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Ghana's New Region Creation Doctrine: The Jurisprudence of No Jurisdiction and the Faux Economics of Balkanisation

Document Cited in Related
Vincent
Published date01 November 2020
Date01 November 2020
Pages529-554
DOI10.3366/ajicl.2020.0338
INTRODUCTION

Ghana recently created six new regions, amid controversy over who was entitled to vote and the relative merits of creating such regions.1 The Commission, appointed by the President to inquire into the petitions calling for the creation of six new regions, concluded that there was substantial demand and need for the creation of the regions in all the six areas from which the petition emanated.2 Accordingly, the Commission recommended the creation of the six new regions by carving them out of four of the then ten regions.3 The Commission also recommended that only registered voters within the proposed regions should be eligible to participate in the referenda, noting that the recommendation was consistent with Ghana's past history of plebiscites and referenda (1949 and 1956) as well as international best practices from Scotland, Southern Sudan, East Timor and other areas.4

The Commission's suffrage recommendation generated substantial controversy.5 First, the Commission's reference to Ghana's history on referenda and international best practices was not on point.6 In fact, Ghana had never used a referendum to create a region and the international examples cited had nothing to do with creating administrative regions within the same country.

Rather, the requirement for a referendum was imposed to minimise the incidence of region creation and largely explains why no civilian government operating under the requirement had used it to create a region.7 A Commission, set up in 1971 to inquire into a petition to alter the boundaries of two regions, concluded that there was substantial demand but no need for a referendum.8 Inexplicably, the current Commission failed to acknowledge the work of the 1971 Commission. Second, the Constitution, not history and international best practices, governed the suffrage question.9 Third, what was the point of incurring cost to hold a referendum in only the areas where there was a popular demand for creating a new region out of a pre-existing region? The outcome seemed obvious. Fourth, in what sense was region a meaningful political or legal construct if only some of its inhabitants had the suffrage on matters affecting its boundaries? Fifth, what was the theoretical and empirical justification for the exercise?

In the ensuing debate, three rival views emerged on how to interpret the provisions of Article 5 as they relate to the suffrage issue. One view was that Ghana is a unitary country and any redrawing of its interior boundaries must be determined by all registered voters.10 This is referred to as the unitary view. A second school argued that, at a minimum, voters in the affected regions should participate in the referenda since they were directly affected by the split of the region. This is referred to as the regional view. The Commission's recommendation was, of course, the third view.

It was in light of this controversy that plaintiffs invoked the original jurisdiction of the Supreme Court to seek a declaration that upon a true and proper interpretation of Article 5, on the creation of new regions, and Article 42, on the right to vote, all persons in the affected regions are entitled to vote in the referenda on the creation of new regions scheduled for 27 December 2018.11 On 28 November 2018, the Supreme Court resolved the issue by holding that ‘the provisions of Article 5 of the Constitution are clear and contain no ambiguity’ and, therefore, declined jurisdiction to determine the substantive merits of the plaintiff claim.12 The holding paved the way for voters in the specified areas of the four affected regions of the country to participate in referenda, culminating in the creation of the six new regions.13

This article examines the Court's holding that the provisions of Article 5 are unambiguous. It also evaluates the raison d’être for creating the regions. The article concludes that the provisions of Article 5 are neither clear nor unambiguous. Rather, there is substantial merit in the regional view, which also seems more consistent with the Court's preferred purposive approach to constitutional interpretation.14 Further, the path taken to creating the regions seems at variance with the constitutional objective of making it difficult to do so. It also concludes that the objectives of creating the regions are unlikely to be realised, since the exercise was not accompanied by the power-sharing reforms that are necessary for attaining the advertised objectives. As the resulting fragmentation of the country provides no clear benefits but imposes certain costs, the article suggests legal reform to raise the bar for creating regions and power-sharing. Alternatively, Parliament can enact a statute that sets some boundaries on creating new regions.15

Ghana is often characterised as a beacon of democracy and constitutionalism in Africa. Therefore its jurisprudence on region creation and economic doctrines are of interest to academics and practitioners within and without the continent. Further, because its Supreme Court has original and exclusive jurisdiction in interpreting the Constitution, the decision to decline jurisdiction imposes extraordinary burdens on litigants as they have no other forum to seek redress of their substantive claims. Thus, it is of utmost importance to subject such constitutional forum ousting to rigorous analysis.

The next section provides some theoretical perspectives on region creation. This is followed by background information on regions in Ghana. Section IV discusses the current law on creating regions. The next section summarises the Commission's findings and their basis. Sections VI and VII are devoted to stating and analysing the Court's no jurisdiction jurisprudence. Section VIII evaluates the merits of creating the regions. The article concludes with some suggestions on how to avoid a proliferation of regions.

 THEORETICAL PERSPECTIVES ON REGION CREATION

Proponents of the new regions argued that they will lead to economic development, poverty alleviation and grassroots democracy. These expected benefits can be viewed through the lens of agency theory.16 Under this perspective, citizens are regarded as the principal and officials as the agent in a principal-agent (P-A) setting. As with any P-A relationship, agency losses are expected to occur because the agent does not always take actions that are consistent with the principal's interests. Agency losses are minimised if the principal and the agent share common interests or the principal is knowledgeable about the consequences of the agent's activities.17

Creating regions arguably addresses both of these issues by restructuring the network of principal-agent relationships that exist between citizens, local officials and the state.18 Regions reduce both moral hazard and adverse selection associated with distant agents and local principals. Conversely, local principals theoretically gain more leverage over local agents who are now directly responsible for such critical areas as basic service provision.19 This shift in the direction and degree of accountability between citizens and local officials also change responsibilities that both have in carrying out the duties that the restructurings assign to them. The sum effect of this restructuring is improved accountability, accommodation of local demands, enhanced grassroots democracy, alleviation of poverty and the heralding of economic development.20

Opponents of the new regions were sceptical about these governance and economics benefits. Their scepticism can be viewed through the lens of the positive theory of institutions.21 Under this view, institutions, such as regions, are created to vest the interests of the powerful, either by entrenching their power or enhancing the state's extractive capacities.22 Thus, new regions are created not to promote local political participation but to tip the balance in local competitions for leadership role and status in favour of the centre.23 Invariably, the new regions are not vested with the corresponding transfer of resources and power to allow them to realise the claimed benefits. Thus political, not welfare-enhancing, logic undergirds the exercise.

Recognising that regions can be created without a corresponding transfer of power and resources allows any exercise in region creation to be classified along both a spatial and an authority sharing dimension as shown in Table 1. The spatial dimension reflects the number of regions within the national space while the authority sharing dimension reflects the de facto distribution of authority between the centre and the regions.24

Spatial partitions and sharing of authority

Low Devolution of Authority High Devolution of Authority
Spatial Consolidation (Decreasing Regions) Consolidated Occupation Consolidated Power-Sharing
Spatial Fragmentation (Increasing Regions) Fragmented Occupation Fragmented Power-Sharing

• Consolidated Occupation: The central government governs the regions from a few strategic outposts and acts with autonomy from local influences (e.g. the 1960 Constitution).

• Fragmented Occupation: There is a proliferation of regional outposts that provides a bloated infrastructure for the central government to micromanage the local political process (e.g. the post- 2019 creation of six regions).

• Consolidated Power-Sharing: The central government shares power with a few subnational governments that elect their own leaders and assemblies (e.g. the blueprint in the 1957 Constitution).

• Fragmented Power-Sharing: The central government shares power with many subnational governments that elect their own leaders and assemblies. Some regions become too small to succeed.

Adapted from Boone, supra, note 22 at 360.

The cell labelled ‘Consolidated Occupation’ reflects a polity with a few regions and centralised authority. State agents micro-manage the few regions. This polity would benefit from reforms that transfer power and resources...

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