Explainer: Here’s what the law says about arresting Members of Parliament

The raging debate on the circumstances in which a sitting Member of Parliament can be arrested for an offence or questioning has resurfaced again.

Parliament privileges

Over the years, Parliamentarians have maintained that the 1992 Constitution grants them some privileges which encompasses arrest by the police.

This aforementioned privilege has come scrutiny in recent days with the attempted arrest of Francis Xavier Sosu, the National Democratic Congress (NDC) Member of Parliament for Madina.

Mr. Sosu led a demonstration last week to protest bad roads in his constituency, which the police contend included some unlawful acts.

Mr. Sosu has said police tried to arrest him on the day of the protest which led him to fire a complaint in Parliament.

Upon a request by the police to the Speaker of Parliament to release Sosu for questioning, the Speaker refused by saying: “So I told them in any event, the Constitution is very clear when an MP is doing his duty as an MP you cannot arrest him. If you want to arrest me, write to the Speaker of Parliament”.

Rt. Hon. Speaker Alban Bagbin argued that by leading the demonstrations that resulted in the blockage of the Ayi Mensah-Danfa road by protesters and the burning of tyres which prevented the free flow of traffic, he was performing his parliamentary duty.

This has led to various commentary on whether lawmakers are exempt from arrests whether they are on parliamentary duty or not.

Below are the submissions of some legal experts in the country on what the law actually says:

The Dean of Faculty of Law of the University of Professional Studies, Accra, Professor Ernest Kofi Abotsi said: “the police are not duty-bound to inform or seek the permission of the Speaker before effecting an arrest of an MP.”

He added, “The authority of the Police to arrest extends to everyone except the President. An MP can only evade an arrest if he is on his way from or to Parliament.”

Private legal practitioner Ace Ankomah also waded in the controversy and submitted that Articles 117 and 118 which supposedly protects Members of Parliament are being misinterpreted.

He said: “I believe that maybe Article 117 and 118 are being overextended by Parliament to protect itself. How do you resolve this? I think you should issue a criminal summons and then go to the Supreme Court for an interpretation of 117 and 118.”

The Director of Public Affairs of the Ghana Police Service, ACP Kwesi Ofori, also said police could seek interpretation into the extent of parliamentary privileges afforded legislators.

“We are in a democratic country. The police have options. Even if it comes to the interpretation of that clause in the Supreme Court, the police are prepared to do it,” ACP Ofori said.

Article 117 says that “civil or criminal processes coming from any court or place out of Parliament shall not be served on, or executed in relations to, the Speaker or a member or the Clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of parliament”.

Article 118 also says: (1) 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.

(2) The certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament.

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