After the attempted arrest of the Manhyia South Member of Parliament, Nana Agyei Baffour Awuah, at the Accra High Court last week ended in a confrontation, the Economic and Organised Crime Office (EOCO) has now obtained a warrant for his arrest.
The Deputy Attorney-General has confirmed the development. The warrant follows EOCO’s efforts to get the MP to assist with an investigation into alleged unauthorised financial transactions involving SIC Life Savings & Loans Company Limited. EOCO says the MP failed to honour invitations extended to him, while the MP has disputed that account and says the original invitation concerned his former role as a senior partner of a law firm that represented the company.
The High Court has now issued the warrant. It has also authorised EOCO to search for and seize documents relevant to the investigation.
So, the obvious question now is how EOCO gets the MP.
It might seem simple enough. There is a warrant. EOCO has powers of arrest. Why not simply find him and execute it?
The difficulty is that the person named in the warrant is a Member of Parliament.
Arresting a Sitting Member of Parliament
Being a Member of Parliament does not place a person beyond the reach of criminal investigation or arrest.
Section 73 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides for the issue of an arrest warrant. Once issued, the warrant directs the person to whom it is addressed to arrest the person named in it and bring that person before the court.
The warrant remains in force until it is executed or cancelled by the court.
EOCO is also not without statutory powers of arrest. Under the Economic and Organised Crime Office Act, 2010 (Act 804), authorised EOCO officers have powers and immunities conferred on police officers under Act 30 and other applicable laws.
Ordinarily, therefore, the existence of a valid arrest warrant would provide the machinery for arrest.
But Parliament has its own constitutional protections. Article 117 of the Constitution provides that a civil or criminal process coming from a court or other place outside Parliament shall not be served on, or executed in relation to, a Member of Parliament while the Member is “on the way to, attending at, or returning from any proceedings of Parliament.”
The provision is not an immunity from criminal process. An MP does not become immune from investigation simply by winning an election. The protection is concerned with the execution of legal process in circumstances where doing so could interfere with the Member’s participation in the work of Parliament.
There is good reason for that protection. The Constitutional Commission, in its proposals for the 1969 Constitution, explained that parliamentary immunities were not intended as personal favours to Members of Parliament. They were intended to protect the independence of Parliament and ensure that Members could participate in its proceedings without being prevented by legal process.
The same proposals contemplated immunity from arrest while Members were travelling to and from Parliament or attending Parliament, while recognising that parliamentary immunity was never intended to be absolute.
This brings us to the present case. Parliament is currently on recess. Does that mean the constitutional protection disappears? Not quite. Does it mean EOCO cannot arrest the MP? Neither does it.
The Standing Orders of Parliament, 2023, provide some useful guidance.
Order 24 reflects the protection in Article 117. It prevents the service or execution of civil or criminal process against a Member while the Member is on the way to, attending at, or returning from proceedings of Parliament.
But Order 24 also specifically deals with a period when Parliament is on recess. Where the House is on recess and a Member is not on the way to, or attending at, a proceeding of Parliament, the Standing Orders provide that the Member may be served with process through the Speaker.
That provision is particularly relevant here because the High Court has reportedly directed EOCO to execute the arrest warrant through the Speaker.
So, How does EOCO Get Him?
This is probably the part that will interest most people.
Does “through the Speaker” mean that the Speaker decides whether the MP should be arrested? Again, not quite.
The warrant has already been issued by the court. The Speaker did not issue it, and the parliamentary procedure does not appear to give the Speaker a power to simply cancel a judicial warrant.
The role of the Speaker arises because the Constitution and the Standing Orders recognise that Members of Parliament occupy a special position when court processes are being served or executed against them.
The warrant gives EOCO the authority to arrest. The parliamentary rules regulate how that authority is to be exercised in relation to the Member.
EOCO is not being told to abandon the warrant. It is being told to execute it through the parliamentary channel identified by the court.
The fact that Parliament is on recess also does not put the MP permanently beyond the reach of the warrant. Article 117 does not say that an MP is protected from arrest wherever he may be found. Its protection is tied to the Member being on the way to, attending at, or returning from parliamentary proceedings.
The Standing Orders make a similar distinction. If Parliament is on recess and the Member is not attending or travelling to a parliamentary proceeding, the rules provide for service through the Speaker.
So, while the existence of the warrant gives EOCO a judicial basis for the arrest, the parliamentary procedure cannot simply be ignored.
This also puts the events at the Accra High Court last week in a different light.
EOCO had already attempted to arrest the MP. That attempt did not succeed. The MP has his own account of why the attempted arrest should not have taken place, while EOCO says its efforts to secure his attendance had failed and that it therefore went to court for the warrant.
This time, there is a judicial warrant expressly authorising the arrest.
But even with that warrant, the MP’s constitutional position remains relevant. The fact that the court has directed EOCO to proceed through the Speaker appears to recognise precisely that point.
And once the arrest is lawfully effected, the warrant is not a conviction. It does not establish that the MP committed the offences being investigated. It permits his arrest and production before the appropriate court in connection with the allegations for which the warrant was issued.
The ordinary constitutional safeguards for arrested persons will then apply. Article 14 requires a person who is arrested and not released to be brought before a court within 48 hours.
So the next stage would be for the MP to be brought before the court, where the appropriate orders concerning his custody, bail and the continuation of the proceedings can be considered.
For now, the answer to the question “How does EOCO get the MP?” is therefore neither that EOCO can simply arrest him like any other suspect nor that being an MP makes him immune from arrest.
Act 30 provides the general machinery for arrest under a warrant. Act 804 gives EOCO the relevant enforcement powers. Article 117 of the Constitution protects Members of Parliament in defined circumstances, while the Standing Orders provide the parliamentary procedure for dealing with legal process against Members.
And in this particular case, the High Court has reportedly given EOCO a very specific direction: execute the warrant through the Speaker.
The warrant is out. Now we wait to see how it is executed.
