PARLIAMENT AND DEMOCRACY
By CAMERON DUODU
A robust debate has broken out – mainly on the Internet – over whether Parliament has the right to punish people for “contempt of Parliament”.
Some people do not think that Parliament has the right to lay such a charge, given that we live in a country whose Constitution guarantees “freedom of speech”. Others say that the Constitution empowers Parliament to punish people for contempt, but that this power should not be used lightly.
Certainly, the Constitution offers full protection to “freedom of speech” and other fundamental human rights. It says:
(1) All persons shall have the right to –
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom;
(c) freedom to practise any religion and to manifest such practice;
(d) freedom of assembly, including freedom to take part in processions and demonstrations.
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest;
(f) information, subject to such qualifications and laws as are necessary in a democratic society;
(g) freedom of movement which means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana. (2) A restriction on a person’s freedom of movement by his lawful detention shall not be held to be inconsistent with or in contravention of this article.
But at the same time, the Constitution also provides that:
QUOTE: An act or omission which obstructs or impedes Parliament in the performance of its functions, or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result, is contempt of Parliament.
Where an act or omission which constitutes contempt of Parliament is an offence under the criminal law, the exercise by Parliament of the power to punish for contempt shall not be a bar to the institution of proceedings under the criminal law.
On the face of it, the second provision of the Constitution may appear to contradict the earlier one. But that is not the case.
Freedom of speech is to be exercised “lawfully”, which means it must – for instance – not be exercised to defame others; or incite citizens to breaches of the peace, or to engage in treasonable acts, and that sort of thing.
The Constitution also implies, further, that freedom of speech must not be used to “affront the dignity” of Parliament. Whoever uses freedom of speech to that effect can be punished by Parliament.
In fact, the Constitution – exceptionally, it seems – allows the possibility of such a person being punished twice for the same offence – first the offender can be punished by Parliament, but then (the Constitution adds) Parliamentary punishment “shall not be a bar to proceedings under the criminal law”.
Does this mean that in a case where a person had, for instance, committed perjury before Parliament, Parliament could, if it so chose, punish him for “contempt”, but still hand him over to the prosecution authorities to be charged with the criminal offence of perjury?
Perhaps, the provision must be viewed more as a deterrent than as a licence to visit “double jeopardy” upon the head of the offender.
But that is by the bye – the discussion on the Internet has been largely concerned with examining whether Parliament is empowered to punish people who make utterances that MPs may find “insulting”; i.e. which constitutes (in the technical language of the Constitution) “an affront to the dignity” of Parliament.
There is no equivocation over the Constitution providing Parliament with that power. The reason why Parliament is thus protected is that Parliament is responsible for passing the laws that govern the daily lives of every citizen. In order that we should live in harmony, the state uses coercive power to ensure that these laws passed by our own elected representatives are obeyed.
Yet, can we obey laws passed by people whom we despise? If we despise MPs, then we also disrespect the laws they pass, and if we disrespect the laws of our country, then we are living in anarchy.
That is why those who incite us to despise Parliament can be punished by Parliament.
For when a country descends into anarchy, everyone in it tries to do what he or she likes. The only limiting factor is the ability of individuals to organise violent acts to back their disrespect for the law.
For instance, if people in the country organised “land guards” and used them to grab lands and houses that did not belong to them, without the police and the army stopping the land-grabs, we would have an anarchic situation on our hands. Eventually, bands of “land guards” could even be used for other purposes, especially, to achieve political objectives. How? Well, “land guards” could be used to break up political meetings, couldn’t they?
So, the protection given to Parliament by the Constitution – and thereby its laws – is to prevent individuals from undermining the rule of law, in the final analysis.
Of course, Parliament must be very careful in exercising this power. For democracy is achieved largely by “compromise” – each arm of the state must understand and co-operate with the other arms. And that includes taking account of enlightened public opinion.
Actually, if Parliament tries to use its powers of contempt arbitrarily, without respecting the democracy that underlies the spirit of the Constitution, it could end up seriously ridiculing itself. I shall illustrate this possibility with a personal anecdote.
As Editor of the Daily Graphic, I was tipped off one day in March 1970 that some Russian trawlers that belonged to the Ghana Fishing Corporation, had been sold cheaply to a British businessman called Victor Passer, and that he was about to sail with them to Brazil, where he was expecting to sell them at a good profit.
I was puzzled: if the Brazilians wanted them, then Russian-manufactured though they were (there was much anti-Russian prejudice about, at that time) they were not as useless as the Ghanaian public had been led to believe. Why could we not use them ourselves to catch fish and bring down the cost of living for our people?
I published the story prominently on the front page. The Government of Prof K A Busia reacted promptly by ordering that the trawlers should not sail. But this decision was apparently leaked to the purchaser, and he tried to sail away with them clandestinely out of Ghana’s territorial waters, and thereby, to present the Government with a fait accompli!
But again, I was tipped off that this was about to happen and published the news of the attempt to sneak away with the boats. Very prominently on the front page.
The Government then sent the Ghana Navy to bring back the boats!
They were brought back to Tema. I went to Tema myself to report on the return of the boats by the Ghana Navy. The memorable headline to the story was “BACK TO BATAAN!”
Meanwhile, the publicity surrounding the boats had alerted Parliament, and some MPs got the Speaker to set up a Parliamentary Committee to investigate the circumstances surrounding the sale of the trawlers. But as soon as Parliament became involved, party politics reared its head over the matter. Opposition MPs became anxious to use the affair to embarrass the Government, which then closed ranks around the Minister of Agriculture, Dr Kwame Safo-Adu, whose Ministry was in charge of the sale of the trawlers.
Simultaneously as the parliamentary tug-of-war was going on, the Ghana Government was put under tremendous pressure by the British Government, which was demanding to know why a lawful sale agreement between a Ghanaian Ministry and a British company, was not being honoured.
Meanwhile, I published a list of questions about the sale of the boats, and challenged the Parliamentary Committee to find the answers to them.
This annoyed some of the MPs, who claimed that I was “usurping” the work of a Parliamentary Committee!
Ridiculous as this attitude was — I mean, why couldn’t the Press and Parliament each carry out its own functions autonomously? — the MPs persuaded the Speaker to write to me to ask me why Parliament should not summon me before it to answer a charge of “contempt of Parliament!”
But even as I was thinking about how to reply to the Speaker’s letter, I received a report that the Ghana Government had caved in to the pressure from the British Government and allowed the boats to leave the country’s territorial waters!
I could have wept! I wrote a strong reply to the Speaker’s letter, telling him that it was my duty, as a Ghanaian, to do everything in my power to prevent my country from “bolting the stable door after the horse had escaped”! While he and his MPs were fussing about who should say what, the boats had gone, I pointed out!
It was a cheeky reply, but I was so enraged that I would gladly have suffered any punishment the Speaker and his MPs thought fit to inflict upon me.
The Speaker did not reply to my letter!
Yes – Parliamentarians have power, but they must not exercise it without taking the real interests of the people who elected them, into account. I hope the discussion that has attended the Ebola test trial incident has been a good lesson to us all. It is such an airing of issues that enables democracy to grow deep roots in a country.