Personal Immunity Of MPs -How Far Does It Go?

A fall out from Hon. Felix Twumasi Appiah’s arrest.

The Daily Graphic reported on Monday 27th November that the police last Friday arrested the Member of Parliament (MP) for Sene in the Brong Ahafo Region, Mr Felix Twumasi-Appiah, for his alleged involvement in a $1-million gold scam deal. As usual the politicians are quick to associate this arrest to political underpinnings.

Mr Twumasi-Appiah said at the police station, that, he was informed that the Regional Commander, ACP Asiedu Akrofi wanted to see him, only to be told by the Commander that there was an order from above to detain him. This he insisted to know by whose orders he was being detained but the police did not divulge that information to him. This allegation was rejected by the Accra Regional Police Command that the National Democratic Congress MP for Sene, was detained on "orders from above."


This called for a serious reaction from Hon. Bagbin on the floor of the House of Parliament on Tuesday. He stated that as a result of the privileges MPs enjoyed, there were laid-down procedures, and that the police should respect the procedure when arresting a Member. In his own words “A Member of Parliament is not above the law, but there are a procedure and a clear framework on how to deal with an MP who breaches the law.” This brings to bear the over stretching of our Parliamentarians on the personal immunity granted to them by the 1992 Constitution.


This is not the first time that such fallacy of absolute personal immunity has been made. In January 2004, when Hon. Grace Coleman was facing extradition order from the United States government Madam Hawa Yakubu and NDC MP John Mahama in showing solidarity both agreed that their colleague MP should not be extradited to face charges in the United States. This could not have landed them in creating the impression of absolute personal immunity but in a typical Ghanaian Parliamentarian style they added that the case bothers on the immunity of parliamentarians. That was an overstretch of the immunity clause. Parliamentarians being fully much aware of the Constitution should not be throwing dust into the public eyes about the immunity granted them.


There are various immunities granted to our Parliamentarians under Article 115-121 of the 1992 Constitution. Civil or criminal proceedings shall not be instituted against a Member of Parliament in any court or place out of Parliament for any matter or thing brought by him in or before Parliament by petition, bill, motion or otherwise in respect to statement made on the floor of the House. This seeks to ensure freedom of speech and debate in Parliament. The framers of the Constitution in their infinite wisdom believe that Parliamentarians should be given all the protection needed in terms of making laws. Further more neither the Speaker, nor a member of, nor the Clerk to, Parliament shall be compelled, while attending Parliament to appear as a witness or even to be a jury member in any court or place out of Parliament. This seeks to give them enough time to concentrate on Parliamentary work. .


According to the Black Laws Dictionary immunity is defined as an exemption from a duty, liability or service of process especially such an exemption granted to a public official. The origins of parliamentary immunity date back to a session of the English Parliament in 1397, when the House of Commons passed a bill denouncing the scandalous financial behavior of King Richard II of England. Thomas Haxey, the member who was behind this direct act against the King and his court, was put on trial and sentenced to death for treason. Following pressure applied by the Commons, however, the sentence was not carried out, and Haxey received a royal pardon. This event prompted the House of Commons to review the right of members of parliament to discuss and debate in complete autonomy and freedom, without interference from the Crown. . In Britain a distinction is made in terms of criminal and civil case in reference to immunity. Freedom from civil arrest was in former times an important privilege necessary for the proper functioning of Parliament. In modern times, immunity is from civil arrest during the sitting of Parliament and for forty days before and after Parliament assembling. However when a Member of Parliament commits a crime, he is arrested like anyone else and if he is convicted the court must notify the speaker. There was an instance when an M.P in the person of Miss Bernadette Devlin was sentenced to six months in 1970 by a Northern Ireland court.

In America, this is referred to as Congressional Immunity. It creates an exemption from arrest while attending a session of congress. Benjamin Cardozo, an American jurist, notes that this immunity is inherent in the nature of sovereignty.


The Ghanaian position on personal immunity of Parliamentarians is very clear that it does not need a legal education to appreciate it. Article 117 states 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 a member or the clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament.’


The Ghanaian position covers any civil and criminal process being served or executed on a member from any other body apart from parliament. This Article is not of general application as it creates a caveat. The person must be on his way to any proceedings of Parliament. What this means is that if is anything apart from seeking to parliamentary proceedings, immunity does not avail to a parliamentarian.


The facts surrounding the Member of Parliament (MP) for Sene in the Brong Ahafo Region, Mr Felix Twumasi-Appiah indicates that he was on the frolic of his own and as such the Minority Leader cannot associate any immunity with him. The same can be said of Hon. Grace Coleman.

Further more to prevent a flood gate being created the framers of the 1992 Constitution placed a clause that there must be a certificate of the Speaker to indicate that one is attending to parliamentary proceedings. Article 118(2) puts it 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.’


As of now there has been a discussion on the floor of the house and the speaker did not mention the issue of any certificate and instead the house suggested that the matter be referred to the Privileges Committee for redress.


“The 1992 Constitution is therefore a sum total of our hope, disappointments, experiences and expectations as a nation.”- Charles Hayfron-Benjamin JSC (31st December Case). In this era of democratic dispensation, is the hope of every Ghanaian that our politicians should be more up to task and should not be allowed to hide under the parliamentary veil of immunity and commit acts against the law. The media must continue to fulfil its role as the fourth estate but must be circumspect in its reportage. There might be more of such acts on the part of our national leaders and as such ‘shine your eye and open your ears’