Ghana’s legal and political spheres are once again converging in a contentious lawsuit that challenges the Speaker of Parliament’s decision to declare four parliamentary seats vacant.
The core issue revolves around the interpretation of the Constitution and whether the Supreme Court can intervene in parliamentary matters.
Dr Justice Srem Sai, a law lecturer at the University of Ghana School of Law, and Professor Ernest Kofi Abotsi, Dean of the University of Professional Studies Accra (UPSA) Law School, have weighed in on this complex issue, each highlighting crucial aspects of constitutional law and the separation of powers.
At the heart of the debate is Article 130(2) of the 1992 Constitution, which outlines the process for referring constitutional interpretation questions to the Supreme Court.
Dr. Srem Sai in his argument, emphasized a critical point often misunderstood in Ghana’s legal discourse. According to him, the provision that mandates courts to refer questions of constitutional interpretation to the Supreme Court applies strictly to judicial bodies, not parliamentary proceedings.
“So, it is not correct to say that when an allegation is made in PARLIAMENT that a constitutional provision requires interpretation, the Speaker of Parliament must stay proceedings and refer the question to the Supreme Court.”
Dr Justice Srem Sai, legal practitioner and law lecturer at the University of Ghana School of Law
He clarified that Article 130(2) applies exclusively to court proceedings, not parliamentary debates or decisions, adding that the distinction is pivotal, as it underscores the autonomy of Parliament in interpreting its own rules and constitutional provisions.
Dr Sai’s interpretation reinforces that Parliament is not subject to the same legal constraints as courts when it comes to constitutional questions, giving the Speaker discretionary authority in managing parliamentary matters.
However, the tension arises when the Speaker’s decisions are challenged in court, as seen in the lawsuit questioning the Speaker’s declaration of four vacant parliamentary seats. This brings the Supreme Court’s jurisprudence into sharp focus.
Supreme Court Interference in Parliament’s Internal Affairs
Professor Abotsi in his argument, offered a comprehensive reflection on the Court’s established reluctance to interfere in Parliament’s internal affairs, a doctrine that dates back to the landmark Tuffuor v. Attorney General case of 1980.
In this case, Prof. Abotsi pointed out that the Supreme Court laid down a fundamental principle: Parliament’s internal proceedings represent a “closed book,” which the judiciary does not often like to open.
This doctrine, he noted was reaffirmed in the 1996 J.H. Mensah v. Attorney General Case, where the Court reiterated its commitment to maintaining harmony between branches of government by respecting Parliament’s autonomy.
“In terms of the internal administration of Parliament, the Supreme Court says it’s not interested. And the reason for that as I mentioned earlier, is that the court seeks to maintain and ensure inter-branch harmony by avoiding conflict because they both have different jurisdictional mandates.
“The court doesn’t want to go inside Parliament. In fact, in the Tuffour Case, the expression used was happening in Parliament represents a closed book scenario, and they are not going to open the book”.
Professor Ernest Kofi Abotsi, Dean, University of Professional Studies Accra Law School
Professor Abotsi’s analysis highlighted the delicate balance the Supreme Court must strike in cases involving Parliament.
He argued that if the Court remains true to its 40-year jurisprudence, it would limit its role to reviewing the procedural correctness of the Speaker’s actions rather than second-guessing his legal interpretations.
“The Supreme Court may review whether the Speaker’s actions respected the jurisdictional boundaries set by the Constitution,” Prof. Abotsi explained.
However, he emphasized that the Court cannot assess the Speaker’s interpretation of the law or the merits of his legal reasoning.
In this sense, Prof. Abotsi pointed out that the Court’s role is narrowly confined to determining whether the Speaker has acted within his authority, not whether his interpretation of the law was correct.
Constitutional Mandate in Declaring the Seats Vacant
According to Prof. Abotsi, the Court’s jurisdiction in such matters is limited to ensuring that the Speaker has not exceeded the scope of his authority under Article 97 of the Constitution, which governs the vacancy of parliamentary seats.
Here, Prof. Abotsi opined that the Court can decide whether the Speaker acted prematurely or without sufficient cause in declaring the seats vacant, but it cannot dictate how the Speaker interprets the constitutional provisions that govern such decisions.
However, Prof. Abotsi introduces a caveat that adds another layer of complexity, stating that “the Supreme Court is not bound by its own jurisprudence”.
He argued that while the Court has consistently upheld the principle of non-interference in parliamentary affairs, it is not forbidden from revisiting its earlier rulings.
“The Constitution allows the court to go back on its own jurisprudence. But this is not something the court does slightly. Usually, when they have to do that, they will mash out sufficient justification and arguments to demonstrate why a particular decision in the past doesn’t make sense any longer”.
Professor Ernest Kofi Abotsi, Dean, University of Professional Studies Accra Law School
The implications of such a decision would be profound. If the Supreme Court were to break from its tradition of judicial restraint, it could set a new precedent for increased judicial oversight of Parliament, potentially altering the balance of power between the branches of government.
This, however, could also invite more frequent conflicts over jurisdiction, as both the judiciary and the legislature vie for interpretative authority over the Constitution.
In essence, the lawsuit against the Speaker’s ruling exposes a faulty line in Ghana’s constitutional framework. On one hand, there is the need to preserve the autonomy of Parliament and the separation of powers that underpins democratic governance.
On the other hand, there is the possibility that the judiciary, through its evolving interpretations of the Constitution, could begin to assert greater control over parliamentary processes.
While Dr. Sai underscored the clear distinction between courts and Parliament in matters of constitutional interpretation, Prof. Abotsi warned of the thin line the Supreme Court must walk in preserving its jurisprudence while responding to new legal challenges.
Whether the Supreme Court chooses to maintain its traditional stance of non-interference or embarks on a path of judicial activism will have lasting consequences for the relationship between the judiciary and the legislature.
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