November 26, 2022

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Matters Arising Out of the Abdulai Court: Presiding Members can Wear two Hats

Article 110(1) of the Constitution provides that “subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.” Article 101 provides that “the Speaker shall preside in Parliament at all sittings and in his absence a Deputy Speaker shall preside.” The person presiding at these sittings wield enormous powers. He moderates debate, make rulings on procedure, announce the

results of votes, decides who may speak and has the powers to discipline members who break the procedures of the chamber or house. Commensurate with that authority is the expectation that the person presiding must be impartial.

The Speaker is not a member of Parliament (MP) but a Deputy Speaker is. Pursuant to its Article 110(1) powers, Parliament has adopted standing order 109(3) to the effect that a Deputy Speaker shall not retain his original vote while presiding. This order reflects the reality that a Deputy Speaker is both an ordinary MP and a Deputy Speaker. While not presiding, he wears his MPs hat and cannot exercise any functions of a presiding member. Conversely, when presiding, he wears his Deputy Speaker’s hat and cannot exercise any functions of an ordinary member. Retaining his power to deliberate and vote is inconsistent with the obligation to be impartial.

In Abdulai v Attorney-General (Writ No. J1/07/2022), the Plaintiff issued a writ at the

Supreme Court to determine, among others, whether a Deputy Speaker, when presiding, can vote or take part or take part in the making of a decision by Parliament. This, of course, is curious because the Plaintiff was not asserting that the standing order 109(3) violated the Constitution. He was seeking an advisory opinion as to whether the standing order was constitutional. The Court notices this absurdity when it notes that this issue does not “raise any issue of fact that is in dispute.” But rather than decline the invitation to offer the advisory opinion, the Court answered that it “can be answered as a matter of straightforward constitutional exegesis.” In my opinion, the Court must resolve fact-laden constitutional disputes and is not clothed with the jurisdiction to write fact-free constitutional essays. If that time-honored constitutional principle had

been applied, the only question that the Court should have answered is whether Parliament’s approval of the 2022 budget on 30th November, 2021 was a nullity as 138 members, excluding the person presiding, were not present in Parliament before the decision was made. This is a much narrow and inconsequential question.

As it turns out, the Court chose to wade in these matters and struck down Order 109(3) of the standing orders as being inconsistent with Articles 102 and 104(1) of the Constitution. It is this holding that provides the justification for the extant exegesis.

Prior to analyzing the opinion, I must observe that in a matter such as this, where Parliament’s interest was paramount and where this interest could be adverse to that of the Attorney-General, it was surprising that the Parliament was not joined to the action. I consider Parliament to be an indispensable party, since reaching a judgment without hearing their side of the story is perverse and offends fundamental principles of civil procedure. The procedural posture of the case is therefore problematic. I must also commend the Court for the speed with which it heard and decided the case. This is a good development and must be applied to other cases.

Turning to the opinion, Article 102 provides that “a quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament.” Article 104(1) provides that “except as otherwise provided in this Constitution, matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present.”

It can be readily observed that neither Article 102 nor Article 104(1) has an explicit voice on whether the person presiding retains his original vote. To hold that Order 109(3) violates these Articles therefore require some construction. The Abdulai Court uses three building blocks to arrive at the conclusion that a presiding officer is entitled to vote, which, in turn became the basis for invalidating Order 109(3) as unconstitutional.

These are (1) Only contract-related conflict of interest can bar an MP from voting; (2) the

Constitution makes a distinction between a non-voting quorum and a voting quorum. Since the former does not count a presiding MP and the latter is based on all MPs, it follows that the former bars the presiding member from deliberations and the latter entitles him to a vote; (3) the Constitution says the Speaker has neither an original nor a casting vote. Since it uses Speaker rather than a presiding member, it follows that a Speaker Pro Tempore retains his vote. I examine these building blocks to test the validity of the conclusion.

I. Contract-related conflicts are not the only Bar

Article 104(5) provides that “A member who is a party to or a partner in a firm which is a party to a contract with the Government shall declare his interest and shall not vote on any question relating to the contract”. Article 104(5) clearly means that a contract- related conflict of interest bars an MP from voting. But it does not mean ONLY a

contract-related conflict of interest bars an MP from voting.

There are any number of ways that an MP can lose his vote, including if he is suspended for disorderly conduct or, in the case at bar, if he assumes presiding

functions that are inconsistent with the functions of an ordinary MP. Parenthetically, some MPs serve on the Board of SOEs (not good practice) and should not vote on issues related to these SOEs, etc.

The logic that MPs are disqualified from voting ONLY on contract related conflict of interests and the two propositions flowing thereof (namely, (i) Speaker is disqualified from voting not because he presides but because he is not an MP, (ii) presiding is not a disqualifying conflict) must fail, leaving the decision with nothing to hang on.

But there are more issues.

II. Voting Quorom versus Voting Rights

The voting quorum is a protective device to ensure that a certain minimum number of MPs are present before voting can commence. It has nothing to with whether a member who is present is eligible to vote on the issue. That is why Article 104(1) says “matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present.” Article 104(1) simply says first at least 1/2 of 275 MPs must be present. When that hurdle is met, the issue is decided by a simple majority of those who are present and voting.

An MP can be present and abstain or be disqualified from voting because he is presiding at the meeting or for some other reason, such as contract, familiar, SOE, etc.

conflict of interest. Merely because the “non-voting quorum” differs from the “voting quorum” does not mean being counted in the latter quorum is conclusive of being allowed to vote.

The non-voting quorum is in Article 102 and is in the form of “a quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament.”
It is necessarily lower because it is a threshold to start the business of the house whereas the voting quorum is higher to ensure the presence of a representative section of the house before decisions are made. Neither quorum has anything to do with who is

eligible to vote on specific issues. Nor do they say anything about who is eligible to deliberate.

The logic that excluding a presiding deputy speaker from the “non-voting” quorum while including him in the “voting” quorum means he is barred from debates but

entitled to vote necessarily fails. Quorum is a green light for an action to commence but has nothing to do with rights and entitlements at the action! The later must be sought elsewhere.

III. The return of Literalism

Article 104(2) provides that “the Speaker shall have neither an original nor casting vote.” Who does the “Speaker” therein refer to?

A literal approach will land on an obvious answer only the Speaker. But that approach is not the proper way to interpret this Article and to answer the question. The inquiry should involve why the Speaker is not giving an original or a casting vote? An obvious,

but not a satisfactory answer, is that he is not an MP. But a more probing answer is that he performs a presiding role that will be incompatible with the functions of a presiding officer and derogate from the important attribute of impartiality and the non- partisanship presiding model (see below).

Thus, one must review the history of our parliaments, do a holistic analysis involving other articles, have a deep appreciation of original versus casting vote, and even engage in a comparative analysis of countries, such as UK, that have developed the convention that MPs who are given additional duties as Speakers and Deputy Speakers should not also have a vote.

That the Speaker, in Article 104(2) does not have an original vote is instructive. It will be surplusage if this command was directed to the substantive Speaker, who is not an MP. This is because it is trite that only MPs have an original vote. No extra words need to be

spent on saying that a non-MP cannot vote. We must conclude that the reference to the original vote cannot be referring to the non-MP Speaker of the House. Rather, the original vote bar had to be targeted to a person who ordinarily will be entitled to vote, such as an MP who is also presiding. As we stated at supra, a person presiding is given immense authority that requires him to shed any semblance of partisanship.

Such an analysis would have led to the inescapable conclusion that Speaker, as used above, refers to anyone performing that function, so called Speaker Pro Tempore.
In effect, Article 104(2) must mean that if a presiding MP does not maintain his original

vote. He wears his deputy Speaker hat when presiding. Moreover, neither a Presiding MP nor the substantive Speaker has a casting vote.

The literal interpretation of “Speaker” as referring only to the Speaker as used in the context of voting rights, original or casting, must be rejected for a broader interpretation

that includes anyone performing the functions of the Speaker.

IV. Political Question Doctrine

This doctrine simply means that the courts will not hear a case that presents a political question. Such cases are those that deal directly with issues that the Constitution makes the sole responsibility of the other branches of government. The doctrine does not put the executive or parliament above the law but merely says the Courts will not interfere with matters assigned to them if they do not act ultra vires the Constitution. Thus, in Asare v. AG & Amoateng (H1/65/07), the Court invalidated the indefinite absence that

parliament granted to an MP, holding that an MP automatically vacated his seat if he is absent from parliament without the written permission of the Speaker for MORE than 15 sittings in a meeting.

In the instant case, Parliament in exercising its power to regulate its procedures decided that an MP who is elevated to a Presiding officer must be seen to be impartial and can therefore not take part in the deliberations or vote. This is not ultra vires the Constitution and the Court tries but fails to provide a persuasive argument as to why it should be questioning and rejecting Parliament’s wisdom to decide that a presiding MP cannot vote.

Rather, what is clear is that Parliament has exercised its power to regulate its voting procedures and the whole case appears to be driven by an apparent stalemate in Parliament because of one parliamentary transaction. Stripped of the legalese, the whole

case was a political question.

As explained above, it is a strain to hold that Order 109(3) was inconsistent with Articles 102 and 104(1). In fact, no factual issues had arisen with respect to that Order. All we can say is that the Constitution is silent on that issue, which Parliament has resolved with its power to regulate its own procedures or even perhaps by its residual powers.

A presiding officer performs several constitutional functions. MPs are asked to view

persons presiding as impartial and are asked to accord them respect and deference. They are to accept their rulings. That authority is coextensive with the requirement to be impartial, in fact and in appearance.

While the Court’s ruling upsets this relationship, it fails to consider how ordinary MPs

will react to the Presiding MPs, now that they are directed to treat them as ordinary MPs. Will an MP take kindly to his amendment proposal being ruled out of order by another MP who has a vote on the issue in contemplation?

Will the Court be able to enforce this judgment? The enforcement challenge is one reason why Courts do not question the procedures of parliament, and why issues related to voting in parliament are procedure of parliament, the protestations notwithstanding (see procedures in parliament above Article 100).

It would have been helpful if the Court’s comparative analysis had identified a case where a court intervened to direct Parliament on its voting procedures or to reject standing orders that disabled presiding members from deliberations and voting.

Globally, there are two competing models presiding member models: the non-partisan presiding member model (e.g., UK) and the partisan presiding model (e.g., USA). We, in Ghana seem to have chosen the UK model, under which the Speaker and his three deputies are non-partisan even though they are MPs. In fact, in UK the elected MP- Speaker severs all ties with his political parties and his deputies maintain a complete non-partisan posture.

Further, the Ghana model has been tailored to our circumstances by requiring that the Speaker not be an MP at all. Our preference for an impartial Speaker explains why many of our Speakers, starting from Justice Quist, Akiwumi, Annan, Bamford-Addo, etc. have come from the Judicial fraternity.

Once this preference is understood, it also becomes clear why any Presiding MP, who is

accorded all the respect and deference due to the Speaker, is therefore not expected to remain partisan while in the role of a Speaker Pro Tempore. That is why the standing orders explicitly state that such presiding members cannot vote, and it has been that way for decades!

Lastly, it is not a correct statement of the law that the political question doctrine, properly interpreted, does not apply in Ghana. As Justice Acquah states in Mensah v Attorney-General (SCGLR 250 [2003-2004], “If by the political question doctrine, it is meant that where the Constitution allocates power or function to an authority, and that

authority exercises that power within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our constitutional jurisprudence. For this is what is implied in the concept of separation of powers. But if by the doctrine, it is meant that even when the authority exercises that power in

violation of the constitutional provision, a court has no jurisdiction to interfere because it is the Constitution which allocated that power to that authority, then I emphatically disagree.”

Of course, the doctrine does not make the unconstitutional actions of the elected branches invisible to the courts. Rather, it is the part that Justice Acquah agrees with. That part applies in Ghana, unless the Abdulai Court is suggesting that it is primus inter pares.

V. The Constituents lose their vote and voice

A word on the oft repeated claim that presiding MPs lose their voice or vote. This is a

complete myth that fails to appreciate the nature of parliamentary processes and the power that comes with being a deputy speaker. One only has to pay attention to the number of committees headed by the deputy speaker and the access that they have to the corridors of power and the purse to appreciate this point. These access and opened doors ultimately inure to their constituents’ benefit. A Deputy Speaker enjoys supra- rights not sub-rights as advertised!

The occasional lost vote pales in comparison to the pork that a deputy speaker can take to his constituents. It is instructive that they are not rushing to give up these positions because they have lost their votes and voices.

It is equally amusing that this concern for constituents’ loss of representation seem to hinge on just the vote but not the voice. It is almost as if constituents do no care that their MPs are disabled from deliberations, while presiding, but only care about the vote.

Surely, representation must mean more than a muzzled MP reduced to a voting machine. The whole bifurcation between deliberation and voting has little substance.

VI. When Voting Quorum established

A voting in parliament is an elaborate process that starts with debate and ends with a vote, which often is by viva voce or by division, when an MP, recognized by the Presiding MP, calls for a division.

If a voting quorum is present for the viva voce vote, can a member or members not happy with the outcome call for a division and defeat the viva voce vote by merely failing to show up for the division (i.e., a quorum maneuver)?

GOGO thinks not! Therefore, a voting quorum once established cannot be broken until

the voting, viva voce and division, ends.

To reason otherwise, is to allow a losing group on the viva voce vote to frustrate the voting outcome by simply failing to show up for a division that it called for. The voting quorum is not to be used for such political maneuvers.

VII. The Perverse Incentives Obiter

The reference to perverse incentives of a Speaker or one of the deputy Speakers to gain political advantage is unfortunate. It is prudent, from a comity perspective, for the Court to presume that the Speakers will act regularly in accordance with their stated

oaths. It will not be a good thing for Parliament too to attribute opportunism to the august bench. In any event, the observation is rather rich coming from a Court that does not realize or give much weight to the perverse incentives of a voting presiding member.

We have been in the process of building an impartial presiding model. It is unfortunate to tear down 3 decades of construction merely to accommodate the even numbers returned by one election cycle.

VIII. Going Forward

If we accept, as we must, the new landscape, Parliament may have to consider amending the constitution to allow for the hiring of non-ex-gratia receiving career public servants, not of the same gender, to serve as Deputy Speakers. This will move us to the Speaker model and remove the conundrum of a voting presiding member.

#SALL is the cardinal sin of the 8th Parliament. Da Yie!

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