IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ? ACCRA

CORAM: MRS. ABBAN, JA [PRESIDING] ACQUAYE, JA ADUAMA OSEI

H1/65/07

11TH DECEMBER, 2008

PROFESSOR STEPHEN KWAKU ASARE PLAINTIFF/APPELLANT

VS.

1. THE ATTORNEY-GENERAL

2. THE SPEAKER OF PARLIAMENT DEFENEDANTS/RESPONDENTS

3. THE ELECTORAL COMMISSION

4. HON. ERIC AMOATENG

J U D G M E N T

ACQUAYE, JA: The undisputed facts resulting in this appeal are that in November 2005, the Honourable Eric Amoateng, Member of Parliament for Nkoranza North Constituency under Standing order 15 obtained the Speaker of Parliament’s permission to absent himself from parliament from 17th November to 24th November 2005. He then travelled to the United States of America where he was arrested and detained for possession of narcotic drugs. Unable to attend parliament, Eric Amoateng sent his lawyer with a letter to the Speaker some three months thereafter explaining the cause of his continued absence from parliament and requesting for an indefinite leave of absence. The Speaker referred the letter to the Parliamentary Committee on Privileges which met on 22nd February 2006 and recommended to the House of parliament on 2nd march 2006 to grant the Honourable Member an indefinite leave of absence. After some debate, Parliament approved the recommendation and granted the Honourable Member an indefinite leave of absence to fight the drug case in Court in the United State of America.

On 14th March 2006 the plaintiff/appellant took out a writ of summons in the High Court claiming:-

A declaration that on a true and proper interpretation of Article 97 (1)(c) of the 1992 Constitution, the seat of Hon. Eric Amoateng became vacant by operation of law by virtue of his absence from 15 continuous sittings of Parliament without the written permission of the Speaker and without any explanation to the Parliamentary Committee on Privileges.

A declaration that on a true and proper interpretation of Article 97 (1)(c) of the 1992 Constitution, the Parliamentary Committee on Privileges (and hence Parliament) has no authority to grant to the Honourable member a dispensation to be absent from Parliament indefinitely as they have power to grant dispensation for only 15 days and that the request for dispensation came too late and is unconstitutional, incompetent, void and of no effect.

A declaration that the Honourable Member of Parliament has failed to offer any reasonable explanation for his absence from Parliament for 15 sittings and that any attempt to justify his absence on account of his lawful detention in connection with investigations into a criminal/narcotic case is in law unreasonable.

An order directing the Speaker of Parliament to direct the Clerk of Parliament to report the vacancy of the Nkoranza North seat to the Electoral Commissioner with a view to the latter conducting bye-elections for the said vacant seat.

Costs.

Such further order or orders that the Court may deem fit.

The plaintiff/appellant claims were resisted by the 1st and 2nd defendants/respondents on the grounds that:

The issue of a declaration of a provision of the 1992 Constitution is under Articles 2 and 130 reserved unto the Supreme Court hence the High Court has no jurisdiction to entertain the claims of the plaintiff/appellant.

Parliament in its wisdom has debated the vacancy of the Nkoranza North seat and has arrived at a contrary conclusion and that procedural matters are within the exclusive province of Parliament under Article 110 and the courts do not have the function of determining for Parliament the procedural rules of parliament. . The Trial high Court set down the issues raised for legal arguments and after going through the written submission for the parties ruled that under Article 99(1)(a) of the 1992 Constitution the High Court has jurisdiction to hear the case. The learned Trial Judge also held that once Parliament in the performance of its functions acted within the confines of the Constitution or complied with the provisions of the Constitution, its acts are not open to the scrutiny of the courts. For Article 110(1) of the Constitution allows Parliament to regulate its own procedures. It is against this judgment that the Plaintiff has appealed. The first ground of appeal is that the learned judge erred in law in holding that once parliament had decided to grant the 4th Defendant an indefinite dispensation to be absent from Parliament, the matter was a political question which the High Court could not review. It was argued on this ground that Article 97(1)(c) says “A member of parliament shall vacate his seat in parliament if he is absent without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliament Committee on Privileges from fifteen (15) sittings of a meeting of Parliament … .”

The Plaintiff/Appellant (hereinafter referred to as the Appellant) contends that once a member absents himself from parliament without explanation for more than 15 sittings in this case, that member’s seat automatically becomes vacant by operation of law. This argument is sound in law and I accept it. Under the 1992 Constitution however, it is the High Court which can declare a Member of Parliament’s seat as vacant. Until such declaration by the High Court the position of the Speaker seems to be in limbo. The Constitution does not prescribe a time limit within which the Speaker or the Committee on Privileges should act and no standing order of Parliament has been brought to the notice of the court. It is for the Clerk of Parliament to notify the Privileges Committee of a vacancy under Article 112(5) but again no time limit is set for the determination of the vacancy. The matter is thus left in the domain of Parliament to regulate its own procedure. In the instant case it took three months before the Speaker received the member’s letter asking for dispensation before the Speaker referred the matter to the Committee on Privileges. As the Constitution does not envisage a constituency not to be represented in parliament for much more than fifteen days, the delay is not good for our democracy.

A second ground for appeal not specifically set out in the notice of appeal but which was nonetheless argued as the second claim of the appellant is that it was unlawful for parliament to grant the Member of Parliament for Nkoranza North permission to be absent indefinitely. It is trite law that when an enactment sets down a time limit for doing an act, that time limit cannot be exceeded. Article 97(1)(c) of the Constitution and Standing order 15 of Parliament sets down fifteen days as the maximum period which a member can be absent without the Speaker’s permission or explanation to the Parliamentary Committee on Privileges. It follows therefore that neither the Speaker nor the Committee on Privileges can grant the member more than fifteen days absence or indefinite absence. What must be remembered however is that the indefinite leave of absence was granted not by the Speaker or the Committee but by Parliament. This brings into question the “Political Question Doctrine.” The Trial Judge relying on Tuffuor v. Attorney General [1980] GLR 637 held that

“The Court cannot therefore inquire into the legality or illegality of what happened in parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of Article 91(1), its actions within Parliament are a closed book.”

In so finding the Trial Judge obviously disregarded the first of the two principles established by that case. That is, the courts can call in question a decision of Parliament but that the courts cannot seek to extend their writs into what happens in Parliament. In the case of New Patriotic Party v. Attorney General [1993-94] 2 GLR 35, it was held that that the doctrine of “political question” was inapplicable to Ghana since under Articles 1, 2 and 30 of the 1992 Constitution, issues of constitutional interpretation were justiciable by the Supreme Court and questions of fundamental human rights reserved to the High Court. The question of determining the vacancy of a seat in parliament is bound to have political dimensions but has been reserved for determination by the High Court by the 1992 Constitution. I agree and am bound by the Supreme Court’s finding in New Patriotic Party v. Attorney General that it would be an abdication of the courts responsibilities under the Constitution if the court were to refuse jurisdiction in a constitutional case on the ground that it was a political issue.

I dismiss the finding of the Trial Judge that this is a political issue not justiciable by the court and hold that the court is bound to determine the question of legality of granting an indefinite leave of absence to the Member of Parliament.

I have already found that that the maximum period the Speaker could allow a member of Parliament to absent himself from parliament is 15 days. It is unacceptable for Parliament to grant a leave of absence longer than envisaged under Article 97(1)(c) of the Constitution and the Standing Orders of Parliament. I find that it was unlawful for Parliament to grant the Honourable Member of Parliament indefinite leave of absence.

It was argued on behalf of the 1st and 2nd Respondents that the issues before the court are moot and no more alive for adjudication because since the institution of this appeal, the 4th Defendant has resigned his membership of Parliament, necessitating a bye-election which was held on Tuesday, 13th March 2007. It must be pointed out that it was held at page 323 in J. H. Mensah v. Attorney General [1996-1997] SCGLR 320 that “Thus for the court to decline a moot question, it must be established that subsequent events had made it absolutely clear that the alleged wrong behavior could not reasonably be expected to occur. Where it was not so established (as in the instant case) the court would go into the question to forestall a multiplicity of suits.”

Acquah JSC (as he then was) continued on page 360 thus:

“Now whatever the merits of these preliminary objections, it cannot be denied that the tension that this dispute caused both in and outside Parliament and in the nation as a whole, makes it prudent that this court determines the questions in issue for the guidance of future Governments and parliament.”

The issues raised are thus not moot but live. It is for the above stated reasons that I set aside the earlier findings of the Trial High Court and allow the appeal. The appellant however prayed for an order directing the Speaker of Parliament to direct the Clerk of Parliament to report the vacancy of the Nkoranza North seat to the Electoral Commissioner with a view to the latter conducting bye-elections. This issue apart from being moot as elections have already been held for the seat; it is my view that it is only the Supreme Court which can make orders for the enforcement of the Constitution Each party is to bear his or her own costs.

K. A. ACQUAYE JUSTICE OF APPEAL

I agree . H. ABBAN [MRS] JUSTICE OF APPEAL

I also agree. K. N. ADUAMA OSEI JUSTICE OF APPEAL