Vacant Seats: Why 5 Supreme Court judges ruled in favour of Afenyo-Markin's suit

The Supreme Court ruled that unless a member of parliament chooses to change his political identification and continue to serve in Parliament under the new identity, he cannot be considered to have resigned from office.

According to the court's ruling explaining why it upheld a complaint filed by the Majority Leader in Parliament, Article 97(1)(g) and (h) of the Constitution solely pertained to the current term of Parliament and could not be claimed to have a futuristic application.

It follows from the above therefore that the only plausible conclusion that must necessarily flow 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 the cohort of his elected party in Parliament to join another party in Parliament while seeking to remain in that Parliament as a member of the new party,” the court ruled.

Similarly, an independent MP who joins the cohort of a party in Parliament, while they remain Members of the Parliament for which they were elected as Independent Members, will have to vacate the seat tagged as that of an Independent Member,” the court added.

Article 97(1)(g) and (h) of the Constitution, the court decided, only applied during a current term of Parliament and did not apply to an MP running for office under a new party identity.

“Consequently, Article 97(1)(g) and (h) must be understood within their contextual framework, with no implicit or explicit indication that they pertain to future electoral aspirations or intentions that would materialize in subsequent terms, such as an MP contesting under a different ticket in the next election cycle,” the court held.

Justice Yaw Darko Asare authored the 5-2 majority decision of the court.

Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu dissented, while Chief Justice Gertrude Sackey Torkornoo, Justices Mariama Owusu, Samuel Kwame Adibu-Aseidu, Ernest Yao Gaewu, and Yaw Darko Asare were on the majority side.

Dissenting opinion

According to Justices Johnson and Amadu's respective dissenting opinions, the High Court was empowered to decide the case in accordance with Article 99 of the Constitution, and the Supreme Court lacked jurisdiction over it.

According to Justice Tanko, the Constitution's Article 99 makes it abundantly evident that the High Court, not the Supreme Court, should decide whether or not a vacancy in Parliament is lawful.

He stated that the suit should have been filed in the High Court and that the High Court should submit the matter to the Supreme Court in accordance with Article 130(2 of the Constitution) if there was a question of constitutional interpretation.

In addition to being incorrect, Justice Tanko believed that the way the Supreme Court's jurisdiction was asserted constituted an "aberration of processes."

"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,” the court decided.

KA

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