Parliament may be a master of its own rules, but the Constitution is a master of all rules. This is a basic tenet of constitutionalism (limited government) under our Fourth Republic and the very essence of the supremacy provision of our 1992 Constitution.
For the avoidance of doubt, Article 1 of the Constitution, captioned Supremacy of the Constitution provides as follows: 1(1) states “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”
1(2) then provides that “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”
If you then jump to Article 11 of the Constitution (which is captioned The Laws of Ghana), you will notice that the laws of Ghana comprise (1) the Constitution, (2) enactments made by or under the authority of Parliament, (3) Orders, Rules and Regulations, (4) the existing law and (5) the common law.
Reading Articles 1 and 11 together leads to the inescapable conclusion that the Constitution is at the summit of the laws of Ghana, and takes precedence over all other laws in Ghana.
It is therefore not surprising that the Constitution in Article 2 (captioned Enforcement of the Constitution) provides an avenue for anyone who alleges that an enactment or anything contained therein or done under the authority of that or any other enactment, or any act or omission of any person is inconsistent with or in contravention of any provision of the Constitution, to bring an action in the Supreme Court for a declaration to that effect; and the Supreme Court shall for such purposes make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given to a declaration so made.
The Constitution also establishes three branches or arms of government and gives to each, specific powers and functions.
The President is vested with executive authority by virtue of Article 58(1); Parliament is vested with legislative power by Article 93(2); and judicial power is vested in the Judiciary by Article 125(3).
Article 93(2), which vests legislative power in Parliament specifically provides that “Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.”
There is therefore no question which branch of government has legislative power – it is Parliament – but as noted, this power is subject to the provisions of the Constitution.
This is the reason that, for example, Article 3(1) unequivocally states that “Parliament shall have no power to enact a law establishing a one-party state.”
Similarly, by virtue of Article 56, Parliament also has no power to enact a law to establish or authorize the establishment of a body or movement with the right or power to impose on the people of Ghana a common programme or a set of objectives of a religious or political nature.
It is quite clear therefore that Parliament’s legislative power is subject to the provisions of the Constitution.
In respect of the operationalization and functioning of Parliament, Article 110 of the Constitution (captioned, Standing Orders of Parliament) provides in 110(1) that: “Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.”
It is in pursuance of this constitutional provision that Parliament made the Standing Orders of the Parliament of Ghana which commenced on 1st November 2000.
It must be reiterated that, despite the fact that Parliament is given legislative power by the Constitution, the Constitution itself imposes limitations on this general power and also subjects Parliament’s power to regulate its own procedures and rules to the provisions of the Constitution.
That is why I stated at the beginning that Parliament may be a master of its own rules, but the Constitution is a master of all rules.
To this end, all laws that are subsidiary to the Constitution, including the Standing Orders of Parliament, can therefore be challenged for unconstitutionality under Article 2 of the Constitution, and even acts or omissions of any person, including the President, Vice President, Speaker of Parliament and even the Chief Justice can also be challenged for unconstitutionality.
The Supreme Court’s decision therefore in the case of Abdulai v The Attorney General that Standing Order 109(3) of the Standing Orders of Parliament, which was made pursuant to Article 110(1) of the 1992 Constitution, and which provides that a Deputy Speaker or any other person presiding shall not retain his original vote while presiding, is unconstitutional, is in line with the philosophical and practical position of the laws of Ghana that Parliament may be a master of its own rules, but the Constitution is a master of all rules.
To have held otherwise would have meant that Parliament’s legislative power and specific power to regulate its own procedure are limitless; thereby making nonsense of the explicit dictates of the Constitution that the aforementioned powers are all subject to the provisions of the Constitution – further rendering moot the right we have to enforce the Constitution under Article 2.
The issues that the Supreme Court was called upon to determine were three-fold:
1. Whether or not a Deputy Speaker of Parliament or any other MP presiding over Parliament is entitled to be counted as part of one-half of all MPs present for purposes of forming a voting quorum under Article 104(1) of the Constitution;
2. Whether or not a Deputy Speaker or any other MP presiding over Parliament, in the absence of the Speaker, can vote and take part in a decision by Parliament; and
3. Whether or not the decision taken on 30th November, 2021 by the Parliament of Ghana to approve the 2022 Budget was valid.
On the first issue, the Court answered in the affirmative – the simple reason being “the framers of the Constitution placed voting in Parliament on a higher order of importance or magnitude than debating. Thus, while Parliament can commence business and proceed to debate a matter as long as at least one-third of its members are in attendance, it cannot proceed to take a decision on the matter (by vote) unless and until at least one-half of all members are present.
The higher quorum threshold for voting, set at a minimum of half the membership of Parliament, is designed to ensure that decisions of the House, which carry legal or legislative consequences, are not taken unless at least half of the membership of Parliament is in attendance. It is designed, in effect, to prevent a minority of the members of Parliament from proceeding to decide a matter with binding legal effect.”
In respect of the second issue, the Court once again answered in the affirmative. The rationale being “… we are of the considered opinion that in all other instances or matters, other than those expressly excluded by Article 104(5), a member of Parliament is entitled to vote on a matter for decision in the House …. Further, we are of the considered opinion that these voting disqualification rules highlight a crucial point. MPs sit in Parliament as elected representatives of their respective constituencies. Parliament operates on the standard Democratic principle of equal representation or “one member, one vote” with matters decided by majority vote.
Therefore, to cause a member to forfeit their vote in Parliament merely on account of having to preside over the business of the House in the Speaker’s absence would unfairly disenfranchise not only the presiding member but also their constituents. Such an interpretation would likely give rise to certain perverse outcomes and/or incentives. For example, it could lead to opportunistic absences by a Speaker or one of the other Deputy Speakers, as an absence would mean a vote loss by the presiding member and their party.
In particular, as Article 96(1)(b) of the Constitution requires that the First and Second Deputy Speakers come from different political parties, an interpretation that deprives a presiding Deputy Speaker of their vote could give the rival party an unfair advantage in a sharply divided vote.”
Finally, on the third issue, the Court also answered in the affirmative, indicating as follows: “By virtue of our reasoning and conclusions in respect of the two substantive issues concerning the quorum required to (a) proceed with business and (b) determine a matter by votes, it is both obvious and implicit that any order, rule, procedure or practice that has the net effect of overriding a presiding member’s right to be counted in forming a quorum as well as to vote in a decision, is to that extent, now void and of no legal effect.
Consequently, no proceedings of Parliament can be invalidated by reason of the fact that a member presiding has exercised his or her constitutionally sanctioned right to be counted for quorum and to vote in a decision. Accordingly, the decision of the House on the 30th November 2021, whereby it approved the 2022 Budget was in accordance with Articles 102 and 104 of the Constitution and for that matter, valid and unimpeachable.
For the avoidance of doubt, order 109(3) of the Standing Orders of Parliament, which provides that “A Deputy Speaker or any other member presiding shall not retain his original vote while presiding”, is struck down as unconstitutional, null, void and of no legal effect.”
Despite these holdings, the Supreme Court was quick to emphasize the fact that “the procedural and or operational rules to practicalize the protection of this constitutional right in a member presiding in the absence of a Speaker and his or her duty to represent his or her constituents in the vote and decision are matters within the exclusive domain of Parliament itself.
Parliament may achieve this by amending its orders or adopting parliamentary practices to give effect to this constitutional imperative.”
What this simply means is this: Parliament must decide how to operationalize the Deputy Speakers’ constitutional right to vote when presiding – the court will not decide that for them.
It must however be noted that Parliament is under a positive obligation now to decide practically how to implement the voting rights of Deputy Speakers when presiding, and cannot ignore this clear directive of the Supreme Court regarding the constitutional rights of the aforementioned persons, as is being erroneously suggested by some.
Note, that Parliament being a master of its own rules is not a suggestion that their Standing Orders are not amenable to the dictates of the Constitution as declared by the Supreme Court from time to time – they are, as has been carefully demonstrated by the Court, and as is obvious from a careful reading of Article 1, 2, 11, 93(2) and 110(1) of the Constitution.
Rather, Parliament is only at liberty to determine how to operationalize and/or implement, for example, the constitutional rights of Deputy Speakers to vote and take part in decisions of Parliament when presiding – a duty Parliament cannot ignore.
It is therefore not true that the Supreme Court has made an unenforceable decision, and that Parliament, specifically the Speaker and/or Members of Parliament can decide to disregard the judgment of the Court – they do so at their own peril.
As a matter of fact, Article 2(4) of the Constitution makes it clear that failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under the Constitution, the punishment for which is a term of imprisonment not exceeding 10 years without the option of a fine, and ineligibility for election or appointment to any public office for 10 years beginning from the date of the expiration of the term of imprisonment if convicted.
For the avoidance of doubt, all persons in Ghana, including, but not limited to, the President, Vice President, Speaker of Parliament, Chief Justice and Members of Parliament are subject to this provision of the Constitution.
The Parliament of Ghana may therefore be the master of its own rules, but the Constitution of Ghana is the master of all rules.
The writer, Dr. Kwaku Agyeman-Budu, is a lawyer and a senior lecturer at the GIMPA faculty of law