr Justin Amenuvor and Frank Beecham, all legal practitioners.
The defendants are the Attorney-General and Minister of Justice and the Judicial Council.
According to the plaintiffs, “Since the 1992 Constitution came into force, Presidents after Presidents have not acted fully on the advice tendered by the Judicial Council in the appointment of Superior Court judges”.
They are by the writ of summons and statement of case seeking to put an end to the flagrant disregard for the 1992 Constitution.
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