Why 2 out of 7 Supreme Court justices ruled Afenyo-Markin’s suit should have gone to High Court
The Supreme Court of Ghana has ruled that a Member of Parliament (MP) does not vacate their seat simply by changing political identity unless they seek to retain their position under this new identity within the same term of Parliament. This judgment, authored by Justice Yaw Darko Asare, clarified that Article 97(1)(g) and (h) of the Constitution applies only within a current parliamentary term and does not extend to MPs who contest future elections under a different party or identity.
According to the court, an MP would be deemed to have vacated their seat only if they depart from their elected party to join another party while intending to remain in Parliament under that new affiliation. Similarly, an independent MP would have to vacate their seat if they join a party in Parliament, as they would no longer qualify under the “Independent” status for which they were elected. This interpretation is limited to the MP’s current term and does not affect future candidacies under different affiliations.
The court’s majority opinion, supported by Chief Justice Gertrude Sackey Torkornoo and Justices Mariama Owusu, Samuel Kwame Adibu-Aseidu, Ernest Yao Gaewu, and Yaw Darko Asare, argued that the constitutional articles in question should be read within their immediate context. They do not imply that a change of party affiliation for future elections would trigger a vacancy in the current Parliament.
However, in dissenting opinions, Justices Avril Lovelace Johnson and Issifu Omoro Tanko Amadu argued that the Supreme Court lacked jurisdiction in this matter, suggesting instead that the High Court was the appropriate forum under Article 99 of the Constitution. Justice Tanko further stated that the case should have originated in the High Court, with any constitutional questions then referred to the Supreme Court as necessary. He criticized the Supreme Court’s involvement as an overreach, expressing hope that this decision would eventually be revisited to respect the High Court’s constitutional role in matters related to parliamentary seat vacancies.
