Vacant Seats Judgement: Why two Supreme Court judges voted to dismiss Afenyo-Markin's suit

The Supreme Court ruled on November 12, 2024, that a Member of Parliament (MP) will not lose their seat unless they switch their political identity and stay in Parliament under that new identity.

This decision came as the court upheld a suit by the Majority Leader in Parliament, Alexander Kwamina Afenyo-Markin, interpreting Article 97(1)(g) and (h) of the Constitution as applicable only to the current term of Parliament.

In its judgment, the court stated, "The only plausible conclusion from a holistic and contextual reading of Article 97(1)(g) and (h) is that an MP's seat shall be vacated upon departure from their elected party in Parliament to join another party while seeking to remain in Parliament as a member of the new party."

The court also noted that an independent MP who joins a party in Parliament must vacate their seat as an Independent Member.

The court emphasized that Article 97(1)(g) and (h) only apply within the current term of Parliament and not to MPs contesting future elections under a different political identity.

"Article 97(1)(g) and (h) must be understood within their contextual framework, with no indication that they pertain to future electoral aspirations," the court held.

The 5-2 majority decision was authored by Justice Yaw Darko Asare, with Chief Justice Gertrude Sackey Torkornoo, and Justices Mariama Owusu, Samuel Kwame Adibu-Aseidu, Ernest Yao Gaewu, and Yaw Darko Asare in the majority. Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu dissented.

In their dissenting opinions, Justices Johnson and Amadu Tanko argued that the Supreme Court lacked jurisdiction over the matter, which the High Court should have determined under Article 99 of the Constitution.

Justice Tanko stated that the Constitution indicates that issues relating to the vacancy of seats in Parliament fall under the High Court's purview.

He added that the suit should have been filed at the High Court, which could then refer constitutional interpretation issues to the Supreme Court under Article 130(2).

Justice Tanko criticized the invocation of the Supreme Court's jurisdiction as an "aberration of processes." He disagreed with the majority's conclusion, stating, "I fundamentally disagree with their conclusion and find the decision an aberration to the established judicial position of this court. I hope the resultant usurpation of the High Court's constitutional prerogative will be reversed in the future."

Read the full judgement by the court below:

GA

Watch George Ayisi's interview with Adam Bonaa on the recent unrest in Bawku below: