ARTICLE 130 OF THE 1992 CONSTITUTION: ELECTION DISPUTES AND CONSTITUTIONAL INTERPRETATION

Under article 130(1)(a) of the 1992 constitution, all matters relating to the enforcement or interpretation of the constitution should be exclusively determined by the Supreme Court. Consequently, whenever, in determining a dispute relating to parliamentary election, the High Court finds that an issue relating to the enforcement or interpretation of the Constitution arises, the High Court must, under article 130(2) of the Constitution, stay proceedings and refer the constitutional issue to the Supreme Court for determination.

Referral or otherwise to the Supreme Court by trial High Court of a constitutional issue

The referral or otherwise of a constitutional issue by a trial High Court was considered by the Supreme Court in the case of the Republic v High Court, General Jurisdiction, Accra; Ex parte Zanetor Rawlings (Ashitey & National Democratic Congress Interested Parties) (No 1), Supreme Court, 19 May 2016 to be published in [2015-2016] SCLGR 53. After alluding to the arguments of the parties in the case, the Supreme Court granted by a four to one majority decision, the application by Dr. Zanetor Rawlings for an order of certiorari to quash the ruling of the trial judge for failing to refer the constitutional issue raised before the trial High Court to the Supreme Court for determination under article 130(1) of the constitution.

On the crucial question of the timing for making referrals by the trial High Court to the Supreme Court, attention may be drawn to the decision of the Supreme Court in the case Republic v High Court (Fast Track Division), Accra; Ex parte Electoral Commission  (Mettle-Nunoo & Others Interested Parties) [2005-2006] SCGLR 514. The majority of the Supreme Court in this case held that "whenever there are no disputed facts to be resolved, for either a determination of whether or not a genuine question for interpretation has arisen, or for a formulation of the issues for referrals, it i.e [the referral] ought to be made without delay".

Indeed, in the Mettle-Nunoo case, the majority of the Supreme Court held that the question as to whether on the facts of any given case, a real or genuine interpretative issue for referral had arisen for the Supreme Court's opinion, would depend on, inter alia, the nature of the pending action, the reliefs sought and the pleadings; and whether or not the action was one which had been neatly clothed as a case involving the exercise of the original jurisdiction of the Supreme Court. Furthermore, in the subsequent case of Republic v Fast Track High Court, Accra; Ex parte CHRAJ (Richard Anane Interested Party) [2007-2008] 1 SCGLR 213, the Supreme Court affirmed the observation of Prof. Ocean JSC in the Mettle-Nunoo case that: "the trial court should not presume that there is no issue of interpretation; it will be a safer course of action for the trial court to refer the matter to the Supreme Court rather than assume there is no real issue of interpretation, or that his or her view of the constitutional provision is more likely to be correct than that of five or seven Supreme Court Justices put together."

Finally, attention should be drawn to the practical guide by the majority of the Supreme Court in the Mettle-Nunoo Case (supra) to trial court judges who are faced with respect for referrals under article 130(2) of the 1992 constitution. The majority of the Supreme Court (per Prof. Ocean JSC) said "we offer below, as a practical guide to trial court judges who are faced requests for referrals under article 130(2), not the facile and dangerous assumption that most of the provisions of the 1992 Constitution are clear and unambiguous, but rather the following well thought out scheme for determining the existence of an issue of enforcement or interpretation enunciated in Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA,  notwithstanding the fact the case involved the 1979 Constitution and not the current 1992 Constitution. The scheme in Ex parte Akosah is stated as follows:

An issue of enforcement or interpretation arises in any of the following eventualities:

• (a) where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double meaning or are obscure or else mean something different from or more than what they say;

• (b) where rival meanings have been placed by the litigants on the words of any provision of the Constitution.

• (c) where there is a conflict in the meaning and effect of two or more articls of the Constitution, and the question is raised as to which provision shall prevail;

• (d) where on the face of the provisions, there is a conflict between the operations of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation. "