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Opinions of Wednesday, 25 January 2006

Columnist: Asare, Kwaku S.

Has Amoateng Vacated the Nkoranza North Seat?

Has Honorable Amoateng Vacated the Nkoranza North Parliamentary Seat?

On or about November 12, 2005, US Law Enforcement Officials arrested Eric Amoateng, MP for Nkoranza North, at a Staten Island storage facility. The MP was subsequently detained and charged with conspiracy to distribute heroin in violation of 21 USC 846. Violation of 21 USC 846 is a felony that can attract a prison term ranging from 20 years to life imprisonment.

The MP has since not been able to attend parliamentary sessions and will likely not be able to attend parliamentary sessions for an indefinite period of time. This continued and indefinite absence from parliament raises the question of whether the MP has vacated his parliamentary seat, which would call for bye elections.

Before attempting to address this question, it is important to state what the question is not about. First, the question is not about and has nothing to do with the guilt or innocence of the MP.

Under USA law, the MP is presumed innocent, until a duly empanelled jury finds otherwise. Second, the question has nothing to do with whether one supports the NPP, the NDC or is an independent. Indeed, we could address the issue as if it was a hypothetical.

The question is important because it implicates various conflicting interests. First, the MP won an election and has an interest in serving his term. Second, the people of Nkoranza have an interest in being represented in Parliament. Third, Parliament has an interest in protecting its reputation and integrity. Fourth, every citizen has an interest in ensuring that duly elected members who are unable to serve give way to others. Finally, the treasury has an interest in paying only MPs who are actually working.

Turning now to the question of whether the MP has vacated his seat, we must, first, turn to the constitution to see whether and how it balances the competing interests identified above. Article 97 of the constitution, in relevant parts, provides that:

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; or

  • (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.
Article 97(1) is in the form of an unambiguous command ? an MP automatically vacates his seat if the conditions in 97(1)(c) or 97(1)(e) are met.

When are the conditions in 97(1)(c) met?

First, during any period that parliament is in session, the MP must be absent without the written permission of the Speaker from fifteen sittings of parliament. Second, the absentee MP must be unable to offer a reasonable explanation to the Parliamentary Committee on Privileges (hereafter Committee). Since article 97(1)(c) is in the conjunctive, it appears to require the presence of the two conditions for it to be triggered. That is, even if an MP does not have written permission from the Speaker, he does not vacate his seat as long as he is able to offer a reasonable explanation to the Committee. Likewise, even if he is unable to offer a reasonable explanation to the Committee, he does not vacate his seat as long as he has the written permission of the Speaker.

While absence without the written permission of the Speaker is easy to understand and verify, the phrase ?he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges? presents interpretive challenges. For instance, what does an ?offer? mean? When is an MP ?unable to offer a reasonable explanation?? Does this ?offer? require acceptance or even an acknowledgment or is the ?offer? sufficient? What constitutes a reasonable explanation? Clearly, the constitution anticipates that some explanations are unreasonable since it insists on a reasonable explanation, but who decides whether the explanation is reasonable? ▬ The MP making the offer; the Committee; the Speaker; Parliament; or the Judiciary?

While article 97(1)(c) is not a model of careful drafting, we can, and must, read it to avoid absurdities. It seems eminently absurd to require an MP to offer a reasonable explanation to a committee if the MP is also required to evaluate whether the explanation is reasonable. If that interpretation is sustained, the Committee serves as a mere receptor of an explanation from an MP, whose behavior (the absence) is in question. One can and should, conclude that the MP must offer an explanation to the Committee, and someone other than the offering MP must evaluate the reasonableness of the explanation.

It does seem more plausible that the Committee should be responsible for evaluating the absentee MP?s explanation for reasonableness. But will this not present an opportunity for the Committee to engage in politics? Perhaps, but article 99 provides a safety valve. Specifically, article 99 (1)(a) provides that ?The High Court shall have jurisdiction to hear and determine any question whether the seat of a member has become vacant; and article 99(2) provides that ?A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.?

I conclude that the Committee is the proper body to evaluate the reasonableness of the MP?s explanation subject to the 2-step judicial review process outlined in article 99.

Applying article 97(1)(c) to the facts of the MP from Nkoranza, we must ask:

  • (1) whether Amoateng has been absent from 15 sittings of Parliament;
  • (2) whether he is absent without the written permission of the Speaker; and
  • (3) whether Amoateng is unable to offer a reasonable explanation to the Committee.
Mr. Amoateng was arrested on November 12, 2005 when the 3rd meeting of the 1st session of the 4th Parliament was in session. That 3rd meeting extended from 25/10/2005 to 16/12/2005. Counting from the date of his arrest, Mr. Amoateng missed 25 sittings of the 3rd meeting. The 1st meeting of the 2nd session of the 4th Parliament has been in session since 17/1/2006. At the time of writing this article, Mr. Amoateng has already missed 4 sittings of this meeting and there appears to be no end in sight as to these absences. Based on that, we must conclude that the MP has been absent from more than 15 sittings of Parliament.

Whether Mr. Amoateng is absent without the written permission of the Speaker is not known. Surprisingly, the Speaker has been mute on this important question and the media has not probed for an answer. But even if one assumes that Amoateng had the Speaker?s written permission, the permission expired after he was absent for 15 sittings. Thus, whether he has the Speaker?s written permission or not is moot.

Whether Mr. Amoateng has been able to offer an explanation to the Committee is also unknown. But if we assume that he has, it leaves us with the question of whether that explanation is reasonable. Here, the constitution provides no guidance, perhaps choosing to defer to the wisdom of the Committee. Further, the Committee is yet to publicize the process that it is required to follow and the criteria by which it will evaluate reasonableness.

But whatever a reasonable explanation might include, it is my view that it excludes absences for indefinite and extended periods. For if it was so, this exception will swallow the rule against excessive absences from Parliament since the Committee could effectively allow an MP to be gone indefinitely. It is unlikely that the framers of the Constitution intended such an absurd result; empowered the Committee to effectively rob constituents of representation; or even gave the Committee the power to grant their colleague an indefinite leave. To allow that result will be to bastardize the principle of representation.

I conclude that an explanation is not ?reasonable? unless it provides a clear, reasonable and definite expected return date (e.g., I, the MP for Asawase, will be absent from Parliament effective January 1, 2007 to . . . and will return on January 18, 2007 may pass muster because the expected return date is clear, definite and arguably reasonable. But I, the MP for Asawase, will be absent from Parliament effective January 1, 2007 and will return sometime in the future is per se unreasonable because the expected return date is indefinite and unclear).

Since the MP has been absent for more than 15 sittings and I deem whatever explanation that does not have a definite and reasonable expected date of return as unreasonable, I conclude that the conditions in article 97(1)(c) are met and the MP must vacate his seat.

Article 97(1)(e) may also be relevant. That article compels an MP to vacate his seat if any circumstances arise such that, were he not an MP, those circumstances would cause him to be disqualified or to be ineligible for election, under article 94 of this Constitution. It is very tempting and probably wrong to conclude that the MP would have been ineligible for election if he was in a foreign detention at the time of the election and he, therefore, must vacate his seat. To be sure, being held in a foreign detention would probably have made it difficult for him to contest the elections but the reason for the ineligibility or disqualification must be one of those specified by article 94. The disqualifying criteria in article 94 is about citizenship, age, voter registration, residency/hail from (see Re Wulensi Constituency), tax compliance, foreign allegiance, bankruptcy, criminal conviction, sanity, etc.

In my opinion, the MP does not foul any of the article 94 criteria. The only likely exception is article 94(f) which disqualifies a person who ?is not qualified to be registered as a voter under any law relating to public elections.?

Under PNDC law 284, a person who is detained in a foreign country will probably be disqualified on residence grounds. However, because I consider that PNDC law to be unconstitutional, I do not give it any weight. Thus, I conclude that Mr. Amoateng is not required to vacate his seat under article 97(1)(e).

Case law may also be relevant. In Asare v. Attorney General, the Supreme Court held that ?where both the President and the Vice-President are absent from Ghana, they are to be regarded as unable to perform the functions of the President and thus the Speaker is obliged to perform those functions.?

In Asare, the President and the Vice-President were going to be absent from Ghana for a very short definite period (four days). In spite of the short and definite absence, the Supreme Court concluded that they could not wield executive power from Overseas. While being an MP differs from being a President, it appears the principle in Asare also applies here. If the President who can delegate his executive authority to any number of his 88 ministers is deemed to be unable to perform his functions when he is abroad for 4 days, it surely must be the case that an MP, who is under indefinite detention in an Overseas facility and who cannot delegate his legislative functions, is also unable to perform his functions indefinitely. But being an MP has a definite tenure of 4 years and one cannot meaningfully carve out an indefinite absence period from this definite period of service. Thus, I conclude that Mr. Amoateng is required to vacate his seat under case law. Having concluded that the MP has vacated his seat under either the constitution or case law, it is also my opinion that article 110(5) compels the Clerk of Parliament to immediately notify the Electoral commission of the vacancy. It is a failure of justice for a constituency to be deprived of representation because her MP is under detention in a foreign country.

The failure of justice becomes complete and total when the Committee on Privileges, the Speaker and the Clerk of parliament fail to discharge their constitutional obligations arising from the loss of representation. If they fail to act immediately, the citizenry is left with no option but to seek a writ of mandamus to compel them to do their job.



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