Thaddeus Sory, counsel for Speaker of Parliament Alban Bagbin, has left Alexander Kwamina Afenyo-Markin, his colleagues and the Akufo-Addo government stranded at the gate of Parliament, asserting that the recent Supreme Court ruling on the impasse overturning the declaration of four seats as vacant in Parliament, gave no directive or order against the Speaker.
With less than a month to Presidential and Parliamentary elections, the deadlock between Mr Bagbin and the NPP side of the House is far from over.
Indeed, most of the MPs are out on a reelection campaign. This also means Parliament cannot any legislative move including the approval of the 2025 budget among many other government policies requiring Parliamentary endorsement.
In its full judgment on Thursday, November 14, the Supreme Court, stated that an MP can only be considered to have vacated their seat, if they change their political affiliation and remain in Parliament under this new identity.
Mr Sory’s position, comes a day after Retired Supreme Court judge, Justice William Atuguba, has stated that the Speaker of Parliament is bound by the ruling of the apex court reversing his declaration of four seats as vacant.
According to Justice Atuguba, Speaker Bagbin, risks being cited for contempt if he refuses to recognise Cynthia Mamle Morrison (Agona West), Kwadjo Asante (Suhum), Peter Kwakye-Ackah (Amenfi Central), and Andrew Amoako Asiamah as Members of Parliament (MP) following the court’s ruling on Tuesday, November 13, 2024.
“It is not necessarily 10 years; you must just suffer a term of imprisonment not exceeding 10 years. Not only that, 10 years disqualification of holding public office, and if you are a president, you are liable to removal,” Justice Atuguba told JoyNews in an interview on Tuesday emphasizing that the Speaker is, by law, bound by the court’s ruling.
“In the face of this decision, he (Bagbin) is bound by the decision of the Supreme Court,” he stated.
The Supreme Court on Tuesday, November 12, 2024, overruled the Speaker’s declaration of four seats in the House vacant, ruling that the decision was unconstitutional.
The Supreme Court’s verdict, follows a suit filed by Mr Afenyo-Markin, challenging Speaker Bagbin’s declaration.
The court, led by Chief Justice Gertrude Torkornoo and comprising seven justices, ruled in favour of Afenyo-Markin, accepting all his arguments in a 5-2 majority decision. Per the Supreme Court’s ruling, the New Patriotic Party (NPP) reclaimed its position as the Majority in Parliament.
The Speaker, had declared their seats vacant per Article 97 (g) and (h) of the 1992 Constitution after the affected MPs decided to contest in the December 7, 2024, elections on tickets different from the ones they currently represent in parliament.
The ruling, in favour of a suit brought by Afenyo Markin, specified that Articles 97(1)(g) and (h) of the Constitution apply solely to the current parliamentary term and do not extend to future terms or scenarios where an MP might seek re-election under a different party.
The court emphasized that an MP’s seat would be vacated if they switched parties within Parliament while continuing to serve under the new affiliation.
In a Facebook post on Thursday, Sory clarified that the court did not issue any order mandating that the MPs be allowed back into Parliament or instructing the Speaker to recognize their return.
“There is no order saying that the MPs must be allowed in Parliament or order directing that Parliament recognize the said MPs as earlier ordered by the Court contained in the majority decision of the Court,” he stated.
Adding that, “The order staying execution of the Speaker’s ruling is NOW SPENT.”
Many, including Martin Kpebu, a Constitutional and human rights lawyer, has commented on the matter, urging the Speaker to challenge the Supreme Court’s ruling.
According to Kpebu, a pushback by the Speaker on the court’s decision, will go a long way to assert the independence of Parliament and strengthen Ghana’s democracy.
While Veteran journalist, Kwesi Pratt Jnr, insist there appears to be no resolution in sight regarding the dispute between the NPP and NDC caucuses, despite the apex court’s ruling overturning Bagbin’s declaration.
Former Chief of Staff under the erstwhile John Agyekum Kufuor government, Kwadwo Mpiani, has encouraged parliamentarians to adopt a culture of independently and internally resolving matters in the House.
Kpebu observed that, “He has shown that he is not happy. He says there is a collusion between the judiciary and the executive. Those are the Speaker’s words, right? Yeah, so this decision will reinforce the Speaker’s views that he doesn’t agree. And so you are going to expect some pushback from the Speaker. Yeah, and it is good for our democracy.
“The Speaker needs to push back because when he does, it will force us to think we need judicial independence. That is what this decision underscores. The judiciary has become a bit weak. The Supreme Court is that weak. So we need a constitutional review,” he is quoted as saying in a report by Citinewsroom.com on November 12, 2024.
Kwesi Pratt Jnr, speaking on Peace FM’s Kokrokoo on Wednesday, November 13, 2024, stated that the judgment handed down by the Supreme Court, may not be enough to resolve the disputes in Parliament.
“Courts give judgments all the time. Court judgments don’t resolve disputes on their own; if they did, there wouldn’t have been conflicts in Bawku.
“Parliament is a forum for taking decisions, making negotiations, and achieving consensus. So, if all the other elements are abandoned and priority is placed on taking decisions alone, there will be no result,” he said.
Kwesi Pratt Jnr, warned of the grave issues the current impasse could pose to the country if not addressed. He suggested a consensus among all parties in Parliament to allow business to proceed.
“…Where things stand, we need stakeholders and knowledgeable leadership to bring a consensus between all the parties and to find ways for government business to continue. If this doesn’t happen, there will be serious issues,” he warned.
According to Mr Mpiani, frequent resort to the judiciary in resolving matters related to the House could be disruptive to the work of Parliament.
“I don’t personally believe that anybody should injunct Parliament because if you do that, you will make the work of Parliament more difficult because, next time, I will run to court to injunct Parliament on how it does its work. Parliament should be able to resolve its issues itself. If you return to Parliament and don’t get a quorum for decisions, what has been achieved?” he questioned in a Joynews interview on November 13, 2024.
Mr Mpiani, has urged the Speaker to respect the ruling by the apex court. He has also encouraged members of Parliament to prioritise constructive discussions when resolving issues.
Yesterday. Thaddeus Sory, wrote under the headline “THERE IS NO ORDER AGAINST THE SPEAKER.
The Supreme Court decision released this afternoon is interesting. The majority decision raises a number of legal issues. Since this is a public and not legal platform I will discuss the most basic but fundamental issue for debate.
In every case before the courts, the court’s final judgment is based on the case presented to the court contained in the original papers filed by the plaintiff before the court. If the facts on which the plaintiff initially presented their case to the court changes, and they want the court’s decision to reflect the changed circumstances, they must formally change their original case by way of an amendment. The Supreme Court rules allow the plaintiff to amend their statement of case.
Now the majority judgment unequivocally admits that at the time the Plaintiff filed his case, the Speaker’s response to the statement made by the Leader of the NDC caucus in Parliament HAD NOT BEEN MADE. Darko Asare JSC admits that the Plaintiff instituted his action on 15/10/2024 and the Speaker made his statement on 17/10/2024. The Plaintiff’s reliefs therefore did not pray the Supreme Court to declare the Speaker’s response to the statement null and void. Darko Asare JSC therefore conceded in page 4 [see especially paragraph 4 of his judgment] that on the facts on which the Plaintiff instituted the action before the Court, there was no issue on which the Supreme Court’s exclusive original jurisdiction was legitimately be invoked.
Darko Asare JSC also admitted that it is events after the Plaintiff instituted the action in the Supreme Court that was of concern to the majority. The Plaintiff however, did not formally, by way of an amendment to his case formally bring the new facts to the Court as part of the substantive case before the Court. The new facts came to the Supreme Court by way of an interlocutory ex parte application and the Court dealt with it. The substantive case however remained the same.
Darko Asare JSC therefore admitted that it is subsequent events occurring “two days after the issuance of” the writ which is the Speaker’s statement that the affected MPs “cannot be allowed by law, to continue to pretend to be representing their constituents” and Parliament was accordingly so informed that constituted the “act” that caused the Supreme Court to stay execution of the Speaker’s said statement pending the determination of the matter by the Supreme Court. See page 5 of his judgment.
The Court however justified its decision to assume jurisdiction in respect of the Speaker’s subsequent response to the Leader’s statement on the ground that the decision had an “intimate connection with their jurisdiction and its inextricable link to the pleaded facts and issues.” See pages 10 and 11.
Darko Asare JSC who wrote the lead judgment of the Court therefore clearly admitted that there was no cause of action on which the Plaintiff sought and obtained the order for stay of execution.
The effect of this admission also is that at all times material to the judgment of the Court, the Plaintiff’s case before the Court disclosed no cause of action because the case was not formally amended to reflect the changed circumstances. It is acknowledging that this admission meant the certain perdition of the Plaintiff’s case before the Court that the majority decision had to take cognizance of a case that was not formally brought before it, to enable it entertain the Plaintiff before the Court.
In their judgments therefore, the majority decisions [both Darko Asare and Asiedu JJSC] only expressed their disagreements with the conclusion reached by the Speaker in his response to the Leader’s statement. Their final orders never pronounced that the Speaker’s response to the Leader’s statements are null and void and of no effect.
Darko Asare JSC’s parting words were as follows:
“An order declaring the interpretation placed on Article 97(1)(g) and (h) as inconsistent with the true meaning and import of Article 97(1) (g) and (h) of the 1992 Constitution.”
In effect all he says is that the constitutional provisions in controversy bear the meaning he has put on them without positively saying that he has declared the Speaker’s decision null and void. There is no repetition of the ex parte orders the Plaintiff magically obtained contrary to all and every rule of procedure in the final orders of the Court.
Asiedu JSC also concluded his judgment by disagreeing with the Speaker when he stated thus:
“In my humble view, therefore, it is incorrect and unconstitutional for the 1st Defendant to rule that the Members of Parliament concerned have vacated their seats in Parliament just for the reason that they have filed nominations to contest, as Members of Parliament, in the upcoming general elections on tickets other than those on which they were voted as members of the current Parliament. It is for these reasons that I grant relief one endorsed on the Plaintiff’s writ.”
His final words [order], however, were that he only grants relief one of the Plaintiff’s reliefs. None of these reliefs to declare the Speaker’s response to the Leader’s statement null and void.
Now lets remember that after the Supreme Court has made a declaration in the exercise of its original jurisdiction it is required under the provisions of article 2 clause (2) of the Constitution to
“… make such orders and give such directions as it may consider appropriate for GIVING EFFECT, or enabling effect to be given, to the declaration so made.”
It is only where such orders and directions are made and the person to whom the orders and directions are made fails
“to obey or carry out the terms of … [the] order or direction made or given … [which] constitutes a high crime under
… [the] Constitution…”
There is no order saying that the MPs must be allowed in Parliament or order directing that Parliament recognise the said MPs as earlier ordered by the Court contained in the majority decision of the Court. The order staying execution of the Speaker’s ruling is NOW SPENT.
SO MR. PLAINTIFF, TANTALUS on my mind.
The post Bagbin’s Lawyer leaves Afenyo-Markin & others still stranded appeared first on The Herald ghana.
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