- now to the court of public opinion…
The party starts in fifteen minutes. So naturally, this friend of mine goes for mischief. Being himself a non-drinker, and sensing his colleagues’ anticipation for the party—chiefly the alcohol, he felt this early afternoon was the right time to open the Bible. He quotes Ephesians 5:18. “And do not get drunk with wine, for that is dissipation, but be filled with the Spirit…” “Be filled!” He repeats, placing extreme emphasis on the ‘filled’. His colleagues retort with the first miracle: How about the Messiah Himself of the New Testament, choosing his first miracle to be the chemical conversion of water into wine? This friend of mine, he has his own retort ready. “Jesus’ wine wasn’t alcoholic!” And just like that a whole other debate was brewed—one that could not be found solely in the Bible.
So, each debater takes to their phones, each Googling and providing evidence. One group provides search results indicating that Biblical wines were in fact alcoholic. The other group (the group of one, comprising just this friend of mine), produces evidence that Biblical wines contained no alcohol. Stalemate. So, my friend attempts a checkmate with this: “See, these wines were made of grapes. And aren’t wines produced from a fermentation process—in this particular case, a fermentation of grape juice?. The company agrees with this premise. And tell me, isn’t fermentation a process that takes days to occur, eh?” Once again, the interlocutors agree. So now answer me this, how can a grape juice instantaneously and miraculously squeezed by Jesus become fermented the same day?” The company disagrees with this rhetorical conclusion.
“But do not forget this one thing, dear friends: With the Lord a day is like a thousand years, and a thousand years are like a day.” I chip in with 2 Peter 3:8. My friend looks at me, disappointed, as though I had just broken the ‘teetotaler code’.
You would think 2 Peter 3:8 would have done my friend in. No. Insisting still to choose mischief this early afternoon—playful mischief—he bizarrely comes out with some Biblical calculations that sum up to “Four percent!” Four percent, he insists, is the Biblically acceptable alcoholic content a child of God is allowed.
Miraculously, another divergent happens in the day’s debate. Marriage. How many wives is a man allowed to have? Enjoying these intentionally pointless debates, I quickly chip in, “…and woman.” So yes, the topic went: how many wives and husbands can a man and woman respectively have. This friend of mine, a strict adherer of the Word (hallelujah!), insisting that all God’s people worldwide be stripped off alcohol, responding to quotations from the New Testament on the matter, retorts: “The Bible is not our culture. We can’t use it as yardstick for our Ghanaian marriages!” A shocking turn of events. Maybe, not so shocking—because, you see, our gentleman here hones this secret desire: “When I become a rich man, I would really like to marry more than one woman…” So yes, one down for the Bible.
Of course, while this friend of mine named after Goliath’s opponent is making all these arguments, he is giggling here and there—not taking himself seriously.
But this is telling, is it not? How interesting we, humans, are. How we choose interpretations of texts—in this case, the Bible—to suit whatever desires we may have at any particular point in time. My friend, laughing heartily at his own acrobatic proclamations, nods in agreement.
How to Treat Your Employees
It is the same with the law. Last week we saw how easily and accurately the same texts of the law can be open to varied interpretations—sometimes complete polar-ended interpretations. Polar end interpretations that have the capacity of eliciting endless debates—quite literally—should they be left open for these debates. But luckily, we have the courts. Our time as citizens being finite… We, not being blessed with the free time Socrates and co. had on their hands—to engage in endless philosophical debates… We, the people, have, with the 1992 Constitution, tasked the courts with this duty of interpretation. And with Articles 2(1) and 130, we have chosen the Supreme Court specifically to be in charge of interpreting the Constitution when the issue of its ambiguity is brought, and ensuring adherence of subordinates laws, institutions, acts, omissions, etc. to it. We the people, being no-nonsense bosses, requiring always, excellence, have every right to keep a supervisory eye over the courts in their performance of this duty. Yet, we must always try to make our criticisms of their works informed. More on that later…
Legal Acrobatics
It has come up a lot in the courts of public opinion, in an attempt to make sense of the ruling in Justice Abdulai v. A-G, these words: “This is how they do it everywhere in the world!” Let me quickly add that this sentence has been used by both opposing teams—those for and against the Supreme Court’s ruling. Absoluteness cannot concurrently occur on two opposing fronts, can it? It’s safe to say then that this attempt by us, the general public, have been largely uninformed.
I quote one commentor whose insight I found altogether interesting. “This case was clear as a daylight so why are still cannot understand is the same in Ghana, same in Australia, Canada, America, Britain, Kenya, South Africa. Even a student marking class register will mark students in the class who are prent [present] and mark himself too…” [The typos contained in this quote are not mine]. This impassioned citizen wrote online in all-caps in a comment that has now, to my dismay, been deleted. But that will not stop us from taking a trip through the rest of the world, as suggested by our colleague-citizen. Interestingly, all the examples he cited have bicameral parliaments. Yet, that spoils nothing—it gives us more parliamentary examples to work with in fact.. Let’s quickly go to these countries now, because, as he bizarrely noted in this comment intended clearly for the NDC, “IGNOOOORACE IS DEASE.” Ignorance is a disease, true. So naturally today, we attempt a cure.
Pro Supreme Court Ruling Team v. Pro Justice Abdulai Team
USA
The federal nation, USA, has a bicameral parliament comprising a Congress broken into two divisions: the Senate and the House of Representatives. Of course, this decision to opt for a two-parliament system was born from the nation’s own experience, the necessities it was challenged with, its history, etc. Having liberated themselves from Great Britain’s rule, the new world, USA, sought to create a government far from the monarchical state of Britain. Hence a democratic, Presidential system was agreed upon. A system comprising a Legislature, Executive, and Judiciary—all playing separate yet complementary roles.
This new nation, attempting to break free from the monarchical system, interestingly began its democracy with a Legislative body that had some form of monarchical traits. For instance, the early US Parliament consisted of unelected, elite members who made decisions for the ordinary people of the land. The Great Compromise of 1787 happened, and this situation was rectified—it was agreed upon, this bicameral system of parliament. A system comprising of a Senate and House of Representatives, with the latter being elected representatives of the people. Yet this system was still flawed as the Senate was still not elected by the public. Rectification came in the form of the Seventeenth Amendment of 1913, a law which provided that the Senate also be an elected house—with every state presenting two Senators each.
And in these two separate legislative houses, there are leaders steering operations. The Senate is headed by—interestingly—the Vice President of the country, who when serving this role is styled the ‘President of the Senate’. In his absence the ‘President pro tempore’ (meaning ‘president for a time’)—being the oldest serving member of the majority side in Parliament—acts as leader of the house.
Now to the actual matter at hand: the issue of voting rights… In the US Senate (comprising 100 Senators), when there is a tie, the President of the Senate (i.e., the nation’s Vice President) has the right to give the casting vote—a vote to break the tie. Now, this is in sharp contrast to Ghana’s very own Articles 104(2) and (3). Article 104(2) reads: “The Speaker shall have neither an original nor casting vote.” And 104(3) says: “Where the votes on any motion are equal it shall be taken to be lost.” In America, it is the complete opposite. Can you imagine that? For Ghana’s Vice Presidents to be, first of all, made Speakers of Parliament; and then, worse, be given the right to cast decisive votes to break all parliamentary ties…The massacre!
The President Pro Tempore, on the other hand, is, unlike the Vice President, an elected member of the Senate, and retains his or her voting rights even when sitting as leader of the Senate. They, however, unlike the Vice President (President of the Senate) do not have the right to exercise a casting vote—vote to break a tie. In summary, they have an original vote when acting as president, but not a casting one. This, in effect, is the effect Ghana’s Supreme Court’s ruling will create in the country.
The US House of Representatives, on the other hand, consisting of no more than 435 members, is headed by a Speaker. And the Speaker, appointed by the Majority of the House, remains a Representative of a district, and has a right to debate and vote on all matters. Their role is shamelessly partisan. This is nothing like Ghana and Britain where the Speaker’s role is strictly impartial—more so in Britain than in Ghana, by the way. In fact, when the Speaker’s party is not in power, she/he serves as the most powerful member of their party—building up political hurdles for the incumbent opposition. The Speaker’s deputies are the Majority Leaders of the House, who of course, like the Speaker retain their votes. This is a political system far from the intentions of, again, nations like ours and Britain’s. The American Senate is designed to be very partisan, hence law and practices regarding the voting rights of its leaders (the Speaker and Deputies) are enacted to serve this end.
Ghana’s court of public opinion—those who rule in favour of the Deputy Speaker retaining their votes are best advised not to look unto this US House of Representative example as persuasive backings for their decisions, because a ruthlessly partisan legislative arm isn’t perhaps the best of democratic recipes—especially for a developing nation such as ours.
Let us quickly note that in the USA, these rules guiding the legislative arm are largely not codified in the Constitution. For instance, the Constitution does not stipulate the political role of the Speaker of the House of Representatives (e.g., indicating whether or not they retain their political offices). Rather, the narrative of the ‘political Speaker’ is one that has evolved and solidified from the nation’s own traditions—parliamentary traditions. I would very much like to be alive to witness that day when the matter of the political role of the US Speaker would be brought before the Judiciary, praying for a ruling of unconstitutionality. It’s mighty hard to see that happening. The matter of the selection of the President pro tempore is another thing that is not expressly provided for in the American Constitution. Rather, parliamentary traditions has evolved over the years and the decision arrived that the longest serving Majority member be chosen as head.
In the United States Constitution, the Legislature is the first arm that is provided for, leading many to argue that that makes it the most important organ. Yet, with the country being a Presidential system, we can safely dismiss this as mere conjecture. However, it cannot be denied, the enormous power given the US legislature—to be in charge of managing its own affairs; to come up with its own rules when not expressly provided for in the Constitution. And as noted, most of these matters are not provided for in the Constitution anyway.
Britain
Enough of the United States, now to Britain—the nation with a parliamentary system of government; a system of which the US, for one, borrowed much of its structure from. Britain also has a bicameral parliament consisting of an upper house (House of Lords), and a lower house (House of Commons). The House of Commons is headed by the Speaker, whose role is, as earlier indicated, unlike the American system—a strictly non-partisan one. And this strict adherence to impartiality in the British legislative process is very much expected. Because, you see, the Parliamentary system that is Britain has no written Constitution—no codified, sovereign law as seen in countries like Ghana and USA for example. This makes the nation’s Parliaments the supreme law of the land. So then, in so exercising this sovereignty, they must naturally do so as impartially as possible.
So naturally, the Speaker, being the leader of the house, is expected to be the very fountain of this impartiality. And they are required to resign from their political parties when they take this office. The Speaker has no original vote, but may exercise a casting vote—vote to break a tie. And even with that, he/she is guided by what is termed the ‘Speaker’s Denison rule’, where as a matter of precedent, it is required that the Speaker in giving this casting vote of theirs, must necessarily either vote in favour of the continuance of the debate, or in favour of preserving the status quo—leaving situations as they are.
But interestingly, the Speaker, being themselves appointed from the ranks of Members of Parliament, may still stand for their constituencies. They may still run to be elected as Members of Parliament of their constituencies in every election. They run unaffiliated with any political party—with their typical campaign signs indicating something to the tune of ‘the Speaker seeks reelection’. Famously, the immediate-past Speaker of the House of Commons, John Bercow, while serving as Speaker of the house from 2009 to 2019, remained still the Member of Parliament of Buckingham for the entirety of that period. Yes, that means that for the entirety of those ten years, the good people of Buckingham had no original vote in Parliament, and they were not represented in parliamentary debates… But oh, did I hear you mentioning them being indirectly entitled to a ‘casting vote’ through the Speaker? Well, scarcely. Just look at the claw-back that is the ‘Speaker Denison rule’ we just discussed…
Yet, each year, the people voted him their representative. At this point, the supposed prophet in me sees you, who is in favour of Ghana’s Deputy Speakers losing their vote when acting as Speaker, smiling like a baby. Because you are thinking: if elsewhere a whole Speaker can for ten good years remain a non-voting MP, without the representatives of their constituency feeling disenfranchised, then surely for that brief period in which Ghana’s Deputy ascends to the seat of Speaker, and loses a voting right, the people of his/her constituency would not be facing a plight so abominable that it is unheard of in the world. The human mind is bound to wander—so you must be wondering this.
The Deputies to the Speaker (being three in all), are political representatives. Yet when temporarily ascending to the role of Speaker, they take on, and lose the same rights as the Speaker. They inherit the Speaker’s impartiality. They are unallowed their original votes just like the Speaker; and again, just like the Speaker, they are given a casting vote—which they exercise following this same Denison rule. I am sure you are showing your friend or colleague this portion of the article, once again, you who is on the ‘pro Justice Abdulai team.’
When it comes to Britain’s upper chamber (House of Lords), the Lord Speaker is, here also, expected to be an impartial leader. They are to resign from their political parties. They lose their original votes. And unlike the Speaker of the House of Commons, they have no casting votes. That means, not only is the Lord Speaker barred from voting on all matters, he/she is also barred from voting to break a tie. In the Lord Speakers absence, there a Deputies who ascend to the hot seat. However, a Deputy Speaker acting as Lord Speaker retains their rights to partake in parliamentary debates, and their original votes. Where are our ‘pro Supreme Court ruling team’? This portion is clearly for you.
Canada
Let’s quickly run through Canada, as time is far spent. This is yet another federal, bicameral legislative system. The nation’s Parliament consists of a Senate and a House of Commons. The Speaker of the House of Commons is expected to be impartial, although they are not required to resign from their political parties as we see in Britain for instance. They have no original votes, but a casting one. Like Britain’s Speaker of the House of Commons, Canada’s Speaker in so voting to break a tie must follow the Speaker Denison’s rule. The Deputy Speaker, when they take on the role of the Speaker, has the same rights as the Speaker…
So then, does the Deputy Speaker of Canada’s House of Commons, when acting as Speaker get to vote to break a tie? Do they then also retain their original votes—being still Members of Parliament? Does the Canadian Deputy Speaker then get the best of both worlds—both an original vote (from the seat of an MP) and casting vote (from the Speaker’s seat), a fate altogether unheard of worldwide? I am not about to provide an answer—I am asking you. Because the nation’s parliamentary Standing Orders seem mute on the matter. This would not be merely a loophole if this conundrum is not really provided for in the Canadian Constitution, Standing Orders, or in tradition—it would be a pothole. Come to think of it, no, a whole borehole of legal wahala. But that’s beside the point.
Canada’s upper chamber, the Senate, is modelled after Britain’s House of Lords. Yet, unlike the British system, the Canadian Speaker has the right to participate in house debates, and they retain their original voting rights, since they remain a representative of their Provinces even as Speakers—this is in sharp contrast to the nation’s own lower chamber (the House of Commons). Again, unlike the nation’s own lower Chamber, the Speaker of the Senate has no right to vote to break a tie.
A Speaker pro tempore is appointed from the members to act in the Speakers stead when absent. Naturally, they retain their original votes, and are unable to give a casting vote. Here too, our ‘pro Supreme Court ruling team’ I see you smiling.
A Useless Journey
These case studies are, of course, not intended for the court of law, but that of public opinion. It was necessary, in this court of public opinion of ours, that if we are going to go about citing other nations worldwide as examples in an attempt to resolve our local conundrum, that we did so empirically—i.e., we had to actually go around the world in search of insights from other parliamentary systems. And this short journey we were sent upon by this commentor of ours proves one thing: nations, though mostly inspired by one another, in the end, have their own ways with the law. What is right in one country, is total garbage in another.
Sometimes we see similarities between one country’s upper chamber and another’s lower house. Most times we see dissimilarities between a country’s upper house and its own lower house—specifically on the matter of the voting rights of the leader of the house and their deputies when acting in their steads. It seems that even with a country’s own legislative system, they cannot make up their minds on this point of voting—there is no uniformity on this matter. So many inconsistencies that one is tempted to dismiss nations as clueless when it comes to their parliamentary systems… So many inconsistencies that you are actually torn as to whether or not to show this article to your opponent debater—because doing so would mean feeding their arguments too. But there is beauty behind each nation’s ‘parliamentary madness’, you will find. A beauty forged from their histories, intentions, unique political, economic, sociological realities, etc., and sometimes, their outright follies even.
So no, Ghana cannot seek lessons in her law from the USA, Britain, Canada, etc. We certainly cannot find lessons on this matter in our own classrooms, as suggested by this passionate commentor of ours, being him/herself a member of the court of public opinion: “Even a student marking class register will mark students in the class who are [present] and mark himself …”
The science of effective supreme court-ing
‘Straightforward’ is not a word to be easily used in law. Scarcely is a matter “clear as daylight…” Legal acrobatics are endemically rampant—and rightly so. Always the courts, they get to be the ultimate muscle ‘flexers’. As the opponents in court (the plaintiff and defendant) perform legal acrobatics before the court, judges knead the law—they carefully craft it so that its ultimate end is met.
And the courts, in this case, the Supreme Court, in so performing this duty must do so stripped off all forms of bias. Should their decision on a particular matter be ‘A’ or ‘B’, public opinion being characteristically varied, agreements and disagreements are bound to follow these decisions. That is expected. Yet, what becomes in these situations, tangents—very unfortunate tangents—is when the people have reason (however remote) to suspect, or they choose, without justifiable reasons, to suspect that said decisions were not legally motivated but politically so. It becomes an unbearable tangent in the smooth running of society if the people did in fact believe right; and equally so, if the people’s reason for dismissing such decisions of the courts are not legally motivated (based on close readings of the law), but politically so.
With this sheer power of having its pronouncements becoming law, let’s not beat around the bush, the law is not just in the bosoms of the Supreme Courts, but in their minds and proceeds from its mouths. In Britain we found the nation’s Parliaments to be its sovereign law, in Ghana we almost dare call our courts, chiefly our Supreme Court the law itself—not the supreme law, but law still. Hence, the burden and pleasure of impartiality, we heavily place on our courts’ heads.
We do not need the backing of the law, the law as posited in the Constitution or statute, to stand firmly in this expectations of the court—and of our own selves in fact. Because this duty of impartiality lies with the court of public opinion too.
Minds of Our Own
I, for one, always lose on the Osu Badu stretch. Coming from Airport Residential and intending for the Gimpa road, whichever lane I join on the Osu Badu Avenue all of a sudden, it seems, that is where the traffic is at. You should see me bouncing from lane to lane to the dismay of drivers behind me…
You and I would be lying to ourselves if we do not see politics in this. The facts could just have easily turned. Today, political Party A is happy with the Supreme Court ruling on the unconstitutionality of Order 108(3). Tomorrow, they, needing Order 108(3) to be alive to serve a certain political end, would be right in court insisting that the Supreme Court’s ruling on the unconstitutionality of Order 108(3) was in itself unconstitutional. Again, political party B, today being totally unhappy with the Supreme Court’s ruling, would just as easily, tomorrow, find itself standing in court, passionately arguing against Party A, upholding this same Supreme Court decision, saying, “Yes, Order 108(3) was totally unconstitutional. The Court was right in ruling it as such!” Let’s just go ahead and say it: Parties A and B, for the time being, are the NPP and the NDC. And this is the kind of political piloolo—endemic of politics worldwide—that our courts, the Supreme Court to boot, are to safeguard against. It would be a disaster of the greatest proportion if courts actually enable this pilooloing. It is a political piloolo we, the great judges of the court of public opinion must not stand by and watch happen.
So once again to us all, the court of public opinion, “Your Honour, the fountain of all that’s fair and just, may we have your ruling on this matter?”
Fin
I must apologise for the no-show last week Wednesday. The passing of the e-levy bill, I must say drained the life right out of me. You can say that the e-levy got me all e-lazy. But what do we have here today?—two articles-worth in one.
