US-based Ghanaian Law Professor, Kwaku Asare, alias Kwaku Azar, has joined in the chorus of disappointment that has met the cantankerous ruling by the Supreme Court upholding the supposed right of a First Deputy Speaker of Parliament to vote in a proceeding that he/she officiates in the absence of the substantive Speaker.
In a write-up he posted on social media, Prof. Azar warns that the ruling comes with collateral damage, to Ghana’s legal culture as a whole.
“Overruling the standing order that requires the Speaker Pro Tempore to act as an unbiased umpire with no vote makes a mockery of Tuffuor and could very well be a Pyrrhic victory of style over substance,” Prof. Azar warned.
A pyrrhic victory is the type of victory that is won at a great loss to the victor, and “Tuffuor V. AG” is a precedent ruling by the Supreme Court in which the court had held that it could not interfere in the affairs of the Legislature.
The ruling which vandalizes the precedent is a victory to the Akufo-Addo government which wants the unpopular Electronic Levy (e-levy) to be passed, but Prof. Azar warns the collateral damage to Ghana, in terms of the new precedent which vandalizes the separation of powers, is serious.
In addition to the negative impact on the separation of powers, Prof. Azar also points out the confusion that the ruling can wreck on Parliament itself.
“Consider Order 225, which provides that “The Chairman [of a Committee] shall not have an original vote, but in the event of an equality of votes he shall give a casting vote. Can the Supreme Court declare the order unconstitutional because it deprives the Chairman, therefore his constituents, of an original vote?
“I think not! Nor can the Court, in my opinion, invalidate the casting vote because it makes the Chairman a sole appellate judge of the committee’s decisions,” he wrote.
He continues, “In this regard, I agree with Justice Sowah, in the oft-cited but hardly understood Tuffuor case, when he says “that the law and custom 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 courts do not, and cannot, inquire into how Parliament went about its business.”
Parliament and the Courts are co-equal branches of government and neither can tell the other how to run its affairs.”
According to Prof Kwaku Azar If Parliament, in its wisdom and consistent with the rules applicable to the Speaker, decides that a Speaker pro tempore, should not take part in debates, vote, or should not caucus with his party on a matter pending while he presides, it is not for any Court to inquire into it just as it is not for Parliament to inquire into how Justices are chosen to sit on cases at the SC or why some cases are disposed of with alacrity and others seem to disappear into oblivion.
Meanwhile, the Constitution itself makes provision for denying MPs the vote under certain circumstances. For instance, Article 104(5) provides that “A member who is a party to or a partner in a firm which is a party to a contract with the Government shall declare his interest and shall not vote on any question relating to the contract.
“Just as Article 104(5) denies an MP the vote because of the clear conflict of interest, Parliament can reasonably demand that a Speaker Pro Tempore not be allowed to vote, debate, or act as a biased umpire. To reason otherwise, is to invite the MPs to treat a Speaker Pro Tempore as an ordinary MP, not entitled to the respect and courtesies that are due to the office of the Speaker,” Kwaku Azar warned.