Dear Rt. Hon. Speaker Bagbin,
Since you and I are lawyers, let me engage you on points of law which all lawyers AGREE on before proceeding to make a few remarks. Indeed, these points I speak about are so fundamental that even non-lawyers can easily relate with and appreciate:
SUPREMACY OF THE CONSTITUTION OVER PARLIAMENT
- Parliament of Ghana is a creature of the 1992 Constitution of Ghana under Chapter 10 [See Article 93]. The Office of Speaker of Parliament is also a creature of the Constitution [See Article 95]. That being the case, all the powers exercised by Parliament have been conferred on it by the Constitution. Equally, all the powers exercised by the Speaker have been conferred on him by the Constitution. So, without the Constitution, there will be no Parliament, and there will be no Speaker of Parliament.
- The Constitution is the SUPREME LAW of Ghana, and any law (e.g. the Standing Orders of Parliament] found to be inconsistent with any provision of the Constitution shall to the extent of the inconsistency be VOID [See Article 1(1)]. That is why Article 110 of the Constitution, which gives Parliament the power to enact Standing Orders to regulate its own procedures, IS SUBJECT TO THE CONSTITUTION [emphasis mine]. It is not superior or at par with the Constitution. Therefore, if any of the Standing Orders of Parliament conflicts with the Constitution, it shall be declared unconstitutional and void.
- It is the reason why the Supreme Court in Justice Abdulai v Attorney General declared as unconstitutional and void aspects of Parliament’s Standing Orders, because they were found to be in conflict with Article 102 and Article 104 of the Constitution. The apex court, in this landmark decision, REJECTED the old principles of law espoused in their previous decisions in Tuffour v AG as well as JH Mensah v AG to the effect that Parliament is a master of its own rules and accordingly whatever it [Parliament] decides to do, is a ‘Closed Book’ and cannot be questioned by the court/judiciary.
- The court remined Parliament in the Justice Abdulai case that: “It must be noted that the 1992 Constitution established Constitutional Supremacy as against Parliamentary Supremacy, where Parliament is sovereign. .. Under our constitutional dispensation, the sovereign people of Ghana have adopted for ourselves a constitution where it is expressly declared in Article 1(2) that the constitution, NOT parliament, shall be the supreme law of Ghana to which all other laws must conform.
- Again, in Ex Parte CHRAJ (Interested Party – Dr. Richard Anane), the Supreme Court had this to say, “we need to remind ourselves that there is no Parliamentary supremacy under our Constitution. Rather, it is the Constitution that is supreme. As the interpreter of that Constitution, this Court’s view of the meaning of a constitutional provision cannot be preempted by that of any other agency of the State. In short, a provision in the Constitution means what the Supreme Court says it means and not what even Parliament has declared it means”.
- So, clearly, based on Article 1(2), Article 2, and Article 295(8) of the 1992 Constitution, as emphasized by the highest court of the land in the cases supra, there is no debate that the Constitution is supreme, and all the arms of government including Parliament are subject to the Constitution. So, in Ghana, as held by the courts, the doctrine of Separation of Powers is only applicable if and only if the arms of government, including Parliament [Legislature], operates within the limits placed on them by the Constitution. An arm of government cannot be breaching the constitution and take cover in Separation of Powers. In any case, Separation of Powers comes with Checks and Balances.
- This explains why the judicial arm of government has, on many occasions, declared laws duly passed by the legislature as unconstitutional [See Abdulai v AG, NPP v AG (31st December), Mensimah v AG, Adofo v AG & Cocobod, Martin Kpebu v AG, Adjei Ampofo v AG & NHC, and many others]. If we are living in a country of strict Separation of Powers, the judiciary cannot declare and could not have declared laws and Standing Orders passed by the legislature as unconstitutional and void.
- The judiciary is only able to do that because of the principle of constitutional supremacy, which subjects parliament and all laws passed by parliament to the test of constitutionality. It is not in doubt that the only body under the Constitution that can interpret the Constitution is the Supreme Court. Thus, constitutional interpretation or enforcement is in the EXCLUSIVE PURVIEW of the Supreme Court under its exclusive original jurisdiction [See Article 130(1)]. No other arm of government, be it the legislature or the speaker can assume jurisdiction to interpret the Constitution of Ghana.
BASIS FOR CONSTITUTIONAL INTERPRETATION AT THE SUPREME COURT
- As lawyers, we all agree that when a constitutional provision is clear by every stretch of imagination, everybody or institution can simply apply it without seeking interpretation from the Supreme Court. However, where the provision is unclear, imprecise or ambiguous as to admit to two or more rival meanings/interpretations, then, necessarily, the Supreme Court’s interpretative jurisdiction has to be invoked [See Ex Parte Akosah].
- This legal principle is so fundamental that the Supreme Court, per Georgina Wood CJ, held in Ex Parte CHRAJ (Richard Anane – Interested Party) that, even the word “complaint” was unclear to the extent that the parties in the case had placed rival meanings to it, and therefore, had become referable ambiguity warranting the invocation of the Supreme Court’s interpretative jurisdiction.
- So, the Speaker had absolutely no business interpreting Article 97 of the Constitution no matter how clear he claims the provision is, to the extent that the parties (Minority and Majority) have placed rival meanings to it [See Ex Parte Akosah, Ex Parte CHRAJ, Ex Parte Zanetor Rawlings].
WHOSE MANDATE IS IT TO DETERMINE WHETHER A SEAT OF AN MP HAS BECOME VACANT?
- This question has emphatically been answered by the Constitution under Article 99(1)(a) which provides that only the High Court shall have jurisdiction to hear or determine any question whether a person has been validly elected as an MP or WHETHER THE SEAT OF AN MP HAS BECOME VACANT [emphasis mine]. Per this constitutional provision, the High Court does not share this jurisdiction with any other body or institution, and certainly, NOT with the Speaker of Parliament.
- That being the case, any law that purports to confer on another body the jurisdiction to determine whether the Seat of an MP has become vacant will clearly be in conflict with Article 99(1)(a) of the Constitution, and therefore UNCONSTITUTIONAL, since the Constitution is the supreme law of Ghana. Accordingly, Order 18 of the Standing Orders of Parliament, where the Speaker claims to be deriving his authority from, cannot prevail over the express provision of the Constitution in Article 99(1)(a).
- It is in this same light that the Supreme Court, in the recent case of Justice Abdulai v Attorney General, struck out portions of the Standing Orders of Parliament as unconstitutional and void, because they were in conflict with Articles 102 and 104 of the Constitution. It is as simple as that.
CONCLUSIONS
- Mr. Speaker, you can see clearly from the foregoing fundamental legal principles comprising express constitutional provisions and judicial decisions by the nation’s Supreme Court, that, you do not have the constitutional mandate to do what you did . You have turned yourself into a High Court Judge and made a determination that the 4 parliamentary seats had become vacant, clearly contravening Article 99(1)(a) of the Constitution, which says, only the High Court can do that.
- You have also turned yourself into a Supreme Court Bench and assumed jurisdiction to interpret and enforce Article 97 of the Constitution, clearly contravening Article 130(1) which says, only the Supreme Court can do that. The only thing you have not done yet (which I suspect you will do in future) is to turn yourself into the Chairperson of the Electoral Commission and declare yourself or your party’s presidential candidate as co-President of the Republic of Ghana.
- Well, the good news is that, in Ghana, we are fortunate to have a strong and fearless Judiciary, that serves as the vanguard of our constitutional democracy. The Judiciary, particularly, the Supreme Court, once its jurisdiction is properly invoked, will, in defense of the Constitution, rise to the occasion, and call to order, any person or authority whose actions are in breach of the Constitution.
- I salute the nation’s law lords for their quick intervention, within 24 hours, to restore constitutional order, which you, the Speaker, sought to perturb with your dangerous and unlawful ruling on Thursday, October 17, 2024, declaring the 4 parliamentary seats vacant in order to tilt the balance of power in favor of your political party; and that too, without respecting the natural rights of the affected MPs. Hope you are reminded that we are governed by the rule of law, not rule of men.
Assalamu alaik
Iddi Muhayu-Deen, ESQ.
#ForGodAndCountry
muhayudeen2007@yahoo.com