On Tuesday, November 30, Members of Parliament convened in the Chamber to continue with business of the House, but the Majority caucus had a different agenda and that was to overturn the rejection of the 2022 budget by their minority caucus.
However, a decision by the Minority caucus not to show up in the Chamber made the work of the Majority and the First Deputy Speaker, Mr Joseph Osei Owusu, who sat in the chair, very easy. They were able to approve the budget through a voice vote.
On Wednesday, December 1, 2021 the Minority reconvened in the chamber with the intension of making the First Deputy Speaker rescind the decision on the approval of the budget, but this was met with fierce argument from the Minister for Lands and Natural Resources and Member of Parliament for Damongo, Mr Samuel Abu Jinapor.
The argument which shattered the dream of the Minority centered on numbers that form a quorum for business and quorum for taking decisions in the House. He made reference to the Parliamentary Hansard and court rulings with regards to the issue at hand. Chief among his references was a ruling made by a Former Speaker of Parliament, Mr Edward Korbly Doe Adjaho, on 22nd December, 2015 on issues of quorum.
Below is the full transcript of Mr Jinapor’s argument
Mr Speaker, with the greatest of respect, it is obvious that our national constitution risks being defiled. The provision of the constitution on this matter is clear.
Mr Speaker, Article 102 and 104 are clearly distinguishable. Mr Speaker, the quorum is clearly distinguishable and Mr Speaker, for the avoidance of doubt let me read Article 102 and 104. Article 102 reads: “A quorum of parliament apart from the person presiding shall be one third of all the members of parliament
Mr Speaker, it is needless to point out that this quorum, pursuant to Article 102 is a quorum for conducting business. Mr Speaker, in that respect, may I respectfully refer the house to a book written by the respected K.B Ayensu and S.N Darkwa, on an “Introduction to the law practice and procedure of parliament of Ghana.”
Mr Speaker, that book clearly states a quorum for conducting business. Mr Speaker, Article 104 reads: “Except as otherwise provided in this constitution, matters in parliament shall be determined by the vote of the majority of members present and voting with at least half of all the members of parliament present”.
Mr Speaker, the distinction is that whereas in Article 102 the framers of the constitution deliberately mention the person presiding over the meeting for purposes of quorum for conducting business, in Article 104 the framers of the constitution deliberately omitted the person presiding for purposes of quorum.
Mr Speaker, with the greatest of respect, a first year student of a class of interpretation will be taught the canon or tool of interpretation, which states and I quote: “Expressio Unius Est Exclusio Alterius,” to wit – “Express mention of a thing implies the exclusion of all others.”
If the framers of the constitution intended that the person presiding ought to be excluded for the purpose of a quorum for taking a decision, they would have said so expressly, Mr Speaker that is the law.
Mr Speaker, may I also refer the house to Article 57 of the constitution. Article 57(2) states: “The President shall take precedent over all other persons in Ghana and in descending order the Vice President, the Speaker of Parliament and the Chief Justice shall take precedent over all other persons in Ghana.
“In this Article 57(2), the order is the President, the Vice President, the Speaker and the Chief Justice. Mr Speaker, when we go to Article 20 of the constitution, where it talks about succession, the framers of the constitution talk about the President, and when he is not there the Vice President, and when he is also not there the Speaker.
The farmers of the constitution deliberately omitted the Chief Justice and this is because in the Expressio principle you cannot include the Chief Justice in Article 60. That is the law. Further, Mr Speaker, any careful examination of the 1992 national constitution as a whole, you will realise that the framers of the constitution keep using Speaker, First Deputy Speaker, Second Deputy Speaker and the person presiding.
Mr Speaker, on the matter of quorum, fortunately on the principle of precedent, this parliament has had an occasion and Mr Speaker I have in my hand the Hansard of this House dated Tuesday, 22nd December 2015 where this same matter came up for consideration and Mr Speaker it is instructive to note that the current Speaker of Parliament, Mr Alban Bagbin, had something to say about this particular matter we are discussing in this chamber.
Mr Speaker, at exactly 3:20pm when this matter came up for litigation, the Speaker, who was then the Majority Leader, had this to say: “In the case of headcount, Mr Speaker shall take the vote of the House by calling upon members who support or oppose his decision successively to rise in their places. A member may vote in a division even if he did not hear the question put.
“Mr Speaker, it is important for this to iron out clearly upward. Mr Speaker, after you have taken the count, it is incumbent on Mr Speaker to allow the result, after that others can follow, but it is unprecedented to defer the result. Mr Speaker, the results will have to be announced for us to know. This is because I believe that we satisfy the constitutional provision as provided in article 104 and I would want to read that and he (Mr Bagbin) quotes and goes on to say that Mr Speaker, we are 275 members, half of that is 138, Mr Speaker, I believe that we are more than 138 so we satisfy the constitutional provision.”
Mr Speaker, even more instructively, the Speaker at the time, Mr Doe Adjaho, gave a ruling on that litigation and the ruling is captured in the Hansard of 22nd December, 2015 and with your permission let me quote the ruling of Mr Doe Adjaho, because it so instructive and settles this matter in any respect.
He said: “Honorable Members, you are aware that this house is not supreme, we are subject to the constitution of the Republic of Ghana. The rule is that where the constitution has made a provision for regulation of the House, they take precedence over any other and indeed in the Standing Orders of this House there is quorum to do business and that is one third of the House and there is quorum to take decision so we need to draw a distinction between the quorum to do business and the quorum to take decision. The quorum to take a decision is regulated by Article 104(1).
“The fundamental question is that, the time that the vote was taken, did we have at least half of the honorable members present? It’s a constitutional issue which has to be captured in the Standing Order 109 of our Standing Orders. If we go by the results of the headcount by adding 67 to 66 you will get 133, therefore, there is a serious constitutional issue here. So at the time that the vote was taken this House lacked the legal, in fact the constitutional capacity to take a decision so entirely endorse the position taken by the Honourable First Deputy Speaker that we do not have the number, constitutionally speaking to take a decision, therefore no decision has been taken.”
So Mr Speaker, the import of what the learned Speaker Doe Adjaho is making is exactly the point I am making but article 102 and 104 are distinguishable and so our friends from the other side, their reliance on article 102 does not help their case, does not resolve the matter. If you want to find out whether or not the person presiding can be part of the quorum to take a decision, go to Article 104, go to Article 104, it is there black and white, it is established.
Mr Speaker, in conclusion, there are replete of authorities from the Supreme Court to affirm this decision of distinction and Mr Speaker there are so many of them and I cannot give all of them to you, but permit me to cite one of the locus classicus when it comes to the canon on the tool of interpretation of distinguishing one part of the document and another part of the document, where if a matter is expressly mentioned in one part of the document but not mentioned in the other, it means that it is excluded.
Mr Speaker, I refer to Kwadjoga Adra vrs National Democratic Congress, writ number JI/13/2014, Supreme Court dated 15th July, 2015. So Mr Speaker, let me conclude by urging upon you that what took place yesterday in this house was constitutional, was lawful, was legal, was appropriate, was in accord with the practice and conventions of this House and indeed as Member for Bekwai you are entitled to be counted for purposes of a quorum to take a decision and we didn’t need Mr Speaker voting to take a decision, we needed half of the members present to take a decision and that decision is valid and must stand.