Constitutional turbulence - The complexities of serving court processes on parliament

a. Introduction

The controversy erupted like a volcano when the Speaker of Ghana’s Parliament Rt. Hon. Alban Bagbin informed the House of Parliament that, four seats in the house became vacant by the operation of article 97(g) and (h) of the Constitution, 1992.

The Speaker entertained the invitation of the NDC-Minority caucus to declare Amenfi Central, Fomena, Suhum and Agona West Constituencies vacant as their Members of Parliament have cross carpet, a position which was vehemently opposed to by the NPP-Majority caucus.

The bone of contention has to do with the true and proper interpretation of article 97(g) and (h) and whether or not the Speaker had acted contrary to the true meaning of the said constitutional provision. This has attracted commentary from legal practitioners, lecturers, security analysts and the general populace.

However, the supreme court of Ghana under article 2 of the 1992 Constitution is the only institution clothed with the judicial authority to bring finality to the public debate.

More so, the Majority leader has elected to seek interpretation of the said legal instruments at the Supreme Court and has filed a writ against the Attorney General and the Speaker of Parliament to that effect. However, another legal hurdle must be crossed. How do you properly serve the Speaker of Parliament with a court process?

b. Constitutional Provisions

The framers of our constitution are not oblivious of the political history of Ghana. In quest to protect Parliament from potential interference and frustration by the other arms of Government, article 116 of the Constitution grants Parliamentary immunity against civil and criminal proceedings for matters raised on the floor of Parliament. Again, article 117 of the constitution states inter alia, civil and criminal provisions shall not be served on, or executed in relation to, the Speaker or a member or the clerk to parliament while on his “way to, attending at or returning from any proceedings of Parliament.”

The above constitutional provisions have made it almost impossible for a member of Parliament or the Speaker to be served with Court processes as the constitution is silence on the full context of “proceedings of Parliament”. A section of the public believes that some Members of Parliament have used Parliamentary immunities to evade arrest or service of court processes on them albeit legitimate.

It is at the backdrop of these constitutional provisions that the Speaker of Parliament wrote a letter to the Chief Justice indicating that the court processes filed by the NPP-Majority leader which sought to invoke the exclusive original jurisdiction of the court to interpret article 97 were not properly served on him. Rightly so, the Speaker cited article 117 and 118 of the Constitution 1992 as the legal basis for his refusal to accept the court processes.

c. Practice Direction

Practice Direction and Administrative guidelines are tools employed by the Judicial Service through the Chief Justice to ensure efficiency and transparency in our justice delivery system. The supreme court of Ghana through the Judicial Secretary has issued various Practice Directions over the years. For instance, there is a Practice Direction in respect of Plea Bargaining, prerogative writs involving chiefs, the ward of costs, to restrain burial of a deceased person among others.

The essence of Practice Direction is to aid the efficient application of law. Rightly so, the Speaker in his letter to the Chief Justice referred to a practice direction which sought to address the challenge posed by article 117 and 118 of the Constitution 1992.

The Speaker of Parliament suggested that the Practice Direction which is titled “Enforcement of articles 117 and 118 of the Constitution -immunity from service of process and arrest” provides that Parliament can only be served with legal processes on Mondays. This is because Parliament does not sit on Mondays. The Speaker asserts that this Practice direction has been brought to the attention of all registrars of the courts.

However, it appears that Practice Direction is not the appropriate tool to cure the mischiefs surrounding articles 117 and 118. Indeed, the NPP-Majority leader argues that, Practice Directions do not take precedence over constitutional provisions. I agree with him in principle. Article 11 of the constitution 1992 which provides for the sources of law in Ghana and in an order of precedence does not include practice directions.

Therefore, it cannot be said that Practice Directions are laws properly so called. For whatever it is worth, they are directions simplicita. However, practice directions are very important to administering justice where the law lacks clarity on its application or gives too much discretion to the exercise of judicial power.

Certainly, the legislature and the judiciary must find an effective legal solution to the extent to which parliamentary immunities are to be applied relative to arrest and the service of court proceedings.

d. Judicial Review
The supreme court under articles 2(1) and 130 of the 1992 constitution has the exclusive original jurisdiction as to matters requiring constitutional interpretation. Even more important is the power of the supreme court to make orders that gives an enabling effect to the constitution of Ghana. Therefore, in times of what appears to be a constitutional crisis, the supreme court is under legal and moral obligation to dispassionately navigate the country out of constitutional turbulence. I strongly believe that, the time is right for the courts to properly defined the scope of “proceedings of parliament” as used in article 117 of the constitution 1992.

As observed in the case of Ezuame Mannan v. Attorney General & Parliament, the Supreme Court recognised the independency of the legislature, albeit, subject to the authority of the Constitution 1992. The courts acknowledge its lack of jurisdiction over parliamentary proceedings, however, to the extent that a matter has to do with constitutional interpretation or where parliament acts ultra vires, the supreme court has jurisdiction to remedy same.

e. Conclusion

It is my submission that, we must critically examine articles 117 and 118 among others, and properly strike a balance between protecting parliament from frivolous legal proceedings which seek to undermine and impede the functions of the legislative arm of Government vis-à-vis the legitimate legal actions which aims at compelling parliament to act within the powers conferred on it by the constitution 1992 of Ghana.