Baffour Osei Akoto, a concerned citizen of Ghana, has filed an application at the Supreme Court challenging the creation of three new executive instruments on the basis that they were created unconstitutionally.
The new instruments led to the recent creation of 45 districts. The Attorney-General, a respondent in the matter, will have to explain why the new instruments should not be described as unconstitutional.
Mr. Akoto explained that on November 22, 2012, the President created three instruments in accordance with the powers conferred on him by the Local Government Act, 1993 (Act 462). Three days later, the new instruments namely the Creation of Districts Instrument, 2011 (E. 1. 80), creation of Municipalities Instrument, 2011 (E. 1. 81) and Declaration of Municipalities Instrument, 2011 (E. 1. 82) were gazetted without being laid before parliament. Under these instruments, new districts and municipalities were subsequently created.
Mr. Akoto is invoking the original jurisdiction of the Supreme Court to declare the action of the president as unconstitutional because it did not follow the right procedure.
Among his reliefs, Mr. Akoto is seeking a declaration that the creation of the executive instruments and the inauguration of the new districts and municipalities established under these instruments are inconsistent with Article 11 (7) of the Constitution, 1992. He also wants a true and proper interpretation of Article 11 (7) and Article 241 of the Constitution to the effect that the President acted in excess of the powers conferred on him by the Local Government Act, 1993 (Act 462).
In addition, he is praying for an order declaring them null and void as well as an “order restraining the Minister responsible for Local Government or any other organ of state from recognizing the existence of districts and municipalities created by these instruments”.
Mr. Akoto averred that these instruments were created unconstitutionally because they were not laid before Parliament for approval before they were gazetted. Mr. Akoto argued that the gazetting of the instruments flagrantly contravened article 11(17) of the constitution, hence the new districts and municipalities which were created under them are illegal.
“It is further the submission of the plaintiff that the coming into force of those districts and municipalities and their subsequent inauguration is also unconstitutional,” Mr. Akoto argued in the writ he had filed.
He contended that the act of the President in not laying the issue of the creation of the instruments before parliament as prescribed by Article 11(17) amounted to a usurpation of the powers of parliament.
According to him, the powers granted to the President under section 1(2) of Act 462 are not absolute and that they are required to be exercised in accordance with the procedural requirements imposed by Article 11(7), which are also intended to preserve and ensure parliamentary participation and control over subsidiary legislation, albeit restricted.
The Parliament, he observed, should have had an opportunity of seeing and examining the legislation by which any new district was to be created.