Parliament Majority Brouhaha: The looming constitutional crisis

All eyes in Ghana will be on the country’s Parliament, awaiting the reaction of the Speaker of Parliament, Alban Bagbin, to the Supreme Court order for a stay of execution of his declaration of four seats in the House vacant.

The decision of the Speaker, when the House sits on Tuesday, October 22, 2024, is likely to set the country on a course of a constitutional crisis as two arms of government, the legislature and the judiciary, are likely to be on a major collision course.

Legal experts in the country are divided over the declaration by the Speaker of Parliament and the order of stay of execution by the apex court of the land.

What legal experts have said about the Speaker's Declaration:

While some lawyers, most proponents of the National Democratic Congress (NDC), have argued that the Speakers ruling was apt, some 'neutral' lawyers including legal luminary Professor Stephen Kwaku Asare have found fault with the declaration.

Prof Asare has indicated that Speaker's declaration was based on the wrong interpretation of Article 97 of the 1992 Constition

In a Facebook post shared on October 13, 2024, Kwaku Azar highlighted that the Second Deputy Speaker and independent MP for Fomena, Andrew Amoako Asiamah, along with two NPP MPs—Agona West MP Cynthia Morrison and Suhum MP Kwadjo Asante—filing to contest in the 2024 parliamentary election under different political affiliation, do not form sufficient grounds for the seats being declared vacant.

He stated that the proper interpretation of Article 97 is that it "prohibits carpet crossing within the same Parliament and does not concern an MP’s intentions for the next Parliament. Its purpose is to maintain political stability and prevent opportunistic shifting of allegiances by MPs during their term."

What legal experts have said about the directive of the Supreme Court:

Some legal luminaries in the country have indicated that even though they do not support the Speaker’s declaration of the four seats vacant, the Supreme Court's action violates the principle of separation of powers.

Some have raised concerns about the action of the apex court of the land, stating that it has no power to interfere in the workings of Parliament, an equally powerful branch of government.

Others are also pointing to the needless haste with which the Supreme Court convened to make its ruling, with others raising concerns over the jurisdiction of the court.

Kwaku Ansa-Asare, a former Director of the Ghana School of Law, has stated that the Supreme Court has no power to challenge the Speaker's declaration.

He pointed out that Parliament operates under its own Standing Orders, regulations, and procedures, and its actions cannot be “challenged in a court of law or expect the Supreme Court to overturn the ruling of the Speaker.

"We are practising separation of powers. Each arm of government is a domain in its own right, so just as the executive cannot be faulted when they take decisions, we may also expect that whatever Parliament does in the regular exercise of its jurisdictions cannot be questioned."

US-based Ghanaian lawyer and scholar, Professor Stephen Kwaku Asare, widely known as Kwaku Azar, has also stated that issues on the declaration of seats in Parliament vacant must be handled by the High Court and not the Supreme Court.

He indicated that the apex court of the land, by its action, has overstepped and is undermining the 1992 Constitution of Ghana.

“The framers of the constitution, through Article 99, clearly designated the High Court as the appropriate forum for resolving disputes about vacating seats. Further, appellate review is left to the Court of Appeal, not the Supreme Court. The High Court, with its specialised mandate, is better suited for such matters, while the Supreme Court’s role is reserved for broader constitutional issues. The Supreme Court has no role in these matters as the Court articulated in the Wulensi matter.

“When the Supreme Court oversteps and takes on cases meant for the High Court, it risks undermining the constitutional order and appearing to engage in political matters. Such overreach disrupts the balance of powers and weakens public confidence in the judiciary’s impartiality. By adhering to Article 99, and allowing the High Court to handle these issues, we protect both the integrity of the judicial system and the peace of the nation,” he wrote in a post shared on Facebook.

Article 99 of the 1992 Constitution states that:

“(1) 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 Supreme Court's justification for the stay of execution order:

A five-member panel of the Supreme Court presided over by Chief Justice Gertrude Sackey Torkornoo, ordered the Speaker of Parliament to halt the execution of his decision to declare four parliamentary seats vacant.

The court indicated that the decision of the Speaker was depriving the four constituencies of representation in Parliament.

It also indicated that Bagbin’s decision would likely lead to the alleged thwarting of government business in Parliament and plunge the due management of the affairs of the country into possible disruptions.

It added that the declaration by the Speaker raises real questions of constitutional interpretation and application of the most fundamental and democratic rights of Ghanaians, being the right to be represented and heard in Parliament through their elected representatives.

Why Bagbin is likely not to adhere to the ruling of the Supreme Court:

The Speaker of Parliament, Alban Bagbin, a veteran legal practitioner who has been in Ghana's Parliament since the inception of the 4th Republic of Ghana, is most likely to disregard the order of the Supreme Court.

Alban Bagbin, who some have described as a ‘no-nonsense man’, is likely to use the provision of the 1992 Constitution on the powers of Parliament to stick to his declaration of the seats in question vacant.

Particularly, the Speaker may cite Article 115 and Article 122 as his defence.

Article 115 states that: “There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.”

Article 122 also states that “An act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result, is contempt of Parliament.”

So, in fact, Speaker Bagbin can even go ahead and cite all the people involved in the injunction against Parliament for contempt and order them to appear before the House to answer for their actions and possibly face legal ramifications.

BAI/AE

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