Blame Lack of Principles, Politics of Convenience, and Political Vindictiveness for Bagbin’s Declaration Of Vacant Seats

The Speaker's interpretation and application of Article 97(1)(g) of the 1992 Constitution in declaring four seats vacant in Parliament is fundamentally flawed, and the constitutional provision has been misapplied in this instance. Article 97(1)(g) clearly states that:

"A Member of Parliament shall vacate his seat in Parliament if: (g) 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."

This clause was crafted to prevent a sitting Member of Parliament (MP) from defecting to another political party or declaring themselves independent during their current parliamentary term. It is specifically designed to maintain party discipline and ensure the trust of the electorate, who voted for the MP based on their political affiliation during that election cycle. The provision is not concerned with actions related to future elections, but with defections or changes in party allegiance that occurs during the MP's term.

A pertinent example of Article 97(1)(g) being applied as intended is the case of Professor Alhassan Wayo Seini. On March 2, 2006, as the sitting MP for Tamale Central elected on the National Democratic Congress (NDC) ticket for the 2005-2009 term, he publicly announced his resignation from the NDC and formally joined the New Patriotic Party (NPP) during that same parliamentary term. In his announcement, he explicitly stated that he no longer wished to be addressed as an NDC MP, signalling his immediate defection. In announcing his defection on the floor of Parliament he said he said "It is however with deep regret that I announce my decision to resign from the NDC with effect from today, March 2nd 2006," He was quick to add, "In so doing, I am mindful of the constitutional provision in article 97 (1) of the 1992 constitution and I do hope that the Speaker will take the necessary steps to inform the electoral commission". Before declaring the seat vacant, the then Speaker Rt. Hon. Sekyi Hughes told the house that he had received communication from Hon. Wayo Seini confirming his carpet crossing from the NDC to NPP. At that point, the Speaker of Parliament rightfully declared the seat vacant, and a by-election was held. This case directly aligns with the spirit and letter of Article 97(1)(g), as the MP had defected from his party during his term, thereby triggering the constitutional requirement to vacate his seat.

In contrast, the Speaker’s current application of Article 97(1)(g) to MPs who have merely submitted nominations to contest future elections under different party tickets or as independent candidates is a gross overreach. Merely submitting a nomination for a future election does not constitute a formal break with one's party in the current Parliament, nor does it amount to the kind of defection envisioned by the Constitution. For example, Hon. Peter Kwakye-Ackah, whose seat has now been declared vacant, has not renounced his membership of the NDC during the current parliamentary term. Therefore, the constitutional grounds for declaring his seat vacant simply do not exist.

Additionally, the case of Hon. Andrew Asiamah Amoako, the independent MP for Fomena, is also illustrative. Although he has aligned with the NPP on several issues, he has not formally declared himself a member of the NPP, nor has he resigned his independent status during the current parliamentary term. Without a formal declaration of defection or resignation during this term, the provisions of Article 97(1)(g) do not apply.

It is worth noting that the Constitution speaks to defections that occur within the same parliamentary term. The provision is not designed to penalize MPs for actions related to future elections or anticipated changes in allegiance. The Speaker’s attempt to apply Article 97(1)(g) to MPs' future intentions rather than current actions is a distortion of the provision and undermines its true purpose.

The Speaker's reliance on Article 97(1)(g) in this case is also legally deficient when considering Article 99(1)(a) of the Constitution, which clearly vests the power to determine whether a seat has become vacant in the hands of the High Court. Article 99(1)(a) states:

"The High Court shall have jurisdiction to hear and determine any question whether – (a) A person has been validly elected as a Member of Parliament or the seat of a Member of Parliament has become vacant."

In the current situation, where the MPs involved have not formally declared their defection within this parliamentary term, there is an open question as to whether their seats have indeed become vacant. This question falls squarely within the jurisdiction of the High Court, not the Speaker. The precedent of Professor Wayo Seini in 2006 is not comparable, as in that case, the MP himself explicitly announced his defection, removing any ambiguity about the vacancy of his seat. In contrast, the current cases involve MPs who have not taken any formal steps to resign from their party or current status during their term, thereby requiring a judicial determination rather than suo moto action by the Speaker.

Furthermore, historical precedent within this Fourth Republic further reinforces the Speaker’s misstep. Consider the case of Dr. William Boakye Akoto, the NPP MP for Abirem from 2001-2005, who filed to run as an independent candidate for the 2004 election. His seat was not declared vacant by Speaker Peter Ala Adjetey because his candidacy pertained to a future election rather than a defection during the current term. Similarly, Joe Osei Owusu, who served as an independent MP for Bekwai from 2009 to 2013, later ran on the NPP ticket in 2012, but Speaker Joyce Bamford-Addo did not declare his seat vacant during his independent term. Likewise, Hon. Michael Teye Nyaunu of the NDC filed as an independent candidate for the 2012 election but served his full term in Parliament representing Lower Manya Krobo constituency until January 2013, without Speaker Edward Doe-Adjaho declaring his seat vacant.

In each of these cases, the MPs' future intentions did not trigger Article 97(1)(g) because they did not formally defect during their parliamentary term. The same principle should apply to the current MPs. The Speaker’s decision to declare these seats vacant based on future nominations, without any present defection, is an overreach that violates the letter and spirit of the Constitution.

The Majority Leader, Hon. Alexander Afenyo-Markin, has made a commendable and necessary move in seeking a clear interpretation of Article 97(1)(g) from the Supreme Court. This ruling will be crucial in clarifying the ambiguities that have plagued the current debate. It is now imperative that the Speaker respects the Supreme Court's injunction on the declaration of the four seats vacant. He must not view this as an unnecessary interference with parliamentary functions but rather as a vital exercise in the principle of checks and balances that underpins our democracy.

To disregard this injunction would not only undermine the authority of the Supreme Court but also set a dangerous precedent of impunity. The Speaker must avoid allowing vindictiveness, political expediency, or extreme partisanship to cloud his judgment. Such actions could lead to a destabilizing and embarrassing situation that tarnishes Ghana's reputation on the international stage, much like the unfortunate incidents that marred the start of his term. History will not be kind to a leader who chooses division over due process, and the Speaker must now act with wisdom, restraint, and respect for the rule of law to ensure stability and uphold the integrity of our democratic institutions.

I wish to emphasize that the Speaker’s unilateral interpretation and application of Article 97(1)(g) is legally indefensible. By applying the provision to anticipated actions in future elections, the Speaker has misapplied the law and acted contrary to the Constitution’s clear intent. The Constitution addresses defections during the current parliamentary term, and anything beyond that scope is an abuse of constitutional authority. It is a question for the High Court to determine whether a seat has been vacated, and the Speaker lacks the jurisdiction to declare these seats vacant under the circumstances. Anything to the contrary is not only a breach of constitutional principles but a dangerous precedent that erodes parliamentary democracy.

This is my two Pesewas
James McKeown
Helsinki, Finland
jamkeow@ulapland.fi

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