The Attorney-General (AG) and the Minister of Justice has told the Supreme Court that, “the quorum requirement as provided in Article 104(1) of the 1992 Constitution of Ghana was satisfied” when the Electronic Transaction Levy (E-Levy) was passed.
The AG also argued that all Minority Members of Parliament were present in the Chamber of Parliament when the bill was passed into law.
Three National Democratic Congress Members of Parliament led by Haruna Iddrisu, the Minority Leader, filed a suit at the Supreme Court challenging the constitutionality of the passage of the E-Levy.
However, the AG in its statement of case filed at the Supreme on May 30, responding to the suit, asserted that, “there has been no breach of Article 104(1) of the 1992 Constitution of Ghana.”
It said, “All the members of the minority recorded as having attended proceedings of Parliament on that day, were present in the Chamber of Parliament when the approval of the policy of a new tax – the E-Levy was conducted.
“There is nothing before the Court indicating the contrary,” the AG stated.
Below is AG’s position on the facts:
In essence, the Defendant asserts that there has been no breach of Article 104(1) of the 1992 Constitution of Ghana.
Furthermore, Defendant denies that processes leading to the passage of the E-levy Bill on 29th March 2022 and the subsequent act of the President of the Republic of Ghana in giving assent to same were tainted by illegality or unconstitutionality.
Defendant says that at the time the votes were taken at relevant stages of the passage of the E-levy Bill, the quorum requirement as provided in Article 104(1) of the 1992 Constitution of Ghana was satisfied.
The official record of the Thirty-Seventh sitting of the First meeting of the Eighth Parliament held on Tuesday, 29th March, 2022 (the “Votes and Proceedings”), shows that the E-levy Bill was taken through the various constitutionally stipulated procedure in article 106 of the Constitution and that, at least one-half of all validly elected members of Parliament were present in Parliament when the question whether to approve the policy of the E-levy Bill was put after the second reading of the Bill, before same was subsequently passed into law.
Attached to the affidavit in verification and marked as Exhibit “AG1” is a copy of the Votes and Proceedings for Tuesday, 29th March 2022.
Respectfully, the defendant says that the question of whether to approve the policy of the E-levy Bill (taken at the second reading of the Bill) is most important, as that question is what decides whether the E-levy as a statutory policy in the Republic of Ghana will come into being or not.
Approval of same implies that E-Levy as a new tax regime or policy for the State, has come into existence and Parliament may then proceed to examine the specific clauses in the new law.
All the members of the minority recorded as having attended proceedings of Parliament on that day, were present in the Chamber of Parliament when the approval of the policy of a new tax – the E-Levy was conducted. There is nothing before the Court indicating the contrary.
Exhibit AG 1 further shows the question of whether to approve.
Electronic Transfer Levy Bill was put and the motion consequently agreed.
22.ExhibitAG 1 further shows that the question whether to approve the Electronic Transfer Levy Bill was put and the motion consequently agreed to by the entire House.
There is no indication of a headcount or a call for “division” to determine who were “for” or “against” the motion. As recorded on Exhibit AG 1, the motion was agreed to, and it was by a voice vote.
3. Significantly, there is no indication from the Votes and Proceedings of Parliament for 29th March 2022 that, a walkout was recorded, and if a walkout was recorded, how many members of the minority walked out and at what stage they walk out.
On the contrary, the defendant’s contention that the question of whether to approve the E-Levy or not was put by the Rt. Hon Speaker of Parliament at a time that the members of the minority were present in the Chamber, is confirmed by the Hansard of 29th March 2022, which confirms the specific contributions by each member of Parliament who spoke on that day. Attached to the affidavit in verification and marked as “Exhibit AG 2” is a copy of the Hansard for 29th March, 2022.
4. The defendant further says that the E-Levy Bill was duly passed by Parliament in accordance with article 104(1) after the third reading. At least 137 members of Parliament, who constituted the constitutionally prescribed one-half of members of Parliament were present when same was passed.
There is nothing before the Court to show a violation of the Constitution or any of the known rules of procedure of Parliament prescribed for the passage of legislation.
5. The Defendant relies on the facts as properly recounted above to resolve any legal issue(s) arising from this suit.
Reliefs being sought
The Plaintiffs per their Writ invoke the original jurisdiction of the Supreme Court for the following reliefs:
a. A declaration that on the authority of the Supreme Court case of Justice Abdulai v Attorney-General, Writ Np. J1/07/2022 (hereinafter referred to simply as Abdulai v Attorney General) dated 9th March, 22022, the Transfer Bill, 2021 is in contravention of Article 104(1), and therefore null, void and of no effect whatsoever.
b. A declaration that in accordance with Article 104(1) of the 1992 Constitution of Ghana and on the authority of Abdulai v Attorney General, on the 29th day of March 2022, when the Rt. Hon. Speaker of Parliament put the question to the house for the Third Reading of the Electronic Transfer Levy Bill, 2021, Parliament lacked the required quorum to pass the said Electronic Transfer Bill, 2021;
c. A further declaration that on account of relief (f) above the purported Third reading and subsequent passage of the Electronic Transfer Levy Bill, 2021 is in contravention of Article 104(10 of the Constitution, and is therefore null void and of no effect.
d. An order of the Honourable Court setting aside the purported passage of the Electronic Transfer Levy Bill, 2021, by the 136 Members of Parliament of the Majority Caucus present in the Chamber of Parliament on the 29th March 2022 as being unconstitutional, null and void;
e. Any other relief and/or order(s) the Honourable Court may deem fit.
