Compromising EC’s independence? Streamline Act 936

The 1992 Constitution confers the creation of districts on the Executive while the creation and re-demarcation of constituencies were assigned to the Electoral Commission (EC).

Although the Constitution empowers the President to create districts, it does not specify the procedure and criteria for their creation. This gap was filled by the Local Government (Act 462) of 1993, and its various revisions (including Act 936 of 2016). The Act ties the hands of the EC, compromises its independence and encourages Executive gerrymandering, therefore, portions that are not consistent with the constitution be removed.

The Act specifies that the President may, by Executive Instrument, declare any area in Ghana as a district. The Act also empowers the EC to advise the President when s/he is creating new districts. The EC’s recommendations to the President are straightforward – a minimum population of 75,000, 95,000 and 250,000 for districts, municipalities and metropolises respectively.

The Act considers Members of Parliament (MPs) as ex-officio members of district assemblies. Consequently, an MP cannot be a member of two district assemblies. This means that a constituency boundary cannot cross a district boundary and that whenever districts are created, constituencies must be created within them. Not doing so violates the Act. This, however, is problematic because it not only compromises the EC’s independence but also encourages Presidential gerrymandering (manipulation of electoral boundaries for electoral gain).

Creation of constituencies 

This explains why in 2004 and 2012 when the EC created 30 and 45 new constituencies respectively, it assigned at least one constituency to each district. This was done after the creation of 28 and 42 districts by the Executive in 2004 and 2011 respectively.

It also explains why the people of Santrokofi, Akpafu, Lolobi and Likpe (SALL) could not elect an MP during the 2020 election because they did not have a constituency. The Guan District where the people of SALL reside was created in 2020 roughly a month before the elections. The creation of a constituency requires that the EC lays a Legislative Instrument before Parliament that takes 21 days to mature. Then, there was not enough time to comply with the legal requirements to create a constituency. The question is why should the President create a district so close to an election? 
Article 47 of the 1992 Constitution directs the EC to review constituencies at intervals of not less than seven years, or within twelve months after the publication of the census report, whichever is earlier. This is to ensure that each constituency has a population nearly equal to the population quota (total population divided by total number of legislative seats) after considering means of communication, geographical features, population density, administrative and/or traditional boundaries. 

It is reasonable to state that it is due to the EC’s constitutional obligation that Act 936 and its previous versions require the EC to advise the President in the creation of districts as it relates to population thresholds. This requirement of the Act has consistently been maintained by Act 462 (1993) and Act 936 (2016) and those in between them. This is somehow to comply with the constitutional requirement that each constituency’s population is relatively equal.  

The important question is why do we have districts with populations far less than the minimum threshold of 75,000 as specified by Act 936? The 2021 census report published by the Ghana Statistical Service has about 70 (over 25%) out of the 261 districts with populations less than 75,000. The recently created Guan District has a population of 28,238 much less than half of the 75,000 threshold. Meanwhile, Kpone Katamanso has a population of 417,334 per the 2021 census report. These anomalies must be addressed because they seriously undermine democratic representation. 

Executive gerrymandering 

In its current form, Act 936 not only compromises the EC’s independence and encourages Executive gerrymandering, but it also limits the role of the EC in creating and re-demarcating constituencies because that work has been technically assigned to the President by the Act. Going by Act 936, the EC can only convert districts created by the President into constituencies but cannot carry out comprehensive re-demarcation by following best practices in other countries.  
Ghana has gone this way before – in the 1960s President Nkrumah espoused the principle that parliamentary constituency and administrative boundaries should be merged to bring government closer to the people. As a result, administrative districts created in 1964 automatically became parliamentary constituencies in 1965. However, when Nkrumah’s regime fell in the 1966 military coup, the principle of merging parliamentary constituencies with district assemblies’ boundaries was reversed. 

This is because district assemblies and constituencies serve different purposes. District assemblies are created to bring government services closer to the people while constituencies elect MPs to represent citizens in Parliament. Population size is not a major consideration for districts but it is in the case of constituencies. 

Way forward 

A situation where an MP represents a constituency of about 28,000 people while another represents over 400,000 people, makes the voters of the former over 14 times that of the latter. As a result, a constituency with 28,000 people is overrepresented and one with 400,000 people is underrepresented.
In conclusion, Act 936 contradicts the constitutional requirement of a near-equal population per constituency. It also compromises the EC’s independence and encourages Executive gerrymandering. Therefore, it should be streamlined with the Constitution to address the harms it causes. District boundaries should not be merged with constituency boundaries because it is inconsistent with the constitution. The President should respect the population threshold of the Act and should not create districts in election years.  

The writer is a Political Scientist