NEW PATRIOTIC PARTY vs. RAWLINGS AND ANOTHER [1994]DLSC771

Date	1994-05-03
Suit No.
Citation No.	[1994]DLSC771

ABBAN JSC

AMUA-SEKYI YSC

AIKINS JSC

BAMFORD-ADDO JSC

AMPIAH JSC

PETER ALA ADJETEY (WITH HIM SAM OKUDZETO KWADWO AFRAM ASIEDU PHILIP ADDISON AND WILLIAM ADDO) FOR THE PLAINTIFF.

DR OBED ASAMOAH ATTORNEY-GENERAL (WITH HIM MARTIN AMIDU DEPUTY ATTORNEY-GENERAL AND MRS ADUSA-AMANKWA CHIEF STATE ATTORNEY) FOR THE DEFENDANTS.

[1994]DLSC771
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">NEW PATRIOTIC PARTY<o:p></o:p><a name="_gjdgxs"></a><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">RAWLINGS AND ANOTHER<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 2 GLR 193<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>PETER ALA ADJETEY (WITH HIM SAM OKUDZETO, KWADWO AFRAM ASIEDU,
PHILIP ADDISON AND WILLIAM ADDO) FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DR OBED ASAMOAH, ATTORNEY-GENERAL (WITH HIM MARTIN AMIDU, DEPUTY
ATTORNEY-GENERAL AND MRS ADUSA-AMANKWA, CHIEF STATE ATTORNEY) FOR THE
DEFENDANTS. <o:p></o:p>

ABBAN, AMUA-SEKYI, AIKINS, BAMFORD-ADDO AND AMPIAH JJSC<o:p></o:p>

</div>JUDGMENT OF AMUA-SEKYI JSC.<o:p></o:p>On 16 September 1993 this court unanimously decided in New
Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC, ante, that
elections which were then due to be held by the Electoral Commission set up
under article 43 of the Constitution, 1992 for the purpose of approving nominations
purported to have been made by President Rawlings, the first-named defendant,
under article 243(1) to the office of district chief executive, would violate
the Constitution, 1992 as the district assemblies established under the
provisions of section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no
power to give such approval. The next day, it was announced that the
first-named defendant had appointed those same persons as district secretaries
under section 21(1) of PNDCL 207. The plaintiff says that this was unlawful and
it has filed this writ to challenge his right to do so. The Attorney-General is
named as the second defendant.<o:p></o:p>As formulated in its writ and statement of case, the complaint of
the plaintiff is that the appointments are inconsistent with, and a
contravention of articles 242, 243, 246 and 247 of the Constitution, 1992. It
asks for a declaration to that effect, an order setting aside the appointments
which were made and an injunction restraining the first-named defendant from
making other such appointments in the future. If the plaintiff is right, then
there is a hiatus in the law for whereas, by our decision, the first-named
defendant could not lawfully appoint district chief executives, he could not
also appoint district secretaries.<o:p></o:p>Article 242 of the Constitution, 1992 deals with the composition
of district assemblies, article 243, with the office of district chief
executive; article 246, with the term of office of members of district
assemblies; and article 247 gives Parliament power to make laws on the
qualifications for membership and the procedures of district assemblies.
Article 247 does not seem to be relevant to the matter before us. As at the
time the appointments were made, indeed when the writ was filed, Parliament had
not exercised the power conferred on it, there were no laws made pursuant to
the article which could have been contravened. Articles 242, 243 and 246 of the
Constitution, 1992 formed the basis of the opinions we delivered in the earlier
case and which resulted in the order of injunction restraining the Electoral
Commission, I stated (supra) at 136:<o:p></o:p>[p.199] of [1993-94] 2 GLR 193<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The defendant-commission ought to have known that they were
embarking on an illegal and unconstitutional act. PNDCL 207 gave members of
district assemblies no power to give approval to the appointment of district
secretaries, by whatever name called; the office of district chief executive
was created by the Constitution, 1992 not PNDCL 207, the composition of
district assemblies under the Constitution, 1992 is different from that under
PNDCL 207; under the Constitution, 1992 the term of office of an assembly
member is limited to four years, whereas that of the assembly members elected
under PNDCL 207 has already extended beyond four years.”<o:p></o:p>Our decision was that the assemblies set up under PNDCL 207 could
not lawfully perform the functions of those set up under the Constitution,
1992.<o:p></o:p>At the time we gave our decision, the assemblies were performing
functions under PNDCL 207 without any eyebrows being raised. So were the
district secretaries appointed under the Law. Perhaps, if an attempt had not
first been made to appoint district chief executives—a position known only to
the Constitution, 1992—but instead, district secretaries had been appointed to
fill vacant posts, the propriety of the action would not have been questioned.
We are not, however, concerned with the sequence of events. Our task is to
examine the action and see if it was lawful.<o:p></o:p>It will be recalled that although the Constitution, 1969 came into
force on 22 August 1969, it was not until 9 July 1971 that the Local
Administration Act, 1971 (Act 359) was passed to bring the law regulating local
government into conformity with the Constitution, 1969. In the interval, local
government bodies continued to function under the authority of the Local
Government Act, 1961 (Act 54), as amended and the Local Government (Interim
Administra</main>