‘Much Ado About Nothing’ – Speaker Bagbin writes

I would like to begin by stating emphatically that as the Speaker of the Parliament of the sovereign Republic of Ghana, I vehemently disagree with the Supreme Court’s decision in the case of Alexander Afenyo Markin v. Speaker of Parliament & Attorney General. I know that by our constitutional jurisprudence, I am bound by it. My not pursuing a review of the verdict is enough evidence of my position in this matter.

The verdict in this Alexander Afenyo Markin v. Speaker of Parliament & Attorney General case was long foreseen and accurately predicted. It was for reason of this foresight and prediction that my counsel and I decided not to participate in the proceedings in order not to give legitimacy and credibility to what was clearly a foregone conclusion.

Sound and timeless judicial precedents have cautioned against needlessly interfering in the work of Parliament by the courts. Judicial restraint and circumspection are therefore required when dealing with matters involving Parliament. It is clear that in this particular instance, it was the rush to court and the boycott of parliamentary proceedings by one side which stalled and frustrated the work of Parliament.

As a lawyer of 42 years standing at the Bar, I know that the Supreme Court is not always right. The Supreme Court is the final judicial arbiter only so that there can be an end to litigation. So, when the Supreme Court, especially a packed Supreme Court, is wrong, it must be told that it is wrong.

The hopeful signs of a future reversal of the majority decision is articulated by His Lordship Justice Tanko Amadu in his dissenting opinion as follows:

“—– I, with all due respect, also find the decision an aberration in 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”.

I am very hopeful it will be sooner than later.

That the Supreme Court is wrong in this case is borne out of the fact I never declared the four parliamentary seats involved in the controversy as vacant. There is no constitutional or legal basis for a declaration of a vacancy of a seat of Parliament by a speaker .

I never also sought to interpret the Constitution. What I did was to apply an order of Parliament, Orders 18, to be precise, to inform Parliament of my factual findings, following a Statement made on the floor of the House (not a Motion as stated in the Court’s proceedings) by the Hon Dr Cassiel Ato Baah Forson, that:

(i) Three (3) of the affected Members of Parliament had filed to contest the 2024 parliamentary elections as independent candidates, and, in the case of one (1) the independent Member of Parliament, that he had filed to contest as a candidate of a political party.
(ii) the Notice of Poll published by the Electoral Commission on all the 275 constituencies confirmed that the four affected Members of Parliament had indeed filed their nominations accordingly.
(iii) none of the Members of Parliament involved had denied the allegations against them, including the four affected members .
(iv) I then drew the attention of the House to Article 97 (1) of the Constitution which deals with such situations. Article 97 does not intend to invite or invite any person including the Court to declare a seat of a member of Parliament vacant.
It was on the basis of the findings I made after the statement that, I then drew the attention of the House to Article 97(1) of the Constitution which deals with such situations. In taking this line of action, I was seeking to protect the integrity of Parliament in what I saw was essentially a power play between the two arms of government; a power play that Parliament cannot afford to lose because it is the arm of government that represents the sovereign will of the people of Ghana.

It is now clear that the court’s hasty treatment of the several objections I instructed my lawyer to take, and in its desire to deal very speedily with a matter which should have been resolved in Parliament has led us nowhere. The court’s judgment has not settled any matter.

How the politically anomalous situation of the affected MPs will be expected to speak for their parties or as an independent Member of Parliament inside Parliament and simultaneously speak against their parties outside Parliament is a matter that only the Supreme Court and the affected political parties can fathom.

At the end of the day, the Majority judgement gave no guidance to Ghanaians. Only an explanation of Article 97 (1) and not an interpretation. No guidance was sought from the Consultative Assembly debates to decipher the intent of the framers of the Constitution.

As my counsel, Thaddeus Sory Esquire, has so aptly stated in his comment on the judgment: “TANTALUS on my mind”. Or as my colleague lawyers will put it: the majority judgement, eloquent as it may sound, is nothing but a “brutum fulmen”, a “meaningless thunderbolt”. Or better still, to put it in simple Shakespearean English, it was all “much ado about nothing”.