Unpacking the LGBT+ Bill: Executive-Legislature tension and the president's love letter

Last two weeks, we met and sat atop the Billaw Mountains, discussing the passage of the LGBTQ+ Bill by parliament. Initially, we applauded Parliament for passing the bill after rigorous intellectual debates among members of both sides of the House. We also acknowledged the insightful and invaluable contributions from civil society organizations and various religious groups.

Furthermore, we highlighted the position of the bill's proponents, stating that LGBTQ+ practices are culturally unknown to Ghana, besides the verifiable health-related issues associated with the practice. Conversely, the lead opponents of the bill argued that it was discriminatory against their adherents and a flagrant breach of the nation’s solemn vow to abide by the rules of international treaties to which we have subscribed.

In sum, we concluded that the role of the president in assenting to bills passed by parliament is two-fold, and both are mandatory, not voluntary.

2.0 The President’s Love Letter

While discussing this, on March 18, 2024, the executive secretary to the president wrote a letter to parliament, directing the clerk to parliament to "cease from transmitting the bill to the president" for his assent. The secretary to the president cited two main grounds in the "President’s Love Letter" to parliament, instructing the clerk to parliament to halt the transmission of the bill to the president for his assent:

a. There are two pending applications for interlocutory injunction filed at the Supreme Court purportedly praying for an order to restrain the clerk and parliament from transmitting the bill to the president for his assent and also restraining the president from signifying his assent or otherwise. (Dr Amando Odoi V The Speaker of Parliament and the Attorney-General and Richard Sky V Parliament of Ghana and the Attorney General)

b. The Attorney-General has, by a letter dated 18th March 2024, informed the president that he has been duly served with the two interlocutory applications stated supra and, in the exercise of his constitutional duty as the Legal Advisor to the government under article 88 of the constitution, 1992, advised the president not to take any action about the Bill pending the final determination of the suits by the Supreme Court. (in the spirit of upholding the rule of law).

3.0 Speaker’s Reaction

Unfortunately, the legislative arm of government did not receive the "President’s Love Letter" with a romantic caress and smile. Even before Parliament could officially react to the letter, many people expressed utter disappointment with how the executive was handling the bill. They had participated in all the processes leading to its passage and were now awaiting the president’s assent to give the bill the teeth to bite.

Furthermore, the content and diction of the letter were condemned by many as being too commanding and condescending to the clerk and an affront to Parliament—representative of the sovereign will of the people. It was noted that the executive secretary to the president is unknown to parliament and lacks the authority and capacity, inherent or statutory, to write "such a condescending letter" to the clerk of parliament, instructing him to "cease" from performing a mandatory statutory duty imposed on him under section 5(3) of the Interpretation Act, 2009 (ACT 792).

Fast forward to March 20, 2024, the speaker of parliament stormed into the chamber, his face a mask of fury. Anger burned in his eyes as he took his seat, his every movement radiating power and authority.

His jaw clenched, his brows furrowed, and his voice boomed with indignation as he addressed the letter from the president. The tension in the chamber was palpable, as the speaker's demeanor made it clear that he would not stand for such interference.

The atmosphere crackled with intensity as he demanded answers and respect, his presence commanding attention and respect from all who bore witness to his righteous fury.

Finally, he read out the "President’s Love letter" to members amidst the dead silence and utter attentiveness in the chamber. To the surprise of many, the Speaker said he was aware of a pending application at the Supreme Court restraining parliament from continuing to vet persons nominated by the president for ministerial positions.

Consequently, the House is unable to continue with the nominations of the president in the "spirit of upholding the rule of law" until after the determination of the applications for interlocutory injunctions by the Supreme Court. (Parliament adjourned sine die)! So, what does that mean? What’s next?

4.0 "Upholding the spirit of the rule of law"

On one hand, the Attorney-General, in a letter addressed to the president and in discharging his constitutional duties as a Legal Advisor to the government under article 88 of the constitution, 1992, advised him not to assent to the bill pending the determination of the Supreme Court on the applications for interlocutory injunctions held supra "in the spirit of upholding the rule of law."

On the other hand, the Speaker in declaring the inability of parliament to continue to consider the nominations of the president until the determination of the applications for interlocutory injunctions by the Supreme Court said parliament is compelled to do so "in the spirit of upholding the rule of law."

So, who is upholding the spirit of the rule of law? Who was speaking grammar and who was speaking law? To admit both are correct is unthinkable. To admit both are wrong may be plausible. But any objective observer, a truly natural mind, would come to the irresistible conclusion that the current power play or impasse between the Executive and legislature is not about who is right and who is wrong. Perhaps, it has more to do with who has more power; Number 1 or Number 3? Politics! Politics! Politics!

Fortunately, I refuse the invitation and temptation to reduce this all-important subject matter to the power play between Number 1 and Number 3. To do so is to deny readers the substance of the facts as presented and further decay of intellectual exercise in discussing and analyzing matters of national importance devoid of political coloration and vituperations. So, we deal with the substance only—at best, the substance only!

5.0 Issues arising from the facts

a. Whether or not an application for interlocutory injunction yet to be determined by a court of competent jurisdiction in an action is a bar from continuing the action?

b. Whether or not the Clerk to Parliament has the capacity to transmit a bill to the president for his assent/erred in law when he transmitted the bill to the president for his assent?

c. Whether or not the Attorney-General is justified when he advised the president not to assent to the bill pending the determination of the applications for interlocutory injunction by the Supreme Court?

d. Whether or not the Speaker of Parliament is justified when he ruled for parliament not to continue to consider the nominations of the president pending the determination of the applications for interlocutory injunction by the Supreme Court?

Now dear reader, sit back and relax, with your cup of coffee at hand, as we take each issue raised above and discuss them in seriatim.

5.1 Issue

The area of law raised in this issue has to do with the application for interlocutory injunctions. For the uninitiated in basic Civil Procedure, an interlocutory injunction is an order of the court, made to compel or prevent a party from doing certain acts pending the final determination of the case.

Thus, an order is made at the interim stage during trial and it’s usually issued to maintain the status quo until judgment is made. The court may grant the application if it thinks it is right or convenient to do so under Order 25 rule 1(1) of CI 47. The legal effect is that the mere application for an interlocutory injunction generally does not act as a bar from continuing an action until the court hears the application and decides whether the defendant to stop the action or otherwise.

Applying the facts to the instant case, the applications made for interlocutory injunctions by the plaintiff in the instant cases are yet to be heard by the Supreme Court. So, no determination has been made and same cannot be a bar to the clerk of parliament from transmitting the bill for the president’s assent.

Thus, since the court has not made any determination on the merits of the application, the mere application for interlocutory injunction is not a bar to the defendant.

5.2 Issue

The issue raised here has to do with the capacity of the Clerk to Parliament to transmit bills to the president for his assent as part of the law-making processes. Article 93 (2) of the constitution vets in parliament the power to make laws for the country.

The procedures for making such laws are outlined under Article 106 of the Constitution, 1992. After the passage of the bill, the same is transmitted by the Clerk to Parliament under section 5 (3) of the Interpretation Act, 2009 (ACT 792) and sent to the president to signify his assent or otherwise.

Applying the facts to the instant case, as per the letter by the executive secretary to the president dated 18th March 2024, the Clerk to Parliament sent a transmitted bill to the president for his assent. On the facts, the clerk to parliament has the capacity and acted within that capacity when he transmitted the bill to the president for his assent.

In so doing, he did not err in law because he was only carrying out a statutory duty imposed on him as held supra. Consequently, the clerk to parliament acted within his capacity and he was justified when he transmitted the bill to the president to signify his assent or otherwise.

The letter written by the executive secretary to the president, instructing the clerk to parliament to “cease” from transmitting the bill to the president to signify his assent is without foundation in fact, and the same is unknown to the law, respectfully.

5.3 Issue

The issue raised here has to do with the legal effect of an application for interlocutory injunction and whether or not the advice given by the Attorney-General about the same is sound in law.

As discussed supra, an application for interlocutory injunction is an order of the court, made to compel or prevent a party from doing certain acts pending the final determination of the case.

The Supreme Court is yet to hear the application and the prayer of the plaintiff may be granted when the Court thinks it’s reasonable and convenient so to do. Until the Court hears the application, it’s not an automatic bar for a party to stop continuing an action already set in motion.

The general practice where a party stops an action because an interlocutory injunction has been filed at the court is only in reverence to the court, and not one backed by law.

Applying the facts to the instant action, the Attorney General in a letter advised the president not to assent to the bill because he has been duly served with an application for interlocutory injunction about the matter pending the final determination by the Supreme Court.

But the duty to assent to bills is not a choice that the president should make. The duty to assent to bills is a command from the constitution under article 106 (7) of the constitution. The president only has the option to explain in a memo why he cannot assent to it or what he thinks ought to have been included in the bill but was left out.

A mere application for interlocutory injunction yet to be heard by the court is not a bar to an action. Consequently, the advice was not grounded in law and the same is legally defective, nothing more besides, respectfully.

5.4 Issue

The issue raised here deals with the action taken by the Speaker and parliament in general not to continue to consider the nominations of the president because he has received an injunction seeking to restrain the Speaker from proceeding with the vetting and subsequent approval of persons nominated by the president for ministerial positions.

Under our current political structure, the president must nominate persons for ministerial positions under Article 78 (1) subject to the prior approval of parliament. It’s therefore a constitutional duty imposed on parliament to vet and either approve or reject the nominees.

The performance of this constitutional duty cannot be swept under the carpet merely because an application for an injunction has been served on the Speaker, which application is even yet to be heard by the court.

Thus, the Speaker’s directive that parliament is unable to continue with the approval of the president’s nominees is without any legal foundation. The fact is, a mere application for injunction yet to be heard by the court cannot outdo a constitutional provision commanding parliament to carry out a duty.

6.0 Conclusion

As intimated above, any objective observer, a truly natural mind, would come to the irresistible conclusion that the current power play or impasse between the Executive and legislature has nothing to do with “the spirit of upholding the rule of law”.Ironically and by the same token, both have violated provisions of the constitution, the highest law of the land with reckless disdain and braggadocio. Thus, as if to say, “They are the law and the law is them”.

Undermining the constitution by these two organs of state sets a dangerous precedent that the highest authorities are above the law, leading to unchecked power and potential abuse of authority. The consequences of such actions can result in civil unrest, political instability, and a breakdown of the social fabric.

It jeopardizes the rights and freedoms of the people, threatens the concept of separation of powers, and damages the credibility of the entire political system. Well, this is Ghana, the only history we have learned is that we learn no history at all.

Good woman, the calabash is empty. Until something new comes up again about the subject matter, I am back to the top of the Billaw Mountains to enjoy my solitude.

Amandra! Awanku! Toyitoyi! Toyitoyi! Toyitoyi! Toyitoyi...

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