The arrest of a Member of Parliament in a foreign country raises a complex constitutional question in Ghana: whether an elected Member can lose his seat solely due to an inability to return and attend parliamentary sittings.

The case of Mr Frimpong has brought Article 97(1)(c) of the 1992 Constitution into sharp focus. The provision sets a threshold of 15 consecutive sittings for parliamentary absenteeism, but it also requires consideration of whether the Member has a reasonable explanation for his absence.

Given Mr Frimpong's detention abroad, the central constitutional issue is whether his absence constitutes voluntary absenteeism or results from circumstances beyond his control.

The issue is more nuanced than simply counting the number of sittings he has missed.

Article 97(1)(c) does not provide that an MP automatically loses his seat after missing 15 consecutive sittings. It requires that the Member be absent without the written permission of the Speaker and that he be unable to offer a reasonable explanation to the Parliamentary Committee on Privileges.

This distinction is significant.

The primary issue is not whether Mr Frimpong’s arrest constitutes permission to be absent from Parliament, as it does not. Rather, the more substantive constitutional question is whether his arrest and continued detention abroad provide a reasonable explanation for his inability to attend parliamentary proceedings.

Was he deliberately absent, or was he physically prevented from attending?

Was he exercising a choice, or was his absence imposed upon him by circumstances beyond his control?

These questions are central to the interpretation of Article 97(1)(c).

Ghana has previously encountered a similar constitutional situation.

In Professor Stephen Kwaku Asare v Attorney-General & 3 Others, the case involving former Nkoranza North MP Eric Amoateng, the Member was arrested and detained in the United States and consequently became unable to attend Parliament. Parliament subsequently granted him indefinite leave, a decision that was challenged by Professor Stephen Kwaku Asare.

The Court of Appeal ultimately rejected Parliament’s attempt to grant the MP indefinite leave.

The Amoateng case does not establish that every Member of Parliament detained abroad must forfeit his seat. However, it demonstrates that Article 97 must be applied in accordance with its constitutional requirements and that the specific circumstances of a Member’s absence are relevant.

This historical context underscores the significance of the current debate.

The Constitution itself creates another consideration. Article 47 provides for representation of constituencies in Parliament. Every constituency is entitled to representation by a Member of Parliament.

This situation establishes a constitutional balance.

On one side is Parliament's legitimate interest in ensuring that elected Members attend sittings and discharge their responsibilities. On the other is the electorate’s interest in having the representative they elected remain in Parliament.

A decision to declare Mr Frimpong’s seat vacant would have implications extending beyond the individual Member. Such a decision would deprive his constituents of their elected representative and initiate the process for filling the vacancy.

The issue is whether such consequences should arise when a Member’s absence results from detention by a foreign state.

The circumstances related to the allegations against Mr Frimpong introduce an additional constitutional consideration.

If the alleged conduct that resulted in his arrest occurred before he entered Parliament, his constituents did not participate in those alleged actions. They may also have had no knowledge of them when they elected him.

More importantly, Article 19 of the Constitution establishes the presumption of innocence for a person charged with a criminal offence. An arrest or allegation is therefore not equivalent to a conviction.

This distinction is important because the question before Parliament should not serve as an indirect determination of Mr Frimpong’s guilt or innocence.

Article 97(1)(c) is concerned with parliamentary attendance. The issue is whether the Member has a reasonable explanation for his absence, not whether Parliament should determine the merits of criminal allegations being pursued in another jurisdiction.

A broader issue of fairness also arises.

If an MP is physically prevented from returning to Ghana because he is in the custody of a foreign state, should his absence be treated in exactly the same way as that of an MP who simply decides not to attend Parliament?

These two circumstances are materially distinct.

A Member who deliberately refuses to attend Parliament exercises a choice. A Member who is detained abroad may have no such choice.

This distinction may be central to determining whether the explanation for the absence is reasonable.

The Constitution also requires public authorities exercising discretionary powers to act fairly and reasonably. That principle becomes relevant when Parliament considers the circumstances of an individual Member’s absence.

Therefore, the issue should not be reduced to a numerical calculation of whether 15 sittings have been missed.

The more fundamental question concerns whether the constitutional conditions for vacating the seat have been satisfied.

Has the Member been absent without the Speaker’s written permission?

Has he been unable to provide a reasonable explanation?

And can detention by a foreign state reasonably be regarded as a circumstance beyond his control?

There is also a democratic question that deserves consideration.

If a constituency loses its elected representative because of circumstances arising from alleged conduct that predates the Member’s election, where should the constitutional balance lie?

The law must protect Parliament from absenteeism. Elected representatives cannot be permitted to abandon their responsibilities simply because they have been elected.

However, the law must also distinguish between deliberate absenteeism and absence resulting from circumstances beyond the elected representative’s reasonable control.

For this reason, the Frimpong case presents a constitutional dilemma that extends beyond a single Member of Parliament or constituency.

The issue is not whether Article 97 should be enforced, as enforcement is required.

The relevant question is how Article 97 should be interpreted and applied when an elected Member is physically unable to attend Parliament due to detention abroad.

Fundamentally, the debate concerns the point at which Ghana’s Constitution delineates parliamentary accountability from circumstances beyond an elected representative’s control.

Ultimately, the issue is whether this distinction can be maintained without undermining the constitutional right of the people to representation.