The recent attempt to arrest Ghana's Manhyia South Member of Parliament, Nana Agyei Baffour Awuah, at the Accra High Court has reignited a crucial constitutional debate regarding the arrest of lawmakers. This incident has raised questions about the extent of parliamentary immunity and the procedures required for the arrest of a Member of Parliament. According to Article 117 of Ghana's 1992 Constitution, civil or criminal processes from any court or place outside Parliament cannot be served on or executed in relation to the Speaker, a member, or the Clerk to Parliament while they are on their way to, attending, or returning from parliamentary proceedings.
The Constitution does not explicitly grant Members of Parliament immunity from arrest, nor does it prevent them from being investigated. Article 17 of the Constitution emphasizes that all persons are equal before the law, prohibiting discrimination based on social or economic status. This article cautions against expanding parliamentary privilege into a general immunity not granted by the Constitution. The balance, as per the Constitution, is to protect Parliament from interference while not shielding parliamentarians from the ordinary law beyond what is constitutionally provided.
This controversy is not new and was significantly highlighted in 2021 when the Madina MP, Dr. Francis-Xavier Sosu, was sought by the police following incidents related to a demonstration he led. The issue led to a constitutional action at the Supreme Court, challenging aspects of the parliamentary arrangement governing the service of process and arrest of an MP. The plaintiffs, including lawyers Hilda Mansuwa Kpentey Dongotey and Albert Gyamfi, seek to determine if the Speaker's permission is required before serving or executing civil or criminal processes against an MP.
Speaker Alban Sumana Kingsford Bagbin has since clarified that security agencies do not require his permission to arrest an MP but must notify him to determine any applicable parliamentary privilege or immunity. This distinction between notification and permission is crucial, as it ensures that the criminal law can operate while also respecting constitutional privileges. The Speaker's role is not to grant a license for the criminal law to operate but to ensure that any arrest respects parliamentary privileges.
There is a common misconception that every lawful arrest requires a warrant. However, Section 10 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), allows for arrest without a warrant in specified circumstances, such as when an offence is committed in the presence of a police officer or when there are reasonable grounds to suspect that a person has committed an offence.
Certain institutions, like the Economic and Organised Crime Office (EOCO) and the Office of the Special Prosecutor, have been granted police powers, enabling them to arrest without a warrant under certain conditions. Section 18 of the Economic and Organised Crime Office Act, 2010 (Act 804), and section 28 of Act 959 provide these powers and immunities to their officers. This framework allows for the effective operation of these agencies in investigating and prosecuting crimes.
The pending constitutional action seeks clarity on the interpretation of Articles 117 and 118 of the Constitution, particularly regarding the requirement for the Speaker's leave or certificate for serving or executing processes against an MP. The outcome of this case will have significant implications for understanding the balance between parliamentary privilege and the enforcement of the criminal law in Ghana.
Key points
- The 1992 Ghanaian Constitution protects Parliament from interference but does not grant lawmakers blanket immunity from arrest.
- Speaker Alban Bagbin has stated that security agencies do not need his permission to arrest an MP but must notify him to assess any applicable parliamentary privilege.
- Not all lawful arrests in Ghana require a warrant, with certain institutions having the power to arrest without one under specified circumstances.
