The Constitution of the Republic of Ghana, 1992, is by Article 1 (2) “the Supreme law of Ghana’ and Article 2 (1) 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.’’
This 1992 Constitution makes the government of Ghana a Constitutional government, under Second at Moustesquicu; (Spirit of the Law: 1748) ‘‘triapolitica’’ of separation of powers: executive, legislature, judiciary.
The generality of the pliable population have been pliant with it, and allowed it to grow – to the extent that other African countries have looked on with envy and wondering how Ghana has moved on politically the past thirty-two (32) years, despite the turmoil in the states around us: Burkina Faso, Niger, Senegal, Mali.
The trick is the ‘fa asem kye’ (forgiving) attitude of the Ghanaian. So that, when Akufo-Addo took the 2012 election petition to court and lost said ‘‘I have called President John Dramani Mahama and I have congratulated him. Whilst I disagree with the court’s decision I accept it. It brings finality to the election dispute”.
This message calmed the nerves of the NPP supporters who had ‘learnt’ the belligerence of ‘others’, got their macho-men on the ready and sharpened their instruments of violence to go the way of Bernard Shaw’s “State of Nature”.
Article 97 had lain in the 1992 Constitution for as long as the constitution’s life without anyone questioning it like Dr. Amoako Baah of the KNUST Political Science Department boldly stating that “it was poorly written’ Yaomi Labik (BunkpuruguYooyoo, 1992, 1996, 2000), Abubakar Siddique (Salaga: 2004), the late Rashid Bawa (Akan Constituency); Joseph Osei-Wusu (Independent – Bekwai MP 2012 later re-joined NPP); William Akoto (Birem North MP 2004: independent), Teye Nyaunu. (Lower Manya, MP 2008, suspended by his party NDC) had done what they did without anyone invoking Article 97 clause 1 sub-clause (g) and (h).
But when, Andrew Asiamah in 2020 stood as an independent candidate for Fomena, the Speaker, Honourable Prof. Mike Oquaye, our revered Political Science lecturer at Master’s level at the University of Ghana, endorsed the NPP application to have him removed from Parliament, invoking Article 97 clause 1 (g) (h). Prof Oquaye said due process was followed in this case which was abundantly cited as a precedent: “In fact, it was some parts of the executive that initially were protesting. I told them they had no locus… So, the NPP as a party wrote to the Speaker stating why they were withdrawing their support because according to the Constitution, this person had betrayed his allegiance to the party…”
The learned Honourable Oquaye gave the background for this provision in the 1992 Constitution to avoid “carpet-crossing” as was prevalent in the days of Dr. Kwame Nkrumah’s CPP and Dr. Busia’s U.P. (now referred to as “defection” or “party switching”) it is strictly “identity politics” according to Vladimir Antwi.
So, the Speaker, Alban Bagbin on 18/10/24 declared four parliamentary seats vacant: Cynthia Morrison (NPP MP-Agona West), Kwadwo Asante (NPP MP – Suhum), Peter Yaw Kwakye-Ackah (NDC MP – Amenfi Central); Andrew Asiamah Amoako (Independent MP-Fomena). The first three had filed as independent candidates and the last one had filed to contest the Fomena seat on the ticket of the governing NPP. Where was natural justice; audi alteram partem; nemo judex in causa sua.
With the speed of lightning, Hon. Afenyo Markin rushed to the Supreme Court to compel Parliament to “stay” the order. With the corresponding alacrity, a panel of five judges of the Supreme Court, presided over by the Chief Justice, Gertrude Sackey Torkonoo with Justices Mariama Owusu, Kwame Adibu Asiedu, Ernest Yao Gaewu, Yaw Darko Asare held that the declaration of the seats of the 4 MPs as vacant was against the rights of their constituents.
The speed at which the Supreme Court acted this time round has left many people asking about the fate of Santrokofi, Akpafu, Lolobi (SALL) and the LGBTQ Bill. Who will doubt the unique impact and excellence of these veterans in law, but the criticisms are legion and as Nyaho-Tamakloe says “people are losing faith in the judiciary ‘leaving us to wonder what the “Agyapadie Book” talks about “5.0. The Judiciary and Governance in Ghana”. We quote (p. 31) “Considering the competitive nature of our work as politicians, there’s always a need to be a step ahead against our opponent to secure our interest, dominance and maintain power in 2020 and the next 20 years… All the appointments made to the Supreme Court, Court of Appeal and some of the High Courts in Ghana under our government were to promote the NPP agenda and to ensure our country never falls into the hands of the Opposition NDC”. Who wrote this, just to denigrate the Judiciary under this government? The chorus answered “opposition’s assigns”.
As the days rolled by Tuesday, 22/10/24 came and the right-hand side of the Speaker in the Chamber of Parliament was occupied by the Opposition NDC who claimed they were now in majority (136) with NPP (135).
The anticipation of the NDC MPs was very high and “revolutionary” after “starving” for eight (8) years, the euphoria was anticipated.
The NDC cannot wait for the general elections to come on 7th December to see whether they will win the majority of seats. They tell the world that this is a “dress rehearsal” of what will happen in 2025. We pray for them, but how did we get here?
The NDC accuse the NPP of pride, greed, self-centeredness, boastfulness, and corruption. Much as we try to defend the NPP, there are certain behaviors that make us doubt our own approach- whether we are not guilty of betraying our own principles. People like Kwaku Ansa-Asare, Dr. Amoako-Baah and Dr. Nyaho-Tamakloe may appear too critical of NPP now but ask, what is the principle that guides their actions and statements? Dr. Amoako-Baah, for example, says Prof. Mike Oquaye did not make a mistake, the Speaker (Bagbin) was right, the Supreme Court has ultimate power under Article 130 to interpret law. It says: … the Supreme Court shall have exclusive original jurisdiction in (a) all matters relating to the enforcement or interpretation of this constitution….’ and we have cases of Tuffour Attorney General (1980) GLR 637 in which Nana Akufo-Addo, the President and Tsatsu Tsikata were the counsel for Tuffour, recognized as locus classicus on constitutional interpretation, and per Justice Sowah’s assertion; ‘… a written constitution is a living organism capable of growth and development…’
We wish to conclude by congratulating all the players in the 22/10/24 anticipated brouhaha that “saved” this country from chaos, the NDC with their “lizard” march the Speaker for his level-headedness and his 20 minute orders Article 102, 104, Order 64 adjourning the Parliament sine die; the Majority (?) leader Afenyo-Markin for his cool, non-belligerent approach; Sheik Anas Aremeyaw Shaibu; the CDD, Prof. Agyemang Duah for healthful advice asking the Speaker to comply with the Supreme Court’s directive, notwithstanding disagreements with the ruling”. Do we need repeating: obey the Constitution; take note of balance of power, ensure there are checks and balances, the rule of law, fundamental human rights.
Sam Pee Yalley, Ghana’s ex-Ambassador to India, asks “where do we go from here?” So do we.
