GIMPA law lecturer and legal practitioner, Clara Kasser-Tee, has offered an interesting perspective on the events in Parliament on Tuesday, surmising that the revised 2022 budget would not have been approved had the Minority MPs stayed to vote on a motion to approve the economic policy document.
According to the Founder and Head of Chambers of Kasser Law Firm, in Ghana’s Parliament, where the votes on any motion are equal it shall be taken to be lost.
“So where for example 137 vote for the motion and 137 vote against the motion, what it means is that the motion has been rejected - the Majority would have lost…if you have at least 138 members in parliament, they would have met the quorum requirement.
“If it happens to be a Deputy Speaker presiding, (and this Deputy speaker is an MP), the presence of the deputy speaker will fulfil the quorum requirement, (because he is an MP and therefore part of the ‘all members of Parliament). But here is the thing, that Deputy Speaker presiding will have no vote,” she argued in a Facebook post shortly after the controversial budget was pushed through by a determined Majority on Tuesday, November 30, 2021.
Many Ghanaians were optimistic that the current hung 8th Parliament – made up of 137 opposition National Democratic Congress (NDC) MPs, 137 MPs of the governing New Patriotic Party (NPP), and one independent MP who has opted to do business with the governing NPP MPs – would reject the contentious budget that analysts believe is laden with too many taxes, key among them the E-levy on mobile money transactions.
However, a one-sided Parliament approved the widely criticised budget statement presented to Parliament by Minister for Finance, Ken Ofori-Atta, on November 17, 2021, in the absence of Minority MPs who declined to participate in the voting process.
READ ALSO: 2022 budget: Allegations of bias against Speaker unfounded - Parliamentary Service
While the Minority stayed out, the Finance Minister re-submitted a revised version of his budget and got the unanimous approval of all 138 Majority MPs, including that of Deputy Speaker and Majority MP for Bekwai, who was presiding as Speaker in the absence of Alban Bagbin.
The events in Parliament on Tuesday nullified a previous rejection of the initial budget statement on Friday, November 26, 2021 – also by a one-sided Parliament of Minority MPs.
Commenting on the matter, Mrs Kasser-Tee stated that if the Minority MPs had stayed and voted, they could still have won if they had all 137 MPs in the chamber.
“If Minority stays away from voting, and 137 vote ‘yes’, they would have won, as it would be 137 to 0. That is holding all things constant. But to be fair to the Minority, you never really know what the other plans were.... so, we cannot prejudge…let's see how things unfold in the coming days,” she said.
Read her full informed analysis below.
Voting on matters - Re article 104 of the 1992 Constitution
Voting usually contains two (2) components:
- (i) Quorum, and
- (ii) required majority for the vote
So there are rules for quorum and rules for voting on a matter.
With respect to article 104 of the Constitution which deals with voting in parliament, (relevant to the issues on the budget), these requirements are:
- On quorum – at least half of all the members of Parliament present. So work out the math here of half of the 275.
- On required majority for the vote – the votes of the majority of members present and voting, (i.e if only at least half is present, then the majority of this half that is present and voting).
Note that the speaker cannot vote, and, the Deputy speaker when he is presiding also cannot vote.
- Where the votes on any motion are equal it shall be taken to be lost. So where for example 137 vote for the motion and 137 vote against the motion, what it means is that the motion has been rejected - the Majority would have lost.
So if you have at least 138 members in parliament, they would have met the quorum requirement. If it happens to be a Deputy Speaker presiding, (and this Deputy speaker is an MP), the presence of the deputy speaker will fulfil the quorum requirement, (because he is an MP and therefore part of the “all members of parliament”). But here is the thing, that Deputy Speaker presiding will have no vote.
In Ghana’s current parliament, if the Deputy speaker is presiding, and both Majority and Minority have been able to have all of their MPs present, and, all sides stick to their positions on votes, what it means is that you will have 137 for and 137 against. This means the motion would be lost, (i.e the Majority fails in their recission vote). However, if the Minority leaves before the vote, and all 137 members of majority vote, the vote will be: 137 yes, and 0 no. The vote is carried.
There is the argument that the Standing Orders of Parliament allows a Deputy Speaker to have a casting vote. I am however not persuaded that any such order is consistent with article 104 (on both the expressio unis rule and the eusdem generis rules, I.e ). As we are aware, the standing orders cannot amend article 104. And, from the copy of the Standing Orders that I hold right now, there is nothing in order 108 that gives a casting vote to a Deputy Speaker.
Strategy:
- If one side realises that its numbers cannot win a vote, but that its absence will affect quorum for the vote, the natural strategy will be to “stay away” if they don’t want to lose the vote until such a time that they can get the numbers, (unless of course there would be something to lose for this. Running away to fight another day is also a strategy).
- If your absence will not affect a quorum, but your presence and voting will affect the outcome, but you decide to “stay away”, well it is your choice, but what it means is that the vote will go on without you and you most likely will lose the vote.
Conclusion: from the way I see it, if Minority had stayed and voted, they could still have won if they had the 137, (for the reason that the Majority would have also had 137 since the Deputy Speaker (who is the 138th person) would have been presiding, and equality of votes means the Majority loses. However, if Minority stays away from voting, and 137 vote, yes, they would have won, as it would be 137 to 0. That is holding all things constant. But to be fair to the Minority, you never really know what the other plans were.... so we cannot prejudge. So let's see how things unfold in the coming days.
What do you think?
N/B
NB: Please note that the number 1 rule of interpretation in Ghana is that “words must be given their ordinary meaning unless there is absurdity. And, there is a presumption in interpretation that the drafters intend what they say, and also that the express mention of one thing, excludes others, (i.e referred to in latin as the expression unis rule). When article 104 intended for the Speaker to not have an original or casting vote, it said so. If it intended for the presence of a Deputy Speaker, (who is an MP) not to count towards quorum, it would say have said so.