Parliament Vs. Judiciary: Why the Speaker got it wrong in the cross-carpeting controversy

The current discussion on the Supreme Court's decision on the status of four Ghanaian Members of Parliament (MPs) who expressed their wish to become independent and switch political affiliations presents significant legal issues.

Amid the midst of intense public discourse, some legal practitioners, especially those connected to the National Democratic Congress (NDC), have adopted emotionally charged stances.

Others have modified their legal arguments to align with evolving narratives. Legal analysis must be anchored in factual evidence and legal principles, devoid of political bias.

The debate originates from a decision rendered by former Speaker of Parliament, Professor Mike Oquaye, which has been referenced as a precedent by numerous critics. Speaker Oquaye made an error by declaring the seat of a New Patriotic Party (NPP) MP vacant following the MP's desire to contest as an independent candidate.

Importantly, there exists no legal basis, whether statutory or constitutional, that empowers the Speaker to proclaim a legislative seat vacant. According to Article 99(1) of the 1992 Constitution, this authority is solely conferred upon the High Court.

The incumbent Speaker, Alban Bagbin, committed a comparable procedural misstep by considering a petition from the NDC aimed at vacating the seats of four MPs on like grounds.

In such matters, the appropriate course of action for both the NDC and the NPP would have been to commence proceedings in the High Court.

The High Court possesses exclusive jurisdiction to ascertain if an MP's seat ought to be deemed vacant.

This is consistent with established legal practice, as seen in cases where parliamentary seats are abandoned owing to death, incapacity, or resignation.

Following the High Court's ruling, the Speaker's function is confined to informing Parliament of the decision.

The Supreme Court's issuance of an ex parte injunction suspending Parliament's proceedings is consequently grounded in robust legal principles.

Certain legal practitioners, including Dr. Dominic Ayine, contend that a speaker’s declaration does not represent a binding ruling but rather a statement of fact.

Although this argument has weight, it is important to recognize that Speaker Bagbin issued his statement without a High Court verdict, as mandated by law.

In an attempt to defend his conduct, Speaker Bagbin invoked Article 97(1)(g) of the Constitution, which specifies the circumstances under which an MP's seat may be declared vacant.

Dependence on this Article in the absence of a High Court ruling was both procedurally and constitutionally flawed. This procedural error was made even worse.

The Majority Leader, Afenyo Markins, has correctly observed that the Speaker's actions seemed politically driven and threatened to generate unwarranted friction inside Parliament, particularly in the approach to a general election.

Certain legal scholars, including as Professor Kofi Abotsi, have posited that the Supreme Court may lack the jurisdiction to supersede the Speaker’s declaration. This argument fails to acknowledge the constitutional protections established.

The law recognizes that MPs who declare their desire to become independent may encounter legal repercussions; nevertheless, it also mandates that no by-elections can occur within three months following a general election.

This clause makes the Speaker's actions even more problematic because the election schedule would make any attempt to vacate a seat moot.

Ultimately, Speaker Bagbin's unilateral action, without consulting the High Court, constituted a significant procedural error.

Furthermore, there are serious concerns regarding the respect for the rule of law raised by Parliament's decision to proceed with vacating the MPs' seats and its reluctance to accept service of the Supreme Court's writ.

In a constitutional democracy, all governmental branches, including Parliament, must honour the rulings of the judiciary, especially those of the Supreme Court.

Challenging the authority of the Supreme Court compromises its function as the protector of the Constitution and jeopardizes the stability of Ghana's democratic administration.

The Supreme Court's legal interpretation is crucial for upholding checks on political conduct that may violate the Constitution.

Parliament must adhere to the Court’s rulings, as noncompliance jeopardizes the judiciary and undermines the rule of law that underpins Ghana’s democracy.