The Fomena Parliamentary seat brouhaha: Is the Speaker Out of Order?

The last week of the Seventh Parliament of the Fourth Republic, which began on January 7, 2017, ended with the Speaker of Parliament pronouncing the seat of the Fomena MP vacant because the political party he represented in parliament, the NPP had written to inform the Speaker that the MP had been expelled from the party. This article is an analysis of the legality or otherwise of the Speaker’s pronouncement.

According to media reports, on October 13, 2020, NPP wrote to notify the Speaker that the MP has been expelled from the party and requested the Speaker to trigger the provisions of Article 97(1)(g) for the seat in the house to be declared vacant (see Ghanaweb, “Speaker declares Independent Fomena MP’s seat vacant”, November 7, 2020). Delivering his ruling in parliament on Saturday, November 7, 2020, the Speaker stated: “With all intents and purposes, he is no longer a member of the party. He has pronounced himself, publicly, as an independent candidate and has filed his papers to compete against the party in his official candidate as an independent on 7th December 2020. Having forfeited the membership of the party on whose ticket he was elected to parliament, the operative language of the Constitution is that, he shall – which is mandatory – vacate his seat in Parliament”.

Is the Speaker really right? To answer this question, it is important to consider all the relevant Articles of the 1992 Constitution on this subject. Article 97(1)(g) states: “A member of parliament shall vacate his seat in parliament: (g) if s/he leaves the party of which s/he was a member at the time of her/his election to parliament to join another party or seeks to remain in parliament as an independent member”

First, which parliament is the issue in question? The answer is abundantly clear, the 7th Parliament. Has the Fomena MP joined another party in the period of the 7th parliament? The answer is No. Is he seeking to remain in the 7th Parliament as an independent member? Again, the answer is No. In fact, on the contrary, evidence from the Parliamentary Hansard will prove that the Formena MP has been voting with his party despite contesting the December 7, 2020, parliamentary election as an independent. Therefore, the MP did not leave NPP in parliament, neither did he seek to remain in the 7th Parliament as an independent.

It is also important to point out the 7th Parliament that has just ended its parliamentary term is not the same as the next Parliament or the 8th Parliament that would be elected on December 7, 2020, to begin its term on January 7, 2021. So how can the Speaker apply and interpret Article 97(1)(g) to a parliament that is not in existence? Therefore, Article 97(1)(g) situation has not arisen.

The Constitution does not say that an MP ceases to be a member of parliament if the party s/he represents in parliament expels him or her from the party. This is to prevent the abuse of party executives and to protect the ability of parliamentarians to make independent decisions in holding the executive which is from the ruling party accountable. It is also to prevent party leadership from interfering with the democratic choices made by constituencies.

We should also remember that parliament is not subject to the constitution of any political party, including the NPP but the 1992 Constitution. This is also to avoid political parties from the danger of expelling MPs from disobeying party whips whenever they exercise independent judgement by voting for or against a motion on the floor in the national interest contrary to wishes of the whips. If that happens, the party can only sanction the MPs but cannot remove them from parliament. These are protections to ensure effective parliamentary democracy and for MPs to do the will of their constituencies.

Constitutions are applied and interpreted in whole and not in bits. For this reason, it is critical to consider the other relevant Article on this matter, which is Article 99(1)(a), which also states: “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 of the seat of a member has become vacant”.

From the public discussions on Article 97(1)(g), including the language of the Speaker that the word “shall” is mandatory is equally applicable here as well as the views of other MPs in the house, it was clear that there was a dispute on whether the Fomena seat was vacant or not. For the two reasons, the Speaker ought not to have made a pronouncement on the matter and refer it to the High Court because he is not clothed with the judicial authority by the Constitution as per Article 99(1)(a).

There are three reasons why this was not only necessary but also fundamental. First, the separation of powers between the Legislature and the Judiciary. The Speaker by his pronouncement has usurped the judicial authority of the High Court, which is unlawful and unconstitutional. For this reason, the pronouncement is null and void and of no effect.

Second, the Speaker can only make a pronouncement on motions in the house that members vote on or members require his decision. The Speaker cannot interpret constitutional articles unless the Constitution specifically directs the Speaker to do so. He only presides over Parliament and does not sit as a judge. Parliament is a legislative house and not a court of competent jurisdiction.

Third, the Speaker is a leading member of the NPP and therefore by association, a party to the complaint by NPP against the MP and therefore the Speaker is compromised by a conflict of interest. By his decision to sit on the complaint and make a pronouncement on it, he became the prosecutor and the judge at the same time in his own court. This is against natural justice and the principle of a fair trial, which the 19992 Constitution guarantees all Ghanaians, including MPs. Again, this made the Speaker’s pronouncement unconstitutional as it breaches the principles of fundamental human rights and freedoms enshrined in the Constitution.

Let us even assumed that the Speaker was right with his interpretation of Article 97(1)(g) and therefore Article 99(1)(a) is irrelevant. Is that the end of the matter? The answer is No! because case law is also important in constitutional and legal cases and that is what I will now try to explain.

That is to ask and answer the question, what was the motivation behind NPP’s decision to expel the MP from the party and ask the Speaker to declare the Fomena seat vacant. In my candid opinion, it was motivated by retribution and revenge on the MP for disobeying the party leadership. The sole objective was to deny the MP his constitutional rights to contest the December 7, 2020, parliamentary elections and to curtail his statutory right to his salary and ex-gratia.

All Ghanaians who qualify to contest for parliament have a constitutional right to do so and all MPs who have served a full parliamentary term of four years have a statutory right to be paid all salaries and ex-gratia. Sadly, if MPs are dismissed before the end of the parliamentary term they stand the risk of not receiving their salary and ex-gratia. NPP therefore deliberately expelled the MP and asked the Speaker to declare his seat vacant to compel him to withdraw his candidacy as an independent against the party official candidate (curtailment of his constitutional rights) failure of which will result in him not being paid his salary and ex-gratia (curtailment to his statutory right).

Fortunately or unfortunately, both NPP and the Speaker are wrong to believe that the MP by his expulsion from NPP and Parliament he loses his salary and ex-gratia award as MP. This is because established customary practice is that, courts have held that if a decision is so taken deliberately to deny, curtail one’s entitlement to or for asserting his/her constitutional and or statutory rights, (that is, the motivation) then, that decision becomes automatically unfair, unlawful and unconstitutional and renders the decision null and void and of no effect as in (Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979) (EWCA means England and Wales Court of Appeal).

I am therefore of the view that the NPP expulsion and the Speaker’s pronouncement that the Fomena seat is vacant was automatically unfair, unlawful and unconstitutional because it was purposefully to deny the MP the constitutional and or statutory rights that he has exercised and is entitled to both as a citizen and MP for the past four years.

To avoid similar confusion, abuse of power by political parties and abuse of position by a Speaker in the future as well as the problems with the quadrennial parliamentary primaries resulting in party executives imposing candidates on constituencies in a moneycracy instead of true democracy with local party members selecting who represents them in parliament, political parties should allow local constituencies some autonomy to freely select their parliamentary candidates, instead of imposing their favourites on them. This is important because the 1992 Constitution begins with the words, We the people of Ghana” so the wishes and choices of local people must be respected in accordance with the Constitution.

Kofi Ata

Cambridge, UK