Creation of Constituencies And Gerrymandering in Ghana: A Legal Opinion

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I have been following with keen interest the on-going debate on the intended creation of 45 new constituencies since its announcement by the Electoral Commission (EC). A cursory survey of the debate would depict that the arguments have been hinged on two main legs: legality of the intended creation and the timing of the exercise. It is in the light of these that I seek to share an opinion on this topical issue. I argue that the current practice of creating new and additional constituencies is unconstitutional, unsustainable and, above all, has the potential of engendering gerrymandering or malapportionment, which are abhorred in republican governments.  On the issue of timing I have come to the conclusion that such a line of argument is not sustaining hence untenable.

The EC argued that its decision to create additional 45 constituencies is in compliance with its constitutional mandate provided for under Article 47(5) of the 1992 Constitution.

When one follows closely the line of argument in this whole debate, it would be realised that proponents and supporters of the creation of the new constituencies have argued mainly that the creation of new constituencies is a fulfilment of a constitutional obligation and that it also engenders development. In the opinion of this group, development is tied to the creation of more constituencies.

Opponents of the creation of the new constituencies on the other hand cite the timing, resources and legal basis among the reasons for their opposition to the creation of the new constituencies.

Another observation is that the debate is being championed by the main political parties: The National Democratic Congress (NDC) and the New Patriotic Party (NPP), for and against respectively.

A similar incident occurred when the EC based on the 2000 census decided to review the number of constituencies by increasing the numbers from Two Hundred (200) to Two Hundred and Thirty (230). The then opposition NDC vehemently opposed the EC’s decision arguing inter alia, that it was an attempt by the EC to rig the election in favour of the NPP; it could however be gleaned from some comments made by leading members of the then ruling NPP that the party was favourably disposed to the action of the EC.

Significantly even though there was some perception that the creation of additional 30 constituencies would favour the NPP, the decision was heavily criticised by the former chairman of the NPP, Mr. B.J. daRocha.

The EC, in spite of the various criticisms, went ahead with the creation of the new constituencies. From the debate, it is apparent that the authority of the EC to create new constituencies is not being challenged. What is being questioned is the procedure (methodology and timing of the exercise).

To begin the analysis, it is significant to quote the relevant constitutional provisions regarding the creation of constituencies which are at the centre of this debate. Articles 45(a) (b) and 47 (2); (3); (4) and (5) state as follow:

45 “The Electoral Commission shall have the following functions –

a)      to compile the register of voters and revise it at such periods as may be determined by law;

b)      to demarcate the electoral boundaries for both national and local government elections

47 (2) “No constituency shall fall within more than one region.”

“(3) The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.”

“(4) For the purposes of clause (3) of this article, the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.

“(5) The Electoral Commission shall review the division of Ghana into constituencies at interval of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of Ghana, whichever is earlier, and may, as a result, alter the constituencies”

Article 45 is so clear and equivocal to the extent that any average literate Ghanaian can understand the provision which is to the effect that the EC is responsible for electoral boundaries when it comes to the conduct of elections at both local and national levels.

What is at the centre of the on-going debate is clause 5 of Article 47. What poses the problem in clause 5 is the construction placed on the word ‘review’ by the EC. The EC has construed the word ‘review’ to mean increase and to that extent sought to interpret the clause as requiring increasing the number of constituencies in an interval of not more than 7 years or within 12 months of the publication of census figures.

The current construction of clause 5 and hence the practice of creating additional constituencies following the occurrence of any of the above two scenarios is unsustainable and above all unconstitutional.

First of all, the current practice has the potential of creating absurdity if not checked; the reason being that if a ceiling is not placed, there is the potential for having hundreds if not thousands of members of Parliament who may be representing each community or not more than five communities put together. This practice cannot continue; as such, either the EC takes a second look at its current interpretation of the word ‘review’ in Article 5 of the Constitution 1992 or the Supreme Court makes a definitive pronouncement on the proper meaning of the provision.

I daresay that this may be overstretching the argument, but this point is being made to underscore the fact that the Constitution did not contemplate the current practice as a rule of constitutional interpretation because constitutional interpretation advocates the avoidance of interpretation that renders a provision of the constitution absurd.

It is my respectful opinion that the review requirement of constituencies in Article 47(5) may be an increase or re-demarcation of already existing constituencies without necessarily increasing the number of constituencies, all based on the population quota. The Constitution lays down population as the main determining factor in demarcating or creating constituencies by stating in clause 7 of Article 47 that constituency boundaries should be that the number of inhabitants is as nearly as possible equal to the population quota.

However – being mindful of gerrymandering or mal-apportionment and the difficulties that may rise in using population quota as the only determinant –  the Constitution made provision for the EC to consider other factors such as geographical features, areas and boundaries of regions and other administrative or traditional areas. This is recognition of the fact that it is virtually impossible to achieve absolute population equality or precise mathematical equality in the creation of constituencies and therefore, some small population disparity ought to be acceptable in the absence of obvious gerrymandering.

It is on the basis of ensuring transparency that Article 296 places a duty on any person or authority vested with discretionary power to be fair and candid and forbids such a person or authority not to use the power in a manner that is arbitrary, capricious, or biased. Article 296 further mandates that the exercise of discretionary power be in accordance with due process of law. Both Article 296 (c) and Article 51 require the EC to, by Constitutional Instrument, publish the parameters of its discretionary power; something the EC has failed to do. Article 51 categorically mandates the EC to make regulations to guide it in the performance of its functions including the creation or demarcating of electoral boundaries. This is to ensure that Ghanaian would be able to monitor compliance with the constitutional provisions as major stakeholders in our political process.

The EC, we are told, initially had planned to create 20 constituencies in compliance with its mandate pursuant to Article 47(5) of the 1992 Constitution.  It then revised the number to 47 by the addition of 27 more constituencies. The reason ascribed to by the Chairman of the EC was to avoid gerrymandering after the government created new district assemblies. This is recognition by the EC that it has a mandate to avoid creation of constituencies in an unfair manner to favour one group as against others by way of deliberate and arbitrary distortion of constituency boundaries and population for partisan purposes.

Gerrymandering, simply put, is the manipulation of an electoral area, usually by altering its boundaries, in order to gain an unfair political advantage in an election.  The word is derived from the Massachusetts Governor, Elbridge Gerry and the salamander-like district he created.

A close cousin of gerrymandering is malapportionment, which involves the creation or preservation of electoral constituencies of different population sizes, so that the ratio of representatives to voters varies across constituencies.

It appears that the creation or even preservation of constituencies could result in gerrymandering or malapportionment if the ratio of representatives to voters varies across constituencies or they are created to result in giving one political party advantage over the other.

Gerrymandering or malapportionment usually results in the compromise of the core principle of republican government which is to say voters should choose their own representatives, not representatives choosing their voters. It is for the avoidance of this that the EC decided to add 27 more constituencies to the 20 constituencies it had initially decided to create.

The EC over the years has tied the creation of constituencies to the creation of districts. This is because the EC has taken the position that one constituency cannot fall within more than one district, hence whenever there is a creation of a new district the EC must necessarily create a new constituency to fall within the new district. The EC and the proponents of this position have always cited the Local Government Act, 1993 (Act 462) specifically sections 5(1) (c) and 6(7) to support this. The sections read as follows:

S: 5(1) “A District Assembly shall consist of the following members –

(c) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly, except that member or members shall have no voting rights; and”

S: 6(7) “A person shall not at any one time be a member of more than one District               Assembly.”

It is these provisions of the Local Government Act, 1993, (Act 463) that have largely, I believe, influenced the position of the EC, hence the creation of a new constituency whenever there is a new district created. This position as alluded to earlier in all deference is unconstitutional. The Constitution specifically states in Article 47(2) that:

“No constituency shall fall within more than one region”.

The Constitution did not state that no constituency shall fall within more than one district. It specifically mentioned region and in that respect it stands to reason that it is only when it comes to regions that one constituency cannot fall within two regions and not districts. In my humble opinion, if the framers of the Constitution wanted to bar constituencies from straddling or falling within more than one district they would have expressly said so as they did for regional straddling. This is supported by the expressio unius exclusio alterius rule, which means that “the express mention of one thing excludes all others”.

I am of the view that the framers of the Constitution, being mindful and well aware of the existence of regions and districts decided to specifically mention region and excluded district and so no stretch of interpretive arguments can include what was expressly excluded. What this means is that section 6(7) of the Local Government Act that seeks to incorporate districts in this provision runs counter to the letter and the spirit of the Constitution.

It must be borne in mind that the reason for leaving out districts in Article 47(2) was to avoid gerrymandering or malapportionment. This is because the current interpretation of the relevant constitutional provision and the Local Government Act is very susceptible to gerrymandering. This could easily be realised by an incumbent government wanting to engage in gerrymandering, would just create new districts to cover areas where it has majority of votes within a particular constituency and the EC would be compelled to create constituencies to cover it. This will give an unfair advantage to such a government and will amount to representatives choosing their constituents, rather than constituents getting to choose their representatives. Therefore, any construction of the constitutional provision or any law that engenders gerrymandering or runs counter to the Constitution would be null and void.

The second aspect of the debate is centred on the timing of the creation of the 45 new constituencies. Having established the unconstitutionality of the proposed new constituencies it is important to take a brief look at the timing argument. The argument has been that the time frame for the parties to engage in internal contest to elect their candidates is too short; barely three months for such exercises to take place. It may be conceded that by the current C.I. 78 matures on or about October 3, 2012. Barring any irregularities or fundamental mistakes, the parties would have about approximately one month to put their houses in order and campaign for election if they want. It is evident that there isn’t to a large extent much time to campaign. This is where it is important that other parties take a cue from the NDC which has elected its candidates in preparation for the creation. The NDC is positioning itself in anticipation of the creation of the new constituencies. It would therefore, not be out of place for other parties to prepare in anticipation of the creation. I do not see any difference between when political parties elect their candidates sometime not less than six months to election in anticipation of the EC opening nominations for parties to file for both presidential and parliamentary candidates. The Constitution does not forbid election of candidates pending the creation of constituencies. In any even one is only recognized as a candidate only after one has filed his or her nomination with the EC and for a particular constituency. It does not really matter whether a candidate is elected one year or a day before the Election Day on the December 7.

The argument that Article 112(6) which bars a by-election to fill a vacancy created by the death of a member of parliament from taking place within three months of a general election supports the limited time argument is unsustainable. In my respectful view, the three month limitation is not because the EC and the parties would be unable to prepare for the election because of short time, but rather such an elected person would have to spend resources to contest in the general election.

In conclusion, I am of the view that we can learn from the United States of American, the citadel of democracy. The U.S. with a population of about 311,591,917 as of 2011 has 535 members of congress comprising 435 voting members of House of Representatives and 100 Senators.

Congressional districts, the equivalent of constituencies in Ghana, are then distributed among states, with California, the most populous state, currently having 53 representatives and 7 states currently having only one representative. Each state in the union must have at least one representative in the Congress. The Senate is made of 100 senators with each of the 50 states having two senators regardless of the population.

The US in a bid to avoid continuous increase in congressional district in every ten years passed Apportionment Act, 1911 (Public Law 62_5) in August 8, 1911. This law fixes the number of representatives for the US Congress. If a country of 311,591,917 population size with a GDP of US$ 15.09 trillion has a total of 535 representatives, it is not reasonable, rational and prudent for Ghana with a population of 24,965,816 and a GDP of $39.2 Billion to have 275 representatives and keep adding. We must put a ceiling and strictly comply with the constitutional provision of using population as the main determinant in constituency demarcation.

Although I am opposed to the creation of the new constituencies on legal grounds, I am of the view that the current process should be allowed to go on and at the same time recognising the constitutional right of those who go to court to challenge the decision of the EC. I urge all stakeholders to support the EC and the political parties to be able to go through the process, unless a definitive decision of a court of competent jurisdiction clarifies the position of the law on this issue.

The writer, Kwesi Baffoe Intsiful esq. is a legal practitioner.

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