The parliament and supreme court of Ghana are locked in a dispute over which of them has authority to determine the issue of parliamentary vacancies.
What sparked the stand-off was an order by the speaker of Ghana’s parliament on 17 October 2024 that four members of parliament had to vacate their parliamentary seats. This was after it became known that they’d chosen to leave the party they represented and to run under a different banner in elections due on 7 December. The decision affected the balance of power in the parliament, giving the minority party a majority. The leader of the majority in parliament appealed to the supreme court, which ordered a “stay of execution” of the order.
Legal scholar Clement Kojo Akapame, the former lead researcher for the country’s constitutional review committee, argues that both parliament and the supreme court have overstepped their bounds.
What is the row about?
The speaker of parliament ruled that four members of parliament had to vacate their seats because their registration details lodged with the electoral commission showed that they were changing party affiliation in the upcoming poll. One has joined a political party different from the one that sent him to parliament. Three others will be contesting the 2024 parliamentary elections as independent candidates.
The speaker’s decision affected the balance of power in the parliament as all four candidates previously ran under the banner of the ruling party, the New Patriotic Party. The loss of four seats meant that the minority bench now had the majority.
The speaker argued that this was contrary to the constitution. In response, the majority leader approached the court to stay the order pending an interpretation of article 97(1) (g) and (h) of the 1992 constitution. This states that:
There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members.
In my view, this provision means that parliament can only be composed by election – either a general election or a by-election. And that the only time there can be a change in the majority and minority benches is after a general election or a by-election.
The article adds: “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.”
The article therefore, in effect, doesn’t allow a member to switch parties. A vacancy does not in itself alter the balance in parliament unless an election has been held to fill that vacancy.
The purpose of the rule is to maintain the balance in parliament.
What role do the courts play?
The constitution’s article 99(1)(a) gives the high court – not the supreme court – the power to decide whether a person has been validly elected as a member of parliament or the seat of a member has become vacant.
Only this court has the authority to say if a seat in parliament should be declared vacant.
There are two types of courts in Ghana. The superior courts include the supreme court, the court of appeal, the high court and the regional tribunals. The lower courts include the circuit courts, district courts or any other lower courts that parliament sets up.
In addition, article 112 (5) and (6) of the constitution states that when a vacancy occurs in parliament, the clerk of parliament must notify the electoral commission and a by-election will be held (as long as there’s more than three months to go before a general election).
So parliament plays an administrative role in informing the electoral commissioner of a vacancy.
Was the speaker right in declaring the four seats vacant?
I argue that the speaker’s decision is not supported by any constitutional provision. The speaker has no role in the declaration of vacancies in parliament. Parliament has a limited administrative role.
The composition of parliament can only be altered by an election or a by-election. Changing the composition of parliament by a mere declaration is not only at odds with the law, it also has the potential to lead to absurd outcomes.
This is what’s happened on this occasion. In this case, the vacancy occurred less than three months before a general election. The constitution is clear in article 112 (6) that a by-election will not be held this close to a general election.
Instead, the composition of parliament is to be maintained without any change.
Was the supreme court the right forum to reverse the decision?
The supreme court has original jurisdiction in the interpretation of the constitution. The question of vacancy being a factual question and not a question of interpretation is a matter solely reserved for the high court with a final appeal to the court of appeal.
I hold that the supreme court, in the light of article 99 (1) of the constitution, will have to ask the high court for a decision. I also argue that issuing a “stay of execution” of the orders of the speaker is not supported by law. Stay of execution orders are ordinarily issued to freeze orders of courts.
Parliament is not a court and the ruling of the speaker is not an order subject to a stay of execution.
What’s at stake?
This impasse, if not resolved, has the potential of creating a constitutional crisis where the work of parliament will be brought to a standstill. Further, it has the potential of pitting the judiciary against parliament. This development may erode the independence of both institutions.
Clement Kojo Akapame does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
