Only the high court can determine whether a parliamentary seat has been vacated and not the Speaker of Parliament or political parties or politicians, US-based Ghanaian law professor Kwaku Asare (Kwaku Azar) has said.
His comment comes after the Speaker, Prof Aaron Mike Oquaye, declared the Fomena parliamentary seat vacant after the Member of Parliament (MP) for that constituency, Mr Andrew Amoako Asiamah’s decision to contest as an independent candidate in the December polls.
Mr Asiamah, a member of the governing New Patriotic Party (NPP), decided to contest the December 7th parliamentary election as an independent candidate and withdrew from the NPP primaries after accusing the party of scheming to get him out.
On 13 October 2020, the NPP wrote to the Speaker to trigger the provisions of Article 97 (1)g for the seat in the house to be declared vacant.
Delivering his ruling in parliament on Saturday, 7 November 2020, Prof Oquaye said: “With all intents and purposes, he is no longer a member of the party.
“He has pronounced himself, publicly, as an independent [candidate] and has filed his papers to compete against the party in his official candidate as an independent on 7th December 2020.
“Having forfeited the membership of the party on whose ticket he was elected to parliament, the operative language of the Constitution is that, he shall – which is mandatory – vacate his seat in Parliament”.
But Prof Asare disagrees with the Speaker’s ruling and wants him to reverse it.
In a Facebook post, the law professor explained that: “Dr William Akoto, MP for New Abirem (2004) did not vacate his seat when he ran as an independent for the 2008 election.
“My friend and V-mate Joe Wise, independent (2008), did not vacate his seat even though he caucused with NPP and run as an NPP candidate for the 2012 election.
“Mr Teye Nyaunu, MP for Lower Manya Krobo (2008) did not vacate his seat when he ran as an independent for the 2012 election.
“The law on vacating one’s seat is crystal clear: First, any question of whether a seat has been vacated can only be determined by the high court, not MPs, not the Speaker, not political parties or not politicians.
“The reason is clear. We do not want partisanship to determine when a seat has been vacated.
“Second, a seat is vacated if and only if an MP, elected on the ticket of a party, leaves that party to join another party or seeks to remain in Parliament as an independent member.
“In like manner, a member vacates his seat if he was elected as an independent candidate and joins a political party.
“These laws are meant to govern the movement of MPs during a term of parliament but are not meant to burden their political right to change their affiliations in future terms.
“The whole purpose of these laws is to curtail the tendency for a winning government to poach independent MPs or those from other parties thereby weakening the opposition.
“It is not a political instrument that political parties can use to punish MPs who they have issues with.
“This sudden urge to violate the constitution with impunity is very disturbing and must be halted and reversed.
“Regardless of political affiliation, we must come together to rebuff the Speaker and to protect the Fomena MP.”
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