In a unanimous decision on Wednesday, 9 March 2022, the apex court of seven Justices presided over by Jones Dotse held that upon a true and proper interpretation of Article 103 and 104 of the 1992 Constitution, a Deputy Speaker, who is a Member of Parliament, does not lose his right to take part in decision-making in parliament.

The decision comes after a lawyer, who is also a law lecturer, Justice Abdulai, petitioned the court to declare as unconstitutional, First Deputy Speaker Joseph Osei-Owusu’s action of counting himself as one of the MPs on the floor even while presiding over the proceedings of the house in relation to the formation of a quorum for the passage of the 2022 budget which had earlier been rejected and thrown out by the minority side.

Justice Abdulai was of the view that once a deputy speaker, who is an MP presides in the stead of the Speaker, he loses his right to vote.

The Supreme Court’s ruling effectively means either of the two deputy Speakers can vote while presiding over the house.

In an article on Facebook about the ruling of the Supreme Court, Prof Prempeh argued: “Presiding does not, in and of itself, present much of a conflict of interest to cause a Deputy Speaker to forfeit their vote, especially if he or she were to be required by House rules to vote last or cast a vote only when there’s a tie”.

Read Prof H Kwasi Prempeh’s full article below:

I am a huge advocate of a strong Parliament as a counterweight to our imperial Executive. That is why I find practices like Government appointing MPs to boards of state enterprises and regulatory bodies repugnant. This case involving the voting rights of a presiding Deputy Speaker is, however, not about Executive-Parliament relations. It is about how the business of the House must be conducted, having regard to the Constitution. In that regard, it is also implicitly about the appropriate balance of power between the Court (as ultimate arbiter of constitutionality) and Parliament (as master of its own rules).

I have read the published judgement of the Supreme Court in Abdulai v Attorney-General. As the matter involved or implicated directly certain rules of the House and ruling of the Speaker, I was expecting to see more than just a private plaintiff and the Attorney-General as the parties represented in this case. Specifically, I had expected to see separate representation of the Speaker in this case. Anyway, we shall save that discussion for another day.

Having read the Court’s judgement, it is, in my “not-so-humble opinion”, to borrow the words of my good pal Amos, a simple, straightforward, clear, and correct decision as a matter of constitutional interpretation and analysis. The Court’s judgement is faithful to the text and structure of the Constitution, as it is to the discernible intent behind the relevant provisions, as well as in harmony with sound reason and comparative practice in parliamentary democracies.

Moreover, it is devoid of any trace of judicial activism and avoids needless detour into a brand of “purposive interpretation” that is unwarranted. This is not a case of judges displacing what the constitution says and substituting that with their own preferences; it is a case of the court sticking to the text and meaning of the constitution and giving due primacy to the fundamental principle of equal representation (voting rights) in a democratic legislature.

And no, the Court’s judgment or interpretive approach, in this case, cannot be called literal. The Court’s interpretation is appropriately textual; it is not literal. Textualism is not the same as literalism. Textual interpretation includes, where the text doesn’t resolve the matter plainly or literally, employing legitimate tools and canons of interpretation to tease out the purposes and meaning behind the text. That’s what the Court did in this case. And that is all it needed to do to resolve the matter. In short, this is a constitutionally correct decision, no matter what one might feel about the outcome politically.

First, it is important to state that, the longevity of a practice does not cloak that practice with constitutionality. No matter how longstanding a practice, its constitutionality cannot be established or presumed until and unless it is challenged in an appropriate constitutional case. Thus, the fact that this is how Parliament has done its business all this while is not a good enough argument, constitutionally speaking. Constitutions are not self-reinforcing. Until the Court’s jurisdiction to interpret, apply and enforce specific provisions of the constitution has been properly invoked in a particular dispute, the constitution will continue to lie dormant in the face of an unconstitutional act or practice.

Second, I think that in this particular case, we exaggerate the powers of a presiding Deputy Speaker when it comes to voting in Parliament. Like the Speaker, a presiding Deputy Speaker cannot disenfranchise any MP. If you believe, for example, that a presiding Deputy Speaker has not called a voice vote correctly, you can call for a proper count. Presiding does not, in and of itself, present much of a conflict of interest to cause a Deputy Speaker to forfeit their vote, especially if he or she were to be required by House rules to vote last or cast a vote only when there’s a tie.

Third, if we do not want presiding Deputy Speakers to vote, the solution is simple: Don’t let them be MPs. Make them like the Speaker; not an MP and, therefore, not entitled to vote. The Speaker does not vote, not because he presides over proceedings of the House; he does not vote because he is not a Member of Parliament. So long as presiding Deputy Speakers are, first and foremost, MPs elected to represent communities of voters in Parliament, Parliament cannot reasonably deprive them (and, for that matter, their constituents) of their right to vote merely by virtue of the fact of presiding over a sitting of Parliament.

Indeed, the inherent right of an MP to vote is too deeply fundamental that to cause any MP, including a presiding member, to forfeit it would require an express constitutional provision of the kind found in article 104(5). An MP’s fundamental right to vote, which is the very essence of representation in a democratic legislative assembly, cannot be defeated or overridden by mere implication or argumentation.

In any case, there’s nothing really wrong with both Deputy Speakers being MPs and retaining their vote when they preside. This is why we must take the Constitution seriously when it says that the 1st and 2nd Deputy Speakers must come from different parties. That way, the rival parties in Parliament will each have one Deputy Speaker and both of them get to vote when one presides.

Regrettably, this sensible “bipartisan” arrangement has not been followed in good faith in the 8th Parliament. We currently have two Deputy Speakers, both of whom are, de facto, from the same side of the partisan divide in Parliament. That is part of the politics surrounding this case. Na who cause am?

Just because the candidate of the Minority prevailed over the candidate of Government in the contest for Speaker of this 8th Parliament did not require the Minority to cede the 2nd Deputy Speakership to an MP who was going to caucus with the Majority. If Majority and Minority had one Deputy Speaker each, as the Constitution, properly read, contemplates in a two-party Parliament, we might be spared some of the heat in this debate.

Lastly, what is also fuelling the disputation over this case is the fact that the Speaker and the 1st Deputy Speaker had different interpretations or positions on the quorum and voting rules, and now the Court has weighed in on the side of the 1st Deputy Speaker. Surely not an outcome that makes for good rapport between Speaker and 1st Deputy. With that in mind, I would have given Parliament, and for that matter the Speaker, the opportunity to apply the House’s own internal procedures (Standing Orders) to cause the Speaker to reconsider and correct its earlier ruling or position on this question in accordance with the Court’s decision on the merits. Seems trivial or just a matter of form and appearance over substance, yes, but in these matters, form and appearances matter. The authority and dignity of the Speaker’s office in the conduct of the business of the House is worth preserving.

All in all, a correct constitutional decision, albeit politically messy and unpleasant within the context of the circumstances of the 8th Parliament. Still, not such a big deal. Let’s move on.