General News of Friday, 15 September 2006

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2006-09-15

DOCUMENT: Amoateng's Judgement

On 16th March, 2006, the plaintiff per his lawful attorney caused to be issued a writ of summons claiming the following relief against the defendants:

• (a) A declaration that on a true and proper interpretation of Article 97 (1) (c) of the 1992 Constitution, the seat of the Hon. Eric Amoateng, Member of Parliament for Nkoranza North, has, by operation of law, become vacant by virtue of the absence of Hon. Eric Amoateng from at least fifteen (15) consecutive sittings from Parliament during a period that Parliament has been summoned to meet and continues to meet, when, for the period of the fifteen (15) sittings he did not have the written permission of the Speaker and he had not offered any reasonable explanation to the Parliamentary Committee on Privileges and/or by virtue of his indefinite absence from Parliament;

• (b) A declaration that on a true and proper interpretation of Article 97 (1)(c) of the 1992 Constitution, the Parliamentary Committee on Privileges is without authority to grant the 4th Defendant, the Honourable Member of Parliament for Nkoranza North, a dispensation to be absent from Parliament indefinitely; therefore the recommendation or purported grant of dispensation to the 4th Defendant, the Honourable Member of Parliament for Nkoranza North, in late February or early March 2006 by the Parliamentary Committee on Privileges, for his continued and indefinite absence from Parliament, coming after fifteen sittings of the said Member being absent from Parliament during a period that Parliament has been summoned to meet and continues to meet, has come too late and is constitutionally barred, unconstitutional, incompetent, void and of no effect. In the result, the Right Honourable Speaker and the Parliamentary Committee on Privileges may and can only grant a Member of Parliament a dispensation to be absent from fifteen (15) sittings of Parliament – that is to say up to fifteen (15) sittings of Parliament, and not more. Therefore, the said recommendation or purported grant of dispensation to the 4th Defendant is unconstitutional.

• (c) A declaration that the Honourable Member of Parliament has failed to offer any “reasonable explanation” for his absence from Parliament for the fifteen (15) sittings, and that any explanation that justifies or attempts or purports to justify his indefinite absence on account of his lawful detention in any facility, in connection with the investigation by the appropriate State authority of a criminal or narcotics case is, in law “Unreasonable”;

• (d) An order directing the Speaker of Parliament to direct the Clerk of Parliament to report the vacancy of the Nkoranza North seat to the Electoral Commissioner with a view to the Electoral Commissioner conducting bye-elections for the said vacant seat;

• (e) Costs;

• (f) Such further or other order as the Honourable Court may deem necessary.

BACKGROUND

The background to this action is as follow: The 4th defendant Honourable Eric Amoateng, sitting MP for Nkoranza North constituency, under Standing Order 15 sought leave of absence from parliament from the Speaker from 17th to 24th November 2005. The Speaker under standing order 16 granted the honourable MP leave. The Honourable MP was in course of his trip arrested in the United States of America and put into custody on charges of unlawfully importing narcotics drugs into that country. He has since been refused bail pending the trial.

On 17th February 2006, Mr. Speaker informed the house that he had received through the counsel for the MP a letter explaining the cause of his continued absence from the House for over fifteen (15) sittings. The date of that letter and when Mr. Speaker received it is not stated on the Report of the Parliamentary Committee on Privileges. In accordance with Standing Order 27, Mr. Speaker referred the letter from the MP’s solicitor to the Committee on Privileges for consideration and report.

The committee met on 22nd February 2006 and considered the reasonableness of the honourable MP’s absence from Parliament. In so doing, the Committee invoked the principle in criminal jurisprudence that an accused is presumed innocent until proven guilty before a competent court of law and so adjudged, the fact that the adversarial criminal process is slow and over which the Honourable MP has no control and hence compassion must be shown. Upon these and other considerations the Committee recommended to the House to allow the Honourable MP the required time to defend himself. On 2nd March 2006, the Chairman of the Committee presented the Report. The house after some debate, approved it. It is this decision of Parliament which is called into question in this suit.

I wish to recast the plaintiff’s claim in a less formal language. It is that the Speaker permitted 4th defendant to be absent from the sittings of parliament from 17th to 25th November 2005 only. But thereafter the 4th defendant has been absent without the Speaker’s permission for fifteen (15) sittings and beyond. The 4th defendant offered no reasonable explanation to the Parliamentary Committee on Privileges for his absence long after the 4th defendant has been absent for over fifteen (15) sittings but Parliament granted him dispensation to be absent upon his solicitor’s letter referred to the Committee on Privileges by the Speaker. That being so the application for dispensation and the dispensation so granted has come too late. This is because beyond fifteen (15) sittings, the 4th defendant’s seat has become vacant by operation of law and neither the Speaker nor Parliament can grant the 4th defendant any dispensation. In any case, a dispensation to an MP should not exceed fifteen (15) sittings. But in this case, the dispensation granted was for an indefinite period and the explanation of the 4th defendant upon which the dispensation was granted is unreasonable. Therefore this court should declare the seat of the 4th defendant vacant by operation of law as the purported grant of dispensation to the 4th defendant is unconstitutional.

The writ of summons was served on 1st, 2nd and 3rd defendants. They entered appearance and filed their statements of defence. But 4th defendant from the facts is not within the jurisdiction and could not be served personally. In an application for substituted service and not for service out of the jurisdiction, plaintiff contended that he does not know the address of the facility in which the 4th defendant is being kept in the USA. But then the Clerk of Parliament is in the know and so the writ of summons should be served on him and he is certain the writ of summons will be brought to the knowledge of the 4th defendant. The court granted application but up to date there was no response from the 4th defendant. At the time of this application, the plaintiff was aware that the 4th defendant was being represented by a counsel. So that application for substituted service, in order to achieve the result expected, should have been directed at that solicitor under Order 7 rule 12 (2) or (4) of CI 47.

The 1st and 2nd defendants being officers of state institutions are represented by the Attorney General and Minister of Justice. In their joint statement of defence, they asserted that the issue of interpretation and enforcement of provisions of the Constitution is within the exclusive original jurisdiction of the Supreme Court. But then the provisions of Article 97 (1) of the Constitution dos not require the the High Court to declare the seat of a member of parliament is vacant. As to the claim of the plaintiff that the 4th defendant’s seat in Parliament has become vacant, they denied it because Parliament itself in accordance with its internal procedure has decided otherwise. And under article 110 of the constitution, procedural matters of parliament are within its exclusive province which the courts do not have the function to determine. Concluding 1st and 2nd defendants positively pleaded that by the provision of Article 130 (a) of the constitution, the High Court has no jurisdiction in this matter.

For the 3rd defendant it is admitted that its duty includes conducting public elections in Ghana in accordance with article 45 (c) of the Constitution. But in the particular circumstances of this case it has been wrongly joined because the plaintiff’s claim does not seek any direct relief or order against it. So it should be struck out as having been unnecessarily made a party to this.

I agree with this contention by or on behalf of the 3rd defendant. Indeed but for their inability to respond to processes filed on them timeously, I would have struck them out as a party. This is because the 3rd defendant has not been notified of the vacancy of 4th defendant’s seat in Parliament and for that clearance to conduct a by-election. For article 112 (5) of the Constitution provides:

“Whenever a vacancy occurs in Parliament, the Clerk to Parliament shall notify the Electoral commission in writing within seven (7) days after the vacancy occurred, and a by-election shall be held within thirty (30) days after the vacancy occurred.”

By this provision, 3rd defendant cannot suo motu conduct a by-election in the Nkoranza North Constituency. It can only do so if notified of a vacancy of the seat by the clerk of Parliament. There is no such notification from parliament. So the plaintiff could not aver to any one. I accept the 3rd defendant’s contention that the plaintiff has no cause of action against it. I therefore strike out the 3rd defendant as a party to this suit.

ISSUES FOR DETERMINATION

The following issues have been set down for determination of the claim between the plaintiff and the 1st and 2nd defendants:

• a. Whether the High Court has jurisdiction pursuant to Article 99 (1)(a) of the Constitution to grant the relief sought in the claim arising from Article 97 of the Constitution, or whether the relief sought is a matter interpretation pursuant to Article 130(2).

• b. Whether the seat of the 4th Defendant in the Nkoranza North Constituency has become vacant by operation of law by virtue of his absence from at least fifteen (15) consecutive sittings of Parliament from November 2005 onwards, during a period that Parliament had been summoned to meet and continued to meet, when for the period of the fifteen (15) sittings he did not have the written permission of the Speaker and he had not offered any reasonable explanation to the Parliamentary Committee on Privileges and/or by virtue of his indefinite absence from Parliament;

• c. Whether Parliament’s decision in granting the 4th Defendant a dispensation to be absent indefinitely from Parliament can be called into question in a Court of competent jurisdiction on legal grounds as being unreasonable and unlawful, or whether Parliament’s political decision in the matter is unquestionable, non-justiciable and absolute;

• d. Whether it is unreasonable and therefore unlawful for Parliament to grant to a Member of Parliament a dispensation to be absent indefinitely from Parliament and from the performance of his duties as a Parliamentarian;

• e. Whether Parliament’s decision in granting the 4th Defendant a dispensation after his absence from Parliament for 15 consecutive sittings has come too late and is thereby incompetent, inconsequential, void and of no effect;

• f. Whether any permission given by the Right Honourable Speaker to the 4th Defendant had lapsed, and the basis for any permission given had ceased to exist and had been radically, materially and fundamentally altered by the apprehension and detention in the United States of the 4th Defendant on narcotics charges;

• g. Any other issues arising from the pleadings.

Compared to the reliefs the plaintiff seek in this action, all the issues so raised can be placed and decided in the context of reliefs (b) and (c). And as noticed the reliefs and the issues have been placed in the context of constitutional provisions or given constitutional colour. I therefore reproduce the relevant provisions of the Constitution thus: Article 2(1). “A person who alleges that - (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect. Article 130 (1). “Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in - (a) all matters relating to the enforcement or interpretation of this Constitution; Article 130 (2) “Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” Article 97 (1). “A member of Parliament shall vacate his seat in Parliament - (c) if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet.” Article 99 (1). “The High Court shall have jurisdiction to hear and determine any question whether - (a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant; Article 99 (2). “A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.” DISCUSSION The first issue which calls for determination is whether or not this court has jurisdiction in this matter. It is the case for the plaintiff that in view of the provisions of Article 99 (1) (a) this court has jurisdiction. According to the plaintiff, the issue to determine is whether the 4th defendant’s seat has become vacant. In his view no question of interpretation arises for the Supreme Court to hear and determine. But counsel for 1st and 2nd defendants challenges that if the plaintiff’s claim is a question of interpretation of a provision of the Constitution, then the Supreme Court is the proper forum. On the other hand, in so far as Parliament has acted by virtue of the powers conferred upon it by Article 97 (1) of the Constitution, the question of reasonableness or otherwise of the 4th defendant’s continued absence from parliament is not subject to scrutiny by the court because it is an internal matter.

It is trite learning that jurisdiction is conferred by Statute. In Timiti v. Amabebe (1953) 14 WACA 374 at 375, the court held that “A court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has the power to hear it or determine it or exercise any judicial power therin.” Article 99(1)9a) of the Constitution has given the High Court the power to ear and determine the question whether the seat of the MP is vacant. This court therefore has that jurisdiction conferred on it by the supreme law of the land. But then jurisdiction is not exercised in vaccum. Its exercise is related to the parties, the subject-matter in issue and the kind of relief sought. So in Stroud’s judicial Dictionary (5th Edition), volume 3 at page 1379, the learned authors wrote “In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of the process by reference to 91) the subject-matter of the issue or (2) persons between whom the issue is joined and (3) the kind of relief sought, or any combination of these factors.” In the instant suit, I am of the view for now that the claim of the plaintiff per se and the relief sought by virtue of the provisions of Article 99(1)(a) of the Constitution is not beyond the jurisdiction of this court. What is debatable is the issue(s) raised by the claim – see Izenkwe v. Nnadozie (1953) 14 WACA 361 applied in Anin v. Ababio & Ors (1973) 1 GLR 509. I say so about the issues raised because the interpretation of the Constitution has been alluded to. This court must tread cautiously because by the provisions of article 130(1)(a) the enforcement or interpretation of any provision of the Constitution is the sole preserve of the Supreme Court. The plaintiff in relief 9a) as endorsed on the writ of summons prays as follows: A declaration that on a true and proper interpretation of Article 97(1)(c) of the 1992 Constitution, the seat of the Honorable Eric Amoateng, MP for Nkoranza North has by operation of law become vacant” the wording of relief (b) is framed in the same form as in relief (a) in respect of the same Article 97(1)(c).

These reliefs as endorsed on the writ of summons, the plaintiff’s counsel has argued that no question of interpretation arises for the Supreme Court to hear and interpret. But then the power to declare an act done under the authority of the Constitution is given to the Supreme Court. So a number of suits have been filed in the Supreme Court with the reliefs endorsed in the language as in the instant suit.

In the case of Ghana Bar Association v. Attorney-General et al. (Abban case) (2003-2004) SC GLR 250, the plaintiff endorsed the writ of summons with relief that (1) a declaration that on the true and proper interpretation of Articles 2(1)(a) and (b), 91(1) and (2), 128(4) and 144(1) of the Constitution, the President of the Republic should not have nominated and appointed the second defendant, Justice Isaac kobina Abban, to the office of the Chief Justice since he is not a person of high moral character and proven integrity. Other reliefs sough were an injunction restraining Justice Abban from purporting to act or acting in the office of the Chief Justice of Ghana and a declaration that the warrant of appointment of Justice Abban by the President is null and void, and an order that Justice Abban deliver up same for cancellation and that the same be duly cancelled.

The Supreme Court unanimously held that what the plaintiff is seeking to do is to impeach the Chief Justice and remove him from office. It further held that the claim the plaintiff seeks did not call for the interpretive function of the Supreme Court and so declined jurisdiction. At page 264, the Court observed that “though the plaintiff’s endorsement has been couched in a way so as to make it appear a constitutional issue, its ultimate result would be otherwise if their claim succeeds on the allegations made. In Yiadom I v. Amaniampong (1981) GLR 3, this court held the view that where the issue sought to be decided is clear, and it is not resolvable by interpretation or enforcement of the Constitution, this court ought to resist any invitation to pronounce on the meaning of the constitutional provision.” See also Bimpong-Buta v. General Legal Council (2003-2004) SCGLR 1200. The Supreme Court held in that case that the plaintiff’s action was no more than an ordinary civil suit splendidly presented as a constitutional issue. It was the Court’s view that the action did not raise any real or genuine issues of constitutional interpretation such as would justify the Court to exercise its original jurisdiction under Articles 2(1) and 130(1)(a) of the 1992 Constitution.

That being so there are a number of authorities which held that where a particular provision of the Constitution is precise, clear, and unambiguous, interpretation does not arise. In that case any court of competent jurisdiction can construe and apply the said provision of the Constitution. In the case of Republic v. Special Tribunal, ex parte Akosah (1980) GLR 592, the Court of Appeal considering when the issue of interpretation and enforcement of the Constitution, 1979 under Article 118(1)(a) (the same as Article 130(1)(a) of 1992 Constitution) would arise held: “(a) where the words of the provision were imprecise or unclear or unambiguous. Or if one party invited the court to declare that the words of the article has a double-meaning or were obscure or else meant something different from or more than that they said; (b) where rival meanings had been placed by the litigants on the words of any provision of the Constitution; (c) where there was a conflict in the meaning and effect of two or more articles of the Constitution and the question was raised as to which should prevail; and (d) where on the face of the provisions, there was a conflict between the operation of particular institutions set up by the constitution.”

I have only referred to this Ex-parte Akosah case (supra) for guidance. In this suit the plaintiff is questioning the propriety of the indefinite dispensation granted the 4th defendant by Parliament long after he had been absent from fifteen (15) sittings of Parliament. This is because since 17th November, 2005 when the 4th defendant left the shores of Ghana his constituency has been deprived of representation in Parliament. So none of the guidelines stated in the Ex-parte Akosah case (supra) is applicable in determining this suit. In any case, the plaintiff has argued that no issue of interpretation has arisen by its claim. I see none either. What this court must do now is just to construe and apply the provisions of Article 97(1)9c) of the constitution. I must therefore now determine whether this court can question or scrutinize the dispensation parliament has granted 4th defendant under Article 97(1)(c).

I wish for authority to rely on the case of Tuffuor v. Attorney-General (1980) GLR 637. It is a well-known case. The plaintiff a citizen of Ghana is his bid to uphold the supremacy of the 1979 Constitution like the plaintiff herein, questioned the nomination, the vetting and rejection of Justice F. K. Apaloo who was the Chief Justice of Ghana before the coming into force of the 1979 constitution and called for the interpretation of Article 127(8) and (9) of the said constitution.

On the procedure or conduct of proceedings of Parliament, Sowah JSC (as he then was) expressed himself at page 650 as follows:

“This then brings us to the question of how far the courts can question what under our constitution has been done in, and by Parliament. There is a long line of authorities, which established two important principles governing the relationship that subsists or should exist between Parliament and the Courts: (a) that the courts can call in question a decision of Parliament but that the courts cannot seek to extend their writs into which happens in Parliament; and

(b) that the law and customs of parliament is a distinct body of law and, as constitutional experts do put it, “unknown to the courts.” And therefore the courts take judicial notice of what has happened in parliament, the court do not and cannot inquire into how Parliament went about its business.

The Court cannot therefore inquire into the legality or illegality of what happened in parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of Article 91(1), its actions within Parliament are a closed book.”

The Court upheld the plaintiff’s claim and declared F. K. Apaloo as the incumbent Chief Justice under the 1979 Constitution – see the dictum of Acquah JSC (as he then was) in J. H. Mensah v. Attorney General (1996-1997) SC GLR 320 at 370 and Archer C.J in New Patriotic Party v. Attorney General (31st December case) (1993-1994) 2 GLR 35 at 49.

The ratio in these cases I have referred is that once parliament in the performance of its functions acted within the confines of the Constitution or complies with the provisions of the Constitution, its acts are not open to the scrutiny of the courts. For Article 110(1) of the Constitution allows Parliament to regulate its own procedures.

It however does not appear to me that in this action the plaintiff is questioning any procedure adopted by Parliament in this matter. Rather, the plaintiff is questioning the decision of Parliament in this matter. And so in issue (c) the political doctrine has been raised. In the 31st December case, Adade JSC (as he then was) referred to the American case of Baker v. Carr 369 US 186 and held that the political doctrine question is inapplicable in our jurisdiction. But in J. H. Mensah v. Attorney-General (supra) at page 368 Acquah JSC (as he then was) stated “Accordingly 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 or function within 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.”

And in the Abban case (supra) Kpegah JSC, exhaustively discussed the doctrine. In the first place he drew the distinction between a political question (which we are considering) and a political case. He concurred in the views of Acquah JSC (as he then was) in the 31st December case that the concept of political question is rooted in the doctrine of separation of powers. And for the concept to apply the circumstances of the case must satisfy a criteria and this criteria, the Baker case (supra) did not attain.

The learned judge at page 300 cited the concurring opinion of Justice Powell in Goldwater v. Carter 444 US 996 on the issue. Justice Powell posed three questions, which if answered positively satisfies the application of the doctrine. They are:

(a) Does the issue involve resolution of questions committed by the text of the Constitution to a co-ordinate branch of government?

(b) Would the resolution of the question demand that a court moves beyond areas of judicial expertise?

(c) Do prudential considerations counsel against judicial intervention?

In the Abban case (supra) the learned judge held that all the three questions are positively answered. Specifically he held that the issue of the appointment of the Chief Justice is a non-justiciable political question because the President has been given the prerogative by Article 144(1) of the 1992 Constitution.

In the instant case before me, I hold the view that the political question doctrine applies. Referring to Article 97(1)(c) of the constitution, a member vacates his seat in two related situations. They are (1) if a member is absent without the permission of the Speaker and (2) is unable to offer a reasonable explanation to the parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to met and continues to meet.

The peculiar situation in which 4th defendant found himself was not lost on Parliament in arriving at the decision it reached in this matter. After 24th November 2005, 4th defendant had no permission of the Speaker to be absent from the sittings of Parliament. But then he could not immediately explain to the Parliamentary Committee on Privileges the reason for his absence. This is because he was arrested, detained and refused bail. Notwithstanding that, parliament was informed of the reason for the absence of the 4th defendant long after fifteen sittings. Parliament found his explanation reasonable and granted him dispensation. The dispensation granted 4th defendant was more or less indefinite because his guilt or otherwise is yet to be determined by the courts in the United States. And it is Parliament which as the legislative arm of the government which has been mandated by the Constitution to determine the reasonableness or otherwise of 4th defendant’s explanation through the committee on privileges. And this is what parliament has done.

One other way by which a Member of Parliament shall vacate his seat under Article 97 is

“(1)(e) if any circumstances arise such that, if he were not a member of Parliament, would cause him to be disqualified or ineligible for election, under article 94 of this Constitution.” And Article 94 provides in clause 2 that “A person shall not be qualified to be a Member of Parliament if he has (c) has been convicted (i) for high crime under this Constitution or high treason or treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude.”

It is not denied that the tenure of Parliament for that matter, Members of Parliament is for a fixed period (4 years) and with the absence of the 4th defendant for all these months, the Nkoranza North Constituency which he represents, has no representation in parliament. But then as at now 4th defendant is only a suspect or at best an accused person and not a convict.

Why should a Court of Law declare the seat of the 4th defendant vacant?

Let me conclude with a hypothetical situation: Supposing the 4th defendant was involved in a fatal accident on this trip and he was only able to inform Mr. Speaker long after fifteen sittings of Parliament. Doctors attending to him determined that it will take sometime for him to recover. Should the Court declare an indefinite dispensation granted 4th defendant in such circumstances by parliament as unreasonable? Consequent upon that, should the Court declare the seat of the 4th defendant vacant? I think not.

Parliament has found the reason for the absence of 4th defendant from the sittings of Parliament reasonable. Consequent upon that, Parliament has granted 4th defendant indefinite dispensation in the particular circumstances of his case. That decision of Parliament in my respectful opinion, will stand the test of time. That apart this decision of Parliament is a political question intravires the Constitution and therefore not subject to judicial scrutiny. For these reasons, I accept the contention of the 1st and 2nd defendants that the plaintiff is not entitled to his entire claim. It is dismissed.

No order as to costs.

(SGD.) E. K. Ayebi JUSTICE OF HIGH COURT