Court suspends Ashietey vs Rawlings case over constitutional clause
The suit challenging the candidature of Dr Zanetor Rawlings as the National Democratic Congress’ (NDC’s) parliamentary nominee for the Klottey Korle Constituency has been put on hold.
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This followed a 4-1 majority decision by the Supreme Court to stay proceedings of the case at the High Court on the grounds that the court erred in law by interpreting Article 94 (1)(a) of the 1992 Constitution.
The order follows an application by Dr Rawlings at the apex court challenging the jurisdiction of the High Court to hear the suit.
In the lead judgement read by Mr Justice William Atuguba, the court held that the trial judge at the High Court erred in law when the court assumed jurisdiction over Article 94 clause 1 (a) of the 1992 Constitution when it became a bone of contention in the case.
“When the issue of an interpretation of the constitution had risen, the court ought to have stayed proceedings and referred it to the Supreme Court. We have therefore stayed the proceedings of the High Court hearing and refer that aspect to ourselves (Supreme Court),’’ it held.
Other members of the panel that consented to the majority decision were Messrs Justices Gabriel Pwamang, Yaw Appau and A.A. Benin. Mr Justice Anin Yeboah, however, had a dissenting view.
Submission
The court also directed the parties to file their written submission within two weeks for the substantive case to commence and adjourned the case to June 2, 2016.
The parties are to file their written submissions simultaneously.
Issue to determine
The court said the constitutional provision stipulates that a person can only qualify to be a Member of Parliament when “he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter.”
In the view of the order, the court, by virtue of the powers conferred on it by the constitution, has assumed jurisdiction to interpret the constitutional provision, especially the one that specifically deals with one being a registered voter before qualifying to stand as an MP.
The court would, therefore, determine whether the said provision becomes operational during the stage of the primaries of the political parties to elect the candidate or when the Electoral Commission opens nomination for interested persons to file their documents to contest as MPs.
Application
Dr Zanetor’s legal team in their application was seeking an order of certiorari from the highest court of the land to quash a ruling by the High Court, presided over by Mr Justice Kwaku Ackah Boafo, on March 22, 2016.
The said ruling dismissed an earlier application by Dr Zanetor praying the High Court to dismiss the suit initiated against her by the incumbent MP of the constituency, Nii Armah Ashitey.
Grounds
Her application at the Supreme Court was, therefore, based on the premise that the trial judge at the High Court “erred in law when he wrongly assumed jurisdiction to interpret Article 94(1) (a) of the Constitution holding that once the applicant had put herself out as a contestant in the parliamentary primaries of the National Democratic Congress she was caught by Article 94(1) (a) which required that she was a registered voter at the time of her participation in the primaries.”
Also, she claimed that “the judge erred in law when he wrongly assumed jurisdiction when the entire action was premature because the cause of action had not accrued”.
Prohibition
Apart from seeking an intervention of the court to quash the decision of the High Court, it also sought an order of prohibition restraining the trial judge from hearing the case.
In its ruling, however, the Supreme Court dismissed that relief, describing it as “misconceived’’
“This is because the parliamentary primaries that elected the applicant (Zanetor) were conducted vastly in accordance with the NDC Constitution; such rules of a club or voluntary associations are enforceable by the High Court,’’ it held.
Dissenting opinion
In the dissenting opinion, Mr Justice Anin Yeboah was of the view that the High Court did not usurp the jurisdiction of the Supreme Court in its ruling.
According to him, the High Court did not seek to interpret the said provision but rather in its application made reference to it.
“If this application is granted, it means that the lower courts cannot hear any case with reference to the Constitution, which will lead to absurdity,’’ he asserted.
Background
Nii Armah Ashitey took the NDC and Dr Zanetor to court claiming that she is not a registered voter and, therefore, not qualified to be elected as a parliamentary candidate for the NDC.
His legal team is, therefore, seeking the court to declare her election null and void and order a re-run between Nii Ashitey and another contender in the election, Nii John Coleman.
