ARREST WARRANT ON AKWATIA MP, LEGAL NUANCES AND THE SURVIVAL OF THE FITTEST

Diverse opinions have ensued pursuant to the arrest warrant issued by the Koforidua High Court after convicting the Member of Parliament for Akwatia, Hon. Ernest Kumi, for contempt of court.

The legitimacy of his seat is not the topic in contention in this article. The focus is whether the arrest warrant issued by the court is unconstitutional? Well, this has been elaborated below.

The Constitution, 1992 has significant implications on the arrest of Members of Parliament (MPs). According to Article 117 of the Constitution, 1992, 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 any proceedings of Parliament.

Furthermore, the Constitution also provides that civil or criminal proceedings cannot be instituted against an MP in any court or place outside Parliament for any matter or thing brought by them in or before Parliament by petition, bill, motion, or otherwise. This provision ensures that MPs are protected from arrest during parliamentary sessions and while traveling to and from such sessions.

Additionally, Section 20 of the Parliament Act, 1965 (Act 300) reinforces this immunity by stating that civil or criminal processes cannot be served on or executed in relation to the Speaker or a Member while they are on the way to, attending, or returning from a proceeding of Parliament. This provision protects MPs from legal actions related to their parliamentary duties, ensuring their freedom to speak and act in the interest of their constituents without fear of legal repercussions.

The Standing Orders of the Parliament further elaborate on these immunities. Order 22 of the Standing Orders of Parliament reflects the constitutional provision, emphasizing that MPs should not be obstructed or subjected to legal processes while involved in parliamentary proceedings. This reinforces the principle that parliamentary work should not be impeded by external legal actions.

This aims to protect the legislative process from undue interference, ensuring that MPs can perform their duties without hindrance. However, this immunity is not absolute. It specifically applies when MPs are engaged in parliamentary duties; traveling to, attending, or returning from parliamentary sessions. Outside these contexts, MPs are subject to the same legal processes as any other citizen.

 In the case of the Republic v. High Court (Land Division), Accra, Ex Parte: Kennedy Ohene Agyapong, Susan Bandoh, the Supreme Court examined the provisions of Article 117, which grants immunity to MPs from the service of court processes while they are on their way to, attending, or returning from parliamentary proceedings.

The court held that Article 117 does not bar the service of court processes on an MP; it only forbids such service while the MP is on their way to, attending, or returning from parliamentary proceedings. The decision emphasized that defective service of court processes cannot be the basis for invoking the Supreme Court's supervisory jurisdiction.

Subject to this discourse, it is important to note that the Speaker of Parliament also has the discretion to direct that MP’s immunity does not apply to the service or execution of a criminal process specified in the direction. This means that while MPs generally enjoy immunity from arrest, there are circumstances under which this immunity can be waived, particularly in cases involving criminal processes.

In summary, the 1992 Constitution and the Parliament Act provide MPs with significant protections against arrest and legal proceedings, particularly in relation to their parliamentary duties. These provisions are designed to uphold the independence of the legislative body and ensure that MPs can perform their roles effectively.

However, while the Constitution, 1992, the Parliament Act, 1965 (Act 300) and Standing Orders of Parliament provide MPs with certain protections to perform their legislative duties without interference, these protections are not blanket immunities from legal accountability. Actions taken by MPs outside the scope of their parliamentary responsibilities do not enjoy the same level of immunity, and legal processes can proceed without prior approval from the Speaker of Parliament.

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