The hidden dangers of Article 97 (g) (h): Why Ghana’s Constitution needs an urgent overhaul

Article 97 of the 1992 Constitution of Ghana outlines the tenure of office for Members of Parliament. Specifically, Article 97(h) provides: "If a member leaves the party of which he was a member at the time of his election to join another party or remains in Parliament as an independent; or, under Article 97(h), if he was elected as an independent candidate and subsequently joins a political party...", such an act would terminate the tenure of that member of Parliament.

The Speaker of Parliament, Rt. Hon. Alban Bagbin, acted in strict compliance with both the Constitution and legal precedent, particularly the precedent set during the 7th Parliament under the leadership of Rt. Hon. Mike Oquaye.

By Article 95(4), the Speaker is mandated to take and subscribe to the Oath of Allegiance to the Constitution. In enforcing Article 97(g)(h), the Speaker was executing his constitutional duties faithfully.

The ex parte motion granted for cesset executio against the Speaker of Parliament, and Parliament, amounted to improper judicial interference. It violated the Speaker’s right to due process by prematurely halting parliamentary procedures without affording him an opportunity to be heard.

As a direct consequence, the cesset executio obstructed the proper functioning of parliamentary proceedings, thereby undermining the enforcement of Article 97(g)(h) and disrupting the legislative process.

While an individual adversely affected by parliamentary decisions is entitled to judicial review, such review is precluded when the Legislature exercises discretion under its Standing Orders and Procedures, pursuant to Article 110(1)(2). These provisions affirm that "Parliament may by standing orders regulate its procedure." Moreover, Article 110(3) states that Parliament may continue its operations notwithstanding a vacancy in its membership (supra).

The fundamental principle here is that certain decisions are so discretionary or rooted in the procedural autonomy of the legislature that courts lack a sufficient legal standard by which to assess their validity. Judicial interference in such matters would encroach upon the legislative process, breaching the separation of powers.

As an independent State Organ, and consistent with the constitutional framework of Ghana, Parliament may limit the scope of judicial review by statute. The right to judicial review applies except to the extent that such is not precluded by legislative provisions.

Article 97(g)(h) and its Constitutional Implications

Finally, Article 97(g)(h) presents significant constitutional challenges and warrants reconsideration for possible reform. The provision imposes an undue restriction on the fundamental right to freedom of association, a right protected under Article 21(1)(e) of the 1992 Constitution. Specifically, the automatic forfeiture of a parliamentary seat upon a member's departure from the party on whose ticket they were elected or, in the case of independent candidates, upon joining a political party constitutes a disproportionate limitation on the political autonomy of members of Parliament.

A legislator’s decision to switch party allegiance or operate as an independent candidate should be recognized as a matter of political choice, especially during electoral periods. Such decisions, which often reflect evolving political circumstances, should be addressed through consultations between the legislator, their party, and ultimately the electorate, rather than being constrained by constitutional mandates.

Moreover, the imposition of this restriction has the potential to destabilize the functioning of Parliament. It risks disenfranchising constituents and creating unnecessary vacancies, which could lead to a costly and inefficient series of by-elections before general elections. This not only undermines the effective representation of voters but also imposes a financial and administrative burden on the state.

The automatic vacation of a seat under Article 97(g)(h), due to a member’s change in party affiliation or political alignment, frustrates the legislative process by introducing uncertainty and disrupting the continuity of parliamentary work. In the long term, such constraints could erode the trust of the electorate, who may see their chosen representative removed for reasons unrelated to their performance or the interests of their constituents.

In a truly democratic society, the Constitution should protect political pluralism and allow elected representatives to realign their affiliations without fear of automatically losing their seats. To maintain the integrity of the democratic process and avoid unnecessary disruption within Parliament, Article 97(g)(h) should be repealed or amended to better reflect the principles of political freedom and representation. Without such reform, the provision may create a scenario of chaotic legislative proceedings, ultimately harming the interests of the Ghanaian voter.

In addition, the need for by-elections, triggered by such rigid constitutional provisions, would be both wasteful and detrimental to state resources, especially when they occur close to general elections. This would result in unnecessary costs to the state, create electoral fatigue among voters, and further undermine public confidence in the political process.