Shylock (To Portia): A Daniel come to judgment!
Yea. A Daniel! O wise young judge,
how do I honour thee…
Portia (To Shylock): This bond doth give thee here
no jot of blood; ‘a pound of flesh’… But in the cutting
it if thou dost shed one drop of Christian blood, thy
lands and goods…confiscate unto the state of
Venice
The Merchant of Venice-Shakespeare
AFTER FLT. LIEUTENANT JERRY JOHN RAWLINGS’S Armed Forces Revolutionary Council (AFRC) had hung on to the theory that “an acceptable principle of jurisprudence that punishment should be capable of serving as a deterrent otherwise law will fail to act as a check on human behaviour,” (Prof. Mike Oquaye), the coupist lined up some eight former leaders including Kutu Acheampong, Afrifa, Amedume, … and shot them at Teshie Military Range. The way was opened for a brutal three-month political/military junta handing over to Dr. Hilla Limann on September 24, 1979. On December 31, 1981, the coupist struck again and held this nation to ransom for another eleven years of crass brutality and beastiality under PNDC- till he metamorphosed into a civilian head of NDC and won election to be president in 1992. The Constitution of the Republic of Ghana, 1992 is the baby of PNDC.
Article 1(2) of the Constitution states: “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall to the extent of the inconsistency, be void.” While Article 95 talks about the Speaker, Article 96 talks about two (2) Deputy Speakers “elected by the members of Parliament from among the members of Parliament; and (b) both of whom shall not be members of the same political party.” Article 101 says, “The Speaker shall preside in Parliament at all sittings and in his absence a Deputy Speaker shall preside.” Article 102 says: “A quorum of Parliament, apart from the person presiding shall be one-third of all the members of Parliament.” Article 104 (clause 1) says “… matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present,” and clause 2: “The Speaker shall have neither original nor casting vote.”
Article 128 (1) says: “The Supreme Court shall consist of the Chief Justice of the Supreme Court; and (4) A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than fifteen years’ standing as a lawyer.”
Article 130 (1): “… the Supreme Court shall have exclusive original jurisdiction in (a) all matters relating to the enforcement or interpretation of this Constitution, and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”
We have taken the trouble to focus on the points above to highlight some of the pertinent issues and the fallouts of the suit by Justice Abdulai, a private legal practitioner, on whether a Deputy Speaker presiding over proceedings in Parliament has a right to vote on matters for determination.
The Justices of the Supreme Court gave a 7-0 judgment which declared as unconstitutional Order 109 (3) of the Standing Orders of Parliament which barred a Deputy Speaker from casting a vote on matters for determination. The Justices think causing them to lose their casting votes will amount to disenfranchising themselves and their constituents. Further, it could lead to “opportunistic absences by a Speaker… as an absence would mean a vote loss by the presiding member and their party.”
The Supreme Court continued: “… Parliamentary orders are subservient to the Constitution and in any case, no arm of government or agency of the state, including Parliament is a law unto itself because without exception, everything in Ghana is subject to the Constitution.”
The Justices held that whereas Article 102 prevented any person presiding from being part of the quorum for business of the House, Article 104 (1) prevented only the person elected as Speaker and not the Deputies from forming part of that quorum – and that per Article 92 (1) a Speaker cannot be an MP, but Deputy Speakers are MPs, “The Speaker is disqualified from voting not because he or she presides over sittings of Parliament, but because he is not a Member of Parliament.”
This is the complex nature Parliament finds itself now: The Justices of the Supreme Court have given a unanimous verdict. But to make democracy sweet, we are entertaining different views. Justice Abdulai, who took the case to court, thinks the verdict has polarised the country further, so he would take it up again for a review. Ex-President John Mahama thinks, “If the Deputy Speakers are allowed to vote, then they must take part, first, in the voice vote … The judgment is regrettable, and I look forward to the applicant applying for a review.”
Haruna Iddrisu, the Minority Leader sees the judgment as “…a judicial interference on time-tested parliamentary practice and established conventions … the ruling is judicial support for E-levy for a struggling economy, it is repugnant but what can we do? This is a travesty of justice.”
Speaker Bagbin notes: “The Supreme Court decision … is not only an absurdity but a reckless incursion into the remit of Parliament … the trend of unanimity is equally troubling. It doesn’t help explore and expand our legal jurisprudence.” Question: So, for the sake of expanding our legal jurisprudence, a judge should oppose a popular opinion even if it is against his inner conviction?
Remember what happened in Tuffour v. Attorney-General in 1979:(1980) GLR 637 on the tenure of office of Chief Justice Fred Apaloo, the Supreme Court interpreting the phrase “shall be deemed” giving the words their true natural construction as per Barnard v Gorman. OR NPP v Attorney-General (the December 31 case) against the celebration of the day as a holiday. OR J. H. Mensah v Attorney-General (1997-98) 1 GLR 227 where the Supreme Court held that no person could, after January 6, 1997, act as a Minister or Deputy Minister without the prior approval of Parliament. Kwame Peprah could not be endorsed as Minister of Finance.
Nana Akufo-Addo, who had been a counsel in Tuffour, Mensah cases, says in support of the Supreme Court verdict: “There is nobody in the Ghanaian state that is above the fundamental law of the land. It will lead to the very matter that we have striven so long to avoid – the concentration of unregulated power in our state.”
But an elated Osei-Wusu says: “Matters that have never arisen are now in the fore because of the numbers we have in the chamber, so any time, there is a disagreement I’ll interpret the rule and the law as I understand it.”
But what do we make of the threats by Sam George and Asiedu Nketia?
We are wondering whether it would be most helpful to pick all Speakers (including the Deputies) outside Parliament.
Baron Montesquieu in “De l’esprit des lois” (The spirit of laws) had advocated the Separation of Powers (Legislative, Executive, Judiciary) to limit excesses: but embedded in this “Separation” was “Checks and Balances.”
africanusowusu1234@gmail.com
From Africanus Owusu-Ansah