The General Secretary of the People's National Convention (PNC), Mr Bernard Mornah has filed a writ at the Supreme Court seeking to nullify the CI74.
Mr Mornah argues that “Rule 71B, a portion of Rule 69C(5) and a portion of form 30 of the Supreme Court (Amendment) Rules, 2012 (C.I. 74) do not appear to be consistent with some provisions of the 1992 Constitution.”
He insists the provisions contravene Articles 133, 157, 93(2) and 11 of the 1992 Constitution and that the CI must, on the basis of that contravention, be declared null and void.
Rule 71B of C.I. 74 provides that the decision of the Supreme Court in respect of a petition presented to challenge the election of a President cannot be reviewed.
Mr. Mornah is arguing that "To the extent that Rule 71B of C.I. 74 seeks to extinguish the constitutional right in article 133 of the Constitution to seek a review of a decision of the Supreme Court in Presidential election petitions, same is unconstitutional, null and void, and of no effect and the plaintiff requests this Honourable court to so declare."
The article forming the basis for Mr Mornah’s argument, according to his lawyer, Dr Raymond Atuguba says, "The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court. (2) The Supreme Court, when reviewing its decisions under this article, shall be constituted by not less than seven Justices of the Supreme Court."
Dr. Atuguba said Rule 71B of C.I. 74 clearly violates this article of the constitution.
Bernard Mornah also contends that Rule 69C(5) of the CI.I.74 which provides that "The Court shall sit from day to day, including public holidays" when hearing a Presidential election petition, violates the Public Holidays Act, 2001 (Act 601) .
The plaintiff in his writ said Act 601 provides by implication in its sections 4, 5, and 6 that the courts of law may not open for business unless the President issues an Executive Instrument permitting same to happen.”
Dr. Atuguba told Joy News’ Araba Coomson “it is an offence to hold court on a public holiday without such an Executive Instrument and those who engage in such an act may be arrested, tried and punished in accordance with Act 601.”
“Given the hierarchy of norms provided for in article 11 of the 1992 Constitution, it is unconstitutional for C.I. 74, a piece of subordinate legislation, to contradict the Public Holidays Act, an Act of Parliament,” the writ noted.
The Rules of Court Committee the plaintiff argued, “does not have the power to make rules to regulate "practice and procedure" under article 64 which have the effect of obviating and extinguishing a substantive rule of law on holidays in Ghana. Such will contravene article 157(2) of the Constitution, which provides for all of the powers of the Rules of Court Committee in the following terms: "The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana." (the emphasis is ours). It is unconstitutional for the Rules of Court Committee to arrogate to itself the power to amend Acts of Parliament. That power is reserved for Parliament by article 93(2) of the Constitution.”
“To the extent that C.I. 74 contradicts Act 601 and Articles 157, 93 and 11 of the 1992 Constitution, same must be declared unconstitutional, null and void, and of no effect, Dr Atuguba insisted.