In the past week, there has been a recurrence of an old debate about ‘immunity from arrest’ conferred on Members of Parliament by Article 117, following the attempt by the Ghana Police to arrest the MP for Madina, Francis-Xavier Sosu. Some have argued that there are grey areas in the law as provided for in Article 117, which is why we have had this apparent tug-of-war between the Police and Parliament every now and then.

Let me say from the outset that, as a layman, I find absolutely no grey areas in the Constitutional provision in Article 117. Members of Parliament and other politicians have, in my view, deliberately interpreted that provision in a self-serving manner to grant themselves undeserved immunity that makes them feel that the principle of equality before the law doesn’t apply to them.

Article 117 of the 1992 Constitution reads: “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.” This is echoed in Order 22 of Parliament’s Standing Orders. While the interpretation of the Constitution is solely reserved for the Supreme Court, please permit me to interpret this provision as a layman, under the following subheadings:

On his way to…returning from

The framers of the Constitution clearly wanted MPs to be able to carry out their duties uninterrupted by any judicial or executive processes, including Police arrest. The framers wanted parliamentary proceedings to run smoothly without participation being affected by judicial or executive processes that would defeat the principle of separation of powers. The framers however anticipated abuse of such immunity and hence restricted such immunity only to the period when the MP is “on his way to, attending at or returning from, any proceedings of Parliament”.

“On his way to” and “returning from” clearly connotes a period of travel, a journey, a transit, or a period of commuting from one place to another. They clearly connote two locations. I dare say that any purposive interpretation of this provision will conclude that the most reasonable locations the framers had in mind is between the residence/lodging of an MP (or wherever they terminate their journey) and wherever the Proceedings of Parliament may take place. The provision does not cover the MP while they are inside their homes/lodging.

It only covers them while they are travelling (from their homes/lodging) to and from Proceedings of Parliament. And, the provision covers the normal/reasonable route between the MP’s residence/lodging and wherever the Proceedings of Parliament are taking place. So, even if there are Proceedings of Parliament in Parliament House at Osu, an MP who lives in Sakumono, for instance, cannot claim to be “on his way” to Proceedings of Parliament and therefore cannot be arrested if he is found in a beer bar in Adenta and gets involved in a bar brawl! In much the same way, an MP who lives in Madina, for instance, cannot claim to be on his way to Proceedings in Parliament at Osu, when he is involved in a demonstration at Otinibi or Danfa. Another example would be when an MP who lives anywhere in Accra, upon leaving Proceedings in Parliament, decides to terminate his “returning from” journey in a brothel and gets caught by the Police.

My point really is that the provision for “on his way to” is a journey from the MP’s a residence/lodging or wherever they slept the night before to where the Proceedings of Parliament are taking place. The provision for “returning from” is a journey from wherever the Proceedings of Parliament are taking place to the first location the MP decides to terminate their journey. The framers clearly did not intend this immunity to cover 24-hour movements of MPs, nor was it intended to shield MPs from arrest even when they are not involved in Proceedings of Parliament.

Proceedings of Parliament

My understanding of “Proceedings of Parliament” is that of any business of Parliament conducted by the House or a Committee of the House or the Speaker or the Clerk, in accordance with law and the Standing Orders of Parliament. The meaning of the word “Proceedings”, which features 70 times in the current Standing Orders of Parliament, can therefore not be lost on anyone. An MP’s visit to his constituency cannot be described as “Proceedings of Parliament”.

If two or more MPs decide to visit a beer bar to have a drink, their congregation there cannot be described as “Proceedings of Parliament”. If a group of MPs decide to go on a demonstration, their meeting on the street cannot be described as “Proceedings of Parliament”. So, therefore, if an MP organises and joins a demonstration in his constituency, his participation in the said demonstration cannot be construed as “Proceedings of Parliament”, by any stretch of the imagination.

Convention or Law?

Article 117 is clear: the Police cannot arrest an MP while the latter is “on his way to, attending at or returning from, any proceedings of Parliament”. The only way the Police can arrest an MP who meets the immunity criteria is for the Speaker to relieve the said MP from their participation in the “Proceedings of Parliament” for the specified period. If the Speaker so grants the request by relieving the MP of their duties, then legally the MP can no longer be said to “on his way to, attending at or returning from, any proceedings of Parliament”. But, what if an MP is not “on his way to, attending at or returning from, any proceedings of Parliament”?

I dare say the law is clear: the Police have every right to arrest the MP as they would arrest any other citizen, in accordance with our laws. An MP who is not “on his way to, attending at or returning from, any proceedings of Parliament” can be arrested by the Police without recourse to the Speaker of Parliament. And the Speaker cannot and should not elect to shield MPs from Police arrest unless the MP is indeed “on his way to, attending at or returning from, any proceedings of Parliament”.

The Speaker cannot also arbitrarily determine what constitutes “Proceedings of Parliament”, because Proceedings of Parliament are a matter of record, known to all Members of Parliament and available to the public through various publications of Parliament such as Order Papers, Business Statement, Agenda, Votes and Proceedings, etc. The question as to whether or not an MP was “on his way to, attending at or returning from, any proceedings of Parliament” is therefore a matter of fact. It is not one that the Speaker or MPs can create on the spur of the moment in order to shield one of their own from Police arrest.

I totally understand and appreciate why in certain circumstances, since the beginning of the 4^th Republic, the Police and Parliament have often adopted a more cordial and conciliatory approach, by often writing to the Speaker to release an MP for interrogation or possible arrest, even when an MP is not “on his way to, attending at or returning from, any proceedings of Parliament”.

It creates and maintains harmony between the Executive and the Legislature. But, let no one turn this convention into a law in itself by hamstringing the Police in the exercise of their lawful duties. I insist that as long as an MP is not “on his way to, attending at or returning from, any proceedings of Parliament”, the Police have every right under law to arrest an MP who is suspected to have committed an offence. And I see no ambiguity or grey areas with the provisions under Article 117!

Kwaku Antwi-Boasiako, Accra

November 2, 2021