Doe Adjaho broke law on 'acting president' oath – Supreme Court
The Supreme Court, in a unanimous decision, yesterday declared that the Speaker of Parliament, Mr Edward Doe Adjaho, violated Article 60 (11)-(12) of the 1992 Constitution when he declined to be sworn in to act as President when President John Dramani Mahama and Vice-President Kwesi Bekoe Amissah-Arthur travelled outside the country in November 2014.
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The nine-member panel, presided over by Mrs Justice Sophia Akuffo, also averred that the “Speaker of Parliament shall always, before assuming the functions of the Office of President when the President and the Vice-President are unable to perform their functions, take and subscribe to the oath set out in relation to the Office of President”.
“The Speaker is obliged to swear the oath each time he assumes the Office of the President. There is no ambiguity in articles 60 (11) and 60 (12),” Mr Justice Sulley Gbadegbe, who read the court’s decision, said.
Other members of the panel were Mr Justice Julius Ansah, Mr Justice Jones Dotse, Mr Justice Anthony Alfred Benin, Justice Sophia Adinyira, Mr Justice Kwasi Annin Yeboah, Mrs Justice Vida Akoto-Bamfo and Mr Justice Joseph Bawa Akamba.
The court, however, dismissed the relief sought by the plaintiff for a declaration that by refusing to take the presidential oath, the Speaker of Parliament had committed a high crime.
It struck out the relief on the grounds that it was not properly brought before it.
It also dismissed the joining of Mr Adjaho to the case as a person and not his office as Speaker of Parliament.
The Applicants
The court’s decision followed separate suits filed by the Chief Executive Officer (CEO) of Citi FM, Mr Samuel Atta-Mensah, and a United States-based Ghanaian lawyer, Prof. Kwaku Asare, seeking, among other things, an interpretation of Article 60 (12) of the 1992 Constitution which requires that the Speaker takes the oath of office each time he is to act as President.
What the Constitution says
Article 60 (11)-(12) states: “(11) Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.
“The Speaker shall, before commencing to perform the functions of the President under Clause (11) of this article, take and subscribe to the oath set out in relation to the office of President.”
The court, before giving its ruling, consolidated the two actions before it.
Background
Mr Adjaho had, on two occasions on November 5 and 7, declined to be sworn in to act in the capacity of the President in the absence of both the President and his vice.
The 1992 Constitution prescribes that the Speaker be sworn into office to act as President any time the President and his vice are out of the country.
President Mahama was in Burkina Faso on a mission to resolve the political crisis in that country, while Mr Amissah-Arthur was on a four-day official visit to India.
As a result of their absence, the Chief Justice, Mrs Justice Georgina Wood, was in Parliament to swear in the Speaker.
However, Mr Adjaho explained to the House that he had, in consultation with the Chief Justice, agreed that since he had taken the same oath on October 19, 2013 when the President and his vice were out of the country, there was no need for him to do so again.
The legal debate
The issue generated a legal storm, with legal brains, including those at the Bar and in Parliament, voicing out contrasting opinions.
The Ghana Bar Association (GBA) defended the decision. Its President, Nene Amegatcher, insisted in media interviews that the Speaker was right in declining the offer to be sworn into office to act as President in the absence of the President and his Vice from the country.
He cited Section 3 of the Oaths Act of Ghana which was passed in 1972 which specifically talks about unnecessary repetition of oaths.
That was the same position taken by the Attorney-General (A-G) while defending the case.
The act states: “No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be required again to take that oath on appointment to any other office or on any other occasion.”
The A-G had also argued that the Speaker acted properly, since the framers of the 1992 Constitution did not intend him to subscribe to the Oath of President each time he assumed the functions of President.
The court’s observations
However, in giving its judgement, the court maintained that the absence of the President and his Vice from Ghana triggered the requirements imposed on the Speaker until such time that he was relieved from the responsibility when the President or his Vice returned.
It also stated that with respect to Section 3 of the Oaths Act, the Office of Speaker of Parliament related to the work of the Legislature, which in a narrow sense was not the same as the Office of the President.
The court said subscribing to the Oath of President validated the Speaker’s assumption of Office of the President.
It, therefore, said the Speaker’s refusal to swear the oath constituted an act in contravention of the Constitution.
Close shave with prison
Mr Adjaho escaped jail on technical grounds, as the court dismissed assertions of high crime made by Prof. Asare on the grounds that the relief was not lawfully before it.
According to Article 2(4) of the 1992 Constitution, “failure to obey or carry out the terms of an order or direction made or given under Clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-President, constitute a ground for removal from office under this Constitution”.
Article 2(5) states: “A person convicted of a high crime under Clause (4) of this article shall: (a) be liable to imprisonment not exceeding ten years without the option of a fine; and (b) not be 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.”
Atta-Mensah’s victory walk
After the judgement, Mr Attah-Mensah walked gallantly out of the courtroom, surrounded by his lawyers while taking congratulatory messages from both members of the Bar and the horde of journalists who had covered the case.
When the Deputy A-G, Dr Dominic Ayine, walked down the stairs, he joined others in congratulating the applicants but he could not hide his disappointment at aspects of the ruling.