IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
AFRICAN REFORM MOVEMENT - (Appellant)
THE ELECTORAL COMMISSION - (Respondent)
DATE: 19 TH JULY 2018
CIVIL APPEAL SUIT NO: H1/43/2018
JUDGES: KUSI-APPIAH J.A. (PRESIDING), TORKORNOO (MRS.) J.A. , AGYEMANG (MRS.) J.A.
MR. CHARLES BENTUM FOR THE APPELLANT
MR. THADDEUS SORY FOR THE RESPONDENT
KUSI-APPIAH, J.A.: This appeal turns on the correct interpretation to place on section 9(c) of the
Political Parties Act, 2000 (Act 574). There are other ancillary matters too. The section provides that:
“The commission shall not register a political party under this Act unless –
9(c) the party has branches in all the regions and is, in addition organised in not less than two-thirds of the districts in each region.”
The appellant contends that by this provision the respondent’s basis for denying the issue of a final certificate of registration for non-compliance with section 9(c) of Act 574 is misconceived and misplaced because the proper interpretation of section 9(c) of Act 574 does not mean physical existence of party offices in the regions and districts. The respondent contends otherwise. This is the bone of contention in this appeal but as I said earlier there are other grounds of appeal which will be unfolded shortly.
I believe that the appellant’s appeal against the respondent herein stems from avenues provided by the Political Parties Act 2000 (Act 574) to aggrieved party to seek redress upon a party’s registration being refused by the respondent under the Act.
Section 12 of Act 574 provides:
“1. A political party whose application for registration is refused by the Commission under this Act, may at any time apply to the commission for the reconsideration of its decision not to register the political party.
2. If within seven days after an application has been made to it under subsection (1), the commission refuses or fails to register the Political Party, the party may appeal to the Court of Appeal against the decision of the Commission (emphasis mine).”
Under the above section, the appellant’s right of appeal accrued when the respondent failed to register appellant within seven days after the receipt of appellant’s letter dated 1st September, 2016.
The salient facts in this case are as follows: Sometime in January 2016, the appellant applied to the respondent pursuant to article 55(1) of the 1992 Constitution of Ghana and section 8(1) of the Political Parties Act 2000 (Act 574) to be registered as a political party. The appellant was issued with a provisional certificate pursuant to section 8(2) of Act 574. The respondent upon reviewing documents presented to it by the appellant refused to register it for non-compliance with section 8(3) and 9(c) of the Political Parties Act (supra). Subsequently, the appellant made a demand on respondent to register it within five (5) days as they had met all the legal requirements of law. It is this refusal to register the African Reform Movement as a Political Party by the respondent that has drawn the ire of the appellant in this court.
GROUNDS OF APPEAL
The grounds of appeal as contained in the Notice of Appeal are as follows:
“a. The claim by the Respondent herein that the Appellant herein failed to comply with Section 9(c) requiring a Political Party to have branches in all the regions and in addition be organised in not less than two-thirds of the Districts in each region was clearly a misconception of the import of that provision of the Political Parties Act 2000 (Act 574).
b. That the claim that the Appellant failed to comply with the Section 9(c) of Act 574 inspite of Respondent’s herein insistence, is without any basis.
c. That a combined reading of Section 9(c) and 15 of the Political Parties Act 2000 (Act 574) will clearly show that the Respondent misconceived Section 9(c) of the Political Parties Act 2000 (Act 574).”
I propose to deal with grounds 1, 2 and 3 together as they seem in the main to deal with the same issue(s) in both facts and law, i.e. the same statute, Political Parties Act 2000 (Act 574).
Arguing on behalf of the appellant, Mr. Charles Bentu began with grounds 1, 2 and 3 together and submitted that the respondent misconceived and misapplied the meaning and import of section 9(c) of the Political Parties Act, 2000 (Act 574). Counsel contended that the interpretation placed on section 9(c) of Act 574 that the commission/respondent shall not register a Political Party under this Act unless the party has branches in all the regions and in addition organised in not less than two-thirds in the district in each region meant or implied the presence or the physical existence of party offices in the regions and district is untenable and inaccurate.
In the view of counsel, the combined effect of sections 9(c) and 15(1) of Act 574 enjoins or requires the political parties to have physical presence or acquire offices only after registration (that is, after a final certificate of registration has been issued out). In support of his stand, learned counsel for the appellant further submitted that a careful reading of Part 1 and Part 2 of the Political Parties Act (supra), will show that whilst Part 1 deals with founding and registration of Political Parties, Part 2 deals with Operation of Political Parties. He further contended that at the founding stage where a provisional certificate is issued, the Political Parties Act in Part 1 deals with the internal organisation and establishment of the party’s structure. Until it is issued with a final certificate of registration under section 11 of the Act, the appellant is not a body corporate within the provision of section 4(3) of the Act (Act 574) to acquire, hold, manage or dispose of movable or immovable property and enter into any contract or other transactions as a legal person.
Learned counsel argued that it is only when the appellant herein is in the position as a body corporate within the intendment of sections 4(3) and 11 of Act 574 that the legislature imposes an obligation on it under section 15(1) of the Act to provide particulars of the Appellant’s physical offices at the national, regional, district and constituency levels.
He lamented that by requiring the appellant to have physical offices in the 10 Regions of Ghana and not less than two-thirds of the Districts in each Region to fulfil section 9(c) of the Act, the respondent was in effect substituting section 15(1) for section 9(c) or confusing the requirement of section 15(1) to be section 9(c) of Act 574. Counsel therefore concluded that the combined effect of sections 9(c) and 15 of the Political Parties Act, shows that the respondent misconceived section 9(c) of the Act.
To these submissions, counsel for the respondent contended otherwise. He submitted that the satisfaction of the condition stipulated in section 9(c) of the Political Parties Act, 2000 (Act 574) is in two parts. The first part has to be the party having branches in all the regions which means the 10 regions of the Republic of Ghana and the second part which is also mandatory has to do with being organised in two-thirds of the districts in each region.
In the view of counsel for the respondent, section 9(c) of Act 574 requires appellant in applying for registration as a Political Party to necessarily have offices in every region of Ghana and be organised in at least two-thirds of districts in each region prior to registration. He contended that physical presence in the form of offices of the party in the regions and districts of the Republic of Ghana is a necessary condition for compliance with section 9(c) of Act 574. It follows that lack of a physical presence of the appellant in the form of offices in the regions and districts of Ghana is a clear indication of a non-fulfilment of section 9(c) of Act 574.
Counsel for the respondent further contended that at page 134 of the record of appeal, where the verification of the Upper West Region of the appellant by the respondent is provided, none of the alleged founding members of the appellant had an office from where they can organise or carry out their activities. He maintained that in the Ashanti Region as can be gleaned from page 140 of the record of appeal, respondent could not locate the particulars of the Regional Executive and their office, confirming without a shred of doubt that two regions out of the ten Regions did not have a branch, which is a clear contravention of section 9(c) of Act 574. Counsel therefore invited the court to dismiss the appellant’s appeal since they have failed to comply with section 9(c) of Act 574.
The central issue in this appeal as reiterated above is the application and interpretation of section 9(c) of the Political Parties Act 2000 (Act 574). The operative words or phrases here are “branches” and “organised”. What then is the meaning and scope of branches and organised in section 9(c) of Act 574?
The rule of interpretation is that in the construction of the provisions of a statute, it has always been relevant to consider the history of the legislation and the mischief it was designed to prevent. Indeed section 10 of the Interpretation Act 2009 (Act 792) provides for this. More particularly, section 10(2)(a) of the Act provides for the consideration of the background to the enactment as an aid to construction in circumstances where the language of the enactment may be ambiguous or obscure as follows:
“A court may, where it considers the language of an enactment to be ambiguous or obscure, take cognisance of:
a. The legislative antecedents of the enactment.”
The memorandum accompanying Act 574 states the rational as follows:
“The purpose of the Bill is to re-enact with new provisions the existing Political Parties Law, 1992 (P.N.D.C.L. 281) as amended. The Bill brings the existing enactment in conformity with the Constitution, removes some provisions in the existing law no longer considered purposeful and introduces some reforms for the better regulation of Political Party activities in the country.”
In the interpretation of statues, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of parliament or the legislature. Lord Denning, one of the foremost proponents of the purposive approach to interpretation provides an instructive example of this sense of intention in his book, The Closing Chapter (1983) at page 93 as follows:
“…the judges always say, they look for the intention of the legislature. That is the same thing as looking for its purposes. They do it in this way, they go by the words of the section. If they are clear and cover the situation in hand, there is no need to go further…”
In his statement of the basic rules of interpretation, Cross (Statutory Interpretation, 3rd edition at page 49), a key proponent of the modern purposive approach insists, inter alia, that:
“a judge has first to give effect to the grammatical or ordinary or where appropriate, the technical meaning of the words in the general context of the statute and could only depart from the ordinary meaning where he considers the application of the words in their grammatical or ordinary sense would produce a result which is contrary to the purpose of the statute…”
In Ghana, the purposive approach to interpretation has been given the blessing by the Interpretation Act (supra) in section 10(4) which reads:
“Without prejudice to any other provision of this section, a court shall construe or interpret a provision of the constitution or any other law in a manner;
a. that promotes the rule of law and the values of good governance,
c. that permits the creative development of the provisions of the constitution and the laws of Ghana, and
d. that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the constitution and the laws of Ghana.”
Guided by the purposive approach, the Supreme Court in the case of Ampiah Ampofo vrs. Chraj (2005-2006) S.C.G.L.R. 227, unanimously rejected the argument of counsel for the plaintiff. The court upheld the regulation 6(2) of C.I.7 as being in accord with the spirit of the constitution and thus not made in violation thereof. In his opinion in support of the decision, Dr. Date Baah, JSC. Said:
“… I am of the view that the interpretation contended for by the plaintiff is not viable and not in keeping with the spirit and purpose (both subjective and objective) of the provisions concerned…”
In an earlier case of Asare vrs. Attorney General (2003-2004) S.C.G.L.R. 824, the Supreme Court applied a broad, liberal and purposive interpretation to article 60(1) of the 1992 constitution. The authorities under the modern purposive approach strongly insist that in the search for an interpretation that reflects the intention of the legislature, “the words and phrases used in a statute are at first instant to be construed in their ordinary or plain meaning in context…”
Applying the modern purposive approach as my guide and giving effect to its ordinary meaning the words branches and organised in section 9(c) of the Political Parties Act, 2000 (Act 574) connote physical structure or presence. So in the context, “the party has branches in all the regions and is, in addition organised in not less than two-thirds of the districts in each region” means physical structure or presence where members of the party can meet and organise.
I must say that the term branch per se, does not necessarily mean office. However, the use of the words branches and organised in section 9(c) of Act 574 is synonymous with physical structure or presence, that is, a common place where members of the party can meet. So within the context of section 9(c) the term branch covers both members of the party and physical structure or presence where members can meet and organise. This is because words always take meaning from their context. And once the party elects officers in the Regions and Districts, it needs an office or a place for members to meet and organise its activities.
My position is strengthened by section 8(3) of Act 547 which requires the respondent (Electoral Commission) to conduct investigation to verify documents submitted by appellant against actual and physical evidence of its branches in every region of Ghana and organisation in at least two-thirds of every district in the region before it issues the certificate.
Section 8(3) of Act 547 provides:
“The commissioner may in addition to inviting objections to the application under sub-section (2) cause independent inquiries to be made so as to ascertain the truth or correctness of the particulars submitted with the application for registration.”
However, counsel for the appellant strongly contended that physical presence in the form of offices of the party in the regions and district is not a necessary condition for compliance with section 9(c) of Act 574. He argued that it is only after registration that is, after a final certificate is issued as prescribed under section 15(1) of Act 574 that physical structure or presence of a party in the regions, district and constituency is a mandatory requirement.
The language here under consideration, that in section 9(c) of Act 574, if construed as appellant contend, how will the Electoral Commission conduct investigation under section 8(3) of Act 574. What are the things the Electoral Commission is going to look for under section 8(3) of Act 574?
To me the respondent (commission for short) is to look among others whether the prospective Political Party has a branch in the regions and is organised in not less than two-thirds of the districts in each region. It is only through physical structure or existence on the part of the Political Party that the respondent can verify the existence or otherwise of appellate setting up branches and with verifiable members of the party in two-thirds of the districts in each region before it issues the certificate.
In any case, under the pre-registration stage, section 5 of Act 574 gives the respondent power to register all political parties in accordance with the Act. The Act however provides the conditions that ought to be satisfied before a party can be registered. These conditions have been set out in section 9 of Act 574. Under section 9(c) of Act 574, a prospective Political Party is required to have branches in all the regions… But can a party say it has a branch or branches when it cannot identify its physical structure or existence. The question is: where is the branch? Is it visible, physical or abstract? The word branches in the context of section 9(c) of Act 574 as reiterated above connotes members (human beings) and physical structure or existence.
Flowing from the above, the contention of the appellant that by the combined effect of sections 9(c) and 15(1) of Act 574, physical presence of the party is only required upon issuance to the party of a final certificate of registration is untenable and inaccurate. This brings me to the difference between section 9(c) and section 15(1) of the Political Parties Act, 2000 (Act 574). It is provided in section 15(1) of Act 574 that:
“Within ninety days after the issue to it a final certificate of registration a political party shall furnish the commission with details of its national, regional, district and constituency offices.”
This provision is to aid the commission to better ascertain the status of the political party to whom a final certificate has been issued as to whether it is sufficiently organised and capable of carrying on its business. Section 15(1) of Act 574 deals with not only district offices, but also National, Regional and Constituency. A party at that stage ought to submit the particulars and locations of all the offices to the respondent for verification. Failure on the part of a Political Party to comply with these requirements, the non-compliance is on pain of the cancellation of its final certificate of registration.
Section 9(c) of Act 574 on the other hand deals with demonstrating that at least out of the 230 district offices which a party ought to have ninety days after a final certificate has been issued, a party should have at least two-thirds of those offices prior to the issuance of the certificate.
It is significant to note that section 15’s requirement of furnishing respondent with details for the existence and location of its national, regional, district and constituency offices does not detract from the fulfilment of the requirement of offices under section 9(c) of Act 574.
Another limb under section 9(c) of Act 574 to be considered is the point raised by the appellant in its written submission that as it was not a body corporate, it could not acquire physical offices, as that involved its operation as a Political Party under Part 2 of the Act. I must say that the purported inability of the appellant to acquire property before becoming a body corporate, is inaccurate at best.
Prior to incorporation, an entity is allowed under law to enter into agreement by and through its promoters. Pre-incorporated contracts are envisaged and recognised by the laws of Ghana. Section 13 of the Companies Act of Ghana, 1963 (Act 179) allows companies to enter into contracts either by themselves or their promoters prior to their incorporation subject to ratification upon incorporation.
Section 27 of Act 179 also allows companies before incorporation to transact business incidental to their incorporation. Consequently, the appellant could have acquired offices as required in all the regions and two-thirds of the districts in the regions to signify and prove its physical presence as required by law.
Indeed, a Political Party is an entity formed or set up to sensitize people on matters of public concern including political, economic and social issues. So how will the public know that there is a Political Party in place in the Regions or Districts without its physical structure or presence? The next question to be answered is: How do we organise without physical structure or presence or a place of meeting in the context of section 9(c) of Act 574? The word branches or organised in section 9(c) of Act 574 is not a word of art having a definite meaning. The above words take colour from their surroundings. In effect, the two words have their meaning defined by the statute where they appeared.
Taking into account the text and purpose of the statute, as shown in section 9(c) of Act 574, physical presence in the form of offices of the party in the regions and districts of the Republic of Ghana is a necessary condition for compliance with section 9(c) of Act 574. It follows that lack of physical presence of the appellant in the form of offices in the regions and districts of Ghana including its Upper West and Ashanti Regional Executive Offices, is a clear indication of a non-fulfilment of section 9(c) of Act 574.
From the foregoing, I hold that the respondent (the Electoral Commission) was justified in refusing to issue a final certificate of registration to the appellant for non-compliance with section 9(c) of Act 574.
In the result, the appeal is hereby dismissed.