The Four Vacant Seats Brouhaha: Has the Speaker Chicken Out?

Since the Speaker of Parliament declared the seats of four MPs vacant on Thursday 17 October 2024 and adjourned sitting indefinitely (“sine die”), Ghana’s Parliament has been in a state of paralysis and unable to sit or function despite the Majority Leader securing an ex-parte injunction barring the Speaker from implementing his declaration from the Supreme Court (SC) on Friday 18 October 2024 (see, “Full Text: Speaker Bagbin’s Declaration of 4 seats in Parliament Vacant”, and “Supreme Court suspends Speaker Bagbin’s ruling declaring four seats vacant”, Ghanaweb 18 October 2024). The Speaker then challenged the injunction but that was rejected by the Supreme Court (see “Vacant Seats: Speaker Bagbin challenges Supreme Court ruling as he files application to set aside ruling” , Ghanaweb, 29 October 2024 and “Supreme Court throws out Speaker Bagbin's application”, Ghanaweb 29 October 2024. Finally, the SC heard the substantive case on Monday 11 October 2024, and we are all awaiting the final decision tomorrow. This short article is a review of this unfortunate but also interesting political conundrum.

The political conundrum is the result of four members of parliament (National Democratic Congress -NDC MP for Amenfi Central, National Patriotic Party -NPP MPs for Suhum and Agona West and the Independent MP for Formena) filed nominations to contest the 7 December 2024, parliament election as independent and the independent MP as NPP candidate. The NDC Minority Leader then made a statement in parliament on 16 October 2024 drawing the Speaker’s attention to the decision of the four MPs and triggered interpretation of Article 97(1)(g) and(h) of the 1992 Constitution.

Article 97(1) states: "A member of Parliament shall vacate his seat in Parliament: (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.”

Despite the fact that the matter raised by the Minority Leader required interpretation of Article 97(1)(g) and (h), the Speaker took it upon himself to interpret them and declared the four seats vacant in his 8-page “fatwah”. What was bizarre is that the Speaker knew he was interpreting the said Article which is the sole prerogative of the Supreme Court. In fact, he sates so in the last sentence of Section 6 his 8-page written declaration and I quote, “The issue of interpretation and enforcement of the Constitution lies in the bosom of the Supreme Court and not that of the Speaker”. Was the Speaker up to mischief?

No, but those of us who have been paying attention to the shenanigans in Ghana’s parliament will remember that Speaker Professor Mike Ocquaye of the 7th Parliament made a similar ruling and declared the seat of then NPP MP for Formena vacant when he filed to contest the December 2020 parliamentary election as an independent. Therefore, the Speaker’s declaration was the usual politics of equalisation because the then NDC MPs were of the view that Speaker Prof Mike Ocquaye was wrong and rightly so. The other reason was to turn the tables in favour of the NDC so that the minority NDC will become the majority in parliament as NDC will have one more MP than NPP.

It has been my view that Article 97(1)(g) and (h) is only applicable to the current parliament or the 8^th Parliament of the Fourth Republic and not the next parliament. This is because the next parliament is yet to be elected. We do not know whether these MPs will even be successful at the December 7 parliamentary elections. Therefore, how can they be punishment retrospectively for a future crime they have committed?

Some legal minds have questioned the views of those of us who say Article 97(1)(g) and (h) does not apply to the present parliament in the current case. Tey say, what then is really the purpose of the article as a deterrent if it’s not for the present as well as applicable to the future? These an important questions because they say that the main objective of Article in question is that of deterrent and therefore if it’s not applied retrospectively then it’s useless.

I find the answer to their interpretation and questions on Article 97(1)(g) and (h) in Article 112(5) and (6) of the 1992 Constitution. Article 112(5) states: “Whenever a vacancy occurs in Parliament, the Clerk to Parliament shall notify the Electoral Commission in writing within seven days after the vacancy occurred, and a by-election shall be held within thirty days after the vacancy occurred”. Article 112 (6) states: “Notwithstanding clause (5) of this article, a by-election shall not be held within three months before the holding of a general election.

From Article 112(6) above, it should clear that if the four seats be declared vacant, there could be no by-elections because general election is within three months and the four constituents will be without representation until the next parliament on 7 January 2025. This is the reason why I am of the view that Article 97(1)(g) and (h) cannot be applied three months before general election.

I understand those who question the non-representation in parliament for only three months when the people of Santrokofi, Akpafo, Likpe and Lolobi (SALL) Consitutuency have not been represented in parliament for nearly four years, but the judiciary has failed to sit on their but now the same judiciary is crying foul for the four constituencies. The question is, are the people of SALL not Ghanaian or are some constituents more Ghanaian than others?

My advice to the judiciary is that it should be consistent in all cases because justice must not only be done but must also be seen to be done. The ordinary people including those with no legal knowledge are those who determine when justice is seen to be done and in currently Ghana that is not the case.

Finally, the interpretation of constitution is done holistically not by piecemeal and therefore, Article 97(1)(g) and (h) must be interpretated jointly with Article 112(5) and (6). For this reason, it is my view that the Supreme Court will affirm that Article 97(1)(g) and (h) cannot be applied to future parliaments. However, to avoid abuse of MPs being elected on party tickets and going independent or as independent and joining a political party soon after election and making Article 97(1)(g) and (h) irrelevant, the Supreme Court should limit to only three months before general election as in Article 112(6). That is, an MP elected on a party ticket or as an independent shall only file to go contest as independent or on a party ticket only three months to general election.

Kofi Ata, Cambridge.