Ruling on vacant seats: I find the majority decision an ‘aberration’, I hope its reversed – Justice Amadu Tanko

Justice Amadu Tanko, one of the two justices of the Supreme Court who dissented with the Court’s ruling on the vacant seats case has expressed his unhappiness with the outcome of the case.

Justice Tanko said the Majority ruling is an “aberration” and will not stand the test of time. He hopes that in no long time the decision is overturned.

“I do not hasten to proclaim that, I have apprehended with despair the majority’s conclusion in this suit but I state, with utmost deference to the Hon. Chief Justice and the rest of my brethren in the majority that, not only do I fundamentally disagree with their conclusion, I, with all due respect, also find the decision an aberration to the established and accepted judicial position of this court which with profound respect, I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed.”

Delivering his ruling, Justice Tanko explained that per the constitution strict boundaries have been placed on the jurisdiction of the Supreme Court and certain cases it can consider.

It is Justice Tanko’s considered view that Article 99 of Ghana’s 1992 Constitution gives the High Court the exclusive authority to rule on whether a parliamentary seat is vacant.

“Article 99(1)(a) of the 1992 constitution is clear in mandatory terms, that the jurisdiction to hear and determine whether the seat of a member of parliament has become vacant is vested in the Hight Court,” his ruling highlighted.

Full text: Supreme Court ruling on vacant seats case

According to him, even if constitutional matters are presented for enforcement or interpretation because article 130 grants the Supreme court the power, it cannot assume jurisdiction because article 99 vests power to the high Court to determine whether a seat is vacant or not.

“Clearly therefore, in a situation of an alleged constitutional issue which involves the question whether or not a vacancy has emerged, it is the specific jurisdiction of the High Court which must be invoked and not the interpretative jurisdiction of the Supreme Court,” he ruled.

“Thus, I have expressed in this delivery, the 1992 constitution itself has a designed mechanism against the usurpation of the interpretative function of the Supreme Court.

“Therefore, this court should not overly inundate itself with matters or causes where there is express mandatory constitutional direction vesting power in another judicial form,” Justice Tanko said.

Justice Tanko therefore dismissed Afenyo-Markin’s suit, stating that the court’ jurisdiction have not been properly invoked.

“Having held that this court’s jurisdiction has not been properly invoked, I am unable to delve into the merits of the matter. As this court has consistently held, a point of jurisdiction when taken and successfully upheld should foreclose any consideration of the merits of any case. For there will be no foundation upon which the merits can stand.”

The Supreme Court in its reason for declaring Bagbin’s ruling unconstitutional stated that a seat in parliament can only be vacated if the lawmaker switches political party in the current Parliament he or she serves seeking to be an Independent Candidate or join another party in the same Parliament.

The apex court said it is therefore unlawful for Mr Bagbin to rule that the lawmakers had vacated their seats just for the reason that they filed to contest as independent candidates in the 2024 elections seeking to remain MPs in the next Parliament.

“It follows from the above, therefore, that the only plausible conclusion which must necessarily flow from a holistic and contextual reading of Article 97(1)(g) and (h) is that an MP’s seat shall be vacated upon departure from the cohort of his elected party in Parliament to join another party in Parliament while seeking to remain in that Parliament as a member of the new party,” the court stated.

On Tuesday, November 12 2024, the Supreme Court by a 5-2 majority decision upheld the suit filed by Alexander Afenyo-Markin. The two dissenting justices thought the apex court did not have jurisdiction over this matter.

With the latest ruling by the Supreme Court, Parliament is expected to be recalled with the NDC MPs reverting to their original Minority status.

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