By Regina Apaloo
Ghana’s political atmosphere is never devoid of intriguing tumult which raises one constitutional law question or the other.
Not long ago, the “disappearance” of the now former Gender Minister, Sarah Adwoa Safo became the talk of the town and with this comes interesting constitutional law questions which should be of interest to lawyers, law students and jurists.
Brief facts
The brief facts of this case are that the Honourable Member of Parliament, Mrs. Sarah Adwoa Safo, MP. for Dome Kwabenya Constituency in Accra, has been absent from Parliament since the House resumed sitting in January, 2022.
After missing the constitutionally permissible 15 days, the Speaker of the House, Rt. Honourable Alban Sumana Kingsford Bagbin, referred her along with two other members of the House, Hon. Kennedy Agyapong and Hon. Henry Quartey to the Privileges Committee in accordance with the Constitution, 1992.
Several invitations to appear before the Committee were sent out to the embattled MP through parliamentary summonses through her official pigeonhole, the media as well as zoom links but none of them were honoured.
The Privileges Committee proceeded with its work in her absence, and came out with its verdict, which was laid before Parliament in the form of a report and moved by motion.
Speakers intervention
The newest plot twist is that the Speaker, after hearing arguments on both sides of the House, decided to take advantage of the recess period of the House to allow him ample time to determine the MP’s fate.
This, Rt. Hon Bagbin says, will afford him the opportunity to deliver a more detailed ruling backed by law. The big question is; was the Speaker’s intervention backed by law? Has the trumpet not already blown for the Honourable Member of Parliament?
Does the Constitution really give the Speaker the right to determine the MP’s fate? If yes, can the gift of the Speaker’s salvation reach her? These are the questions that have piqued the interest of constitutional lawyers, jurists and academics and this article seeks to probe and find answers to these pertinent constitutional questions.
The legislative authority derives from the Constitution, 1992. Article 93 (1) and (2) state that there shall be a Parliament of Ghana which shall consist of not less than one hundred and forty members and that the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.
Article 97 provides the criteria for the removal of a Member of Parliament. Article 97(1)(c) states that ‘’A member of Parliament shall vacate his seat in Parliament if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet.’’
Constitutional provision
The Constitution, 1992 has given Parliament the mandate to appoint different committees for the effective discharge of its functions per Article 103. Based on this, Parliament has different committees that help it run its day to day business and one of such is the Privileges Committee (the Committee).
Consequently, the Committee is established in Order 164 of the Standing Orders of Parliament and its duties are spelled out in Order 164(2).
It enquires into any complaint of contempt of Parliament or any matter of privilege, which may be referred to it.
Premised on the wording of Article 97(1)(c), Order 16 of the Standing Orders of Parliament reiterates that a member shall not absent himself during a meeting for more than fifteen sittings without the permission in writing of the Speaker. Any member infringing this Order shall have his conduct referred to the Committee.
These provisions give legal backing to the Committee to investigate why a member of Parliament has absented himself for more than 15 sittings without permission.
It may therefore be safely deduced that the mere absenting by a Member from Parliament for more than 15 sittings does not result in the automatic removal of the Member. The defaulting Member must be invited to appear before the Privileges Committee to provide a reasonable explanation for the default.
This is in line with the audi alteram partem rule which has been upheld in several judgments of the courts of our land. In the celebrated case of Awuni v West African Examinations Council [2003-2004] SCGLR 471, the Supreme Court held per HL Kpegah JSC as follows; ‘’…I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights, neither can I contemplate a situation where a person could be said to have acted fairly and reasonably if he acted as a judge in his own cause, or gave a biased and perverse decision.’’
Also, in Serbeh-Yiadom v Stanbic Bank (Gh) Ltd [2003-2005] 1 GLR 86 the Supreme court stated that it is a salutary and well-known principle of law that a person should be given the opportunity of being heard when he is accused of any wrongdoing before any action is taken against him.
Committee’s action
It cannot then be said that the Committee acted unfairly towards Honourable Adwoa Safo, as several opportunities were offered her to appear and provide just cause for her inordinate absence. However, the Honourable Member of Parliament failed and/or refused to honour any of these invitations. Can she therefore be deemed to have waived her right to be heard? The test for determining this will be an objective rather than a subjective one, and the standard for this will be that of the Reasonable Man.
According to Kumado Law of Torts, the Reasonable Man is said to be the model of the standard to which all persons are required to conform. He is the embodiment of all the qualities which we demand of a good citizen. He is the man sitting in the Clapham bus, or in the Ghanaian setting, the Madina bound trotro.
To this Reasonable Man, Honourable Adwoa Safo may not have expressly told the Committee that she does not wish to be heard but he can deduce from her conduct that she in fact did not wish to be heard. In Republic v Court of Appeal Ex Parte Eastern Alloy [2007-2008]1 SCGLR 371, the court stated thus “It is trite law that the rules of natural justice can be waived. There is no suggestion that the applicant was unaware of the hearing date of the motion, yet it absented itself without even representation by counsel. A clearer case of waiver of the right to a hearing could not be imagined.”
This case was relied on in the recent case of Republic Vrs High Court, Cape Coast Ex Parte: John Bondzie Sey and Another (J5 74 of 2019) [2020] GHASC 6 (12 February 2020) and this further consolidates the principle of law stated above.
The effect of a waiver of the right to be heard was espoused in Republic v High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 at 190. “A party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice.”
As Honourable Adwoa Safo can be deemed to have waived her right to be heard, what then is the next step for Article 97(1)(c) to be implemented? From the wording of article 97(1)(c), once a member of Parliament has been absent for more than 15 sittings without permission in writing from the Speaker, and does not offer a reasonable explanation to the Privileges Committee, then he or she automatically vacates the Office.
This was the effect of the Court of Appeal’s decision in the case Professor Stephen Kwaku Asare v Attorney General, The Speaker of Parliament, The Electoral Commission and Hon. Eric Amoateng H1/65/07.
In November 2005, the 4th Defendant, Hon. Eric Amoateng Member of Parliament for Nkoranza North Constituency was absent from parliament from 17th November to 24th November with the Speaker’s permission. He travelled to the United States of America where he was arrested and detained for the possession of narcotic drugs.
As he was unable to attend court, he wrote to the Speaker three months after asking for an indefinite leave of absence. The Speaker referred the matter to the Privileges Committee which recommended that the leave be granted. After debate, the House approved the indefinite leave of absence.
The plaintiff/appellant then instituted this action seeking for a declaration that on a true and proper interpretation of article 97(1)(c), the member of Parliament has automatically vacated his seat when he absented himself from Parliament for 15 continuous sittings without the Speaker’s written permission and without giving an explanation to the Privileges Committee.
The court held that this argument is sound in law. This then solidifies the earlier position asserting that a seat becomes vacant once the member has been absent for more than 15 sittings and has not given a plausible explanation to the Privileges Committee.
Standing Orders
One may argue that the Standing Orders of Parliament per Order 151 mandates a Committee to present its recommendations to the House in the form of a report to be moved by motion by the Chairman of the Committee for acceptance or rejection by the House. This is how Parliament has decided to make its internal processes work.
However, this writer is respectfully of the view that even if the recommendation of the Privileges Committee is not put in the form of a report and tabled before Parliament by motion, it does not mean that the seat of the defaulting MP is not vacant.
The constitution is the highest law of the land per article 11 of the 1992 Constitution and thus the Standing Orders is subservient to the Constitution. Once the Constitution has deemed that the seat ought to be declared vacant automatically, the Committee need not even move a motion for the House to debate on it. Its recommendations are final and binding.
Another argument may be made that, the High Court that heard the Professor Stephen Kwaku Asare v Attorney General, The Speaker of Parliament, The Electoral Commission and Hon. Eric Amoateng H1/65/07 case did not have jurisdiction to do so as it is the Supreme Court that has jurisdiction to entertain matters relating to the interpretation of the Constitution per article 130(1)(a) of the Constitution, 1992.
In resolving this question there would be a need to look the reliefs the plaintiff sought in order to determine whether it was a matter for interpretation of the Constitution or not. The reliefs as stated in the judgment are as follows;
On a true and proper interpretation of Article 97(1)(c) of the 1992 Constitution, the seat of the Hon. Eric Amoateng was to be declared vacant ….
On a true and proper interpretation of Article 97(1)(c) of the 1992 Constitution, the Parliamentary Committee on Privileges has no authority to grant the MP absence for more than 15 days…
A cursory look at these reliefs would show that the reliefs required an interpretation of Article 97(1)(c) of the Constitution. The matter further travelled from the High Court to the Court of Appeal which also did not have the jurisdiction to interpret the constitution. Therefore, this writer is of the view that, the proper forum for that case ought to have been the Supreme Court and none other.
However, the matter has not travelled to the actual court with such powers for it to be struck down and so as it is, the holding in the case Professor Stephen Kwaku Asare v Attorney General, The Speaker of Parliament, The Electoral Commission and Hon. Eric Amoateng (supra) still stands.
Conversely, a counter argument may be made and was indeed made by the Court of Appeal in its judgment aforesaid, that per article 99(1)(a) of the Constitution, it is indeed the High Court that is clothed with exclusive, original jurisdiction to declare a seat in Parliament vacant.
The provision states as follows, ‘’The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant.’’
Whilst this provision is not controverted, there is still the need to determine per the pleadings and reliefs, whether the action is one for interpretation and enforcement of the Constitution, or one for the removal of an MP simplciter.
Having the ruling of Tuffuor v Attorney-General [1980] GLR 637 at the back of our mind, where it was stated that the language of the constitution, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation.
One must then ask him/herself whether when there is no question as to the vacancy of a seat, where there is no dispute about the vacancy, when the constitution has already made it automatic upon fulfilment of some grounds, why then does the High Court have to come in again? The Black’s Law Dictionary defines ‘’question’’ as a subject or point of investigation, examination or debate; theme of inquiry; problem; matter to be inquired into.
This circumstance certainly does not fall under any of these for the High Court’s jurisdiction to be invoked. There is no question for the High Court to answer and so there is no need for the High Court’s jurisdiction to be invoked under Article 99 when the same constitution provides for an automatic removal of the Honourable Member of Parliament for Dome Kwabenya under article 97(1)(c).
Conclusion
Looking at all these legal positions and conclusions drawn above, this writer concludes that Honourable Sarah Adwoa Safo’s seat is vacant. The Speaker of Parliament upon the submission of the report of the Privileges Committee does not have any legal right to say that he is going to ‘’consult the old lady’’ and give a written ruling.
His is to follow the Committee’s report and instruct the Clerk of Parliament to write to the Electoral Commission to begin with the process of filling the seat. This must be done in earnest to prevent the people of Dome Kwabenya from being added to the unrepresented SALL.
