KEY POINTS
- Justice Tanko predicts reversal of the Supreme Court majority decision.
- He emphasizes the High Court’s exclusive authority on parliamentary vacancies.
- Procedural missteps cited as grounds for dismissing Afenyo-Markin’s suit.
Supreme Court Judge, Justice Amadu Tanko, has expressed strong dissent against the 5:2 majority ruling in the case brought by Efutu MP Alexander Afenyo-Markin against the Speaker of Parliament, Alban Bagbin. Justice Tanko criticized the decision, calling it “an aberration” and predicted that it may soon be overturned.
Justice Tanko critiques majority decision on jurisdiction
Justice Tanko’s dissent focused on constitutional interpretation, particularly the jurisdictional boundaries outlined in Ghana’s 1992 Constitution. He emphasized Article 99, which grants the High Court exclusive authority to rule on parliamentary seat vacancies, arguing that the Supreme Court cannot encroach on this mandate.
He explained that while the Supreme Court has original jurisdiction over constitutional matters under Article 130, this authority does not override Article 99’s specific allocation of vacancy rulings to the High Court.
Justice Tanko invoked the legal principle of “generalia specialibus non derogant,” meaning specific rules take precedence over general rules. He argued that allowing the Supreme Court to assume jurisdiction in this case would usurp the constitutional prerogatives of the High Court.
Constitutional boundaries and procedural issues
Myjoyonline recorded that in his dissent, Justice Tanko referenced past rulings, including the Parliamentary Election for Wulensi Constituency case, to underline the importance of adhering to constitutional boundaries. He stated that while the Supreme Court is empowered to interpret and enforce constitutional provisions, such jurisdiction must be properly invoked.
“This particular action clearly demonstrates the failure by a party to comply with mandatory constitutional provisions in invoking jurisdiction,” Tanko noted. He emphasized that a court may have jurisdiction, but procedural missteps can deny it the authority to act on a case.
Call for High Court to handle vacancy rulings
Justice Tanko concluded by dismissing Afenyo-Markin’s suit, asserting that it failed to meet the jurisdictional threshold for the Supreme Court. He argued that any constitutional interpretive issues arising in the High Court should be referred to the Supreme Court, but the primary determination of vacancies must remain with the High Court.
He reiterated that jurisdictional issues, once raised and upheld, should foreclose any consideration of the case’s merits. “There will be no foundation upon which the merits can stand,” he stated.
Justice Tanko’s dissent underscores his firm belief in preserving the constitutional roles of Ghana’s courts and raises questions about the majority decision’s long-term validity.
