The Precedents Set by Afenyo-Markin

Does the actions of the former Majority Leader illustrate the perils of judicial overreach? Two key incidents highlight this trend:

1. The Anti-Gay Bill: Afenyo-Markin’s Approach to the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill (anti-LGBTQ+ bill) showcases how constitutional challenges can become tools for partisan interests. While advocating for amendments to the bill, he also suggested that its constitutionality be tested in court. This move, ostensibly driven by concerns about free speech and rehabilitation, has been criticized as an attempt to undermine the legislative process and align the judiciary with party interests.
2. Vacant Seat Controversy: The Supreme Court’s 5-2 decision to overturn Speaker Alban Bagbin’s declaration of four parliamentary seats as vacant further underscores the trend of using the judiciary to nullify parliamentary authority. Afenyo-Markin’s ex parte motion—which led to the court staying the Speaker’s decision—not only weakened the autonomy of the legislature but also highlighted the perception of judicial bias.

In both cases, the judiciary was leveraged to advance partisan objectives, undermining the principle of separation of powers that is essential to a functioning democracy.

Using the two key highlighted incidents, “Could the cane that was used to whip Baah be the same cane that should be used to whip Takyie?” In other words, should the incoming Majority Leader of the National Democratic Congress (NDC) propose a motion to amend the Constitution so that a former president who has completed his term of office could return to contest elections for a third term? Or should they rely on the majority vote in Parliament and a Supreme Court to make such an amendment? These are thought-provoking questions.

The actions of Afenyo-Markin in using the Supreme Court to overturn parliamentary decisions did raise troubling questions among Ghanaians about the role of the judiciary and its independence. To ensure a stronger democracy, Ghana must draw from foundational constitutional principles such as those articulated by James Madison, Alexander Hamilton, and Chief Justice John Marshall in the United States.

James Madison, in Federalist No. 51, emphasized that the accumulation of power in any one branch of government is the very definition of tyranny. Similarly, Alexander Hamilton, in Federalist No. 78, underscored the judiciary’s role as the "least dangerous branch," tasked with interpreting laws, not creating or enforcing them. Afenyo-Markin’s actions blur these boundaries, allowing the judiciary to become a de facto extension of the executive and legislative branches when aligned with the ruling party.

The reliance on a perceived partisan judiciary erodes public confidence in the courts. If the incoming Majority Leader of the NDC were to follow this precedent, using the judiciary to push for constitutional amendments or overturn parliamentary rulings, the political system would descend further into a cycle of retribution and politicized governance.

Ghana, as a republic modeled in part after the United States, must heed the lessons of Chief Justice John Marshall’s ruling in Marbury v. Madison (1803). This landmark case established the principle of judicial review while reinforcing the importance of maintaining distinct boundaries between the branches of government. Marshall’s emphasis on the judiciary’s role as an impartial arbiter, rather than a tool of political factions, is a critical standard for Ghana to emulate.

The precedents set by Afenyo-Markin not only undermine the judiciary’s credibility but also disrupt the checks and balances that are vital to preventing the abuse of power. Ghana now stands at a crossroads. The misuse of judicial power for political gain sets a dangerous precedent that threatens the democratic fabric of our nation. To avoid a future where each majority leader weaponizes the courts to achieve partisan objectives, Ghana must recommit to the principle of separation of powers.

In the meantime, should the cane that was used to whip Baah should be the same cane to whip Takyie or the cane that was used to whip Baah should not be the same cane to whip Takyie? My take is that Parliament must respect the judiciary’s independence while ensuring that its authority is not usurped. The judiciary, in turn, must resist becoming a pawn in political games, upholding its role as an impartial arbiter of constitutional principles. And most importantly, the people of Ghana must demand accountability and transparency from all branches of government to safeguard the republic.

By Ebenezer Ato Ntarkurfah Jackson, Cornell University, MBA Class of 2015, Email: [email protected]