Samson’s Take: Stop projecting lawlessness, dear lawmakers

Samson’s Take: Stop projecting lawlessness, dear lawmakers
Source: Ghana| Samson Lardy ANYENINI
Date: 26-05-2018 Time: 08:05:19:am

I am waxing academic this morning just to keep me a little measured and restrained from using words that convey the sense of stupidity and nonsensical provocation to express my anger at attempts by some lawmakers to hoodwink and insult the intelligence of Ghanaians.

Tom Bingham notes that the Vinerian Professor, A.V. Dicey even in 1885 when he wrote introducing the expression ‘the rule of law’ did not apply his paint to a blanket canvas, because the idea is traced to Aristotle, and also that the expression ‘The Supremacy of the Law’ had been used in 1867. Aristotle had said what in modern English translates: ‘It is better for the law to rule than one of the citizens’, and that this ought to be so: ‘so even the guardians of the laws are obeying the laws’.  In 1866, Justice Blackurn rendered this thus: ‘It is contrary to the general rule of law, not only in this country but in every other, to make a person judge in his own cause…’.

This is what has been upheld as far back as the Magna Carta of 1215 even if in the absence of a parliament, and it is noteworthy what has found expression in the bill of rights in Ghana’s Constitution; article 17 says “all persons shall be equal before”.

This ideal must be evident in the life experiences of citizens. It can be dangerous and provoke potential civil disobedience or positive defiance especially if people high up, in appropriating privileges accorded them by citizens, give the slightest impression that they are above the law or that we live in an Orwellian state.  

The Constitution which is the supreme law of the country, right from its preamble to the very end loudly proclaims equality and places the ultimate sovereign power of the state in the citizens. It is dangerous if they do not feel they get a semblance of the enormous power vested in them by the framers aside the power to elect their leaders.

It cannot be found in the Constitution or any other law that the provisions empowering the police to arrest or run searches on suspicion of criminal conduct are applicable only to non-MP citizens. Police are generally empowered to effect an arrest when crime is being committed in their presence, etc. In fact, this duty is extended to civilians, except that civilians must hand the suspect over to a police officer or station near them.

Even where a warrant is required for an arrest or search, the police are commanded by law to obtain same from a judge and not to write a letter to seek permission from Speaker of Parliament.

The interpretation of articles 117 and 118 repeated in orders 21-23 (of parliament’s Standing Orders) being forced on citizens is most absurd. Well, here is the law written in simple plain English:

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.

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.

There is not the slightest suggestion in the provisions above that MPs must be treated any differently regarding civil or criminal processes. The only exception (privilege) is what I have capitalised in those provisions for emphasis. They are not to be SERVED such processes WHILE they are on their way to, attending at or returning from parliament.

So, such civil or criminal processes can, in fact, be served on them anytime anywhere except when they are going to, attending at or returning from Parliament.

It makes good sense to expect that such processes should not be served on them while they are performing their constitutional functions particularly in the chamber or the precincts of the ‘august house’. It’s okay if they decline to receive such processes in such a circumstance so they are not distracted from the critical business of lawmaking and oversight of the executive.

The second part, as highlighted above, is that they are not to be COMPELLED WHILE attending Parliament to be witnesses in court or elsewhere. Therefore, it is for an MP to elect to voluntarily accept service of a process or avail themselves as a witness, and absolutely no law would be broken. 

Some or most don’t seem to realise they poke ridicule at this privilege when they refuse to be served such processes while at home, at a beer bar, in their village, on their farm, while asleep or in the loo, etc in the name of “I am on my way to, attending at or returning from Parliament”. Our judges are abreast of the time and we know how to get MPs who think they can evade being served court processes all year round. 

Related: SAMSON’S TAKE: Our MPs, what are they saying? Sue them!

The report is that police have come under attack from legislators for inviting an MP over allegations of criminal conduct by President of the Ghana Football Association. This MP didn’t have to raise the “I am going to Parliament” crap in excuse.

An MP or any person the police will show courtesy to by inviting (invitation often turned into arrest) when they could be arresting, ought to reciprocate the gesture. You could plead to either be allowed time to fetch your lawyer (which you are entitled to), or ask for an adjournment if the invitation disrupts an important schedule. The police have often granted such requests especially if the case or one’s role is not that serious/critical and not urgent.

Let not any MP suggest ever again that the police or the court cannot deal with a legislator unless and until the permission of the Speaker has been procured in advance in writing. The IGP ought not to be seen encouraging this unlawful and obscenely discriminating dictate. Why write to the Speaker especially in a serious and urgent matter only to give room for an MP-criminal-suspect to be alerted to either elect to sneak off or conceal evidence of crime.

A reading of the 23rd edition of, arguably, the world’s biggest reference for parliamentary history and practice, Erskine May Parliamentary Practice, will show that the privilege of freedom from arrest has long been refined to be consistent with the dictates of the rule of law. In fact, article 117 and 118 of Ghana’s Constitution mimics such modern reform. I was excited reading the plain sensibly tolerable position in England, and even this position as at 2004 had received recommendations for further change including to restrict non-service of such processes only to the precincts of Parliament, I observe. I share this portion:

“In all cases in which Members of either House are ARRESTED on criminal charges, the House must be INFORMED of the cause for which they are DETAINED from their service in Parliament. It has been usual to communicate THE CAUSE of committal of a Member AFTER his arrest; such COMMUNICATIONS are also made whenever Members are in CUSTODY to be tried … or HAVE BEEN committed to prison for any criminal offence by a court or magistrate”.

I have spoken about how MPs violate the Constitution and their own Standing Orders with impunity failing to write to the Speaker about their absence and the Speaker failing to do his job of applying the law against these absentee MPs. Let the MPs and the leadership first comply with the law.

Dear IGP, if you allow the shameless elevation of this unconstitutional self-serving protocol into ‘law’ to continue, it is only a matter of time and your officers will look on and feel powerless when an MP is committing murder in front of them. Guess what? Citizens won’t!

Samson Lardy ANYENINI

May 26, 2018         

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