The Attorney-General (AG) and Minister for Justice, Godfred Yeboah Dame, has filed his statement of case in response to an application filed by the Minority Leader in Parliament, Haruna Iddrisu, and his two other colleagues, challenging the constitutionality of the passage of the electronic transfer levy bill into law by the Legislature.
In a 37-page response, Mr. Dame summed up his argument maintaining that, “At the material time of the passage of the E-levy Bill on 29 March 2022 in Parliament, the provisions of the 1992 Constitution in relation to quorum for decision making were satisfied. The Plaintiffs are not entitled to any relief endorsed on their writ”.
The AG cited 24 cases to support his argument and also made reference to the 1992 Constitution of Ghana, Evidence Act, 1975 (Act 323), Supreme Court Rules, 1996 (CI 16) and the Electronic Transfer Levey Act, 2022 (Act 1075).
AG’s legal arguments
In his legal arguments on the merit of the application, the AG noted that there is no cause of action accruing to the applicants because the subject matter of the suit is covered by Parliamentary privilege.
“Respectfully, the Court will note, upon a careful consideration of the facts of this case, that the plaintiffs do not make a claim that Act 1075 was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution.
“In effect, the plaintiffs’ suit does not invoke article 130(1)(b) of the Constitution. No argument is advanced by the plaintiffs to hint at a suggestion they mean to say that Parliament enacted a law in excess of its powers under the Constitution.
“Plaintiffs do not allude to a single provision of the Constitution or any other law by which they can be understood as contending that Parliament enacted a law in excess of powers conferred upon it by the Constitution or by any law.
“Further, the plaintiffs do not allege that Parliament violated the mode of exercising legislative power spelt out under article 106 of the Constitution. In fact, article 106 does not even feature at all throughout the statement of case of the plaintiffs.
“On the contrary, plaintiffs’ suit is simply about an enforcement of a previous decision of the Court (Justice Abdulai versus Attorney General) and purport to raise questions about the internal procedure embarked upon by Parliament for the conduct of proceedings in Parliament on a particular day – 29th March 2022”, the AG added.
Settled authorities
Mr. Godfred Yeboah Dame said, “It is our humble submission that by dint of long settled authorities in the courts of Ghana as well as mandatory provisions in the Constitution, 1992, the courts do not question the conduct of proceedings in Parliament, save and except where the proceedings border on a violation of the Constitution or a law of Ghana.
“Thus, the courts can question the constitutionality or legality of a decision of Parliament, but the courts do not extend their writs to inquire into what happens in Parliament or how proceedings are conducted in Parliament.
“It is again pertinent to point out that the plaintiffs, sadly, did not at all address the very fundamental issue germane to the validity of the instant action, i.e. whether the instant suit infringes the age-old principle in constitutional law of Parliament’s privilege over its proceedings.
“They simply went silent on that issue. Nowhere did they examine the effect of this long-established doctrine on their case. In our submission, the Court is not assisted to a great extent by this palpable failure of plaintiffs.
“We will however call the attention of the Court to an examination by the courts of Ghana of these all-important principles” the AG reiterated.
He ended his legal arguments by stating that, “Respectfully, it is quite obvious it is not the case where plaintiffs contend that Act 1075 was enacted in excess of the powers of Parliament”.
Background
Three senior members of the opposition National Democratic Congress (NDC) filed a writ on 30 March, 2022 asking the Supreme Court to declare the passage of the Electronic Transfer Levy Act as unconstitutional and should therefore be set aside.
On 19 April, 2022, the three MPs followed up with an application for an order of interlocutory injunction to restrain the enforcement of the Act pending the determination of their suit.
However, a seven-member Supreme Court panel, presided over by Justice Nene Amegatcher, on May 4, 2022, dismissed the application for interlocutory injunction that sought to stop the government and the Ghana Revenue Authority (GRA) from implementing the E-Levy.
