Azar Vrs Supreme Court: Ruling On Jan. 28, 2004

THE SUPREME court will on January 28, next year give judgement in a case in which a US-based lecturer, Prof. Stephen Kwaku Asare had challenged the legality of swearing-in the Speaker of Parliament, Mr. Peter Ala Adjettey, as president in the absence of both the president and the vice-president from the country, last year.

The court, empanelled by Justices S.G. Baddoo, Dr. Seth Twum, Prof. A.K.P. Kludze, and Dr. Date-Baah with Chief Justice George Kingsley Acquah presiding, further asked Parliament to specify the various areas required by the speaker to perform in the absence of both the president and the vice-president from the country after recognizing that the speaker cannot take up all the duties of the president.

“If you get me as the acting president, I would have reshuffled the whole cabinet before the return of the president”, the Chief Justice retorted to a response from the Deputy Attorney General, Ambrose Dery, that the speaker, acting as the president could not reshuffle cabinet even though it is theoretically possible.
Prof. Asare was seeking the court to grant that given the true interpretation of Article 60(11) of the 1992 Constitution, it was inconsistent and unconstitutional for the speaker of parliament to be sworn in as president of Ghana as executed on February 25, last year.
Additionally, the professor was requesting an order of perpetual injunction to restrain the speaker of parliament and any other succeeding person to the office of parliament from carrying out the function of the president of the Republic, except in the event of the incapacitation, resignation or death of both the president and the vice-president and any other directives the court may deem fit.
Leading counsel for the plaintiff, Dr. P.E. Bondzi-Simpson emphasized that regarding the provision of Article 60 (11) of the 1992 constitution; the action taken in swearing in the speaker of parliament was premature and unprecedented.
Dr. Bondzi-Simpson argued that it requires both the president and the vice-president to be unable or incapacitated in exercising their functions before the speaker of parliament could perform duties of the president.
Counsel further submitted that where both the president and the vice-president are on official travel out of the country, it does not mean they cannot perform their functions.
According to him, the president can delegate his duties to members of the executive arm of government but not necessarily swear in the speaker of parliament as president.
He described the purported swearing-in of the speaker as “a flagrant and contemptuous violation of the constitution, occasioned by a misappreciation and misapprehension of the law” as the temporary official travels abroad of both the president and the vice-president, in law, does not create a void to be filled.”
According to Dr. Bondzi-Simpson, where the speaker of parliament is sworn in as president for the “mere” fact that both the president and the vice-president are on official duties abroad, would create a situation where the country would have multiple presidents, each exercising executive powers.
This, he indicated, is a recipe for disaster as executive powers would be vested in the hands of many persons in the like of the speaker of parliament, the chief justice, the deputy speakers of parliament or the most senior justice of the supreme court after the chief justice as the case may be, to be sworn-in as president pending the return of the elected president into the country.
Counsel further argued that the president remains the president of Ghana, wherever he may be, within or outside the country, unless his term of office expires in the event of death, resignation or removed in accordance with the provision of article 66 and 69 of the 1992 constitution, adding that the high office of the president should not be easily filled as a result of temporary official travels of the president.
Dr. Bondzi-Simpson further said when the president travels abroad, it does not mean that he is unable to direct the affairs of the country, adding that modern technology has made it possible for him to direct affair of state wherever he is in any party of the world.
Counsel contended that in the event where the president is needed to perform any of his duties in person, when both he and his vice are abroad at that material time, then those functions may not be ceded to anyone else, but await the return of anyone of them.
However, when the issue is pressing and needs the special attention of the president, Prof. Asare argued that either one or both of them are required immediately to return to the country to undertake that issue.
The deputy Attorney General in his response said under Article 60 (11) of the constitution, absence of the president from the country is one of the examples that indicate that he is unable to perform certain functions.