Case Summary – Justice Abdulai v Attorney-General

Introduction 

Ghana's Supreme Court on 9 March 2022 in Writ No. J1/07/2022 – Justice Abdulai v Attorney-General decided on the legality of a presiding Deputy Speaker of Parliament of Ghana voting on matters before the House and being counted for purposes of quorum. The decision was a unanimous judgment that held that the Deputy Speaker, when presiding, can form part of quorum and vote on matters before the House. Consequently, the Court declared void and unconstitutional Order 109(3) of the Standing Orders of Parliament, which provides that a Deputy Speaker who presides over the sittings of Parliament shall not retain his original vote. 

Facts of the Case 

On 26 November 2021, the majority staged a walkout of Parliament before the Speaker put the question for approval of the 2022 Budget of the Government to a voice vote. In the absence of the majority caucus, and with a voice vote by the 137 Minority Members present, the Speaker ruled that Majority's motion for a vote to be taken by division had been lost and the Budget rejected.

On 30 November 2021, the majority members were present, but the minority and the Speaker were absent. Consequently, the 1st Deputy Speaker presided with only the Majority Members in the House. The Majority Leader submitted that there were only 137 members in the House when the Budget was purportedly rejected, in breach of Article 104 of the Constitution. He, therefore, invited the 1st Deputy Speaker to set aside the decision of the House on 26 November 2021 as a nullity.

 The 1st Deputy Speaker, before putting the question to the House for decision pursuant to the motion, ascertained by a headcount that there was one-half of Members of Parliament present, as required under Article 104(1) of the Constitution. In so doing, the 1st Deputy Speaker was counted as part of the half of Members present to make up 138. However, he did not vote on the question. The 1st Deputy speaker then declared that the motion had been carried and that the previous rejection of the Budget was null and void and of no effect. The House was thereby said to have approved the 2022 Budget.

In sum, all the activities that happened in Parliament after 30 November 2021 were not part of the facts of the case and the Court did not consider or determine same as part of the case before the Court. 

The Plaintiff's Case

The Plaintiff's case was that it was unconstitutional for the 1st Deputy Speaker to have been counted to make up the quorum of half of the Members of Parliament as required under Article 104(1) of the Constitution. The Plaintiff wanted the Supreme Court to, amongst others, declare that:

"to the extent that a Member of Parliament presiding over Parliamentary sitting cannot be counted as part of the Members of Parliament present, that Member cannot be counted as part of decision making in Parliament, and as a result the decision made to approve the 2022 Budget on 30 November 2021, amounts to a nullity and is of no effect."

Issues and Discussion

Issues are questions that a court sets down to assist it in deciding whether a party is entitled to the reliefs that he/she has brought before the Court. The parties in the suit subject to the Court's direction usually agree on the issues that the Court has to determine. The parties presented three issues for determination, and these are discussed below. 

Issue One

Whether or not upon a true and proper interpretation of Articles 102 and 104(1) of the Constitution, a Deputy Speaker of Parliament or any other member of Parliament presiding over Parliament in the absence of the Speaker, cannot be counted as part of the members present before a decision is made. 

The Court held that "…that a presiding Deputy Speaker is entitled to be counted for the purposes of forming quorum under Article 104(1)". The Court believed that the issue required a determination of the meaning of a quorum of Parliament. The Court distinguished the quorum requirement under Articles 102 and 104(1). Article 102 sets a general quorum which is "lower quorum threshold" or "non-voting quorum". This requires one-third of the members present to start deliberation. In the current Parliament, that will be 92 Members of Parliament.

The Court stated that Article 104(1) was a "higher quorum threshold", which is a "voting quorum" which requires at least half of all members of Parliament present before a question is put for a vote. The Court stated that: 

"…the quorum contemplated in Article 102 should be properly understood to mean the quorum for all other business of Parliament other than voting (i.e., the "non-voting quorum". As to that non-voting quorum, Article 102 makes it clear that a presiding Deputy Speaker, who is a member of Parliament and present, shall not be counted in determining the number. However, when it comes to determining the "voting quorum' under Article 104(1), no such restriction or limitation is placed on a presiding member or Deputy Speaker." 

Issue Two

Whether or not upon a true and proper interpretation of Articles 102 and 104(1) of the Constitution, a Deputy Speaker or any other member of Parliament presiding over Parliament in the absence of the Speaker, can vote or take part in the making of a decision by Parliament.

The Court noted that by Article 97(1), a Ghanaian Speaker could not be a Member of Parliament; however, the 1st and 2nd Deputy Speakers, because of Article 96, are required to be Members of Parliament. By Article 104(2), the Speaker cannot have an original or casting vote, but there is no such disqualification placed on Deputy Speakers who are Members of Parliament. The only disqualification on a Member of Parliament to vote on matters before the House is under Article 104(5) regarding conflict of interests matters involving a contract with the Government to which the member is party to or firm that member is a partner of. The Court stated that "… to cause a member to forfeit their vote in Parliament merely on account of having to preside over the business of the House in the Speaker's absence would unfairly disenfranchise not only the presiding member but also their constituents".

After doing a comparative study of Ghana’s Constitution and the practice in other commonwealth and Anglo-American jurisdictions (Kenya, UK, Botswana, Canada), the Court concluded that a Deputy Speaker or person presiding does not lose their right to vote when they are presiding over proceedings of Parliament.

The Court further stated that Parliament must use its procedural and operational rules to operationalize the protection of the constitutional right of a member presiding in the absence of a speaker and his or her duty to represent his or her constituents in the vote and decision making of Parliament.

Issue 3

Whether or not the decision taken on 30 November 2021 by the Parliament of Ghana to approve the 2022 Budget was a nullity as 138 members, excluding the person presiding, were not present in Parliament before the decision was made.

The Court concluded that by virtue of its positions in issues 1 and 2, the approval of the Budget on 30 November 2021 was "valid and unimpeachable." Consequently, it struck down as unconstitutional, null, void, and of no legal effect Order 109(3) of the Standing Orders of Parliament. The said order stated that:

"A Deputy Speaker or any other member presiding shall not retain his original vote while presiding."