I have followed closely the standoff or impasse between the legislative and judicial arms of Ghana that has lasted for one month.
The issue is straightforward and I will delve into it with a breakdown of analysis.
The Member of Parliament (MP) for Tamale South, Hon. Haruna Iddrisu on the 13th of October, 2024 stated at a rally in the Tamale North constituency that on Tuesday, 15th October, 2024, when parliament reconvenes for government business, he will lay before the house, the constitutional provisions under article 97(1) (g) and (h).
He further stated that the effect will result in a swap in the majority and minority caucuses.
The seemingly contentious article 97(1) (g) states, “A member of Parliament shall vacate his (their) seat in Parliament – if he (they) leave(s) the party of which he (they) was (were) a member at the time of his (their) election to Parliament to join another party or seeks to remain in Parliament as an independent member; or
(h) If he (they) was (were) elected a member of Parliament as an independent candidate and joins a political party.” [pronoun and verb revision mine]
Now, let’s analyse, in legislative drafting, whenever, the word ‘shall’ is used, it means the pronouncement is mandatory, compulsory or unavoidable. Hence, the aforementioned article is undoubtedly applicable in that regard. At this juncture, a historical detour is necessary to appreciate the rationale behind the provision in tussle. The constitutional provision was inserted to prevent MPs from switching sides popularly known as ‘cross-carpeting’ during their term in parliament.
It sought to discourage and prevent MPs from betraying the people who voted them into office and the party on whose ticket they sort to be elected.
This was post the 1960 Constitution. In the current case of the four MPs, three are contesting as independent candidates and one is on the ticket of a political party in the upcoming general elections.
This is a clear case of conflict of interest. How can they be part of caucus meetings when they are currently campaigning against the political parties who form these caucuses. This is a recipe for disaster and that is what article 97 seeks to cure.
Some legal analysts have sort to interpret it as a futuristic provision. This is a very flawed position as the matter will be moot rendering the provision useless. The outcome of an election is only known after the election and not based on conjecture or research.
Composition of Parliament
Chapter ten of the Constitution, 1992 captioned, ‘The Legislature’ under article 93(1) makes provision for the composition of parliament. It states, “There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members.”
This means Parliament can only be duly composed by an election of its members; simpliciter. That established, article 97(1) outlines the instances when a seat becomes vacant.
Since sub-clauses (g) and (h) have been already stated, the others will be added. A member of Parliament shall vacate his seat in Parliament -(a) upon a dissolution of Parliament; or
(b) if he is elected as Speaker of Parliament; or
(c) if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet; or
(d) if he is expelled from parliament after having been found guilty of contempt of Parliament by a committee of Parliament; or
(e) if any circumstances arise such that, if he were not a member of Parliament, would cause him to be disqualified or ineligible for election, under article 94 of this Constitution; or
(f) if he resigns from office as a member of Parliament by writing under his hand addressed to the Speaker;
It is important to note that the Constitution does not task any person or group of persons to report an MP who falls within the scope of article 97(1)(g) and (h).
The prospective vacancy does not have to inure to the benefit of anyone in order to report or draw the attention of parliament; any Ghanaian can do so.
It is incumbent on the member so affected to honourably vacate the seat, if the title of ‘Honourable’ is anything to go by. It is akin to a strict liability offence like violating a red light in traffic. No explanation is needed afterwards; the vacation is automatic.
Jurisdiction of the Court
Consequently, when a parliamentary seat becomes vacant and there is a contention, a suit should be made at the High Court since it has original jurisdiction per the Constitution.
Article 99(1) states unequivocally, “The High Court shall have jurisdiction to hear and determine any question whether –
(a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant; or
(b) a person has been validly elected as a Speaker of Parliament or, having been so elected, has vacated the office of Speaker.
(2) A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.
The Court of Appeal is empowered as the final forum for appeal. The Supreme Court is not mentioned anywhere in the Constitution as a forum to settle any dispute that may so arise in the event of a parliamentary vacancy.
Hence the apex court lacked the locus to entertain any suit thereof. It simply does not have the jurisdiction.
Also, a stay of execution is granted after a court order or ruling is being appealed or contested. The Supreme Court did not give any order or ruling to Parliament to be stayed.
Composition of Parliament (After Vacancy)
As stated under article 93(1) above, parliament can only be duly composed by an election.
Hence, under article 112(5), “Whenever a vacancy occurs in Parliament, the Clerk to Parliament shall notify the Electoral commission in writing within seven days after the vacancy occurred, and a by-election shall be held within thirty days after the vacancy occurred.”
This is after the vacancy is determined without opposition. However, 112(6) stipulates, “Notwithstanding clause (5) of this article, a by-election shall not be held within three months before the holding of a general election.”
Separation of Powers
In the case of [1980] GLR 637, the Supreme Court ruled inter alia that, once Parliament has completed its business, it is considered final.
The court upheld this objection, reasoning that the judiciary is not empowered to question parliamentary proceedings. This is referred to as non-justiciable political questions in constitutional law.
In conclusion, the Speaker of Parliament only gave effect to the obvious on the 17th October, 2024, based on the notice of polls released by the Electoral Commission (EC) ahead of the 2024 general elections.
To have entertained the suit in the first place and secondly adjudicate on it with such alacrity and exuberance as manifested is worrisome and questionable.
In the wording of their unwarranted interference, it is evidential the Supreme Court acted unconstitutionally.
