Sitting Members of Parliament Contesting As Independent Candidates: A legal and constitutional analysis

Introduction

The law governing parliamentary vacancies in Ghana is anchored in the 1992 Constitution, specifically Articles 97 and 99. Article 97(1)(g) requires Members of Parliament (MPs) to vacate their seats if they leave the political party under which they were elected or decide to contest as independent candidates.

Instances of MPs changing parties have historically raised legal and constitutional concerns in respect of the enforcement of this rule. A notable example is Wayo Seini, who had to formally notify the Electoral Commission and vacate his seat upon switching parties, highlighting the procedural safeguards in place to uphold political integrity.

The implications of these legal requirements extend beyond individual MPs to the overall standing of political parties. For the New Patriotic Party (NPP), which currently has a tenuous single-digit majority in Parliament, any action against sitting MPs without a viable pathway for by-elections would be detrimental to its legislative power. As the political landscape shifts, understanding the interplay between legal obligations and constitutional mandates remains crucial for Ghana's democratic governance.

The purpose of this write-up is to analyze the legal and constitutional implications of MPs contesting as independents, particularly in light of recent developments in Ghana’s Parliament.



Article 97(1)(g) of the 1992 Constitution provides "a member of Parliament shall vacate his seat in Parliament 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."

Thus, the Constitution mandates that the Member of Parliament formally relinquish their seat and notify the Electoral Commission prior to contesting as an independent candidate. A pertinent case is that of Wayo Seini, who traversed the aisle in Parliament. Upon making this transition, he was obliged to vacate his seat under the provisions of Article 97(1)(g).

Freedom of Association and Its Limitations

Arguments have been presented in respect of the right to freedom of association; however, this right is not absolute. There is the freedom of association, but a footballer cannot be a member of the Ghana Bar Association.

Just as members of the security services are restricted from forming associations for labour-related purposes. Thus, the right to freedom of association cannot be exercised arbitrarily. The 1992 Constitution, along with other enabling laws, imposes reasonable limitations on this right.

Regulation of Individual Rights

Article 21 of the 1992 Constitution guarantees freedom of association, but it is tempered by Article 97(1)(g). The law ensures that individual rights are exercised judiciously and in consideration of the greater public interest, rather than for personal gain.

Article 97(1)(g) says, Member of Parliament, please vacate your if you decide to join another political party. This provision does not infringe upon any right to freedom of association; rather, it is intended to regulate the exercise of that right.

An MP cannot utilize a political party’s platform to secure office, subsequently abandon that party, retain the seat while dissociating from the party, and contest independently without vacating their seat. That is a violation of the Constitution, amounting to a manipulation of the law for personal benefit.

Case of Hon. Cynthia Morrison

Hon. Cynthia Morrison, as a sitting NPP Member of Parliament for Agona West. She has resigned from the party and officially filed to contest as an independent candidate for Agona West. Article 97(1)(g) of supra, demands of her to vacate her seat.

Even Article 39 of the Constitution of the NPP prohibits any NPP Member of Parliament from contesting as an independent candidate while maintaining the party's ticket in Parliament.

A Magistrate Court has placed an interlocutory injunction on her pursuit for MP for Agona West as an independent candidate, pending the determination of the substantive matter.

Even with that, there are questions in respect of the jurisdiction of Magistrate Court in entertaining matters related to parliamentary vacancies and human rights. These issues are typically within the jurisdiction of the High Court, as laid in Articles 140(2) and 99(a) of the 1992 Constitution.

The Role of the Speaker of Parliament and the Jurisdiction Supreme Court in Vacant Parliamentary Seats

In relation to whether or not a seat in Parliament has become vacant, the procedure for determining this is contained in Article 99 of the 1992 Constitution. However, for the High Court to make such a determination, the matter must be presented to it as a question.

What will transpire is that the Speaker of Parliament, relying on Standing Order 18, could declare the vacancy of the affected parliamentary seats. For the avoidance of doubt, Standing Order 18 reads, “the seat of a Member shall be declared vacant by Mr. Speaker under clause (I) (b) to (h) of Article 97 of the Constitution” , Thus, the obligation of the Speaker of under Standing Order 18 is to declare the seat of a Member vacant in accordance with clauses (b) to (h) of Article 97(1) of the Constitution.; The Speaker cannot interpret Article 97(1) of the Constitution. Such a determination falls within the exclusive original jurisdiction of the Supreme Court, pursuant to Article 130(1)(a) of the 1992 Constitution.

Although the Speaker's decision is primarily administrative, it carries two potential legal implications. First, parties directly affected, including the concerned Members of Parliament and their respective political parties, could invoke Article 99(1)(a) and seek resolution from the High Court. Second, these parties might opt not to pursue the remedies provided under Article 99(1)(a) given the imminent election timeline.

Should this occur, it could replicate the scenario involving Hon. Andrew Asiamah in the 7th Parliament, which followed the ruling of Rt. Hon. Professor Mike Oquaye. Currently, the NDC seems more inclined toward this latter possibility.

Political Implications for the NPP

From a political perspective, this situation is detrimental to the NPP, particularly, the precarious single-digit majority in Parliament. Any action by the Party against sitting Members of Parliament is belated because the Party has already missed the opportunity to bolster its ranks with new candidates.

The remedy was for the NPP to have anticipated this outcome and utilized Article 97 to deal with the status of these four MPs; that a by-election could be conducted to replace them before the deadline for such elections. If these Members are removed at this juncture, the party risks losing its tenuous majority in Parliament.

Interesting days ahead!

By J. M. Oti-Asirifi (Faculty of Law. KAAF University College)