Justice Tanko Amadu, one of the two dissenting Supreme Court judges in the case filed by Majority Leader Alexander Afenyo-Markin against Speaker Alban Bagbin, has described the majority decision as an “aberration.”
The Supreme Court in Accra on Tuesday, November 12, 2024, overruled Bagbin’s declaration of four seats vacant in Parliament.
In the full judgment provided by the Supreme Court on Thursday, November 14, the apex court explained that an MP’s seat is considered vacated if the member changes parties within Parliament and continues to serve under the new party affiliation.
But Justice Amadu, in his judgment, noted that the majority decision was abnormal to judicial practices.
He hoped that the majority decision would be reversed in the near future.
“I do not hasten to proclaim that I have apprehended with despair the majority’s conclusion in this suit, but I state, with utmost deference to the Hon. Chief Justice and the rest of my brethren in the majority that, not only do I fundamentally disagree with their conclusion, I, with all due respect, also find the decision an aberration to the established and accepted judicial position of this court which with profound respect.
“I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed,” he said.
Justice Amadu was of the view that the case brought before the court did not meet the necessary jurisdictional threshold for the Supreme Court.
He opined that if any interpretive issue arises in the High Court, that court should refer it to the Supreme Court for interpretation, but it is the High Court that must handle vacancy determinations directly.
“The conclusion I have arrived at should in no way be construed as suggesting that the Supreme Court is not the appropriate forum vested with jurisdiction to interpret and/or enforce the Constitution in appropriate circumstances. The point which I unequivocally emphasise is that, it is the same Constitution, 1992 which vested exclusive power in the Supreme Court in matters of interpretation and enforcement of its provisions which also designed the mechanism for this court to assume jurisdiction.
“Thus, although this court has a general jurisdiction to interpret and enforce provisions of the constitution, there are situations, such as in the instant case where the procedure adopted in invoking this court’s interpretative and enforcement jurisdiction has deprived the court of the power to exercise that jurisdiction. This particular action clearly demonstrates more than any other case I have confronted in constitutional law jurisprudence the failure by a party to comply with mandatory constitutional provisions in invoking jurisdiction and it is destined to fail.
“The above statement is supported by the recent decision of this very court in OWUSU-MENSAH VS. NAPTEX & ORS [2017-2020] 2 SCGLR 708 at 711. ’” A court might have jurisdiction to entertain a cause or matter but the procedure invoking its jurisdiction might deny the court the jurisdiction. That would occur where a statute had specially laid down the procedure for redress.”’
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