MAJORITY LEADER’S MEMORANDUM TO RECALL PARLIAMENT IS NEEDLESS NOW
THE MAJORITY LEADER’S MEMORANDUM TO RECALL PARLIAMENT IS NEEDLESS NOW.
BY MARTIN A. B. K. AMIDU
The Majority Leader of Parliament is in a two-paged memorandum dated Friday, 22 November 2024 addressed to the Speaker of Parliament literally on bended knees pleading with the Speaker to consider an emergency recall of Parliament for Thursday 28 November 2024 and Friday, 29 November 2024 to deal with a needless tall list of non-urgent Government Business which Joy News annexed to its news report of even date at 6.06 pm.
The Majority Leader’s memorandum and request to the Speaker, less than two weeks to the 7 December 2024 elections is unrealistic considering the business proposed to be transacted within two days unless there is a prior agenda and agreement between the Speaker and the leadership of Parliament to rush through and railroad the important items on the list of Government Business down the throats of Ghanaians. It will not be the first time the Eighth (8th) Parliament will be pulling wool over the eyes of the electorate.
The Members of Parliament on both sides of the House who have won their constituency primaries to contest for election on 7 December 2024 are very busy in their constituencies canvassing to be returned to the next parliament and one wonders what useful purpose would be served to break those electioneering campaigns which will decide their fate. This is particularly so, when there may be other contestants for the 9th Parliament who are not MPs and who will continue these last minute campaigns in their absence to Parliament for business on 28 and 29 November 2024.
The Majority Leader, with tongue in cheek, as though he was addressing children in a kindergarten states in his concluding paragraph that:
“Mr. Speaker, the Supreme Court’s recent ruling on article 97 (1) (g) and (h) provides us with a clean slate to move forward in unity and purpose. Let us seize this opportunity to demonstrate to the people of Ghana that their Parliament can rise above partisan considerations to serve their interest effectively.”
The Majority Leader is pretending not to be aware of the fact that the judgment of the Supreme Court in the case of Alexander Afenyo Markin v 1. Speaker of Parliament 2. The Attorney-General given on 12 November 2024, is a per incuriam judgment, (a judgment made without due regard to the facts, the 1992 Constitution, and the laws binding upon the court). The Court failed or refused to consider the fundamental issue whether the Plaintiff had a present cause of action at the time he issued the writ and statement of claim and its accompanying statement of case in the Supreme Court on 15 October 2024. The certified copy of the writ and statement of claim, and the accompanying unverified statement of the plaintiff’s case was prepared, dated and signed by Solicitor F. Paa Kwasi Abaidoo of Dehyena Chambers, Accra, on 14 October 2024 when the Minority Leader had not tabled any motion before Parliament on the alleged vacant seats.
The action was filed in the Supreme Court registry on 15 October 2024 when the Speaker had not made any pronouncement on the motion because he proposed to consider the issues debated and to make a considered ruling on 17 October 2024 which was either going to be for or against the debated motion. Clearly, then, at the time the writ and statement of claim, and the accompanying unverified statement of the plaintiff’s case was prepared, dated and signed on 14 October 2024, and subsequently filed on 15 October 2024 against the Speaker, as the 1st Defendant, Mr. Afenyo Markin, the Majority Leader had no cause of action under Articles 2 and 130 of the Constitution grounding the invocation of the original jurisdiction of the Supreme Court against the Speaker. The Speaker’s pronouncements on 17 October 2024 could not retrospectively ground a cause of action for a suit commenced on 15 October 2024. The foregoing means that all the subsequent interlocutory decisions and orders, together with the substantive judgment obtained against the Speaker are void even though he was under compulsion to obey the void decisions and orders of the Court until they were overturned.
Secondly, the Majority Leader’s statement of the plaintiff’s case purportedly made pursuant to Rule 46 of the Supreme Court Rules, 1996 (CI 16) was not accompanied by an affidavit verifying the facts contained in it as mandatorily required by law, even if he had a cause of action against the Speaker on 15 October 2024. I state the relevant part of Rule 46 (2) (a) for the avoidance of doubt as follows: “(2) The statement of the plaintiff’s case shall state— (a) the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the plaintiff seeks to rely.” This issue was specifically raised upon the Speaker’s application to set aside the plaintiff’s action as being incurably null and void, but the Court refused or failed to address this fundamental issues of jurisdiction both at the interlocutory application stage and in the substantive determination of jurisdiction by the panel of seven (7) justices. Mr. Justice Tanko Amadu came close to it in his dissent, but regrettably missed it because he was not part of the interlocutory panel of five (5) justices before whom the issue was raised by the Speaker in his application to set aside the interlocutory decisions and orders. The dissenting justices who were not part of the interlocutory panel of five (5) justices cannot be blamed because the substantive case did not include the processes filed in the interlocutory applications.
The situation would have been different if the Supreme Court, differently composed in the interlocutory and substantive cases, had determined the fundamental issue of lack of a verifying affidavit and decided to use its discretion under rule 75 to waive the non-compliance with rule 46 because it considered the omission an irregularity. Without an express decision by the Supreme Court on this, both upon the application to set aside the decisions of the five (5) member panel at the interlocutory stage, and at the substantive determination of the case by the panel of seven (7) members on the merits, the judgment of 12 November 2024 was pertinently given per incuriam. The Supreme Court composed of a panel of eleven justices had considered and decided on a similar objection to jurisdiction based on the absence of a verifiable affidavit in Amidu (No. 3) v Attorney-General, Waterville Holding (BVI) Ltd & Woyome (No. 2) [2013-2014] 1 SCGLR 606 which the Court could not ignore in its 30 October 2024 ruling or 12 November 2024 judgment on the merits of the action against the Speaker.
What makes the 12 November 2024 decision referred to by the Majority Leader in his memo worse is the fact that the judgment of the majority of the Court imported matters contained in the interlocutory applications including the application to set aside the interlocutory decisions and orders into the substantive action as though they formed part of the pleadings in the substantive suit placed before the Court composed by the seven (7) member panel. The conduct of the majority in their judgment in impermissibly importing those materials into the substantive action formed the only basis for granting the declaratory relief claimed by the plaintiff’s contrary to the rules of pleadings under rules 45, 46, and 48 of the Court’s Rules.
The Speaker did not file any statement of defendant’s case and did not take part in the substantive case. The majority decision had no jurisdiction to import process filed for the interlocutory applications into the substantive suit as though the Speaker had filed them as his statement of defendant’s case. It is trite that the ruling of the Supreme Court “on an interlocutory application had no binding effect on the panel that had determined the substantive appeal.” See, Julisam Ltd & Salifu [2007-2008] SCGLR 491.
Finally, the Supreme Court is bound by its own prior decision that “....The interlocutory order, whether it appears on the face to be final or not, merges into the final judgment of the court and the interlocutory order ceases to be a judgment or order of the court.” The per incuriam declaratory judgment of the majority of the Court is not backed by the further reliefs and orders sought by the plaintiff in his incompetent suit. The judgment of the Court dated 12 November 2024 can only pass for an advisory opinion which is unknown to Articles 2 and 130 of the 1992 Constitution.
I am taking my time to write a critique of the interlocutory applications and the judgement in the substantive action without a verifying affidavit. But it is insulting to the electorate to be told after the open and nauseating acrimony exhibited by the 8th Parliament to state and have the temerity to make public a memorandum to the Speaker stating that: “Let us seize this opportunity to demonstrate to the people of Ghana that their Parliament can rise above partisan considerations to serve their interest effectively.” The earlier the 8th Parliament clears off from the political scene the better for the 1992 Constitution. Thank God, the 7 December 2024 election is just a stone’s throw away to save the disappointed people of Ghana.
Convening parliament for two days only may be convenient for the finances of the Members of Parliament, otherwise I see no rational reason for wasting the public purse just a few says to the 2024 elections. Apart from providing a provisional budget for the incoming government on 7 January 2025, there is no emergency necessitating the Speaker wasting public funds to abridge the fourteen days to recall Parliament before 7 December 2024 for a two day session. The purposive government mismanagement of the October 204 Bawku crisis killing and maiming hundreds of citizens that is affecting communities in the three northern regions is not even an agenda item for the Majority Leader. Who knows, may be as usual, the Speaker and the leadership of Parliament have already agreed on the Majority Leader’s memorandum before it was written and published to us the zombified public. As a constitutional activist defending the 1992 Constitution, I cannot wait to see the back of this Government and Parliament to save our Constitution from the trajectory of implosion it is being pushed into. We must always put Ghana First!
Martin A. B. K. Amidu
24 November 2024.