According to Myjoyonline News on Friday, November 15, 2024, Justice Tanko, who was one of the two judges who dissented, has predicted that the majority decision will not endure in the long run.
“I do not hasten to proclaim that, I have apprehended with despair the majority’s conclusion in this suit but I state, with utmost deference to the Hon. Chief Justice and the rest of my brethren in the majority that, not only do I fundamentally disagree with their conclusion,
I, with all due respect, also find the decision an aberration to the established and accepted judicial position of this court which with profound respect, I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed,” Justice Tanko remarked in his ruling.
The crux of Tanko’s dissent lies in his interpretation of the Ghanaian Constitution.
He highlighted that the Constitution clearly demarcates the jurisdiction of the Supreme Court, especially in matters where the High Court is specifically tasked with making certain determinations.
Justice Tanko referenced Article 99 of the 1992 Constitution, which confers on the High Court the exclusive authority to decide on the vacancy of parliamentary seats.
According to Tanko, the Supreme Court, while it holds original jurisdiction over constitutional interpretation, cannot overstep its bounds into areas explicitly assigned to other courts, particularly the High Court.
“Although this court has a general jurisdiction to interpret and enforce provisions of the constitution, there are situations, such as in the instant case where the procedure adopted in invoking this court’s interpretative and enforcement jurisdiction has deprived the court of the power to exercise that jurisdiction,” he explained.
Justice Tanko further cited the legal principle of “generalia specialibus non derogant” (general rules do not override special rules), asserting that when general and specific provisions conflict, the more specific provision must prevail.
In this case, the specific mandate given to the High Court regarding parliamentary vacancies supersedes the general jurisdiction of the Supreme Court.
He also referred to past rulings, including the Wulensi Constituency case, as evidence supporting the High Court’s role in such matters.
Despite his reservations about the majority’s decision, Tanko emphasized that this should not be construed as a dismissal of the Supreme Court’s overall authority.
However, he maintained that the procedure in this case had failed to meet the necessary legal requirements for the Supreme Court to exercise its jurisdiction.
Justice Tanko ultimately dismissed Afenyo-Markin’s suit, stressing that the Supreme Court could not proceed with the case as the jurisdictional threshold had not been properly invoked.
“As this court has consistently held, a point of jurisdiction when taken and successfully upheld should foreclose any consideration of the merits of any case. For there will be no foundation upon which the merits can stand,” he concluded.
