Supreme Court Justice Amadu Tanko, one of two dissenting judges in the 5:2 majority decision regarding Effutu MP Alexander Afenyo-Markin’s case against Speaker of Parliament Alban Bagbin, has predicted that the judgment may not endure the test of time.
According to Justice Tanko, the decision is a deviation from established judicial principles.
“I do not hasten to proclaim that, I have apprehended with despair the majority’s conclusion in this suit but I state, with utmost deference to the Hon. Chief Justice and the rest of my brethren in the majority that, not only do I fundamentally disagree with their conclusion, I, with all due respect, also find the decision an aberration to the established and accepted judicial position of this court which with profound respect, I hope in no distant future the resultant usurpation of the constitutional prerogative of the High Court incidental to the majority decision will be reversed.”
Justice Tanko also noted that Ghana’s 1992 Constitution strictly designates the High Court as the sole authority to determine such cases, referencing Article 99. He argued that the Supreme Court’s decision effectively encroached on the High Court’s constitutional mandate.
While acknowledging the Supreme Court’s original jurisdiction over constitutional matters under Article 130, he stressed that Article 99 takes precedence in vacancy matters. To further clarify, Justice Tanko invoked the principle of “generalia specialibus non derogant” (general rules do not override special rules), saying when there is an apparent conflict between general and specific provisions, the specific provision prevails.
Justice Tanko cited past precedents, including the Wulensi Constituency case, to support his interpretation. He also referred to the court’s earlier ruling in Owusu-Mensah v. NAPTEX & Ors, which established that procedural lapses in invoking jurisdiction can deny a court the power to exercise it, regardless of its general authority.
“The conclusion I have arrived at should in no way be construed as suggesting that the Supreme Court is not the appropriate forum vested with jurisdiction to interpret and/or enforce the Constitution in appropriate circumstances. The point which I unequivocally emphasise is that it is the same Constitution, 1992 which vested exclusive power in the Supreme Court in matters of interpretation and enforcement of its provisions which also designed the mechanism for this court to assume jurisdiction. Thus, although this court has a general jurisdiction to interpret and enforce provisions of the constitution, there are situations, such as in the instant case where the procedure adopted in invoking this court’s interpretative and enforcement jurisdiction has deprived the court of the power to exercise that jurisdiction. This particular action clearly demonstrates more than any other case I have confronted in constitutional law jurisprudence the failure by a party to comply with mandatory constitutional provisions in invoking jurisdiction and it is destined to fail. The above statement is supported by the recent decision of this very court in OWUSU-MENSAH VS. NAPTEX & ORS [2017-2020] 2 SCGLR 708 at 711. ’” A court might have jurisdiction to entertain a cause or matter but the procedure invoking its jurisdiction might deny the court the jurisdiction. That would occur where a statute had specially laid down the procedure for redress.”’
By: Ekow Annan/newsalertgh.com
