The Attorney General and Minister for Justice, Godfred Yeboah Dame, has stated that the decision of a sitting Member of Parliament to contest a future parliamentary election under a different circumstance other than on the ticket on which he or she got elected to serve in the present Parliament, should not lead to the vacation of his or her seat in the existing Parliament.
The Attorney General, Godfred Yeboah Dame, took this position in his statement of defence in the case of Alexander Afenyo Markin versus The Speaker of Parliament (1st Respondent) and the Attorney General (2nd Respondent) which was filed at the registry of Supreme Court on Monday, 21 October 2024.
Seven-point argument
In his 37-page statement of defense, the Attorney General first outlined the facts of the case filed by the Majority Leader, Alexander Afenyo Markin. He proceeded to state his position on the original jurisdiction of the Supreme Court and why the court has the power to determine the application before it. The AG also argued about the proper and applicable principles of interpretation the Supreme Court should use in the case filed before it and drew a 7-point conclusion.
“The 2nd defendant (Attorney General) herein sums up the submissions made herein as follows: First, the Court’s original and exclusive jurisdiction to determine the constitutionality of any act or omission by any person in Ghana is not ousted by any law. Irrespective of the circumstances surrounding an action, a genuine case for interpretation of the Constitution correctly invokes the jurisdiction of the Court under articles 2(1) and 130(1)
of the Constitution.”
Second, “the instant case raises serious questions bordering on: Whether an expression by an MP of an intention to contest a future parliamentary election on the ticket of a party different from the one the MP was a member of at the time of his election, or as an independent candidate, results in a vacation of the seat of that MP in the current Parliament.
“Whether the filing of nomination by an MP to contest an upcoming parliamentary election with a different identity, i.e. as an independent candidate even though he is in the current Parliament as a member of a political party or as a member of a political party even though he is in the current Parliament as an independent member, results in a vacation of his seat.
Third, “Parliament is for a fixed period as determined by the Constitution” and fourth, “a proper textual analysis of the Constitution, that is, both the plain and contextual examination of the same leads to the conclusion that the Constitution intended to create a vacancy of seat of an MP if, in the current term of Parliament, the MPs leave the party of which he was a member at the time of election to join another party or seek to remain in Parliament as an independent member.
Fifth, “the filing nomination to contest an upcoming election for a place in a future Parliament does not lead to a vacation of seat.
Six, “the filing of nomination by a sitting MP to contest a future parliamentary election on the ticket of a political party, when he had been elected for the life of the current Parliament, as an independent candidate, does not result in a vacation of a seat.
Lastly, every arm of government or agency of the state, including Parliament, is subject to the Constitution and to the Supreme Court’s judicial review powers of determining the constitutionality of actions and decisions by that arm or agency. Consequently, an order, decision, ruling, or determination by the Speaker of Parliament, in contravention of and/or ultra vires to the Constitution, will fender such order, decision, ruling, or determination amenable to the jurisdiction of the Supreme Court.”
Background
On Thursday, 17 October 2024, Speaker Bagbin, in a ruling following an application by the Minority Leader, Cassiel Ato Forson, declared four seats in Parliament vacant.
The legislators and seats affected by the Speaker’s ruling were: Peter Yaw Kwakye-Ackah, MP for Amenfi Central in the Western Region, Andrews Asiamah Amoako, MP for Fomena, Ashanti Region (independent), Kwadjo Asante, MP for Suhum in the Eastern Region (NPP), and Cynthia Morrison, the MP for Agona West, Central Region.
However, lawyers for the Majority Leader proceeded to the Supreme Court the following day (18 October) with an ex-parte application praying the court to stay the enforcement of the Speaker’s ruling.
A five-member Supreme Court panel presided over by Chief Justice Gertrude Torkornoo, granted the ex-parte motion and ordered the parties to file their statements of case within seven days, which will allow the court to deal expeditiously with the substantive application before they seek interpretation of Article 97(1) (g) and (h) of the 1992 constitution.
Reporting by Wilberforce Asare in Accra
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