When does a “vacancy” legally occur if the validity of the seat is still being litigated under Article 99?

1. Article 99 Places the Determination of Membership in the Courts

Article 99(1) states that the High Court has exclusive jurisdiction to determine whether an MP was validly elected, or the seat has become vacant.

This means that the fact of vacancy is a judicial question, not an administrative one.

The Clerk cannot treat a seat as vacant until the body constitutionally empowered to decide (i.e., the High Court) has made that determination.

2. Pending Litigation Means the Vacancy Has Not Yet “Occurred”

Because Article 99 assigns the determination to the courts, a vacancy cannot be said to have “occurred” where:

• the High Court has not yet ruled, or

• the High Court has ruled but the matter is under appeal (because Article 99(2) provides a right of appeal).

Until the judicial process under Article 99 is complete, the “vacancy” is not yet a constitutional fact.

Therefore, the Clerk has no vacancy to report under Article 112(5).

3. The Duty to Notify the EC Is Triggered Only When the Clerk Becomes Aware of an Actual Vacancy

Article 112(5) ties the seven-day clock to “after becoming aware that the vacancy has occurred.”

The Clerk “becomes aware” of a vacancy only when:

1. The High Court determines that the seat is vacant and

2. Either (i) the appeal period expires with no appeal filed, or (ii) the Court of Appeal affirms the decision.

Before that point, the status of the seat is sub judice, and no constitutional vacancy exists.

4. Preventing Premature Notification Protects Both Parliament and the Electorate

Notifying the EC prematurely—before the judicial determination is final—would:

• create the risk of competing mandates (e.g., two persons claiming the same seat),

• undermine Article 99’s role as the gatekeeper of membership disputes,

• potentially trigger an unlawful by-election.

The Constitution avoids this uncertainty by making the judicial determination a prerequisite for the Clerk’s duty.

5. Timing Safeguards and the Three-Month Rule

Once a valid vacancy is established:

• Clerk must notify within 7 days (Art. 112(5)).

• EC must hold the by-election within 30 days, except in death cases (60 days).

• No by-election may be held within three months of a general election (Art. 112(6)).

These rules presuppose that the existence of the vacancy is uncontested—which is impossible while a court case is active.

Conclusion

When a seat’s validity or vacancy is still being contested in the High Court or on appeal under Article 99, the Clerk of Parliament must not notify the Electoral Commission.

A notification is constitutionally required only after:

1. A judicial determination of vacancy, and

2. The exhaustion or expiry of appeal rights.

Only at that moment can the Clerk “become aware” that a vacancy has occurred within the meaning of Article 112(5).

From Ayawaso West (the Amoo case) through Wulensi (the Nyimakan case), the principle—both on its face and in its consistent application—is that a parliamentary seat is not vacant, and the Clerk of Parliament has no duty to notify the Electoral Commission, until the Article 99 challenge has been judicially determined and all appellate avenues are exhausted. This is the controlling constitutional rule, and it must be followed.

PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.

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