Unpacking the LGBTQ+ Bill: Executive –Legislature Tensions and the President’s Love Letter

1.0 Introduction
Billaw……...last two weeks, we met and sat on top of the Billaw Mountains and gossiped about the passage of the LGBTQ+ Billby parliament. First, we applauded parliament for passing the bill after it went through the mill of rigorous intellectual debate among members of both sides of the House. Again, we acknowledged the insightful and invaluable contributions from civil society organizations and the various religious groups.

Further, we highlighted the position of the proponents of the bill to the effect that LGBTQ+ practices in general are culturally unknown to Ghana, besides the verifiable health-related issues associated with the practice. We submitted further that the lead opponents of the bill argued that it was discriminatory against their adherents and a flagrant breach of the nation’s solemn vow to abide by the rules of international treaties that we have subscribed to. On the whole, we rounded up our discussions to the effect that the role of the president in assenting to bills passed by parliament is two-fold, and both are mandatory and not voluntary.

2.0 The President’s Love Letter
While at it, on March 18, 2024, the executive secretary to the president wrote a letter to parliament and directed the clerk to parliament to “cease and desist from transmitting the bill to the president” for his assent. The secretary to the president canvassed two main grounds, as contained in the “President’s Love Letter” to parliament, instructing the clerk to parliament to “cease and desist” from transmitting the bill to the president to signify his assent or otherwise. These are:

a. That there are two pending applications for interlocutory injunction filed at the Supreme Court purportedly praying for an order to restrain the clerk and parliament from transmitting the bill to the president for his assent and also restraining the president from signifying his assent or otherwise. See ( Dr Amando Odoi V The Speaker of Parliament and the Attorney-General and Richard Sky V Parliament of Ghana and the Attorney General)

b. That the Attorney-General has by a letter dated 18th March, 2024 informed the president that he has been duly served with the two interlocutory applications stated supra and inexercise of his constitutional duty as the Legal Advisor to the government pursuant to article 88 of the constitution, 1992 has advised the president not to take any action in relation to the Bill pending the final determination of the suits by the Supreme Court. (in the spirit of upholding the rule of law)

3.0 Speaker’s Reaction
Unfortunately, the legislative arm of government did not receive the “President’s Love Letter” with a romantic caress and smile. Even before Parliament could officially react to the letter, many people have expressed their utter disappointment with regard to the manner in which the executive is handling the bill, having participated in all the processes leading to its passage and now awaiting the blessings of the president’s assent to give the bill the teeth to bite.

Further, the content and diction of the letter were also condemned by many as being too commanding and condescending to the clerk and an affront to Parliament−representative of the sovereign will of the people.Thus, that the executive secretary to the president is unknown to parliament and that he is bereft with the authority and capacity, inherent or statutory to write “such a condescending letter” to the clerk of parliament, instructing him to “cease and desist” from performing a mandatory statutory duty imposed on him pursuant to section 5(3) of the Interpretation Act, 2009 (ACT 792).

Fast forward, on March 20, 2024, the speaker of parliament stormed into the chamber, his face a mask of fury. Anger burned in his eyes as he took his seat, his every movement radiating power and authority. His jaw clenched, his brows furrowed, and his voice boomed with indignation as he addressed the letter from the president. The tension in the chamber was palpable, as the speaker's demeanor made it clear that he would not stand for such interference. The atmosphere crackled with intensity as he demanded answers and respect, his presence commanding attention and respect from all who bore witness to his righteous fury.

Finally, he read out the “President’s Love letter” to membersadmits the dead silence and utter attentiveness in the chamber. To the surprise of many, the Speaker said he was aware of a pending application at the Supreme Court restraining parliament from continuing to vet persons nominated by the president for ministerial positions. Consequently, the House is unable to continue with the nominations of the president in the “spirit of upholding the rule of law” until after the determination of the applications for interlocutory injunctions by the Supreme Court. (Parliament adjourned sine dine)! So, what does that mean? What’s next?

4.0 “Upholding the spirit of the rule of law”

On one hand, the Attorney-General, in a letter addressed to the president and in discharging his constitutional duties as a Legal Advisor to the government pursuant to article 88 of the constitution, 1992 advised him not to assent to the bill pending the determination of the Supreme Court on the applications for interlocutory injunction held supra “in the spirit of upholding the rule of law”. On the other hand, the Speaker in declaring the inability of parliament to continue to consider the nominations of the president until the determination of the applications for interlocutory injunctions by the Supreme Court said parliament is compelled to do so “in the spirit of upholding the rule of law”.

So, who is actually upholding the spirit of the rule of law? Who was speaking grammar and who was speaking law? To admit both are correct is unthinkable. To admit both are wrong may be plausible. But any objective observer, a truly natural mind, would come to the irresistible conclusion that, the current power play or impasse between the Executive and legislature is not about who is right and who is wrong. Perhaps, it has more to do with who has more power; Number 1 or Number 3? Politics! Politics! Politics!

Fortunately, I refuse the invitation and temptation to reduce this all-important subject matter to the power play between Number 1 and Number 3. To do so is to deny readers the substance of the facts as presented and a further decay of intellectual exercise in discussing and analyzing matters of national importance devoid of political coloration and vituperations. So, we deal with the substance only—at best, substance only!

5.0 Issues arising from the facts
a. Whether or not an application for interlocutory injunction yet to be determined by a court of competent jurisdiction in an action is a bar from continuing the action?

b. Whether or not the Clerk to parliament has the capacity to transmit a bill to the president for his assent/erred in law when he transmitted the bill to the president for his assent?

c. Whether or not the Attorney-General is justified when he advised the president not to assent to the bill pending the determination of the applications for interlocutory injunction by the Supreme Court?

d. Whether or not the Speaker of Parliament is justified when he ruled for parliament not to continue to consider the nominations of the president pending the determination of the applications for interlocutory injunction by the Supreme Court?

Now dear reader, sit back and relax, with your cup of coffee at hand, as we take each issue raised above and discussed them in seriatim.

5.1 Issue a
The area of law raised in this issue has to do with application for interlocutory injunctions. For

the uninitiated in basic Civil Procedure, an interlocutory injunction is an order of the court, made to compel or prevent a party from doing certain acts pending the final determination of the case. Thus, an order made at the interim stage during trial and it’s usually issued to maintain the status quo until judgement is made. The court may grant the application if it thinks it right or convenient to do so pursuant to Order 25 rule 1(1) of CI 47. The legal effect is that, the mere application for an interlocutory injunction generally does not act as a bar from continuing an action, until the court hears the application and makes a determination directed at the defendant to stop the action or otherwise.

Applying the facts to the instant case, the applications made for interlocutory injunctions by plaintiff in the instant cases are yet to be heard by the supreme court. So, no determination has been made and same cannot be a bar to the clerk of parliament from transmitting the bill for the president’s assent. Thus, since the court has not made any determination on the merits of the application, the mere application for interlocutory injunction is not a bar to the defendant.

5.2 Issue b
The issue raised here has to do with the capacity of the Clerk to parliament with regard to transmitting of bills to the president for his assent as part of the law-making processes. Article 93 (2) of the constitution vets in parliament the power to make laws for the country. The procedures for making such laws are outlined under article 106 of the constitution, 1992.After the passage of the bill, same is transmitted by the Clerk to parliament pursuant to section 5 (3) of the Interpretation Act, 2009 (ACT 792) and send to the president to signify his assent or otherwise.

Applying the facts to the instant case, as per the letter by the executive secretary to the president dated 18th March, 2024, the Clerk to parliament sent a transmitted bill to the president for his assent. On the facts, the clerk to parliament has the capacity and acted within that capacity when he transmitted the bill to the president for his assent. In so doing, he did not err in law because he was only carrying out a statutory duty imposed on him as held supra. Consequently, the clerk to parliament acted within his capacity and he is justified when he transmitted the bill to the president to signify his assent or otherwise. The letter written by the executive secretary to the president, instructing the clerk to parliament to “cease and desist” from transmitting the bill to the president to signify his assent is without foundation in fact, and same is unknown to the law, respectfully.

5.3 Issue c
The issue raised here has to do with the legal effect of an application for interlocutory injunction and whether or not the advice given by the Attorney-General in relation to same is sound in law. As discussed supra, an application for interlocutory injunction is an order of the court, made to compel or prevent a party from doing certain acts pending the final determination of the case. The supreme court is yet to hear the application and the prayer of the plaintiff may be granted when the Court thinks it’s reasonable and convenient so to do. Until the Court hears the application, it’s not an automatic bar on a party to stop continuing an action already set in motion. Thegeneral practice where a party stops an action because an interlocutory injunction has been filed at the court is only in reverence to the court, and not one backed by law.

Applying the facts to the instant action, the Attorney General in a letter advised the president not to assent to the bill because he has been duly served with an application for interlocutory injunction in relation to the matter pending the final determination by the Supreme Court. But the duty to assent to bills is not a choice that the president should make. The duty to assent to bills is a command from the constitution pursuant to article 106 (7) of the constitution. The president only has the option to explain in a memo why he cannot assent to it or what he thinks ought to have been included in the bill but was left out. A mere application for interlocutory injunction yet to be heard by the court is not a bar to an action. Consequently, the advice was not grounded on law and same is legally defective, nothing more besides, respectfully.

5.4 Issue d
The issue raised here deals with the action taken by the Speaker and parliament in general not to continue to consider the nominations of the president because he has received an injunction seeking to restrain the Speaker from proceeding with the vetting and subsequent approval of persons nominated by the president for ministerial positions.

Under our current political structure, it’s the duty of the president to nominate persons for ministerial positions pursuant to article 78 (1) subject to the prior approval of parliament. It’s therefore a constitutional duty imposed on parliament to vet and either approve or reject the nominees. The performance of this constitutional duty cannot be swept under the carpet merely because an application for injunction has been served on the Speaker, which application is even yet to be heard by the court.

Thus, the Speaker’s directive that parliament is unable to continue with the approval of the president’s nominees is without any legal foundation in fact. Fact is, a mere application for injunction yet to be heard by the court cannot outdo a constitutional provision commanding parliament to carry out a duty.

6.0 Conclusion
As intimated above, any objective observer, a truly natural mind, would come to the irresistible conclusion that, the current power play or impasse between the Executive and legislature has nothing to do with “the spirit of upholding the rule of law”.Ironically and by the same token, both have violated provisions of the constitution, the highest law of the land with reckless distain and braggadocio. Thus, as if to say, “they are the law and the law is them”.

Undermining the constitution by these two organs of state set a dangerous precent that the highest authorities are above the law, leading to unchecked power and potential abuse of authority. The consequences of such actions can result in civil unrest, political instability and a breakdown of the social fabric. It jeopardizes the rights and freedoms of the people, threatens the concept of separation of powers and damages the credibility of the entire political system. Well, this is Ghana, the only history we have learned is that, we learn no history at all.

Good woman, the calabash is empty. Until something new comes up again in relation to the subject matter, I am back to the top of the Billaw Mountains to enjoy my solitude.

Amandra! Awanku! Toyitoyi! Toyitoyi! Toyitoyi! Toyitoyi…………………………..

#Pax Vobiscum!
#We write to right the wrongs of society
Bassing. A.M.A. Kamal
Billaw, Lambussie District
Upper West Region
([email protected])