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Illegal Approval Of An Illegally Rejected Budget; Another Nullity Or Legality?

Feature Article Illegal Approval Of An Illegally Rejected Budget; Another Nullity Or Legality?
DEC 4, 2021 LISTEN

Friday, 26th November 2021 was a dramatic day in Parliament when the Majority group staged a strategic walk-out of the house on the grounds of frivolous claim of the presence of General Asiedu Nketia in the public gallery of Parliament. I call it frivolous because the presence of General Mosquito in the public gallery could not be equated to the presence of Hon. Ken Ofori-Atta in the chamber when voice votes were to be taken. I call the majority walk-out strategic because they already did not have the number and the minority was bent of rejecting the budget. The majority needed to buy time to have all their 138 members present so they could have a vote. So like, ‘a di pun bori wana yili, ka bi ti dii timo Tuunaayili’, they took advantage to walk out believing that the 137 members could not take any decision bearing Article 104(1) in mind.

𝐃𝐒𝐝 the minority parliament formed a quorum to vote?

Based on Article 102 which provides for the presence of one-third of all members before proceedings could proceed, the general quorum was duly met. Speaker Bagbin caused headcount to be done and was satisfied that the 137 NDC MPs met the quorum of one-third which translates to 91.67 (rounded up as 92 members). Proceedings accordingly proceeded.

The biggest and most controversial part of the decision was whether the NDC solely constituted 137 MPs constituted quorum for voting as required under Article 104(1) of the Constitution and Order 109 of the Standing Orders of Parliament. Some argued that once the NPP MPs were already present, any walk-out was immaterial. I disagree. Why? After the walk-out, Speaker Bagbin himself caused headcount of the remaining MPs to be sure that quorum was met. If physical presence was not required, the Speaker would have just asked for the records to be checked to determine how many MPs were present at the start of proceedings instead of asking for headcount.

Despite not meeting the quorum for voting, the Speaker led the 137 NDC MPs to vote to reject the 2022 budget with 137 votes against 0 vote. But that violation and unconstitutionality will not go unchallenged. Osei Kyei Mensah Bonsu, majority leader served notice of the illegality and their intention to reverse that decision on Tuesday, 30th November 2021.

Majority group parliament approves rejected budget

On Tuesday, 30th November, 2021, the 137 minority group strategically did not show up in Parliament at all. Since Speaker Bagbin is absent, if all 137 NDC MPs do not show up, one of the 138 NPP MPs will act as the Speaker and lose his ORIGINAL vote, leaving 137 MPs to vote to take a decision in a similar manner as that of the NDC last Friday. This was possibly intended to lead to the battle of equalization of illegalities. If 137 NDC MPs voted to reject a budget and it was a nullity, then the vote of 137 MPs to reverse the rejection and approve the budget will also be a nullity as same number voted in both instances.

With the absence of the NDC MPs, only the 138 MPs of the majority group were present in the house. MP for Bekwai Constituency, Hon. Joe Osei-Owusu (Joe Wise), the 1st Deputy Speaker presided over proceedings. In determining the quorum which must be at least half (138 MPs), Speaker Joe Wise counted himself in addition to the 137 MPs making 138 for a quorum for decision to be taken. Motion for reversal of the decision to reject the budget was moved and he ruled to reverse the decision. Motion for approval of the rejected budget was then moved and voice votes of 137 against 0 votes gave birth to approval of the rejected budget.

Another illegality and nullity?

Whereas the majority says that the right thing has now been done because they had the quorum of 138 to vote, the minority described that decision as also an illegality and a nullity if we are to agree that the quorum required for voting 137. By virtue of Order 109 (2) and (3), the Presiding Speaker (Joe Wise) lost his original vote. He could not have participated in the voting, and he actually did not vote. Else, that could have amounted to an offence under Article 102, Order 112 and Section 183B of the Criminal Offences Act, 1960 (Act 29) and could land him to a prison term of not more than 30days.

The nullity or legality of the sole majority Parliament to approve the rejected budget hinges on quorum which deals with regular quorum for conducting parliamentary business and special quorum for voting. Also important in this controversy is what NUMBER constitute quorum in the case of the present parliament of 275 members. I must admit that Article 102, 104, 95, 96 and Order 109 read together sounds so controversial that any sound interpretation given to them is still debatable. Let me try something.

Quorum is the minimum number of members who must be present in any meeting before proceeding and decision of the meeting can be valid. In the case of our parliament, the quorum for ordinary business is ‘at least one-third’ as provided in Article 102 and Order 48(1) of the Standing Orders. Article 102 reads ‘A quorum of Parliament, APART FROM THE PERSON PRESIDING, shall be one-third of all the members of Parliament. Order 48 (1) reads ‘The presence of at least one-third of all the Members of Parliament BESIDES THE PERSON PRESIDING shall be necessary to constitute a quorum of the House.’ [Emphasis mine]. One-third of 275 is 91.667. Unfortunately, we can’t have a 0.67 human being. The only rational, logical and reasonable conclusion will be to have 92 members. Thus 92 or more members present in Parliament is enough to conduct the regular business of parliament.

In respect of posing of questions and voting, the quorum is at least half of all members PRESENT and VOTING. Hence, whenever the number of members PRESENT and VOTING is up to half (137.5) or more in the house, voting can be done. We can’t have 137.5 human beings. So the only option left for us to start the count from 138 since that satisfies the requirement of ‘at least half’ which includes any number of members between 137.5 and 275. So we can have 138, 139, 140…, 275 and that will be okay for voting to proceed. The 138 was affirmed by Speaker Bagbin in the proceeding of 22nd December 2015 when he was emphatic that the quorum is 138.

PRESENT AND VOTING

Did we have up to 138 members present when the 138 majority led parliament approved the budget? For the purpose of this discussion and precedence, ‘PRESENCE’ means the member is physically present in the chamber (floor) of Parliament at the material time. Did the presiding Speaker, Joe Wise who is an MP of Bekwai Constituency have to count himself in determining the quorum for voting? If he counted himself in determining the quorum, will he have to vote?

Whereas the Constitution and standing orders are clear in excluding the Speaker (whether substantive or acting) when reckoning the number that should constitute the quorum for regular business which is one-third, it is loudly silent on whether the Speaker who is an MP presiding should be counted when determining the quorum for voting which is at least half of members present and voting. Both Article 102 and Order 48 (1) are clear that in defining the quorum of Parliament, the Speaker should not be counted. Article 102 says ‘A quorum of Parliament, APART FROM THE PERSON PRESIDING, shall be one-third of all the members...’ And Order 48 (1) reads ‘The presence of at least one-third of all the members… BESIDES THE PERSON PRESIDING shall be necessary to constitute a quorum of the House.’ Can we by inference say that in counting the 138 required for voting, the ‘person presiding’ should not be counted? If that could be so, why did the framers of the law explicitly exclude the Speaker in quorum for ordinary business of one-third and remained silent in the quorum for voting?

Constitutional interpretation theorists often specify that when interpreting a statute, the ordinary meaning of the words shall be combined with the intention of the framers to determine the exact import of the text of the law. The ordinary meaning of the words does not help us in determining whether or not we should count the person presiding in determining the quorum. Reading the intention of the framers is a difficult task, but I am tempted to believe that if the framers intended not to include the person presiding in determining the quorum for voting they would have stated so at least in the Standing Orders. Unfortunately, that is not so.

Another clue that may help us to determine whether the person presiding (Joe Wise) should be counted or not counted in determining the quorum of 138 required for voting is Article 104(1) and Order 109. Article 104(1) reads ‘Except otherwise provided in the Constitution, πŒπ€π“π“π„π‘π’ 𝐈𝐍 ππ€π‘π‹πˆπ€πŒπ„ππ“ shall be determined by the π•πŽπ“π„π’ πŽπ… πŒπ€π‰πŽπ‘πˆπ“π˜ (more than half) of members 𝐏𝐑𝐄𝐒𝐄𝐍𝐓 𝐚𝐧𝐝 π•πŽπ“πˆππ†, with 𝐀𝐓 𝐋𝐄𝐀𝐒𝐓 𝐇𝐀𝐋𝐅 𝐨𝐟 𝐀𝐋𝐋 members of Parliament present.’ The conjunction ‘AND’ joined two operative words – Present and Voting. If we break down the sentence, it will read as ‘…matters in parliament shall be determined by votes of majority of members present’ and ‘…matters in parliament shall be determined by votes of majority of members voting…’ It thus, appears that the number of members required for voting is not just the presence of 138 members, but the voting of 138 members present, out of which, majority decision will carry the day. By implication, votes by 137 members only will not satisfy the requirement of PRESENT and VOTING.

When NDC led 137 members voted to reject the budget, I took the position that the votes ought to come from 138 members out of which majority (70) YES votes will validly approve or 70 NO votes will validly reject the budget. I took the view that if we say that only 138 should be present in Parliament and the total votes need not come from majority (at least 138), then we can have 138 present and only 1 person will vote with the remaining 137 abstaining and that single vote by the single member will be binding on all the 275 members and Ghana. Can you imagine only 1 person out of a total of 275 members taking a decision to be binding on all the 275? That is absurd!

Order 109(2) states that ‘Mr. Speaker shall HAVE NEITHER AN ORIGINAL NOR A CASTING VOTE and if upon any Question before the House the VOTES ARE EQUALLY DIVIDED THE MOTION SHALL BE LOST. Order 109(3) reinforces that ‘A Deputy Speaker or any other Member presiding shall not retain his original vote while presiding. ’Now, the difference between Order 109(2) and 109(3) is that unlike the Speaker who DOES NOT have an original or casting vote, any other member presiding loses ONLY his original vote. Again, the Standing Order is silent as to whether a member presiding (other than the Speaker) can have a casting vote or not. But why the silence? If the Standing Orders wanted to disable any member presiding (other than Mr. Speaker) from having both ORIGINAL and CASTING vote, it would have stated it expressly. Any member (other than Mr. Speaker) presiding does not cease to be a member of parliament. She/he does not cease to represent his constituency. There is this logical argument that, the constitution left the ‘casting vote’ for such a member presiding so that when there is a tie, he could exercise his right of CASTING VOTE (not original vote) for and on behalf of his constituents to break the tie. But that may not also be challenged because Order 109(2) says that when ‘…the votes are equally divided, the motion shall be lost’.

However, if you analyse Rule 2 and 3 of Order 109, it appears that unlike Rule 2, where the law is clear that ‘Mr. Speaker shall have neither ORIGINAL nor CASTING vote’ and proceed to say that when the votes are equally divided between YES and NO, ‘THE MOTION SHALL BE LOST’, Rule 3 is not only silent on the CASTING vote of the Deputy Speaker or any other member presiding, but it is also silent as to whether the motion shall be lost when the votes are equally divided in case of a member presiding. This gives room for people to think that the motion is lost upon equal division of the votes ONLY in the case of substantive Speaker presiding, but NOT in the case of any other member presiding. That could be logically sound because unlike Mr. Speaker who is not an MP and does not represent any constituency who have the right to be represented for vote, any other member presiding is still an MP representing a constituency who has the right to participate in decision making. The Constitution does not explicitly disable any member presiding from voting (as in casting vote) or being counted.

Again, if your analyse Article 95 and 96 conjointly with Part Two of the Standing Orders about the Speaker and Deputy Speakers you will realise a clear distinction between Speaker and Deputy Speakers. The prescription of oath of office of Speaker applies to ONLY the Speaker and not the deputies. The prescribed conditions of service of the Speaker in Article 95 is absent for the Deputies in Article 96. To this end, I find nothing wrong with Acting Speaker Joe Osei Owusu being counted to form a quorum of 138. However, the total votes ought to have been at least half (138) to satisfy the quorum. Anything short of this, rendered the approval of the budget a legal incongruity and another round of legal challenge in an appropriate forum. Despite this, voting by the acting speaker would have also led to another legal challenge because there was no tie for him to exercise a casting vote. Are we in constitutional crisis? Should the Supreme Court intervene? Will the Parliament which is the master of its own laws provide a final remedy?

Some have argued that once a Speaker is like a referee, he cannot partake in any voting whether he is the substantive Speaker or the Deputy Speaker (MP) acting. It is argued that you can’t be a referee and a player at the same time. I disagree. If you have a football match that permits one of the players from one side to be made a referee, then he should equally be permitted to play when so ever required. No legitimate MP (voter) and his constituents should be denied their right to partake in decision making by virtue of a temporary privilege he enjoys. The Chairperson of the Electoral Commission is a referee of our elections, yet she is allowed to vote as a Constitutional right. She could have been denied the right to vote because she may be bias towards the party or candidate he voted for. So I find two illegalities been committed in the law making chamber.

One thing about illegality is that once it is committed, and no one challenges it and takes legal steps to rectify it, that illegality stands as if it were legal. So despite the ranting of the majority about the minority-led parliament’s decision to reject the budget on 26th November 2021, if they had not taken steps rectify it, that decision would have stood. The legal arguments that the 138 majority-led Parliament’s decision to rescind the rejection and subsequent approval of the budget on 30th November 2021 is also a nullity does not change anything unless and until legal steps are taken to rectify the supposed second illegality.

Legal strategy backfired

The minority’s legal strategy was to absent all their 137 members from Parliament on 30th November 2021 so that when 1 out of the 138 majority MPs come to Parliament and one person among them presides, he will lose his vote and the 137 will not form quorum to overturn their decision and if they do, it will also be an illegality. The rules are clear that when the votes are equally divided, the motion shall be deemed lost. So if NDC had come to parliament we would have had 275 MPs with one presiding, the votes would have been 137 against 137 and the motion would have been lost against the majority. Unfortunately, their legal strategy was a flop. The explanation that if they had come the Speaker would not have given them fair hearing has been defeated by their stand on 1st December 2021 when they appeared before the same Speaker to challenge his decision and he heard them. It appeared the legal strategy of the minority backfired. The strategy of the majority to runaway from their own budget earlier worked well for them, but the drama continuous.

That approval of the budget statement is not the end of the approval process. The Appropriation Act still have to be approved by the House. The e-levy cannot be implemented unless a Bill is brought to parliament and passed into law before it can be implemented. The minority can still push for the e-levy to be reduced to not more than 0.5%. The Agyapa Royalties deal can still be rejected.

NB: One thing that is for sure is that both the minority and the majority are doing their politics clouded in the name of the national interest. We choose and pick based on our interest. No matter what we do, no matter our interest or political colour, the killer e-levy shall not be discriminately implemented. It shall be paid by both NPP and NDC. We are in this hot soup together. Dear Nana Addo Dankwa Akuffo-Addo, we beg you. Please, reduced the e-levy to 0.5%!

Salaam! Unlearned voice from Sankarayili, capital of the Dagbon Kingdom!

Abdulai Yakubu

3rd December, 2021

Tel: 024-042-3100

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