Supreme Court Judgement on Article 97 (1) (g) and (h) grounded in sound law – Gary Nimako

Lawyer in private practice and director of legal affairs for the New Patriotic Party (NPP) Gary Nimako Marfo has stated that the recent judgment of the Supreme Court in the case of Alexander Afenyo Markin versus the Speaker and the Attorney General (AG) (The Vacant Seats Case) was apt and grounded in sound law.

Mr Nimako Marko made the assertion in his submission on Joy FM’s News File programme on Saturday, 16 November 2024 in answer to a question posed by the moderator that several legal minds such as Kwame Akuffo, Thaddeus Sory, among others, have described the judgment as empty and lacking “teeth” because it had no orders.

“It (the judgment) is not empty, I disagree with them. If you read the judgment in its entirety, you will realise that the Supreme Court implicitly in the judgment, has said that the interpretation that the Speaker put on Article 97 (1) (g) and (h) was wrongful.

“If something is wrong, what do you do? The thing is wrongful so it means the four MPs can just walk to Parliament when it is recalled and take their seats, you can’t stop them. This is clear in the judgment,” Gary Nimako Marfo pointed out in his statement.

Suggestion to amend

On the subject of jurisdiction and whether or not the plaintiff in the matter, (Alexander Afenyo Markin) was properly before the Supreme Court, Gary Nimako Marfo pointed out that the apex court of the land was invited to interpret Article 97 (1) (g) and (h) of the 1992 constitution and not to determine if any seat has become vacant pursuant to Article 99 (1a) of the 1992 constitution.

He further pointed out that because Afenyo Markin filed his writ on 15 October but the Speaker went ahead on 17 October to make the pronouncement he made on the floor of the House on the four seats, the plaintiff (Afenyo Markin) ought to have amended his writ because some of the reliefs he was seeking before the court had been rendered moot because of the Speaker’s action in Parliament.

Supreme Court decision

The Supreme Court on Tuesday, 12 November 2024, by a 5:2 Majority decision, declared that the interpretation given by the Speaker of Parliament to Article 97 (1) (g) and (h) of the 1992 constitution and declaring four seats vacant in Parliament was unconstitutional, null, void and of no legal effect.

The Apex court held that “a purposive interpretation of Article 97(1)(g) and (h) of the Constitution confirms that their focus is on safeguarding the electoral mandate during the current parliamentary term, not on restricting MPs” political activities in the next electoral cycle.

“Historical examples, contextual interpretation, and the inclusion of Article 97(2) all point to the same conclusion: MPs’ current parliamentary affiliation remains intact until they actively change their political allegiance during their term, not when they express future political intentions.

“For these reasons, this Court will reiterate the purposive interpretation of Article 97(1)(g) and (h) and maintain the distinction between mid-term changes in political allegiance and future electoral plans, ensuring that MPs can serve their full term without interference from future political decisions,” the Supreme Court judgment read.

“This interpretation is consistent with the text, history, and purpose of Article 97(1)(g)(h) and Article 97(2), and it upholds the democratic stability of Ghana’s parliamentary system. As a result, we reject the invitation to reinterpret or effectively rewrite these constitutional provisions to imply that an incumbent Member of Parliament shall not file a nomination to contest on a platform different from the one on which he was elected unless he first vacates his current seat.

“Such a reading imposes an undue restriction on political freedom, a constraint not articulated in the original text of the articles. The constitutional language should be construed holistically and purposively, without imposing limitations that would curtail the fundamental freedoms of sitting MPs and ultimately sabotage the rights of the electorate,” the Supreme Court majority opinion further read.

Reporting by Wilberforce Asare in Accra

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