MORNAH WINS CASE

Bernard Mornah in suit

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Weddnesday May 1, 2013

The Supreme Court yesterday ruled that certain aspects of the Constitutional Instrument (C.I.) 74 used to regulate the December 7 & 8, 2012 general elections are unconstitutional.

As a result, the seven-member panel chaired by Justice Julius Ansah unanimously held that sitting on holidays as well as weekends by the court as prescribed by C.I. 74 is inconsistent with the law and, therefore, unconstitutional.

The court further held that the decisions arising out of disputes under C.I. 74 can also be reviewed and thus went ahead to nullify Rule 71(b) of C.I. 74 which provides that the decision of the Supreme Court in respect of a petition presented to challenge the election of a President cannot be reviewed.

The case was filed by Bernard Mornah, General Secretary of the People’s National Convention (PNC) seeking the annulment of C.I. 74.

The suit appeared to be in favour of the National Democratic Congress (NDC).

Panel

Apart from Justice Ansah, other Justices on the panel were Sophia O. Adinyira, Rose C. Owusu, Anin-Yeboah, Sule N. Gbadegbe, Vida Akoto-Bamfo and A.A. Benin.

The application had been filed in late December 2012 by Raymond Atuguba, the man who was later appointed as Executive Secretary to President John Mahama.

The action come in the wake of the petition filed by the New Patriotic Party (NPP) presidential candidate Nana Addo Dankwa Akufo-Addo and two others to challenge the validity of the election of Mr Mahama as President.

Even before the matter was determined, some conspiracy theorists were contemplating that the PNC general-secretary’s move was to ‘scatter’ the NPP’s attempt to seek justice in the election they described as ‘fixed’ in favour of President Mahama.

Mr Mornah’s suit filed on December 30, 2012, cited the Attorney-General, who was represented by Principal State Attorney, Sylvester Williams, as the defendant.

Reliefs Sought

He was 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.”

Facts of the Case

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 had 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 stemmed from the fact that Article 133 had 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 to itself the power to amend Acts of Parliament. That power is reserved for Parliament by Article 93 (2) of the Constitution.”