EXPLAINER: Why Ghana’s Parliament and Supreme Court clashed over Constitutional powers

The country’s Supreme Court and Parliament have ‘locked horns’ over the ruling of the Speaker of Parliament Alban Bagbin following a motion brought before the House by the minority side.

How it started

Following a petition from the former minority Leader Haruna Iddrisu citing Article 97 (1) (g) of the 1992 Constitution of Ghana, the Speaker ruled the seats of four members of parliament (MP) vacant.

The MPs were Cynthia Mamle Morrison, MP for Agona West in the Central Region, Andrew Asiamah Amoako, MP for Fomena in the Ashanti Region, Kwadwo Asante, MP for Suhum in the Eastern Region, MP Peter Yaw Kwakye Ackah, MP for Amenfi Central in the Western Region.

Iddrisu argued that the MPs who had either declared intentions to go independent or leave their party had forfeited their positions by doing so.

What Article 97 says

Article 97 (1) of the Constitution says,

(1) A member of Parliament shall vacate his seat in Parliament—

(a) upon a dissolution of Parliament; or

(b) if he is elected as Speaker of Parliament; or

(c) if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet; or

(d) if he is expelled from Parliament after having been found guilty of contempt of Parliament by a committee of Parliament; or

(e) if any circumstances arise such that, if he were not a member of Parliament, would cause him to be disqualified or ineligible for election, under article 94 of this Constitution; or

(f) if he resigns from office as a member of Parliament by writing under his hand addressed to the Speaker; or

(g) if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member; or

(h) if he was elected a member of Parliament as an independent candidate and joins a political party.

Majority side reacts

The Speaker’s ruling briefly shifted the balance of power in Parliament, making the opposition National Democratic Congress (NDC) which was on the minority side of parliament the Majority.

 Before declaring the seats vacant, the New Patriotic Party (NPP) side of the House had 138 seats, while the NDC had 137. With the order, NPP got short of 4 seats.

However, the ruling was challenged by Majority Leader and member of the incumbent New Patriotic Party (NPP) Alexander Afenyo-Markin through a suit at the Supreme Court.

He filed an injunction seeking an order to stay the execution of the Speaker's order, leading to a temporary order from the court on October 18.

Supreme Court’s ruling and Speaker of Parliament’s rebuttal

Following the suit, the Supreme Court ordered the four MPs to continue serving until the case is fully resolved.

Speaker Bagbin responded to the application through his lawyers, citing reasons the Supreme Court ought not to interfere. Among other things, he noted that the words used in article 97 (1) (g) and (h) of the Constitution are “clear, unambiguous and have no disputed meaning”.

He also cited Article 99 (1) to argue that the issue is not within the jurisdiction of the Supreme Court to oversee. 

According to him, the High Court is the appropriate authority to interpret matters regarding vacant parliamentary seats and the Supreme Court is only to be involved if the matter is referred to them by the High Court.

Parliament indefinitely suspended

Ghana’s Speaker of Parliament adjourned proceedings in the House indefinitely citing the lack of a quorum as the reason for the suspension.

Supreme Court’s final ruling

In a 5-member panel ruling on October 30, Chief Justice Gertrude Torkonoo who presided over the panel dismissed the claims that the Supreme Court lacked jurisdiction to hear the matter on the Speaker’s ruling.

Among the 8 grants presented before parliament based on which the ruling was made, was an argument that “the constitution and laws of Ghana provide no grant to allow the Speaker of Parliament, while presiding over parliament to be questioned by any court including the Supreme Court because of the doctrine of separation of powers”.

Chief Justice Torkonoo ruled that the application by the plaintiff who in this case was the Speaker of Parliament, lacked merits, citing Articles 2, 130 and 296 of the 1992 Constitution of Ghana.

According to her, the Supreme Court is empowered to have exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution.

She further noted that administrative procedures in parliament cannot override the legality of the Supreme Court.

Implications of Speaker’s ruling according to Supreme Court

Chief Justice Torkonoo also suggested that the Speaker of Parliament made his ruling despite his knowledge of the irreparable damage it could have on the constituencies represented by the said MPs and the legislators themselves.

Explaining the implications, she noted that the vacation of seats by the MPs meant that the constituents under these persons would remain without a parliamentary representative and a voice between October 18, 2024, and January 7, 2025, when the general elections are over and there can be room for a by-election.

According to her, it would also man that the MPs would have to forfeit any other government duties as well as their salaries, emoluments and other benefits within the period.

What Article 2 says

Article 2 of the 1992 provides that,

2 (1) A person who alleges that - (a) an enactment or anything contained in or done, under the authority of

that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in

contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration

to that effect.

(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such

orders and give such directions as it may consider appropriate for giving effect or enabling effect to be

given, to the declaration so made.

(3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this

article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.

(3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this

article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.

(4) Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this

article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice

President, constitute a ground for removal from office under this Constitution.

(5) A person convicted of a high crime under clause (4) of this article shall-

(a) be liable to imprisonment not exceeding ten years without the option of a fine; and

(b) not be eligible for election, or for appointment, to any public office for ten years beginning with the date of

the expiration of the term of imprisonment.

 Speaker of parliament hints at recall

The Speaker of Parliament, Alban Bagbin, has given indication that the House will be recalled in early November in response to a request by some members of Parliament.

Bagbin pledged commitment to the development of the democracy of the country during a meeting with a five-member delegation of the Council of State on October 30.