Minority MPs Motion to Investigate Mahama Stillborn  

Contrary to media reports engineered by New Patriotic Party Members of Parliament that Parliament has been recalled to consider a motion they have filed to trigger impeachment proceedings against President Mahama, a search at the law making house suggests that no such motion exist.

In fact, the only motion tabled to be considered by the House was the one filed by Minority Leader, Osei Kyei Mensah Bonsu on behalf of his colleague NPP MPs dated August 3, 2012 seeking to impress on the House “to constitute a special parliamentary committee to investigate” what has become known as the Ford Expedition saga.

A motion seeking to rally parliament to make an inquisition into a matter is different from a motion to trigger impeachment proceedings against the President. Impeachment proceedings by parliament under article 69 of the constitution do not require parliamentary inquiry. Such a motion, if move and seconded, would have to be referred to the Chief Justice who will then institute a committee chaired by her to investigate the matter and make recommendations to parliament to decide on.

The present motion for which reason MPs have been recalled has nothing to do with article 69. It is erroneous for anybody to suggest that the MPs will tomorrow consider impeachment process against the president. Such position can best be described as an assumption or a figment of imagination of the opposition MPs and their cohorts.

The mischief inherent in the motion filed by the minority MPs has been utterly revealed by a press conference addressed by the Majority Leader, Alban Bagbin so I don’t intend to dwell on it. The Noy lingering legal question, which the Majority Leader in his address mentioned but for strategic reason did not advance any legal argument to support, is whether parliament can make an inquisition into a matter already being investigated by a quasi-judicial body?

The malice laden motion is not only making reference to the matter before a quasi-judicial body but is calling for an investigation of the same matter and the same issues before it. Indeed, it is the same matter which CHRAJ is looking into, that the Minority MPs are calling on the House  to pronounce on.

Order 91 (1) of the standing orders of parliament provides that “reference shall not be made to any matter on which judicial decision is pending in such a way as may, in the opinion of Mr. Speaker, prejudice the interest of parties to the action.”

The instant case parliament is being called upon to investigate is before CHRAJ which has commenced investigation, and indeed written to the President to file his defence, which he has dutifully done. How then would parliament sidestep its own rules to investigate the same case again?

The judicial powers  of CHRAJ under article 218 which mandates it to carry out investigations involving public officials and in some cases private individuals ( see CHRAJ v AG & Baba Kamara, and Zoomlion Ghana Limited v AG) are not in doubt.

Like the regular courts, CHRAJ has extensive powers among which include power to subpoena, cite people for contempt and others things. Indeed, CHRAJ is categorized under the judiciary even though its functions are considered as extra judicial remedy.

Ghana is among the comity of nations forming the Commonwealth. The Commonwealth (Latimer House) Principles on the relationship among the Three Branches of Government in 2003 reaffirms stipulates that “(a) Relations between parliament and the judiciary should be governed by respect for parliament’s primary responsibility for law making on the one hand and for the judiciary’s responsibility for the interpretation and application of the law on the other hand;

(b) Judiciaries and parliaments should fulfill their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner'”. Erskine May states that “Where an issue is awaiting determination by the courts, that issue should not be discussed in the House in any motion, debate or question in case that should affect decisions in court”. See 24th Edition of Erskine May’s Parliamentary Practice and Procedure, page 441.

 

Thus the legislature must accord and respect the independence of the judiciary especially on matters that are before the courts and quasi-judicial bodied for adjudication. The sub juice rule guards against Parliamentary interference in cases currently before the courts and quasi-judicial bodies.

 

This is captured in Order 93(1) (supra) of the Standing Orders which clearly states that “Reference shall not be made to any matter on which judicial decision is pending in such a way as may, in the opinion of Mr. Speaker, prejudice the interest of parties to the action”.

What Order 93(1) is saying is that you can make reference to matters before the Courts, but these should not, in the opinion of the Speaker, prejudice the interests of the parties in the case.

 

The late Rt. Hon. Peter Ala Adjetey, Speaker of the Third Parliament of the Fourth Republic, in making a ruling on Order 93 (3) of the Standing Orders made an allusion to the sub judice rule when he said “The Speaker, may, in a particular case where it is quite obvious, refuse to have a motion admitted, especially when it is covered by aclear-cut case. For example, if you put forward a motion affecting amatter which is pending in court directly and it was brought to the knowledge of Mr. Speaker, Mr. Speaker is bound to draw attention to the fact that such a motion cannot properly be debated by the House and, therefore, cannot be accepted, But it does not follow that in every case in which amotion is accepted and listed the Speaker has necessarily gone through the motions of deciding every issue of propriety involved in that motion, no. 

 

Indeed, although the Speaker has power to intervene in matters which are out of order, he may nevertheless refrain from exercising that power. If I may refer, on this matter, to Erskine May; it deals with this question of the Speaker exercising power to intervene. And it says in the 22ndedition which the Hon Member for Avenor referred to-page 396:

 

{It is the duty of the Speaker to intervene to preserve order, though he may refrain from intervening if he thinks it unnecessary to do so. If he does intervene, however, whether for the above reason or because he has not perceived that a breach of order has been committed, it is the right of any Member who thinks that such a breach has been committed to rise in his place, interrupt any Member who may be speaking and direct the attention of the Speaker to the matter}. 

 

So quite obviously, the fact that this matter was admitted and put on the Order Paper does not prevent any Member of the House from raising issues with regard to the propriety of the matter being debated by this House when the matter comes before this House”.See the Official Reports of the House of 12th and 13th December 2001, Column 2262.

 

The proper relationship between Parliament and the courts requires that the courts should be left to get on with their work “…Restrictions on media comment are limited to not prejudicing the trial, but Parliament needs to be especially careful: it is important constitutionally, and essential for public confidence, that the judiciary should be seen to be independent of political pressures. Thus, restrictions on parliamentary debate should sometimes exceed those on media comment. See Richard Benwell and Oonagh Gay, on “Separation of Powers”, Library of the House of Commons, Standard Note: SN/PC/06053, Last updated 15 August 2011.

 

It is not in doubt the Ford Expiation gift to the president contemplated for debate in the motion is of public interest and ordinarily the general public would be interested in following developments in the House. However, it will be impossible for movers of that motion to articulate their case, and the matter thoroughly debated for a decision by parliament without reference to the material issues in the case before the CHRAJ.

 

It is useful to draw on the experiences and guidance established by precedent in other jurisdictions, especially the United Kingdom House of Commons from where most of the provisions of standing orders of Ghana’s parliament were borrowed.

 

In 24th Edition of the authoritative Erskine May’s Parliamentary Practice and Procedure, under the sub-heading “Matters Awaiting Judicial Decision”, there is reference to the current practice governing matters sub judice as follows:

 

(1)   Cases in which proceedings are active in United Kingdom Courts Shall not be referred to in any motion, debate or question.

 

(a)  (i).Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or in Scotland a warrant to cite has been granted.

 

(ii) Criminal proceedings cease to be active when they are concluded by verdict and sentenced or discontinued, or in cases dealt with by Court Marshal after the conclusion of the mandatory post trial review.

 

(b) (i) Civil proceedings are active when arrangements for the hearing such as setting a case for trial have been made until the proceedings are ended by judgment or discontinued.

(ii) Any application made in or for the purposes any civil proceedings shall be treated as distinct proceedings.

 

(c) Appellate proceedings whether criminal or civil are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinued. 

 

The above-stated authorities on the sub judice rule in Parliament, which have also been confirmed on pages 94 and 95 of DODs Handbook on House of Commons Procedure, establish clearly and unequivocally that cases in which proceedings are active in United Kingdom Courts Shall not be referred to in any motion, debate or question.

 

Indeed, it is yet to be seen in any legal system both Parliament and the Judiciary are inquiring into the same matter simultaneously. What would be the effect if an investigation undertaken by Parliament as anticipated under the present motion, arrives at an outcome and a decision contrary to the outcome and decision of the CHRAJ?

 

To the extent that this motion seeks parliamentary inquisition into a matter already being investigated by CHRAJ, it is stillborn and the majority side of the house must raise a point of order to stop it from being debated. What the minority is seeking to do is unhealthy to our democratic practice and must not be allowed to fester.

 

Mame Esi Apreku/Ghanapoliticsonline.com