Vacant Parliamentary Seat Dispute: Invoking Supreme Court is wrong – Justice Atuguba
Retired Supreme Court Judge, Justice William Atuguba, has stated that it was legally incorrect to invoke the Supreme Court in the parliamentary vacant seats controversy.
His comment follows the Majority Leader, Alexander Afenyo-Markin, filing an injunction application in the Supreme Court in response to the Minority’s efforts to have the seats of Independent candidates declared vacant. This development occurred after former Minority Leader, Haruna Iddrisu, announced that his side of the house intended to invoke Article 97(1)(g) of the Constitution to vacate the seats of three Majority MPs and one NDC MP.
The relevant constitutional provision stipulates that an MP shall vacate their seat if they leave the party under which they were elected or seek to remain in Parliament as an Independent candidate.
Last Thursday, Speaker of Parliament Alban Bagbin declared the Agona West, Suhum, Amenfi Central, and Fomena seats vacant. While Cynthia Morrison and Kwadwo Asante of the New Patriotic Party (NPP) filed to contest the December 7 election as Independent candidates, Peter Kwakye Ackah of the NDC also filed to contest as an Independent. Andrew Amoako Asiamah, who entered Parliament as an Independent candidate, has filed to contest under the NPP’s ticket.
However, the Supreme Court of Ghana on October 18, 2024, stayed the ruling of Speaker of Parliament, Alban Bagbin, in the matter of the vacation of some four seats.
This occurred as the highest court in the land, led by Chief Justice Gertrude Torkornoo, considered an application from the New Patriotic Party (NPP) Members of Parliament.
The decision by the apex court effectively suspends the implementation of the Speaker’s ruling on October 17, 2024, pending further legal review and final determination.
Commenting on this development in an interview with TV3, as reported by GhanaWeb, Justice Atuguba said that the Supreme Court should not have been the first point of call, as stipulated by the Constitution.
According to him, per Article 99(1), “The High Court shall have jurisdiction to hear and determine any question whether (a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant.” He asserted that the High Court should have been the appropriate forum to hear the case.
“As far as I am concerned, this issue of vacating seats is specifically dealt with in Article 99… The question here involves the vacation of the seats of the four MPs, so it is a matter for the High Court, not the Supreme Court. To that extent, invoking the Supreme Court over this matter is wrong,” Justice Atuguba said.
“They [the Supreme Court] don’t have original jurisdiction. They have referral jurisdiction in the sense that if a constitutional provision arises which is not clear and requires interpretation, Article 130 gives the interpretative and enforcement powers to the Supreme Court. If such an issue arises in a lower court, the lower court shall stay the proceedings and refer the matter to the Supreme Court for determination, and then proceed in accordance with the interpretation.
“So, since Article 99 has entrusted matters of seat vacancies to the High Court, you don’t go directly to the Supreme Court. But they do have referral jurisdiction if an issue of constitutional interpretation arises. That’s how I see it,” he concluded.
