You are here: HomeWallOpinionsArticles2016 02 06Article 413036

Opinions of Saturday, 6 February 2016

Columnist: Asamany, Joel

The immunity of MPs, abuse and due Process (Case of Agogo)

In Ghana, issues of both national and personal interest generate wide media furore purely because they are viewed through the ocular lenses of politics. Politics, though ubiquitous, is flippantly overstretched; hence due processes are not given the demanded place in the scheme of things by the institutions of state.

The constitution and statutory provisions were framed in strict accordance and the supreme national interest to obviate arbitrariness and capriciousness which are anathema in the protection of all citizens and their rights to life i.e. due process of law.
Whether or not Members of Parliament have immunities and privileges attached to their duties? And
Whether or not these immunities and privileges are flouted by the Members of Parliament state institutions and individuals?

Clearly , the above, are issues of constitutional interpretation which must be strictly adhered to in furtherance of our democratic credentials so that nobody encroaches upon the right of the other which is sacrosanct to the spirit and letter of the constitution which is ‘’ a living organism capable of growth.’’

Agogo in the Asante Akim North Constituency has with its citizens in recent years being at obnoxious receiving end by Fulani herdsmen and their Member of Parliament and others are not the first to attract public outcry by the media threat of arrest from the Ashanti Regional Police Command DCOP Nathan Kofi Boakye.

As far back May 2001, Mr E .T .Mensah, Member of Parliament for Ningo/Prampram was arrested and detained by the BNI. According to the then Minister of Interior, Alhaji Al – Hassan Yakubu , following the unfortunate May 9 disaster, the behaviour of the demonstrating youth and placards they bore gave credence to the reports gathered by the security agencies that he was behind incitement. He further said the BNI was acting in consonance and within the confines of Security and Intelligence Agencies Act of 1996 Act 526) and section 200 of the Criminal Offences Act, 1960 (Act 29).

The Daily Graphic reported on Monday 27th November, 2006 that the police last Friday arrested the Member of Parliament for Sene in the Brong Ahafo Region, Mr Felix Twumasi –Appiah for his alleged involvements in a $ 1 million gold scandal. Mr Twumasi – Appiah said 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.

Another such fallacy of absolute personal immunity was made in January 2004, when Mrs Grace Coleman was facing extradition order from the United State government. Some Members of Parliament then, including the current President John Mahama agreed in solidarity their colleague should not be extradited to reckon her charges in the US.

Mr Kennedy Ohene Agyapong, Member of Parliament for Assin Central was arrested and detained for his alleged genocidal incitement. He was later acquitted and discharged by the court.
The Member of Parliament for Abuakwa South, Mr. Samuel Atta Akyea was arrested on August 2011 by the police while in court for alleged stealing and dishonest breach of trust.

A contractor, Joseph Adom of J. Adom Ltd, a construction firm accused the respected lawyer of a series of dishonest acts including defrauding him of $60,000.

Mr Atta Akyea said, the police charged him for stealing and fraudulent breach of trust.

The Attorney – General was accused of his arrest which he (Atta Akyea) insisted was a civil matter awaiting the final determination of the court.

With all these, as usual the politicians are haste to tag those arrests to a posteriori political machinations. Press conferences were held, addressed by minority leaders, party supporters besieging security hubs of the arrests, tongues raging and some instances, boycott of Parliamentary proceedings.

Lawful or unlawful, the fact still remains that, Members of Parliament are guaranteed privileges and immunities under the 1992 constitution.

They (MPs) are not above the law, but there are procedure and framework on how to deal with an MP who breaches the law.

It should not also create a situation of absolute personal immunity.

Our Parliamentarians have various immunities under Articles 115 – 121 of the 1992 Constitution and sections 18, 23 and 27(1) (a) and (b) of Parliament Act, 1965 (Act 300).

Civil or criminal proceedings shall not be instituted against a Member of Parliament for any matter or thing brought by him in or before Parliament by petition, bill, and motion or otherwise in respect to statement made on the floor of the House. This ensures freedom of speech and debate in Parliament without fear or favour. The framers of the Constitution envisaged in their wisdom that the Parliamentarians are accorded all the protection required in their law making functions. Again, 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. It seeks to give them enough time to concentrate on Parliamentary obligations.

In all these occurrences, some of the arrests were within the remit of the law as those actions committed were done in the jolly of their own and had no correlation of the workings of parliament of which no immunity can be connected.

According to L.B. Curzon Dictionary of Law, immunity is defined as freedom or exemption from some obligation, penalty or power of another. Privilege is also defined as a special right or immunity conferred on some persons or body, e.g., members of Parliament.
In the Ghanaian context on immunity of Parliamentarians, is reasonably clear that it comes with no legal education to decipher. Article 117 of the Constitution 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.
However, this article is not of general application as it creates a caveat in the Ghana’s position. The person must be on his way to or returning from, any proceedings of Parliament. What this means is that if it is anything outside seeking to Parliamentary proceedings, immunity does not lie to a parliamentarian.

In the Agogo case, a sitting member of parliament for the area, Mr. Kwadwo Baah Agyemang in solidarity of his constituents embarked on a lawful procession aimed at voicing their displeasure with regards to how they are often visited with heinous and palpably horrendous acts such as rape, murder, destruction of their farms and properties by the nomadic Fulani herdsmen albeit in open disregard of High Court ruling in 2013.
The aftermath of the demonstration, re awoken their consciousness of the people to defend and protect themselves and property. It is purely the dictate of the Constitution and does not in any way breach any public order and peace is in Article 18(2) of the Constitution.
This did not go down well with the Regional Police Commander as he issued media arrest of the Member of Parliament. Prior to that his men went to house in search of the legislature which he subsequently alleged got his mother traumatized. This as usual raised some public anger from both the minority side of the House petitioning the Speaker and some sections of the public. This was so because by extension, there was an omission of the due process of the law and procedure.
Indeed the Commander should have petitioned the Speaker before either invitation or arrest, as the case may be can be sanctioned.

The question of whether or not the legislature was on his way to, or out of Parliament, is cured by the reasons below;
It is often said that, self-preservation is the first law of nature and the law globally recognizes that every free person in the society has the right to protect his person and life against any attack, harm or injury by another person. He is entitled to do this with the aid of his own body, e.g., his hand or foot or head or with any object as stick, cudgel, cutlass or even gun or any other means to repel any assailant. It is backed by sections 37,39(a)(b)(d) of the Criminal Offences Act, 1960 (Act 29).
In Abeka & Anor v. The Republic (1980) GLR 438, the court held that, “where persons are in actual possession of land, they are entitled to use reasonable force to remove a person who being in or on land, has been lawfully requested to depart but refuses to do so”.
This has being violated in the Agogo case, despite court order to so do by the herdsmen.
The security has reneged in their role of ensuring peace and order. A naked case of institutional lapses. The custodians are at the worse receiving end of the situation. They have endured these atrocities for far too long of which their defence of provocation is potent ground, going by sections 53 and78 of Act 29 to prevent harm to another person.
The herdsmen, in the first place made unlawful entry to Agogo i.e., trespass governed by section 157 of the Criminal Offences Act, 1960 and further perpetuate in murder and rape, contrary to sections 46 and 97 respectively of the Criminal Offences Act, 1960 (Act 29).
The REGSEC slept on their job. The people of Agogo can no longer cope of the situation of the nomads. They have suffered in silence for far too long. It is said, “volenti non fit injuria” that is,’ no injury is done to one who consents’. The situation is beyond the control of REGSEC. It calls for holistic national security approach in tackling the menace. Agogo is not the only place but theirs might be extremely severe than other parts o Eastern and Volta Regions.
The Member of Parliament might have made certain statements but in furtherance and protection of an interest which is lawful to his constituents whom he owes them duty of care and in the parameters of law. The action of the legislature was to protect common interest as happened in the ruling of Branston Finance Co. Ltd v. de Vries case.

The Regional Commander, no doubt a colossus on security intelligence and an asset to our dear nation but did not follow procedure, even if the legislature erred. Complaints of public officials are privileged, since it protects the public interest, but complaints must be made to particular authority i.e. those whose power it is to deal with the matter. It was to prevent the floodgate being created that 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 which is evidence conclusive (Article 118(2)).

National Security and other allied institutions must rise to the defence of the inhabitants of Agogo and other similar parts of the country to flush out the nomads since this will not infringe on ECOWAS protocol of free movement of goods and persons. By International Law, protocols, treaties and conventions are soft laws and not binding.
By their entry i.e., the herdsmen, is indicative of the fact that somebody who is paid by the tax payer, including the inhabitants of Agogo for our security, slept on his task. Agogo must be saved now. We cannot continue to remain a country of talkers with uending esperts advice on every national issue. The best way to be an espert is to solve a problem by tacking it before it escalates. Its been twelve years and on in Agogo. When they leave Agogo, where next will the nomads direct their attention to? The institutions must rise to the occasion to stem the tide before it reaches my abode of quiet enjoyment. The security esperts in the country must bow their heads in shame.

“It is my duty to give faithful interpretation to the words having regard to...my political or moral views or that of any person however right notwithstanding... The Constitution must be interpreted according to both letter and spirit together”, Bamford-Addo JSC in NPP v. Attorney-General (31st December Case).

It is the aspiration of every Ghanaian in this era of democratic growth that institutions would be made to work with unfettered access with due process of the law without ill intent and malice. Let preserve our peace, law and order and the Constitution. We have beautiful laws in this country, but...... The media must play it duty without bias as the fourth estate of the realm with accurate reportage.

JOEL ASAMANY
FACULTY OF LAW, WISCONSIN INT’L UNIV.
COLLEGE GHANA