2 IN COURT OVER MPs' IMMUNITY

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Two individuals have invoked the original
jurisdiction of the apex court to interpret
the Constitution, with a case that an MP,
the Clerk or Speaker of Parliament does not
have any immunity if he or she commits an
offence while he is on his way to, attending at
or returning from any proceedings of
Parliament. The plaintiffs Ms. Hilda Mansuwa
Kpentey Dongotey and Mr. Albert Gyamfi, who have
sued in their capacity as Ghanaians are asking
the highest court of the land to interpret
articles 117 and 118 of the 1992 Constitution,
the two constitutional provisions which provide
immunity for the Speaker of Parliament, MPs and
the Clerk to Parliament.
5
Two individuals have invoked the original
jurisdiction of the apex court to interpret
the Constitution, with a case that an MP,
the Clerk or Speaker of Parliament does not
have any immunity if he or she commits an
offence while he is on his way to, attending at
or returning from any proceedings of
Parliament. The plaintiffs Ms. Hilda Mansuwa
Kpentey Dongotey and Mr. Albert Gyamfi, who have
sued in their capacity as Ghanaians are asking
the highest court of the land to interpret
articles 117 and 118 of the 1992 Constitution,
the two constitutional provisions which provide
immunity for the Speaker of Parliament, MPs and
the Clerk to Parliament.
6
Counsel for the plaintiffs is Mr. Samson Lardy
Anyenini. The writ is against the backdrop of a
standoff between the Ghana Police Service and the
National Democratic Congress (NDC) MP for Madina,
Mr. Francis Xavier Sosu, who has been charged
with unlawfully blocking a public road and
destruction of public property during a
demonstration by his constituents for better
roads. What does the Constitution say? Article
117 of the 1992 Constitution stipulates that no
court process, either criminal or civil, shall
be served on, or executed in relation to, the
Speaker or member or the Clerk to Parliament
while he is on his way to, attending at or
returning from any proceedings of Parliament.
Fergghana Series
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The writ is against the backdrop of a standoff
between the Ghana Police Service and the National
Democratic Congress (NDC) MP for Madina, Mr.
Francis Xavier Sosu, who has been charged with
unlawfully blocking a public road and destruction
of public property during a demonstration by his
constituents for better roads. What does the
Constitution say? Article 117 of the 1992
Constitution stipulates that no court process,
either criminal or civil, shall be served on, or
executed in relation to, the Speaker or member or
the Clerk to Parliament while he is on his way
to, attending at or returning from any
proceedings of Parliament.
Fergghana Series
8
The writ is against the backdrop of a standoff
between the Ghana Police Service and the National
Democratic Congress (NDC) MP for Madina, Mr.
Francis Xavier Sosu, who has been charged with
unlawfully blocking a public road and destruction
of public property during a demonstration by his
constituents for better roads. What does the
Constitution say? Article 117 of the 1992
Constitution stipulates that no court process,
either criminal or civil, shall be served on, or
executed in relation to, the Speaker or member or
the Clerk to Parliament while he is on his way
to, attending at or returning from any
proceedings of Parliament.
Fergghana Series
9
On the other hand, Article 118 (1) states that
neither the Speaker, nor a member, nor the Clerk
to Parliament shall be compelled, while attending
Parliament, to appear as a witness in any court
or place out of Parliament, while Article 118
(2) provides that the Certificate of the Speaker
that a member or the Clerk is attending the
proceedings of Parliament is conclusive evidence
of attendance at Parliament. Reliefs The
plaintiffs are seeking a declaration that the
Constitution does not protect an MP who commits a
crime, whether or not the crime was committed by
the MP in his or her line of duty,
10
On the other hand, Article 118 (1) states that
neither the Speaker, nor a member, nor the Clerk
to Parliament shall be compelled, while attending
Parliament, to appear as a witness in any court
or place out of Parliament, while Article 118
(2) provides that the Certificate of the Speaker
that a member or the Clerk is attending the
proceedings of Parliament is conclusive evidence
of attendance at Parliament. Reliefs The
plaintiffs are seeking a declaration that the
Constitution does not protect an MP who commits a
crime, whether or not the crime was committed by
the MP in his or her line of duty,
Fergghana Series
11
On the other hand, Article 118 (1) states that
neither the Speaker, nor a member, nor the Clerk
to Parliament shall be compelled, while attending
Parliament, to appear as a witness in any court
or place out of Parliament, while Article 118
(2) provides that the Certificate of the Speaker
that a member or the Clerk is attending the
proceedings of Parliament is conclusive evidence
of attendance at Parliament. Reliefs The
plaintiffs are seeking a declaration that the
Constitution does not protect an MP who commits a
crime, whether or not the crime was committed by
the MP in his or her line of duty,
Fergghana Series
12
and, therefore, the police do not need permission
from the Speaker of Parliament to arrest such an
MP. Besides, they want a declaration that any
act by the Speaker asking the police to seek
permission from him before arresting an MP
accused of committing an offence is null, void
and of no effect. Also, they want a
declaration that the constitutional term
attending at or returning from any proceedings
of Parliament stipulated in Article 117 applies
only to work in Parliament and not when an MP is
engaged in activities in a constituency. Other
reliefs being sought by the plaintiffs are a
declaration that upon a true and proper
construction of Article 117 of the 1992
Constitution,
13
and, therefore, the police do not need permission
from the Speaker of Parliament to arrest such an
MP. Besides, they want a declaration that any
act by the Speaker asking the police to seek
permission from him before arresting an MP
accused of committing an offence is null, void
and of no effect. Also, they want a
declaration that the constitutional term
attending at or returning from any proceedings
of Parliament stipulated in Article 117 applies
only to work in Parliament and not when an MP is
engaged in activities in a constituency. Other
reliefs being sought by the plaintiffs are a
declaration that upon a true and proper
construction of Article 117 of the 1992
Constitution,
14
and, therefore, the police do not need permission
from the Speaker of Parliament to arrest such an
MP. Besides, they want a declaration that any
act by the Speaker asking the police to seek
permission from him before arresting an MP
accused of committing an offence is null, void
and of no effect. Also, they want a
declaration that the constitutional term
attending at or returning from any proceedings
of Parliament stipulated in Article 117 applies
only to work in Parliament and not when an MP is
engaged in activities in a constituency. Other
reliefs being sought by the plaintiffs are a
declaration that upon a true and proper
construction of Article 117 of the 1992
Constitution,
15
and, therefore, the police do not need permission
from the Speaker of Parliament to arrest such an
MP. Besides, they want a declaration that any
act by the Speaker asking the police to seek
permission from him before arresting an MP
accused of committing an offence is null, void
and of no effect. Also, they want a
declaration that the constitutional term
attending at or returning from any proceedings
of Parliament stipulated in Article 117 applies
only to work in Parliament and not when an MP is
engaged in activities in a constituency. Other
reliefs being sought by the plaintiffs are a
declaration that upon a true and proper
construction of Article 117 of the 1992
Constitution,
16
a Speaker of Parliament, Clerk or MP is not
granted immunity from warrantless arrest,
restriction or deten-tion while he is on his way
to, attending at or returning from proceedings of
Parliament a declaration that upon a true and
proper construction of articles 117 and 118 of
the Constitution, a court process server does not
require a certificate from the Speaker to serve
civil or criminal process on an MP while he is
engaged in activities in a constituency. Francis
Sosus case Mr. Sosu has failed to show up in
court on two occasions, with the excuse that he
was on parliamentary duties. That has been
corroborated by a letter to the Kaneshie District
Court from the Deputy Clerk to Parliament.
17
a Speaker of Parliament, Clerk or MP is not
granted immunity from warrantless arrest,
restriction or deten-tion while he is on his way
to, attending at or returning from proceedings of
Parliament a declaration that upon a true and
proper construction of articles 117 and 118 of
the Constitution, a court process server does not
require a certificate from the Speaker to serve
civil or criminal process on an MP while he is
engaged in activities in a constituency. Francis
Sosus case Mr. Sosu has failed to show up in
court on two occasions, with the excuse that he
was on parliamentary duties. That has been
corroborated by a letter to the Kaneshie District
Court from the Deputy Clerk to Parliament.
18
a Speaker of Parliament, Clerk or MP is not
granted immunity from warrantless arrest,
restriction or deten-tion while he is on his way
to, attending at or returning from proceedings of
Parliament a declaration that upon a true and
proper construction of articles 117 and 118 of
the Constitution, a court process server does not
require a certificate from the Speaker to serve
civil or criminal process on an MP while he is
engaged in activities in a constituency. Francis
Sosus case Mr. Sosu has failed to show up in
court on two occasions, with the excuse that he
was on parliamentary duties. That has been
corroborated by a letter to the Kaneshie District
Court from the Deputy Clerk to Parliament.
19
a Speaker of Parliament, Clerk or MP is not
granted immunity from warrantless arrest,
restriction or deten-tion while he is on his way
to, attending at or returning from proceedings of
Parliament a declaration that upon a true and
proper construction of articles 117 and 118 of
the Constitution, a court process server does not
require a certificate from the Speaker to serve
civil or criminal process on an MP while he is
engaged in activities in a constituency. Francis
Sosus case Mr. Sosu has failed to show up in
court on two occasions, with the excuse that he
was on parliamentary duties. That has been
corroborated by a letter to the Kaneshie District
Court from the Deputy Clerk to Parliament.
20
Pursuant to Article 117 of the 1992 Constitution
of the Republic, I am unable to bring the service
to the attention of the MP as requested, the
letter, dated November 10, 2021, indicated. The
Speaker of Parliament, Mr. Alban Sumana Kingsford
Bagbin, has also damned the police for attempting
to arrest the MP without due regard to the law,
particularly articles 117 and 118 of the 1992
Constitution. The stand-off has been
exacerbated by Mr. Sosu suing the Ghana Police
Service to stop the criminal proceedings against
him, arguing that the case against him was a
violation of his human rights.
21
Pursuant to Article 117 of the 1992 Constitution
of the Republic, I am unable to bring the service
to the attention of the MP as requested, the
letter, dated November 10, 2021, indicated. The
Speaker of Parliament, Mr. Alban Sumana Kingsford
Bagbin, has also damned the police for attempting
to arrest the MP without due regard to the law,
particularly articles 117 and 118 of the 1992
Constitution. The stand-off has been
exacerbated by Mr. Sosu suing the Ghana Police
Service to stop the criminal proceedings against
him, arguing that the case against him was a
violation of his human rights.
22
Pursuant to Article 117 of the 1992 Constitution
of the Republic, I am unable to bring the service
to the attention of the MP as requested, the
letter, dated November 10, 2021, indicated. The
Speaker of Parliament, Mr. Alban Sumana Kingsford
Bagbin, has also damned the police for attempting
to arrest the MP without due regard to the law,
particularly articles 117 and 118 of the 1992
Constitution. The stand-off has been
exacerbated by Mr. Sosu suing the Ghana Police
Service to stop the criminal proceedings against
him, arguing that the case against him was a
violation of his human rights.
23
In his affidavit in support of the motion, Mr.
Sosu averred that he had not offended the law to
warrant his arrest, and that prior to the said
demonstration, he had notified the police of the
intended protest and agreed with them that the
demonstration be held on October 25, 2021. Mr.
Sosus case has divided Parliament, with the
Majority accusing the Speaker of shielding the
MP, while the Minority insists that the Speaker
is following the law. MPs immunity There have
been cases of MPs seeking immunity under articles
117 and 118 of the 1992 Constitution, which led
to serious public debates.
24
In his affidavit in support of the motion, Mr.
Sosu averred that he had not offended the law to
warrant his arrest, and that prior to the said
demonstration, he had notified the police of the
intended protest and agreed with them that the
demonstration be held on October 25, 2021. Mr.
Sosus case has divided Parliament, with the
Majority accusing the Speaker of shielding the
MP, while the Minority insists that the Speaker
is following the law. MPs immunity There have
been cases of MPs seeking immunity under articles
117 and 118 of the 1992 Constitution, which led
to serious public debates.
25
In his affidavit in support of the motion, Mr.
Sosu averred that he had not offended the law to
warrant his arrest, and that prior to the said
demonstration, he had notified the police of the
intended protest and agreed with them that the
demonstration be held on October 25, 2021. Mr.
Sosus case has divided Parliament, with the
Majority accusing the Speaker of shielding the
MP, while the Minority insists that the Speaker
is following the law. MPs immunity There have
been cases of MPs seeking immunity under articles
117 and 118 of the 1992 Constitution, which led
to serious public debates.
26
In his affidavit in support of the motion, Mr.
Sosu averred that he had not offended the law to
warrant his arrest, and that prior to the said
demonstration, he had notified the police of the
intended protest and agreed with them that the
demonstration be held on October 25, 2021. Mr.
Sosus case has divided Parliament, with the
Majority accusing the Speaker of shielding the
MP, while the Minority insists that the Speaker
is following the law. MPs immunity There have
been cases of MPs seeking immunity under articles
117 and 118 of the 1992 Constitution, which led
to serious public debates.
27
When the Cape Coast High Court placed an
injunction on Mr. James Gyakye Quayson, the NDC
MP for Assin-North, until the final determination
of a petition challenging his eligibility, the MP
went to Parliament to be sworn into office,
arguing that the order of the court was not
properly served on him as envisaged under the
Constitution. Another case was that of the NDC
MP for Bawku Central, Mr. Mahama Ayariga, who was
on trial over alleged abuse of office. The case
against him has, however, been dropped. It was a
trial that generated a lot of public interest due
to the clash between the Judiciary and the
Legislature.
28
When the Cape Coast High Court placed an
injunction on Mr. James Gyakye Quayson, the NDC
MP for Assin-North, until the final determination
of a petition challenging his eligibility, the MP
went to Parliament to be sworn into office,
arguing that the order of the court was not
properly served on him as envisaged under the
Constitution. Another case was that of the NDC
MP for Bawku Central, Mr. Mahama Ayariga, who was
on trial over alleged abuse of office. The case
against him has, however, been dropped. It was a
trial that generated a lot of public interest due
to the clash between the Judiciary and the
Legislature.
29
When the Cape Coast High Court placed an
injunction on Mr. James Gyakye Quayson, the NDC
MP for Assin-North, until the final determination
of a petition challenging his eligibility, the MP
went to Parliament to be sworn into office,
arguing that the order of the court was not
properly served on him as envisaged under the
Constitution. Another case was that of the NDC
MP for Bawku Central, Mr. Mahama Ayariga, who was
on trial over alleged abuse of office. The case
against him has, however, been dropped. It was a
trial that generated a lot of public interest due
to the clash between the Judiciary and the
Legislature.
30
On the first day of the hearing, Mr. Ayariga was
ordered by the Presiding Judge, Justice Afia
Serwah Asare-Botwe, to appear and stand trial,
after the court had rejected a certificate by the
then Speaker of Parliament, Prof. Aaron Mike
Oquaye, informing the court to exempt the MP from
the proceedings. Justice Asare-Botwe was of the
view that Article 118 of the 1992 Constitution,
which provides immunity for MPs, only protected
MPs from being invited to appear before a court
as witnesses and not MPs standing trial as
accused persons. NIYA Ghana, Accra.
31
On the first day of the hearing, Mr. Ayariga was
ordered by the Presiding Judge, Justice Afia
Serwah Asare-Botwe, to appear and stand trial,
after the court had rejected a certificate by the
then Speaker of Parliament, Prof. Aaron Mike
Oquaye, informing the court to exempt the MP from
the proceedings. Justice Asare-Botwe was of the
view that Article 118 of the 1992 Constitution,
which provides immunity for MPs, only protected
MPs from being invited to appear before a court
as witnesses and not MPs standing trial as
accused persons. NIYA Ghana, Accra.
32
On the first day of the hearing, Mr. Ayariga was
ordered by the Presiding Judge, Justice Afia
Serwah Asare-Botwe, to appear and stand trial,
after the court had rejected a certificate by the
then Speaker of Parliament, Prof. Aaron Mike
Oquaye, informing the court to exempt the MP from
the proceedings. Justice Asare-Botwe was of the
view that Article 118 of the 1992 Constitution,
which provides immunity for MPs, only protected
MPs from being invited to appear before a court
as witnesses and not MPs standing trial as
accused persons. NIYA Ghana, Accra.