Supreme Court dismisses contempt case against EC commissioners- A-G

BY: Emmanuel Ebo Hawkson
Mr Samuel Tettey, ,Dr Eric Bossman Asare, Mrs Jean Mensa
Mr Samuel Tettey, ,Dr Eric Bossman Asare, Mrs Jean Mensa

The Supreme Court has dismissed a contempt case against the Chairperson of the Electoral Commission (EC), Mrs Jean Mensa, her two deputies and the Attorney-Genera (A-G), Ms Gloria Akuffo.

Three persons — Mayor Agbleze, Destiny Awlimey and Jean Claude Koku Amenyaoglo — wanted the court to commit Mrs Mensa, her two deputies — Dr Eric Bossman Asare and Mr Samuel Tettey — and the A-G for contempt due to last month’s limited voters registration exercise.

The limited registration exercise was organised by the EC from September 16 to 25, 2018 for prospective voters in the December 27, 2018 referendum on the proposed new regions.

The three applicants filed the contempt case on October 19, 2018 after initiating an action to challenge the government’s decision to limit the referendum to only the beneficiary areas.

It was their contention that the EC, by organising the limited registration exercise, had brought the administration of justice into disrepute, especially since they had filed an application for interlocutory injunction to restrain any process related to the referendum until the final determination of their action.

Although it was the EC that organised the exercise, the applicants wanted the A-G to be committed for contempt on the basis that the government provided logistic support for the exercise.

Mrs Mensa, Dr Asare, Mr Tettey and Ms Akuffo were all present in the court last Wednesday to know the fate that awaited them as a result of the contempt charge brought against them.

Dismissal

 In a unanimous decision, the seven-member panel of the court threw out the contempt application.

“The respondents are not in contempt. The application for contempt is, therefore, dismissed,’’ the court declared.

It stated that the reasons for the dismissal were in the court’s full ruling which would be deposited at the court’s registry.

The seven-member panel was presided over by Mrs Justice Sophia Adinyera, with Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Samuel K. Marful-Sau, Ms Justice Agnes M. Dodzie, Mr Justice Nene A Amegatcher and Prof. Justice Nii Ashie Kotey as members.

Applicants’ case

Making a case for the contempt, counsel for the applicants, Mr Albert Quashigah, argued that the respondents exposed the court to ridicule by going ahead with the registration  exercise, since the court had not yet determined the injunction application.

“What was the use of the injunction if the exercise had already been done?

  The action of the respondents caused the court’s respect and stature to sink in the eyes of law-abiding citizens,’’ he said.

 Counsel submitted that the only way to remedy the situation was to punish the respondents, as their conduct “had set a bad precedent’’.

At that point, Mr Justice Dotse asked counsel when his clients had filed the application for interlocutory injunction, to which counsel answered September 18, 2018.

The other members then asked counsel if that did not mean that his client had filed the interlocutory injunction two clear days after the registration exercise had started.

Counsel answered that the EC should have stopped the registration exercise when the injunction was filed.

A-G’s opposition
 
In his response, a Deputy A-G, Mr Godfred Yeboah Dame, described the application for contempt as procedurally and factually incompetent and urged the court to dismiss it.

According to him, the application for injunction that gave rise to the contempt application was defective because as of the time the applicants filed it, they had not filed a statement of case in support of the substantive action.

“You cannot seek reliefs based on an action that was not properly constituted before the court,’’ he argued.

He also submitted that the applicants erred in law by naming the A-G as a respondent in the contempt application.

His argument was that the A-G could only be held liable in a civil proceeding regarding a public institution or official but not in a quasi-criminal matter such as contempt.

According to him, the appropriate thing was for the applicants to name the three EC bosses as the respondents but not the A-G.
“The application, both in substance and form, should be dismissed,’’ he said.

Injunction withdrawn

Another issue that came up was a submission by counsel for the three EC bosses, Mr Justine Amenuvor, that the interlocutory injunction was not  personally served on his clients but served on a clerk at the EC.

The court inquired from Mr Quashigah if that was what happened, and he answered that since the EC was an institution, there was nothing unlawful about serving the injunction on  a worker of the EC.

But the court schooled him that since the injunction was to stop the whole registration exercise, there was the need to serve it on the principal officers of the EC.

“The clerk has no power to stop the registration exercise; it is the commissioners.

The most sensible thing was to serve the chairperson or her deputies. You just went and threw it on a clerk,’’ Mrs Justice Adinyera said.

After the reservation expressed by the court, Mr Quashigah withdrew the application for interlocutory injunction.

The court has directed the parties to file their legal addresses on a legal objection raised by the A-G that the applicants failed to properly invoke the jurisdiction of the court in the substantive case.

Hearing continues on November 14, 2018.

Plaintiffs’ case

On September 12, 2018,  Agbleze,  Awlimey and  Amenyaoglo filed a case at the Supreme Court challenging the government’s decision to limit the referendum for the creation of six new regions to only the affected areas.

The plaintiffs invoked the original jurisdiction of the Supreme Court to interpret portions of the 1992 Constitution with respect to the holding of referenda in the country.

Attached to the suit as defendants are the A-G and the Electoral Commission (EC).

According to the plaintiffs, the decision to limit the referendum to only the six areas where the proposed regions would be created violated articles 5 (1) (a) and (b), 5 (4) and 42 of the 1992 Constitution.

Background

On August 15, 2017, the Council of State advised President Nana Addo Dankwa Akufo-Addo to appoint a Commission of Enquiry to look into the need to create six regions and make recommendations on all the factors involved in the creation of the new regions.

The commission, which was established pursuant to Article 5 of the 1992 Constitution and Constitutional Instrument (CI) 105, commenced work on November 21, 2017.

On June 27, 2018, the Justice Brobbey Commission presented its report to President Akufo-Addo and recommended the creation of six new administrative regions, namely, Oti, Ahafo, Brong East, Western North, North East and Savannah.

The Commission of Enquiry recommended to the President that the referendum be limited to the proposed new regions.
Consequently, the EC has set December 27, 2018 for the referendum.

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