Vacant Seats Controversy: How the Speaker of Parliament got it all wrong in the face of the law and the facts

1. In my open letter to Speaker Bagbin on the raging controversy in Parliament, I pointed out to him that he had no constitutional authority to declare the 4 seats vacant. I made reference to Article 99(1)(a) of the 1992 Constitution, which states clearly that only the High Court can make that determination. I reminded the Speaker that his reliance on Order 18 of the Standing Orders of Parliament as his source of authority is misconceived and legally untenable.

2. This is because, Parliament’s Standing Orders are SUBJECT TO THE CONSTITUTION [See Article 110], and so, to the extent that Order 18 has conferred on the Speaker, as he claims, the authority to declare seats vacant, a function that the Constitution has EXCLUSIVELY reserved for the High Court under Article 99(1)(a), the said Order 18 is clearly in conflict with Article 99(1)(a) of the Constitution, hence unconstitutional, because, the Constitution is the supreme law of the land [See Article 1(2)].

3. Indeed, the Supreme Court of Ghana has emphasized this point in many judicial decisions including Justice Abdulai v Attorney General, where the court struck-out aspects of the Standing Orders of Parliament because they were in conflict with Articles 102 and 104 of the Constitution.

4. The apex court, in the Justice Abdulai case, also reminded us that Ghana practices Constitutional Supremacy as opposed to Parliamentary Supremacy which is practiced in the United Kindgom (UK), where their Parliament is sovereign. So, the law in Ghana, is 100% settled on this matter. No debate whatsoever.

5. In this write-up, I will be seeking to demonstrate to the Speaker, how he got it all wrong with his interpretation or understanding of Article 97(1)(g)&(h) of the Constitution. I will also be seeking to demonstrate why I think the Speaker, in my respectful opinion, has demonstrated a “narrow understanding” of the NPP Constitution and the Party’s internal operations.

SPEAKER’S INTERPRETATION OF ARTICLE 97(1)(g)&(h)

6. To start with, there is absolutely no debate that ONLY the Supreme Court has the EXCLUSIVE JURISDICTION to INTERPRET the provisions of the Constitution [See Article 130(1)]. Simply put, as held in Ex Parte CHRAJ (Interested Party – Hon. Dr. Richard Anane), “the Constitution means what the Supreme Court says it means”.

7. There is also no debate that the Supreme Court assumes its interpretative jurisdiction whenever there are real justiciable controversy or rival interpretations in respect of any provision of the Constitution [See Afenyo-Makin v AG & Speaker of Parliament; Ex Parte Akosah; Ex Parte Zanetor].

8. Even if we were to assume without admitting that the Speaker was clothed with the authority to interpret the Constitution, I dare say, with all due respect, that, his interpretation of Article 97(1)(g)&(h) is suspect, and like many lawyers, I also completely disagree with him.

9. In fact, to my mind, the Speaker was more influenced by partisanship than the law and the facts. He only sought to illegitimately reconfigure the composition of the 8th parliament and tilt the balance of power in favor of his political party, the NDC. I shall proceed to demonstrate that.

10. The 4 MPs were elected by their constituents to represent them in the 8th Parliament (not the 9th Parliament) for 4 years, ending on January 6, 2025, on the ticket of their respective political parties and as Independent Member in the case of the Fomena MP. That is the social contract the 4 MPs have signed with their constituents. None of the 4 MPs has breached this social contract. They all say, they are still committed to serving their constituents on the ticket of the respective political affiliations that brought them to Parliament, until the expiration of their 4-year mandate.

11. None of the 4 MPs is seeking to remain in the 8th Parliament on a different political vehicle other than that which he/she rode on to Parliament, which Article 97(1)(g) clearly frowns on. The only thing they are saying is that, after completing their tenure at the end of the 8th Parliament, they intend, if their constituents will allow them, to serve them in the next Parliament (9th) on a different political vehicle. So, where is the fraud or deception the Speaker was talking about?

IS ARTICLE 97(1)(g)&(h) PROSPECTIVE OR INSTANTANEOUS?

12. The Speaker completely rejected the invitation for him to give a futuristic/prospective effect to Article 97(1)(g)&(h) on grounds that if he did that, it would render the constitutional provision (i.e. Article 97(1)(g)&(h) useless and superfluous, as no MP could be caught by that provision. The Speaker’s assertion cannot be true. Article 97(1)(g)&(h) will be very much relevant even if it is construed prospectively.

13. What it would mean is that Article 97(1)(g)&(h) were intended by the framers of the constitution to be applicable to an MP who crosses carpet within the life of a Parliament (say, 8th Parliament) and still wants to keep his job as MP in the same Parliament (8th). A typical example is what we saw in the case of Hon. Wayo Seini, the then NDC MP for Tamale Central, who formally announced his decision to resign from the NDC to join the NPP during the life of the same parliament. He had to vacate his seat by the operation of Article 97(1)(g).

14. The framers could not have intended that the provision (i.e. Article 97(1)(g)) should apply to an MP’s intention to choose a different political path in future parliament. No MP or citizen of Ghana can be tied to a particular political party for the rest of his life, as that would make nonsense of the constitutional right to freedom of association enshrined in Article 21(1)(e) of the Constitution as well as Articles 55(2) and 55(10) on the right of every citizen of Ghana of voting age to join any political party of his choice.

15. Clearly, the mischief that Articles 97(1)(g)&(h) intend to cure, is a situation where MPs, at their own will, move from one parliamentary caucus to another, thereby, disrupting the composition of parliament and tilting the balance of power in the legislature based on compromises or compulsion as we saw in the 1st Republic under President Nkrumah. That is why the Constitution says, if an MP crosses carpet, he has to vacate his seat and go back to the voters (his constituents) to decide through a by-election, whether they still want him to represent them on the new ticket.

16. However, what the 4 MPs have done or are seeking to do, does not amount to crossing carpet. That is why the composition of the 8th parliament regarding the numerical strength of the Majority and the Minority Caucuses has remained UNCHANGED even after filing their nominations with the EC. Therefore, the ambit of Article 97(1)(g)&(h) relates to MPs who cross carpet within the life of the very parliament they were elected to serve in. It has nothing to do with the future ambitions of MPs.

17. The doctrine of RIPENESS in law requires that only matters that have arisen, should be dealt with by the law, and not future or uncertain or unknown matters [See NPP v NDC & AG]. The court deals with what has actually occurred or failed to occur when it ought to have occurred. Indeed, ripeness is the basis for the court declaring an action as PREMATURE.

17. That was why when Hon. Teye Nyaunu, the then NDC MP for Lower Manya Krobo, in the 5th Parliament, filed nomination with the Electoral Commission to contest as an Independent Parliamentary Candidate to serve in future parliament (the 6th Parliament), his seat was not declared vacant, because the matter was not ripe.

18. It was also the reason why when Hon. Joe Osei Owusu, an Independent MP for Bekwai in the 5th Parliament, filed nomination to contest as an NPP Parliamentary Candidate [just like the Fomena MP] to serve the people of Bekwai in the next parliament (6th), his seat was not declared vacant. The examples in the 4th Republic are numerous.

HOW THE SPEAKER MISAPPLIED THE NPP CONSTITUTION

19. The Speaker, with the greatest of respect, demonstrated per his ruling, a limited understanding of the internal operations of the NPP as well as the Party Constitution. That is why he should have hastened slowly in coming to the conclusion that, by mere filing of nomination to join the next parliament [9th parliament] as Independent Candidates, Hon. Cynthia Morrison and Hon. Kwodwo Asante had forfeited their membership of the NPP by operation of Article 3(9)(1) of the Party Constitution.

20. This is so, particularly because, none of the MPs in question has informed the Speaker that they were severing ties with their political party. The NPP has also not written to the Speaker to say that the MPs were no longer members of the Party. So, on what basis did the Speaker conclude that they have left the NPP, and proceeded to invoke Article 97(1)(g). By his ordinary reading of Article 3(9)(1) of the NPP Constitution which talks about events that will occasion forfeiture of membership?

21. But, the Speaker, who is a lawyer, knows very well that constitutions or legal documents are supposed to be read as a whole to deduce what they really mean [See AG v Prince Ernest Augustus of Hanover; Boateng v VALCO; Sallah v AG]. You don’t just read one provision in a constitution and draw conclusions.

22. You must read it together with other relevant provisions in the constitution, except, perhaps, where the provision contains a phrase like, “notwithstanding anything contrary in the constitution”. But, Article 3(9)(1) of the NPP Constitution does not contain any such phrase, hence, it ought to be read with other relevant provisions in the constitution.

23. In particular, Article 3(9(1) ought to be read alongside Article 3(3)(2) on the right of members to be heard before a decision that affects them can be taken in line with the principles of natural justice. It also ought to be read alongside Article 4(3)(6) of the NPP Constitution which provides that:

“A member who breaches any provision in this Constitution or undermines the Party’s Constitution, SHALL have a COMPLAINT lodged against him/her”

24. The right to be heard or natural justice is a very fundamental right in every civilized society. The right to be heard/natural justice, just like the right to life, is one of the non-derogable rights that every human being is expected to enjoy. Even Prophet Adam, whom God knew had eaten the forbidden fruit, was accorded his right to be heard by God. So, no Constitution in this World can contain a provision that denies people their right to be heard/natural justice when their issue comes up for consideration [See Awuni v WAEC; R v Chancellor, University of Cambridge (1723)].

25. On the basis of the above, Article 3(9)(1) of the NPP Constitution ought to be construed benevolently having in mind Articles 3(3)(2) and 4(3)(6) of the same Constitution.

26. Indeed, if the provision in Article 3(9)(1) of the NPP constitution on forfeiture of membership were to be construed stringently so as to operate automatically without recourse to natural justice, then certainly, the provision will be contrary to Article 55(5) of the 1992 Constitution which provides that, the internal organization of a political party shall conform to democratic principles, and shall not be inconsistent with the Constitution.

27. So, the Speaker, once again, ought to have hastened slowly with his decision to invoke Article 3(9)(1) of the NPP Constitution. He ought to have ascertained from the NPP whether Articles 3(3)(2) and 4(3)(6) of the Party Constitution were fully complied with. But, it may be difficult for the Speaker to make that ascertainment because he is not in the business of receiving evidence on oath and putting value judgements on their weight.

28. That is why the 1992 Constitution provides in Article 99(1)(a) that, only the High Court (not the Speaker) should make the determination whether a seat has become vacant. In doing so, in this particular case, the High Court, may, for instance, subpoena officials of the Party to lead such evidence including, if any, evidence of a formal complaint and disciplinary or grievance proceedings held on the conduct the two NPP MPs as required by Articles 4(3)(6) and 3(3)(2) of the Party Constitution.

29. Well, as someone who has had the rare privilege of working closely under both the immediate past General Secretary of NPP, John Boadu, and the current General Secretary, Justin Kodua Frimpong, attending meetings of the Party’s National Executive Committee and National Council, I can, to the best of my knowledge, report that, the Party has not yet exhausted its disciplinary and grievance procedures as enshrined in the Party’s Constitution regarding the conduct of the NPP MPs in question.

30. It is the only reason why the NPP has till date, not written to the Speaker to inform Parliament that the MPs are no longer members of the Party to trigger the invocation of Article 97(1)(g) as was done by the Party in the case of Hon. Andrew Asiamah, the Fomena MP, ahead of the 2020 general elections when he filed to contest as Independent Parliamentary Candidate.

31. Before that letter was written by the NPP, the Party had received a petition pursuant to Article 4(3)(6) of the Party Constitution, on the conduct of the then NPP MP for Fomena who had filed to contest as Independent Parliamentary Candidate. He [Hon. Andrew Asiamah] was given a fair hearing in line with natural justice rules as per Article 3(3)(2) of the Party Constitution.

32. After all these were done, the Party’s National Council met on the matter, at which meeting, the National Council, having fully satisfied itself that Hon. Andrew Asiamah had, indeed, left the Party, instructed the then General Secretary, John Boadu, to write formally to the Speaker to invoke Article 97(1)(g) of the 1992 Constitution.

33. Again, I had the privilege of delivering that letter, signed by my boss, the General Secretary, to the Speaker of Parliament, Rt. Hon. Mike Oquaye, through the then Majority Leader, Hon. Osei Kyei Mensah-Bonsu.

34. On the current status of Hon. Andrew Asiamah, the Independent MP, it may not be entirely true to say that he has officially joined the NPP to warrant the invocation of Article 97(1)(h) of the 1992 Constitution. It is worth stating that the Party reserves the right to select any qualified Ghanaian to contest on its ticket as a candidate. Indeed, my understanding is that, when Hon. Dominic Nitowol was first selected to stand on the NPP ticket as Parliamentary Candidate for Bimbilla, he was not a member of the NPP.

 

35. It is not for nothing that Article 12 of the NPP Constitution is titled, SELECTION OF PARLIAMENTARY CANDIDATES, essentially suggesting that the Party may, based on political calculations and local electoral dynamics, SELECT any qualified Ghanaian to become its Parliamentary Candidate. And this conforms with Article 2(3) of the NPP Constitution, which states that the primary aim and objective of the NPP is “to WIN POLITICAL POWER through democratic means and pursue the Party’s agenda as provided for in the Party’s manifesto”.  

36. It can also be seen in 55(3) of the 1992 Constitution that a political party has the constitutional authority to sponsor candidates for elections to any public office. The Constitution does not impose an obligation on political parties to sponsor only their card bearing members for elections.

37. In the case of the NPP, the National Council of the Party has the authority under Article 10(3) and 18 of the Party Constitution to direct the affairs of the Party, and where necessary, make additional rules or waive existing rules to the extent that it is in the best interest of the Party. Again, this is primarily geared toward realizing the most important objective for forming a political party, which is to win political power and govern based on its manifesto.

38. So, when people say, Speaker Bagbin did no wrong, because he was only following the precedent that was set by the NPP and Speaker Oquaye in 2020, that cannot be true. But, I do not fault them, because they may not be privy to all the facts and the law as I have elucidated. Clearly, the circumstance that prevailed in 2020 regarding Hon. Andrew Asiamah, then as NPP MP for Fomena, is COMPLETELY DIFFERENT from what we are witnessing today.

CONCLUSION

39. It is evidently clear from the foregoing that the Speaker of Parliament got it completely wrong on this vacant seats controversy, having regard to the facts and the law. He had no legal authority to declare the 4 seats vacant. He had no legal authority to interpret Articles 97(1)(g)&(h) of the 1992 Constitution in the face of real justiciable controversy on the true and proper meaning of these provisions.

40. The Speaker also got it completely wrong with his application of the NPP Constitution and his appreciation of the internal operations of the Party. He may have genuinely gotten it wrong due to lack of information, or may have been influenced by extreme partisanship since he is a politician, or both. But, fortunately, the courts have stepped in to right the wrongs of the Speaker and affirm the rule of law, which is the bedrock of our constitutional democracy. Long live our dear Motherland!!!