Judge’s decision on indemnity plea smacks of contempt – Ayariga's lawyer

Judge’s decision on indemnity plea smacks of contempt – Ayariga's lawyer
Source: Ghana | Myjoyonline.com | Naa Sakwaba Akwa | E: faustine.akwa@myjoyonline.ccom
Date: 04-06-2019 Time: 08:06:06:pm
Mr Ayariga is in court for tax evasion and issues relating to the purchase of ambulances

A judgement delivered by a High Court judge concerning an indemnity certificate in the trial of Bawku Central MP, Mahama Ayariga could be in contempt of court, one of his lawyers has said.

On Tuesday a judge, Justice Afia Botwe, ruled that Mr Ayariga, who is facing cases of tax evasion and issues relating to the procurement of buses for his constituency, must show up for trial whenever he is required to do so.

Justice Botwe rejected a certificate issued by the Speaker of Parliament, Mike Oquaye, informing the court that the MP had work to do in Parliament. 

Mr Ayariga had earlier written to the Special Prosecutor saying he will be unable to show up in court due to Parliamentary proceedings.

Mr Ayariga was accompanied to court by some NDC MPs including Samuel George (African print shirt)

But the judge ruled against the certificate and instructed the MP to present himself to the court anytime he is needed because he was not a witness.

One of Mr Ayariga’s lawyers, James Agalga believes the judge should have taken her time to look at the constitutional issues brought before her.

He said the Speaker’s Certificate made specific reference to Article 118 which talks about witness summon in cases where a Member of Parliament, Speaker or the Clerk of Parliament is summoned to appear as a witness in court.

“The judge was right that Mr Ayriga was not before the court as a witness and, therefore, the Speaker’s Certificate did not apply, but the judge should have gone beyond article 118 because Mr Ayariga’s argument was not lost on the judge at all.

“Ayariga was claiming immunity from processes of the court, not just it summons for him to appear as a witness. He was simply just protesting the fact that while attending to Parliament, he has immunity not to be dragged before a court of law simultaneously,” the lawyer stated.

The Builsa North MP said the judge in making her decision should have read both articles 117 and 122 and take into account its cumulative effect.

James Agalga.jpg

If in doing so, she felt there was a need for her to make a referral to the Supreme Court which is the court with the exclusive jurisdiction to properly interpret those articles and what their cumulative effects are, the MP stated.

“But in this case, she also just confined herself to article 118 and arrived at the conclusion that Mr Ayariga was answerable to her court and that the trial needed to continue.”

He added that the actions of the Special Prosecutor and the Court could be contempt of Parliament because “the provision is very clear that any act which obstructs Parliament or a Member of Parliament from performing his or her duties is in contempt of Parliament. The wording is very clear.”

Article 117 states, “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,” while 122 “states An act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result, is contempt of Parliament.

Prof. Mike Ocquaye
Prof Ocuaye’s indemnity certificate was rejected by the court

But private legal practitioner, Kofi Abotsi said to be able to arrive at the conclusion that the judge’s action was in contempt of court, it must be proven that she deliberately decided to obstruct the MPs performance of his Parliamentary duties.

For him, the judge’s intent was to promote the administration of justice and from the end of Parliament, the intent is to ensure that Parliamentary business is maximised and that an MP on the floor is not inhibited in the performance of his work.

“So I do not think it will amount to contempt of Parliament, but I do think that where this is pushed to a certain degree, especially where the court has been apprised of all the facts and informed sufficiently that when this MP is pushed to the brink, he eventually has to forgo his Parliamentary duty and come to court at that particular time that will undermine his work, it may at a certain point in time amount to contempt, if clearly it is established that the intent is to obstruct Parliamentary business.”

Kofi Abotsi

Commenting on the judge’s decision to reject the Speaker’s certificate, Mr Abotsi said Justice Botwe was totally in her right to make an assessment of what was before her and take a decision.

He, however, added that it was unfitting for the Speaker to have made an assessment of what the law is when he issued the certificate.

“And I say this with the greatest respect, it is not the business of the Speaker of Parliament to determine what the law is, it is not part of Parliamentary business.

“Parliament’s job is to make the law and so the Speaker haven gone the length of actually asserting and purportedly defining the parameters of the law and even quoted aspects of the constitution and trying to drawing the judge’s attention of those things was a bit close to dabbling in the business not only of the judiciary but even of lawyers and which is exactly not the province of the lawyer.”

The Speaker should not have done that, the lawyer but hopes the issue will be resolved without the tension and public display that is currently around it.