Thaddeus Sory, the legal representative for Ghana’s Speaker of Parliament, Alban Bagbin, has characterized the Supreme Court’s ruling in the case of Alexander Afenyo-Markin vs. the Speaker and Attorney General as “interesting.”
In a facebook post, he emphasized that there is no order against the Speaker following the court’s decision.
“THERE IS NO ORDER AGAISNT THE SPEAKER”.
Sory noted that the majority judgment highlights significant legal issues, particularly regarding the necessity for plaintiffs to amend their cases when circumstances change.
“In every case before the courts, the court’s 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.”
Sory emphasized that the court acknowledged that at the time of Afenyo-Markin’s filing, the Speaker’s response had not yet been made, indicating a lack of legitimate grounds for invoking the Supreme Court’s jurisdiction..
“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.”
Sory argued that the plaintiff’s reliefs did not seek a Supreme Court declaration that the Speaker’s response to the statement was null and void.
He said “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 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 be invoked”.
Again, Sory pointed out that while the majority expressed disagreements with the Speaker’s conclusions, they did not declare his responses null and void.
“There is no order saying 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.
Sory added “The order staying execution of the Speaker’s ruling is NOW SPENT”.
Supreme Court’s Ruling
The Supreme Court ruled that an MP can only vacate their seat if they switch political parties while serving in Parliament.
The court clarified that Articles 97(1)(g) and (h) apply strictly within the current parliamentary term and do not govern future elections or candidacies. “An MP’s seat shall be vacated upon departure from their elected party to join another party while seeking to remain in Parliament,” stated the court.
The ruling addressed concerns raised by Attorney General Godfred Dame, who argued that altering Parliament’s composition must adhere strictly to constitutional provisions.
He stated, “No person or institution has the power to alter the composition of Parliament,” reinforcing the need for adherence to established legal frameworks.
Reactions and Implications
In response to the ruling, Afenyo-Markin called for all parties, including Speaker Bagbin, to respect the court’s decision to restore order and functionality in Parliament.
He remarked, “This ruling is a victory for democracy and upholds our commitment to the rule of law.”
Speaker Bagbin had previously expressed concerns about judicial interference in parliamentary matters but now faces pressure to reconvene Parliament following this decisive ruling. With this judgment, Parliament can resume its functions ahead of the upcoming general elections scheduled for December 7.
Background of the Case
The case was brought by Alexander Afenyo-Markin, the Majority Leader and MP for Effutu, who argued that the Speaker’s actions violated the constitutional process. Bagbin declared the seats vacant on October 17, 2024, citing Article 97(1)(g) and (h) of the Constitution, which pertains to MPs changing their political affiliations while serving in Parliament. Afenyo-Markin contended that only the judiciary has the power to interpret constitutional provisions regarding parliamentary vacancies.
During proceedings, Afenyo-Markin emphasized, “We are not here to evade confusion but to resolve it,” highlighting the need for clarity in parliamentary operations. He asserted that the Speaker’s unilateral decision undermined democratic principles and the rule of law.
Read the full statement of Thaddeus Sory;
From Thaddeus Sory
THERE IS NO ORDER AGAINST THE SPEAKER.
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 court’s 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 be invoked.
Darko Asare JSC also admitted that it is events after the Plaintiff instituted the action in the Supreme Court that was 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 cognizance 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 lets 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.
Source: www.kumasimail.com /Kwadwo Owusu
