29 Nov Alexander Afenyo Markin Vrs Speaker of Parliament & The Attorney General, Delivered on 12th November 2024 (Supreme Court).
“As already indicated above, the focus of a purposive approach to construing Article 97(1)(g) and (h), is to maintain electoral integrity, guaranteeing that where any MP’s seat is declared vacant, constituents can exercise their democratic right to elect a representative who aligns with their values. In this sense any purposive and reasonable interpretation must consider the potential for a bye-election to facilitate the democratic continuity. By contrast, any interpretation that creates a vacancy without the possibility of bye-election, as in this case, undermines the democratic process. The framers of the constitution intended constituents to have uninterrupted representation throughout the parliamentary term, and any interpretation that undermines the continuous constituent representation during a parliament’s term is constitutionally untenable”.
The Plaintiff, Mr. Afenyo Markin, on October 15, 2024 invoked the original jurisdiction of the Supreme Court under Articles 2(1) and 130(1) of the 1992 Constitution seeking the following reliefs:
- A declaration that, on the true and proper interpretation of the constitution of Article 97(1) (g) and (h) of the Constitution, the filing of nomination of Hon Andrew Asiamah Amoako, MP for Fomena, Hon Cynthia Mamle Morrison and Hon Kwadjo Asante with the electoral commission for the next parliament, on the ticket of the NPP and as independent candidates respectively, did not constitute a vacation of their seats in the current parliament.
- An order restraining the Speaker of parliament from declaring those seats vacant and an injunction restraining him from enforcing the provisions of Article 97(1)(g) and (h) while the matter remained before the Supreme Court.
The background of the case is that, four MPs, Hon Andrew Asiamah, current MP for the Fomena Constitution, Hon Cynthia Mamle Morrison, MP for Agona West Constituency, Mr. Kwadjo Asante, current MP for the Suhum Constituency and Hon Peter Yaw Kwakye-Ackah, MP for Amenfi Central, filed nominations with the Electoral Commission to contest for the next or 9th Parliament under the ticket of the NPP and as independent candidates, respectively. This generated a debate in parliament where some members contended that the filing of nominations by these MPs under tickets different from the parties they currently represented constituted “cross carpeting” and, as such, they were required under Article 97(1)(g) and (h) to vacate their seats. The plaintiff, who held a contrary view, invited the Supreme Court to interpret Article 97(1)(g) and (h) in relation to Hon Francis Asiamah, Hon Cynthia Morrison and Hon Kwadjo Asante by this action.
The Speaker of Parliament, Mr. Alban Bagbin (1st Defendant), after the issuance of this writ by the Plaintiff, issued a statement, which was captured in the official report of parliamentary debates on 17th October, 2024. In his statement, he contended, through a detailed discussion of his understanding of Article 97(1)(g) and the concept of “cross carpeting”, that the four MPs had taken actions that contravened the provisions of Article 97(1)(g) and (h) of the 1992 Constitution, and informed Parliament that the MPs, by their actions, had vacated their seats.
This statement was thereafter brought before the Supreme Court, which made an order staying the execution of the decision pending the interpretation of Article 97(1)(g) and (h).
The Supreme Court made a determination on the following issues:
1.Whether the original jurisdiction of the Supreme Court had been properly invoked?
- Whether the filing of the nomination by an MP to contest a future parliamentary election with a political party different from the one with which the MP currently sits in Parliament resulted in a vacation of his seat under Article 97(1)(g) and (h) of the constitution?
- Whether or not the declaration by the 1st Defendant of the 4 vacancies in Parliament was subject to the Supreme Court’s judicial review powers under the constitution?
The Jurisdiction of the Supreme Court
In determining the issue of jurisdiction, the Supreme Court considered an affidavit previously filed by the 1st Defendant in support of an application to set aside the processes and proceedings in this suit, in which the 1st Defendant challenged the jurisdiction of the Supreme Court pursuant to article 99 of the 1992 Constitution, which vests the High Court with jurisdiction to determine when a parliamentary seat is vacant. The Court, by a five (5) to two (2) majority, held that its jurisdiction had been properly invoked. Relying on a number of cases, chief among them being Michael Ankomah Nimfa v James Gyakye Quayson (Writ No: JI/11/2022) dated 17th May 2023, the Supreme Court held that its original jurisdiction under Articles 2(1) and 130(1) is not necessarily ousted just because there is within the same cause of action a concurrent jurisdiction vested in the High Court.
Furthermore, the Apex Court, in relying on a plethora of cases, particularly the Republic v Special Tribunal; Ex Parte Akosah [1980] GLR 592, discussed in detail that, since rival meanings had been placed on Article 97(1)(g) and (h) of the Constitution by both the Plaintiff and the 1st Defendant, the Supreme Court, under Articles 2 and 130 of the 1992 Constitution, had jurisdiction to determine the true and proper interpretation of these provisions.
In their dissenting opinion, two (2) Justices of the Court opined that the Constitution, by Article 99, had granted the High Court exclusive original jurisdiction to hear and determine any question regarding whether the seat of a member of parliament had become vacant. They argued that the Supreme Court did not have a constitutional mandate to assume jurisdiction that had been clearly vested in the High Court at the first instance. Therefore, they refrained from addressing the merits of the other issues raised in the memoranda of issues, choosing instead to upholding the issue of jurisdiction.
The Interpretation of Articles 97(1)(g) and (h) by the Supreme Court
On the second issue, the Supreme Court applied the purposive approach in interpreting the provisions with the purpose of maintaining electoral integrity, ensuring that when any MPs seat is declared vacant, constituents can exercise their democratic right to elect a representative who aligns with their values. Focusing on the phrase “seeks to remain in Parliament” under Article 97(1)(g) and (h), the Supreme Court was of the view that the provisions targeted Members of Parliament transitioning between parties and seeking to retain their seats in the current session of parliament. The provisions did not target MPs intending to contest for nomination in a future parliament.
According to the Supreme Court, these provisions also did not grant political parties the power to interfere with the balance of Parliament by removing MPs based on internal party decisions. In essence, the acts alleged against the affected MPs did not constitute vacation of their seat as envisaged under Article 97(1)(g) and (h) of the 1992 Constitution. Article 97(1)(g) and (h) requires a Member of Parliament to take proactive steps to abandon his party in Parliament during the tenure of the current term.
Judicial Review of the Supreme Court
By the combined effect of Articles 125(3) and 2(1) of the 1992 Constitution, the Court reiterated that parliamentary actions are not immune to judicial scrutiny where they contravene constitutional provisions. Articles 125(3) vests ultimate judicial power in the Judiciary; neither the President nor Parliament, nor any organ or agency of the President or Parliament, shall have or be given final judicial power.
The Court also held that the 1st Defendant’s actions, interpreting Article 97(1)(g) and (h), and enforcing them by declaring the seats of the Members of Parliament concerned as vacant, notwithstanding the provisions of Article 99(1)(a) of the Constitution, was unconstitutional.
In conclusion, the Supreme Court granted the reliefs sought by the plaintiff and made a declaration that the interpretation placed on Article 97(1)(g) and (h) by the Speaker of parliament was inconsistent with the true meaning and import of the provisions in the 1992 Constitution.
Insight:
- The original jurisdiction of the Supreme Court under Articles 2(1) and 130(1) is not necessarily ousted just because there is within the same cause of action a concurrent jurisdiction vested in the High Court.
- When rival meanings had been placed on Article 97(1)(g) and (h) of the Constitution by both the Plaintiff and the 1st Defendant, the Supreme Court, under articles 2 and 130 of the 1992 Constitution, had jurisdiction to determine the true and proper interpretation of these provisions.
- Article 97(1)(g) and (h) of the 1992 Constitution targeted Members of Parliament transitioning between parties and seeking to retain their seats in the current session of parliament. The provisions did not target MPs intending to contest for nomination in a future parliament.
- The 1st Defendant’s actions, in interpreting Article 97(1)(g) and (h) and enforcing them by declaring the seats of the Members of Parliament concerned as vacant, notwithstanding the provisions of Article 99(1)(a) of the Constitution, was unconstitutional.
- By the combined effect of Articles 125(3) and 2(1) of the 1992 Constitution, parliamentary actions are not immune to judicial scrutiny where they contravene constitutional provisions.
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