Feature: Understanding the Issues in The Supreme Court and The Speaker’s Impasse

This article examines the legal controversy surrounding the decision of Ghana’s Supreme Court to suspend Speaker of Parliament Alban Bagbin’s ruling, which declared four parliamentary seats vacant.

It is worthy of note that, The Speaker’s decision was based on Article 97(1)(g) and (h) of the 1992 Constitution of the Republic of Ghana. This provision of the constitution stipulates that a member of parliament shall vacate his seat if he switches political allegiance.

This decision of the speaker to apply the constitution in the performance of his duties is what has been challenged by Hon Afenyo Markins who at the point of the ruling of the Speaker was the Majority Leader of the House.

I must emphasize the fact that the consequence of the ruling may have triggered mixed reactions as it will not only affect the said members of parliament but will also alter the arrangement of parliament in terms of majority and minority in their respective sitting positions, as well as leadership, committee appointments, offices occupied by respective leaders of the house of parliament, loss of representation of the affected constituencies, among others.

It is this ruling of the speaker that the Hon. Member of Parliament and majority leader (before the ruling of the speaker) disagrees with. He believes that the speaker has misinterpreted the said provisions of the constitution in its application.

One may surely ask, under what authority is the Hon. MP in the Supreme Court? The 1992 constitution in Article 2(1)(a) and (b) gives him the Locus Standi to take action in court when an act or omission is deemed as inconsistent with any provisions of the constitution. Furthermore, Article 130 (1)(a) and (b) of the 1992 constitution gives the Supreme Court powers of enforcement and interpretation and to declare an action of any other authority or body of government or private entity as unlawful or ultra vires. I hope this submission also answers the question of the jurisdiction of the Supreme Court in their orders to parliament and admits the action of the MP.

According to His Lordship Justice  Kulendi (JSC) in the Adbullai vrs Attorney General (2022), [We wish to start by reminding ourselves of the dicta of an illustrious jurist, as follows: “…where it is alleged before the Supreme Court that any organ of Government or an institution is acting in violation of a provision of the Constitution, the Supreme Court is duty bound by articles 2(1) and 130(1) to exercise jurisdiction unless the Constitution has provided a specific remedy… no individual nor creature of the Constitution is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution is immune from judicial scrutiny if the constitutionality of such an action is challenged.”].

Further reading of the 1992 constitution in Article 2(2) gives power to the Supreme Court to give directions as it may consider appropriate for giving effect or enabling effect to be given to a declaration so made.

I wish to indicate also that, the application of the constitution may be done by various authorities in the performance of their legal duties but interpretation is solely the preserve of the Supreme Court. This implies that at any point in time when the application of the law becomes questionable to an individual, the Constitution encourages an action to be taken in the Supreme Court. This therefore defeats the question of precedence set by the Rt Hon Aaron Mike Oquaye, as espoused by some commentators on the matter.

As for the issue of parliament being a master of its own rules, the principle of separation of powers, and the political question doctrine, the Supreme Court’s position was clear in the Abdullai Vrs Attorney General 2022, where the court indicated:

“In exercising its interpretative and enforcement mandate, the Court has the power to adjudicate all and any allegations that any acts, omissions, and enactments are inconsistent with and in contravention of the Constitution without the exceptions tendered to be suggested on grounds of the doctrine of political question. This Court has predominantly, on a preponderance of the authorities, long held the view that the political question doctrine does not apply within our jurisdiction. In the case of NPP v. Attorney-General [1993-94] 2 GLR 35 (the 31st December case), this Court held on page 64 that “In any case, by Articles 1 and 2 of the Constitution, 1992, that doctrine cannot have any application to us here in Ghana. With us, issues of constitutional interpretation are justiciable only by the Supreme Court, and not by any other court: see particularly, Article 130 of the Constitution, 1992. The conclusion is inescapable, that in this country we have no doctrine of “political question” such as exists in the United States.” This was further eloquently espoused in Martin Alamisi Amidu v. President Kufour and the Attorney General (2001–2002) SCGLR 138”.

From the above, it is clear that Ghana) practices constitutional supremacy but not parliamentary supremacy as the USA. This goes to confirm the fact that, any decision of parliament is Justiciable and may be reversed by a competent court of jurisdiction if it does not conform to the dictates of the 1992 constitution.

Let me also indicate that, this position does not make the legislature subservient to the judiciary. I am rather of the view that the Constitution places the judiciary in a position to check the exercise of Executive and Legislative powers.

Other commentaries suggest that, since the judiciary cannot enforce the law within the precincts of parliament, the NDC caucus should go ahead and occupy the majority side as against the ruling of the Supreme Court. I hold a different opinion, as such as an act may amount to placing the speaker in a difficult position of the law. The speaker cannot be seen to disobey an order of the Supreme Court as that will amount to high crime in accordance with Article 2(4) of the 1992 constitution. One cannot overlook Article 2(2) in such considerations. This article empowers the Supreme Court to give such orders where necessary. Disobedience of such an order may therefore constitute an illegality by the speaker.

It is therefore expected that the speaker may reverse the House of Parliament to the status quo ante or may not preside at any meeting of parliament until his lawyers respond to the stay of execution notice to reverse the decision of the Supreme Court.

NOTE: These Are Submissions Made as A Student of Law Based on My Understanding of Material Read.

By PRINCE ADUKPO MENSAH

FACULTY OF LAW

WISCONSIN INT UNIVERSITY COLLEGE GHANA.