“Premo atu” Kwabla Senanu writes

The screaming front page headline in the “Daily Graphic” of Friday, 25 October, 2024, regarding the Motion by the NPP parliamentary leadership for summons to Parliament to immediately resume its legislative business is a summons in futility. It is, with due respect, a reckless act, as it is oblivious of the spirit and letter of the Supremacy of the Constitution that reigns in Ghana today.

First, under the supremacy of the Constitution, the Supreme Court of Ghana must confine itself to the exercise of authority conferred on it by our prevailing 1992 Constitution. Thus, pursuant to Articles 1(2), 2(1), and 127(1) of the 1992 Constitution, the Supreme Court must always be mindful of upholding the supremacy of the Constitution in the exercise of the authority conferred on it by the Constitution. Indeed, Article 1(2) of the Constitution, in part, stipulates as follows:

“The Constitution shall be the supreme law of Ghana…”

The Supreme Court can not, therefore, arrogate to itself the exercise of authority that the 1992 Constitution does not confer on it. See also Articles 2 and 127(1) of the 1992 Constitution.

It is worthy of note that, in Adofo v. A-G & Cocobod [2005-2006] SCGLR 42, at 46, Dr Date-Bah JSC, in delivering the unanimous decision of the Supreme Court, lucidly stated, in part, as follows:

“This constitutional provision [in article 1(2)] unequivocally and authoritatively establishes a doctrine of supremacy of the Constitution in the Ghanaian jurisdiction…”

Also, in Mensima v. A-G [1996-97] SCGLR 676, at 712-713, Acquah JSC, as he then was, in delivering the majority opinion of the Supreme Court, said that:

“Article 1(2) of the 1992 Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also makes it impossible for any law or provision inconsistent with the Constitution to be given effect to…”

Now, the key issue that arises here is this: Does the Supreme Court have the jurisdiction, as it did on Friday, 18 October, 2024, to determine the proprietary or otherwise of the incumbent Speaker’s declaration of the seats of four Members of Parliament (MPs) as vacant?

First, Article 99 (1) (a) & (2) of the 1992 Constitution is apposite regarding the resolution of the above issue. It specifies as follows:

“99. (1) The High Court shall have jurisdiction to hear and determine any question whether —

(a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant;

(2) A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.”

The law is settled that, where the constitution stipulates a specific procedure in a particular forum for a remedy, the only remedy is to resort to the particular procedure in the specific forum mandated by the Constitution. Thus, in Yeboah v. JH Mensah [1998-1999] SCGLR 753, Charles Hayfron-Benjamin JSC succinctly summed up the principle as follows:

“[W]hen a remedy is given by the Constitution itself or statute for ventilating that grievance, then, it is to that forum that the Plaintiff may present his petition.”

More eruditely, as the matter fell under Article 99(1) (a) of the 1992
Constitution, Atuguba JSC, in support of the majority decision, held at page 558 of the report, as follows:

“The plaintiff’s action invoking the original jurisdiction of this court [the Supreme Court] is misdirected as the same is primarily an election petition which is cognizable by the High Court only as an original action.”

Applying the above authorities, the Supreme Court, with the greatest respect, lacks the jurisdiction in the recent suit in which it made an order of interlocutory injunction against the Speaker of Parliament on Friday, 18 October, 2024. Consequently, its order aforesaid against the Speaker can not stand. It is null and void.

Second, the parliamentary NPP must also reckon with the incurable procedural incompetence that made the Supreme Court’s interlocutory injunction order void.

The Supreme Court is bound by the SUPREMACY OF THE CONSTITUTION to follow the simple procedure of giving a hearing to the Speaker before ruling on the Motion Ex Parte that placed an interim injunction on the Speaker’s administrative determination of which party constitutes the majority in Parliament, having declared vacant four seats of the Members of Parliament.

It bears noting that the Justices of the Supreme Court were in utter breach of Article 11(1) (c) & (e) and (2) of the 1992 Constitution in entertaining the Motion Ex Parte on Friday, 18 October, 2024.

As the late Chief Justice Acquah once lucidly put it, ex parte applications were – and are – aberrations in our rules of procedure in such matters.

It would have been in honour of the Supremacy of our Constitution and, therefore, a feather in the cap of the Supreme Court procedurally if it had adjourned the ex parte application from, say, Friday, 18 October, 2024, to Monday, 21 October, 2024, for the Speaker and other interested parties to be given notice of the process before the grant of the interlocutory injunction against the Speaker’s vacant declaration of the four seats of Parliament. Thus, crucially, this procedural flop by the Supreme Court has, with due respect, nullified its interlocutory injunction order.

It is significant to note that the Speaker has filed the relevant processes to stay the interlocutory injunction order of the Supreme Court.
As the most celebrated British Jurist, Sir Lord Denning, once succinctly put it in MacFoy v. UAC [1961] 3 All ER 1169, “You can not put something on nothing and expect it to stay there. It will collapse.”

Thus far, the Motion by the NPP parliamentary leadership for summons to Parliament for legislative business to immediately commence on the basis of the incurably bad order of interlocutory injunction of the Supreme Court is flatulent and sickening. It flies in the face of our constitutional supremacy and, therefore, baseless.

By: Kwabla Senanu