Ms Nyonator in court against naming of new EC Chair

A Ghanaian, Ms Fafali Nyonator, who is in court to challenge the removal of Mrs Charlotte Osei as the Chairperson of the Electoral Commission (EC), wants the Supreme Court to stop the President from going ahead to appoint a new EC Chair until her substantive case is determined.

Ms Nyonator filed the motion on notice for interlocutory injunction to restrain the President from appointing or swearing into office a new Electoral Commissioner until the final determination of the substantive case.

In the substantive case, which was filed on July 3, 2018, the plaintiff is claiming, among others, that the committee that recommended the removal of Mrs Osei and her two deputies exceeded its powers by construing or defining the scope of application of provisions of the 1992 Constitution, including articles 44 (2) and 146.

She says the committee thus acted in violation of Article 130 (a) by usurping the exclusive original jurisdiction of the Supreme Court to interpret the provisions of the 1992 Constitution.

She is also praying the highest court of the land to declare that the Chief Justice’s determination of a prima facie case pursuant to Article 146 of the 1992 Constitution for the removal of Mrs Osei usurped the exclusive original jurisdiction of the Supreme Court.

Consequently, the plaintiff wants the court to declare as null and void the said prima facie determination of the Chief Justice, the report of the said committee that recommended the removal from office of Mrs Osei, as well as the President’s removal of Mrs Osei on the basis of the said report.

Interlocutory injunction

There are reports that the President is likely to appoint a new EC Chair and two deputies this week after consultations with the Council of State.

But the applicant, in a motion on notice for interlocutory injunction filed in Accra yesterday, stated that the overriding purpose for commencing this action was to assist in efforts to entrench the rule of law in Ghana and seek legal remedies for what she considered patent violations of the provisions of the 1992 Constitution.

According to her, in the event her claims in the substantive writ were upheld, “then the position of the Chairperson of the EC cannot be said to be vacant to require the appointment of another person to occupy that position”.

“Then it will mean that Mrs Osei will remain as the Chairperson of the EC until she is removed in a manner consistent with the provisions of the 1992 Constitution,” an affidavit in support of the motion for interlocutory injunction stated.

The applicant argued that the appointment of a new person to perform the role of the Chairperson of the EC would undermine the authority of the court and further render nugatory any decision that might be rendered in applicant’s favour.

EC’s work

According to the applicant, the work of the EC required the support and cooperation of the public and diverse political groupings and it was, therefore, necessary that “there is no cloud of legal uncertainty surrounding the position of the Chairperson of the EC”.

She argued that any legal uncertainty would affect the authority of the EC to carry out its constitutional duties and it was in the public interest that such legal uncertainty was not further aggravated by what she termed the unlawful appointment of a new person to head the EC until the final determination of the case.

She said until the President gave an undertaken that in the event that she won the case, Mrs Osei would be permitted to continue to perform the functions of her office, the court should restrain the President until the final determination of the case.

“That the public interest is irreparably harmed when constitutional conduct is not only allowed to persist and fester but is  aggravated by further unconstitutional conduct, as will be the case in the present case if a new person is appointed as the Chairperson of the EC pending the final determination of the instant suit,” she added.

Removal

Mrs Osei was removed on June 28, 2018 based on the recommendations of the committee set up to investigate her and her deputies over allegations of corruption and misconduct.

A statement signed and issued by the Minister of Information, Dr Mustapha Abdul-Hamid, said: "The President of the Republic, Nana Addo Dankwa Akufo-Addo, has, on Thursday,  June 28, 2018, removed from office the Chairperson of the Electoral Commission, Mrs Charlotte Osei, and her two deputies, Mr Amadu Sulley and Mrs Georgina Opoku-Amankwah, with immediate effect.

"This was after the committee set up by the Chief Justice, Justice Sophia Akuffo, pursuant to Article 146 (4) of the Constitution, to investigate separate complaints brought against the three persons by Ghanaian citizens recommended their removal from office."

It added: "The committee recommended their removal on the basis of stated misbehaviour and incompetence, pursuant to Article 146 (1) of the Constitution.

"The provisions of Article 146 (9) of the Constitution require the President of the Republic to act in accordance with the recommendations of the committee."