When a matter goes to the court, the court still has jurisdiction to enquire into the issues and to determine whether or not indeed they had jurisdiction in order to go in to determine the merit or summarily dismiss the action, A Law lecturer at the University of Professional Studies, Accra (UPSA) Law School Justice Abdulai.
This is what is presently happening regarding the injunction application against the anti-LGBTQI Bill.
He explained that the merit of the Bill has not been questioned or determined yet because of the application for an injunction.
Justice Abdulai said this on the News 360 on TV3 on Wednesday, July 3 while reacting to the concerns raised by the Speaker of Parliament Alban Bagbain against the rate with which lawsuits including the injunction applications against the anti-LGBTQI Bill, are filed against the decisions of Parliament.
Abdulai also stated that it is quite difficult for us at this moment to predict whether the Supreme Court will dismiss the matter summarily.
The Speaker of Parliament after asking lawmakers to come together to resist the trend where lawsuits are filed against bills approved by the House but are yet to be assented to by the President, further indicated that he is being served with writs as a party on matters that are being considered by the House on a daily basis.
He says if this trend is not halted, the work of the Members of Parliament will be of no consequence.
To him, there is no business for anybody including a court to consider a bill that is yet to be assented to by the President.
Speaking in Parliament on Wednesday, July 3, Mr. Bagbin indicated that ” When it comes to lawmaking until all the processes in this house are exhausted, there is no business for anybody including a court to consider because the Constitution, as the enabling legislation, takes care of all these challenges. Until it is a law, it is assented to by the President judiciary has no jurisdiction to try to find into it.
“This is noteworthy, we have to take this seriously or else our legislative authority is being taken away from us by other agencies and arms of government, that should be resisted by this house, or else your being here is of no consequence.
“The law is very clear on this and so until a bill is assented to by the president nobody has any business to take that process that is being considered by the House to the court, I don’t want to preempt the judgment of the Supreme Court in this matter but I have given notice because on daily basis I am being served with writs as party on matters that are being considered by the House, that is why I am compelled to say this.”
His comments come at a time when the Supreme Court has scheduled July 17, 2024, to rule on Dr. Amanda Odoi’s application for an interlocutory injunction against the transmission of the anti-gay bill to the presidency by Parliament.
On the same day, the court will also address an application filed by media personality and lawyer Richard Dela Sky.
This announcement followed arguments from the plaintiffs’ lawyers, the Attorney- General, Godfred Yeboah Dame, and Thaddeus Sory, counsel for the Speaker of Parliament.
Delivering the closing remarks after today’s hearing, the 5-member panel, chaired by Chief Justice Gertrude Torkornoo, emphasized that the court will issue separate rulings for the two cases. The panel includes Justice Mariama Owusu, Justice Prof. Henrietta Mensa-Bonsu, Justice Ernest Gaewu, and Justice Yaw Darko Asare.
Asked whether he is surprised with the comments of the Speaker, Justice Abdauli said “I am not surprised particularly because of the tension between this current legislature and the executive. These tensions were expected right from January 7, 2021, we were expecting these kinds of tensions to happen and I believe they will continue going forward considering the entire circumstances in which we find ourselves. Of course, until we have a new legislature and indeed a new executive, you will probably may not be able to predict what could happen next. So let us brace ourselves for more of these tensions.”
Asked again how the executive and the legislature can resolve their issues going forward, he answered “The constitution, as the speaker says, has been quite clear on some of these matters but the clarity notwithstanding that the decisions of parliament are questionable in the court and this is clearly affirmed by the case of Justice Abdulai and the Attorney General and several other cases before them.
“Our constitutional jurisprudence is clear that parliament’s procedures and its internal mechanisms are closed doors to any other organ of the state, in other words, the kind of activities that go on in the House of Parliament, nobody can question it, nobody has the right to open it up for discussion. But the end product of what parliament does can indeed be questioned which is why the speaker is saying in view of the fact that the Bill has not matured into becoming an Act of parliament it cannot be questioned by the Supreme Court or any other organ of the state, the executive inclusive.
“Unfortunately, when a matter goes to the court notwithstanding all these clear areas, the court still has jurisdiction to enquire into the issues and to determine whether or not indeed they had jurisdiction in order to go in to determine the merit or summarily dismiss the action. This is what is presently happening but unfortunately, this matter has been superseded by the application for an injunction and so the merit has not been questioned yet, the merit has not been determined yet because of the application for an injunction.
“When it comes to injunction applications against an organ of the state, predictably it is very difficult to get it sustained by any court, it is not that simple to get the Executive or the legislature to freeze its activities simply on the basis of some conduct that one person considered wrongful or otherwise. It is quite difficult for us at this moment to predict whether the Supreme Court will dismiss the matter summarily but it is also difficult to also think of the possibility of the Supreme Court injuncting parliament not to undertake its lawful activities constitutionally. So we have to wait and see the kind of decision that will come and the reasoning that will come out on the 17th of July. I think it will be helpful for all of us to educate ourselves on our constitutional framework going forward from 17th July.”
Background
There are currently two lawsuits before the Supreme Court challenging the passage of the anti-LGBTQ+ bill passed by Parliament.
Richard Dela Sky is challenging the constitutionality of Parliament’s passage of the “Human Sexual Rights and Family Values Bill.”
He argues that the bill violates several provisions of the 1992 Constitution, including Article 33(5) and Articles 12(1) and (2), 15(1), 17(1) and (2), 18(2), and 21(1)(a)(b)(d) and (e).
Sky is seeking eight reliefs, including an order declaring that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution by allowing Parliament to pass the bill, which imposes a charge on the Consolidated Fund or other public funds of Ghana.
Dr. Amanda Odoi has raised concerns about specific provisions within the Human Sexual Rights and Family Values Bill.
She is seeking a restraining order to prevent the Speaker, the Attorney-General, and the Clerk of Parliament from sending the bill to President Akufo-Addo for approval.