STANDING ORDERS: UNCONSTITUTIONAL APPLICATION TO CITIZENRY

There has been a distortion of information and break in communication about the application of parliamentary Standing Orders. Citizens are swimming in a state of confusion as to whether the application of Standing Orders of Parliament directly affects the citizenry in relation to their constructive criticisms which is justified by the 1992 constitution. It must be understood that Parliament cannot, through the use of its Standing Orders, arrogate to itself powers or jurisdiction that it does not constitutionally possess.  Article 110(1) confers on Parliament the power to “regulate its own procedure” through its Standing Orders, also states, appropriately, that this power is “subject to the provisions of this Constitution”.  It must therefore be noted that the power conferred on Parliament by Article 110(1) is to be used by Parliament only to regulate its “procedure”.  Parliament therefore as no jurisdiction to expand or increase the substantive powers bestowed on it by the Constitution.

A critical cursory look at Standing Order 30(2),which states “dignity of Parliament” language from Article 122 of the Constitution, but then add onto it any act or omission “which tends either directly or indirectly to bring the name of Parliament into disrepute.”  This additional language goes beyond the constitutional definition of contempt of Parliament as set forth in Article 122. 

Viewing from the legal language perspective, an act or omission that affronts the “dignity of Parliament” is not necessarily the same as one that brings “the name of Parliament into disrepute”. But more importantly, the “dignity of Parliament” is affronted when Parliament’s authority as an institution is intentionally flouted or disregarded or when a Member or officer of Parliament does an act that tarnishes the image or diminishes the standing of Parliament in the public eye.  It must be established that private when citizens excoriates Members of Parliament or denigrate them in the media, that does not mean the dignity of Parliament as an institution has been affronted.

Indeed, the duty of upholding the dignity of Parliament is a duty that falls squarely on the Speaker and MPs themselves; the dignity of Parliament rises and falls according to how the Members and officers of Parliament conduct themselves within the House and without.  It is what MPs themselves do, not what citizens say about MPs, that determines whether Parliament is perceived as a dignified body or not.

Other members of Parliament from different ideological perspectives have also made reference to the application of Erskine May Parliamentary Practice as an authoritative source of the Ghana Parliament’s elastic conception of its contempt power.  Indeed within the common law world, Erskine May, which is edited and updated by successive clerks of the British Parliament, is widely consulted as the leading authority on the law of parliamentary practice.

It must therefore be admitted that Erskine May substantially informed Ghana’s own Standing Orders.  However, while both Erskine May and English parliamentary precedents may serve as a useful guide for common law parliaments generally, they do not control the scope of the Ghana Parliamentary powers in relation to the Standing Orders.  And it is not because they are foreign sources.  Rather, it is because the Parliament of Westminster and the Ghana Parliament are founded, constitutionally, on radically different conceptions of power and sovereignty. This is a different debate that will be dealt with in my next episode to kill the mischief and firmly establish citizenry powers of exercising their constitutional powers without any fear or panic.

During the 6^th Parliament, the contempt of Parliament actions raised against citizen are objectionable on multiple grounds. First, the actions, insofar as they seek to punish the two non-members for harsh or insulting words spoken in the public media about Parliament or MPs, do not pass muster under the provisions of Chapter 5 of the Constitution guaranteeing all persons the right to freedom of expression.

Parliamentarians, unlike judges, have ample opportunity and equal rights as citizens and as politicians to defend themselves in the public square, on the floor of the House, and even through private lawsuits, if they believe their private reputations to have been wrongfully harmed by statements made in the media. Contempt of Parliament is, therefore, an excessive and disproportionate response to the kind of acts involved in the Professor Dodoo and Blakk Rasta cases.

As far as the “dignity of Parliament” is concerned, it is not one of the constitutionally permissible grounds upon which freedom of expression may be lawfully restricted. Moreover, it is the conduct of Members and officers of Parliament themselves, not the utterances of private citizens in the public media, that may affront the dignity of Parliament.

In continuation from the above, as a legislative body operating under a constitutional order based on the Sovereignty of the People, the Parliament of Ghana cannot construe its contempt powers in the same way and to the same extent as the sovereign Westminster Parliament.  The power claimed by Parliament, to punish citizens for excoriating Members of Parliament, is at variance with the overarching constitutional principle of the Sovereignty of the People, pursuant to which MPs and Parliament are subordinate and accountable to the People, not the other way around.

Finally, “abusive” contempt, which would include the acts involved in the Professor Dodoo and Blakk Rasta cases, is no longer treated as contempt of Parliament even in the Mother of all Parliaments where parliamentary supremacy, as opposed to popular or constitutional supremacy, is the governing principle. 

Although it is not possible to give an exhaustive list of what specific acts or omissions by non-members would amount to contempt of Parliament, the following list of acts and omissions, drawn from current practice of the UK Parliament, provides a useful guide: “interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee; assaulting, threatening, obstructing or intimidating a member or officer of the House in the discharge of the member's or officer's duty; deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition); deliberately publishing a false or misleading report of the proceedings of a House or a committee; removing, without authority, papers belonging to the House; falsifying or altering any papers belonging to the House or formally submitted to a committee of the House; deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee; without reasonable excuse, failing to attend before the House or a committee after being summoned to do so; without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee; without reasonable excuse, disobeying a lawful order of the House or a committee; interfering with or obstructing a person who is carrying out a lawful order of the House or a committee; bribing or attempting to bribe a member to influence the member's conduct in respect of proceedings of the House or a committee; intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee; bribing or attempting to bribe a witness; assaulting, threatening or disadvantaging a member, or a former member, on account of the member's conduct in Parliament; divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.”

A critical look at the aforementioned various acts and omissions, they all have a commonality that binds all of them. They all in one way or the other, interfere with, obstruct, or frustrate the conduct of the business of Parliament. This indeed is the modern context in which non-members may be cited for contempt of Parliament even in those jurisdictions in the Westminster tradition where the power of Parliament is not as constitutionally constrained as Ghana’s.

Central to this discourse it therefore important to note that the democracy and constitution of Ghana, founded on the sovereign will of the People, would be a setback if the people’s elected representatives in Parliament are allowed to impose as the law of the land the draconian and elastic conception of contempt of Parliament they seek to apply.  The public, civil society, the media, and academia must stand together to challenge and resist this extraordinary descent into parliamentary authoritarianism.

“WHEN YOU RISE TO EMINENCE BY MERIT,

YOU ARE RESPECTED AND THY NOT DEJECTED”

Quote from the ‘Masonic Book’