Ghana Supreme Court's Misinterpretation of Article 97(1)(g) and (h): An Analysis of Constitutional Oversight

This article does not dispute the Supreme Court’s jurisdiction to interpret cases brought before it. Instead, it critiques the Supreme Court’s interpretation and ruling on the recent case involving four Members of Parliament (MPs) whose seats were declared vacant by the Speaker of Ghana’s 8th Parliament. The analysis aims to demonstrate that the Court’s interpretation of Article 97(1)(g) and (h) of Ghana’s 1992 Constitution is flawed, biased, and lacks constitutional merit.

Background and Supreme Court Ruling
In a 5-2 ruling, the Supreme Court held that the Speaker's declaration of the four seats as vacant was unconstitutional. The Court cited the case of Justice Abdulai v. Attorney-General, emphasizing that “no arm of Government or agency of the State, including Parliament, is a law unto itself.” This reinforces the notion that even the Speaker’s decisions are subject to judicial review. However, the Court’s position—that the MPs’ actions did not merit the vacation of their seats—raises questions about whether this ruling aligns with the constitutional mandates meant to prevent mid-term changes in political allegiance that disrupt voter representation and party stability.

Analysis of Article 97(1)(g) and (h)
Article 97(1)(g) and (h) of Ghana’s 1992 Constitution stipulate the conditions under which MPs must vacate their seats. These provisions are intended to maintain the integrity of the parliamentary system by discouraging MPs from abandoning their political party or independent status mid-term, thus preserving the will of the electorate. The article is clear in outlining circumstances that would result in vacating a seat:

1. Article 97(1)(g) states that an MP elected on a party ticket who leaves that party to join another party, or becomes independent, must vacate their seat.
2. Article 97(1)(h) applies to MPs elected as independents, mandating that if such MPs subsequently join a political party, they must vacate their seats.

The intention behind these provisions is to uphold party loyalty within a given term and to avoid undermining the electorate's mandate by allowing MPs to change affiliations mid-term. The Supreme Court’s ruling, however, interprets these provisions as only applicable if an MP seeks to switch allegiance during their term and attempts to remain in Parliament under the new affiliation, without considering the impact of publicly filing for re-election under a different party.

Critique of the Supreme Court’s Interpretation

The Supreme Court argued that filing for re-election under a different party’s ticket does not equate to crossing the floor because it pertains to a future election, not the current term. This reasoning, however, fails to recognize that filing under a new party is a public declaration of allegiance to that party, an act that directly contravenes the mandate of Article 97. By filing under a new banner, an MP effectively signals a shift in loyalty, thereby breaching the voter’s mandate under which they were elected. This anticipatory action does not uphold the stability that Article 97 intends.

In previous republics, MPs who changed political allegiance mid-term were often required to vacate their seats. For example, notable instances in Ghana's 1st, 2nd, and 3rd Republics demonstrate that MPs who “crossed the carpet” lost their seats. This precedence supports the interpretation that Article 97 aims to prevent any allegiance shift within the current term, not only during the sitting parliamentary period but also in preparation for future elections.

Comparative Analysis and International Examples

Other democracies uphold similar “anti-defection” provisions to safeguard parliamentary stability:

1. India: The Anti-Defection Law, established in 1985, disqualifies MPs who defect from one party to another during their term. The Supreme Court of India upheld this law in Kihoto Hollohan v. Zachillhu (1993), emphasizing that party allegiance must be maintained throughout the term.
2. Pakistan: Article 63A of Pakistan's Constitution disqualifies MPs who defect, reinforcing loyalty to party policies, particularly during key votes.
3. United Kingdom: While the UK lacks a formal anti-defection law, MPs who change parties often resign and seek re-election, reflecting an ethical standard that upholds accountability to voters.

The Ghanaian Supreme Court's ruling, in contrast, appears to deviate from this established principle, seemingly allowing MPs to change party affiliation with impunity as long as it pertains to a future election. This leniency could encourage mid-term defections, destabilizing Ghana's parliamentary structure and weakening the representative mandate.

Dissenting Opinions and Judicial Bias
The 5-2 split in the Supreme Court’s ruling reflects a judicial divide on the interpretation of Article 97. The two dissenting justices likely saw the act of filing for re-election under a new party as an explicit expression of allegiance shift, which should trigger Article 97. Their dissent highlights the ambiguity in the majority’s reasoning and suggests that the Court may have overstepped by undermining the Speaker’s authority to declare seats vacant in cases of political defection.

Moreover, the perception of judicial bias arises when rulings align with the interests of the ruling party, as public opinion may interpret these judgments as an attempt to shield MPs who favour the incumbent government. Such perceptions could undermine public trust in the judiciary as an impartial arbiter.

Conclusion
The Supreme Court’s ruling on Article 97(1)(g) and (h) appears to lack a robust constitutional basis. By interpreting the article in a way that permits MPs to file for re-election under a different party without vacating their seats, the Court has arguably misinterpreted the intent of the Constitution. Article 97 was designed to enforce accountability and loyalty within each parliamentary term, thereby maintaining the stability and integrity of Ghana’s political system. If an MP signals allegiance to a new party, this should trigger the vacating of their seat, regardless of whether the shift is intended for a current or future term.

The Speaker’s authority to declare seats vacant serves as a crucial mechanism to uphold party loyalty and voter expectations. Any challenge to this authority should be rooted in the constitutional mandate for stability and integrity, not in procedural technicalities. If necessary, constitutional amendments or clarifications may be pursued to reinforce the anti-defection provisions and prevent future ambiguities.

Written by
Lewis Kwame Addo, LLM,
Amsterdam