A crucial constitutional test is currently unfolding in Ghana’s Parliament, according to Private Legal Practitioner Amanda Clinton, who argues that the quick declaration of a parliamentary seat as vacant, despite an ongoing appeal process, is an erosion of institutional power that risks upsetting the balance of Ghana’s constitutional democracy.
Ms Clinton, Head of Chambers at the law firm Clinton Consultancy, warns that the recent action surrounding the Kpandai Constituency election rerun presents a departure from the principled autonomy Parliament previously asserted against the judiciary.
The Current Departure: Speed Over Finality
The controversy centres on a High Court’s order for a rerun of the Kpandai parliamentary election.
Crucially, election petition rulings in Ghana are subject to appeal, yet the Clerk of Parliament moved swiftly, transmitting a notice to the Electoral Commission that effectively treated the High Court ruling as having automatically vacated the seat, Ms Clinton explained.
The international lawyer emphasises that this speed replaced constitutional judgement, collapsing the right of appeal into irrelevance.
“This is not merely a clash between Majority and Minority. It is a constitutional test of whether Parliament will remain faithful to principles it once defended with conviction, or abandon them when they become inconvenient.”
The Speaker’s Principled Precedent (2021–2022)
Ms Clinton stresses that the current approach stands in sharp contrast to Parliament’s robust defence of its autonomy during the 2021–2022 constitutional crisis concerning the anti-defection provision (Article 97(1)(g)).
In that period, despite a Supreme Court interpretation on the matter, the then-Speaker, Rt. Hon. Alban Sumana Kingsford Bagbin maintained a firm institutional stance:
“Courts interpret the Constitution; Parliament administers its own membership.”
The result of that principled position was instructive:
- No seat was declared vacant.
- No notice was sent to the Electoral Commission.
- No by-election was held.
This historical stance showed Parliament’s fidelity to the separation of powers by asserting that the constitutional consequence of a vacancy requires the recognition and action of the deliberative body itself, not administrative correspondence triggered by judicial haste. Ms Clinton added.
The Fragility of the Current Approach
Ms Clinton argues that the current, rushed approach is constitutionally fragile for three key reasons:
- Constitutional Exhaustiveness: Article 97 is exhaustive, listing specific circumstances under which a seat “shall vacate.” A High Court ruling ordering a rerun is not listed, meaning it should only lead to a vacancy after finality, not while appeal rights remain alive.
- Judicial Hierarchy: A High Court ruling is first-instance. Treating it as conclusive collapses the constitutional right of appeal, undermining the judicial hierarchy.
- Clerical over Constitutional Act: The Clerk is an administrative officer, but operationalizing a vacancy is a constitutional act that should flow from Parliament acting under the authority of the Speaker, not from a clerical dispatch.
The missing element, Ms Clinton suggests, is parliamentary deliberation.
Instead of speed, Parliament should have debated the ruling’s effect, acknowledged appeal rights, and considered awaiting appellate clarification.
“Consistency is the currency of constitutional legitimacy. Vacancies should follow finality, not anticipation. Authority should follow deliberation, not dispatch.” She said.
Ms Clinton concluded that if Parliament forgets this institutional principle, the precedent set today will not only shape the next by-election but also risk permanently shaping the future balance of Ghana’s constitutional democracy.
