SC ruling on Deputy Speakers: Constitutionally correct decision, says CDD boss

Professor Henry Kwasi Prempeh, the executive director of the Ghana Center for Democratic Development (CDD-Ghana) has defended the Supreme Court’s ruling upholding the right of Deputy Speakers of Parliament to vote.

According to Prof Prempeh, it is “a constitutionally correct decision, no matter what one might feel about the outcome politically.”

He said, “The authority and dignity of the Speaker’s office in the conduct of the business of the House is worth preserving.”

“All in all, a correct constitutional decision, albeit politically messy and unpleasant within the context of the circumstances of the 8th Parliament. Still, not such a big deal. Let’s move on,” he said in a Facebook post.

Last week, a seven-member Supreme Court panel, presided over by Justice Jones Victor Mawulorm Dotse, by unanimous decision declared that the two Deputy Speakers of Parliament remain Members of Parliament when they are presiding and that they can vote and be counted as present for purposes of decision-making in the House.

The Supreme Court ruled that Order 109 (3) of the Standing Orders of Parliament, which state that “a Deputy Speaker or any other member presiding shall not retain his original vote while presiding”, is unconstitutional and same is struck out as unconstitutional.

However, the Minority Leader in Parliament, Haruna Iddrisu, has described the Supreme Court’s declaration that the two Deputy Speakers of Parliament can vote while presiding as a travesty of justice relating to parliamentary practice.

But Prof Prempeh said “the longevity of a practice does not cloak that practice with constitutionality.”

“No matter how longstanding a practice, its constitutionality cannot be established or presumed until and unless it is challenged in an appropriate constitutional case. Thus, the fact that this is how Parliament has done its business all this while is not a good enough argument, constitutionally speaking.”

Prof Prempeh also believes that the influence of Deputy Speakers has been overestimated in the ongoing controversy.

“Presiding does not, in and of itself, present much of a conflict of interest to cause a Deputy Speaker to forfeit their vote, especially if he or she were to be required by House rules to vote last or cast a vote; only when there’s a tie.”

He said “if we do not want presiding Deputy Speakers to vote, the solution is simple: Don’t let them be MPs. Make them like the Speaker; not an MP and, therefore, not entitled to vote.”

“As long as presiding Deputy Speakers are, first and foremost, MPs elected to represent communities of voters in Parliament, Parliament cannot reasonably deprive them of their right to vote merely by virtue of the fact of presiding over a sitting of Parliament,” he added.

Background

Justice Abdulai, a law lecturer at the University of Professional Studies, Accra (UPSA), instituted an action at the Supreme Court seeking a declaration that it was unconstitutional for the First Deputy Speaker of Parliament, Joseph Osei-Owusu, to have counted himself for the purpose of making up the quorum of half of the Members of Parliament (MPs), required by Article 104 (1), when Parliament approved the 2022 Budget Statement and Economic Policy of Government on 30 November 2021.

In his statement of case, the plaintiff further contended that: “To the extent that the Deputy Speaker cannot be counted, the decision taken on 30 November 2021 to approve the 2022 Budget was a nullity.”

Reliefs sought

According to the plaintiff’s statement of case, he was seeking a declaration that, “upon a true and proper interpretation of Articles 102 and 104(1) of the 1992 constitution, a Speaker or any other person presiding over Parliament cannot be said to be part of the members present for the purposes of decision-making”.

He also demanded a declaration that, upon a true and proper interpretation of Articles 102 and 104(1), the First and Second Deputy Speakers, when presiding over Parliament, have the same authority as the Speaker of Parliament and can therefore not be counted as MPs present for the purposes of taking a decision in accordance with Article 104(1) of the 1992 constitution.

Consequently, he claimed a declaration that the decision to approve the 2022 Budget, taken on 30 November 2021, amounted to a nullity and was of no effect.

AG’s rebuttal

The Attorney General, in his statement of case opposing the arguments of the law lecturer, argued that a Deputy Speaker of Parliament, or any member presiding over proceedings in the House in the absence of the Speaker, is entitled to be counted for the purpose of making up the quorum of half of the MPs required by Article 104 (1) of the constitution for determination of matters in Parliament.

He said further that a Deputy Speaker or any member presiding over proceedings in the House in the absence of the Speaker is entitled to cast a vote for the purpose of taking a decision in the House in accordance with Article 104(1) of the constitution.

The AG argued that the view espoused by plaintiff suffered from a fundamental failure to distinguish between a “Speaker qua Speaker under the constitution” and a “Member of Parliament who deputises for the Speaker” by virtue of Articles 96 and 101.

The Attorney General submitted further that the plaintiff relied on a very narrow, literal and absurd construction of Articles 96, 101, 102 and 104 of the constitution, thereby failing to take account of the different kinds of quorums required for the different “businesses” of Parliament and the rationale therefore, which supports the AG’s view that, in so far as decision-making in Parliament is concerned, all Members of Parliament including a Deputy Speaker when presiding, are entitled to vote.

Kinds of quorum

On the different kinds of quorum established by the 1992 constitution, Dame submitted: “It is clear from Article 102 that, for the ordinary business of Parliament, there must be a quorum of only one-third of all the Members of Parliament.

“Given that Parliament presently is made up of 275 members, the quorum required for the conduct of its business is 92 MPs. On the clear wording of the provision, the person presiding is not counted as part of the quorum.”

The AG then invited the court to take particular account of the words “person presiding” in Article 102, and held that, “When the constitution deliberately meant to specifically exclude a Deputy Speaker or any person who at a material point in time is performing the role of Speaker, from being included in the reckoning of any number for any purpose in Parliament, it said so in unambiguous terms.”

Articles 102 & 104

Dame submitted further that Article 102 is not the only provision of the Constitution on “quorum”, and that, Article 104 is on the “voting procedure” in Parliament.

“The provision provides for the manner in which a decision on a matter is generally determined to have been made on a matter,” he said, adding “this is set at a majority of members present and voting.”

The AG said, “Article 104 further, specifically provides for the number of Members of Parliament who must be present before a decision is made. This is set at, at least half of all the Members of Parliament. For the current composition of Parliament, that number clearly must be 138.

Thus, for the purposes of Article 104, i.e. taking a decision on any matter in Parliament, at least 138 members of all the Members of Parliament must be present and out of this number, a majority must have voted on the issue. Any other construction, will manifestly do unwarranted violence to the clear words of Article 104(1).”

Number required

The Attorney General submitted that, unlike Article 102, Article 104(1) does not make reference to the exclusion of the person presiding or any MP in the reckoning of either the number required before a matter may be determined in Parliament, or the number required for the actual determination of a matter.

“The obvious implication is that all Members of Parliament – including the Deputy Speakers, who are also, first and foremost, Members of Parliament – are to be counted among the 138 members, which is half of the 275 elected members required, before a question may be put on an issue or decision may be made on a matter,” Dame said.

“Further, the Deputy Speakers, who are also Members of Parliament, are not barred by any word in Article 104 from voting on an issue, whether presiding over proceedings or not,” he further submitted.

Persons specifically excluded

Dame submitted that a close examination of Article 104 discloses that the individuals who are specifically excluded from voting in parliamentary proceedings are explicitly mentioned in that provision.

According to him, only two people are prohibited from participating in any vote in the House, saying, “The first person is, as Article 104(2) indicates, the Speaker of Parliament.”

The AG contended that, “Article 104(2) should be properly construed to mean the Speaker qua Speaker, and not any other person who, for the time being or on temporary basis, presides over the House but who has not been duly selected to be Speaker.”

He said the second class of persons Article 104 prohibits from exercising the right to vote is stipulated in Clause 5 of Article 104. This, Dame said, is “a member who is a party to or a partner in a firm which is a party to a contract with the government [who] shall declare his interest and shall not vote on any question relating to the contract. Apart from these, no other Member of Parliament is prohibited from voting on an issue in Parliament.”

In the AG’s view, the decision to exclude or bar a Member of Parliament who is duly elected as such, and who represents a whole constituency in Ghana, from voting on a matter has such far-reaching constitutional implications that if the constitution had intended to have such effect, it ought to have said so expressly.

He argued furthermore that the constitution ought to be interpreted to achieve such effect only if specific mention is made in the constitution.

Other jurisdictions

Dame asserted that the interpretation he urged on the court in relation to Article 104 – namely, to permit a Deputy Speaker to be counted as part of the quorum for reaching a decision on a matter in Parliament, and to permit him to exercise his/her right to vote – is consistent with the practice in other jurisdictions.

He cited examples from other countries in Africa as well as other parts of the world, including the United States of America and Australia, to support his position.

Asaase Radio 99.5 – tune in or log on to broadcasts online
99.5 in Accra, 101.5 in Bawku, 99.9 in Bimbilla, 100.3 in Cape Coast, 90.7 in Ho, 98.5 in Kumasi, 99.7 in Tamale, 89.5 in Tarkwa and 106.9 in Walewale
Join the conversation. Call: 020 000 9951 or 059 415 7777. Or WhatsApp: 020 000 0995.
#AsaaseRadio
#TheVoiceofOurLand