Attempted Prophecies: Mischief in law


Chief in law

Series of millennia ago, when Britain was but a land of barbarians, the prostitute male inviting endless solicitations, an easy and free ground inviting foreign conquests—series and series of conquests in fact…Those centuries when Caesar treated Britain like bonus lands for conquests in his incessant attempts at conquering Gaul… Leaving Rome, he would ‘kraa’ the people around him, saying, “I am headed for Gaul to defeat the land. I might just pass by Britain when I have free time left—who knows.” Those centuries when Caesar’s distracted destructive poking and prodding of England left the land further atop the list of territories for conquistadors to watch… Emperor Claudius also of Rome, inspired by Caesar, was to in 43 AD invade England. And for almost 400 years, the land remained under Roman rule.

Yet as time went on, slowly but surely the Roman empire, itself, fell. So then, a retreat from the land of the Brits ensued. Britain was at last free. You would think.

Before the Romans could get to packing and leaving the Brits free, the Anglo Saxons were knocking forcefully on England’s door. So back to square one, the Brits found themselves once again under colonial rule. From the 5th all the way to the 11th century, the Anglo Saxons ruled England. For six whole centuries, they ruled the British people. Their reign could have continued, possibly endlessly, had it not been for William.

In the year 1066, Normans proceeding from northern France, in an area called Normandy, led by their king, William, Duke of Normandy, set sail for Britain. With conquering and ruling on their minds, they set sail for this very much prodded land of the Britons. Their quest of conquest was realised, and William of Normandy became William the Conqueror. He ruled with an iron fist, and set about morphing England, then a series of differing tribes who cohabitated, into a singular unit—a nation.

Let There Be Law

So then, the law. How does one rule if there are no laws to keep a people in check? How does one make piecemeals into a whole if there are no singular laws, a singular yardstick by which to hold all the people to? Also, what at all are laws? How do they emerge? Where does a person go to find them so as to utilise them in this bid at ruling a people? William the Conqueror needed to rule over the people of England with the law. But where does William go in search of it?

Trouble preceded the law. Wherever two or more people meet, you have in their midst, squabbles. So, the British people, going about their act of living, from time to time had their toes stepped on by one another. The King then became to them, that parent to whom they went complaining—to whom they went in search of relief. The King, he appointed aids, wise men who would serve as additional ears for these complaints, for how much blabber can one person take? As these complaints kept pouring in, a body of law was slowly forming. A mechanical enacting of cause and effect ensued with each case heard. They became standardised, formalised, and laid down—with differing solutions given to differing problems. And when the matter at hand were the same or similar, same or similar solutions were proffered for them. And just like that, this crucial thing that we call judicial precedent emerged.

As these complaints kept pouring in, judicial precedents kept piling up, a system of courts and hierarchies thereof began forming. The law did not fall down from heaven unto the laps of the King and heads of the people of Britain. Rather, the law was formed from the very ground up—from experience, from the people—day in, day out. So, it is apt that this legal system is dubbed the ‘common law’ system. A system which, with colonisation, interestingly by these same English people (former colonisees themselves) spread to a vast majority of the world… our own country inclusive.

This cramped up reading into the history of our common law system reveals this fact: the sheer power and importance of the courts. The courts predate the law itself. In the common law family, a system of which we form a part, the law emanated from the courts. The courts, they orchestrated, decided upon what the law ought to be. We owe the law what it is now to the courts. The courts, they are a powerful thing—powerful thing, I tell you.

If we are to contrast the present with history, what we discover is that the courts was in the past, the executive, the legislature, and judiciary all combined. This demonstration of the courts’ power is a demonstration first of their sheer responsibility. But of course, as the centuries went by, realising the indispensable abuse such enormous power ultimately wields in the bearer, the concept of separation of powers emerged.  Yet, this power and privilege of having the law resting in their bosoms remains intact. In interpreting the law, the courts in the end become the ultimate determiner of what the law is. Such power! This is a power to be guarded, guided, and scrutinised jealously.

The Facts at Hand

Let us for a moment strip ourselves off the knowledge of the matter at hand. The very contentious political background that led one Justice Abdulai to bring the matter of the voting rights of the Deputy Speaker before the Supreme Court, praying that this superior court exercises its power and original jurisdiction of Constitutional interpretation as donned it by Articles 2 and 130 of the 1992 Constitution.

We know that there has been some sort of musical chairs wahala ensuing in Parliament, concerning specifically, the passing of a new law—the e-levy law. This is a very contentious subject matter. Because more taxes for well-fed people are controversial; how much more same, for a hungry group of people? So, blinded by this infamous e-levy bill, how are we to see the law clearly? Especially when the law itself, in this case, is not in its most literal of forms—arguably.

But for these few minutes today, and next week in fact, let us strip ourselves off this infamous background, and attempt deciphering for ourselves, the law as it really is (or as it really intends to be, at least). Today, you and I are going to comb through the law—with you being the judge. You might just find yourself agreeing with the Supreme Court. You might on the other hand find yourself disagreeing with its ruling. But wherever you stand on these two polar ends, you might just leave with the respect of the Court still preserved—or new respect for it attained.

You Be The Jury

Article 102 of the Constitution reads, “A quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament.”

Article 104(1) says, “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 Parliament present.”

These two provisions undoubtedly make reference to some forms of quorum. And it would be rather repetitive and contradictory if these two were talking about the exact same thing, wouldn’t it? It is clear that the latter (Article 104(1)) is making reference to a voting quorum. It stipulates the quorum required to be attained before a voting on a matter can be said to have been undertaken and a decision passed in Parliament. Article 102, on the other hand, talks about the quorum required so that the ordinary business of Parliament can be said to have been carried out. These two provisions quite clearly, we iterate, cannot be concerning the same thing. But it is the personnel stated in these two differing articles that causes some contentions. Because Article 104(2) comes in right after (1) declaring, “The Speaker shall have neither an original nor casting vote.”

Article 102 uses the phrase ‘the person presiding’ when talking about the quorum required for business of Parliament, while Article 104(2) uses the word, the proper noun, ‘the Speaker’ when touching on the exclusion to voting rights as established in Article 104(1).

You are right in asking if ‘the Speaker’ in Article 104(2) is solely in reference to the Speaker properly-so-called, or extends to include ‘any person presiding’, in which case the Deputy Speaker of Parliament would fall under this restrictive Article 104(2).

You are right in pointing out the fact that if Article 104(2) wanted the Speaker included, it would have used such expression as used under Article 102—the expression ‘the person presiding’.

You are right in thinking, if the Constitution intended to preserve the voting right of the Deputy when acting as Speaker, it would have expressly stated so, and not left us with these wordings that give wiggle room for differing interpretations.

But then again, you are right in pointing to Order 108(3) of Parliament’s Standing Orders which expressly state, “A Deputy Speaker or any other member presiding shall not retain his original vote while presiding” as being all the decisive pronouncement we could ever ask for.

Orders 108(1) and (2) of the Standing Orders are very much a strict adherence to Articles 104(1) and (2) of the Constitution. But we have in Order 108(3) what might be deemed a variance. But that is with good reason. Because, as indicated, the Constitution clearly did not expressly provide for the voting rights of the Deputy Speaker during his/her brief ascension to the Speaker’s seat in the latter’s absence. The keyword here is ‘expressly.’ At least, this was an omission the enactors of the Standing Orders saw in the Constitution and sought to remedy, so they expressly provided, “A Deputy Speaker or any other member presiding shall not retain his original vote while presiding.” Let’s fully come back to the Standing Orders later (maybe next week even). For now, let’s attempt dissecting the Supreme Court’s ruling, as we wait for forever for the law report.

On Interpretation

Interpretation of the law lies with the courts. This is one of the many ‘babas’ Ghanaian students have had to chew in their lifetime. It goes: the legislature enacts the law; the judiciary interprets it; and the executive enforces the law. This is a very crucial baba—an expatiation into the doctrine of separation of powers; a legal, political, and sociological doctrine that sees to the democratic running of society—to ensure that all power is not centralised in one person or groups of persons.

And in interpreting the law, the judiciary, having dedicated itself in study of the law—so much so that in nations of countless citizens of numerous, differing professions, this group dub themselves the ‘learned,’ as though the rest are all unlearned—uses certain tools to aid its interpretations. The judiciary in interpreting the law does not go in consultation of the lawmaker (i.e. the legislative arm. i.e., Parliament) to derive meaning. Because that would be quite redundant, wouldn’t it? For this whole separation of powers thing, it would be quite redundant for the judiciary in interpreting the law to go back to the legislature to ask for meaning. That would mean giving the legislative arm too much power. It may twist and turn the law as it pleases if it is given the pleasure of not only enacting the law, but interpreting it too. And a law twisted and turned by the legislature with that much ease would mean a ‘twisted-and-turned’ enforcement by the executive. Because the executive, they enforce the law—as enacted and interpreted.

In interpreting the law, the courts look for the literal meaning of enacted provisions, if there are any. If a thing is expressly stated, the Courts are bound by the words as stated—all things being equal. Things get more dicey, however, when the law is stated but is ambiguously so, or when the law is unambiguous yet leads to absurd conclusions when interpreted just the way it is, or when the law seems not stated at all, etc. Let’s remember, the courts are not sheep that they may go obediently with the law even if it leads to absurd conclusions.

That is why in interpreting the law the courts may do so purposively. In interpreting the law, the Supreme Court does not only look to the letter of the law, but its spirit too. Because the law—the Constitution to boot—is an organic instrument capable of growth. Its essence exceeds its physical form. The ultimate end of any good law is to ensure free, fair, just results. But one person’s ‘justice’ is another’s ‘injustice’, no? Quite easily, we the people of this earth can find ourselves on differing ends of almost every spectrum.

A Seat and a Vote: Purposively or Purposelessly?  

That is why it becomes particularly chaotic when we get on our hands provisions like these, that speak in half tongues, leaving room for us all to impute our own meanings. For instance, seeking to reconcile articles 102 and 104, a person may cite Article 97(1)(b) of the Constitution, regarding the terms of office of MPs, which states “A member of Parliament shall vacate his seat in Parliament if he is elected as Speaker of Parliament” and argue that in stripping the Deputy Speaker off his/her vote when he/she temporarily ascends to the thrown of the Speaker would be like arguing that in so doing he/she has been ‘elected’ as Speaker of Parliament hence must lose his/her seat—their duty as MP of a constituency. One can further state that had the lawmaker intended stripping the Deputy Speaker of his/her vote (by implication, their seat), it would have listed such instances when they temporarily take the seats of Speaker, under Article 97 as one of such instances where they shall be made to vacate their seats (in this case, their vote).

But a lay person can counter by saying that such an assertion may just be too much of a stretch, pointing to the heading of that particular provision which reads ‘Tenure of Office of Members’ as reason why. They may argue that a Deputy Speaker’s temporary ascension to Speakership does not particularly qualify as matter to be treated under ‘tenure of office of members’. Whereupon the former may counter this countering by saying that in interpreting the law the Courts do not look to mere headings of provisions as guides to deriving meaning, and that it is in fact the case that should the temporary ascension to Speakership by the Deputy have been intended as stripping them off their vote, this would have been provided for under Article 97(1)(b) as cause for them losing their seats as MPs—temporarily.

One may win or lose this ‘Article 97(1)(b)’ round.

Or one may refer to dissecting the matter of purpose even further. Does a Deputy Speaker, acting as Speaker, get to vote and then rule on the vote just had? How can one’s decision be trusted and regarded as having adhered to the law’s end of fairness and justness, if they who just voted on a subject matter, get to decide on the outcome of said vote? On the other polar end, an opponent may also come in with this purposive argument: does a Deputy Speaker (being a representative of an entire constituency of people) lose the opportunity of speaking for his/her constituency merely because he/she has, for a few minutes or hours, ascended to acting in another’s stead?

You see, in arguing purposively, none of these two opposing teams have argued stupidly.

Let’s Try Literal

If in arguing purposively we have each brought to the table very cogent reasons, let’s try our hands again at ‘literal’ interpretation. Those who are for the Deputy Speaker losing their votes will quickly refer us to Order 108(3) which clearly states and strips the Deputy off his voting right when acting in the Speaker’s stead. Damning, damning!—this provision. This subordinate legislation, as enacted by Parliament per the power vested in it by Article 110 of the Constitution which reads, “Subject to the provisions of this Constitution, Parliament, may, by standing orders, regulate its own procedure” has done what the Constitution itself failed to do. It has filled the gap that existed in the sovereign law of the land.

Yet, the other person will come in with the phrases ‘the person presiding’ in Article 102 and ‘the Speaker’ in Article 104(2) as clear indication that by using general words in the former, but a proper noun in the latter, the latter sought to restrict its restriction only to ‘The Speaker’ properly so-called. Hence, they would argue strongly that the Constitution is indeed clear on the point: the Deputy Speaker retains their vote. Worse, they would go on to cite Article 1(2) which says, “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void” to support their case. They may also refer to this same Article 110 (“Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure”) and argue that a combined reading of Article 102 and 104(2) show clearly that the Constitution did in fact make provision for the matter of the Deputy’s voting right when acting as Speaker, hence renders Order 108(3) ultra vires, hence void—because it wasn’t so enacted, subject to the provisions of the Constitution.

Even in arguing quite ‘literally’ (arguably), you can also say that none of these two have argued stupidly.

At this point we all seem to be right, so who’s wrong?

Your Honour, have you made up your mind yet? Are you ready to make a pronouncement? Or should we adjourn the case to next week?


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