The Dean of the University of Professional Studies, Accra (UPSA) Law School, has reiterated that, a presiding Speaker of Parliament, has no right to form a quorum or cast a vote during parliamentary proceedings.
Professor Ernest Kofi Abotsi, said once a person assumes the position of the Speaker, their rights as an MP, no longer functions; hence, they cannot be said to have an original or casting vote.
In this regard, the Executive Director of the Institute for Democratic Governance (IDEG), Dr Emmanuel Akwetey, has called for a review of the Standing Orders of Parliament to reflect its current composition and the way it conducts its business as a hung parliament where there is no clear majority between the ruling New Patriotic Party (NPP) and the opposition National Democratic Congress (NDC).
The IDEG boss, observed that the current Parliament is not the same Parliament that was 28 years ago. “It is a different Parliament called the hung Parliament which has come to stay; therefore, reforms must begin with its Standing Orders,” he stated.
Professor Abotsi and Dr Akwetey, were speaking at the maiden edition of the Speaker’s Seminal Lecture at the Accra International Conference Centre on Tuesday, May 31.
Interestingly the Majority Leader, Osei Kyei Mensah–Bonsu and his side boycotted the event. The First Deputy Speaker who was present left later. It was chaired by the Paramount Chief of the Essikado Traditional Area in the Western Region, Nana Kobina Nketsia V.
Quoting Article 102 of the Constitution, which states that one-third of the total number of MPs, excluding the person presiding, must be present for any parliamentary business, Prof. Abotsi, who delivered the keynote address, said, “the Constitution did not really make a lot of fuss about the speaker’s original vote because it is a matter of fact…the constitution was explicit that in stating the fact that the Speaker doesn’t have or enjoy a casting vote.”
Professor Abotsi, noted that the current complications were not thought through during the framing of the Constitution, adding that the complexities of Parliament were equally not considered.
On his part, Dr Akwetey, observed that the current composition of Parliament “is a different Parliament called the hung Parliament which has come to stay; therefore, reforms must begin with its Standing Orders.”
Dr Akwetey made the call during a panel discussion after the lectures which was on the theme: “Parliament, its business and the Supreme Court in perspective”.
The lecture sought to stimulate public debate on the concept of separation of powers in the light of the Supreme Court decision in the Justice Abdulai vs Attorney-General case, and the applicability of the political question doctrine in Ghana’s jurisprudence.
It was attended by the leadership of Parliament and their members, academia, governance experts, students and some members of the public.
Dr Akwetey said the hung Parliament had come to stay but he was quick to add that in Ghana, “we do not interpret electorate messages in elections; it is about who won the elections”, and stressed that working together in a hung Parliament was key because the electorate were eventually saying the two major political parties should work together.
A lecturer at the University of Ghana Law School, Clara B. Kasser-Tee, called on the Judiciary to be consistent in distinguishing between the legal aspect of a case and the political aspect in determining a case.
“The court must stick to the legal aspect and protection of rights while leaving the political aspect to the elected branches of the arms of government,” she noted.
A Private Legal Practitioner and Managing Partner of Sory@Law, Thaddeus Sory, for his part stated that the political question was part of the law since “we practice a system of governance which recognises constitutional supremacy”.
Giving a definition of political question doctrine, he said it was a question that a court would not consider because it involved the exercise of discretionary power by the Executive or Legislative branches of government.
“I would like to emphasise that in many decisions, the courts had applied that doctrine in this country whether they have said it is political question doctrine or not; they have consistently applied it,” he posited.
He criticized the Supreme Court’s decision in the case of Justice Abdulai v Attorney-General.
This case preserved the voting rights of a Deputy Speaker even when he’s presiding over Parliamentary proceedings.
The unanimous decision of the Apex Court rejected arguments advanced by Mr. Abdulai on the Political Doctrine question.
This doctrine is defined in the Black’s Law dictionary as a “question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government.”
The Supreme Court in its decision noted that “…it is clear that the framers of successive Constitutions of Ghana have consistently moved in one direction, away from Parliamentary sovereignty towards constitutional supremacy, wherein sovereignty resides in the people of Ghana and no authority or no institution is above the law. The sole arbiter of the constitutionality or otherwise of acts, omissions and enactments, according to Article 2 of the 1992 Constitution, and going as far back as the 1969 Constitution, has been the Supreme Court.
“It is also the sole body vested with the mandate to interpret and enforce the Constitution. In exercising its interpretative and enforcement mandate, the Court has power to adjudicate all and any allegations that any acts, omissions and enactments are inconsistent with and in contravention of the Constitution without the exceptions tendered to be suggested on grounds of the doctrine of political question.
“This Court has predominantly, on a preponderance of the authorities, long held the view that the political question doctrine does not apply within our jurisdiction”.
But speaking at the Speaker’s Seminal Lecture, Mr Sory argued that the Supreme Court got it wrong. He quoted portions of the Court’s Judgement in support of his conclusion.
“…we would have no difficulty in reaching the conclusion that Parliament is and ought to always be the master of its procedures, orders and practices, without hindrance from the Court.”
Mr Sory says this concession by the Court that its jurisdiction will not be properly invoked to determine matters of procedure and practice within Parliament are clear statements properly belonging to the domain of the political question doctrine.
“My submission on the parts of the judgment so far quoted which demonstrate that the Court concedes that it is not every matter which comes before the Court in which the acts or omissions of another branch of government is questioned that the Court will exercise its jurisdiction, is that, the Court clearly admitted the doctrine of non-justiciable political question as part of the constitutional law of Ghana,” Mr. Sory said.
He argues that this position has been affirmed in many other decisions of the Supreme Court.
The Speaker of Parliament, Alban Sumani Bagbin, said that, since the coming into effect of the 1992 Constitution, the three equal, separate and co-ordinate arms of government, have discharged their duties and responsibilities, albeit with some challenges, by the textual requirements of the Constitution.
According to him, the 8th Parliament of the 4th Republic of Ghana, is perhaps like no other Parliament Ghanaians have witnessed in the history of the country.
The event afforded key stakeholders and citizens the opportunity to reflect on how Parliament as an institution can navigate these challenges in the current context of a hung Parliament by coming up with key recommendations for consideration and implementation.
The Speaker, stated that the razor-thin majority, made a majority by just one person enjoyed by the governing New Patriotic Party, as a result of the decision of the independent Member of Parliament (MP) for Fomena and Second Deputy Speaker to caucus with them, has thrown up a lot of issues not previously seen under the tenure of other Parliaments.
He admitted that, Parliament has on some occasions, not discharged itself creditably and its conduct has not been flattering, as a functional democracy, adding that; important steps have been and are being taken to ensure constructive ways of dialogue and consensus are pursued for the benefit of all.
Mr Bagbin, noted that the lecture includes stimulating public debate on the recent challenges in Parliament that are affecting Parliamentary business, which according to him will explore ways by which Parliament as an institution can internally resolve its challenges to facilitate the execution of its constitutional mandate.