4 MPs vacant seat controversy: Supreme Court delivers judgment

The vexed issue of four seats in Parliament declared vacant by the Speaker, which has halted the extraordinary sittings of the House and set the stage for a potential constitutional crisis, is expected to be resolved by the Supreme Court today. 

A seven-member panel of the apex court, presided over by the Chief Justice, Justice Gertrude Torkornoo, will deliver judgment, giving the correct interpretation of Article 97(1) (g) and (h) of the Constitution.

Other members of the panel are Justices Mariama Owusu, Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Samuel Kwame Adibu-Asiedu, Ernest Yao Gaewu and Yaw Darko Asare.

The court fixed the date yesterday after hearing submissions from a former Attorney-General (A-G), Joe Ghartey, who is the lawyer for the Majority Leader in Parliament, Alexander Afenyo-Markin, the plaintiff who triggered the suit for the constitutional interpretation, and the A-G, Godfred Yeboah Dame, the second defendant in the action.

The Speaker of Parliament, Alban Sumana Kingsford Bagbin, who is the first defendant in the suit, chose not to defend his position, as he had no legal representative in court, neither did he file any court processes.

The dispute

Article 97(1) (g) and (h), which are the constitutional provisions used by the Speaker of Parliament to declare the four seats vacant, state that a Member of Parliament (MP) vacates his seat if he “leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member, or “if he was elected a member of parliament as an independent candidate and joins a political party”.

The Speaker’s decision effectively ended the tenure of the four MPs – Cynthia Mamle Morrison (NPP) for Agona West; Kwadjo Asante (NPP) for Suhum; Peter Kwakye-Ackah (NDC) for Wassa Amenfi Central, and Andrew Asiamah Amoako (Independent) for Fomena, barely two months before the December 7, 2024 parliamentary election.

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, had vacated his seat, pursuant to Article 97(1) (h).

The decision by the Speaker, which critics term a ruling, but which the Speaker describes as giving information to Parliament, was made on October 17, this year, and was triggered by the Minority Leader and MP for Ejumako, Enyan, Essien, Dr Cassiel Ato Forson.

Prior to the decision, the Majority Leader, who is also the MP for Efutu, had on October 15, filed a suit seeking an interpretation of Article 97(1) (g) and (h), with a case that the said constitutional provisions could not be used to vacate the seat of an MP who has decided to change his political allegiance in a future election.

Plaintiff’s submission

Making his case before the apex court yesterday, Mr Ghartey argued that a cursory reading of the constitutional provision under dispute would lead to the irresistible conclusion that the Article 97(1) (g) and (h) only applied to MPs crossing carpets within a term of Parliament, and not in a future election.

According to him, applying another interpretation like what was used by the Speaker in declaring the seats vacant would be a violation of the human rights of MPs, as it meant MPs could not change their political affiliation in future elections.

A-G’s submission

On the part of the A-G, he submitted that Article 97(1) (g) and (h) of the Constitution could only be applied when an MP changes his political identify within a term of Parliament.

Mr Dame was of the contention that at any point in time that the Constitution had made reference to Parliament, it focused solely on a current Parliament in subsistence, and not a future Parliament, with an election yet to be held.“This fortifies our position that any decision by an MP to change his political affiliation for an upcoming election does not lead to a vacation of his seat,” the A-G submitted.

He made reference to Article 97(2) of the Constitution and argued that even in the case of a merger of political parties, the Constitution did not say an MP should vacate his seat.

The essence of Article 97(1) (g) and (h) of the Constitution, Mr Dame argued, was to prevent a situation where during the tenure of a current Parliament, an MP changes his political identity, and not when the MP decides to change that identity in future elections.

The A-G, therefore, described as unconstitutional a ruling in 2020 by a former Speaker of Parliament, Professor Aaron Mike Oquaye, declaring vacant the seat of the then Member of Parliament (MP) for Fomena, Andrews Amoako Asiamah.

According to him, just as Prof. Oquaye was wrong in 2020, the current Speaker of Parliament had also acted unconstitutionally, and should not use the previous Speaker’s decision as justification for his decision declaring the four seats vacant.

“No matter the number of times an unconstitutional act is repeated, it does not make it right,” the A-G argued.

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