Did the Supreme Court rule correctly on the 2022 budget case?

Regarding the 2022 Budget Case, Justice Abdulai vs the Attorney General, Writ No. J1/07/2022, dated March 9, 2022, there has been some uproar about why the Supreme Court found quorum from 137 Majority Members and the First Deputy Speaker (“Deputy Speaker”) to affirm the Majority’s reversal of the Minority’s rejection of the Budget upon the claim that the latter, though likewise with 137 Members and the Speaker, lacked a quorum.

Although complexities of incidental jurisprudential and interpretative nuances of the 1992 Constitution so convolute the issues as to stir the uproar, a careful study of the Constitution and cognate principles of interpretation explicate that the ruling on the quorum was apt: the Minority, unlike the Majority, lacked the requisite quorum of half of all the Members eligible to vote, 138, because, unlike the Speaker who the Constitution denominates as non-Member and non-voting, the Deputy Speaker is excluded from neither, not even when presiding in lieu of the Speaker.

The Court should have stopped, upon its ruling on the quorum issue and gone no further, except remand the case to the House to deliberate and vote properly on approval. It did otherwise, instead, by upholding the budget, solely based on innuendos, the Majority’s summary nullification of the Minority’s rejection of a proposed budget that had received no deliberation.

The Court’s affirmance of such a budget was injudicious and patently wrong, carrying all the markings of arbitrary and capricious. It should be expeditiously corrected by a petition by the Attorney General for the abrogation of the purported affirmance of the “approved” budget and for remand to the House for the requisite deliberations and approval by vote; or by the Court, sua sponte, remanding the case for Parliamentary deliberation and vote for proper approval; and it is hereby respectfully so suggested:

The facts: On November 26, 2021, the Majority Party brought the 2022 Budget for the House’s approval. The Finance Minister requested suspension of the process to allow him to introduce an E-Levy line item. [Presumably, the budget would have been unbalanced without that item].

The Speaker put the request to vote and announced its defeat. The Majority challenged the announcement and asked for re-voting, but walked out protesting the prior exclusion of the Minister from the House before the voting. With 137 Members, the Speaker ran a vote on the budget’s approval, and announced: “the motion had been lost and the Budget rejected.”

The Majority reconvened on November 30, with the minority inexplicably absent. The Speaker was also absent, so, the Deputy Speaker presided. Contending that the Minority had the Speaker and 137 Members when it rejected the Budget, rendering the rejection unconstitutionally null and void, the Majority urged the Deputy Speaker to set the rejection aside.

Counting himself and 137 Members present as 138, half the Membership required, the Deputy Speaker declared that the motion carried, nullifying the previous rejection. “The House was thereby said to have approved the budget.” Emphasis added. There is utterly no sign that the budget’s approval was addressed or voted upon for the purported approval, nor is there anything depicting an affirmable budget, other than “The House was thereby said to have approved the budget.”

Analysis and Suggestions: The 1992 Constitution contains two distinct provisions on quorum, Articles 102 and 104. Art.102, applicable solely to ordinary business, e.g., debates, discussions, etc., involving no voting, requires a quorum of one-third of parliament, excluding the person presiding. It reads: “A quorum in Parliament, apart from the person presiding, shall be one-third of all the Members . . ..”

In turn, Art. 104(1), dealing specifically and exclusively with voting, requires a quorum of at least half of all Members. It reads: “Except as otherwise provided in the 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”.

Because Art. 102 deals with non-voting matters, its exclusion of the presiding person is inconsequential to the case. Conversely, while Art. 104, the specific and therefore the governing provision on voting quorum, does not shed any light, either way, regarding the presiding person—the Speaker or a Deputy Speaker—, its caveat, “[e]xcept as otherwise provided in the Constitution” is dispositive of that issue.

Specifically, regarding the Speaker, Article 97.1 of the Constitution unequivocally states that the Speaker ceases to be a Member of Parliament, once elected as the Speaker: “A member of Parliament shall vacate his seat in Parliament — (b) if he is elected as Speaker of Parliament.”

It is fundamental that where the language is clear, the provision is construed and applied as written. Article 104 allows only Members to be counted. Thus, as clearly a non-Member under Art. 97(1), the Speaker cannot be a “Member” present to be counted for quorum. He cannot be counted also because he cannot vote. See Art. 104(2) “The Speaker shall have neither an original nor casting vote.”

Thus, contrary to the uproar, the Court’s affirmance of the Majority’s reversal of the Minority’s rejection of the budget for unconstitutionality under the quorum metrics is beyond reproach.

Regarding the includability of Deputy Speakers in the quorum calculus, arguments have been made that a Deputy steps in the shoes of the Speaker when presiding in lieu of the Speaker, wielding all entitlements and limitations of the Speaker, and that, as held on the Minority, he should likewise be uncountable when he presides.

Plausible, though these arguments sound, they fail woefully because there is no provision anywhere in the Constitution that strips a Deputy Speaker of his Membership, and settled principle of construction mandate that where a statute [Constitution] states something in one part but omits it in another, that statement should not be carried to where it is omitted.

This principle, anchored on the presumption that the Legislature knows how and would have inserted the statement if such was its intent, is expressed in another commanding maxim, expression unius est exclusion alterius which the Court poignantly referenced and used in resolving the issue as one of first impression in Justice Abdulai v. Attorney General.

Another significant point putting the issue of the includability of Deputy Speakers to rest is that, unlike the Speaker who is explicitly disqualified from voting, Art. 104(2), ante, as held by the Court, Deputy Speakers are expressly authorized to vote and, apart from the fact that they must be Members [and thus, countable] before they can vote, not counting them in as Members would impermissibly and inequitably put one party at a disadvantage relative to the other party when the former’s Member presides in the absence of the Speaker.

The Court’s masterful articulation of some of the foregoing distinctive points are as follows:

In short, the Ghanaian Speaker cannot concurrently be a member of Parliament. However, unlike the Speaker, both the First and Second Deputy Speakers are required to be members of Parliament and must remain members of Parliament to hold Office as Deputy Speakers...

Notably, whilst Article 104(2) .. . provides unequivocally that “the Speaker shall have neither an original or casting vote,” no such outright voting disqualification is placed on the Deputy Speaker, whether or not he is presiding in the House...

Significantly, the voting disqualification in Article 104(2) is specific to the Speaker and therefore does not apply generally to “the Person presiding”—which is the formulation used in the Constitution when a provision is intended to apply to the Speaker as well as a Deputy Speaker presiding as can be seen in Article 102 in regard to the provision on general quorum for commencement of business in the House...

First the Speaker is disqualified from voting not because he or she presides at sittings of Parliament, but because the Speaker is not a member of Parliament, voting being a right only for members of Parliament...

The Court ruling on the quorum issue, indeed establishes a worthy precedent, Abdulai, since the issue was one of first impression. However, the Court went too far when it upheld the approval of the budget, especially given the undergirding unresolved E-Levy issue.

Respectfully, the right thing the Court should have done pursuant to its constitutional duty to act judiciously as a co-equal organ of government to uphold, and promote the integrity and sanctity of our System of Government as intended by its check and balance, not rubber-stamping, analog was to remand the matter to the House, an option with no rational alternative.

Indeed, remanding here is consistently attune with the bedrock principle of adjudication, viz., justiciability, which mandates that justice must not only be done but must manifestly and undoubtedly be seen to be done, meaning all appearances of impropriety [injustice] must be avoided.

Here, there obviously is no justice to the “The People” when a beleaguered and unsanitized proposed budget was held approved to govern them unswervingly through the span of the budget year.

It evokes painful curiosity why an error of such magnitude should be left to linger with its potentially untold massive prejudice to “We the People” that the Constitution and its Separation of Powers Principle are designed to protect. At the minimum, either the Minority or the Attorney General should have sounded the Court of the possible oversight that might have caused that glide.

We cannot take lightly a matter as important as the National Budget. If the system will collapse without the e-levy, let that issue be poignantly addressed and fixed by the Legislature, the entity Constitutionally charged with adopting a balanced budget. Leaving the error to linger would only compound it and wrought greater woes on the economy and ordinary Ghanaians.

If the Majority had afforded due process by duly deliberating and approving the budget after voting, the Court would have been obligated to affirm their budget.

However, approving it the way they did with clear indications that the beleaguered issue was lingering in the undeliberated and un-voted upon budget did not only leave much to be desired; it bordered on abuse of discretion, even if shy of it.

It is respectfully suggested that either the Minority or the Attorney General petition the Court to strike the affirmance of the “unapproved”, un-voted on budget” and remand it to the House for the requisite deliberations and approval by vote. Spontaneously or alternatively, the Court should sua sponte abrogate its decision and remand the case for Parliament’s proper handling.