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Speaker Edward Doe Adjaho

Opinion: Implications of the Supreme Court’s Declaration that the Speaker violated the Constitution and the Presidential Oath of Office

1. On November 5th and 7th 2014, both President John Mahama and Vice President Paa Kwesi Amissah-Arthur travelled outside the country. On both occasions, the President, in compliance with Article 59, advised Speaker Edward Doe Adjaho that he and the Vice-President would be travelling outside the country.

The President also wrote the Chief Justice and drew her ladyship’s attention to the requirement of Article 60(12), which requires her to administer the Presidential oath to the Speaker.

2. In furtherance of Article 60(12), the Chief Justice, her Ladyship Georgina Wood, visited Parliament on the morning of both dates to administer the oath required to be taken and subscribed to by the Speaker whenever the President and Vice-President travel outside the country.

3. On both dates, the Speaker of Parliament inexplicably refused to take and subscribe to the oath. In consequence, the Speaker could not commence performing the functions of the President as required by the Constitution and unlawfully carried himself out as Acting President of the Republic.

4. The notion that the Speaker must take and subscribe the oath related to the office of the President whenever the President and Vice-President travel outside the country is one that previous Speakers have followed since the Supreme Court’s landmark decision in Asare v Attorney General [2003-2004] SCGLR 823. For instance, Speaker Joyce Bamford Addo took and subscribed to the oath of office on October 1, 2010 and again on November 10, 2010 when then President John Atta Mills and Vice-President John Mahama were absent from the country.

In both cases, the Rt. Hon. Speaker Adjaho, who was then First Deputy Speaker of Parliament, presided over proceedings in Parliament when Speaker Bamford Addo took the oath to perform the President’s functions. Thus, the Rt. Hon. Speaker Adjaho was fully aware of and understood the requirement of Articles 60(11)-(12). At no point, whatsoever, had the Rt. Hon. Speaker Adjaho ever raised any issues about the practice, either in Parliament or at the Supreme Court.

5. It was this willful refusual to subscribe to the oath as required by Article 60(12) that triggered Atta-Mensah and Asare v Attorney General and the Rt. Hon. Edward Doe Adjaho (consolidatted writs JI/4/2015 and JI/20/2015).

6. In this case, a 9-member panel of the Supreme Court unanimously held that the Speaker’s refusal to swear to the oath of President contravenes Articles 60(11)-(12). Moreover, the Court held that “A declaration that the refusal to swear to the oath of President contravenes the provisions of the constitution necessarily has the effect of rendering that conduct into an act that violates his oath as the word “violation” is synonymous with “contravention.” As the Constitution is the fundamental law of the land, our decision has retrospective effect with the contravention dating back to November 5, 2014 when following the absence of the President and Vice- President from the country, he was obliged under Article 60 (11) to assume the functions of President and subscribe to the oath in terms of article 60 (12).We are of the opinion that to constitute a violation of an oath, one needs not  to prove   that the refusal was done for the purpose of undermining the constitution and that even an error of judgment which contravenes a provision of the Constitution will suffice to establish a violation as in this case.  The violation need not in our opinion be culpable.”

7. In essence, the Supreme Court has now declared that the Rt. Hon. Speaker Adjaho has violated the Constitution and his oath of Office. What then are the implications of this declaration?

8. THE PRESIDENTIAL OATH is of the form “I,............................................................................................................ having been elected to the high office of President of the Republic of Ghana do (in the name of the Almighty God swear) (solemnly affirm) that I will be faithful and true to the Republic of Ghana; that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana; and that I dedicate myself to the service and well-being of the people of the Republic of Ghana and to do right to all manner of persons. I further (solemnly swear) (solemnly affirm) that should I at any time break this oath of office I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. (So help me God.)”

9. Thus, a clear implication of the Supreme Court’s declaration is that the Speaker must submit himself to the laws of the Republic of Ghana and suffer the penalty for violating his oath. The Presidential Oath obliges the oath maker to observe the limits of his authority and act in accordance with the powers delegated to him by the Constitution; as such, is violation defiles the Constitution and is a grave Constitutional tort. The oath will surely atrophy into a meaningless ritual if it can be violated without a penalty.

10. This is why Article 69(1)(a) provides that “the President shall be removed from office if he is found, in accordance with the provisions of this Article to have acted in willful violation of the oath of allegiance and the presidential oath set out in the Second Schedule to, or in willful violation of any other provision of this Constitution.”

11. Removing the Speaker from office under Article 69(1)(a) may be problematic since that Article addresses removal of a President. However, that Article can be read in pari materia with Article 95(2)(c-d) to effectuate any such removal. From Article 69(1), a willful violation of the Presidential oath by the Speaker, while acting as President, is a removable offense. By Article 95(2)(c-d), the Speaker’s removal can occur via a political process or operation of the law.

12. Under Article 95(2)(c), “the Speaker shall vacate his office if any circumstances arise that, if he were not Speaker, would disqualify him for election as a member of Parliament.” Clearly, violating the Presidential oath is a circumstance that could disqualify him for running as an MP. If so, then the Speaker vacates his office by operation of law. The Speaker can vacate his seat voluntarily or failing to do so anyone can challenge his continued stay in office at the High Court under Article 99(1). The political path will require a resolution of Parliament supported by the votes of not less than three-quarters of all the members of Parliament. That will probably not happen for obvious reasons.

13. The Oath Act also provides a penalty for someone who refuses to take the oath. Specifically, Subsection 4 (1) provides that “A person who refuses to take the oath or make the affirmation required by law in respect of the appointment to an office shall, (a) if that person has already entered on that office, be deemed to have vacated that office from the date of refusal; and (b) if that person has not already entered on that office, be disqualified from so doing.”

14. Thus, another implication of the declaration is that the Speaker never acted as President and his name should be expunged from any record that designates him as having served as Acting President or performing the functions of the President on the dates in question. It should also be clear that the Rt. Hon. Speaker’s refusal to take the Presidential oath disqualifies him from further entering that office, which logically raises question about whether he can remain Speaker if he is disqualified from performing the functions of President.

15. Another implication is whether the violation of the Constitution and the Oath of Office constitutes “high crime” under the Constitution. The Constitution defines the offence of a high crime as “Failure to obey or carry out the terms of an order or direction made or given by the Supreme Court.” In this case, the order will be that given by the Supreme Court in the Asare case. Further, “a person convicted of high crime under clause shall be liable to imprisonment not exceeding ten years without the option of a fine and not eligible for election, or for appointment to any public office for ten years beginning with the date of the expiration of the term of imprisonment.”

16. The Supreme Court properly concluded that it lacked the jurisdiction to determine whether the constitutional torts implicated here constituted a high crime. Such a determination is a criminal matter properly determined by the criminal process. The Court also properly indicated that the “mode for the initiation of criminal proceedings is at the instance of the Attorney-General and not a private person.” Thus, a final implication is that the Attorney-General should evaluate the Speaker’s torts, the Supreme Court’s emphatic and unequivocal holding and decide whether criminal prosecution is warranted.

17. In conclusion, the Supreme Court’s declaration that the Right Honourable Speaker Doe Adjaho violated both the Constitution and the Presidential Oath of Office raises serious questions about whether the Speaker can remain in office and whether the Attorney-General should initiate criminal prosecutions against him. The Speaker, Parliament and the Attorney-General cannot simply ignore the Court’s eloquent opinion and do so at the risk of undermining the Supreme Court and the Constitution. An even obvious and honourable path is for the Rt. Hon. Speaker to resign his office and publicly apologize for violating the Presidential oath of office.

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