The Supreme Court of Ghana has quashed the interim restraining orders placed on the Member of Parliament- Elect for Hohoe.
In Tuesday’s ruling in the Republic v High Court, ex parte Attorney-General (Interested Parties: Professor Kwaku & Others), the court said the alleged denial of the rights of others to vote in the elections that made John Peter Amewu Member of Parliament-Elect has nothing to do with him.
“What does that have to do with John Peter Amewu? He has nothing to do with alleged denial of right by Electoral Commission of right (EC) to vote and representation. He is not EC’s agent but just a candidate. If he (Amewu) was not duly elected because of EC’s infractions, action should have invoked article 99 and section 16. Therefore reliefs challenging his election are wrong,” the unanimous Supreme Court decision said.
The Attorney-General filed a suit at the Supreme Court On Tuesday, 29th December 2020, seeking to quash an order of the High Court presided over by Justice George Buadi, which amongst others, restrains Peter Amewu from presenting himself to be sworn in as a Member of Parliament.
This order was made pursuant to an ex parte application filed and argued by Tsatsu Tsikata, a legal practitioner on behalf of voters residing in Santrokofi, Akpafu, Lolobi and Akpafu in the Ho High Court. In the said motion he argued that by C.I. 95 they were deemed to be part of the Hohoe Constitutency and ought to have voted for the Parliamentary Candidate of Hohoe. The Energy Minister, Mr John Peter Amewu is therefore a beneficiary of their violated rights and should not be allowed to benefit from such violations until they are made to vote.
In the suit filed in the Supreme Court, the Attorney General argued that the Order which was meant to prevent the Electoral Commission from gazetting Hohoe Parliamentary Election constituted a patent error and the trial judge lacked jurisdiction to hear the said case.
“The High Court has no jurisdiction under article 33 of the Constitution to entertain a matter in the nature of a parliamentary election petition and to grant any relief(s) interim, interlocutory or final, available in a parliamentary election commended under article 99 and section 16 of the Representation of the People’s Law, 1992 (PNDCL 284)”.
In its Tuesday’s ruling, the Supreme Court agreed with the position of the Attorney General. Making reference to the decided case of Yeboah v JH Mensah where court relied on Article 99 and Section 16, it said the validity of Parliamentary Election can only be challenged by Petition in the High Court.
According to the Justices Article 33 only clothes High Court with power to determine Fundamental Human Right matters. Whereas Article 99 clothes it with power to hear Parliamentary Election disputes. Section 16 of PNDCL 284 (which predates Constitution but is saved by Article 11) says you only challenge Parliamentary Elections by petition.
“A person cannot sidestep this procedure and invoke any other High Court jurisdiction to ventilate a Parliamentary Election dispute. Arguments of counsel for Interested Parties with due respect to him, are untenable,” the Supreme Court explained.
This notwithstanding, the court said the reliefs on violation of human rights alleged by the Interested Parties fall within the High Court’s jurisdiction.
“But the High Court will have to determine whether right to vote falls within Fundamental Human Rights provisions under Chapter 5 or Directive Principles under Chapter 6.
What happened in Court before the ruling?
Before the Court could hear the case brought before it, Mr. Tsatsu Tsikata raised objection against Justice Clemence Jackson Honyenuga being a member of the Panel. Mr. Tsikata argued that the Honourable Judge has a long standing close relationship with Mr. Peter Amewu and as such cannot be a judge in this matter. The judge in open court refuted the said allegation and mentioned in the open court that he had no relationship with the said Peter Amewu.
The Learned Deputy Attorney General, Godfred Dame, opposed the application for the recusal of Justice Honyenuga.He argued that it is factually incorrect for Mr Tsikata to say that the Application has been brought on behalf of MrAmewu and further stated that the objection raised by Mr. Tsikata was frivolous and only intended to waste time. He concluded by submitting that Mr. Tsikata had failed to adduce any evidence to discharge the test of the real likelihood of bias and in case Mr. Amewu was not a party to the proceedings before the Supreme Court. The Court dismissed the objection and directed the AG to move the motion.
Before the AG could move his motion, Mr. Tsikata indicated to the court that he had another objection relating to C.I. 128 attached to the motion filed by the AG. The court directed him to argue his objection together with his response to the substantive action before the court.
The AG proceeded to move his application submitting that the High Court lacked jurisdiction to hear the matter because it was an election petition in substance clothed as a human rights matter. He further argued that the rights of the interested parties if any accrued in Buem Constituency and not Hohoe Constituency by reason of C.I. 128. He concluded that the orders made by the trial High Court in Ho were unlawful and invited the court to quash same and prohibit the trial court from further hearing of the case.
Mr. Tsikata in opposing the application arguing on the unconstitutionality of C.I 128, relying heavily on the reported case of MEKKAOUI V. MINISTER OF INTERNAL AFFAIRS 1981 GLR to advance his arguments.
The political context of the case
This case is coming on a historic note. For the first time in the history of Ghana’s Parliament, the two leading political parties who have representatives in the House, have equal numbers, with one independent candidate.
While others have tipped the independent candidate from Fomena to exercise the deciding vote when the House is split on equal numbers during voting, others suggest that the delicate Parliament constrict the Executive from having its bills approved.
It even gets worse as the opposition party; NDC keeps mounting challenges on some parliamentary seats, including the Hohoe seat, currently held by the ruling party.
It is feared that if these challenges succeed, not only will the government struggle to marshal the needed numbers to votes in favour of its bills,Parliamentmay be superintended by a speaker and a majority leader from the opposition party.
In context, this makes the outcome of the Supreme Court case so crucial as it does not affect only the politics of Hohoe but the entire country.