Introduction
Honourable Members, I address you today amid circumstances that profoundly challenge the core principles of our constitutional democracy.
At the outset, I must express my profound regret concerning the conduct displayed by the Presidency following Parliament’s successful unanimous passage of the Human Sexual Values Bill, 2021.
The behaviour exhibited by the Presidency in refusing to accept the transmission of this bill not only deviates from established democratic practices but also undermines the spirit of cooperative governance and mutual respect for the arms of government.
This is a principle that forms the cornerstone of our political system. Such actions, if left unchecked, risk setting dangerous precedents that threaten the integrity and functionality of our democratic institutions.
To situate this statement in the appropriate context, it is crucial to acknowledge a disturbing pattern emerging from the Executive branch, which points to a concerning disregard for the foundational principles enshrined in the Constitution, 1992.
This pattern has once again been made evident in the President’s recent refusal to accept the transmission of the Human Sexual Values Bill. The recent move is not isolated. It forms part of a series of actions that undermine the legislative process. As you may recall, I addressed this House on 22nd December 2023 in a formal statement. The purpose of that statement was to draw your attention to the President’s refusal to assent to three critical bills that had been duly passed via as a Private Members’ Bill.
During that address, I underscored the troubling nature of the President’s justifications for his actions, or rather, the lack thereof, particularly highlighting that his failure to assent on grounds of alleged unconstitutionality, paradoxically stood in violation of the very constitution he invoked.
Despite the gravity of this matter, it is disheartening to note that there has been no progress in rectifying the situation concerning those significant pieces of legislation. They remain in a state of limbo, unacted upon following the President’s communication, which lacked substantial legal justification.
This ongoing scenario poses a grave threat to our legislative authority and, by extension, the democratic principles we strive to uphold. The implications of such executive actions extend far beyond the immediate legislative items at hand. They erode the foundational checks and balances that our forebearers painstakingly established to ensure a vibrant and functioning democracy.
When important legislative work, the product of rigorous debate and consensus-building within this House, is disregarded without just cause, it not only disrespects the legislative branch but also disenfranchises the citizens we are sworn to serve. This blatant disregard for legislative processes and constitutional mandates risks setting a perilous precedent that could weaken the very fabric of our governance structure.
Honorable Members, on 19 March 2024, my attention was drawn to a letter issued by the Executive Secretary to the President, Nana Asante Bediatuo, addressed to the Clerk to Parliament which letter is clearly in my opinion contemptuous of Parliament.
The letter outlined that the Clerk ought to “cease and desist” from attempting to transmit the Human Sexual Values Bill, 2021 to the President for necessary action accordance with the Constitution. In the said letter, the Executive Secretary indicated that the Office of the President was aware of two pending applications for an order of interlocutory injunction seeking to restrain the Clerk and Parliament from transmitting the Bill to the President.
It further indicated that the Hon. Attorney General had on 18 March 2024 informed the President that he had received the two applications and had advised the President not to take any step in relation to the Bill until matters raised by the suit are determined by the Supreme Court. As a result, the Presidency conveyed to the Clerk that it was unable to accept transmission of the Bill.
My attention has also been drawn to the 18 March 2024, letter from the Hon. Attorney General being referred to by the Executive Secretary to the President, Nana Asante Bediatuo above. In the said letter, I note that the Attorney-General used the phrase “…I will respectfully advice that a decision to assent to the Bill be made after the determination of the application for interlocutory injunction…”.and not an advice to the President not to receive the Bill from Parliament.
It is therefore interesting that in view of this clear and unambiguous advice from the Attorney-General to the President, the Presidency has taken this decision.
In the face of these developments, it is important for us to reflect upon the manner in which these events have unfolded. On the 28th of February, 2024, this august House took a decisive step in passing the Bill, a move that was the culmination of rigorous debate, thoughtful deliberation, and the collective will of the representatives of our people.
Following this, the Bill underwent the customary process of winnowing which is an important procedure designed to ensure that all amendments and changes proposed during the legislative process were accurately incorporated.
After the successful completion of the winnowing process, the Clerk to Parliament, fulfilling his duties as the procedural intermediary between the legislative and executive branches, endeavoured to send the Bill to the Presidency in accordance with section 5 of the Interpretation Act, 2009 (Act 792).
This action, steeped in established parliamentary practice and procedure, signifies the final step in the legislative process, enabling the President to review and, if in agreement, assent to the Bill, thereby enacting it into law in accordance with Article 106(7) of the Constitution.
The refusal to accept the Bill for transmission did not occur in isolation but persisted across multiple attempts, with the third attempt to transmit the Bill forming the basis of the letter I have previously alluded to.
Notably, the Presidency’s refusal to accept the transmission of the Bill has not been formally communicated to this House through the established channels of official correspondence from the President to this House. The absence of an official communication to the House regarding the Presidency’s refusal is troubling, yet it does not diminish the gravity of the situation nor our responsibility to address it.
The contents of the letter, albeit not formally presented to us, have come to our attention, compelling us to confront the issues it raises. It is a matter of great concern that the executive branch has chosen to disregard the established constitutional structures that facilitate constructive dialogue and collaboration between the branches of government.
In light of these circumstances, it is incumbent on this House to stand united in its response to this affront to the legislative authority vested in it by the Constitution and the people we serve. We must articulate a collective voice that unequivocally condemns the disregard for our constitutional structures and reaffirms our commitment to upholding the rule of law. This situation calls for a principled stance, emphasizing the importance of adherence to the procedures and norms that govern our democratic institutions.
LEGAL FRAMEWORK FOR ACTIONS TO BE TAKEN AFTER A BILL HAS BEEN PASSED
Article 106(7) of the Constitution provides:
Where a bill passed by Parliament is presented to the President for assent he shall signify, within seven days after the presentation to the Speaker that he assents to the bill or that he refuses to assent to the bill, unless the bill has been referred by the President to the Council of State under Article 90 of this Constitution.
Section 5 of the Interpretation Act, 2009 (Act 792) provides:
As soon as a Bill is passed by Parliament, the text of the Bill as passed shall be sent by the Clerk of Parliament to the Government Printer, who shall print four copies of the Bill on vellum paper or on paper of enduring quality and send the copies to the Clerk.
On receiving the copies, the Clerk shall carefully compare them with the text of the Bill as passed and if the Clerk finds the copies to be correct, shall sign on each copy a statement in the form set out in the First Schedule, and shall send the copies so authenticated to the President for the assent.
Where the Bill was passed in accordance with the relevant provisions of article 108 of the Constitution, the Clerk shall, before causing the copies to be presented to the President, submit them to the Speaker who, if satisfied that the Bill was passed in accordance with the Constitution shall sign on each copy a certificate in the Form set out in the First Schedule.
After the assent, the Clerk shall enter on the copies the appropriate number of the Act.
The combined effect of these provisions read together is that after a bill is passed by Parliament, it undergoes a meticulous process designed to ensure its conformity with the nation’s legal and constitutional standards before it can become law. Initially, the passed bill is sent to the Government Printer, who is responsible for printing four copies on high-quality, durable paper.
Following this, the Clerk to Parliament conducts a thorough verification of these printed copies against the original bill to ensure their accuracy. Upon successful verification, the Clerk authenticates each copy by signing a statement that certifies their correctness. In Article 108 matters, an additional step is introduced. The authenticated copies are presented to the Speaker of Parliament, who must certify that the bill was indeed passed in accordance with Article 108 by signing a certificate on each copy.
The final and perhaps most critical phase of the process involves the presentation of the bill to the President for assent. Pursuant to Article 106(7) of the Constitution, the President has a seven-day period to either assent to the bill, signifying its enactment into law, or refuse to assent, which may involve referring the bill to the Council of State for further advice. Upon the President’s assent, the Clerk of Parliament assigns an official Act number to the bill, formally marking its transition into law.
INJUNCTION APPLICATIONS AND ITS EFFECT ON THE LAW-MAKING PROCESS
Honorable Members, this House has been duly served with two injunction applications in respect of the Bill. The applications titled Richard Sky v The Parliament of Ghana & the Attorney-General, and Dr. Amanda Odoi v The Speaker of Parliament & the Attorney General.
Honorable Members would recall that on 19 July 2023, the Supreme Court considered and dismissed an application for interlocutory injunction that sought to injunct the proceedings of Parliament in respect of the Bill. The Court in that case, Dr. Amanda Odoi v the Speaker of Parliament & the Attorney General (J1/13/2023) reasoned that the application failed to meet the threshold for the grant of interlocutory injunctions.
The Executive Secretary to the President, noted in his letter that “it is settled law that during the pendency of an interlocutory injunction application, the status quo ante ought to be preserved, and no action be taken that would result in prejudicing the injunctive relief sought and undermining the authority of the court”.
Honorable Members, an injunction is a judicial order that restrains a person from beginning or continuing an action that threatens or breaches the legal right of another, or that compels a person to carry out a certain act, such as correcting a wrongful state of affairs. In the context of our law, interlocutory injunctions serve as an important tool for maintaining the status quo pending the resolution of a legal dispute, ensuring that the parties involved do not engage in actions that could cause irreparable harm or fundamentally alter the situation before the court has an opportunity to decide the case.
The only grounds for the grant of an injunction in law is “… in all cases in which it appears to the Court to be just and convenient to do so…”.
The Executive Secretary to the President’s reference to the preservation of the status quo ante during the pendency of an interlocutory injunction application is a highlight of the fundamental principle intended to prevent any action that might prejudice the injunctive relief sought or undermine the authority of the court. However, the interpretation of this principle has given rise to two distinct schools of thought regarding the effect of an application for an injunction.
The two schools of thought concerning the effect of an application for an injunction during its pendency, particularly in the absence of a clear authoritative position from the Supreme Court, offer contrasting views on how parties should conduct themselves. Each perspective carries significant implications for the administration of justice, the rights of the parties involved, and the overall legal process.
One school argues that the mere application for an injunction should act as a de facto ‘injunction,’ compelling parties to refrain from taking any further actions that could affect the matter at hand. This view is predicated on the notion that, to ensure the administration of justice is not interfered with, parties should err on the side of caution and halt any actions that could potentially influence the outcome of the dispute or render the court’s eventual decision ineffectual.
Conversely, the other school of thought maintains that an application for an injunction does not, in itself, constitute a court order. Accordingly, parties are not legally obligated to cease their activities merely because an injunction application has been filed. Proponents of this perspective argue that until the court issues a formal injunction, the parties retain their rights to proceed as they see fit, provided they do not engage in unlawful conduct or actions explicitly prohibited by law.
In the context of Ghana’s constitutional and legislative framework, the debate over the effect of an application for an injunction, particularly when such an application targets legislative processes, warrants careful consideration. Given the clear constitutional and statutory provisions outlining the President’s obligations and powers after a bill has been passed by Parliament, adopting the stance that an application for an injunction acts as a de facto injunction presents several challenges and potential pitfalls.
The Constitution, specifically in Article 106(7) and 106(8), along with relevant statutory provisions, delineates a precise procedure for the passage, transmission, and assent or refusal of bills. These procedures are designed to ensure a smooth operation of the legislative process, providing checks and balances between the branches of government while safeguarding against undue delay or obstruction in the enactment of laws.
Adopting the de facto injunction perspective, wherein the mere filing of an injunction application is seen to necessitate a halt in the legislative process, runs the risk of unduly fettering the work of Parliament. Such a stance could enable parties to strategically file injunction applications, not necessarily on the strength of their legal position, but as a tactic to delay or complicate proceedings of this House. This approach risks transforming the legal system into a tool for political maneuvering rather than a mechanism for justice, effectively crippling Parliament’s ability to function and bringing legislative processes to a standstill.
In considering the implications of applying for an injunction against the legislative process, particularly in relation to the transmission of a bill to the President for assent, the concept of irreparable harm must be examined. This concept, an important consideration for granting injunctions, requires that it is demonstrated to a sufficient degree that the harm which would occur in the absence of an injunction is both significant and incapable of being adequately remedied through damages. In the specific context of transmitting a bill for presidential assent, it’s imperative to understand that this step in the legislative process does not inherently lead to irreparable harm.
The act of transmission merely represents the procedural progression of a bill within the structured framework established by the Constitution. It does not, in and of itself, guarantee the bill’s enactment into law, as the President is accorded the authority, as clearly outlined in the Constitution, to either assent to the bill or refuse it under Articles 106(7) and 106(8).
Additionally, in the event that a bill is assented to by the President and becomes law, the Constitution provides a mechanism for judicial review. Articles 2(1) and 130 empower the Supreme Court to scrutinize the constitutionality of any Act of Parliament. Should the Court find that the law is unconstitutional, it possesses the authority to invalidate the Act. Given these considerations, it is evident that the transmission of a bill to the President for assent, does not result in irreparable harm that would justify the granting of an injunction much less the halting of parliamentary processes on account of the application for an injunction.
Generally, the Supreme court has upheld the position of the law that the official acts by Organs of the State and Government Departments are presumed to be regularly performed unless there is strong evidence in rebuttal.
Arising out of this, it is imperative to note that the Courts have been very reluctant in injuncting and placing impediments on arms of government and constitutional bodies from performing their constitutionally mandated duties.
The Supreme Court has always resisted attempts to unfairly and unnecessarily place a clog on the work of this House through the use of injunction applications. In Welford Quarcoo v the Attorney General, the Supreme Court per Dr. Date-Bah JSC noted that:
Where the relief sought relates, as here, to a public law matter, particular care must be taken not to halt action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification of the impugned act or omission cannot restore the status quo.
Given the reliefs that the plaintiff is seeking in the substantive suit in this case, it is clear that if he succeeds in securing the declarations he has claimed, the impugned provisions of the Local Government Act, 1993 (Act 462) will be declared void and any actions made in pursuance of them nullified.
Accordingly, no irreparable damage will have been caused the plaintiff during the period between the issue of the writ and the date of judgment.
In Dr. Amanda Odoi v the Speaker of Parliament & the Attorney General (J1/13/2023) the court refused to grant the injunction application because no prima facie case had been made to restrain the work of Parliament and further the applicant was unable to prove irreparable damage should the work of Parliament continue in respect of the Bill.
The Court’s cautious approach in dealing with injunction applications against parliamentary processes further underscores the importance of not hastily impeding the legislative functions of Parliament. The precedents as I have just set out, shows that courts have been slow to grant injunctions that would halt the work of Parliament, recognizing the profound implications such actions could have on the legislative autonomy and the balance of powers within the government.
This judicial reticence is rooted in a recognition of the fundamental principles underpinning a democratic society, where each branch of government, operates within its own sphere of influence, with specific duties and powers that are designed to complement each other, ensuring a robust system of checks and balances.
The courts, in exercising their discretion in matters of injunctions against Parliament, demonstrate a careful consideration of these principles, opting to intervene only when absolutely necessary and when the legal thresholds for such intervention are unequivocally met. The implications of allowing injunction applications to unduly influence or halt the legislative process are profound. It undermines the constitutionally outlined procedures and also poses a significant threat to the functioning of democracy.
Such a perspective could stultify not only the work of Parliament but also that of other arms of government or statutory agencies, based merely on the potential for an injunction. This approach, therefore, is legally unfounded given the clear constitutional mandates and potentially dangerous, as it could serve to undermine the principles of separation of powers and the efficient functioning of government.
CONCLUDING REFLECTIONS
Honourable Members, several critical points emerge that underscore the importance of adhering to constitutional and legal frameworks within our democratic governance. Firstly, the President’s refusal to accept the transmission of the bill is, by all accounts, not supported by the constitutional and statutory provisions that guide our legislative process. The Constitution clearly delineates the steps to be followed once a bill has been passed by Parliament, mandating the transmission of the bill to the President for assent or rejection.
Therefore, the refusal to even accept the bill for consideration falls outside the legal bounds established by our constitutional framework. It is incumbent upon the President to accept the bill and take the necessary action within the prescribed constitutional limits, whether that action is assent, refusal, or referral to the Council of State for advice.
It is instructive to note that the Executive, has in the past proceeded with its actions, although, there has been pending before the court, injunction application against the State.
Secondly, there must be a steadfast rejection of any attempts to unduly fetter or hinder the work of Parliament. The Parliament of Ghana operates as a crucial part of our democracy, embodying the will and voice of the people. Any efforts to obstruct its work disrespects this fundamental institution and threatens the principles of governance by consent and representation.
Thirdly, it is imperative to remain vigilant against setting dangerous precedents that could potentially undermine the foundation of our democracy. The rejection of a bill’s transmission without constitutional basis introduces a precarious deviation from established democratic practices and norms. Such actions, if left unchallenged, may embolden future attempts to circumvent the legislative process, thereby weakening the integrity and efficacy of our democratic institutions.
Lastly, in alignment with our constitutional mandates and the principles of good governance, it is essential for the President to adhere to the lawful course of action by accepting the transmission of the bill. Upon receipt, the President has the constitutionally provided options to assent to the bill, refuse it, or seek further consultation, as deemed necessary.
As we move forward, it is the collective responsibility of all branches of government, and indeed all citizens, to uphold the constitution and ensure that our democratic practices are not only preserved but strengthened.
The current impasse presents an opportunity for reflection and reaffirmation of our commitment to the principles of democracy, rule of law, and the unequivocal respect for the legislative process that forms the bedrock of our nation’s governance.
I reiterate that the refusal to even accept the bill for consideration falls outside the legal bounds established by our constitutional framework. It is incumbent upon the President to accept the bill and take the necessary action within the prescribed constitutional limits, whether that action is assent, refusal, or referral to the Council of State for advice.
Article 106(7) says
“Where a bill passed by Parliament is presented to the President for assent, he shall signify within seven days after the presentation, to the Speaker that he assets to the bill or that he refuses to assent to bill, unless the bill has been referred by the President to the Council of State under article 90 of this Constitution.”
The Parliament of Ghana will comply with the existing legal framework and reject the attempts by the Executive Secretary of the President, through his contemptuous letter, to instruct the Clerk to Parliament, an Officer of Parliament whose position is recognizably under the Constitution. We shall not cease and desist!
Be that as it may, Hon Members, I also bring to your attention, the receipt of a process from the Courts titled Rockson-Nelson Etse K. Dafeamekpor vrs the Speaker of Parliament and the Attorney-General ( Suit no. J1/12/2024) which process was served on the 19th of March 2024 and an injunction motion on notice seeking to restrain the Speaker from proceeding with the vetting and approval of the names of the persons submitted by His Excellency the President until the provisions of the constitution are satisfied.
Hon. Members in the light of this process, the House is unable to continue to consider the nominations of His Excellency the President in the “spirit of upholding the rule of law “ until after the determination of the application for interlocutory injunction by the Supreme Court.
Hon. Members, I thank you for your attention.
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