Speaker didn’t appear to understand MPs’ privileges – Prof. Asare

One more voice has joined the debate between a High court judge and the Speaker of Parliament over the privileges of an MP facing criminal prosecution.

Avid constitutional law adherent, Professor Stephen Kwaku Asare (who prefers to be called Kwaku Azar), has argued the Speaker of Parliament “got it wrong” in his letter asserting the privileges of Bawku Central MP Mahama Ayariga who is before Justice Afia Serwah Asare-Botwe for tax evasion.

The Speaker, Prof. Mike Oquaye who is also a lawyer wanted the scheduling of Mahama Ayariga’s trial to be done without conflicting his parliamentary duties.

He pointed to several provisions in the 1992 constitution, Article 117, 118, 122, which all border on privileges and contempt of parliament, to make his case.

The judge would have none of this and had her way in getting the beleaguered MP to abandon the chamber of Parliament and head to court to beat the judge’s 1pm deadline on the June 4 hearing.

justice Afia Serwaa Asare-Botwe
Justice Afia Serwah Asare-Botwe

She ruled on the Speaker’s ruling that the bedrock of Prof. Mike Oquaye’s argument, Article 188, does not apply to the accused Mahama Ayariga.

That Article says “Neither the Speaker, nor a member of, nor the Clerk to, Parliament shall be compelled, while attending Parliament to appear as a witness in any court or place out of Parliament.”

The judge stressed, Ayariga is an accused not a witness before the court.

Providing his reasons for disagreeing with the Speaker of Parliament, Prof. Kwaku Azar based in the United States (US) but busy with Ghana’s laws and politics, said Prof. Mike Oquaye “completely misunderstood” the privileges.

Prof. Azar listed all the three Articles the Speaker used and said these laws were completely misunderstood including Article 115, and 119  which the Speaker did not refer to directly in his letter.

He argued that an MP’s privileges mean he must not be subject to any court action for the work he does as an MP. For example, nothing he says in parliament, however outrageous, can be the subject of a legal suit.

In this case, such a suit “directly” targets his work as an MP, he explained. But if he were to set another man’s house on fire or rape a woman or in this case evade a tax as alleged, there can be no talk of his immunity.

This is because the charges do not directly target his parliamentary work, the social media legal resource said.

For the Bawku Central MP to seek refuge in immunity when he is entangled in a criminal process betrays a lack of understanding of Ghana’s laws.

He said India which shares a similar legal system with Ghana has a court for prosecuting only corrupt MPs.

Related image
Mahama Ayariga is being prosecuted by the Office of Special Prosecutor

The privileges are not enjoyed only by MPs, he said and explained no judge can be tried for his work as a judge. If the Speaker jumps the red light, he cannot expect to wave his immunity before the police to waive prosecution, he noted.

Prof. Kwaku Azar said even the Speaker of Parliament’s letter to the judge could be construed as contempt of court.

This is because ‘nobody can direct a judge in the conduct of their work” as the principle of separation of powers proscribes in the 1992 constitution.

As MPs like to say Parliament is a master of its own rules, they have met a judge and a court that is also master of their own course, he noted.

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