Supreme Court quashes Speaker’s decision - 4 MPs remain in Parliament

The declaration of four seats in Parliament vacant by the Speaker of Parliament, Alban Sumana Kingsford Bagbin, is unconstitutional, the Supreme Court has held.

In a 5-2 majority decision on Tuesday [Nov 12, 2024], the apex court upheld a suit by the Majority Leader in Parliament, Alexander Afenyo-Markin, which sought a constitutional interpretation of Article 97 (1) (g) and (h) of the Constitution.

The effect of the court’s decision is that the four MPs whose seats were declared vacant by the Speaker — Cynthia Mamle Morrison, the New Patriotic Party (NPP) member for Agona West; Kwadjo Asante (NPP), Suhum; Peter Kwakye-Ackah, the National Democratic Congress (NDC) member for Amenfi Central, and Andrew Asiamah Amoako (Independent), Fomena — have not vacated their seats and, therefore, lawfully remain Members of Parliament (MPs).

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

“In a 5-2 majority decision, the plaintiff action succeeds,” the Chief Justice said.

Constitutional interpretation

The court did not give its full reasoning, which it said would be ready by today, and did not also give any consequential orders, which are expected to be in the full judgment.

However, by upholding the suit by the Majority Leader, it means the court has granted the reliefs of the plaintiff and effectively interpreted Article 97 (1) (g) and (h) of the Constitution, which formed the basis for the Speaker’s decision, to mean that the four MPs have not vacated  their seats by virtue of switching their political identity in the upcoming December 7 election.

The plaintiff wanted the apex court to declare that upon a true and proper interpretation of Articles 97 (1) (g) and (h) of the Constitution, and other provisions such as Articles 2(1), 12(1) and (2), 17(1), 21(1)(b), 35(1) and (5), 55, 130(a), 296(a), “the four legislators, by seeking to contest the upcoming election on the ticket of another political party to become MPs in the 9th Parliament of the Republic of Ghana, does not amount to vacation of their seats as Members of Parliament in the current 8th Parliament”.

Article 97(1) (g) and (h)

Article 97(1) (g) and (h) of the Constitution, the provisions used by the Speaker of Parliament to declare the four seats vacant, stipulate that an 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 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 election, had 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 election, had vacated his seat pursuant to Article 97(1) (h).

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

Prior to the decision, the Majority Leader, who is also the MP for Effutu, 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 had decided to change his political allegiance in a future election.

Lawyer for the Majority Leader, Joe Ghartey, a former Attorney-General (A-G), argued before the Supreme Court that Article 97(1)(g) and (h) of the Constitution was not meant to have a futuristic effect, but rather was expected to be applied within the term of a current Parliament.

The current A-G, Godfred Yeboah Dame, who was a second defendant in the suit, sided with the plaintiff and argued 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.

Speaker’s position

The Speaker of Parliament, who was the first defendant in the suit, despite initially challenging the Supreme Court’s ruling to put on hold his decision to declare the four seats vacant, decided not to file any defence in response to the substantive suit.

The Speaker, in his application, challenged the court’s jurisdiction to put his decision on hold, and to even entertain the substantive action on the basis that the legality or otherwise of a vacation of seat in Parliament was within the purview of the High Court, pursuant to Article 99 of the Constitution, and not the Supreme Court.

However, in its ruling on October 30, dismissing the Speaker’s application, the Supreme Court held that it had jurisdiction to hear the matter.

The court held that 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.

Again, the court was of the view that 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 of the Constitution exclusively granted the court the power to interpret and enforce the constitution.

Victory for democracy

The Majority Leader, Alexander Afenyo-Markin, has stated that the Supreme Court decision should not be seen as a victory for one side but a triumph for Ghana’s constitutional democracy and the rule of law.

“It reinforces the principle that in our Republic, every institution, no matter how exalted, must operate within the bounds of our Constitution,” he said.

Addressing journalists in Parliament yesterday after the Supreme Court ruling on the vacant parliamentary seats, the Majority Chief Whip, Frank Annoh-Dompreh, who read a speech on behalf of Mr Afenyo-Markin, extended a hand of friendship to his colleague MPs across the political divide.

“The time has come for us to move beyond this episode and redirect our energies towards our primary duty — serving the good people of Ghana who elected us to represent their interests.

“Our nation faces pressing challenges that demand our united attention and collaborative effort,” he said.

The Leader of Government Business, in a direct address to the Speaker of Parliament, reaffirmed his utmost respect for his office and his distinguished service to the nation.

He said the judicial interpretation of the Constitution should strengthen, not weaken, the relationship between leadership and members of the House.

“With the highest regard for your wisdom and commitment to our democracy, I respectfully look forward to your exercise of your authority to reconvene Parliament, so that together we may resume our sacred duty to the people of Ghana without further delay or discord,” he said.

Mr Afenyo-Markin reminded colleague MPs that as they returned to their legislative duties as soon as possible, they must remember that they were first and foremost servants of the people.

“The voters who sent us to Parliament expect us to prioritise their interests above all else. They deserve nothing less than our total commitment to advancing the development agenda that will improve their lives,” he said.

Opportunity for renewal

The Leader also called on all Members of Parliament to view the moment as an opportunity for renewal.

“Let us approach our duties with fresh vigour, determined to work together in the spirit of constructive dialogue and mutual respect.

“The clarification provided by the Supreme Court should serve as a foundation for more effective parliamentary proceedings,” he said.

 He said Ghana’s democracy emerged stronger when “we respect the wisdom of our Constitution and the interpretation of its guardians”.

“Let us now focus on the critical work ahead, united in our commitment to Ghana's progress and prosperity,” he said.

A member of the NDC Caucus and MP for South Dayi, Nelson-Rockson Dafeamekpor, described the ruling as one that had shocked his side, saying the court fell into an error.

He said in the wake of such a judgment, the Speaker still had before him a petition submitted by the Majority, asking the Speaker to declare vacant the seat of the member for Dome Kwabenya, Sarah Adwoa Safo.

Mr Dafeamekpor, who is also a legal practitioner, explained that it was the third time the Majority had petitioned for her seat to be declared vacant for absenting herself for more than 14 days, in the hope that a by-election could be organised for her to be replaced.

The MP for South Dayi said the Minority after observing that the members for Assin Central, Kennedy Agyapong, and Ayawaso Central, Henry Quartey, had also absented themselves for more than 14 days asked that they should also be added to the seats to be declared vacant.

He explained that while it was the view of the First Deputy Speaker, Joe Osei-Owusu, that the Privileges Committee to which the issue was referred should have decided their fate and brought to plenary, the Minority insisted it should be brought to plenary for decision-making.

However, the Speaker heeded the Minority’s position that plenary should rather take the decision and bring it to the floor of the House.

He said while the committee said Messrs Agyapong and Quartey had reasonable cause for absenting themselves, it said Ms Safo’s seat could be declared vacant.

Mr Dafeamekpor recounted that the Speaker took the decision that the MP for Dome Kwabenya needed to be given a hearing in plenary and that explained why the petition was still pending before the Speaker.

The South Dayi lawmaker questioned whether the ruling meant that the individuals who had switched their allegiances should be tolerated in the House and asked on whose side they would transact business.

Way forward

Mr Dafeamekpor said contrary to other views, the court’s order would not have any automatic effect on Parliament because it would now be executed, as was the case for all court orders.

“Parliament has to take a decision to give effect to the ruling; it is executionary. All 275 Members of Parliament must now sit to take a decision to give effect to the court ruling and without a quorum that execution cannot be done,” the MP said.

Summoning Parliament

Asked whether the Speaker must summon Parliament immediately to start sitting, he explained that the House adjourned sine die and that recall must be triggered.

After that, it would take a minimum of 14 days for Parliament to reconvene, given that the Speaker had seven days within which to act upon the request and another seven days within which the MPs must respond and reconvene.

“With barely three weeks to elections, and with MPs busily campaigning, I wonder whether the House can come back before the December 7 general election,” Mr Dafeamekpor submitted.

Asked what the Minority Caucus discussed at its marathon meeting soon after the court ruling, the South Dayi lawmaker declined to give details, except to say “we met to strategise”.

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