In constitutional democracies, institutional power is rarely lost in a single dramatic moment. More often, it is eroded quietly—through shortcuts taken in the name of urgency, convenience, or numbers.

Ghana’s recent controversy over the declaration of a parliamentary seat as vacant, following a High Court decision still subject to appeal, presents precisely such a moment.

This is not merely a clash between Majority and Minority. It is a constitutional test of whether Parliament will remain faithful to principles it once defended with conviction—or abandon them when they become inconvenient.

The Speaker’s Principled Position: 2021–2022

The current debate cannot be understood without revisiting Parliament’s posture during the 2021–2022 constitutional crisis over vacant seats in a hung Parliament.

Following the 2020 elections, Parliament was evenly split. Questions arose as to whether certain Members of Parliament—particularly those involved in political realignments—had triggered Article 97(1)(g) of the 1992 Constitution, Ghana’s anti-defection provision.

The matter reached the Supreme Court in Justice Abdulai v. Attorney-General & Speaker of Parliament (2021). In that case, the Court interpreted Article 97(1)(g) and clarified the circumstances under which a parliamentary seat may become vacant by operation of law.

Yet despite the Supreme Court’s interpretation—the highest judicial authority in the land—the Speaker of Parliament, Rt. Hon. Alban Sumana Kingsford Bagbin, took a firm and principled position:

Courts interpret the Constitution; Parliament administers its own membership.

The Speaker maintained that even the Supreme Court could not itself administratively declare a parliamentary seat vacant. That constitutional consequence, he argued, required recognition and action by Parliament acting through its internal processes and authority under Articles 93 and 97 of the Constitution.

The result was instructive:

No seat was declared vacant

No notice was sent to the Electoral Commission

No by-election was held

Parliament asserted its autonomy—not in defiance of the judiciary, but in fidelity to the separation of powers.

That stance was not partisan. It was institutional.

The Present Departure: A High Court Ruling and a Rushed Notice

Contrast that principled restraint with the present situation.

In the Kpandai Parliamentary Election Petition, the High Court ordered a rerun of the parliamentary election after finding irregularities. Crucially, the decision was subject to appeal, as election petitions are under Ghanaian law.

Yet before appellate processes could be exhausted—or even meaningfully engaged—the Clerk of Parliament transmitted a notice to the Electoral Commission, effectively treating the High Court ruling as having automatically vacated the seat.

This shift raises serious constitutional concerns.

Why the Current Approach Is Constitutionally Fragile

First, Article 97 of the Constitution is exhaustive. It lists the specific circumstances under which a Member of Parliament “shall vacate his seat.” A High Court judgment ordering a rerun does not appear anywhere in that list. At most, such a judgment may eventually lead to a vacancy—but only after finality, not while appeal rights remain alive.

Second, judicial hierarchy matters. A High Court decision is a first-instance ruling. It does not attain finality until appeal timelines expire or appellate courts have spoken. Treating such a ruling as conclusively vacating a seat collapses the constitutional right of appeal into irrelevance.

Third, the role of the Clerk of Parliament must be properly understood. The Clerk is an administrative officer, not a constitutional decision-maker. Declaring—or operationalising—a vacancy is not a clerical act; it is a constitutional one. Such an act properly flows from Parliament acting under the authority of the Speaker, not from administrative correspondence triggered by judicial haste.

The Missing Element: Parliamentary Deliberation

Even if one were to assume—arguendo—that a High Court ruling could initiate vacancy-related steps, the absence of parliamentary deliberation is the most troubling feature of the current episode.

Parliament is not a registry. It is a deliberative body.

Standing Orders may prescribe timelines for notifying the Electoral Commission after a vacancy has been established. But Standing Orders do not override the Constitution, nor do they eliminate Parliament’s duty to first determine whether a vacancy has constitutionally arisen.

Deliberation would have meant:

Debating the constitutional effect of the High Court ruling

Acknowledging the existence of appeal rights

Considering whether to await appellate clarification

Possibly inviting expedited judicial review in the public interest

Instead, speed replaced judgment.

Courts and the Public Interest

If urgency was the concern, Ghana’s constitutional framework already provides a solution. The Supreme Court can hear constitutional matters expeditiously in the public interest. Election and parliamentary disputes have frequently been fast-tracked to preserve stability and clarity.

An appeal in the Kpandai matter could have been pursued swiftly, preserving:

The right of appeal

Judicial hierarchy

Parliamentary autonomy

Public confidence

By bypassing this route, Parliament risks appearing to pre-empt the outcome of ongoing judicial processes.

A Precedent with a Long Shadow

Precedents are rarely dangerous in the moment they are set. Their danger lies in their reuse.

Today’s Majority may find this shortcut convenient. But Parliaments turn. Numbers change. Eight years from now, another Majority—and another Clerk—may invoke this very precedent to justify similar haste, perhaps against today’s beneficiaries.

That is how institutional regret is born.

Conclusion: Why Principle Matters More Than Numbers

The Speaker’s stance in 2021–2022 was not about political advantage. It was about protecting Parliament as an institution—one that does not surrender its constitutional responsibilities to administrative speed or partisan arithmetic.

Consistency is the currency of constitutional legitimacy.

Vacancies should follow finality, not anticipation.
Authority should follow deliberation, not dispatch.

If Parliament forgets this, the precedent set today will not merely shape the next by-election—it will shape the future balance of Ghana’s constitutional democracy.

By: Amanda Akuokor Clinton, Esq.
MSc (African Politics), SOAS