Friends, I think by now you are all well aware of what transpired on the floor of the Parliament of the Republic of Ghana on October 17, 2024. For the sake of those who need a recap, the Speaker of Parliament, the Rt. Hon. Alban Sumana Kingsford Bagbin ruled on a petition by Hon. Haruna Iddrisu that four Members of Parliament (MPs) have effectively "vacated their seats" on the basis that they have filed parliamentary nominations to run as independent candidates for the next parliament.

According to the Speaker, it is against Article 97 1(g) and the standing rules of the Parliament for a Member of Parliament "to cross carpet". 97 1 (g) states that a member of parliament vacates his seat "if he leaves the party of which he is a member at the time of his election to parliament to join another party, or seeks to remain in parliament as an independent member." The sanctions for crossing the carpet, according to the Speaker, amount to a vacation of a seat from Parliament. The Speaker, subsequently upon a motion, declared the four seats "vacated" and therefore ruled that the opposition National Democratic Congress (NDC) is the majority party in parliament.

The Firestorm. The ruling of the Speaker engendered a firestorm on the floor of Parliament. This occasioned the majority leader of the NPP, Hon. Alexander Afenyo-Markin to file a petition to invoke the original jurisdiction of the Supreme Court under Article 2 (1) which states: A person who alleges that - (a) an enactment or anything contained in or done, under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect; to interpret Article 97 (1)g stated supra.

Hon. Afenyo-Markin was successful in obtaining an interlocutory injunction against the said dismissal over the declaration of the speaker regarding the vacancy of the four MPs. The Apex Court in relying on the words of Justice Professor Date-Bah in Welcord Quarccoe vs AG, stated the basis of granting interlocutory injunction are: "the applicant must establish that there is a serious question to be tried; secondly, that he would suffer irreparable damage which cannot be remedied by the award of damages unless the interlocutory injunction is granted; and finally that the balance of convenience is in favor of granting him the interlocutory injunction."

The Speaker filed a motion at the Supreme Court to reconsider its decision based on many grounds; the separation of powers bars the court from interfering with the work of the Speaker, the service of the Speaker was invalid, the high court was the proper forum under Article 88 to dispute vacated parliamentary seats, the ex-parte motion and lack of discretion breached natural justice and Article 296, that the applicants motion was fraudulent misrepresentation.

The Supreme Court has rejected the Speaker's attempt to set aside its earlier interlocutory injunction. The Apex court's decision indicates that the motion did not invoke the proper review process of the Court. The Supreme Court's grounds for review of its decisions are technically different from an ordinary "appeal" process from the lower courts. It appears that the Speaker did not "route or ground" the review properly.

Secondly, the review process failed because in the opinion of the Apex court, its injunctive orders "did not interfere with the proceedings or functions of the Parliament" as the judgment required the legislative body to "continue with its usual business until the determination of the substantive matters" before it.

Additionally, the grounds to set aside the Apex Court's decision for "lack of jurisdiction," was hopelessly defeated, citing Article 2 (1). The Court has the sole authority over constitutional matters, including Article 97 1(g), the basis of the Speaker's decision.

The counsel for the Speaker made fruitless attempts to convince the Apex Court to accept that interpretations of potential breaches of Article 97 are matters for the High Court to determine. The Apex rejected the argument that even if the matter had gone to the High Court, under Article 99, as in the Republic vs. High Court, ex-parte Zanetor Rawlings, Article 130 (2), compel the parties to seek interpretation of the meaning of 97 (1)g at the Supreme court. For the avoidance of doubts, Article 99 grants jurisdiction to the High Court to conduct hearings regarding the validity of election and vacancy of seats in parliament, but NOT the interpretation of any article which is the preserve of the Supreme Court.

The Speaker's counsel made a curious legal argument that the decisions of the Speaker of Parliament were not "executable" and therefore, no need for "stay of execution orders."

The Attorney-General and co-counsels disagreed on the basis that the Constitution is clear in Article 2 (1) (2) that the Supreme Court is the uncontested forum for interpretation of any article of the Constitution including Article 97 cited by the learned counsel for the Speaker.

Secondly, the ruling of the Speaker had the executable effect of "vacating and dismissing four Members of Parliament" with immediate effect. The affected members are Hon. Peter Yaw Kwakye-Ackah (Amenfi Central), Hon. Andrew Asiamah Amoako (current Deputy Speaker of Parliament and MP for Fomena), Hon. Kwadwo Asante (Suhum), Hon. Cynthia Morrison (Agona West).

The matter is slated for hearing on November 6, 2024, at the Apex Court.

Commentary: Friends, it is said that "uneasy lies the head that wears the crown", especially the crown of Speakership of the Republic of Ghana. The decision of the Speaker to "vacate the seats" of four MPs, including his Deputy Speaker, is highly regarded by many to be partisan, to be charitable. Other "names" for the Speaker, are inappropriate for readers. Uneasy lies the head wearing the crown indeed. He has been "unforgiven" for his handling and interpretation of the parliamentary rules, articles 97 (1)g in particular, and lack of complete consequential orders to address the affected constituencies' interests whose representatives have been "booted out of parliament" by his singular decision.

Interpretation of Rules. It is said that the interpretation of any rules requires the adoption of the literal or the dictionary meaning of the written text. However, where the literal meaning of the text leads to an illogical or uncertain meaning or an impractical consequential order, then it is said that the decision has reached "absurdity". It should be abandoned.

When the literal meaning of the interpretation of the rules of the Parliament led to the declaration that the four Parliamentarians had vacated their post, the Speaker should have ordered "special elections" to replace the "vacated seats" within sixty days. Since general elections are about 30 days away a "special election" would be impractical for the Electoral Commission, and all the affected individuals to comply. Think of interested candidates, vetting committees for the various primaries by political parties before the actual "special elections", while at the same time, the same EC and the same interested parties are compelled to prepare for general elections. Besides, the decision of such a "special election" would be effectively nullified by the general election. It would be a waste of vested resources just to raise tensions in a politically sensitive period. Such a decision, simply stated would be "impractical" to obey. It's reached "absurdity".

Everyone with authority is given the power of discretion in the exercise of the authority. The four individuals have not written to resign from Parliament, and the Privileges Committee has not made adverse findings against them. There is no allegation of misconduct, criminal or civil, in public or private dealings. They are and remain duly and properly sworn elected Members of Parliament. The only matter of contention is the filing of nominations to contest for their respective seats in the general elections on December 7, 2024, to be MPs in the next Parliamentary session beginning on January 7, 2025, albeit as independent candidates for three of them and one as a New Patriotic Party member. Only heaven knows if they will succeed.

The Speaker can derive a technical meaning of "vacation of seat" from the current session of parliament as a separate matter from a member's aspirations to be a representative in a future parliamentary session subject to the outcome of an election. It would have been better to avoid applying severe sanctions of "booting out" the MPs from the current session for which they are duly elected to serve before their fate in the future parliamentary session is decided. That discretion will be above the charge of partisanship. It will be welcomed as a measure of fairness.

Ironically, the guide to the interpretation of rules requires that where the determination creates the appearance of injustice or arbitrariness, such a rule is purposively abandoned. The adoption of the interpretation that these four MPs have vacated their posts, and without making any provisions for the affected constituencies to be represented for the remainder of Parliament amounts to disenfranchisement. It also amounts to punishing the constituencies for the errors of others. The decision strips the affected districts for effective representation. That has the moral appearance of unfairness (injustice) which further compounds the absurdity.

Whatever authority that the Speaker of Parliament has is derived from the Constitution. The Legislative, Judiciary, and Executive branches of government are all creatures of the Constitution 1992.

It is trite law that whenever there is alleged contravention or omission of any provisions of the articles of the Constitution, the proper forum to seek interpretation is the Supreme Court. This issue has been confirmed in Tuffuor vs Attorney-General, the NPP vs Attorney-General (the CIBA case), the 31st December case, and countless others.

The High Court, even if there is an outside chance to review the constitutionality of parliamentary proceedings, the matter is still reviewable by the Supreme Court ultimately. It seems to me the Speaker is fighting a losing battle, and waves his crown in turbulent political and legal waters.

Additionally, it is a strange legal theory to argue that a decision with such a monumental effect of booting four Members of Parliament, one of whom serves as his deputy, is not an executable decision. His decision had an immediate effect. The decision should not stand.

Moreover, the actions of the Speaker effectively strip the affected constituencies from having representatives to serve their needs. In other words, a greater injustice is caused by the dismissal of the four MPs than by allowing them to serve the remainder of their term in office.

The noted legal theorist Bentham would instruct us to "do the best for the greatest number of the people". He argued that "the moral quality of action should be judged by its consequences on human happiness" and for 'greatest happiness for the greatest number' of people.

One has to ask oneself, what greater good is served by such a harsh interpretation of the rules by the Speaker? The actions of the Speaker raise the question of hyper-partisanship. The Office of the Speaker of Parliament requires an "above-politics-approach", even-handedness, and steering parliamentary affairs to "safe harbors" of the law. The role of law or the purpose of law is to bring order, not chaos; is to bring clarity, not confusion.

The will of the people.

One has to be mindful that some decisions are best made through the political process. The political question issue. For such reasons, one should restrain oneself from making decisions pertaining to the will of the people. Which party is majority or minority is determined at the ballot box- the will of the people decides. For now, let's all wish the Speaker well. Let his Crown rest on his head with ease and grace. Vote. Somewhere, I read all things are possible. Peaceful election is possible.

Philip A. Bannor, Internal medicine specialist, and former General Secretary of NPP-USA.