Marietta Brew Appiah-Oppong
The Attorney General and Minister of Justice Marietta Brew Appiah-Oppong wants the Supreme Court to dismiss a case brought before it by journalist Richard Sky over the appointment of the Electoral Commission (EC) boss, insisting it lacks constitutional foundation.
According to the Attorney General (AG), they are convinced that the Richard Sky suit has not shown that ‘there is an actual as opposed to a hypothetical constitutional controversy worth resolving by this honorable court.’
In a 22 paged statement for the defense, which makes copious reference to case law, Marietta Brew Appiah-Oppong insisted that ‘in order to succeed in his claim, the plaintiff must show evidence of official action or inaction in respect of a matter in which such action is constitutionally required.’
It is also the argument of the AG that ‘it is not the duty of this court to descend into the arena of public discussion to resolve issues pertaining to the correctness or otherwise of various arguments.’
‘Such debates, though healthy in a constitutional democracy; the court may end up soiling its own reputation as a neutral arbiter of actual constitutional controversies.’
The AG further urged the court ‘to hold that even if the plaintiff has placed before it a justiciable controversy any advice proffered by the council of state is non-binding’ insisting that ‘an advisory body cannot pre-determine the final decision to be taken by the recipient of the advice.’
The AG concluded by saying that the decision on who to appoint as the next chairman of the EC is essentially a political decision and this court cannot determine how the President takes that decision.’
Afenyo-Markin and Richard Sky
In his response to the AG’s defense, Richard Sky’s lawyer Alex Afenyo Markin that ‘the appointment of the EC chairman and his deputies have never been transparent, which the former deputy chairman of the commission (David Kanga) has conceded and confirmed: referencing a Citi fm interview with him.
He also maintains that ‘the AG’s stance on the matter ‘is a rather myopic approach to the import of article 2(1) and 130 of the 1992 constitution.’ Article 2(1) enables any citizen to seek interpretation at the highest court of the land.
That, according to Sky ‘is to say the right of Ghanaians to seek an interpretation at the Supreme Court is not fettered in any way. He also believes that the Supreme Court has the exclusive jurisdiction to interpret all provisions of the constitution which are ambiguous.
‘The matter before you my lords borders on constitutional interpretation of articles 70(2), 91(3) and 91(4) of the 1992 constitution and Same is within the jurisdiction of this honorable court’ he prayed.
He also rebutted the AG’s claim that there is no constitutional controversy to be resolved by stating that ‘the plaintiff has demonstrated that the issue before the court is not a hypothetical one.’
Saying that as this matter is yet to be determined; the President went ahead and appointed a new chairperson of the electoral commission.
One would have thought that the Principal legal advisor to the state who is the defendant in this case would have advised the president to wait for the outcome of this matter that had been adjourned to july 14th, 2015 for hearing.
The question then is since the appointment was supposed to be made in accordance with article 70 (2): who initiated the appointment since the honorable court is yet to interpret article 70(2)?.
It can be presumed that was done in accordance with the position being advocated by the defendant that the advice of the council of state is not binding on the president.
It went further to say that ‘my lords added to our earlier evidence it is clear we are not dealing with a hypothetical scenario as being alleged by the defendant but a genuine issue that ought to be determined by this honorable court especially in the light of the latest development’
He reiterated his stance by saying that ‘Accordingly, we invite this honourable court to analyze the object and purpose of Article 70 (2) which in our view does not give the President the sole power and unfettered discretion I the appointment of commissioners to the electoral commission.’
This to him will not be an exercise in futility and thus ‘the court by entertaining and determining this constitutional matter will not descend into the arena of public debate but will hold true the aspirations of the Ghanaian People and the rule of law.’
Picking on the argument of the AG that the council of state’s advice is merely to serve as a restraint on improper appointments by the president, the plaintiff believes that the position of the defendant is a curious one in the sense that ‘if indeed as conceded by the defendant, the council of state advice is to restrain the President on improper appointment, then how can she in another breadth insist that such advice is not binding on the President?’
To him, ‘the obvious effect of the council of state is that such advise is binding else, there will be no need to advise the president in the first e obvious effect of the advice of the council of state is that such advice should be binding since there is the need to restrain the president in the appointment.’
Richard sky concluded by saying that it is the case of the plaintiff that the framers of the constitution did not choose the wording of the provisions of the constitution randomly. It was chosen carefully to give full meaning to its objects and purpose.
Where the constitution intends to vest absolute power in the executive, a person or an institution in the performance of its functions, same has been expressly stated or provided for.
The apex court of the land has however set July 14, 2015 for hearing on the matter. –
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