Afenyo-Markin v Speaker of Parliament, what we know so far

Published October 20, 2024

Background

On Thursday, 17^th October 2024, the Speaker of Ghana’s Parliament, Rt. Hon. Alban Sumana Bagbin declared four parliamentary seats vacant. The seats are in respect of Amenfi Central Constituency, Fomena Constituency, Suhum Constituency and Agona West Constituency.

The Speaker of Parliament premised his decision on Article 97(g) and (h) of the 1992 Constitution which stipulates that a member of parliament shall vacate his seat in Parliament if, among others, he leaves the party of which he was a member at the time of his election or seeks to remain in parliament as an independent member or if he was elected a member of parliament as an independent candidate and joins a political party.

Application for Stay of Execution

Aggrieved by the Speaker’s ruling, some members of the New Patriotic Party (NPP) led by Hon. Alexander Kwamena Afenyo-Markin filed an ex-parte application for the stay of execution of the ruling of the Speaker of Parliament. 

The application was determined by a five-member panel consisting of Justices Mariama Owusu, Kwame A. Asiedu, Ernest Y. Gaewu, Yaw D. Asare and the Chief Justice, Gertrude S. Torkonoo as the presiding Judge.

Applicant’s argument

The Applicant argued that the Speaker of Parliament usurped the interpretative jurisdiction of the Supreme Court by unilaterally imposing a meaning to Article 97(g) and (h) of the 1992 Constitution, a subject pending before the Supreme Court. Therefore, they prayed the Honorable Court to stay the execution of the said ruling pending a final determination of the substantive suit.

Ruling of the Court

The Supreme Court on granting the application noted that the substantive suit raised real questions of constitutional interpretation and application of the most fundamental and democratic rights of Ghanaians: namely, the right to be represented and heard in Parliament. As such, given the possibility of the Speaker’s ruling prejudicing the outcome of the said suit, it was important for the execution of the ruling to be stayed.

The Court therefore directed Parliament to recognize and allow the four affected members to duly represent their constituents pending the determination of the substantive action.

The ruling of the Supreme Court adds another interesting twist to these developments in Parliament which may potentially reshape our political and legal landscape. 

The reasons are not far-fetched.  First, apart from the questions on the propriety of the orders by the Supreme Court which challenges the power of the Speaker of Parliament to determine questions in respect of parliamentary proceedings (within the ambit of Parliament’s standing orders); there is also the issue of the procedure used by the self-same Court in hearing and determining the application-brought without recourse to and hearing from the Speaker.

Second, the order to purportedly injunct or stay the execution of the orders made by the Honourable Speaker of Parliament deviates from the cherished age-long principles of the courts and practice at the Bar: that interlocutory injunction and stay of execution orders should lie only after hearing both or all the parties in the suit. 

finally, it appears that for a Supreme Court that has jealously guarded and censured orders made by the lower courts that violated the audi alteram partem rule, the order staying the ruling of the Speaker of Parliament was clearly inapposite.

This is a developing story…stay tuned