A matter of concern and public interest has recently been brought to my attention by the Judicial Service which requires me to make this statement to throw more light as a sequel to the circular issued by the Chief Justice and a guide to the Members, the Clerk to Parliament and the general public.
As Hon. Members are aware, the 1992 Constitution has provided for the Speaker, Members of Parliament and the Clerk to Parliament privileges and immunities which are absolutely necessary for the due execution of their functions and the power of the Parliament.
These privileges are special rights enjoyed by the House collectively as a whole and by members individually, without which the members could not discharge their functions, and these privileges exceed those enjoyed by other bodies or individuals. This is to ensure that the Legislature is able to carry its constitutional duties without let or hindrance from judicial processes.
One of such privileges and immunities is contained in Article 117 of the Constitution which provides that “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 member or the Clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament”.
In the seminar and induction workshop of members of this House, the First Deputy Speaker dealt with this subject matter extensively as the resource person. But it seems to me that much still has to be done on this matter. I say this because my attention has been drawn recently to the attempts by some Members of Parliament to decline or evade service of court processes and documents while Parliament was on recess and the Hon. Members were not on their way to, attending at or returning from any proceedings of the Parliament.
This situation has led to some confrontation with court process servers while some Justices have had to resort to the issuance of substituted service orders to ensure the smooth adjudication of cases before them. I also got to know that some Members were arraigned before the court and charged with various offences without any notice to the Speaker, This conduct is an aberration and should not be repeated.
We are all in agreement that, the three coordinate arms of Government while acting independently, must operate as an organic whole with due regard and respect to each other to ensure an equilibrium in the governance architecture and for the protection of the rule of Law and the constitutional order.
SCOPE AND ENFORCEMENT OF ARTICLES 117 AND 118 OF THE CONSTITUTION
The operational term in Article 117 that is worth noting is that the immunity granted by the Constitution to specific functionaries of Parliament is only to be exercised when the functionary “is on his way to, attending at or returning from, any proceedings of Parliament.”
In other words, Members of Parliament may only avail themselves of this immunity when Parliament is in session. Proceedings of the House have been defined to include sittings, meetings, and Parliament and its Committees activities.
Further, Article 118 (1) of the Constitution provides that “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.”
Clause (2) of Article 118 provides “The certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament.”
These provisions have unfortunately in some instances been disregarded by some court officials. Indeed, Speakers of previous Parliaments have sought to provide guidance on the enforcement of these provisions and have ensured that service of processes from outside Parliament on Hon. Members have been effected with the permission of the Speaker.
While the enforcement and application of the provisions in article 118 of the 1992 Constitution have largely been without incident, the enforcement and application of article 117 has been fraught with challenges.
As Speaker of the 8th Parliament, I receive a flood of requests for the service of processes on Hon. Members of Parliament and in some cases process servers attempted to serve Hon. Members in the precincts of Parliament during the 1st Meeting which processes had to be returned to the Registrars.
To ensure that this situation is contained, I had cause to formally write, to draw the attention of His Lordship, the Chief Justice to the non-compliance with these provisions by officers of the Judicial Service.
In a letter dated 19th February 2021 and addressed to the Chief Justice and Head of the Judicial Service, I indicated my strongest reservations with the attempt by officers of the Judicial Service to serve court processes on some Members of Parliament, the Clerk to Parliament and the Speaker of Parliament while these Office holders were attending to the proceedings of Parliament at the precincts of Parliament when Parliament was in session.
I did not take kindly to that conduct and highlighted same to the His Lordship, the Chief Justice. Such conduct, for me, is unlawful, unconstitutional and amounted to an interference with the work of Parliament and is not to be countenanced.
The Chief Justice by a letter dated 22nd February 2021, respectfully acknowledged these breaches of the Constitution by officers of the Judicial Service and reiterated the position I have just outlined. He went further to assure me of his immediate action to halt the practice.
He proceeded to do just that in a circular and provided me with a copy of the circular which directed that the provisions in Articles 117 and 118 be respected by all Judges and Court Officers.
The Circular further reminded the Court officials that the Speaker, Members of Parliament and the Clerk to Parliament shall not be served with any process of any court or compelled to appear as a witness in any court unless Parliament is not in session or the Speaker so certifies that the office holder in question is not on his way to, attending at or returning from any proceedings of Parliament.
The Circular from His Lordship the Chief Justice, ensured that during the remaining days of the 1st Meeting of Parliament, Hon. Members and the precinct of Parliament were not inundated with processes from the Courts. On your behalf and on my part, I extended our gratitude to the Chief Justice for that singular intervention.
As Hon. Members are aware, as far back as the 1969 Constitution, when these provisions were first introduced in our democracy, the 1968 Constitutional Commission Report justified the need for parliamentary immunity from arrest and the service of court processes by maintaining that such immunity ensures Members of Parliament are not distracted by arrest and detention while they are on their way to, attending at or returning from any proceeding of Parliament.
The Commission further noted that the immunity should not be made to cover serious offences such as treason, sedition and felony, or to apply to alleged offences committed in flagrante delicto.
The Commission proposed that civil or criminal processes issuing from the courts or place out of Parliament could be served on Members with the prior permission of the Speaker. These provisions were repeated in the 1979 and our current 1992 Constitution.
Hon. Members without a doubt the immunity from service of processes is necessary to prevent the use of such processes to impede the work of Parliament. This should, however, not be understood to mean that Hon. Members cannot be served at all with any processes from outside Parliament.
Hon. Members, as important as the privileges and immunities provided by the Constitution are to secure Parliament’s role in our democracy, the Constitution also contemplates that the arms of Government will be committed to ensuring that our practices promote a workable government and democracy. In this sense, the constitutional privileges and immunities must not be abused nor asserted to frustrate its very purpose of promoting our democracy.
Hon. Members, it is in this regard that I must bring to your attention, the fact that the immunity enjoyed by the Speaker, members of Parliament, and Clerk to Parliament are not absolute anytime, anywhere, and any day. As such, when Parliament is not in session or a Member of Parliament is not on his way to, attending at or returning from the business of Parliament, such a member may be served a court process and may appear as a witness in a court proceeding.
It follows therefore that while Parliament is not in session or the Speaker has not certified that a Member or Clerk to Parliament is attending to the business of Parliament, a Member of Parliament may not evade service of court process or refuse to appear as a court summoned witness in a court proceeding. Any such act would amount to a violation of Articles 117 and 118 of the Constitution and same would not be encouraged in this House. Let me emphasis again that Parliamentary proceedings include Parliamentary Committee meetings and activities.
CONCLUSION
The Legislature and Judiciary have a sacred duty to accord each other respect and reverence in consonance with the dignity and authority of each arm of government. Each Arm is duty bound to uphold the privileges and immunities accorded in the 1992 Constitution as an important component of the doctrine of Separation of Powers underpinning our Constitution.
Flowing from the above, and in reference to the circular of the Chief Justice I provide the following guidance to the House, Members and Clerk to Parliament. That when Parliament is in session there is a presumption, in the normal course of business, that a Speaker, Member of Parliament or Clerk to Parliament is on his way to, attending at or returning from, proceedings of Parliament and cannot be served a process from any court or place out of Parliament whilst in motion.
That when a Speaker, Member of Parliament or Clerk to Parliament is in the precinct of Parliament, there is a presumption that the Speaker, Member of Parliament or Clerk to Parliament is attending to a proceeding of Parliament and cannot be served a process from any court or place out of Parliament.
That when Parliament is on recess the presumption can be said to be rebuttable and Members of Parliament may be served a process from any court or place out of Parliament whether the Member is in the Constituency, in the private office outside Parliament or at his residence.
That when Parliament is on recess, and a Speaker, Member of Parliament or Clerk to Parliament is in the precinct of Parliament, there is a presumption that the Speaker, Member of Parliament or Clerk to Parliament is attending to the business of Parliament and cannot be served a process within the precinct of Parliament.
That where a Member is served a process from a court or place out of Parliament while the House is on recess, the Member shall accept the process and immediately inform the Speaker, whilst taking the necessary action arising out of the service. The Court or place out of Parliament must also inform the Speaker of the service of the process. This is to give opportunity for the Speaker to exercise the responsibility imposed on him/her by Article 118 (2).
Where a Member is attending to business of Parliament such as Committee meetings or activity, during the recess and the Member is served a process from a court or place out of Parliament, the member may respectfully direct the service of the process through the Speaker.
Where the official insists on serving the process on the Member, the Member may notify the Speaker of the service, and where the Speaker has ascertained that the Member is attending to the business of Parliament, the Speaker will direct that the process be returned to the Registrar of the Court in compliance with Article 117 of the Constitution.
Where a Member accepts service of a process and has entered appearance, the Member is said to have become a party to an action and will thus not be covered by the immunities provided under articles 117 and 118 of the 1992 Constitution as rightly held by the Learned Justice of the High Court in the case of The Republic vs Mahama Ayariga & Others 2019 (unreported).
Despite this ruling, a practice is developing between the Judiciary and the Legislature, out of mutual respect, where the Courts accept requests from Parliament to schedule hearings on dates and times that will not clash with a plenary sitting of Parliament; and (where) on several occasions, the Courts have accepted a letter from Mr Speaker for adjournment of matters pending in Courts, subject to the convenience of the Court, due to the fact that Hon. Members are attending to the critical or urgent business of the House. This practice, I believe, will continue to guide this grey area of the Constitution.
Hon. Members, I urge you all to accord the members of the Judiciary and the Judicial Service the utmost respect, decency and decorum they deserve. It has taken a long period of history, full of lessons, and effort to achieve a cordial and harmonious relationship between the Judiciary and the Legislature. We should treasure that cordial relationship and desist from jeopardising it with actions or inactions which are not well thought through.
I trust that this statement provides a guide to ensure that these peculiar rights enjoyed by the House collectively and by members individually, as stated in the Constitution, are respected, and due care is taken not to impede or obstruct the administration of Justice in the Republic. Judges and Judicial Officers must be free to administer justice without let or hindrance, ill will or affection.
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