Abu Ramadan
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday, August 1, 2013
The Supreme Court has unanimously ruled that Abu
Ramadan, National Youth Organizer of the People’s National Convention, will not
be allowed to seek review of the court’s decision that presidential election
petitions can be reviewed.
The nine-member panel presided over by Justice
Julius Ansah however, deferred the reasons for disqualifying Abu Ramadan to
October, due to the commencement of the annual legal year.
Abu Ramadan was seeking to challenge his colleague, Bernard
Mornah also General Secretary of the PNC, who had successfully challenged the legality
of certain aspects of the Constitutional Instrument
(C.I.) 74 that was used to regulate the December 7 & 8, 2012 general
elections.
The highest court on
April 29, 2013, had ruled that certain aspects of the C.I. 74, including a
section that did not allow an aggrieved party in a Presidential Election
Petition to file for review, were unconstitutional.
As a result, Abu
Ramadan tried to test the law by filing an application for review to challenge
Mr. Mornah.
He, however, did not
even get the chance to move his application because Mr. Mornah’s legal team had
raised preliminary objection against the PNC Youth Organizer and the court
accepted the PNC General Secretary’s argument.
Before Samuel Atta
Akyea, counsel for Abu Ramadan could move his motion, Benson Nutsukpui for Mr.
Mornah was on his feet with a preliminary objection.
Mr. Nutsupkui argued
before the packed court which had all the NDC legal team members in the ongoing
Presidential Election Petition present in attendance that “We have filed a statement
of case and indicated that were raising a preliminary legal objection.”
He said he was raising
the objection on two grounds namely: applicant (Abu Ramadan) did not have the
capacity and locus standi to bring the application and also applicant did not satisfy
any of the laid down rules needed to file for the review.
Mr. Nustukpui argued
that “the applicant has not got the capacity and locus standi to file this
application. Review applications by its very nature does not admit third party
bystanders.”
He said the
applications for review by law are brought by parties in the original suit and
not people who were not involved saying “applicant was not a party in the
original suit.”
“Saying it is a
constitutional matter and therefore you have a right to be party to it is not
enough for a third party bystander to come to review this case.”
Mr. Nutsukpui said if the
applicant was allowed to join the review process, it would “open the floodgates
and ‘set a dangerous precedence”.
He said that the route
being used by the applicant for a review is not even prescribed under the law
saying “the means by which he is coming is not one of the approved means.”
He said the applicant
is trying to use the “back door” to enter the process adding “there are laid
down conditions he has to follow but did not do so.”
When he took his turn,
Atta Akyea argued that, the submissions of Mr. Mornah’s counsel was more like
“addressing inter-party litigations.”
He said “this is an
arrangement in which a third party is trying to come under Article 2 (1).”
Justice Anin Yeboah, a
member of the panel then reminded counsel that “this is not a substantive
action,” where an applicant could easily join a process but Mr. Atta Akyea said
“this is a constitutional matter.”
Justice Anin Yeboah
again said that “the constitution gives you the jurisdiction but it must be
regulated by Rules of Court.”
Mr. Atta Akyea said
that “what has happened is indicative that the Attorney General is reluctant to
file for review and therefore might not be interested in upholding the
constitution.”
Justice Sulley N.
Gbadegbe asked Mr. Atta Akyea to consider a situation whereby the applicant (Mornah)
decided that he was no longer going to pursue the issue and juxtapose it to his
client’s application but counsel replied that “it will be a weird scenario.”
Mr. Atta Akyea said the
Attorney General is supposed to defend the case and once that was not done any
citizen could take it up to also defend the constitution saying “a citizen
needs no locus standi to defend the constitution.”
Justice Rose Owusu,
another member of the panel reminded Mr. Atta Akyea that even though the
applicant had a right to defend the constitution, Mr. Mornah’s legal team was
concerned about avenue being sought to join the review process.
Mr. Atta Akyea impressed
on the court that it should not be held
that “if you do not originate constitutional action it should be the end of it.”
When it was becoming a
give-and-take affair Justice Sophia O. Adinyira stepped in and urged Mr. Atta
Akyea to cite authorities that could impress upon the court to allow them in
the review process other then those cited under Rule 54 of C.I. 54, saying “the
law has to be developed…we are more interested.”
Justice Doste also
urged Mr. Atta Akyea tos do more research for the court to consider the
application.
The judges then retired
to their chambers to consider the ruling and when they came out Justice Ansah
who had read the ruling said “we uphold the preliminary objection. We will give
our reasons in October.”
The court however gave
no order as to cost, after Mr. Nutsupkui tried to ask for one.
In the original case, the
seven-member panel chaired unanimously had 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 NDC.
Panel
The initial panel was
made up of Justices Ansah, Sophia O. Adinyira,
Rose C. Owusu, Anin-Yeboah, Sule N. Gbadegbe, Vida Akoto-Bamfo and A.A. Benin
and when the case went on review two more, namely: Jones Doste and Paul
Baffoe-Bonnie were added.
The initial application
was filed in late December 2012 by Raymond Atuguba, the man who was later
appointed as Executive Secretary to President John Mahama.
The action had 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 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 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.”
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