NDC, MORNAH IN COURT

Bernard Mornah

 

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday January 3, 2013. 

The Constitutional Instrument (C.I) 74 which was used to regulate the just-ended general elections faces stiff test in the law courts as Bernard Mornah, General Secretary of the People’s National Convention (PNC) has just filed a suit at the Supreme Court asking that CI 74 be declared ‘null and void’.

Meanwhile, the National Democratic Congress (NDC) has also filed a motion at the Supreme Court to join in the petition brought against President John Dramani Mahama as well as the Electoral Commission.

The NDC says the decision was taken because the President was elected on its ticket, hence, the need for the party to express interest in the proceedings in court.

Both court action come in the wake of an earlier suit filed by the opposition New Patriotic Party (NPP) to challenge the Electoral Commission’s (EC) declaration of John Dramani Mahama as President-elect in the just-ended general elections.

With regards to the action brought by Bernard Mornah, even before the matter is determined, some conspiracy theorists are beginning to contemplate that the PNC general-secretary’s move is to ‘scatter’ the NPP’s attempt to seek justice in the election they described as ‘fixed’ in favour of the President.

Mr. Mornah’s suit, filed by his counsel Dr. Raymond Atuguba, Executive Secretary of the defunct Constitutional Review Commission (CRC) on December 30, 2012 cites the Attorney-General as the defendant.

He is seeking a declaration that “on a true and proper interpretation of Articles 133, 157, 93(2) and 11 of the 1992 Constitution; Rule 71B, a portion of Rule 69C (5) and a portion of the Supreme Court (Amendment) Rules, 2012 (C.I. 74) are unconstitutional and must be declared null and void and of no effect.”

He also wants “any consequential orders” that the highest court of the land may deem fit.

In the facts of the case, the PNC General Secretary averred that in early December 2012, he noticed that Rule 71B and a portion of Rule 69C (5) “do not appear to be consistent with provisions of the 1992 Constitution.”

He said consequently he sought legal advice and now brings the action to “declare Rule 71B and a portion of Rule 69C (5) of C.I. 74 unconstitutional.”

The plaintiff insisted that he has the capacity to initiate the action and cited the case of “Dr. Clement Apaak v. Electoral Commission and Attorney-General” to back his claim.

Mr. Mornah said the unconstitutionality of Rule 71B of C.I. 74 stems from the fact that Article 133 has come to provide “a right to every potential and actual party to a suit in the Supreme Court to apply for a review of a decision of the Supreme Court,” adding “ and in that regard, the party must benefit from the attention of at least seven Supreme Court judges and no less.”

“To the extent that Rule 71B of C.I. 74 seeks to extinguish the constitutional right in Article 133 of the Constitution to seek a review of a decision of the Supreme Court in Presidential election petitions, same is unconstitutional, null and void, and of no effect and the plaintiff requests this Honourable court to so declare.”

On the unconstitutionality of a part of Rule 69C (5) of C.I. 74, the PNC General Secretary said “Given the hierarchy of norms provided for in Article 11 of the constitution, it is unconstitutional for C.I. 74, a piece of subordinate legislation, to contradict the Public Holiday Act, an act of Parliament.”

The plaintiff said that “the Rule of Court Committee does not have the power to make rules to regulate ‘practice and procedure’ under Article 64 which have no effect of obviating and extinguishing a substantive rule of law on holidays in Ghana.”

 

“It is unconstitutional for the Rule of Court Committee to arrogate itself the power to amend Acts of Parliament. That power is reserved for Parliament by Article 93 (2) of the constitution.”