IN RE ELECTION OF FIRST PRESIDENT; APPIAH V ATTORNEY-GENERAL

                                     COURT OF APPEAL (1969) 2 G & G 530

COMMENTARY ON THE CASE) By DR SETH Y BIMPONG-BUTA IN BOOK: THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA: Pages 225-227

In ApPiah v Attorney-General (supra), the petitioner challenged the validity of the election of Mr Edward Akufo-Addo as the First President of the Second Republic of Ghana under the provisions of the Transitional Provisions to the Constitution, 1969. The petitioner sought a declaration that certain constitutional instruments published by the Interim Electoral Commission and under which the election was conducted, were in contravention of the provisions in the First Schedule to the Transitional Provisions of the Constitution. The Court of Appeal unanimously dismissed the petition on the ground (per Edmund Bannerman Ag CJ) that:

"There has been no evidence adduced concerning the actual conduct of the election of the First President to show that anything was done or any law or regulation was applied or followed ... during the election which was contrary to the letter, sPirit and intent of the Constitution. "

The same conclusion was reached by the Supreme Court in its decision given on 16 September 1993 in New Patriotic Party v Electoral Commissiqn (supra). In this case the plaintiff, a political party, sued for a declaration that the intended or proposed election of district

, chief executives by district assemblies (which were yet to be established under article 242 of the Constitution), for each district as envisaged by article 243 (1) of the 1992 Constitution, was illegal and in contravention of the Constitution. The said article 243 (1) provided for the appointment of a district chief executive by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting. The court found that the composition and functions of district assemblies established under the Local Government Law, 1988 (PNDCL 207), as subsequently amended by PNDCL 306, were completely different from the composition and functions of the district assemblies which were yet to be established under article 242. Consequently the Supreme Court unanimously held that the district assemblies as then constituted could not take a decision on a matter such as the appointment of a district chief executive under article 243; that the district assemblies, as then composed, were incompetent to hold elections for the purpose of approving candidates for appointment as district chief executives. In so holding, the Supreme Court (per Abban JSC (as he then was)) said:

Any election intended to be held in the present district assemblies for that purpose would be contrary to the letter and sPirit of the Constitution, 1992. In short, it would be unconstitutional.

The same conclusion was again reached by the Supreme Court in the subsequent case of Apaloo v Electoral Commission of Ghana. [2001­2002] SCGLR 1. The court found that the Public Elections Regulations, 1996 eCI 15), had been properly made by the Electoral Commission pursuant to its powers under article 51 of the 1992 Constitution; that regulations 30 and 31 of the said regulations had given the power to check and verify the identity of prospective voters to officers of the Electoral Commission, namely presiding officers or polling assistants. Consequently; the Supreme Court unanimously held that the directives given by the Electoral Commission as published in Gazette Notice of 27 November 2000, and which had given the power of identification of prospective voters to candidates agents, and not to its officers, as required by the regulations, namely CI 15, was ultra vires the said regulations. The directives were therefore declared a nullity. In her opinion in support of the decision of the court, Bamford­Addo JSC emphasised the mischief sought to be prevented by the Constitution Her ladyship said:

[W]hereas the 1992 Constitution has been so designed to make the defendant commission completely independent in the performance of its duties and functions, the directives of the commission amounted to a delegation of its duties; it would, if permitted to be effective, be contrary to the mischief sought to be prevented by the Constitution, namely to empower the commission to act in a non-partisan and fair manner in the discharge of its functions. The directives are contrary to both the letter and the spirit of the Constitution and contravened Articles 42,51,46,21 (3) and 55(2) thereof and are therefore null and void."