Prof. H. Kwasi Prempeh writes

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I am told the committee of Parliament investigating certain allegations against a Minister pursuant to a censure motion says it has no “legal jurisdiction” to investigate conflict of interest claims concerning the Minister who is the subject of the investigation. I hear they say only CHRAJ has such jurisdiction in Ghana. Is that so? 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, would the Appointments Committee rule itself incompetent to investigate or consider those allegations! Or perhaps, it might stay consideration of the nominee and refer the matter to CHRAJ to investigate and give its ruling before Parliament proceeds with the nomination! By the time these lawyers who dominate our Parliament’s business, in weight if not in numbers, are done with us, they will have succeeded in turning our Parliament and parliamentary proceedings into a caricature of a court of law.

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.

Coming to this business of the motion of censure, we have just witnessed the lawyerization or judicialization of what is fundamentally a political, not a legal, sanction. A vote of censure is purely a political matter; it carries no legal consequence or liability, whether civil or criminal. It is 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 judicial matter; it is merely to accord the Minister a fair opportunity to address the legislative body on the matter.

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.

In fact, it is not clear to me 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?

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; 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 is a political verdict, not a legal one.

Parliament is a quintessentially political body. It is not a judicial or quasi-body; not even when it sits in committee to investigate a matter. Yes, a committee of Parliament is clothed 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 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. It does not 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 judiciization 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 short, 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 totally distorts Parliament’s essentially political function and undercuts and weakens its role in the constitutional scheme of checks and balances. We are using legalism in Parliament to subvert the prospect of implanting constitutionalism in our infant democracy.