2 Supreme Court Justices who dismissed Afenyo-Markin’s case explain their decision

The two Justices of the Supreme Court who dissented in the Afenyo-Markin case against the Speaker of Parliament, Alban Bagbin, have provided a detailed explanation of their decision.

On Tuesday, 12th November 2024, five out of the seven members of the Supreme Court panel ruled that Speaker Bagbin’s interpretation of Article 97(1)(g) and (h) was unconstitutional. The landmark ruling rendered the Speaker’s declaration of the Agona West, Suhum, Amenfi Central, and Fomena seats as vacant on 17th October null and void. The ruling also affirmed that the Afenyo-Markin-led New Patriotic Party (NPP) was the majority caucus in Parliament.

The five justices who ruled in favour of Afenyo-Markin included the Chief Justice, Justice Gertrude Sackey Torkornoo, and Justices Mariama Owusu, Samuel Kwame Adibu-Aseidu, Ernest Yao Gaewu, and Yaw Darko Asare. The two dissenting justices, Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu, disagreed with the ruling.

Justice Yaw Darko Asare explained the reasoning of the five Justices, stating that a Member of Parliament can only be considered to have vacated their seat if they have changed political parties during a parliamentary term. He further elaborated that “similarly, an independent MP who joins the cohort of a party in Parliament, while they remain Members of Parliament for which they were elected as Independent Members, will have to vacate the seat tagged as that of an Independent Member.”

In their 109-page ruling, the two dissenting Justices also clarified that their decision was based on the interpretation that the plaintiff, Afenyo-Markin, “failed to properly invoke the jurisdiction of this court in terms of the reliefs sought; this action fails at the threshold and I accordingly dismiss same.”

Justice Avril Lovelace Johnson indicated that, in accordance with Article 99(1) of the Constitution, the High Court had the jurisdiction to determine matters regarding whether or not a seat in Parliament can be deemed vacant. She noted that, as with all other cases, if the plaintiff’s capacity is not questioned or is proven satisfactorily, and if, during the course of the hearing in the High Court, a need arises for the interpretation of a constitutional provision, the court would stay proceedings and refer such a question to the Supreme Court. The Supreme Court’s decision would then be sent back to the High Court for use in continuing the hearing of the matter.

She pointed out that the plaintiff, Alexander Afenyo-Markin, did not properly invoke the jurisdiction of the Supreme Court and thus proceeded to dismiss the suit accordingly.

Justice Issifu Omoro Tanko Amadu added that “In my view, implicit in Article 130(2) is a recognition that the High Court, and the Court of Appeal, may adjudicate over any matter, by virtue of constitutional or statutory jurisdiction vested in them. In that process, however, there may arise an issue which requires the interpretation of the Constitution. Therefore, the Supreme Court should not, as in the instant case, be seen to be too keen on usurping the jurisdiction specially designed and vested in the High Courts or any other court only because a party has raised a constitutional or interpretative issue, especially where the Constitution has provided a procedure by which the interpretative and/or enforcement jurisdiction of the Supreme Court shall be invoked, as in the case of the reference jurisdiction.”

He emphasised that “only when the jurisdiction of the Supreme Court has been properly invoked, can this court be said to be empowered with all the powers of every court in the land by virtue of Article 129(4) of the 1992 Constitution and Section 2(4) of the Courts Act, 1993.”

“The Plaintiff having failed to properly invoke the jurisdiction of this court in terms of the reliefs sought, this action fails at the threshold and I accordingly dismiss same,” Justice Tanko Amadu concluded in his submission.

Read Full Story