The censure committee and the judicialization of the business of Parliament

The ad hoc committee of Parliament, set up and directed by the Speaker of Parliament to investigate certain allegations in connection with a motion of censure brought against the Minister of Finance, made some “rulings” in the course of its public hearings that ended last week. One such ruling was that the committee, and for that matter Parliament, had no “legal jurisdiction” to investigate certain “conflict of interest” claims concerning the Minister who is the subject of the investigation.

According to the committee, claims of conflict of interests against a Minister can be investigated only by CHRAJ, an administrative body established under the Constitution to investigate and adjudicate administratively various complaints of abuse of power, including conflict of interest. Therefore the committee, acting in a bipartisan fashion, “struck out” the conflict of interests ground put forth in support of the motion of censure, citing want of “jurisdiction”.

This ruling of the ad hoc committee of Parliament raises some perplexing questions. First, nothing in the Constitution or in established parliamentary practice universally suggests, even impliedly, that the scope of Parliament’s oversight powers is limited in the manner stated by the committee. The Constitution of Ghana contains, in its chapter (24) on code of conduct for public officers, a blanket prohibition against “conflict of interests”. Both under the Constitution and by statute, CHRAJ is indeed authorized and empowered to investigate complaints or allegations of conflict of interests against a public officer, which includes a Minister of State. The committee of Parliament is, in effect, saying that, by authorizing and empowering CHRAJ to investigate complaints of conflict of interests, Articles 218 and 287 impliedly oust Parliament of “jurisdiction” or authority to consider, in the exercise of its oversight responsibilities, including in the context of a motion of censure, alleged conflict of interests against a Minister of State or any public office. This view is untenable for a number of reasons.

First, unlike CHRAJ, the committee, like the Parliament of which it is a part, sits as a political body. It is not an adjudicatory body, whether judicial or administrative. When it investigates a matter for the purposes of its oversight or legislative work, neither Parliament nor any of its committees is bound, in assessing the facts before it or drawing conclusions about those facts, to apply standards of the same kind or degree as a quasi-judicial or judicial body must. The judgment Parliament or its committee forms about a matter are political or policy in nature. Thus, in assessing an allegation of, say, conflict of interests against a Minister for the purposes of a censure motion, Parliament or any MP may choose to measure the conduct of the Minister against an ethical standard of integrity that is more stringent than the legal or judicial standard that CHRAJ or a court of law would be expected to apply to determine culpability in a legal case.

Thus, for example, Parliament may choose, in a particular instance, to adopt a zero tolerance standard of integrity, even if CHRAJ or a court of law would apply or follow a less exacting legal standard in a legal case. Because Parliament is a political, not a judicial or quasi-judicial body, it is entirely within its prerogative to apply standards for evaluating public conduct that do not mimic or follow the judicial standard that a court or administrative body must apply. In short, Parliament may decide, for purposes of a censure motion, that conduct of a Minister that is otherwise legally acceptable is nonetheless politically or ethically unacceptable.

The second problem with the ad hoc committee’s ruling is its adverse practical implications for the work of Parliament and its committees. Let’s just stick with the conflict of interest example. So, suppose a citizen petitioned the Appointments Committee of Parliament concerning a nominee for ministerial or other public office, alleging conflict of interests on the part of the nominee, how would the would the Appointments Committee handle the matter? Would it rule itself incompetent to investigate or consider those allegations! Or would the Appointments Committee stay consideration of the nominee and refer the matter to CHRAJ to investigate and give its ruling before Parliament proceeds with the nomination!

Clearly, the Appointments Committee, if it means to undertake its vetting task with diligence and credibility, cannot but investigate or consider a conflict of interests petition brought against a nominee. It cannot outsource or defer to any other body on that matter. Indeed, given that CHRAJ is also charged, pursuant to Article 218 of the Constitution, with investigating complaints or allegations of “violations of fundamental human rights, injustice, corruption, and abuse of power”, and complaints concerning unfair or discriminatory recruitment in the security services, as well as all instances of misappropriation of public moneys by officials, is the ad hoc committee suggesting that Parliament is without power to investigate these same matters? What then is the essence of Parliament’s oversight and legislative powers? Note that information and knowledge gleaned from oversight investigations are also to inform and assist Parliament to better perform its legislative work. Can Parliament enact a law on conflict of interests yet not be able to investigate conflict of interests matters?

Third, it is important to note that, the authority of CHRAJ to investigate complaints of conflict of interests is not self-triggering. Under current case law, CHRAJ cannot proceed to investigate a conflict of interest case on its own initiative; its investigative and adjudicatory mandate in that regard must first be triggered by a complaint or allegation from a third party. Thus, the argument of the committee that, it cannot wade into a conflict of interests matter involving a Minister or other public officer because to do so would create a jurisdictional clash with CHRAJ is unavailing, because if Parliament declines to investigate the matter it does not mean that CHRAJ will. CHRAJ needs a third party to bring a complaint of conflict of interests before it can proceed to exercise its investigatory or adjudicatory power; Parliament is not subject to any such constraint.

In short, failure on the part of Parliament or a committee of Parliament to investigate a matter might mean, possibly in most cases, that the matter would escape scrutiny entirely.  In any case, as previously discussed, even if a parliamentary inquiry were somehow to overlap with an administrative investigation or inquiry by CHRAJ, the two processes need not view the matter through the same lens or apply the same standard; the parliamentary or committee inquiry is free to apply an ethical or a policy standard that may be more rigorous than the applicable legal standard that CHRAJ or a court must follow. In fact, Parliament need not even give the alleged misconduct a name or call it a “conflict of interest”!

This is not the first time that the Parliament of Ghana has approached and construed its mandate and work in very narrow legalistic, rather than political, terms. As the Fourth Republic has progressed, we have witnessed a growing judicialization of the work of Parliament and its committees. I have actually heard, more than once, different Speakers of Parliament entertain and grant an objection from the floor of the House that a statement by an MP who had the floor was “hearsay” and thus inadmissible during deliberations in the House. Hearsay rule in Parliament!

The name Parliament comes from the French word “parler”, meaning “to talk”. Being able to speak one’s mind freely in the House is indeed definitional to what it means for one to be a member of Parliament. Because MPs are representatives of their constituents and of We the People, they must be free to speak and vent on our behalf, including conveying our concerns and feelings about all manner of public affairs. To do so effectively, MPs cannot be constrained by courtroom-style rules of evidence or procedural burdens of proof. That is why MPs enjoy a wider scope of free speech privileges when they participate in deliberations of the House than the standard free speech rights ordinary citizens are entitled to. Thus, speech on the floor of Parliament, including in committee, cannot be subject to suit for defamation or on any other ground in a court of law or any other forum outside Parliament. Only Parliament itself, through its standing orders, can regulate speech on the floor of the House as being unparliamentary or in breach of Parliamentary privileges.

Returning to this business of the motion of censure, what we witnessed is the lawyerization or judicialization of what is meant to be a political, not a legal, process or sanction. A vote of censure is purely a political matter; it carries no legal consequence or liability, whether civil or criminal. The outcome of a vote of censure is not equivalent to a conviction or an acquittal; it is not a guilty or not guilty verdict. A vote or motion of censure is a political process used to register the collective disapproval or displeasure of the House about the conduct or performance of a Minister. The fact that the Minister who is the target of a censure motion is entitled to be heard in his defense does not convert the censure proceeding into a trial or some such judicial matter; it is merely to accord the Minister a fair opportunity to address the legislative body on the matter and  preserve his rights.

At all times, whether the proceeding takes place before a committee or the House as a whole, it remains a political one. That is also why there are no specific stated grounds required to trigger, consider or pass a vote of censure. MPs can choose, individually or collectively, to vote to censure a Minister for reasons that appear sufficient to each of them. As their vote is, like all votes cast in Parliament, a political one, the reason for voting one way or the other on a censure motion cannot be questioned anywhere. Not only that, the censure verdict, however it goes, cannot be challenged or reviewed in any judicial forum. This, in fact, is an important dimension of the “political question doctrine”: responsibilities, decisions and related actions that are constitutionally committed or entrusted to a political branch of government, when taken by that body, are not a proper subject for judicial review.

In fact, it is not even clear what the committee is supposed to do after these hearings. Is it going to issue a report to say that the Minister is “guilty” or “not guilty”; that the “burden of proof” has been or not been met; that a motion of censure can or cannot proceed on the basis of the “evidence”? What exactly is the committee supposed to report to the House about after undertaking this exercise? And what is the House supposed to do next?

The principal safeguard against reckless use of Parliament’s censure power is that it must secure the support of at least two-thirds of all MPs in order to pass. But even if it were to pass that appropriately high supermajority threshold, a vote to censure a Minister is not a verdict of legal guilt or liability on the part of the censured Minister. In fact, the President may choose to keep a censured Minister in his or her position, although, having been censured by no fewer than two-thirds of MPs, a decision by the President to keep a censured Minister at post is likely to be politically untenable. In any case, no legal disability or disqualification attaches to a censured Minister; in fact, he or she may be nominated or appointed to ministerial office in the future, if a subsequent Parliament approves of the nomination. This further underscores the fact that a censure vote, regardless of the grounds underlying it, is a political verdict, not a legal one.

It bears repeating that Parliament is, in form and substance, a quintessentially political body. It is not a judicial or quasi-judicial body; not even when it sits in committee to investigate a matter. A committee of Parliament is, pursuant to Article 103(6) of the Constitution, clothed, as it must, with the powers of a High Court. But to have the powers of a court is not the same as being a court or the equivalent of a court. A parliamentary committee is given the powers of a High Court so as to assist and enable it carry out its investigative mandate effectively–such as by summoning witnesses to appear before it or to produce documents it needs to see. A parliamentary committee is, in short, given the powers of a High Court “for” very specific purposes. It does not, however, change from a political body to a judicial or quasi-judicial body merely by assuming the powers of a High Court that are necessary for the effective discharge of its legislative or other parliamentary work.

The lawyerization and judicialization of the business of Parliament is bad for our democracy. Not only does it improperly narrow the purview or scope of Parliament’s remit, it also shifts power in Parliament unduly in favour of lawyer-MPs and forces certain important issues of public interest and consequence from being fully and properly aired and considered by members of the House. In fact, successive Speakers of Parliament, all of whom have been lawyers, as if that was a required or necessary qualification for the job, have used spurious legalistic rulings from the Speaker’s chair to  prevent certain public matters from being aired on the floor and the House from exercising its investigative mandate to look into certain matters concerning the Executive.

I recall, for example, that when an attempt was made to get Parliament to investigate an allegation of bribery of a Ghanaian president by Nigeria’s General Abacha, the process was blocked by the then Speaker of Parliament on some legalistic grounds. Other Speakers have followed this bad precedent to shield the Executive from appropriate parliamentary scrutiny in a number of instances.

While it is not uncommon for lawyers to dominate the business of Parliament, in weight or inflence if not in numbers, it is important for MPs, including lawyer-MPs, to appreciate that theirs is a distinctly political, not a legal, role.  Importing ill-fitting judicial or legalistic rules of procedure and evidence as well as doctrines of preemption or ouster of jurisdiction into the conduct of parliamentary business, whether in committee or on the floor of the House, totally distorts Parliament’s essentially political function and undercuts and weakens its role in the constitutional scheme of checks and balances. The limits to Parliament’s powers are defined in and by the Constitution. Unfortunately, we are using inappropriate legalism in Parliament (in the service of partisanship or self-interest) to shrink the scope of Parliament’s remit and thereby subvert the prospect of implanting constitutionalism in our infant and increasingly stunted democracy.

H. Kwasi Prempeh

November 22, 2022