The Supreme Court of Ghana filed a judgment last week overturning a controversial decision by the Speaker of Ghana’s Parliament to declare four seats vacant due to anticipated party changes in the next election. The court, in a 5-2 decision, declared the Speaker of Parliament’s October 17 vacancy pronouncements pursuant to Article 97(1)(g) and (h) of Ghana’s Constitution as unconstitutional. The five justices in favor were Yaw Darko Asare (JSC), G. Sackey Torkornoo (C J), M. Owusu JSC, E.Y Gaewu (JSC) and Samuel Adibu Asiedu (JSC). Two justices, Avril Lovelace-Johnson (JSC) and Issifu Omoro Tanko Amadu (JSC), dissented.
The suit hinged on the interpretation and enforcement of Article 97(1)(g) and (h), which govern when seats in parliament become vacant. The article states, in part:
Article 97(1) – A member of Parliament shall vacate his seat in Parliament-
(g) 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
(h) if he was elected a member of Parliament as an independent candidate and joins a political party.
The plaintiff and majority leader of parliament, Afenyo Markin invoked the exclusive jurisdiction of the Supreme Court pursuant to Articles 2 and 130(1) on October 15. The court was to determine whether MPs with the New Patriotic Party (NPP) caucus filing to run as independents for the next election or independent MPs filing to run as members of the NPP means that their Parliamentary seats have become vacant in the meaning of Article 97(1)(g) and (h).
Notwithstanding the invocation of the court’s jurisdiction, the Speaker pronounced on October 17 that the four seats are vacant in the meaning of Article 97(1)(g) and (h). The MPs affected were:
- NPP caucus member, Cynthia Morrison of Agona West Constituency.
- NPP caucus member, Kwadjo Asante of Suhum Constituency.
- National Democratic Congress (NDC) caucus member, Peter Kwakye Ackah of Amenfi Central Constituency.
- Independent member, Andrew Amoako Asiamah of Fomena Constituency.
This resulted in a back and forth between the Speaker and the Supreme Court where the court, on an ex parte application by the plaintiff, temporarily halted the execution of the Speaker’s pronouncement and later denied an application by the Speaker for the court to re-state the pronouncement.
Amidst these controversies, the Speaker reassured the people of Ghana that nothing is in tension but democracy is at play.
It was the arguments of the plaintiff and the second defendant Attorney General and Minister of Justice Godfred Dame that by the purposive interpretation of Article 97(1)(g) and (h), a member of parliament is said to have crossed the carpet when he abandons his party from which he was elected or joins a party when he was elected as an independent candidate during the tenure of his term as MP but does not cross carpet in relation to a future parliament. Thus, imploring the court to reject the rival meaning placed on Article 97(1)(g) and(h) by the Speaker as undermining the electoral rights and freedoms of the MPs and their constituencies.
In the absence of further arguments to oppose the plaintiff’s and the 2nd defendant’s arguments, the Speaker submitted in his affidavit of support that the Supreme Court has no jurisdiction to entertain the matter as this is solely in the ambit of Ghana’s High Court, pursuant to Article 99. The Supreme Court addressed this in its ruling on October 30.
In the majority judgment of the court on Wednesday, the court adopted the purposive literalist interpretative approach and expounded that the phrases, “leaves the party” and “joins a political party” as seen in Article 97(1)(g) and (h) do not show any prospective or anticipatory connotation but conveys present and immediate actions rather than future occurrence. Thence, the obligation to vacate a seat in parliament as seen in the subject matter of Article 99 arises solely from actions taken within a current parliamentary term.
In the court’s majority opinion, Justice Asare discussed the policy of the true meaning of Article 97(g) and (h) as seeking to protect the social contract MPs have with their electorate, a contract that spans for a full term which only the electorate has the authority to alter. Thus, 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. On the contrary, actions calculated to take effect after the term do not interfere with the voter’s mandate and do not therefore fall within the contemplation of the law.
The court in examining the Speaker’s interpretation of Article 97(1)(g) and (h) concluded that it moves power away from individual representatives and voters, entrenching party control over parliamentary seats in a manner that will be both undemocratic and contrary to established precedents as it seeks to impose an undue restriction on political freedom, a constraint not articulated in the original text of the articles.
It is noteworthy that the other two justices, Avril Lovelace-Johnson and Issifu Omoro Tanko Amadu, dissented. They submitted that on a true meaning of Article 99, the plaintiff ought to have commenced his case at the High Court. Article 99 states, in part:
Article 99(1)- The High Court shall have jurisdiction to hear and determine any question whether-
(a) …the seat of a member has become vacant…
Amadu, in his dissenting, opinion submitted, “The consensus of judicial authority is that, this court cannot vest itself under the guise of being a policy court with the jurisdiction the 1992 Constitution itself has vested in another judicial forum…”
This case reinforces the principle of law as espoused by Chief Justice ENP Sowah in the case of Tuffour v Attorney General and upheld in the case of Justice Abdullai v Attorney General that the Supreme Court can call into question a decision of Parliament in so far as Parliament has acted in excess of the powers conferred on it by the Constitution.
