The ruling made today by Speaker Alban Bagbin, in response to allegations raised by Minority Leader Dr Cassiel Ato Baah Forson, has ignited debate over potential breaches of Article 97(1)(g) and (h) of Ghana’s 1992 Constitution.

The Minority Leader urged the Speaker to declare vacant, the seats of four MPs, who filed to contest the 2024 elections as independents or under different parties. Speaker Bagbin's decision to declare these seats vacant without seeking judicial intervention, relying instead on his interpretation of the constitutional provisions has drawn scrutiny for potentially exceeding the intended role of the Speaker and for disrupting parliamentary stability.

This critique explores the inconsistencies in the Speaker’s ruling, focusing on issues of constitutional interpretation, the body or institution with the power to declare the seat of an MP Vacant and the implications of the position taken by the Speaker in respect of the case that is pending before the Supreme Court.

1. The Role of the Speaker in Determining Vacancies

The Speaker of Parliament is, by design, the head of Parliament and the one who presides over all parliamentary proceedings. But the peculiar facts of this case raise the question of whether the Speaker, being the head of Parliament is the appropriate person to determine the issue of when the seat of a member of Parliament becomes vacant within the purview of Article 97(1)(g) of the Constitution.

The Speaker emphasizes his duty to inform the House about vacancies as prescribed under the Standing Orders of Parliament and Article 97. However, determining whether a vacancy exists is not purely procedural but involves fact-finding that may exceed the Speaker's remit. Indeed, the constitution is clear that the jurisdiction to determine whether the seat of a member of Parliament is vacant is vested exclusively with the High Court within the purview of Article 99 of the Constitution. Therefore, the decision of the Speaker flies in the face of the said constitutional provision.

2. Constitutional Interpretation and Judicial Authority

Article 97 outlines when an MP must vacate a seat but determining whether an MP has defected or changed party allegiance may require judicial interpretation. Accordingly, the issues that arise raise serious issues of constitutional interpretation which is not within the purview of Parliament. Under the constitutional architecture, it is only the Supreme Court, and not the Speaker, with the power of interpreting the Constitution. Accordingly, the decision of the Speaker amounts to a naked usurpation of the powers conferred on the Supreme Court. This is particularly so considering that there is currently a suit at the Supreme Court seeking an interpretation of the provisions in issue.

3. Application of Precedent and Its Relevance

Speaker Bagbin followed the precedent set by Rt. Hon. Prof. Aaron Mike Oquaye, who declared the seat of the Fomena MP vacant in 2020 under similar circumstances. However, the question arises whether such a precedent, which was not established by a court of competent jurisdiction, should have guided his decision. In any event,

4. Precedential Value vs. Judicial Determination

While the precedent set by a former Speaker may provide guidance, it does not have the same authority as a judicial determination. Since the decision by Prof. Oquaye was not made by a court, it lacks the binding force of law that a judicial ruling would carry. Given that the matter concerns constitutional interpretation, it would have been more prudent for Speaker Bagbin to seek a court’s ruling rather than relying on a non-judicial precedent. This would ensure consistency with Article 99, which places such determinations under the purview of the High Court.

The Importance of Judicial Oversight: Following a non-judicial precedent without seeking further judicial clarification risks perpetuating interpretations that may not fully align with constitutional principles. A referral to the judiciary would have allowed for a more authoritative and legally sound interpretation of Article 97(1)(g) and (h), ensuring that the rights of MPs and the will of the electorate are properly balanced.

5. Application of Article 97(1)(g) and (h)

The Speaker asserts that Article 97(1)(g) and (h) should be applied immediately to MPs contesting as independents or under different parties to prevent cross-carpeting.

However, this interpretation ignores the potential for voters to decide on these shifts in allegiance during upcoming elections, which could maintain stability during a parliamentary term. Allowing such shifts to be addressed at the polls respects the electorate’s role in determining their representatives.

The immediate application disrupts the parliamentary composition mid-term, altering its dynamics without voter input, despite the Speaker’s intention to uphold their mandate.

6. Differentiation Between Automatic and Fact-Based Vacancies

The Speaker distinguishes between automatic vacancies (like resignations) and those requiring factual determination, classifying MPs filing as independents or with different parties as the former.

This classification is inconsistent since determining whether an MP has “left the party” involves analyzing intent and actions, which is not as straightforward as automatic resignations.

Relying on the notice of poll to conclude that MPs have vacated their seats overlooks the need for a more thorough factual determination of whether running as an independent equates to formal resignation. This would typically require judicial analysis under Article 99.

7. Inconsistent Application of the Principle of Representation

The Speaker justifies his ruling by emphasizing party loyalty and protecting the electorate’s mandate. However, this position is inconsistent with the decision’s outcome, which changes parliamentary composition without voter involvement.

 If the goal is to respect the electorate’s will, it would be more democratic to allow voters to decide on their MPs’ new affiliations in elections rather than declaring vacancies mid-term.

This selective approach prioritizes party loyalty over the broader democratic principle of allowing the electorate to reassess their representatives at the polls.

Conclusion The Speaker’s ruling reveals several inconsistencies, particularly in its interpretation of constitutional provisions and the role of judicial interpretation. While intended to maintain party loyalty, the decision risks exceeding the Speaker’s authority disregards the constitutional mandate of Article 99, and disrupts parliamentary stability. Given the complexities of constitutional interpretation and the rights of MPs, a more balanced approach involving judicial input would have been more consistent with democratic principles and Ghana's constitutional framework