Legal scholar and social commentator Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has questioned how a High Court judge could order a parliamentary by-election when the constitution provides a clear appellate pathway under Article 99.

In a Facebook post on Tuesday, December 16, 2025, Kwaku Azar argued that Article 99 does not permit a one-off judicial determination of a parliamentary vacancy but rather establishes a structured constitutional process that includes a mandatory right of appeal.

According to him, a declaration of vacancy under Article 99 remains constitutionally incomplete until the appellate process has been fully exhausted.

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As a result, he maintained that ordering a by-election while an appeal is pending or while the appeal window remains open amounts to short-circuiting the constitution itself.

“The Supreme Court therefore did the right thing,” Kwaku Azar stated, stressing that the court’s intervention was not to protect any politician but to safeguard the constitution from what he described as procedural improvisation.

He attributed public confusion following the High Court ruling to what he called ‘loose talk’ about execution of judgments, stays of execution, and ordinary civil procedure, noting that such concepts do not apply to constitutional determinations under Article 99.

Professor Kwaku Azar explained that unlike ordinary judgments, which are executable unless stayed, an Article 99 determination merely answers a constitutional question whether a parliamentary vacancy has occurred and that answer remains provisional until appeals are concluded.

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“There is no writ of execution under Article 99. There is no executing officer. There is no coercive order to be carried out,” he indicated, adding that the clerk of parliament can only lawfully declare a vacancy and notify the Electoral Commission after the final appellate decision.

Only after this process, he said, may the Electoral Commission schedule a by-election, describing the sequence as mandatory rather than optional.

He cautioned that using procedural rules to override the constitution undermines constitutional order, warning of the potential chaos that could arise if a by-election is conducted, a new MP sworn in, and parliamentary business carried on, only for an appellate court to later rule that no vacancy ever existed.

“That is not decisiveness. That is a judge-initiated constitutional chaos,” he said.

Kwaku Azar urged judges of first instance to apply the constitution faithfully, rather than innovate around clear constitutional provisions, insisting that Article 99 was carefully designed to protect parliamentary stability, electoral legitimacy, and constitutional order.

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