The ongoing impasse between the Ghana Police Service and the Member of Parliament (MP) for Madina Constituency, Mr. Francis Xavier-Sosu, supported by the Speaker of Parliament, over unsuccessful attempts by the Police to invite the MP to assist with investigations relating to a demonstration he is said to have led raises a key constitutional question about the appropriate procedure for serving a criminal process on or arresting an MP.
In his refusal to attend to the Police invitation, Mr.
Xavier-Sosu invoked parliamentary privilege. In a press release issued on behalf
of the Speaker by the Deputy Clerk of Parliament on November 3, 2021, the Speaker
rightly acknowledged that MPs are not above the law and that the immunity from
civil and criminal processes granted MPs are limited to the performance of
parliamentary proceedings. However, he argues that the Police require his
clearance in order to execute criminal processes against MPs while Parliament
is in session.
‘The appropriate procedure is to
secure from the Speaker a certificate that the Member in question is not
attending to Parliamentary Business. Anything short of this should not be
entertained by the House’,
the press release noted.
The Ghana Police Service has now filed criminal
summons against Mr. Sosu for ‘unlawfully blocking a public road and the destruction
of public property’ following the demonstration which took place on Sunday,
October 31, 2021.
Given the cyclical controversy relating to the
qualified immunity of MPs under the 1992 Constitution (‘Constitution’) and the likelihood
that this matter may degenerate into unhealthy partisan bickering, it is
important to shed some light on the scope of the qualified immunity of MPs for
the purposes of public education.
First, the rule of law—one of the cardinal principles
of our constitutional democracy—dictates that all persons, irrespective of
their social standing, must be treated equally before the law [Article 17(1)].
Despite this principle, the Constitution grants certain categories of public
officials limited immunity from civil and criminal processes while in office for
good reason. The President, in whom all executive authority of the State is
vested, is the only public officer granted absolute immunity from civil and
criminal processes while in office [(Article 57 (4)]. This is to enable the
President perform the duties of his/her high office without any distractions
occasioned by civil and criminal processes. Unlike the absolute immunity
granted the President, members of the judicial and legislative arms of
government are granted limited immunity from civil or criminal proceedings insofar
as such processes relate to judicial and parliamentary proceedings.
In the case of MPs, the qualified immunity accorded them by the
Constitution is only applicable so long as MPs are involved in parliamentary
proceedings [Articles 117 and 118]. To facilitate the official (not personal)
work of MPs, the Constitution provides that ‘civil or criminal process coming
from any court or place out of Parliament shall not be served on, or executed
in relation to, the Speaker or member or the clerk to Parliament while
he is ON HIS WAY TO, ATTENDING AT OR RETURNING FROM, ANY PROCEEDINGS OF PARLIAMENT’
(Article 117) [Emphasis added]. To limit obstructions to their official duties
(parliamentary proceedings), the Constitution further provides that MPs ‘shall
not be compelled, while attending Parliament to appear as a witness in any court or
place out of Parliament’ (Article 118) [Emphasis added].
The qualified immunity
accorded MPs can, therefore, be invoked ONLY under three (3) circumstances:
(i)
Where an MP is ‘on his way to’ (attending) parliamentary
proceedings;
(ii)
‘Attending’ parliamentary proceedings; and
(iii)
‘Returning from’ parliamentary proceedings.
Obviously, an MP cannot be
deemed to be performing any of the above-mentioned parliamentary related
activities when he is engaged in an unofficial or private activity to warrant
the invocation of parliamentary privilege as contemplated by the Constitution.
Under such unofficial circumstances, the Police need not seek the prior consent
or clearance from the Speaker of Parliament to effect the arrest of an MP or
serve a criminal process on him/her.
Second, to fully appreciate
the meaning of the relevant constitutional provisions, it is useful to deduce
the intention of the framers of the Constitution. The intention of the framers
of the Constitution for the above-mentioned provisions—which were originally
introduced in the 1969 Constitution—could be deduced from the Proposals of the
Constitutional Commission for a Constitution of Ghana, 1968 (‘the 1968
proposals’). The Commission noted as follows:
428. Parliamentary immunities are intended to protect Parliamentarians
against the possibility of legal actions being brought against them by either
the government or by private citizens for
anything they may have done IN THE PERFORMANCE OF THEIR PARLIAMENTARY DUTIES.
429. The history of parliamentary privileges and
immunities goes back to the days when the people's representatives were faced
with powerful governments which did not spare any efforts to intimidate and
harrass them. These days when Parliament has no real cause to fear Executive
interference, these privileges and immunities are less justifiable. Nevertheless,
they still retain their essential raison d'etre because they are not considered
simply as favours granted to Parliamentarians in their personal capacity, but
rather as rules designed to secure the complete independence of Parliament.
433. Further, in order to ensure that Members of
Parliament are not prevented from participating in the work of the House, they should be granted immunity from arrest
and detention while they are travelling to and from Parliament or while they
are attending Parliament. THIS
IMMUNITY HOWEVER SHOULD NOT BE MADE TO COVER SERIOUS OFFENCES SUCH AS TREASON,
SEDITION AND FELONY, NOR APPLY TO OFFENCES in flagrante delicto [to wit, in the
very act of committing an offence]'
[Emphasis added]
Considering the
above-mentioned 1968 proposals and the Constitution, it is sound to reason that
parliamentary privilege is meant to facilitate the performance of the official
work of MPs. It is personal to an MP
ONLY insofar as that MP is on or about the business of Parliament. MPs cannot
invoke their limited parliamentary immunity when they are engaged in non-parliamentary
work and not travelling to Parliament, attending parliamentary proceedings or returning
from Parliament, in order to evade court summons, arrest warrants, search
warrants, etc. executed in accordance with police powers granted by the
Constitution, the Criminal Procedure Act, 1960 (Act 30) and other relevant law.
The Speaker’s suggestion that the Police ought to seek his clearance before inviting,
searching or executing the arrest of an MP while Parliament is in session would
make a mockery of the rule of law.
Third, this reasoning is
consistent with best parliamentary practice in democracies around the world.
For instance, the UK Parliament’s rules and procedure provide that MPs are protected
by privilege only when they are engaged in proceedings in Parliament. UK MPs
have no special protection for anything they do outside those proceedings. The
rules highlight the fact that not everything that happens in Parliament is a ‘proceeding’.
This means that the protections of privilege do not apply to some things done
by MPs. For example, they do not apply to correspondence with constituents or
ministers, social media activities, statements to the press whether on or off
the parliamentary premises, and political party meetings. The boundaries of ‘proceedings’
have been interpreted to the effect that MPs have no immunity from the criminal
law. In Canada, the procedure and practice of the House of Commons is that the Speaker, in making a ruling on whether
or not to invoke parliamentary immunity, must differentiate between actions
which directly affect MPs in the performance of their duties, and actions which
affect MPs but do not directly relate to the performance of their functions. For
example, if an MP is summoned to court for a traffic violation or his tax
return is subject to investigations, the MP could be said to be hampered in the
performance of his or her duties at first glance because the MP may have to
defend himself or herself in court instead of attending to House or committee
duties. However, in these cases, the action brought against an MP is not
initiated as a result of his or her responsibilities as a legislator, but
rather as a result of actions taken by the MP as a private individual. In these
situations, the protection afforded by parliamentary privilege does not and
should not apply.
Conclusion
Considering the intention
of the framers of our Constitution in granting MPs limited immunity in respect
of their official duties, the ongoing impasse between the Speaker and the Ghana
Police Service is needless. Given that the matter is now before the courts, it
would be useful for the leadership of these two important state institutions to
formally sit and agree on the appropriate procedure to follow in enforcing the
criminal law with respect to MPs, given due consideration to best practice
around the world and the principles which underpine constitutional governance
in this country. The majority and minority caucuses of Parliament should also
avoid politicising this important matter which goes to heart of our constitutional
order.
The Supreme Court ought to,
at the earlier opportunity (in an article 2 suit), provide clarity on the
relevant constitutional provisions in a manner which is progressive and
consistent with the principles of rule of law, constitutionalism and best
parliamentary practice around the world.
