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MPs Ex Gratia Case: Supreme Court Set To Deliver Judgement On 23 November

A seven-member Supreme Court panel presided over by the Chief Justice, Anin Yeboah, has set Wednesday 23 November 2022, as date for judgement in the case seeking interpretation of Article 71 of the 1992 constitution on the payment of Ex Gratia to member of Parliament among others.

Private legal practitioner, Elikplim Agbemava, filed the application at the Supreme Court, challenging the constitutionality of Ex Gratia payments, particularly, to members of Parliament.

Ex Gratia law

Article 71 of the 1992 constitution states that; “The salaries and allowances payable, and the facilities and privileges available, to the Speaker and Deputy Speakers and members of Parliament, the Chief Justice and the other Justices of the Superior Court of Judicature, the Auditor-General, the Chairman and Deputy Chairmen of the Electoral Commission, the Commissioner for Human Rights and Administrative Justice and his Deputies and the District Assemblies Common Fund Administrator, among others;

“Being expenditure charged on the Consolidated Fund, shall be determined by the President on the recommendations of a committee of not more than five persons appointed by the President, acting in accordance with the advice of the Council of State”.

Reliefs sought

The reliefs being sought by Elikplim Agbemava, from the Supreme Court are; first, “a declaration that on the true and proper interpretation of article 71 of the 1992 Constitution of the Republic of Ghana, and by the combined effect of sections 30 and 31 of the National Pensions Act, 2008 as amended, members of Parliament and other office holders mentioned in article 71 of the Constitution are exempted and are not obliged by law to contribute to tier 1 basic national social security scheme operated by the Social Security and National Insurance Trust”.

Second, “a declaration that on a true and proper interpretation of article 71 of the Constitution, 1992 and by the combined effect of section 30 and 31 of the national Pensions Act, 2008 as amended, any contribution by Members of Parliament and other public office holders mentioned in article 71 to the Tier 1 basic national social security scheme operated and managed by the Social Security and national Insurance Trust is contrary to the National Pensions Act, 2008 as amended and article 71 of the 1992 Constitution and therefore unconstitutional”.

Third, “a declaration that on a true and proper interpretation of articles 98 (1), 114, 95 (6), 44 (2) and (3),155 (1), 68 (4), 194 (5), 187 (14), 199, 203 (3) (0), 208 (9) (), 223 (1), 235 (1) and 71 of the 1992 Constitution, the approval by the President (on recommendation of the Committee set up under article 71 of the Constitution) of the payment and receipt, every 4 years, by members of Parliament ( who are still serving or continue or intend to continue in Parliament for more than one 4 year term) of gratuity in the form of “Ex Gratia” and Pension is indefensible, excessive, unconscionable and inconsistent with the real spirit and intendment of the 1992 Constitution and therefore unconstitutional”.

Fourth, “a declaration that on a true and proper interpretation of articles 98 (1), 95 (6), 44 (2) and (3),155 (1), 68 (4), 194 (5), 187 (14), 199, 203 (3) (c), 208 (3) (©), 223 (1), 235 (1) and 71 of the 1992 Constitution, gratuity and Pension is payable under the 1992 Constitution after and full and final retirement of a public servant from public service and not intermittently while he /she is still in public service”.

Fifth, “a declaration that on a true and proper interpretation of articles 17, 98 (1) and 71 of the 1992 Constitution, the approval by the President (on recommendation of the Committee set up under article 71) for the enjoyment of retiring benefits or awards by members of Parliament on the basis of a model that DOES NOT oblige Members of Parliament to contribute to any Pension Insurance Scheme, during their years of service in Parliament before drawing on public funds for the payment of their pension is discriminatory against all other public sector workers or employees in Ghana, unfair, unconscionable and contrary to article 17 of the Constitution and therefore unconstitutional”.

Sixth, “a declaration that section 6 of the Presidential Office Act, 1993 (Act 463) that provides that presidential staffers (whose Offices are not mentioned in article 71 of the 1992 Constitution) shall be entitled to such salaries, allowances, facilities and privileges as shall be determined under article &! of the constitution, is inconsistent with article 71 and therefore unconstitutional”.

Seventh, “a declaration that on a true and proper interpretation of section 20 (6) of the Local Governance Act, 2016 (Act 936) that provides that the emoluments of a District Chief Executive shall be charged on the Consolidated Fund and shall be determined by Parliament in accordance with article 71 of the Constitution is inconsistent with article 71 of the 1992 Constitution and therefore unconstitutional”.

Issues set down

Flowing from the reliefs sought by the applicant, the parties (The Attorney General and the applicant) agreed on 6 issues which have been set-down for determination by the Supreme Court.

They are; one, “whether on a true and proper interpretation of article 71 of the 1992 Constitution and sections 30 and 31 of the National Pensions Act, 2008 as amended, members of parliament and other office holders mentioned in article 71 of the constitution can contribute to the Tier 1 basic national social security scheme operated by the Social Security and National Insurance Trust (SSNIT)?”

Two, “whether on a true and proper interpretation of Articles 98(1), 114, 95(6), 44(2) and (3), 155(1), 68(4), 194(5), 187(14), 199, 203 (3)(c), 208(3) (c) 223(1), 235(1) and 71 of the 1992 Constitution the practice by the Ministry of Finance of paying gratuity or ex gratia every 4 years to persons who have not yet ceased to be members of parliament is contrary to article 114 of the 1992 constitution and therefore unconstitutional?”

Three, “whether on a true and proper interpretation of Articles 98(1), 95(6), 44(2) and (3), 155(1), 68(4), 194(5), 187(14), 199, 203(3)(c), 223(1), 235(1) and 71 of the 1992 constitution, gratuity, ex gratia or pension is payable only after a full and final retirement of a public officer/ servant from public service or intermittently while he/she continues to serve as a public officer?”

Four, “whether on a true and proper interpretation of Article 17, 98(1) and 71 of the 1992 constitution the practice of paying pension or retiring benefits to members of parliament without any contribution from such members to any pension insurance scheme is discriminatory against all other public servants, contrary to article 17 of the 1992 constitution and therefore unconstitutional?”

Five, “whether section 6 of the Presidential Office Act, 1993 (Act 463) that provides that presidential staffers shall be entitled to such salaries, allowances, facilities and privileges as shall be determined under article 71 of the 1992 constitution is inconsistent with article 71 and therefore unconstitutional?”

Lastly, “whether section 20(6) of the Local Governance Act, 2016 (Act 936) that provides that the emoluments of a District Chief Executive shall be charged on the consolidated fund and shall be determined by parliament in accordance with article 71 of the 1992 constitution is inconsistent with article 71 of the 1992 constitution and therefore unconstitutional?”

#Ahenkanfmonline.com / 93.3 FM

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