The Law in Flux: Examining the tension between the speaker and judiciary in Ghana's parliamentary system

This article examines the legal controversy surrounding the decision of Ghana’s Supreme Court to suspend Speaker of Parliament Alban Bagbin’s ruling, which declared four parliamentary seats vacant. The Speaker's decision was based on Article 97(1)(g) and (h) of the 1992 Constitution of the Republic of Ghana, which stipulates that Members of Parliament (MPs) must vacate their seats if they switch political allegiance or run as independents.

Bagbin’s action was aimed at preserving the integrity of parliamentary representation and applying the constitutional mandate for MPs to remain loyal to the parties under whose tickets they were elected. However, the Speaker’s authority to apply constitutional provisions is distinct from his ability to interpret them.

While the Speaker applies the law within Parliament, the judiciary holds the ultimate authority to interpret the Constitution. The Supreme Court’s intervention highlights the importance of judicial review, ensuring the Speaker’s decision conforms to constitutional principles.

An additional dimension to the controversy is the critique offered by Rockson-Nelson Etse Kwami Dafeamekpor, MP for South Dayi, regarding the procedural fairness of the Supreme Court’s ruling, particularly its use of an ex parte application.

Dafeamekpor, both a Member of Parliament and a legal practitioner, has argued that the Supreme Court’s decision to suspend the Speaker’s ruling based on an ex parte application—without allowing the Speaker or Parliament a chance to be heard —was legally improper.

The Court’s suspension of the ruling is a reminder that legal disputes involving constitutional interpretation fall within its jurisdiction. A central issue raised is the procedural fairness of the Supreme Court’s use of an ex parte ruling, which allowed the Court to act without hearing the Speaker’s or Parliament’s side.

Rockson-Nelson Dafeamekpor, a Member of Parliament, criticized this approach, arguing that it denied the Speaker a fair opportunity to defend his decision. This procedural critique underscores the need for fairness and transparency in judicial processes. In conclusion, while the Speaker’s actions may be legally justified, the judiciary’s role in interpreting the Constitution is paramount.

The Supreme Court’s decision reflects this oversight responsibility, though concerns about procedural fairness remain central to the debate.

The legal question at the heart of the recent controversy in Ghana’s Parliament revolves around whether the Supreme Court was correct in suspending the decision of Speaker Alban Bagbin, who declared four seats in Parliament vacant. This ruling, which has sparked intense debate, highlights the interplay between parliamentary authority, constitutional provisions, and judicial oversight.

While the Speaker's actions can be seen as fulfilling his duties to uphold constitutional rules, the Supreme Court’s intervention brings into focus the judiciary's role as the ultimate interpreter of the Constitution, and also raises questions regarding the procedural fairness of the Court's decision, as raised by Rockson-Nelson Etse Kwami Dafeamekpor, Member of Parliament for the South Dayi Constituency in the Volta Region.

The Speaker of Parliament’s decision to declare the four seats vacant can be viewed through several positive legal arguments. As the head of Parliament, the Speaker has a duty to ensure that the laws governing the institution are followed, particularly the provisions in the 1992 Constitution that regulate the conduct of Members of Parliament (MPs). Article 97(1)(g) and (h) of the Constitution of Ghana establishes clear conditions under which a Member of Parliament (MP) must vacate their seat.

Specifically, under Article 97(1)(g), an MP is required to vacate their seat if they leave the party they were affiliated with at the time of their election, whether by joining another party or by attempting to remain in Parliament as an independent.

Additionally, Article 97(1)(h) stipulates that an MP who was elected as an independent candidate must vacate their seat if they later join a political party. These provisions reflect a constitutional mandate designed to preserve the integrity and consistency of party affiliations in Parliament, ensuring that MPs remain accountable to the political platforms under which they were elected, or remain independent if that was their original status. In this context, Speaker Bagbin’s ruling can be justified as an effort to maintain the integrity of parliamentary representation and political loyalty during an MP’s tenure.

The Speaker’s decision was based on the fact that the four MPs in question had either switched their political allegiance or filed to contest the upcoming 2024 election as independents or under a different party’s ticket. According to Speaker Bagbin, these actions amounted to a breach of the constitutional provisions that require MPs to remain loyal to the party under whose ticket they were elected.

From this perspective, the Speaker was not only applying the rules of Parliament but also seeking to prevent what could be perceived as a disruption of the voters' mandate. If MPs elected under a party ticket are allowed to cross the floor without consequence, it could undermine the principle of party loyalty, which is critical to the operation of parliamentary democracy.

Furthermore, the Speaker’s decision to declare the seats vacant reflects his understanding of the operational effect of Article 97, which seeks to prevent midterm shifts in parliamentary representation and maintain stability. By acting in line with this constitutional provision, Speaker Bagbin aimed to uphold the principle that MPs should not alter their party affiliation midterm without facing the consequences outlined in the law. While the Speaker’s decision might be seen as a legitimate application of parliamentary rules, it is essential to clarify that the Speaker of Parliament does not have the formal authority to interpret the law in a manner that is binding or final.

The interpretation of the law, particularly the Constitution, is a function assigned to the judiciary, with the Supreme Court being the final arbiter of constitutional disputes in Ghana. Article 2 of the 1992 Constitution of Ghana empowers the judiciary with the authority of judicial review. This means that the courts, and specifically the Supreme Court, have the ultimate power to determine whether actions taken by public officials, including the Speaker of Parliament, align with the provisions of the Constitution.

According to Article 2(1), any person who believes that an enactment, an action, or an omission by any public officer is inconsistent with or contravenes the Constitution may bring an action before the Supreme Court to seek a declaration to that effect.

Furthermore, under Article 2(2), the Supreme Court is vested with the authority to issue orders and directives to ensure that any such declaration is implemented. This constitutional provision reinforces the judiciary's role in ensuring that public officials, including the Speaker, act within the boundaries of the Constitution, safeguarding the rule of law.

In the case of declaring parliamentary seats vacant, the Speaker’s role is to apply the relevant rules based on constitutional provisions. However, if a legal dispute arises over the application of those rules, it is the judiciary’s responsibility to resolve the matter. The judiciary, particularly the Supreme Court, holds the authority to interpret the Constitution and ensure that the Speaker’s actions align with constitutional requirements.

In this instance, the Majority Leader of Parliament, Alexander Kwamina Afenyo-Markin, filed a suit at the Supreme Court, invoking its jurisdiction to interpret certain provisions of Article 94 of the 1992 Constitution of Ghana.

He also sought an injunction to prevent Speaker Alban Bagbin from declaring four parliamentary seats vacant. As a result, the matter entered the judicial domain for review, leading the Supreme Court to intervene by suspending the Speaker’s decision pending a final determination on the constitutionality of the ruling.

This distinction between the Speaker’s role in applying constitutional rules and the judiciary’s role in interpreting the law is crucial. The Speaker’s declaration of the four seats vacant was based on his understanding of the MPs’ actions and the constitutional provisions regarding party loyalty. However, any legal question about whether those actions constituted a formal breach of the Constitution falls within the jurisdiction of the judiciary.

The courts must interpret whether the MPs' intentions to contest future elections as independents or under a different party ticket effectively amount to a breach of their current parliamentary obligations.

In an ex parte application, the Court makes a decision based on the submission of only one party (in this case, the Majority Leader of Parliament, Alexander Kwamina Afenyo-Markin who challenged the Speaker’s ruling), without hearing the arguments from the opposing side. Dafeamekpor contends that such a procedure is inappropriate in matters of this magnitude, where both sides of the dispute should be fully heard before a decision is made. He argues that the ex parte ruling deprived the Speaker of an opportunity to present his case or defend the rationale behind his decision to declare the seats vacant.

This critique raises concerns about procedural justice. In a constitutional democracy, it is generally expected that both parties to a legal dispute should be given a fair hearing before a court issues a ruling. The ex parte nature of the Supreme Court’s decision, in this case, could be seen as bypassing this principle, thus raising questions about the fairness of the judicial process. Dafeamekpor’s argument underscores the importance of ensuring that the Speaker and Parliament, as key stakeholders in this legal dispute, should have been afforded the chance to defend their actions before the Court made a ruling on the matter.

Notwithstanding the procedural concerns raised by Dafeamekpor, the Supreme Court’s decision to suspend the Speaker’s ruling was based on the need to review whether the Speaker’s application of Article 97(1) was correct under the law. The Court's role is to ensure that constitutional provisions are not misapplied or misinterpreted in ways that could disrupt the proper functioning of the government or infringe upon individual rights, including MPs’ rights to freedom of association.

A US-based Ghanaian lawyer and scholar, Professor Kwaku Asare, popularly known as Kwaku Azar, has argued that the Speaker’s ruling may set a dangerous precedent by penalizing MPs for actions related to their future political ambitions rather than their conduct during their current term of office. This interpretation raises important questions about whether filing to run as an independent or on another party’s ticket in a future election constitutes an immediate breach of the Constitution. The Supreme Court’s decision to review the case suggests that there is room for further legal interpretation to determine whether the Speaker’s actions were in line with the Constitution’s intent.

Furthermore, the Supreme Court’s intervention underscores the fact that the Speaker’s powers, while significant within Parliament, are not absolute when it comes to constitutional interpretation. The judiciary, as the branch of government entrusted with interpreting the law, has the authority to review and, if necessary, correct decisions made by the Speaker if those decisions raise legal questions or infringe on the rights of MPs or citizens.

In conclusion, while the Speaker of Parliament’s decision to declare the four seats vacant can be legally justified in terms of applying parliamentary rules and upholding the integrity of party loyalty; it is the judiciary that holds the final authority to interpret the Constitution. The Supreme Court’s decision to suspend the Speaker’s ruling pending further review reflects the judiciary’s constitutional duty to ensure that the law is correctly applied and that MPs’ rights are protected.

However, the ex parte nature of the Court’s decision has been criticized by Dafeamekpor, raising valid concerns about procedural fairness and the importance of giving all parties a full hearing before issuing a ruling. Ultimately, this balance between parliamentary authority, judicial oversight, and procedural fairness is essential for maintaining the rule of law and the proper functioning of Ghana’s constitutional democracy.