The Loopholes in Article 97(1) g and h & 112(6) of the Constitution

The Parliament of Ghana continues to witness unnecessary drama in its proceedings. The declaration of the four seats in Parliament vacant has engendered a great controversy that the Supreme Court of Ghana was called upon to intervene, and this is worsening the issue. The decision of the Speaker was premised on a motion by Dr. Cassiel Ato Forson for such a purpose.

The Speaker pointed out that the decision by the affected MPs to contest in the December elections as independent or on the ticket of a party different from the one on whose ticket they were originally elected, contravened Article 97(1) g and h of the 1992 Constitution. The Speaker of Parliament invoked the powers of the provisions of Article 97(1) g and h without giving a critical discretion to Article 112(6). The declaration of the four seats in Parliament vacant by the Speaker was not done with recourse to the constitutional provision of Article 112(6). The issue of representation was not carefully considered and incorporated into the declaration of the vacant seats.

The framers of the 1992 Constitution created a deep void between the provisions of Article 97(1) g & h and 112(6) by not considering the fundamental issue of representation in a situation such as the one being experienced currently. Even if the powers of the said provisions were invoked appropriately with regard to the laws of Ghana, the time was inappropriate. A broader consultation was appropriate in dealing with this issue.

The Speaker of Parliament could have consulted broadly with the leaders of both sides of the house on the best ways possible to deal with the impasse. It is unclear what the framers of the 1992 Constitution sought to achieve by enacting a law that denies constituents a representation when their representatives defect from the party that gave them power or change their party affiliation, especially with few weeks to general elections. Article 112(6) indicates that no by-election should be held within three months before the holding of a general election.

The rationale for enacting Article 97(1) g and h is appropriate as it ensures adherence to constitutional principles: this provision is crucial in maintaining the political integrity of the MPs and ensure that they remain accountable to the political parties that sponsored their elections or gave them the platform to win their seats. However, this is suitable to be implemented at the beginning of a Parliamentary term or in the middle of it.

Members of Parliament (MPs), if not prevented from losing their seats through this means, could strategically defect or change party allegiance close to an election knowing that they will not face immediate consequences. This would amount to undermined political accountability and party discipline. Yet, temporary lack of representations are created which equally undermine the rights of representation of the constituents whose Members of Parliament lose their seats.

In upholding these democratic principles, the Speaker of Parliament could have weighed the consequences of constituents losing the right of being represented and the subsequent disruptions in parliamentary proceedings against the firm application of the provisions of Article 97(1) g and h. Once the seats of the MPs are declared vacant, the constituencies lose representation in Parliament – Article 112(6) prohibits by-elections within three months of general election. The declaration of the four seats vacant has impact on party dynamics: in the current case, it has influence on the balance of power, on the majority-minority composition.

A shift in the majority-minority composition in Parliament has more dire consequences. Parliamentary decisions will be affected, leadership positions will change and legislative priorities will be affected. The NDC, the minority party in the Parliament of Ghana, has already planned to repeal some legislations if it assumes the position of a majority party.

The NDC would not find the majority position gratifying because the circumstances cumulating to the assumption of it are entangling. Apart from private members’ bill, which will be assented to eventually by the President, the NDC cannot have the blessings of the President to assent to bills initiated by the new majority. Article 106(1) outlines that “the power of Parliament to make laws shall be exercised by bills passed by parliament and assented to by the President”.

The loopholes in Article 97(1) g & h and 112(6) require consensus building with regard to leadership positions in the Parliament of Ghana as well as legislative priorities. The desire of the NDC to use the current opportunity to oppress the ruling party and the government will not yield expected results, as the circumstances surrounding their assumption to the majority party position are harmful to having a cordial working relationship with the executive.

As a non-lawyer, I presume if there was a broader consultation with all relevant stakeholders the impasse could have been managed without allowing it to be heightened to this proportion. While the move by the Speaker of Parliament was based on constitutional grounds, the controversies associated with such a decision are chaotic. The NPP and the NDC could achieve much if they were given an opportunity to settle the leadership issues and the power dynamics in the Parliament of Ghana without relying on legal means. It was especially relevant for the leadership of the two parties, the NDC and the NPP, to have been consulted considering the time to the 2024 general elections. Early consultation with the judiciary could have helped avoid the current challenge. Civil Society and Parliamentary Watchdogs that focus on governance and parliamentary oversight could have been consulted to ensure there is public interest in this decision. The Council of State could have equally intervened, if consulted, to resolve the challenge.

This current parliament continues to witness a lot of drama that it must not allow the current happenings to damage its reputation and maturity.

Emmanuel Kwabena Wucharey
Economics Tutor, Advocate and Religion Enthusiast.