FULL JUDGEMENT: 4 MPs seat ruling: Supreme Court gives reasons for decision

The Supreme Court has held that a Member of Parliament (MP) does not vacate his seat if he intends to contest in a future election on the ticket of another political party other than the one that brought him to the House.

In a 5-2 majority decision, the Supreme Court upheld a suit by the Majority Leader in Parliament, Alexander Afenyo-Markin that Article 97(1) (g) and (h) of the Constitution, which formed the basis for the Speaker of Parliament to declare four seats in the House vacant, pertained to future Parliaments and not the current.

In a 109-page document which contains details why the MPs’ decision to contest on a different ticket could not have a futuristic application, the court said the constitutional provisions should be used to vacate the seat of an MP, elected on the ticket of a particular political party who had decided to change his political identity, and still wanted to remain in the House within his four-year term under a current Parliament, thereby reducing the numerical advantage of his original political party, or an independent MP, who had decided to join a political party and still wanted to remain in the House within his four-year term.

According to the court, using Article 97(1) (g) and (h) of the Constitution to vacate the seat of an MP who intends to contest on the ticket of another political party in a future election would not be in accordance with the true interpretation of the said provisions or the intention of the framers of the Constitution.

“The central issue thus intended to be addressed by Article 97(1)(g) and (h), is not merely declaring the intention to join another party or the intention to become an independent MP in another Parliament, but becoming Independent or becoming a member of another party while seeking to remain in Parliament during the term for which the MP was elected,” the court held.

“This act violates the social contract with the electorate, a contract that spans the full four-year term, and only the electorate has the authority to alter it. If an MP wishes to change their political status while remaining in Parliament, they must vacate their seat and seek a new mandate from the voters,” the court added.

The 5-2 majority decision of the court was authored by Justice Yaw Darko Asare, while Justice Samuel Kwame Adibu-Asiedu also wrote a concurring opinion.

Other Justices on the majority side were the Chief Justice, Justice Gertrude Sackey Torkornoo, Justices Mariama Owusu, Ernest Yao Gaewu and Yaw Darko Asare, while Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu dissented.

Speaker’s interpretation

On October 15, the Speaker of Parliament, Alban Kingsford Sumana Bagbin, declared the seats of four MPs – Cynthia Mamle Morrison (NPP), Agona West; Kwadjo Asante (NPP), Suhum; Peter Kwakye-Ackah (NDC), Wassa Amenfi Central, and Andrew Asiamah Amoako (Independent), Fomena, as vacant.

The Speaker was of the view that Ms Morrison, Messrs Asante and Kwakye-Ackah, by virtue of filing to contest as independent candidates in the December 2024 elections, have switched allegiance from their political parties and, therefore, vacated their seats within the context of Article 97(1) (g), while Mr Amoako, by filing to contest on the ticket of the NPP in the elections, has vacated his seat, pursuant to Article 97(1) (h).

The Speaker also disagreed with suggestions that those provisions which addressed the vacation of an MP’s seat due to defection should apply only to future parliaments and not to the term of office of Parliament, dismissing it both as untenable and inconsistent with the constitutional purpose of those provisions.

Mr Bagbin said to the extent that those provisions were designed to prevent political instability, opportunistic behaviour, fraudulent representations and disruption of parliamentary composition during the term of a Parliament, to understand those provisions as only applying prospectively would nullify the purpose of Article 97 and render them effectively superfluous.

“By the time the next Parliament is constituted, any MP who has defected or switched political allegiance during the current Parliament would no longer be in violation of the provision — they would start the next term aligned with their new party or as an independent,” Mr Bagbin explained.

However, the Supreme Court, in its judgment, held that allowing the interpretation of Article 97(1) (g) and (h) of the Constitution by the Speaker would result in “anti-democratic rule”.

By extension, the 1st Defendant's interpretation will result in the anti-democratic rule that an MP cannot run for election in the next general election unless he does so on the ticket of his current party.

Or that, to be able to run on a different ticket, he must be deemed to be ineligible to continue as a Member of Parliament,” the court held.

“Such an interpretation will essentially trap MPs within their current party affiliation throughout the life span of a term of Parliament, limiting their freedom to realign their political stance or represent evolving interests, resulting in the undermining of the democratic principle of choice both for the MPs and their constituents,” the court added.

Parliamentary sovereignty & jurisdiction

On the issue of whether the court had power to interfere in the affairs of Parliament, the court held that it has in many cases, held that unlike previous constitutions, under the 1992 Constitution, the processes of Parliament were not a “closed book”.

Relying on cases such as J. H. Mensah vs A-G, Tuffour vs A-G, Martin Alamisi Amidu vs A-G, Ezuame Maanan vs A-G, and Justice Abdulai vs A-G, the court held that by the combined effect of Articles 2(1) and 130 of the Constitution, it had the power to scrutinise the activities of Parliament to see whether they were constitutional or not.

“Consistent with established precedent, therefore, this Court reaffirms its constitutional mandate to scrutinise parliamentary acts and practices that implicate constitutional and justiciable matters, thereby ensuring the preservation of constitutional supremacy, all the while being mindful of the delicate boundaries between law, politics, and ongoing processes that do not constitute acts properly so called,” the court held.

With regard to whether the Supreme Court had the jurisdiction to entertain the action, the court held that although the High Court had jurisdiction with regard to whether a seat is vacant or not in Parliament, what was before the court was purely a question of law regarding the true interpretation of Article 97(1) (g) and (h) and not “factual disputes regarding seat vacation in Parliament, which properly lies within the High Court's purview under Article 99 of the Constitution.”

Dissenting opinions

In their respective dissenting opinions, Justices Johnson and Amadu held that the Supreme Court should not have entertained the writ from the Majority Leader as it had no jurisdiction over the subject matter, and rather it was the High Court that could determine the matter under Article 99 of the Constitution.

For Justice Tanko, the court had in previous cases, declined jurisdiction when it was clear that the matter in dispute was within the jurisdiction of the High Court.  

“I, with all due respect, also find the decision an aberration to the established and accepted judicial position of this court, which, with profound respect, I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed,” Justice Tanko held.

For Justice Johnson, the appropriate procedure was for the suit to have been filed at the High Court, and if there was an issue of constitutional interpretation, then the High Court would make reference to the Supreme Court pursuant to Article 130(2 ) of the Constitution.

Writer’s email : emma.hawkson@graphic.com.gh