In Ghana, the Speaker of Parliament commands significant authority within the legislative realm. However, recent tensions have highlighted a critical question: can the Speaker refuse the service of a court process, especially when it intersects with parliamentary decisions or the standing of MPs?
This issue became prominent when the Speaker, Rt. Hon. Alban Sumana Kingsford Bagbin, declared the seats of four MPs vacant, following their decision to contest the December General Elections under different political parties and as independent candidates.
His ruling was based on Article 97(g) of Ghana’s Constitution, which stipulates that MPs must vacate their seats if they abandon the party under which they were elected. The Supreme Court, however, stepped in, issuing a stay on Bagbin’s decision until a final ruling could be made.
In response, the Speaker subsequently refused service of certain court processes delivered by three bailiffs on October 15 and 16, 2024, at the Legal Department of the Parliamentary Service. Citing Article 117 of the 1992 Constitution and a directive issued by the Honourable Lady Chief Justice– under reference number SCR9, titled “Enforcement of Articles 117 and 118 of the Constitution – Immunity from Service of Process and Arrest” – the Speaker maintained that this attempted service conflicted with the constitutionally protected immunity of Parliament.
Article 117 provides that neither civil nor criminal processes can be served on the Speaker, any MP, or the Clerk to Parliament while they are on their way to, attending, or returning from any parliamentary session. The Circular further clarified that any such service on the Speaker should only occur on Mondays or within working hours, specifically through the Legal Department of the Parliamentary Service.
Interestingly, the bailiffs’ initial attempt to serve the order occurred on Tuesday, October 15 – the first day Parliament convened after the Supreme Court’s directive. Without clarity on the exact timing of this attempt, it remains uncertain whether Article 117 applies in this instance.
Another attempt was made the following day, October 16, despite the Speaker’s suspension of parliamentary proceedings. With no active session on that day, it’s debatable whether the Speaker, an MP, or the Clerk could be considered as “on their way to, attending, or returning from” a parliamentary proceeding.
This raises pertinent questions: Do the working hours mentioned in the Circular refer to the Speaker’s presence during an active parliamentary session, or simply the operating hours of the Legal Department? If the attempted service fell within the Legal Department’s hours, could the Speaker still lawfully refuse it?
Another critical point is whether the Circular overrides the Constitution or simply enhances the means to serve process within the Constitutional framework.
In summary, while the 1992 Constitution grants the Speaker, MPs, and parliamentary clerks certain immunities and freedoms to fulfill their roles effectively, these privileges do not exist in isolation. They must be exercised within Constitutional boundaries to uphold the rule of law, particularly with the December Elections on the horizon.
Philipa N. A. Sima Nuamah on behalf of OSD & Partners
