Bagbin's declaration of four seats vacant sets dangerous precedent – Kwaku Azar

A US-based Ghanaian lawyer and scholar, Professor Kwaku Asare, popularly known as Kwaku Azar holds the opinion that Speaker Alban Bagbin’s declaration of four parliamentary seats as vacant goes against the fundamental freedom of association, which includes the rights to form parties and pursue other political affiliations.

“Additionally, this ruling contradicts the fundamental right to freedom of association, including the right to join parties and pursue future political affiliations. Treating a nomination for a future election as severance of current allegiance unfairly penalizes MPs and discourages,” he stated in a Facebook post.

The Speaker’s decision follows a motion filed by former Minority Leader Haruna Iddrisu citing constitutional provisions that demands MPs put up a bid as an independent to resign their seats in parliament.

But the Majority caucus displeased with the motion walked out of the chamber.

The affected MPs whose seats have been declared vacant are: Andrew Amoako Asiamah (Fomena), Peter Kwakye Ackah (Amenfi Central), Cynthia Morrison (Agona West), and Kwadjo Asante (Suhum).

Read below the post by Kwaku Azar

This afternoon, the Speaker declared the seats of four MPs vacant—a move unprecedented in scope. The Speaker based his decision on the fact that these MPs had filed nominations to run on a different ticket. However, at the time of the decision, none of the four MPs had informed the Speaker or Parliament that they had changed their allegiance within the House.

Filing a nomination to run as an independent or on another party’s ticket in a future election does not amount to severing an alliance with the current party in Parliament.

Prior to their nomination filings, the House was balanced at 137-137-1, and it remained unchanged after the filings. This demonstrates that filing a nomination is merely an expression of intent for a future political course and does not alter the MP’s present affiliation, obligations, or duties. The MPs remain bound by the social contract formed when they were elected and continue to serve their current term under that mandate.

Parliamentary allegiance is determined by an MP’s actions and conduct during the current term, not by future aspirations. Until an MP officially changes affiliation or resigns, their role and loyalty within Parliament remain unchanged, irrespective of any nomination they may file for a future electoral cycle. To interpret a future nomination as a severance of present ties would be a misapplication of the law, confusing future plans with actions that have not yet been realized.

Article 97(1)(g)&(h) of the Constitution is concerned with actions that affect the numerical composition of the House, aiming to avoid situations that disrupt the voter’s verdict. If the electorate has voted for a balance of 137-137-1, MPs should not unilaterally disturb this balance, and those who attempt to change it during their term must vacate their seats.

The underlying principle is to prevent midterm shifts in allegiance, ensuring stability in parliamentary representation. The law is not concerned with future intentions or electoral ambitions that will only take effect in the next term, such as an MP running under a different platform in the next election.

The timing of actions is critical here. The phrase “joins a political party” refers to an MP actively affiliating with another party during their current term in Parliament. It does not apply to future political affiliations that will take effect after the current term. If the law were extended to include any future action, such as running for a different party in the next election, it would unjustly limit MPs’ ability to plan their political future, which goes beyond the law’s intended purpose.

The law’s primary goal is to fix an MP’s allegiance during the current parliamentary term, reflecting the mandate given by voters. Actions taken after the term, like joining a party for a future election, do not interfere with this mandate. The law serves to preserve the trust voters placed in the MP when they were elected, based on the platform they represented at that time.

Dr. William Akoto, MP for New Abirem (2001-2004), retained his seat when he ran as an independent in the 2004 election. Likewise, Joe Owusu (Wise) served as an independent MP for Bekwai from 2009-2012 and ran as an NPP candidate in 2012 without vacating his seat. Mr. Teye-Nyaunu, NDC MP for Lower Manya Krobo, also kept his seat while running as an independent in 2012.

In contrast, the law was properly applied in the Wayo Seini case, where he formally resigned from the NDC, joined the NPP, crossed the floor in Parliament, and requested the Speaker to notify the EC that he had vacated his seat.

Moreover, Article 97(1) reserves questions about the vacation of seats to the High Court. While matters like death, resignation, or dissolution do not present questions and are handled by the Speaker or Clerk, factual determinations—such as discerning an MP’s intentions from their actions—are not within the Speaker’s purview.

This ruling sets a dangerous precedent, undermining MPs’ ability to plan their political futures without fear of immediate consequences.

It allows for arbitrary decisions where filing a nomination for a future election could be misinterpreted as a shift in allegiance, regardless of the MP’s current conduct.

This broad interpretation risks destabilizing Parliament by prematurely vacating seats, disrupting voter-established balances, and eroding the principle that MPs serve their full term unless they explicitly change allegiance. It could also create a chilling effect, deterring MPs from exploring future political opportunities.

Additionally, this ruling contradicts the fundamental right to freedom of association, including the right to join parties and pursue future political affiliations. Treating a nomination for a future election as severance of current allegiance unfairly penalizes MPs and discourages political participation and realignment. This undermines political pluralism and erodes key democratic principles.

Finally, the ruling is also problematic because Article 112(6) states that a by-election shall not be held within three months before a general election. Vacating seats so close to an election is an affront to this provision, creating unnecessary disruption and leaving constituencies without representation during a critical period. It undermines the intent of the Constitution to maintain stability and continuity in Parliament as the country prepares for national elections.

Article 97(1)(g)&(h) safeguards the voters’ verdict of 137-137-1 delivered in December 2020. The four MPs have not disrupted this balance, and therefore, there is no need to invoke these articles. Yet today, the Rt. Hon. Speaker has unilaterally altered the verdict to 135-136, undermining the original mandate.

Respectfully, GOGO demurs.

#SALL is the cardinal sin of the 8th Parliament.

Da Yie!

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