1. BACKGROUND

The Majority leader of Parliament Alexander Afenyo Markin instituted an action on 15^th October 2024, invoking the original jurisdiction of the Supreme Court for a declaration that upon a true and proper interpretation of  Articles 2(1), 2(2), 7(1), 21(1)(b)(c), 35(1) (5), 97(1)(g), 130(a), 296(a) (b) of the Constitution and Rule 45 of the Supreme Court Rules, 1996 (C.I 16), the filing of nominations by three members of parliament to contest as independent candidates in the upcoming elections and by the independent MP for Fomena Constituency to contest on the ticket of the NPP does not amount to a vacation of their current seats in Parliament.

On 17^th October 2024, the Speaker of Parliament declared the seats of the four MPs vacant. The Speaker made this declaration pursuant to Article 97(1) (g) and (h) of the 1992 Constitution. Following this declaration, Mr. Alexander Afenyo Markin on 18^th October 2024 filed an ex-parte application and obtained an order from the court staying execution of the Speaker’s declaration.

2. SPEAKER CHALLENGES DECISION OF THE SUPREME COURT GRANTING AN APPLICATION FOR STAY EXECUTION

On 28^th October 2024, the Speaker filed an application before the court for an order setting aside the proceedings in the substantive suit and vacating the order staying execution of his declaration of vacancy of the seats of the four MP’s

Counsel for the Speaker argued among others that the suit filed by Mr Afenyo Markin which led to the impugned order was filed contrary to the rules of the Supreme Court and the SC lacked jurisdiction to entertain the suit or to stay execution of the ruling of a Speaker of Parliament.

Counsel for Mr. Afenyo Markin together with the Attorney General and Minister for Justice, opposed the application arguing that the court had jurisdiction to make the impugned order and that the Speaker failed to properly invoke the review jurisdiction of the court.

A 5-member panel of the court presided over by the Chief Justice on 30^th October 2024 dismissed the application citing that the application failed to properly invoke its review jurisdiction.

1. DECISION OF THE SUPREME COURT IN THE SUBSTANTIVE SUIT

On 11^th November 2024, a seven-member panel of the Supreme Court namely G. Torkornoo CJ (Presiding), M. Owusu, Lovelace-Johnson, Amadu, Asiedu, Gaewu and Darko Asare JJSC heard arguments of the Plaintiff and the Attorney-General. Notably, the Speaker’s lawyer was absent and also failed to file a statement of case. The adjourned the case to the following day, 12^th November 2024 to deliver its judgment.

• MAJORITY’S DECISION

JURISDICTION OF THE SUPREME COURT TO DETERMINE THE MATTER

The Court by a 5-2 majority held that it had jurisdiction to hear the matter before it. The Court stated emphatically that its jurisdiction to interpret and enforce the constitution under Article 2(1) and 130 (1) cannot be ousted simply because another court has concurrent jurisdiction in respect of the subject matter of the case. The Court went further to state that it has power under Article 125(3) and Article 2(1) of the Constitution to scrutinize parliamentary acts and practices that concern the Constitution. Additionally, the majority opinion of the court was that the rival meanings placed on Article 97(1)(g) & (h) by the parties warranted the exercise of original interpretative jurisdiction.

Further, the court took the view that given the legal evaluation necessary for a ‘ruling’ of the nature delivered by the Speaker, it was the High Court which was constitutionally empowered to make such a declaration pursuant to Article 99 of the 1992 Constitution. Speaking on behalf of the majority, Darko Asare JSC stated thus:

“to the extent therefore that 1^st Defendant involved himself in a fact finding and legal determination of what constitutes a party switch, that formed the foundation for declaring that the MPs should leave their seats in Parliament, we hold that his actions constituted a grievous and veritable overstep of constitutional authority, warranting this court’s interventions by way of interpretation and enforcement of constitutional boundaries”

MEANING OF ARTICLE 97 (1)(G) &(H)

The court held that an interpretation of article 97(1) that suggests that independent MPs forfeit their seats immediately upon joining a party, would immediately create an unjustifiable distinction between independent and party-elected MPs. The court in taking judicial notice of the fact that historically, MPs have contested future elections on different political tickets without vacating their seats during their current tenure, observed that the Constitution’s primary aim was to prevent mid-term disruptions by MPs cross-carpeting. The Court further observed that Article 97(1)(g) should not give political parties power to disrupt the balance of Parliament by removing MPs based on internal party decisions

Using a purposive approach, the court interpreted articles 97(1) (g) and (h) to mean that:

1. an MP vacates his seat if he leaves the party under which he was elected, to join another party or becomes independent, and seeks to remain in Parliament under their new status

1. An independent MP must vacates his seat if he joins a political party in Parliament, and seeks to remain in Parliament under the umbrella of the political party.

• DISSENTING OPINIONS

In their respective dissenting opinions, Amadu JSC and Lovelace-Johnson JSC took the view that by virtue of article 99(1) of the 1992 Constitution, the High Court was the forum clothed with exclusive jurisdiction to determine any question relating to vacancy of a seat in parliament.

Her Ladyship Lovelace-Johnson delivered herself thus:

“the fact that this court is clothed with exclusive jurisdiction under article 130(1) of the Constitution…to deal with all matters relating to the enforcement and interpretation of the Constitution and any allegations that an enactment was made in excess of the powers of Parliament or any authority or person by law or under the Constitution…does not mean that the clear provisions of Article 99(1) which provides the forum for hearing and determining the core issue in this matter can be ignored”

His Lordship Tanko Amadu JSC on his part stated that “the Supreme Court cannot vest itself even under the guise of being a policy court with jurisdiction the 1992 Constitution itself has vested in another judicial forum” and hoped that the majority’s decision will soon be reversed in the following words:

“I do not hasten to proclaim that, I have apprehended with despair the majority’s conclusion in this suit but I state, with utmost deference to the Honourable Chief Justice and the rest of my brethren in the majority that, not only do I fundamentally disagree with their conclusion, I, with  all due respect, also find the decision an aberration to the established and accepted judicial position of this court which with profound respect, I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed”

4. CONCLUSION: IMPLICATIONS & WHAT NEXT?

The Court after holding in favor of the Plaintiff concluded that ‘the interpretation placed on Article 97(1)(g) and (h) by the Speaker was inconsistent with the true meaning and import of the Article 97(1)(g) and (h) of the 1992 Constitution”.

It has been argued by some commentators that if the Speaker should maintain that the seats are vacant his actions may amount to a High Crime under Article 2(4) of the 1992 Constitution. Conversely, others contend that since there were no consequential orders or directions under article 2(2) of the Constitution for “giving effect, or enabling effect to be given, to the declaration so made” it will be untenable to claim that the Speaker may be liable for high crime as it is the “failure to obey or carry out terms of” such an order/direction that constitutes high crime.

These differing perspectives bring to the fore the question of the broader implications this judgment will have on the balance of power between the judiciary and the legislative branches in Ghana?

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