Sammy Obeng’s Part 2: A Hung Parliament, the Drama, and Mr. Speaker

In the first part of my article published a week ago, which can be read at http://www.parliamentafrica.com/news/sammy-obeng-writes-a-hung-parliament-the-Drama-and-mr-speaker/, I explained why the current composition of Ghana’s Parliament made it a Hung Parliament, and went ahead to provide some elucidations on how the Majority and Minority caucuses will be determined as per definitions gleaned from the Standing Orders (S.O.) of Parliament. I further distinguished between being a member of a parliamentary caucus and joining a political party, as I put forward the argument on why the Independent Member of Parliament (MP) is free to vote whichever way he wants on a matter, irrespective of the side he decides to caucus with. I provided step-by-step insight into how the election of the Speaker and Deputy Speakers will be conducted and spoke about the unique role that the Clerk to Parliament, Cyril Nsiah, will be playing during the elections, and the possibility of a long, tortuous and dramatic early morning on January 7 amidst voting by secret ballot.

As it turned out, our hallowed Chamber of Parliament was subjected to very shameful scenes by elderly men and women who had the mandate of their people to elect the third gentleman of the land. A matter that calls for probe, punishment and public-trust restoration.

In this Part 2, I explore the subject of special attributes expected of the new Speaker and Deputy Speakers as their roles will impact greatly on the conduct of business in the House; and go further to explain some issues on voting in Parliament, including instances that will require voice votes, headcounts and secret ballots. I also anticipate some examples of what may well become a never-ending four-year period of drama; how the Committees of Parliament will be constituted, and related matters.

What to expect on January 15

After the ceremony which saw the swearing-in of President Akufo-Addo before Parliament, the new Speaker, Rt. Hon. Alban S. K. Bagbin, adjourned sitting to Friday January 15, ostensibly to give the new MPs ample time to reflect on the shameful acts of that morning so they can come clean with the people of Ghana. The eight-day break also provides leadership of both sides of the House the opportunity to consult widely with each other, under the umpireship of the experienced Speaker Bagbin, to ensure that more decorous sittings are conducted in the House.

On January 15, I expect these specific activities to take place among others, as per the practice of the House. First, the case of Majority and Minority caucuses will be determined through a ruling by the Speaker, after considering official information from the Independent MP for Fomena on which side he intends to caucus with and a debate on same by NPP and NDC MPs. A report from Leadership on the formula for composition of membership of Committees, Parliamentary Delegations and other parliamentary groups and associations; and the approval of the Membership of the Committee of Selection will also be dealt with on the day. If the President communicates his first set of Ministerial nominees to the Speaker in time, that will also be read to the House.

The Committee of Selection, which is chaired by the Speaker of Parliament working with not more than 19 other MPs, is responsible for preparing the list of Chairpersons, Ranking Members and their deputies, as well as membership of each of the Standing and Select Committees of Parliament as per S.O. 151. This Committee is required to present its report to plenary within 10 sitting days and will traditionally have all Members of the front bench of both sides featuring. The Committee of Selection is enjoined to use the formula proposed by Leadership in constituting all other Committees of Parliament. By practice, this formula is determined by the ratio of Members of the Majority and Minority caucuses. For example, in the last Parliament which had 169 MPs from the Majority Side and 106 from the Minority side, a 169:106 ratio, which translated to 61:39 in percentage terms, was used in constituting all Committees including the Committee of Selection itself. Hence once the MP for Fomena joins one side to make the ratio 138:137, it will mean that for every committee, 50.18% of its Members will be drawn from the Majority side while 49.82% will be drawn from the Minority side – a split down the center.

How this affects Committees

Article 103 of the 1992 Constitution which provides for Committees of Parliament requires that the House “shall appoint standing committees and other committees as may be necessary for the effective discharge of its functions.” The Standing Orders further expands on this by making provisions for 11 Standing Committees (including the Committees of Privileges, Subsidiary Legislation, Public Accounts, Appointments etc.) and 16 Select Committees which considers Bills, budget estimates and other activities/administration of specific sectors of the government such as Foreign Affairs, Health, Education etc. The Standing Orders further gives room for ad hoc Committees. The numbers that make up the various Standing Committees vary from 20 to 31 MPs in some cases. All Select Committees, however, are made up of either 18 or 20 members as prescribed by the Standing Orders.

The composition of this 8^th Parliament (with NDC and NPP both having 117 male and 20 female MPs apiece), will make for some very interesting formular for determining Committee membership as per the ratio analyses I explained earlier which has been part of the practice of the House all these years. We may end up having Committees with equal representation from both sides and/or instances where the difference will be an extra slot for chairpersons to make for odd numbers. Note that the Constitution requires that every MP shall be a member of at least one of the Standing Committees, and “the composition of Committees shall, as much as possible, reflect the different shade of opinions in Parliament” – Article 103(5). The Standing Orders further provides that except for the Deputy Speakers and the Leaders of the Parliamentary Parties, no MP may be appointed to more than three Standing Committees.

Another interesting angle is, unlike in the past where all but two or three Committee chairpersons have come from the Majority side of the House, we may now have more Committees being chaired by the Minority as we expect both sides to push for the right to chair committees. Apart from the Public Accounts Committee, for which S.O. 165 specifically states that its chairmanship shall be held by “a Member who does not belong to the party which controls the Executive branch of Government,” and some other Committees which must specifically be chaired by the Speaker, Deputy Speakers or the Majority Leader, the Standing Orders did not expressly specify for the other Committees which side should chair. The practice of the House has however given these Committee chairs to the Majority side in the past without contention, but this time will be different. Fortunately, the new Standing Orders being considered by the House has mooted the idea of offering a lot more Committees to the Minority side, and the current situation may be a good opportunity to test that arrangement even before the new Orders are promulgated.

Once the hurdle of composition and leadership of the various committees have been crossed, issues relating to the effective functioning of these committees and the dynamics that will play out will come to the fore. Standing Order 195 pegs the quorum for parliamentary committee sittings at one-third of the membership of the Committee in addition to the Chairman or whoever is presiding. It is interesting to note however that Chairpersons of Committees of Parliament have no original vote “but in the event of an equality of votes he shall give a casting vote” as stipulated by S.O. 211(5). This tie-breaking mandate of Committee chairpersons will come in very handy during this new Parliament considering the ratio of members.

Let me now go ahead to cite a practical scenario of what may happen at Committee level with such close numbers. Upon the nomination of persons designated for various ministerial and deputy ministerial positions, the Rt. Hon. Speaker will refer such names to the Appointments Committee of Parliament to be vetted and either recommended for approval or disapproval. The Appointments Committee is composed of the First Deputy Speaker as Chairman and not more than 25 other members. So if the current Parliament decides to compose that Committee with 12 MPs from either side of the House due to the almost 50:50 ratio, with an extra NPP MP – the 1^st Deputy Speaker – as Chairman, we will have a 25-member committee that may not necessarily agree by consensus on some of the president’s nominees and  will therefore lead to instances where such nominees will be brought up at plenary for a vote of the whole House by secret ballot as was the case with Madam Otiko Djaba in February 2017. These could be some of the early cases of acrimonious votes where both sides of the House will have to ensure full attendance as S.O. 172(8) provides that “a candidate who fails to secure fifty per cent of the votes cast is rejected.”

Another angle to Committee formation this time around will be the net effect of many former MPs from the 7^th Parliament losing their seats and the fact that the President will have to appoint more that 50% of all his Ministers from among MPs. This will mean that fairly new MPs from the NPP side will have to be promoted quickly to Committee leadership since people with ministerial positions do not lead Committees of the House. This will mean the relatively experienced NDC side who do not have the challenge of sacrificing their experienced lots to the Executive branch, may have an upper hand over their counterparts on committee manoeuvring and strategies. This will greatly change the face of parliamentary oversight in Ghana.

In all of these, my biggest admonishing will be to Parliamentary Service staff who will serve as Clerks to the various Committees to recognise that in this new Parliament, keeping neutral and staying true to the provisions of S.O. 198(3) which requires them to record the minutes of all proceedings of their Committees together with a note of any decision taken by the Committee and the names of all MPs voting therein, will come in handy, especially when the outcomes of such in-camera Committee sittings may in many times be communicated by MPs in different ways to the public as will suit their partisan political agenda. We may have moments when minutes of such meetings may have to be tabled in the House and made public to settle some disputes. I dare say, Committee Clerks will need to put forward their best foot always with little or no instances similar to the poor showing exhibited by their overall boss – Mr. Cyril Nsiah – during the Speakership elections.

The Speakership in this new Parliament

The Speaker (and his deputies) are clothed with enormous powers and an almost guaranteed tenure as it takes three-quarters of all MPs to remove either of them. With the election of Speaker Bagbin who has 28 years of parliamentary experience and a second-term 1^st Deputy Speaker, Mr. Joseph Osei-Owusu, we expect nothing but excellent leadership as they chair sittings of the House. The 2^nd Deputy Speaker and independent MP for Fomena, Mr. Andrew Amoako Asiamah, who has shown characteristics akin to the meaning of his first name which is Greek for “manly, warrior, brave or strong” is expected to come to the party quickly, in his new role. Considering the sheer numbers on both sides of the House, the Speaker and his Deputies must exude fairness, transparency and non-partisanship in their dealings, lest they risk creating a very chaotic legislative branch.

Speakers of Parliament or Deputy Speakers (whenever they are presiding), are responsible for maintaining order in the House including directing the Marshals on maintenance of order in the House and its precincts. Order 98 explains it succinctly saying “Mr. Speaker shall be responsible for the observance of order in the House and of the rules of debate, and his decision upon any point of order shall not be open to appeal and shall not be reviewed by the House, except upon a substantive motion made after notice.” These powers of maintaining order and safeguarding the rules of debate includes the power to chair, adjourn/suspend/summon sittings, direct that sitting be held in-camera (closed sittings) and the authority to cause records of the House to be released or otherwise.

Whereas S.O. 90 stops a Speaker from taking part in any debate before the House, its counterpart Orders (S.O. 5 and 6) are unambiguous when they state that “in case of doubt[,] these Orders shall be interpreted by Mr. Speaker as he deems fit. In all cases not provided for in these Orders[,] Mr. Speaker shall make provisions as he deems fit.” So, in the cases of the definition of Majority or Minority caucuses of the House and who sits on the right or left side of the Chamber, these Standing Orders clothes Rt. Hon. Bagbin with powers to pronounce on same.

The Standing Orders in many parts, requires the “leave of Mr. Speaker” before MPs can take certain actions. Even the ability or inability of an MP to have audience on the floor of Parliament rest with the Speaker, as any MP desiring to Speak can only do so after catching the Speaker’s eye [S.O. 86(1)]. The Speaker is the sole judge of the admissibility of questions to Ministers [SO 66(1)], motions or statements; can declare a seat of an MP vacant (SO 18); can pronounce on what documents should/should not be produced before Parliament on the grounds of national security [SO 26(2)]; has the power to issue warrant of arrest (SO 105); and can order an MP to be thrown out of Parliament even with the use of force (SO 100). The decision to grant an MP the opportunity to make a complaint of contempt of Parliament and/or the decision to refer such issues to the Privileges Committee, all rests with the Speaker.

All the above powers as relates to the Speaker, shall be equally excised by any of the Deputy Speakers whenever they take the chair upon the request of the Speaker during the temporary or continued absence of the Speaker as provided for in S.O. 13. It is true also that the Speaker has no vote in all issues to be decided in the House, and any of his Deputies “shall not retain his original vote while presiding” as per S.0. 109(3).

The Speaker chairs the Parliamentary Service Board (which oversees the administrative wing of Parliament), the Standing Orders Committee and the Committee of Selection, while the 1^st Deputy Speaker is required to chair the Privileges and Appointments Committees. The 2^nd Deputy Speaker on his part, will chair the Committee of Members Holding Office of Profit, which advices the Speaker on MPs who wish to be permitted to hold additional private or public offices of profit or emolument.

Four years of Majority-Minority Drama

Many have proffered that the most dramatic aspect of the work of this 8^th Parliament will be voting in the Legislature. Although some voting times will produce many unnerving moments, it is instructive to note that voting in Parliament is carefully provided for in both the Constitution and Standing Orders. Article 104 explains that except otherwise provided by the 1992 Constitution, “matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all members of Parliament present.” This when read together with Article 102 which pegs the quorum for Parliamentary Sittings at one-third of all MPs apart from the person presiding, means that 92 MPs must be present for any sitting of the House to start and for discussions to go on. However, if a matter will have to be voted on, there must be 148 MPs available to vote.  This in my opinion is one reason why we must guard against walkouts by caucuses in this new Parliament, considering the numbers.

Most times, decisions in Parliament are reached via voice votes, where you hear the Speaker say, “those in favour say Aye and those against say No” then he goes ahead to declare that “the Ayes have it and the issue is carried.” The Speaker can replace these voice votes with headcounts as per S.O. 113(1) or any MP may also call for headcount or division if the opinion of the Speaker on the voice vote is challenged. The few times that secret ballots are expected in the House are “where Parliament is considering a bill to amend the Constitution, or where the voting is in relation to the election or removal of any person under this Constitution or under any other law” – Article 104(4). And it is for this that the election of the Speaker last week was mandatorily a case of secret ballot. Other secret ballot scenarios include voting on motions to remove the President and/or Vice President (which requires two-third of all MPs voting for the motion – Article 69); removal of Speaker or Deputy Speakers (which require three-quarters of all MPs voting in favour of the motion – Article 95(2d); voting on Ministers-designate or other public officials whose nominations have not received recommendation for approval by consensus at the Appointments Committee [SO 172(4)]; and vote of censure on Ministers (which requires two-third of all MPs voting in favour – Article 82).

Members of Parliament are free to abstain from voting in a headcount, secret ballot or voice votes, and the Constitution is clear in Article 104(3) that “where the votes on any motion are equal it shall be taken to be lost.” So yes, it is true what people say that with both Deputy Speakers coming from the same Caucus in this 8^th Parliament, anytime there is a full house for a crucial vote with Speaker Bagbin absent leaving any of his two deputies in the Chair, the ruling party will lose the vote if both sides whip their people to vote strictly along party lines, as such situations will most likely end in a tie.

Aside voting in the House, other issues that can cause intense drama over this four-year tenure of the 8^th Parliament is how well and fairly the Speaker handles matters relating to his power to admit motions, Statements, and Questions filed by MPs. In the past, these issues have pumped out bad blood between Speakers and MPs leading to all manner of chaotic scenes. For example, with S.O. 66(1) declaring that “Mr. Speaker shall be the sole judge of the admissibility of a Question” guided by the 10 conditions of admissibility of Questions provided for in S.O. 67(1), an MP or any side of the House that feels that the Speakership is denying them the opportunity to ask critical questions of Ministers of State or other Members of the House, may resort to such antics that can make for hostage drama in the House. Another case in point is that, whereas MPs are allowed to explain matters of personal nature or make a statement of urgent public importance in accordance with S.O. 72 which provides for Statements by Members, that right is however subject to “the leave of the Speaker” who must first receive the terms of such proposed Statements. Speakers who have not applied this mandate fairly, have often caused problems in the House.

Part 14 of the Standing Orders which spells out the Rules of Debate in Parliament, including how issues of time and manner of speaking in the House must be dealt with; interruption of debates; content of speeches presented in the House; the case of motions that a Member be no longer heard; and closure of debates, are to be guided by the Speaker. It is my firm hope that the combined experiences of especially the Speaker and 1^st Deputy Speaker, will help navigate these debate times cleverly to avoid rancour. This is because the first Sitting Day of this Parliament showed that MPs on either side will be approaching debates in the House with very cunning strategies which will always require the firm application of the rules and Orders of Parliament.

Ghana Must Win!

With all these said, Ghana and its good people must be all the better for whatever happens in this 8^th Parliament. I am particularly excited about the fact that for a Parliament that has often done well in its law-making functions but has performed below average in its oversight functions, the arrangement of this 8^th Parliament will allow for greater parliamentary oversight of the Executive branch. I am also hopeful that the unique situation of having a Speaker who is not a member of the ruling party will help Parliament to exert its rightful place as a co-equal branch of government and not an appendage of the Executive which has been the case over the years.

Another area of excitement for me, which all of us as a people must monitor with great diligence how it plays out, is what may be the erasure of that insulting parliamentary phrase of “let the Minority have it’s say and the Majority have it’s way always.” Ghana has voted for a legislature that must work together with equal rights and responsibilities entrusted to the two major political parties that have representation in the Chamber. We can no longer accept the blame game of the Minority’s cacophonous complaints of being always muscled out, and the Majority in Parliament can also not sit aloof.

Yes, our Parliament is a master of its own rules as S.O. 2 and 3 frees it from the claws of restriction when it states that “…these Orders shall not restrict the mode in which Parliament exercises and upholds its powers, privileges and immunities. Notwithstanding anything in these Orders, any order or part of an order may be suspended without notice with the consent of Mr. Speaker and the majority of Members present.” It is my hope that whenever MPs from either side are minded to quote this ‘master of its own rules’ mantra to us, they will do so in the collective interest of the Ghanaian people and not when it favours their interest only.

You can count on me and my team at Parliamentary Network Africa to be citizens and not spectators during the life of this 8^th Parliament, as we play our civil society parliamentary monitoring role of watching the watchman diligently.

By Sammy Obeng,

The Writer, is Executive Director at Parliamentary Network Africa (PNAfrica) – a civil society parliamentary monitoring organisation based in Accra and working across Africa to promote open parliaments. You can follow him on Twitter @SammyObeng for future editions of these feature series dubbed ‘Hansard of a Street Parliamentarian’ or connect with him via email – [email protected]