4 Vacant seats in Parliament - Supreme Court dismisses Speaker’s application

The Speaker of Parliament, Alban Sumana Kingsford Bagbin, has failed to have the decision by the Supreme Court suspending his declaration of four seats in parliament vacant reversed.

In a unanimous decision yesterday, a five-member panel of the apex court dismissed an application by the Speaker urging the court to vacate its decision dated October 18, this year, describing the application as a “misinformation and misapprehension of the law”.

The import of the ruling by the apex court is that the four Members of Parliament (MPs) whose seats were declared vacant by the Speaker of Parliament – Cynthia Mamle Morrison, Agona West; Kwadjo Asante, Suhum; Peter Kwakye-Ackah, Amenfi Central, and Andrew Asiamah Amoako, Fomena – will continue to be MPs, pending the final determination of a suit by the Majority Leader in Parliament, Alexander Afenyo-Markin.

Mr Afenyo-Markin’s suit is seeking an interpretation of Article 97 (1) (g) and (h) of the 1992 Constitution, the constitutional provision that formed the basis of the Speaker declaring the four seats vacant.

The Speaker of Parliament, who, in his application, further wanted the court to set aside the writ filed by the Majority Leader, argued that the Supreme Court had no jurisdiction to entertain the action because it was not within the purview of the court’s exclusive original jurisdiction to interpret and enforce the constitution.

Jurisdiction

However, in a very detailed ruling which made reference to various provisions of the Constitution and case law, the apex court, presided over by the Chief Justice, Justice Gertrude Sackey Torkornoo, held that it indeed had jurisdiction to entertain the action.

Delivering the decision of the court, the Chief Justice said both the Speaker of Parliament and the Majority Leader had put different interpretations on Article 97 (1)(g) and (h), and, therefore, the Supreme Court, as the only body vested with the power to interpret the constitution, had the jurisdiction to bring finality to the matter.

She said Article 2(1) of the Constitution allowed a Ghanaian, who was of the opinion that a provision of the constitution had been violated, to bring an action to the Supreme Court for a declaration, which was exactly what the Majority Leader did, while Article 130 exclusively grants the court the power to interpret and enforce the constitution.

One of the arguments by the Speaker was that the court had no jurisdiction because the legality of vacancy of a seat in Parliament was under the jurisdiction of the High Court by the effect of Article 99 of the 1992 Constitution.

Dismissing that argument, the court held that the writ filed by the Majority Leader was seeking an interpretation of Article 97(1) (g) and (h), which was purely a matter of law, and not whether a Member of Parliament was validly elected.

The court held that even if the case was filed at the High Court and the interpretation of Article 97 (1) (g) (h) became a bone of contention, the High Court, by Article 130(2) of the 1992 Constitution, was required to stay proceeding and refer the issue of constitutional interpretation to the Supreme Court for determination.

“It is, therefore, misinformation and misapprehension of law for the applicant to represent that the Supreme Court has no jurisdiction to give interpretation on a provision of the constitution which has attracted different meanings,” the court held.

The court added that its power to interpret and enforce the constitution came with numerous consequences, and that any declaration or ruling made, if not obeyed, amounted to a high crime, which in the case of the President and Vice-President could lead to their impeachment.

Exceptional circumstances

The Speaker’s writ further argued that the ruling by the court was procedurally wrong as his decision was non-judicial and, therefore, not executable for the court to have stayed its execution.

However, the apex court dismissed that argument and held that the Speaker’s ruling was executable because in declaring the four seats vacant, the Speaker interpreted Article 97(1) (g) (h), making copious reference to the said provision and other provisions, and analysing and evaluating the law in about 10 pages.

Again, on the issue that the application leading to the court’s decision on October 18 should not have been made ex parte, but with notice to the Speaker, the court held that the Speaker was fully aware that the Majority Leader had filed the writ on October 15, but he still went ahead to give the ruling declaring the four seats vacant on October 17.

According to the court, the proceedings of Parliament showed that the suit was served at the Legal Department of Parliament and was fully brought to the attention of the Speaker.

The court further reiterated that it put the Speaker’s decision on hold because of exceptional circumstances.

For instance, the court held that the Speaker, by his decision, made constituents of the four constituencies lose their representation in Parliament, when he knew that the very constitutional provision he relied on had been given different interpretations and was a subject of suit at the court to bring finality to the matter.

The court also held that if it had not put the Speaker’s decision on hold, the four MPs would have lost their emoluments, and also been prevented from holding office.

Hearing of the substantive case will be on November 11.

Background

On October 17, this year, the Speaker of Parliament declared the four seats vacant following a petition from the Minority in Parliament, which effectively ended the tenure of the four MPs

Ms Morrison, Messrs Asante and Kwakye-Ackah have all filed as independent candidates for the December 7 elections, while Mr Asiamah Amoako, who was the Second Deputy Speaker of Parliament until Mr Bagbin’s ruling, filed to contest the Fomena seat on the ticket of the governing NPP.

The issue had been triggered by the Minority Leader and MP for Ejumako, Enyan Essien, Dr Cassiel Ato Forson, who drew the Speaker’s attention to the development on the floor of the House and asked him to rule on the issue.

The Minority had tabled their request on the strength of portions of Article 97 of the Constitution, arguing that those provisions of the Constitution abhorred the switch in allegiance midway through a parliamentarian’s tenure.

Article 97(g) states that a Member of Parliament shall vacate his seat in Parliament “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”, while Article 97(h) states that the member would forfeit his seat “if he was elected a Member of Parliament as an independent candidate and joins a political party”.

The Speaker agreed, stating in his ruling that the relevant MPs had, by their actions, vacated their seats in Parliament.

However, on October 18, the day after the ruling, Mr Afenyo-Markin, who had earlier filed a suit at the Supreme Court on October 15, seeking an interpretation of Article 97 (1) (g) and (h), filed an ex parte application for the court to put on hold the ruling by the Speaker.

The apex court granted the application, which led the Speaker to file the current application which the court dismissed yesterday.

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