There are black stars in the universe, but this article is not about them. It is about the Black Star we know, Ghana. Now just as stars die after a supernova, that is a powerful and luminous explosion, using the star’s own resources and nothing external, it seems Ghana, the Black Star, may sooner than later face this destruction. And the internal resource that will ignite that supernova is the 1992 Constitution.
Recently, every time some serious issue comes up for the interpretation of the Constitution, the nation seems to be tearing itself apart.
Written in simple English, the interpretation is however the most difficult to comprehend. Our lawyers who claim they are learned will always disagree to agree on simple interpretation of English, which confuse us, the unlearned.We quietly seek console in the fact that higher learning has got numerous disadvantages.
In our culture when issues of this nature come up, we ask the elders to come in. In the case of Ghana, we seek the wisdom of the wise and aged men and women who always sit on benches in courtyards, taking in fresh air. But even with them, sometimes their explanations confuse us the more.
In August 2013, the Supreme Court came out with a strange verdict as to who actually won the 2012 Presidential Elections. Two statements that came out from the mouth of the lead judge, Justice Atuguba, were things that could have created a supernova in this country.
First,in a preamble he made it clear that since no where in Africa has a ruling government lost election petition, Ghana could never be the first. What a ridiculous statement! So, Justice Atuguba told Ghanaians that tradition and culture and not justice is what should be served in court.
Justice Atuguba, a proud Catholic, did not end there. The NPP flag bearer, Nana Akufo Addo, had among the number of evidences, brought before the Supreme Court, proofs of thousands of declaration sheets (pink sheets) not signed by presiding officers at the polling stations, as demanded by Art. 49 (3) of the 1992 Constitution which reads: The presiding officer, the candidates or their representatives and, in the case of a referendum, the parties contesting or their agents and the polling agents if any, shall then sign a declaration stating-the polling station; andthe number of votes cast in favour of each candidate or question;and the presiding officer shall, there and then, announce the results of the voting at that polling station before communicating them to the returning officer.
According to Justice Atuguba, this provision was not relevant to the case in court. However, in that provision is the word “shall,” which appeared twice. “Shall,” is an imperative command, usually indicating that certain actions are mandatory, and not permissive. In law, “shall” means “must” or “mandatory”.
Now can weattempt to understand what “imperative;” “mandatory;” and “permissive” mean?
Imperative means,something of vital importance, crucial, critical and compulsory. Mandatory is something required by law and that is compulsory. Permissive means allowing, or characterising by great or excessive freedom of behaviour. Words like, “shall,”“will,” and “agrees” are mandatory,while the word “may”qualify permissive.
So, by setting aside Art. 49 of the Constitution which made it mandatory for presiding officers to sign the declaration sheets at the polling stations before declaring the results, Justice Atuguba, effectively endorsed an illegality and could have set this nation ablaze.
No noise was made in Ghana and respectfully the NPP, very much concern about the peace we were enjoying in this Forth Republic, did not utter any sound or cry.
If Justice Atuguba had made the right pronouncement, the petitioners would have won the case. Was it some political influence or a bias leaning towards a political party that made a Catholic, tow that tangent?
Today another provision of the Constitution is about to tear this nation apart, even though it is not as serious as the Art. 49 issue. Unfortunately, the NDC are lawlessly calling for war.
Four sitting MPs have decided to contest re-elections in December 2024, on a different ticket than what brought them to the House. And article, Art. 97 (1) (g & h) of the Constitution seems to disagree by stating that: A member of Parliament shall vacate his seat in Parliament… (g) if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member; or(h) if he was elected a member of Parliament as an independent candidate and joins a political party.
Another simple English that needs no English teacher to explain. In summary, it is telling us that immediately a sitting MP leaves his party to join another or decides to become independent MP, during that term of office, he or she must immediately vacate the seat and leave the House. But is that what really happened? The MPs have not officially denounced the parties on whose tickets they entered into Parliament with. They only intend to come back to Parliament on a different ticket.
This is not the first time this has occurred in the Fourth Republic. From 2000 to 2012, some NDC and Independent MPs contested coming elections on tickets other than what brought them to Parliament, and they completed their term in the House.
The only time an MP was made to vacate his seat was in October 2020, when the NPP invoking Art 3. of its party constitution, under Forfeiture of Membership (1), wrote to the then Speaker, Rt. Hon. Mike Ocquaye, that for deciding to contest the coming elections on an independent ticket, its MP for Fomena, Hon. Asiamah Amoako, ceased to be an NPP MP and so must be made to vacate his seat.
The article states that “A member of the Party who stands as an independent candidate against the officially elected member of the Party or who joins or declares his or her support for another Political Party, or for an independent candidate when the Party has sponsored a candidate in a general or by-election automatically forfeits his or her membership of the Party.”
Why the NPP did not invoke this provision in its constitution, this time round and have two of its MPs, Cynthia Morrison (Agona West) and Kwadwo Asante (Suhum) who are contesting the 2024 elections on independent tickets, sacked from the House, is very obvious. In 2020 the party had the numbers but in 2024, membership in the House has become a very essential commodity.
Again, another constitutional issue has held sway over the nation. Unlike 2013, when even though the Constitution of this country was interpretated just to suit a particular party and yet Ghanaians remained calm for the sake of peace, 2024’s issue which is so simple, is rather bringing out hot disputes that can result in conflicts, if care is not taken.
Art. 97 (1) (g & h), to my opinion is not fair to the rights of the people. The question is who is an MP? An MP is someone who represents his or her constituency in the House of Parliament. The fact that he gets there on the ticket of a political party or as independent candidate, does not mean he represents only his party in the House. He is the voice of all the people in his constituency and not only members of his party.
So, if he must be made to vacate his seat, unless on something having to do with criminality including treason, it must be his constituents who must direct the Speaker to sack him after a referendum, and not his party. He is sent to Parliament on the endorsement of his entire constituents, and not singularlybyhis party, so the party should have no control over him.
Looking at Art. 97 (1) (g & h), it is not fair and it is very unconstitutional, as the Supreme Court may have implied on Tuesday November 12, 2024. Explaining this to the understanding of the ordinary, can the Speaker endorse the removal of an MP based on the fact that he is going to contest the next elections on a different ticket?
Someone put it beautifully over the weekend like this:if a Chelsea player, made it clear that in the next transfer window, he was going to sign and play for Nottingham Forest, can the referee dismiss him from the field of play when he dons Chelsea jersey to play a match for that team? Once an MP has not completed his term, or has not officially declared that he is no longer a member of his party, he continues to be an MP of the ticket that got him into Parliament.
Now what will happen if more than three-quarters of the MPs find themselves in this situation? Will Parliament be shut down?
I always say the framers of the 1992 Constitution are our problem, for every provision that is under debate or discussions, always opens up confusion and near-conflicts. Something must be done to this Constitution before it creates a supernova that will destroy this country forever.
By Hon. Daniel Dugan
