The 8th Parliament of the Fourth Republic of Ghana has been described by various stakeholders as a hung parliament or a parliament with ‘no majority party, but a Majority Group.’ The current composition of the 275-member house has the governing New Patriotic Party (NPP) having 137 members plus an independent candidate, giving that side a slim majority of 138, whilst the opposition National Democratic Congress (NDC) party has 137 members. This narrow divide between majority and minority in Parliament was hailed by many as a new dawn in parliamentary independence – this is further garnished with the election of a Speaker of Parliament who has been a member of the house on the ticket of the NDC for close to three decades, heralding the first time a Speaker has been elected from a party that is in the minority and does not control the Executive arm.
This situation appears to create a new and challenging context for a Parliament that has, since 1993, been used to wide gaps between the number of members on the minority and majority sides. This current composition of the 8th Parliament is grafted on the historical challenge of Parliament being dependent on the Executive for its resources through budgetary allocations. The independence of Parliament also appears to be weakened in favour of the Executive through the constitutional injunction on the President to appoint majority of minister from Parliament and in the informal, but solidifying convention, of an elected president proposing a choice of a speaker.
This context has changed the conduct of business in the house, from the hitherto “minority will have its say and the Majority its way” to a growing culture of both the minority and majority wanting to have their ‘say’ and ‘way’ at the same time. The election of the Speaker of Parliament on the eve of 7th January 2021 foreshadowed this new way of business.
The issues of numbers and the required constitutional numbers to conduct business in the house is another manifestation of the new order of things. The purported rejection of the budget policy by the minority with its 137 members, and the subsequent purported approval of the same budget by the majority, claiming it had 138 members to conduct business, has now taken centre stage in national discourse. The purpose of the article to analyse the requirements, in terms of number or members, for conducting parliamentary proceedings and taking decisions.
On Friday the 26th of November 2021, Parliament, by a voice vote, rejected the 2022 Budget statement of government. This was after Parliament had rejected the request by the Minister for Finance to engage the House on issues arising out of the debate on the budget. The Rt. Hon. Speaker Bagbin presided.
On Tuesday the 30th of November 2021 Parliament again convened, and by a voice vote, after a motion, nullified what it had done on the 26th of November, 2021 and approved the budget for 2022. The Hon. First Deputy Speaker presided.
On Wednesday the 1st of December, 2021, the minority leader moved a motion to nullify the decision of the 30th of November, 2021. After arguments the chair ruled against the motion. The Hon. First Deputy Speaker again presided.
Finally, on the 16th of December 2021, the Speaker of Parliament while presiding, after being away on medical leave, read out a statement that sought to put to rest the matter on the question of the powers of a Speaker, vis-à-vis that of the Deputy Speaker, and the issue of quorum. Did the statement put the matter to rest? It will suffice to say that that statement raised some interpretation issue including the introduction of “Acting Speaker”.
It is my considered view that the 1992 Constitution does not create any such office both in substance and procedure. An admission of the existence of such an “Acting Speaker” will create further uncertainties for Parliament. Article 101 of the 1992 Constitution states unequivocally as follows:
“The Speaker shall preside in Parliament at all sittings and in his absence a Deputy Speaker shall preside.”
The clear intention of this provision is to restrict the function of a Deputy Speaker to “in his [Speaker] absence…shall preside.”. Thus, the only constitutional function of a Deputy Speaker is to preside in Parliament “at all sittings” in the absence of the Speaker. Thus, a Deputy Speaker presiding is not an “Acting Speaker”. He is not acting but performing the sole constitutional function of deputising-by-presiding, which is totally different from acting or holding the fort. Be that as it may, by the Standing Orders and convention, the Deputy Speaker has been given other roles in Parliament aside from his sole constitutional role and this has come with privileges and benefits. In these other non-constitutional roles, the argument of acting or holding the fort in the unavoidable absence of the Speaker may be admitted.
It is worth noting that the statement of the Rt. Hon Speaker read on the 16th of December 2021 attempts to let sleeping dogs lie, which is laudable and commendable. However, such weighty matters, that have the potential of grinding government business to halt, must resolved with express legislative intervention to avoid any whines of the sleeping dogs we have put to rest today.
One would be forgiven to think that the Parliament of Ghana has a lot of time at its disposal and the matter that is being subjected to vote on different occasions is not of importance. Indeed, it is the national budget, and unless this is passed by the 31st of December, 2021, government machinery and commitments, including payments of Public Servants will have to be halted. Despite the importance of this decision, Parliament has rather managed to change the narrative to a question of quorum and the membership, or otherwise, of the person presiding.
Admittedly, quorum is of importance, to the extent that it is not a question left to Parliament to regulate as part of its procedural regulatory power, but clear provision has been made for it in the 1992 Constitution. Article 93 provides for a Parliament of Ghana “which shall consist of not less than one hundred and forty elected members”
Article 102 provides that “a quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament” while the competing provision is article 104(1) which provides that “Except as otherwise provided in this Constitution, matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of the Parliament present.”
It is interesting to note that the questions of quorum and membership of Parliament have, since independence, been a constitutional question and this has been addressed variously.
Composition of Parliament and the quorum question – in history
The 1957 independence
Constitution of Ghana, which was modelled along with the Westminster system, in Article 20 (2), provided the composition of the National Assembly as follows:
“The National Assembly shall consist of a Speaker and not less than one hundred and four members to be known as Members of Parliament…”
From the above provision, the National Assembly provided for, under the 1957 Constitution, had the Speaker as an integral part of the National Assembly, even though the Speaker was not a member of Parliament or required to be a member of Parliament to be the Speaker.
The general quorum requirement for the transaction of parliamentary business under the 1957 Constitution was 25 members excluding the Speaker. This exclusion of the Speaker from the quorum requirement, under the 1957 Constitution, flows logically from the fact, even though part of the National Assembly, the Speaker is not a member of Parliament and cannot be counted as such for the purposes of determining the quorum of members of parliament for the conduct of parliamentary business.
The quorum required for voting in the National Assembly under the 1957 Constitution was captured in Article 40 as follows:
(1) Save as otherwise provided in this Order, all questions proposed for decision in the Assembly shall be determined by a majority of votes of the members present and voting; and if upon any question before the assembly the votes of the member shall be equally divided the motion shall be lost
(2) (a)The Speaker shall have neither an original nor it casting vote
(b) Any other person including the Deputy Speaker shall when presiding in the Assembly have an original vote but no casting vote.
The above provision makes it clear that the Speaker of Parliament, because he is not a Member of Parliament, has no original or casting vote. The Deputy Speaker, however, who is a Member of Parliament, retains his original vote when presiding. This means that he is eligible to be counted as part of the special quorum required for voting.
Similar provisions are contained in the 1960 First Republican Constitution with some additions and omissions. Article 20 of the 1960 Constitution provides for the Composition of Parliament as
“There shall be a Parliament consisting of the President and the National Assembly. The 1960 Constitution also stated that “The National Assembly shall consist of a Speaker and not less than one hundred and four members to be known as Members of Parliament”. It is evident from the 1960 Constitution also that the Speaker, even though not a member of Parliament was considered to be part of the National Assembly as was the case in the 1957 Constitution.
The 1960 Constitution was however silent on general or special quorum for commencement of business and decision making, and the office of the Deputy Speaker.
The 1969 Second Republican Constitution reintroduces the Deputy Speaker position and also the fact that the Speaker has no original or casting votes. On the matter of quorum, the 1969 Constitution was clear on general and special quorum requirements.
The 1979 Third Republican Constitution provides for the Composition of Parliament in article 75 as follows:
“There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members.”
This provision in the 1979 Constitution indicates a breakaway from the other Constitutions that included the Speaker as part of the composition of Parliament as the provision clearly did not consider the Speaker as part of Parliament.
The 1979 Constitution had elaborate provisions on the general quorum requirement for the commencement of business in parliament in Article 84 as follows:
“Where objection is taken by a member of Parliament present that there are present In Parliament besides the person presiding, less than one-third of all the members of Parliament, and after such interval, as may be prescribed in the rules of procedure of Parliament, the person presiding ascertains that the number of members present is still less than one-third of the number of all the members of Parliament, he shall thereupon adjourn Parliament.”
On the matter of special quorum, Article 86 of the 1979 Constitution stated that:
“Except as otherwise provided in this Constitution, no question for decision in Parliament shall be proposed for determination unless there are present in Parliament not less than one-half of all the members of Parliament, and except as otherwise provided in this Constitution, the question proposed shall be determined by the majority of the votes of the members so present and voting.”
From the wording of the 1979 Constitution, the special quorum requirement for taking a decision on the question required two things – the presence of one-half of all members and the majority votes of those present. This is the clearest provision in our constitutional history on the special quorum requirement for decisions on Parliament.
This provision shows that there is a clear distinction between one-half of all members present and present and voting. This provision means that there is a number required to commence the determination of a question – one-half of all members of Parliament and there is a number required for the question to be carried – majority of one-half of all members of Parliament.
The 1992 Constitution conundrum
Articles 102 and 104 of the 1992 Constitution also provides, with some modification in wording and structure, the requirement for general and special quorum for the conduct of parliamentary business and voting.
In Article 102, general quorum for the commencement of parliamentary business is one-third of all the members of Parliament, apart from the person presiding. Thus, for the purpose of commencing business, the presence of the one presiding, whether substantive or Deputy Speaker, such a person is excluded from being counted. The logic in this provision is that even if the person presiding is the Deputy Speaker, who is a Member of Parliament, he or she is excluded from the count of the one-third. No harm is done to parliamentary work or to the constituents of the Deputy Speaker presiding if the quorum is not met because sitting will be adjourned.
The 104 special quorum requirements for decision making of one-half of all members present, however, may raise two concerns over the exclusion of any Member of Parliament:
First, it will mean that the total number of Members of Parliament will have to be reduced by one and the quorum calculated on the remainder. Under the 8th Parliament, if the Deputy Speaker, who is a Member of Parliament, is excluded, the 275-member Parliament will have to be reduced by one – 274, and then one-half of that (137 members) will form the number of members present and voting. This interpretation will lead to absurdity and will not be supported by our constitutional history, particularly the 1957 situation where the Deputy Speaker, when presiding, mentioned his original vote.
Secondly, if the presiding Speaker, who is a member, is excluded from the count of members present, he will be denied of being counted for the purposes for parliamentary business to be conducted and will also not be able to vote. This will deny the constituents of such a presiding member of representation in Parliament.
Based on our constitutional history and the two concerns raised above; it is not in doubt that a Deputy Speaker, when presiding, does not lose his presence as Member of Parliament for the purposes of a special quorum for the determination of members present. Even though I hold the view that the Deputy Speaker cannot vote when a question is put after the determination of the required quorum present, our constitutional history says otherwise.
It is my considered opinion that the framers of the 1992 Constitution did not intend to deny a Deputy Speaker presiding his right to be counted for the purposes of a special quorum for a decision.
Conclusion
The Member of Parliament elevated to the post of Deputy Speaker is not an ‘Acting Speaker when presiding in Parliament. He may be an acting speaker when he performs other non-constitutional functions in absence of the Speaker not when he is presiding in parliamentary proceedings.
A Deputy Speaker may, in the spirit of transparency and fairness, lose his vote while presiding, but should not under any circumstance lose his count for the purposes of a special quorum for a decision to be made. Determining quorum and voting are two different things.
The office of the Speaker and Deputy Speaker may perform similar functions – constitutional or administrative but are two distinct offices. The qualification requirements to ascend to the office of a Speaker are totally different from that of a Deputy Speaker.
Parliament must as a matter of urgency amend its Standing Orders to delineate expressly the following:
1. The constitutional function of a Deputy Speaker;
2. The Administrative functions of a Deputy Speaker;
3. The special quorum requirement for a decision when a Deputy Speaker is presiding;
4. What it means to “preside” in Parliament
Let no man put asunder.
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The writer, Clement Kojo Akapame, is a senior lecturer at the GIMPA Law School, Partner at TaylorCrabbe Barristers and Solicitors, and a regular guest on Citi TV’s Question of Law program that airs every Thursday at 7pm.
Source: citinewsroom
