Vacant seats controversy: Possible for two rams to sip ‘brukutu’ from the constituency calabash?

I am not a lawyer. I have never applied to the law school. I do not even know where to purchase forms for the growing number of institutions offering law courses. My closest association with the law was my radio journalism days at JoyFM, where I served as a court reporter, chasing high-profile and not-so-high-profile cases in almost all the courts.

In court one day, when a case I had been assigned to did not happen, I took a detour to the cocoa affairs court where a Trotro driver had been brought to the court by an ex-lover over a romance scam.

The lady alleged that she used part of her earnings from her business to support the driver, including cooking for him. Then the usual behind-closed-door meetings. And those meetings were not only midnight but in between driving breaks.

She later discovered the man was also dating two other women, one of them a friend. And he had impregnated the three of them. It was a bizarre love triangle.  She, therefore, wanted the court to commit the man to compensate, as well as accept responsibility for her pregnancy. It was a case that drew laughter from the public.

I also covered the first-ever presidential election petition, where the phrase “you and I were not there” was coined. My reporting role brought me face-to-face with legal terminologies that, hitherto, had been so alien to me.

But then, I cultivated friends in the legal space that I could run to any time some of the terms appeared to have overwhelmed me – and they were generous with their time and education. Oh, and I also have a training certificate from the courts. So, folks, that is how far my legal ‘education’ stretches.

However, like many others – including lawyers, I am also allowed to look at the law from a non-legal perspective. And that brings me to the ongoing saga of the declared vacant seat saga.

Before I come to that, let’s go back a bit to the genesis of this whole controversy. In the run-up to the 2020 Presidential and Parliamentary Elections, the now Member of Parliament for Fomena – a constituency in the Ashanti Region, the stronghold of the ruling New Patriotic Party (NPP), Andrew Amoako Asiamah, was expelled from the party and parliament, for filing to go independent.

On October 13, 2020, the party wrote to Prof. Mike Ocquaye, then Speaker of Parliament,  to trigger provisions of Article 97 and, thus, declare the seat vacant.

“With all intents and purposes, he is no longer a member of the party. He has pronounced himself publicly as an independent and has filed his papers to compete against the party as his official candidate as an independent on 7th December, 2020. Having forfeited the membership of the party on whose ticket he was elected to Parliament, the operative language of the constitution is that he shall – which is mandatory – vacate his seat in Parliament,” the good old professor said.

It is instructive to note that he has since revised his position on the matter. Speaking to JoyFm’s Elton John Brobbey, he said: “In fact, it was some parts of the executive which initially were protesting, I told them they have no locus in that matter. If they wanted to do what they purported to do, they should let their party do it. So the NPP, as a party, wrote to the Speaker, stating why they were withdrawing their support because according to the constitution, this person had betrayed his allegiance to the party”.

In the run-up to the 2020 campaign, President Nana Addo Dankwa Akufo-Addo, who was then in the Ashanti Region, told the chiefs and people he could not work with independent MPs. “Anybody who is contesting as an independent candidate cannot be a die-hard member of the NPP. If you are NPP you can’t contest independently.”

The party then had an overwhelming majority so expelling one was not an issue. Senior party figures, including Ashanti Regional Chairman Antwi Boasiako othwerise known as Chairman Wontumi, granted a series of media interviews and denounced those who were opposed to the move. Professor Kwaku Azar, a Ghanaian based in the US, posted the following on his Facebook page on October 15, 2020.

Looking at the law, one of two things must happen for carpet-crossing:

1. The person must leave the party on whose ticket he became an MP to join another party; or
2. The person, who is in Parliament on the ticket of a party, wants to remain in Parliament as an independent member.

The first wing has clearly not happened in the Fomena case as the MP has not left the party, at least not voluntarily. The distinction is important because involuntary departures through suspension, dismissal, etc., by the party do not appear to count to the law.

The emphasis on voluntary departure is important to protect the MP from the party. Otherwise, the party can make bye-laws that severely curtail the MP from ever acting independently; thereby severely limiting his ability to place his constituents and the nation’s interest above the party. The country too has an interest in not allowing party bosses and rules to trigger needless by-elections.

His position has not also changed in the latest controversy, insisting that Ocquaye’s position ought not to have been carried out by the current speaker.

The Supreme Court on Monday, in a 5:2 vote, overturned the decision. I took to social media to post the following:

“So per the ruling, the MPs who are contesting as independent candidates are still members of the parties but can also campaign against them in the constituencies they are seeking to represent in Parliament, where the parties have candidates? One of the expelled MPs said he was removed from the NPP MPs’ WhatsApp platform but was later restored.

All of them insist they are not rescinding the decision to run as independent candidates. Which means they will be competing against the interest of their respective party’s parliamentary interest.”

Do you get it?