Sammy Obeng writes: A Hung Parliament, the Drama, and Mr. Speaker

The General Elections in December 2020 has left many Ghanaians and watchers of our democracy imagining how our first ever hung parliament, since the coming into force of the 4^th Republic, will turn out. The official results put out by the Electoral Commission (EC) has the ruling New Patriotic Party (NPP) and the opposition National Democratic Congress (NDC) securing 137 seats apiece in Parliament, with one Independent Member of Parliament (MP) completing the number for our 275-member unicameral Chamber.

Contrary to spins put to this by various political actors, this situation makes for the classic definition of a hung parliament, which takes roots from the Westminster Parliamentary Practice in situations “when no single political party wins a majority in Parliament.” And this is exactly what we have in Ghana today, considering also that we pride ourselves as a country that practices a hybrid parliamentary system which includes the Westminster system.

Over the last few days, many people have reached out to me and my colleagues at Parliamentary Network Africa (PNAfrica) with various questions bothering on the dynamics of the new Parliament. As part of my feature series ‘Hansard of a Street Parliamentarian’, I provide in this first of a two-part article, some insights to address the question of how the majority and minority caucuses will be determined; implications of the current situation on the election of Speaker and Deputy Speakers of Parliament; and will later continue with why the next Speaker and his deputies must exude some special attributes, as I also attempt to look into the crystal ball of drama and intrigue that will mark the four years journey of this 8^th Parliament both in the Chamber and at Committees.

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This new Parliament, more than the seven previous ones, will see the 1992 Constitution and the Standing Order of Parliament being used by MPs from both sides as their arsenal, as they steer these unchartered waters. Like Parliaments the world over, the Standing Orders are a set of written rules under which the House regulates its proceedings. Whereas the Parliament of Ghana has been in the process of revising the current Standing Orders which have been in force since November 2000, the 8^th Parliament will still commence before the revised version is approved, hence the analyses in this article are based on the provisions of the Standing Orders presently in force.

Determining the Majority and Minority Caucuses

Ghana’s Parliament, by its practice, recognises MPs under two main categories – Majority and Minority. To this end, all MPs, irrespective of the political parties that brought them to Parliament or in the case of Independent MPs, must caucus with either the Majority or Minority side of the House. Although this is not expressly stated in the Constitution or Standing Orders, it has been a long-observed practice which has played out in all the previous Parliaments under this dispensation, and the case of a hung parliament will not change it. The titles given to the two Leaders – Majority Leader and Minority Leader – which have been defined by the Standing Orders, helps us to attempt a definition for Majority and Minority caucuses in Parliament.

The Standing Orders defines the Majority Leader as “a Member of Parliament designated by the Party or Parties holding majority of seats in the House as their recognised Leader in the House.” I argue therefore that the Majority in Parliament can be defined as “the Party or Parties holding majority of seats in the House” where “party or parties” in this case could mean MPs who stood on the ticket of a registered political party in the elections or an Independent MP whose name and symbol as appeared on the ballot makes him/her a party in the composition of Parliament. On the other hand, Minority Leader is defined by the Standing Orders as “a Member of Parliament designated by the Party having the largest numerical strength in Parliament other than the Party that has formed the Government, as the recognised Leader of all the Minority groups in the House.” Again, I argue that the definition of Minority in Parliament is embedded in here as “the Party having the largest numerical strength in Parliament other than the Party that has formed the Government.”

Although I find the Standing Orders definition of especially the Minority Leader to be problematic, it is what we currently have in the Orders which should be adhered to once no changes have been effected to it. By this definition, it means even if the NDC succeeds in getting the Courts to rule in their favour to flip one or more of the seats currently held by the NPP, they still remain Minority because the NPP is the party that forms the government. Again, if the new Guan constituency is created and elections are held in there, which ceteris paribus, may be won by the NDC to bring the numbers of both caucuses to 138 apiece, the Standing Order definitions as it stands now will continue to distinguish the Majority from the Minority. This is perhaps one of the urgent anomalies of the Standing Orders our Parliament may want to address with dispatch, and I learn the proposed standing orders seeks to better clarify this.

With 137 MPs on the tickets of both the NPP and NDC, it is true that the side the Independent MP decides to caucus with will meet the criteria to form the Majority side, albeit a very slim majority. It is no secret that the only Independent MP-elect, Mr. Andrew Asiamah Amoako who represents the people of Fomena, has publicly stated that he will sit with the NPP side in Parliament. This does not mean he has joined the NPP party, as he more than any other person knows that he dare not do so between now and January 7, 2025, or else he will lose his seat in Parliament in accordance with Article 97 of the Constitution. Many have misunderstood this obligation on the part of the Independent MP to associate with a caucus to mean that he would have joined that Political Party. This assertion is wrong, as a parliamentary caucus is significantly different from a Political Party. Note that all MPs produced by the likes of the Convention People’s Party (CPP), the People’s National Convention (PNC) and the Independent MPs in all our previous Parliaments, have had to caucus with either the Majority or Minority sides of the House without losing their identities with their respective political parties or their independent status. In fact, ones membership with a caucus does not obligate him/her to vote in line with the stance of the political party that has the most members in that caucus. So although the Fomena MP will sit with the ‘NPP side’ in Parliament, he is free to vote independently on any matter as he wills, although the Chief Whip of that caucus and his deputies will do everything within their power to ‘whip him in line’ when a crucial vote is to be taken in Parliament.

So the NPP side, which we learn will still be led by Mr. Osei Kyei-Mensah-Bonsu with Mr. Afenyo-Markin and Mr. Annoh-Dompreh as Deputy Leader and Chief Whip respectively, will constitute the Majority side, while the Minority Side will be filled by the NDC, which I project will still be led by Mr. Haruna Iddrisu with some or all of his team from the previous front bench featuring.

Electing a Speaker and Deputy Speakers

It is my considered opinion that just as all Ghanaian who are eligible to vote are the once that selects the President and Vice President of the land, the same can be said for the election of Speaker, albeit in a different form. Eligible voters for election of Speaker are MPs that have been elected to represent the people; hence they exercise that right on behalf of their Constituents. That is why we say “when Parliament meets, the whole of Ghana has met.” It is for this reason I find it unfortunate that citizens within the now-to-be-created Guan Constituency will once again be denied the opportunity to make their voices heard in who becomes Speaker of Parliament. This is however a matter for another day.

The drama of the 8^th Parliament will start as early as 12:01am on 7^th January 2021, when MPs-elect will be expected to mass up in the Chamber to select a new Speaker and Deputy Speakers. Since 1993, the seven previous Speaker elections have been smooth except on 7^th January 2005 when the 4^th Parliament had to wait almost 10 hours before they could settle in Chamber to vote between Rt. Hon. Peter Ala Adjetey and Rt. Hon. Ebenezer Sekyi Hughes. I remember that day as if it was yesterday because that was my first real encounter with parliamentary drama as I kept glued to my father’s TV set all through the proceedings. I must say that the events of that day fifteen year ago, contributed in more ways than one to me finding myself leading a parliamentary monitoring civil society organisation today. But that’s also a story for another day.

The Constitution of Ghana clearly instructs in Article 95(3) that “no business shall be transacted in Parliament other than an election to the office of Speaker, at any time when the office of Speaker is vacant.” This is why the very first activity that must happen with any new Parliament is to elect a Speaker even before MPs-elect are sworn in. The Constitution in Article 95(1) also instructs on who qualifies to hold office as Speaker, stating that the person must be an MP or one who qualifies to be elected as MP.  This also means that a Ghanaian who is not a lawyer can be elected Speaker, contrary to the thinking of some people that only lawyers can be Speakers of Parliament.

On a good day, the process of electing a Speaker is as smooth as this: once a quorum of one-third of all MPs (92 MPs) is reached, the Clerk to Parliament sits in as chairman to conduct the election of Speaker. This year, a new Clerk, Mr. Cyril Nsiah, who was confirmed last year as the 9^th Clerk to Parliament upon the retirement of his predecessor, will request nomination(s) from MPs-elect through a motion “that such person do take the Chair of this House as Speaker.” The mover of the motion must show that the one being nominated has given his/her consent to be nominated Speaker, and then a seconder to the motion is also made to speak without debate. If only one person is nominated, s/he shall will be declared elected and made to take the seat as Speaker without any vote.

When two people are nominated, as was the case in 2005 when the ruling NPP Majority, led by Mr Felix Owusu-Adjapong, nominated Mr. Sekyi Hughes (who won by 134 to 96 in the then 230-member Parliament), while the NDC Minority, led by Mr. Alban Bagbin, nominated Rt. Hon. Ala Adjetey (Speaker from 2001 to 2005), the winner is determined as the one who receives the greater number of votes through a secret ballot. When there is a tie between two candidates, another secret ballot shall be held. One can therefore imagine the stalemate that will prevail if we have an even-numbered attendance to Parliament and both caucuses have the same number of MPs. Does the injunction challenge on Hohoe’s Amewu ring a bell now?

Provisions have been made for instances where more than two people are nominated. In that case, the candidate who receives the greatest number of votes in the secret ballot shall be declared as Speaker provided that s/he has received a majority of the votes of MPs present. If no candidate receives such majority, the candidate with the least votes is withdrawn from the race and voting is conducted again until such a time that the top candidate receives majority of the votes.

As soon as possible after this election, the new Speaker will be conducted into the Chamber to take the Oath of Allegiance and the Speaker’s Oath.  S/he then goes on to swear in the MPs-elect and the business of the 8^th Parliament starts in earnest.

One of those early businesses to be conducted in the House is the election of two Deputy Speakers in accordance with Article 96 of the Constitution, which further directs that the Deputy Speakers must be sitting MPs and “both of whom shall not be members of the same political party.” The same procedure described above for the election of the substantive Speaker, will be followed in electing the Deputy Speakers, except that this time, the Speaker will be chairing the proceedings and not the Clerk to Parliament.

There have been talks in town about how the NPP will seek to ‘punish’ the NDC by taking away their ability to have one of the Deputy Speakers coming from their side if they (the NDC) go ahead to nominate someone for the substantive Speaker’s role to challenge Rt. Hon. Prof. Aaron Mike Oquaye who we learn will be nominated for a second term as Speaker. This argument is hinged on what happened on that same 2005 Speaker election day I referred to earlier in this article, in which we saw the NPP use its numerical abilities to get Mr. Freddie Blay (a CPP MP then) elected as 1^st Deputy Speaker and had their own Malik Yakubu Al-Hassan go ahead to challenge and beat the NDC’s Kenneth Dzirasah to become the 2^nd Deputy Speaker. However, the difference this time around is that, the NPP will necessarily have to nominate the Independent MP for Fomena as a Deputy Speaker if they seek to engage in this ‘punishment’ agenda. It is my considered opinion that it would be the worst mistake the NPP can ever commit in our parliamentary history if they ever attempted that. Aside the fact that it will deepen the cracks in the 8^th Parliament, one other reason I argue that the so-called ‘punishment agenda’ will be a terrible mistake is that, whereas all three Speakers/Deputy Speakers will be coming from the ‘NPP camp’ they will automatically loose one vote anytime any of the Deputy Speakers chairs proceedings in the absence of the Speaker due to the provisions of S.O. 109(3) which states that “a Deputy Speaker or any other Member presiding shall not retain his original vote while presiding.” Remember that the Speaker of Parliament himself does not have a vote in any matter, even if a matter ends up with equal votes. In fact, Article 104(2&3) clearly states that “the Speaker shall have neither an original nor casting vote” and that “where a vote on any motion are equal it shall be taken to be lost.”

With the current composition of the 8^th Parliament, I dare say that it will be almost impossible for any changes to be made to the position of Speaker and Deputy Speakers once they have been elected on 7^th January, even if the court cases challenging some of the parliamentary seats as well as the presidential election petition goes in a particular direction. This is because Article 95(2)(d) of the Constitution requires at least three-quarters of all Members (207 MPs) to be able to pass a resolution to remove an elected Speaker or Deputy Speaker from office. This however does not rule out instances such as a Speaker or Deputy Speaker resigning, or putting himself/herself in a position that disqualifies him/her from being able to hold office as an MP.

What’s Next…

Oh yes, the drama of the 8^th Parliament will not only end with the election of Speaker and Deputies as well as caucus determination on January 7, as we are likely to see drama all the way through. After the Speaker and Deputy Speaker elections and swearing in of MPs-elect, the House will suspend sitting until later in the day when the President-elect come before the House to be sworn into office in accordance with Article 57(3). Some have asked why this event is being moved from the Independence Square, which has hosted these events in recent past, to the precincts of Parliament. It is important to note that anytime the swearing-in took place at the Independence Square, it goes on because that venue is temporarily designated as ‘Parliament House.’ So you can say that this year’s event is coming home, rather than being held at a rented venue.

In the second part of my article, which will be published after the election of Speaker and Deputies, we will explore questions of how the newly elected Speaker/Deputies will impact on the smooth conduct of business in the House; the issues of voting in Parliament and the instances that will require voice votes, head counts and secret ballots, considering the slim majority. We will also anticipate some examples of never-ending four years of drama, including how some nominees for ministerial position may be affected and/or rejected; how the Committees of Parliament will be constituted; and the general effect of the high attrition rate on the selection of leaders for the various committees.

Some security analysts have expressed the need to ensure maximum personal security for all MPs-elect before, during and after 7^th January, and I cannot agree with them more. Remember that the dynamics of Speakership and so on, can be greatly affected if just one MP fails to show up in Parliament on the day. For those considering the idea of causing trouble on the precinct of Parliament and initiating moves that will hinder MPs from performing their legitimate functions, you must be minded that the Constitution and Standing Orders of Parliament can deal with you drastically on the bases of Contempt of Parliament.

By Sammy Obeng

The Writer, Sammy Obeng, 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 or connect via email; [email protected]