It was on Monday, October 25, 2021 when the Madina Member of Parliament, Francis-Xavier Sosu, led his constituents to protest what they have described as the deplorable state of roads in the area, after consistent neglect by successive governments.

The protest, according to the MP, was to force the relevant authorities to act expeditiously.

Road users in the area were left stranded as the protestors had blocked sections of the Ayi-Mensah, Danfa, and Otinibi road. The police, reportedly, arrested some of the demonstrators.

It was a protest to address an identified challenge; but has that been achieved? Certainly, not. It has rather developed into another banter which has partly shifted attention from the main focus.

The Police have since been on the heels of the legislator, attempting to arrest him on multiple occasions.

The Police have filed charges, including causing damage to public property, against Francis-Xavier Sosu over the demonstration.

The MP was supposed to show up in court to answer the charges on November 8, but the case could only be adjourned to Tuesday, November 16 after the Speaker of Parliament revealed that Mr. Sosu was out of the jurisdiction.

Again, the case has been adjourned to November 29.

The Speaker of Parliament, Alban Sumana Bagbin, is said to have written to the Kaneshie District Court to say that the Madina MP, Francis-Xavier Sosu, is still on Parliamentary duties abroad.

There have been distinct views and accusations on this matter since it began gaining national attention.

The debate has been about immunities and whether or not the legislator has a point in refusing to honour the police’s invitations.

What does the Constitution say?

I am not a practicing lawyer but permit me to also add my voice on what I have learnt on this controversial matter. The 1992 constitution of Ghana prescribes the tenet of equality before the law, which means that no one is above the law.

The same constitution grants some exemptions or immunities to the President, Speaker of Parliament, the Members of Parliament and the clerks of Parliament in the performance of their duties. There are, therefore. two immunities namely procedural and substantial immunities.

Substantive immunity simply means that the immunity in question is absolute (even though it may be temporary in nature and only for a particular period); procedural immunity, on the other hand, means that the immunity in question is not absolute but carefully circumscribed, which can be circumvented one way or the other.

For instance, the President of the Republic when in office is immune from civil or criminal liability for any act and/or omission of his, until he leaves office (substantive immunity, albeit temporary).

This means that while he is in office, the President of the Republic cannot be sued, neither can criminal proceedings be brought against him in respect of any offence he may have committed or is alleged to have committed (he may, however, be impeached).

It goes further to mean that the President cannot be personally sued in his name or be made a defendant in judicial proceedings, or be made personally liable for the results of the proceedings for the performance of his functions as president.

The Attorney General becomes the defendant or the prosecutor for the government or the president in all matters of criminal or civil at the court. This rationale is evident in the cases of “NPP vs Rawlings” and “Amidu vs Kufuor.”

With regard to the judiciary, the 1992 constitution provides that a justice of a superior court, or any person exercising judicial power, for that matter, shall not be liable to any action or suit for any act or omission by him in the exercise of that judicial power (this immunity is substantive).

So, in the case of “Bilson vs Apaloo”, it was held that “Judicial immunities from suit are conferred not for the benefit of the judges but for the benefit of the administration of justice”.

Parliament and Members of Parliament, in particular, also enjoy certain privileges and immunities under the constitution, which is directly tied to the performance of their functions.

For instance, debate and proceedings in Parliament cannot be impeached or questioned in any court or place outside Parliament (substantive immunity).

As long as Parliament is in session, the Speaker, MPs and the Clerk may not be served with civil or criminal processes ordinarily.

The procedural nature of this immunity can be ascertained in Article 117 and 118 of the Constitution, 1992.

The Sosu story

Taking deeper reflections into this, one might ask whether the MP has any point as far as the law is concerned, looking at the charges against him.

Before any act is considered as a crime, it should be stated and explained in the constitution or any other act of Parliament. These are such mere charges leveled against him; they have to be proven in a competent court of Law.

Immunities are special rights enjoyed by the Speaker, Members and Officers of Parliament. This is particularly essential since it aids the free running of the House and office of Parliament and frees it from external influence.

Like I indicated earlier, these can be found in Articles 117, 118 and 122 of the Constitution.

Article 117 – 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.

Article 118 – (1) Neither the Speaker, nor a member of, nor the Clerk to, Parliament shall be compelled, while attending Parliament to appear as a witness in any court or place out of Parliament.

(2) The certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament.

These immunities are not absolute though and hence must not be abused; however, immunity can come into play if the MP was executing his work when going to Parliament or on his way to Parliament.

The Constitution is very clear when an MP is doing his duty, he/she cannot be arrested. The law enforcement agencies need to write to the Speaker of Parliament before any action in that regard can be taken.

As many have argued, MPs are not above the law because the privileges for lawmakers are not absolute. It is one reason I will call for less-entrenched positions for ‘clearer,’ undisputed interpretations of the Articles 117 and 118 of the Constitution.

At least, everyone will have their opinions about how to approach such matters but the Court is the place to find actual answers.

The writer is a political enthusiast and a National Service Personnel with the Multimedia Group Limited. You can contact him at chrisbankie193@gmail.com or @YalleyC on Twitter.



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