The vexed issue of immunity granted to Members of Parliament (MPs) not to appear in a court when performing their official functions has ended up at the Supreme Court.
Two individuals have invoked the original jurisdiction of the apex court to interpret the Constitution, with a case that an MP, the Clerk or Speaker of Parliament does not have any immunity if he or she commits an offence “while he is on his way to, attending at or returning from any proceedings of Parliament”.
The plaintiffs — Ms. Hilda Mansuwa Kpentey Dongotey and Mr. Albert Gyamfi, who have sued in their capacity as Ghanaians — are asking the highest court of the land to interpret articles 117 and 118 of the 1992 Constitution, the two constitutional provisions which provide immunity for the Speaker of Parliament, MPs and the Clerk to Parliament.
Counsel for the plaintiffs is Mr. Samson Lardy Anyenini.
The writ is against the backdrop of a standoff between the Ghana Police Service and the National Democratic Congress (NDC) MP for Madina, Mr. Francis Xavier Sosu, who has been charged with unlawfully blocking a public road and destruction of public property during a demonstration by his constituents for better roads.
What does the Constitution say?
Article 117 of the 1992 Constitution stipulates that no court process, either criminal or civil, “shall 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”.
On the other hand, Article 118 (1) states that “neither the Speaker, nor a member, nor the Clerk to Parliament shall be compelled, while attending Parliament, to appear as a witness in any court or place out of Parliament’’, while Article 118 (2) provides that “the Certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament”.
The plaintiffs are seeking a declaration that the Constitution does not protect an MP who commits a crime, whether or not the crime was committed by the MP in his or her line of duty, and, therefore, the police do not need permission from the Speaker of Parliament to arrest such an MP.
Besides, they want a declaration that any act by the Speaker asking the police to seek permission from him before arresting an MP accused of committing an offence is “null, void and of no effect”.
Also, they want a declaration that the constitutional term “attending at or returning from any proceedings of Parliament” stipulated in Article 117 applies only to work in Parliament and not when an MP is engaged in activities in a constituency.
Other reliefs being sought by the plaintiffs are a declaration that upon a true and proper construction of Article 117 of the 1992 Constitution, a Speaker of Parliament, Clerk or MP is not granted immunity from warrantless arrest, restriction or detention while he is on his way to, attending at or returning from proceedings of Parliament; a declaration that upon a true and proper construction of articles 117 and 118 of the Constitution, a court process server does not require a certificate from the Speaker to serve civil or criminal process on an MP while he is engaged in activities in a constituency.
Francis Sosu’s case
Mr. Sosu has failed to show up in court on two occasions, with the excuse that he was on parliamentary duties.
That has been corroborated by a letter to the Kaneshie District Court from the Deputy Clerk to Parliament.
“Pursuant to Article 117 of the 1992 Constitution of the Republic, I am unable to bring the service to the attention of the MP as requested,” the letter, dated November 10, 2021, indicated.
The Speaker of Parliament, Mr. Alban Sumana Kingsford Bagbin, has also damned the police for attempting to arrest the MP without due regard to the law, particularly articles 117 and 118 of the 1992 Constitution.
The stand-off has been exacerbated by Mr. Sosu suing the Ghana Police Service to stop the criminal proceedings against him, arguing that the case against him was a violation of his human rights.
In his affidavit in support of the motion, Mr. Sosu averred that he had not offended the law to warrant his arrest, and that prior to the said demonstration, he had notified the police of the intended protest and agreed with them that the demonstration be held on October 25, 2021.
Mr. Sosu’s case has divided Parliament, with the Majority accusing the Speaker of shielding the MP, while the Minority insists that the Speaker is following the law.
There have been cases of MPs seeking immunity under articles 117 and 118 of the 1992 Constitution, which led to serious public debates.
When the Cape Coast High Court placed an injunction on Mr. James Gyakye Quayson, the NDC MP for Assin-North, until the final determination of a petition challenging his eligibility, the MP went to Parliament to be sworn into office, arguing that the order of the court was not properly served on him as envisaged under the Constitution.
Another case was that of the NDC MP for Bawku Central, Mr. Mahama Ayariga, who was on trial over alleged abuse of office. The case against him has, however, been dropped.
It was a trial that generated a lot of public interest due to the clash between the Judiciary and the Legislature.
On the first day of the hearing, Mr. Ayariga was ordered by the Presiding Judge, Justice Afia Serwah Asare-Botwe, to appear and stand trial, after the court had rejected a certificate by the then Speaker of Parliament, Prof. Aaron Mike Oquaye, informing the court to exempt the MP from the proceedings.
Justice Asare-Botwe was of the view that Article 118 of the 1992 Constitution, which provides immunity for MPs, only protected MPs from being invited to appear before a court as witnesses and not MPs standing trial as accused persons.