MPs can only vacate their seats if they move from one party to another—Supreme Court

The five justices ruling in favour of Afenyo-Markin included the Chief Justice, Justice Gertrude Sackey Torkornoo, and Justices Mariama Owusu, Samuel Kwame Adibu-Aseidu, Ernest Yao Gaewu, and Yaw Darko Asare. Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu dissented.

Justice Yaw Darko Asare, who authored the explanation of the majority decision, argued that a Member of Parliament can only be considered to have vacated their seat if they leave their political party to join another within the same parliamentary term.

The majority justices observed that “the only plausible conclusion which must necessarily flow from a holistic and contextual reading of Article 97(1)(g) and (h) is that an MP’s seat shall be vacated upon departure from the cohort of his elected party in Parliament to join another party in Parliament while seeking to remain in that Parliament as a member of the new party.”

This interpretation indicates that three MPs—Agona West MP Cynthia Mamle Morrison (NPP), Suhum MP Kwadjo Asante (NPP), and Peter Kwakye-Ackah of Amenfi Central (NDC)—have not breached Article 97(1)(g) by their decision to contest as independent parliamentary candidates in their respective constituencies.

Regarding Fomena MP Andrew Asiamah Amoako, who rejoined the NPP after being elected as an independent, the court explained, “similarly, an independent MP who joins the cohort of a party in Parliament, while they remain Members of the Parliament for which they were elected as Independent Member, will have to vacate the seat tagged as that of an Independent Member.”

Justice Yaw Darko Asare further elaborated that “Article 97(1)(g) and (h) must be understood within their contextual framework, with no implicit or explicit indication that they pertain to future electoral aspirations or intentions that would materialise in subsequent terms, such as an MP contesting under a different ticket in the next election cycle.”

Afenyo-Markin’s suit requested the Supreme Court to declare that, based on a true and proper interpretation of Articles 97(1)(g) and (h) of the 1992 Constitution—considering Articles 2(1), 12(1) and (2), 17(1), 21(1)(b) and (e), 35(1) and (5), 55, 97(1)(g), 130(a), 296(a) and (b) of the 1992 Constitution, and Rule 45 of the Supreme Court Rules, 1996 (C.I.16)—the four embattled MPs had not vacated their seats. He also sought an injunction preventing the Speaker of Parliament from enforcing the provisions of Articles 97(1)(g) and (h) of the 1992 Constitution while his suit was pending.