The Speaker of Parliament, Rt. Hon. Peter Ala Adjetey had accused the minority leader of leaking details of the letter he wrote to him (Speaker) on the Wulensi saga, in which the Bagbin sought clarification from him as to why he communicated to the country’s Electoral Commission of the vacant Wulensi seat, without informing Parliament accordingly.
Mr. Adjetey however, refused to give Bagbin a chance to respond to his allegations, an action which the minority described as unfair, resulting in the walk-out. The walk-out was engineered by the back-benchers, who began trooping out whilst their leader tried without success to defend himself.
Angry-looking Mr. Adjetey ignored Bagbin.
Speaking to the media later, the minority leader said he is disappointed at the behaviour of the Speaker, adding he (Speaker) has challenged his credibility not only as a member of Parliament but also a leader of the minority.
“He has to apologise to me,” Bagbin said, adding “if he refuses to apologise to me, I will go after him.” It iwas not clear
Meanwhile, great uncertainties hang over the February 20 Wulensi constituency election. Whereas the Electoral Commission has declared its intention to to conduct the election, the MP’s party the NDC seem to suggest that the constituency is not vacant.That the Honourable Mr Nyimakan is still qualified to represent the constituency. In fact, the Rt. Hon. Speaker, Mr. Peter Ala Adjetey says he has not declared the seat vacant.
In a letter to Minority Leader, Alban Bagbin (MP) dated February 4 2003 and copied the Electoral Commissioner and the Attorney General, The Right Honourable Mr. Ala Adjetey said, “I have not declared a vacancy in the Wulensi Constituency as I am required to do under Standing Order 18 of the Standing Orders of Parliament.”
The Supreme Court had declared Mr. Samuel Nyimakan’s election null and void following the petition of one Fuseini Zakaria, a Wulensi constituent to a Tamale High Court, praying it to declare the elections of Mr Nyimakan null and void. The petitioner alleged that Mr Nyimakan does not hail from the constituency, is not resident in the constituency; and has never lived there for periods that add up to 5 years in the last 10 years.
In his letter to the Speaker, Mr. Bagbin himself a lawyer, contended that there is no vacancy in the Wulensi Constituency because an application for review of the decision by which the vacancy was created is pending before the Supreme Court.
But Mr. Ala Adjetey, also one of Ghana’s finest legal brains is not sure whether the minority leader is right in the view he has taken of the legal effect of the pendency of an application for review.
“My understanding of the law on this matter is that an application for review cannot, by and of itself, nullify the decision it seeks to have reviewed, which remains valid until set aside by an order of a court of competent jurisdiction.”
“Depending upon what interim processes are filed, the execution of such an order or decision may or may not be stayed but that is a far cry from the contention that the decision itself has become void or ceased to exist,” the Speaker added.
Below are Mr. Bagbin’s letter to the Speaker as well as the Speaker’s reponse and that of EC to Speaker
WULENSI SEAT
My attention has been drawn to a publication in the Daily Graphic of Saturday, 25th January 2003 indicating that the Electoral Commission has fixed the 20th of February, 2003 for a bye-election to be conducted to fill an alleged vacancy created in the Wulensi Parliamentary Seat.
The publication further stated that:
“The Clerk of Parliament has notified the EC of the occurrence of a vacancy in Parliament as a result of the disqualification of Mr Samuel Nyimakan, Member of Parliament for Wulensi Constituency in the Nanumba District of the Northern Region”.
I am aware that the ruling was delivered by the Supreme Court on 15th January 2003, setting aside an appeal of Hon Samuel Nyimakan against an earlier decision of the Court of Appeal confirming a judgment of the Tamale High Court nullifying his election as Member of Parliament. I am also in possession of an application for review of the ruling of the Supreme Court filed for and on behalf of the said Member of Parliament in the Supreme Court.
I am reliably informed that a copy of the said application has also been served on you, the Minister for Justice and the Electoral Commission. I have further been reliably informed that the Electoral Commission actually acted as stated above as a result of a letter from your Office to the Electoral Commission informing the Electoral Commission of a vacant parliamentary seat in the Wulensi Constituency.
There is no such vacancy in the Wulensi Constituency in view of the fact that there is a review pending at the Supreme Court. Neither the Hon Samuel Nyimakan nor Parliament as a body is even aware of your communication to the Electoral Commission and the existence of a vacancy in the Wulensi Constituency.
I humbly crave your indulgence to clear the air on this matter and the Electoral Commission informed accordingly. Your urgent response will be much appreciated.
Yours faithfully,
ALBAN S BAGBIN (MP)
MINORITY LEADER
cc: The Electoral Commissioner
Electoral Commission
Accra
The Hon Minister
Ministry for Justice
Accra
Speaker’s response
Thank you for your letter dated 4th February 2003 and 1 note that your note paper is headed National Electoral Commission" when, constitutionally, your organization is known as "The Electoral Commission". It may be that you would have to take steps to amend your headed notepaper so as not to give the impression that your name is that on the notepaper rather than that in the Constitution.
To respond to your letter, 1 attach hereto, a copy of the reply, which 1 addressed to the Minority Leader in Parliament to his letter to me referred to by you in the penultimate paragraph of your letter. Unfortunately, the original reply to the Minority Leader did not indicate that copies have been sent or were intended to be sent to the persons to whom he had copied his letter. We have now rectified that omission and are sending my reply as rectified to the Minority Leader. The substance remains the same.
WULENSI SEAT
i thank you for your letter dated 30th January 2003, received in my office at 4:00pm the same day but actually placed before me on 31st January 2003. 1 have carefully considered the points raised in you said letter.
On 17th January 2003 the Hon. Attorney?General and Minister for Justice addressed a letter to me which was received in my office in the afternoon of the samb day. Unfortunately, because all our energies were directed towards the preparations for the Ceremonial Opening of Parliament on the 21st January, 2003, the letter was not brought to my attention until the~,20th January, 2003 at which time 1 was too busy to attend to it. ) was able to read it fully on 22nd Januai~, 2003 and realized that it dealt with an urgent matter; this is the decision of the Supreme Court on thes litigation affecting the above?mentioned seat, The purpose of the letter was to inform me of the decision of the Supreme Court delivered on the 15t11 January 2003 in accordance with the order of the court,
1 immediately minuted the letter to the Clerk and asked him to proceed in accordance with article 112 (5) of the Constitution of the Republic of Ghana, The Clerk to Parliament acted immediately on my minute and wrote to the Chairman of the Electoral Commission on the same day, 22nd December, 2002, notifying him of the occurrence of a vacancy in the membership of Parliament necessitated by the disqualification of the Hon. Member for Wulensi Constituency, the Hon. Mr. Samuel Nyikmakan by order of the court and asking him to take appropriate consequedtial action as required by law.
On the following day, 23rd January 2003, a letter dated 2~hd January 2003 emanating from the Supreme Court was received in the Office of the Clerk to Parliamdnt who minuted it to me for directives on the matter. 1 minuted it back to him asking him to refer the~ matter immediately to the Hon. the AttorneyGeneral for his advice as to the course of action open ~ to us having regard to article 112 (5) of the Constitution and pointing out further that the statement in slupport of the appfication for review which was forwarded to him under cover of the said letter, was not signed. The Clerk complied with my instruction, but we have received no further communication on the matter from the Attorney?General or the court.
I have not written to the Electoral Commission on the matter beyond what the Clerk to Parliament has done in discharge of his constitutional obligation in the, matter.
I have taken note of your contention that there is no; vacancy in the Wulensi Constituency because an application for review of the decision by which the vacancy was created is pending before the Supreme Court. I am not sure whether you are right in the view you take of the legal effect of the pendency of an application for review. My understanding of the law on this matter is that an application for review cannot, by and of itself, nullify the decision it seeks to'.. have reviewed, which remains valid until set aside by an order of a court of competent jurisdiction. Deplending upon what interim processes are filed, the execution of such an order or decision may or may not be stayed but that is a far'cry from the contention that the decision itself has become void or ceased to exist.
It is not for me to offer advice in this matter. The Clerk to Parliament, having properly discharged his responsibility under article 112 (5) of the Constitution, has no further jurisdiction in the matter. If the order creating a vacancy is appealed or is sought to b0 reviewed, it is not the duty of the Clerk to come to a decision as to the legal effect of such action and to notify the Electoral Commission of such effect.
As to your contention that Parliament as a body and Mr. Samuel Nyimakan are not aware of my communication to the Electoral Commission and the existence of a vacancy in the Wulensi constituency, I would like to say firstly, that there has not been any communication from me to the Electoral Commission in my capacity as Speaker and secondly I have not declared a vacancy in the Wulensi Constituency as I am required to do under Standing Order 18 of the Standing Orders of Parliament but then my duties under Standing Order 18 are quite independent of the Clerk's duties under article 112 (5) of the Constitution.
I am satisfied that the Clerk to Parliament has acted correctly in this matter and the legal advisers for Mr. Samuel Nyimakan will have to take what action they consider necessary in their client's interest.
Yours faithfully
RT. HON. PE TER ALA ADJETEY
SPEAKER OF PARLIAMENT
EC's letter
WULENS1 PARLIAMENTARY SEAT
On 23 January 2003 this Commission received a letter dated 22 January 2003 from the Clerk to Parliament notifying us of the occO rrence of a vacancy in the membership of Parliament following the disqualification, by the Order of the Supreme Court, of the Member of Parliament for Willensi, Mr. Samuel Nyimakan. The same letter requested this Commission to take appropriate consequential action as required by law. The Commission has accordingly commenced the process of electing a Member of Parliament to replace Mr. Samuel Nyimakan.
Nomination is scheduled for receipt on th and 6t' February, 2003 and the elections fixed for 20 February, 2003).
On Monday 3rd February, 2003, a copy of a letter addressed to the Rt. Hon. Speaker of Parliament by the Hon. Minority Leader the issue of the vacancy in the Wulensi constituency was received by us.
In view of the different positions taken by the Clerk to Parliament and the Minority
Leader we deem it necessary to come to the'Rt. Hon. Spea r for direction on the issue
especially so as nominations are to be received on the, 5t~' aind 6' o February 2003.
K. SARFO
DEPUTY CHAIRMAN (OPERATIONS)
OR: CHAIRMAN
Cc: THE HON. MINISTER OF JUSTICE
MINISTRY OF JUSTICE ACCRA
THE HON. MINORITY LEADER
PARLIAMENT HOUSE ACCRA
Meanwhile, upon receipt of the Speaker's response, the EC as at the time of filing this report has written yet another letter to the Speaker of Parliament asking for directions in view of the different positions taken by the Clerk of Parliament and the Minority leader.
The contents of the letter reads;
On 23rd January 2003 this Commission received a letter dated 22nd January 2003 from the Clerk of Parliament notifying us of the occurence of a vacancy in the membership of Parliament following the disqualification by the Order o fthe Supreme Court, of the Member of Parliament for Wulensi, Mr. Samuel Nyimakan.
The same letter requested this Commission to take appropriate consequential action as required by law. The Commission has accordingly commenced the process of electing a member of Parliament to replace Mr. Samuel Nyimakan.
Nomination is scheduled for receipt on 5th and 6th February, 2003 and the elections fixed for 20th February, 2003.
On Monday 3rd February, 2003, a copy of a letter addressed to the Rt. Hon. Speaker of Parliament by the Hon. Minority Leader on the issue of the vacancy in the Wulensi constituency was received by us.
In view of the different positions taken by the Clerk to Parliament and the Minority Leader we deem it necessary to come to the Rt. Hon. Speaker for direction on the issue especially so as nominations are to be received on the 5th and 6th of February 2003."
Signed
K. Sarfo-Katanka
Deputy Chairman (Operations) for the chairman of the Commission and copied to the Minister for JUstice and the Minority Leader.
The Speaker of Parliament, Rt. Hon. Peter Ala Adjetey had accused the minority leader of leaking details of the letter he wrote to him (Speaker) on the Wulensi saga, in which the Bagbin sought clarification from him as to why he communicated to the country’s Electoral Commission of the vacant Wulensi seat, without informing Parliament accordingly.
Mr. Adjetey however, refused to give Bagbin a chance to respond to his allegations, an action which the minority described as unfair, resulting in the walk-out. The walk-out was engineered by the back-benchers, who began trooping out whilst their leader tried without success to defend himself.
Angry-looking Mr. Adjetey ignored Bagbin.
Speaking to the media later, the minority leader said he is disappointed at the behaviour of the Speaker, adding he (Speaker) has challenged his credibility not only as a member of Parliament but also a leader of the minority.
“He has to apologise to me,” Bagbin said, adding “if he refuses to apologise to me, I will go after him.” It iwas not clear
Meanwhile, great uncertainties hang over the February 20 Wulensi constituency election. Whereas the Electoral Commission has declared its intention to to conduct the election, the MP’s party the NDC seem to suggest that the constituency is not vacant.That the Honourable Mr Nyimakan is still qualified to represent the constituency. In fact, the Rt. Hon. Speaker, Mr. Peter Ala Adjetey says he has not declared the seat vacant.
In a letter to Minority Leader, Alban Bagbin (MP) dated February 4 2003 and copied the Electoral Commissioner and the Attorney General, The Right Honourable Mr. Ala Adjetey said, “I have not declared a vacancy in the Wulensi Constituency as I am required to do under Standing Order 18 of the Standing Orders of Parliament.”
The Supreme Court had declared Mr. Samuel Nyimakan’s election null and void following the petition of one Fuseini Zakaria, a Wulensi constituent to a Tamale High Court, praying it to declare the elections of Mr Nyimakan null and void. The petitioner alleged that Mr Nyimakan does not hail from the constituency, is not resident in the constituency; and has never lived there for periods that add up to 5 years in the last 10 years.
In his letter to the Speaker, Mr. Bagbin himself a lawyer, contended that there is no vacancy in the Wulensi Constituency because an application for review of the decision by which the vacancy was created is pending before the Supreme Court.
But Mr. Ala Adjetey, also one of Ghana’s finest legal brains is not sure whether the minority leader is right in the view he has taken of the legal effect of the pendency of an application for review.
“My understanding of the law on this matter is that an application for review cannot, by and of itself, nullify the decision it seeks to have reviewed, which remains valid until set aside by an order of a court of competent jurisdiction.”
“Depending upon what interim processes are filed, the execution of such an order or decision may or may not be stayed but that is a far cry from the contention that the decision itself has become void or ceased to exist,” the Speaker added.
Below are Mr. Bagbin’s letter to the Speaker as well as the Speaker’s reponse and that of EC to Speaker
WULENSI SEAT
My attention has been drawn to a publication in the Daily Graphic of Saturday, 25th January 2003 indicating that the Electoral Commission has fixed the 20th of February, 2003 for a bye-election to be conducted to fill an alleged vacancy created in the Wulensi Parliamentary Seat.
The publication further stated that:
“The Clerk of Parliament has notified the EC of the occurrence of a vacancy in Parliament as a result of the disqualification of Mr Samuel Nyimakan, Member of Parliament for Wulensi Constituency in the Nanumba District of the Northern Region”.
I am aware that the ruling was delivered by the Supreme Court on 15th January 2003, setting aside an appeal of Hon Samuel Nyimakan against an earlier decision of the Court of Appeal confirming a judgment of the Tamale High Court nullifying his election as Member of Parliament. I am also in possession of an application for review of the ruling of the Supreme Court filed for and on behalf of the said Member of Parliament in the Supreme Court.
I am reliably informed that a copy of the said application has also been served on you, the Minister for Justice and the Electoral Commission. I have further been reliably informed that the Electoral Commission actually acted as stated above as a result of a letter from your Office to the Electoral Commission informing the Electoral Commission of a vacant parliamentary seat in the Wulensi Constituency.
There is no such vacancy in the Wulensi Constituency in view of the fact that there is a review pending at the Supreme Court. Neither the Hon Samuel Nyimakan nor Parliament as a body is even aware of your communication to the Electoral Commission and the existence of a vacancy in the Wulensi Constituency.
I humbly crave your indulgence to clear the air on this matter and the Electoral Commission informed accordingly. Your urgent response will be much appreciated.
Yours faithfully,
ALBAN S BAGBIN (MP)
MINORITY LEADER
cc: The Electoral Commissioner
Electoral Commission
Accra
The Hon Minister
Ministry for Justice
Accra
Speaker’s response
Thank you for your letter dated 4th February 2003 and 1 note that your note paper is headed National Electoral Commission" when, constitutionally, your organization is known as "The Electoral Commission". It may be that you would have to take steps to amend your headed notepaper so as not to give the impression that your name is that on the notepaper rather than that in the Constitution.
To respond to your letter, 1 attach hereto, a copy of the reply, which 1 addressed to the Minority Leader in Parliament to his letter to me referred to by you in the penultimate paragraph of your letter. Unfortunately, the original reply to the Minority Leader did not indicate that copies have been sent or were intended to be sent to the persons to whom he had copied his letter. We have now rectified that omission and are sending my reply as rectified to the Minority Leader. The substance remains the same.
WULENSI SEAT
i thank you for your letter dated 30th January 2003, received in my office at 4:00pm the same day but actually placed before me on 31st January 2003. 1 have carefully considered the points raised in you said letter.
On 17th January 2003 the Hon. Attorney?General and Minister for Justice addressed a letter to me which was received in my office in the afternoon of the samb day. Unfortunately, because all our energies were directed towards the preparations for the Ceremonial Opening of Parliament on the 21st January, 2003, the letter was not brought to my attention until the~,20th January, 2003 at which time 1 was too busy to attend to it. ) was able to read it fully on 22nd Januai~, 2003 and realized that it dealt with an urgent matter; this is the decision of the Supreme Court on thes litigation affecting the above?mentioned seat, The purpose of the letter was to inform me of the decision of the Supreme Court delivered on the 15t11 January 2003 in accordance with the order of the court,
1 immediately minuted the letter to the Clerk and asked him to proceed in accordance with article 112 (5) of the Constitution of the Republic of Ghana, The Clerk to Parliament acted immediately on my minute and wrote to the Chairman of the Electoral Commission on the same day, 22nd December, 2002, notifying him of the occurrence of a vacancy in the membership of Parliament necessitated by the disqualification of the Hon. Member for Wulensi Constituency, the Hon. Mr. Samuel Nyikmakan by order of the court and asking him to take appropriate consequedtial action as required by law.
On the following day, 23rd January 2003, a letter dated 2~hd January 2003 emanating from the Supreme Court was received in the Office of the Clerk to Parliamdnt who minuted it to me for directives on the matter. 1 minuted it back to him asking him to refer the~ matter immediately to the Hon. the AttorneyGeneral for his advice as to the course of action open ~ to us having regard to article 112 (5) of the Constitution and pointing out further that the statement in slupport of the appfication for review which was forwarded to him under cover of the said letter, was not signed. The Clerk complied with my instruction, but we have received no further communication on the matter from the Attorney?General or the court.
I have not written to the Electoral Commission on the matter beyond what the Clerk to Parliament has done in discharge of his constitutional obligation in the, matter.
I have taken note of your contention that there is no; vacancy in the Wulensi Constituency because an application for review of the decision by which the vacancy was created is pending before the Supreme Court. I am not sure whether you are right in the view you take of the legal effect of the pendency of an application for review. My understanding of the law on this matter is that an application for review cannot, by and of itself, nullify the decision it seeks to'.. have reviewed, which remains valid until set aside by an order of a court of competent jurisdiction. Deplending upon what interim processes are filed, the execution of such an order or decision may or may not be stayed but that is a far'cry from the contention that the decision itself has become void or ceased to exist.
It is not for me to offer advice in this matter. The Clerk to Parliament, having properly discharged his responsibility under article 112 (5) of the Constitution, has no further jurisdiction in the matter. If the order creating a vacancy is appealed or is sought to b0 reviewed, it is not the duty of the Clerk to come to a decision as to the legal effect of such action and to notify the Electoral Commission of such effect.
As to your contention that Parliament as a body and Mr. Samuel Nyimakan are not aware of my communication to the Electoral Commission and the existence of a vacancy in the Wulensi constituency, I would like to say firstly, that there has not been any communication from me to the Electoral Commission in my capacity as Speaker and secondly I have not declared a vacancy in the Wulensi Constituency as I am required to do under Standing Order 18 of the Standing Orders of Parliament but then my duties under Standing Order 18 are quite independent of the Clerk's duties under article 112 (5) of the Constitution.
I am satisfied that the Clerk to Parliament has acted correctly in this matter and the legal advisers for Mr. Samuel Nyimakan will have to take what action they consider necessary in their client's interest.
Yours faithfully
RT. HON. PE TER ALA ADJETEY
SPEAKER OF PARLIAMENT
EC's letter
WULENS1 PARLIAMENTARY SEAT
On 23 January 2003 this Commission received a letter dated 22 January 2003 from the Clerk to Parliament notifying us of the occO rrence of a vacancy in the membership of Parliament following the disqualification, by the Order of the Supreme Court, of the Member of Parliament for Willensi, Mr. Samuel Nyimakan. The same letter requested this Commission to take appropriate consequential action as required by law. The Commission has accordingly commenced the process of electing a Member of Parliament to replace Mr. Samuel Nyimakan.
Nomination is scheduled for receipt on th and 6t' February, 2003 and the elections fixed for 20 February, 2003).
On Monday 3rd February, 2003, a copy of a letter addressed to the Rt. Hon. Speaker of Parliament by the Hon. Minority Leader the issue of the vacancy in the Wulensi constituency was received by us.
In view of the different positions taken by the Clerk to Parliament and the Minority
Leader we deem it necessary to come to the'Rt. Hon. Spea r for direction on the issue
especially so as nominations are to be received on the, 5t~' aind 6' o February 2003.
K. SARFO
DEPUTY CHAIRMAN (OPERATIONS)
OR: CHAIRMAN
Cc: THE HON. MINISTER OF JUSTICE
MINISTRY OF JUSTICE ACCRA
THE HON. MINORITY LEADER
PARLIAMENT HOUSE ACCRA
Meanwhile, upon receipt of the Speaker's response, the EC as at the time of filing this report has written yet another letter to the Speaker of Parliament asking for directions in view of the different positions taken by the Clerk of Parliament and the Minority leader.
The contents of the letter reads;
On 23rd January 2003 this Commission received a letter dated 22nd January 2003 from the Clerk of Parliament notifying us of the occurence of a vacancy in the membership of Parliament following the disqualification by the Order o fthe Supreme Court, of the Member of Parliament for Wulensi, Mr. Samuel Nyimakan.
The same letter requested this Commission to take appropriate consequential action as required by law. The Commission has accordingly commenced the process of electing a member of Parliament to replace Mr. Samuel Nyimakan.
Nomination is scheduled for receipt on 5th and 6th February, 2003 and the elections fixed for 20th February, 2003.
On Monday 3rd February, 2003, a copy of a letter addressed to the Rt. Hon. Speaker of Parliament by the Hon. Minority Leader on the issue of the vacancy in the Wulensi constituency was received by us.
In view of the different positions taken by the Clerk to Parliament and the Minority Leader we deem it necessary to come to the Rt. Hon. Speaker for direction on the issue especially so as nominations are to be received on the 5th and 6th of February 2003."
Signed
K. Sarfo-Katanka
Deputy Chairman (Operations) for the chairman of the Commission and copied to the Minister for JUstice and the Minority Leader.
