Private legal practitioner Martin Kpebu has raised concerns about the Supreme Court’s recent decision on the controversial vacant parliamentary seats declaration by the Speaker of Parliament, which decision followed a petition by Efutu MP Alexander Afenyo-Markin.

 Speaking on Joy FM’s Super Morning Show, Lawyer Kpebu criticised the Court’s interpretation of the law, arguing that the judiciary had overstepped its bounds by “amending” the constitution through judicial interpretation.

“The provision is clear, but what’s also clear is that I don’t have the power to change it. The issue is that we are trying to twist an undesirable law into the desirable one we want,”  Lawyer Kpebu remarked. He emphasised that the law should be respected as written, instead of being “recrafted” by judicial interpretation.

Read also: Full Supreme Court ruling on vacant seats controversy

Lawyer Kpebu also cited a statement from renowned Lawyer Tsatsu Tsikata, who had warned that the judiciary, if not checked, could overthrow the constitution. “It’s not only military force that can overthrow a constitution. The judiciary, too, has the power to do so,” renowned Lawyer Tsatsu Tsikata had said.

Lawyer Kpebu cited this quote, explaining that in law, for every principle, there is a counter principle, making it difficult to find a clear “winner” in legal cases like this one.

The lawyer also called for more transparency in constitutional matters, suggesting that to ensure impartiality, the executive should not have a role in Supreme Court appointments. “If we don’t speak openly about these issues, our constitution will never grow,” Lawyer Kpebu concluded, urging a more open and honest legal conversation.

On Thursday, Mr Thaddeus Sory, lawyer for the Speaker of Parliament, argued that the Supreme Court's decision did not amount to any orders against Speaker Alban Bagbin.

"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 courts' 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 being invoked.

Darko Asare JSC also admitted that it is events after the Plaintiff instituted the action in the Supreme Court that were 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 cognisance 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 let’s 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."