Prof. H. Kwasi Prempeh writes: Parliament versus the People: Contempt of Parliament or Contempt of the People?

Prof. H. Kwasi Prempeh
Prof. H. Kwasi Prempeh

On Tuesday, July 14, 2015, Professor Alex Dodoo, an associate professor of clinical pharmacology at the University of Ghana School of Medicine and chair of the World Health Organization’s Collaborating Centre for Pharmaco-Vigiliance, appeared before the Privileges Committee of Parliament in response to a summons from the Speaker of the House.  The professor had been summoned to appear before the committee to answer for a public comment he had made that was allegedly in contempt of Parliament.

The matter arose in connection with the public controversy that erupted in June over reports that an international pharmaceutical company was about to begin human trials of an Ebola vaccine in the Volta Region.  Led by Members of Parliament from the target communities, Parliament rose in opposition to the vaccine trials and demanded their immediate suspension, querying why Ghana, which had no recorded case of Ebola, would be chosen as a site for the vaccine trials.

The trials had earlier been approved by the Food and Drug Authority and the Ministry of Health, presumably in accordance with the existing statutory and regulatory regime governing the conduct of such trials.  In the ensuing debate over the trials, Professor Dodoo, speaking during an interview on JOY FM’s Super Morning Show, expressed his disappointment at Parliament’s reaction to the trials and described the legislators’ reported comments on the floor of the House, especially their queries regarding the legal basis for the trials, as “uninformed” and “ignorant”.  Calling Professor Dodoo’s statement “a serious indictment on the House,” the Member of Parliament for Ho West, one of the communities selected for the trials, moved the House to summon the professor to appear before the Privileges Committee to answer for his “insult”.

Professor Dodoo’s appearance before the Privileges Committee for alleged “contempt of Parliament” was the third such appearance by a member of the public in roughly a month.  Earlier in June, local reggae musician and radio presenter Blakk Rasta (a.k.a. Mr. Abubakar Ahmed) had been summoned to appear before the Privileges Committee to answer for alleged “contempt of Parliament” after he reportedly stated on his Hitz FM show that, “There are about eighty percent of parliamentarians who smoke wee”.   Journalist and editor-in-chief of the Daily Searchlight, Kenneth Kuranchie, whose newspaper had carried the comments by Blakk Rasta, also appeared before the Privileges Committee of Parliament in June in response to a related summons from the House.

At their respective appearances, both Professor Dodoo and Blakk Rasta were contrite.  Both appeared with counsel, but neither contested the legality of their contempt proceedings.  Instead, they each rendered an unqualified apology to the House.  On July 24, after additional appearances before the committee by both Professor Dodoo and Blakk Rasta, it was reported that the House, acting in accordance with the report of the Privileges Committee, had voted to “pardon and discharge” Professor Dodoo.  However, the committee reportedly rejected Blakk Rasta’s apology as insincere.

Regardless of the outcome of these proceedings, the fact that Parliament chose to respond in this fashion, and the fact that its actions have so far raised no notable protest or challenge from the media, academia, or civil society, are both deeply troubling.  The Speaker and Members of Parliament appear certain and united in their belief that their actions in summoning Professor Dodoo and Blakk Rasta to appear before the Privileges Committee to answer allegations of contempt of Parliament are well within the lawful powers of Parliament. The Speaker has asked critics of Parliament’s actions to head to the courts if they so wish.

Because these recent developments raise very troubling constitutional concerns affecting the rights and freedoms of citizens, academics, and the media and have far-reaching implications for the ability of the governed to hold their elected representatives accountable, they must not pass without challenge.  In the remainder of this article, I will demonstrate that our Parliament’s expansive conception of its contempt power, as illustrated by the Blakk Rasta and Professor Dodoo cases, is not supported by a careful reading and analysis of the applicable constitutional text or by the ideals and principles of popular sovereignty that underpin the constitutional system of the Fourth Republic.

What is the Scope of Parliament’s Contempt Power?

It is beyond question that our Parliament, like all parliaments, is vested with “the power to punish for contempt.”  The Constitution expressly affirms that fact in Articles 122 and 123.      The question that remains to be answered is the scope and content of Parliament’s contempt power.  Specifically, against whom and for what conduct may Parliament use its contempt power?

Article 122 defines as contempt of Parliament, “Any 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”.  While helpful as a starting point, this provision alone does not provide enough clarity or guidance as to the scope or content of Parliament’s contempt power.  In other words, it is a provision that, like many others in the constitution, requires interpretation. Where, then, might one look to get a clearer picture of the meaning and scope of Parliament contempt power?

Mention has been made of Article 123. But that provision adds little to our understanding of the scope and meaning of Parliament’s contempt power.  It merely says that, the fact that a particular conduct offends a provision of the criminal laws does not mean it cannot also be treated separately and additionally as contempt of Parliament.  For example, if a witness appearing under oath before a committee of Parliament intentionally gives false testimony to the committee, that act may be prosecuted as perjury under the criminal laws and, at the same time, as contempt of Parliament.  Article 123, therefore, merely tells us that, in some cases a person may be punished twice for the same offence; first, for contempt of Parliament, and second, for violating some other provision of the Criminal Offences Act.  Thus, while Article 123 further affirms Parliament’s contempt power, it does not help us determine the scope or permissible uses of that power.

What about Article 115?  Article 115 states that, “There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.”  This “Speech and Debate clause” confers no power on Parliament as such. What it confers is a privilege in the form of an immunity or protection from lawsuit or civil or criminal liability. And that immunity is conferred on MPs for the things they say in the course of debate and proceedings in the House or in committee.

Thus, a statement by an MP, which might otherwise be deemed defamatory if said outside Parliament about a named individual, would carry no legal consequence if made on the floor of the House or in committee–although Parliament itself, pursuant to Article 116(2) can treat the matter as a breach of privilege and require the Member to render appropriate apology.

Article 115 is designed to encourage robust and frank deliberations in Parliament.  It recognizes the fact that, as Parliament is a political chamber whose members must represent and articulate the concerns, grievances, frustrations, and demands of their diverse constituents, debate and deliberations in the House or committee might get passionate, heated, and acrimonious.  In addition, members may not always come to these debates with full knowledge or information on the matters in discussion.

The privilege conferred by Article 115 is, therefore, important to ensure that members participate in the deliberations of the House or a committee without fear of personal legal liability.  One cannot help but note the irony that, while the Constitution protects MPs from legal liability for the wrongful things they might say about others in the course of proceedings or debate in Parliament, these same MPs now seek to use Parliament’s contempt power against everyday citizens who voice unflattering or demeaning opinion about MPs in the public square.

I have also heard Article 115 invoked for the proposition that, nothing Parliament does within the four walls of the House or a committee, including proceedings for contempt of Parliament, can be challenged in court or anywhere.

This reading of Article 115 is, of course, clearly erroneous.  First of all, as the UK Government’s 2012 Green Paper on Parliamentary Privilege explains, “The term “’court or place out of Parliament’ has never been read as meaning any place, as this would have the absurd effect of stopping questioning of what was said in Parliament on the streets or in newspapers.

Instead, in keeping with legal principles of interpretation, the assumption has been that the term applies to bodies which are similar to courts – the most obvious being tribunals.”  The immunity MPs enjoy under Article 115 is an immunity from personal legal liability and cannot in any way be read to confer on MPs immunity from public censure by citizens engaged in routine conversation in the public square.  Secondly, the privilege or immunity conferred under Article 115 is limited to “freedom of speech, debate and proceedings”.  Therefore, it is only the exercise by MPs of their freedom of speech, in the context of debate and proceedings of the House that may not be challenged in any court or tribunal.  Article 115 does not extend a blanket immunity to every act that is done by MPs in Parliament.  For example, if a witness appeared before Parliament and was physically assaulted by a Member of Parliament, that Member could not hide behind Article 115 to claim immunity from being sued in tort or prosecuted for the assault.

During the scandal that broke over British MPs presenting false expense claims, some defendants in criminal trials relating to the scandal argued that they could not be prosecuted on the basis that submitting claims for expenses was protected by parliamentary privilege; this argument was unanimously rejected by the U.K. Supreme Court in R v Chaytor (2010).

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As a general proposition, Parliament is protected by the principle of separation of powers from having the courts pry into its everyday internal business.  However, that general principle holds true only if Parliament is acting or has acted within its lawful authority and jurisdiction.  If Parliament acts in excess of its powers, it cannot escape judicial challenge and scrutiny for its unconstitutional acts by invoking Article 115 or any provision for that matter.

Parliament’s powers spring from the Constitution, and only when it stays within the limits of its constitutionally delegated powers is it entitled to non-interference in the conduct of its internal business.  In short, Article 115 does little to advance our understanding of the content of Parliament’s contempt power.  We must, therefore, continue to look elsewhere for further clarity.

Contempt of Parliament Not of Equal Scope as Contempt of Court

Some have suggested that Parliament’s contempt power is similar or identical in scope to the power of the judiciary to punish for contempt of court. Parliament’s contempt power indeed has something in common with the power of the judiciary to punish for contempt of court:  Both serve a functional or instrumental purpose, designed to assist the respective institution to exercise its mandate and perform its functions effectively.

In that respect, the contempt power of Parliament, like the contempt power of a court, is a means to an end; it is not an end in itself.  Its primary purpose is to enable Parliament to protect its institutional mandate and prerogatives as a legislative and oversight/investigative body from being obstructed, frustrated, or disregarded by any person over whom such prerogatives and mandates are exercised.

Beyond their common instrumental purposes, however, there is an important reason why Parliament’s contempt power cannot have the same reach as a judge’s power to punish for contempt of court.

Judges and MPs operate in vastly different environments.  As opposed to the political environment, judges operate in a deliberately cloistered setting that is also highly formalized and structured.  By the nature and traditions of their calling, judges generally cannot enter the public fray or even use their courtrooms to debate or respond to their harshest or most vile personal critics.

Professionally constrained in their ability to refute or answer unjustified attacks on them, judges are allowed to use contempt of court to counter some of these attacks where such attacks carry a risk of interfering with the administration of justice in a matter at hand.  Yet, even with contempt of court, it has long been established in case law that its purpose is not to vindicate the personal integrity of the judge or to protect him from insult but to prevent or punish undue interference with the administration of justice.

Unlike judges, MPs are active players in an everyday political environment that is characterized by open, robust, and often intemperate and acrimonious, give-and-take with other politicians, the media, and the public.  And unlike judges, MPs have full access to the media and are free to use the same opportunity to answer or hit back at their attackers and critics.

Moreover, as we have seen already, MPs enjoy special privilege in Parliament to respond to any verbal or published attack on them or on Parliament as a whole that they might deem unfair or wrong.  Because the environment in which they operate as politicians is given to heated exchanges and does not restrict their ability to give and take in equal measure, MPs, both individually and as a collective body, cannot justify the use of “contempt of Parliament” on the same terms or to the same extent as judges can contempt of court.

Our Constitution also treats contempt of court specially in allowing the courts to use their contempt power summarily to restrict the liberty of the individual without extending a similar power to Parliament to use its contempt power.  To appreciate this point one must juxtapose the respective contempt powers of the courts and of Parliament against relevant provisions of Chapter Five of the Constitution.

Chapter Five contains the provisions on the fundamental human rights and freedoms guaranteed to all persons living within the jurisdiction of Ghana.  The Chapter opens, importantly, with the provision in Article 12(1), which states that, “The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies.”  This provision makes it clear that the institutions of State, including, notably, Parliament, are duty-bound to respect and uphold the constitutionally guaranteed rights and freedoms of Ghanaians and all other persons living in Ghana.

As we get further into the substantive provisions of Chapter 5 we encounter Article 14(1).  This provision guarantees every individual their “personal liberty” and provides that “no person shall be shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law”.  The “exception” half of Article 14(1) then lists seven circumstances—the only permissible instances—in which the liberty of the individual may be lawfully restricted.  These are: “(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; “(b) in execution of an order of a court punishing him for contempt of court”; “(c) for the purpose of bringing him before a court in execution of an order of a court”; “(d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community”; “(e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years”; “(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another”; “(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”

The above-quoted sections of Article 14(1) identify unambiguously the only (seven) instances in which a person may lawfully be held, restricted, or confined against his or her will.  Those instances include “in execution of an order of a court punishing him for contempt of court.”  Notably, “contempt of Parliament” is not one of the seven grounds on the basis of which the liberty of the individual may be restricted or limited under our Constitution.

This means that, while the Constitution recognizes Parliament’s power to “punish for contempt”, that power by itself, unlike the judiciary’s contempt power, does not give Parliament the ability, acting on its own, to restrict or limit the constitutionally guaranteed liberty of an individual.  Thus, for example, Parliament cannot, under our constitution, order a person to be jailed or held against their will for contempt of Parliament.

Under the Constitution, the only circumstance in which a person can be jailed or detained for an offence, other than for contempt of court, is if the offence and the penalty associated with it are codified or contained in a written law (in compliance with Article 19(11)) and the alleged violator has been duly tried, convicted, and sentenced by a court of law as per Article 14(1)(a).  Parliament by itself cannot summarily detain or jail anyone for contempt.  Arguably, the Parliament Act deals with this matter.  As we shall see in the next section, however, this still leaves the more fundamental question unanswered.

Contempt of Parliament versus Freedom of Speech and Media

Beyond the limitation that Chapter 5 of the Constitution imposes on the kind of punishment Parliament can lawfully impose on a person for alleged contempt of Parliament, the more fundamental question remains whether the kind of conduct involved in the Professor Dodoo and Blakk Rasta episodes can be prosecuted or punished as contempt of Parliament in the first place?

First, it is important to recall the specific conduct over which Parliament is trying to assert its contempt power.  The cases here all involved persons who may be described as “strangers” to Parliament. They are not MPs. Nor are they persons who, prior to being summoned, had appeared before Parliament or were under a duty to do something required of them by Parliament or had done an act within the precincts of Parliament while Parliament was in session.  But being a “stranger” alone is not sufficient.  Sometimes, Parliament’s contempt can reach a stranger.

That, however, depends on the relationship between the allegedly contemptuous act of the stranger and the conduct of the business of Parliament.  In the cases under discussion, the allegedly offensive acts of the strangers, namely Professor Dodoo and Blakk Rasta, were not acts that flouted the authority of Parliament or in any way interfered with the effective conduct of the business of Parliament.

What both individuals allegedly did wrong, in their capacity as private citizens, involved “speech” or words spoken in the course of everyday discussion in the public square (media).  Before Parliament can turn such public speech by “strangers” into contempt of Parliament, it will have to contend, once again, with the Constitution.  Specifically, Parliament must show that its attempt to use its contempt power to limit this kind of public speech can be reconciled with the protection the Constitution extends to freedom of speech and of the media.

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Freedom of expression is guaranteed and protected by the Constitution in two separate chapters.  First, chapter 5, which, as we have seen, is binding on Parliament, guarantees in Article 21(1) “the right to freedom of speech and expression, which shall include freedom of the press and other media”.   Of additional interest, in the specific case of Professor Dodoo, is the fact that Article 21(2) also guarantees “academic freedom”.  Second, “freedom and independence of the media” is also guaranteed in chapter 12 of the Constitution.

The fact that the Constitution goes through the trouble of guaranteeing these speech-related rights multiple times must mean something.  For purposes of the present debate, what concerns us is the relationship between these constitutionally guaranteed rights and Parliament’s contempt power.

Often when one mentions a constitutionally guaranteed right as an objection to the exercise of some form of state power, one is met with the response that “Rights are not absolute”.  Most of the rights guaranteed in Chapters 5 and 12 are indeed not absolute.  But saying that is not saying much.  The state’s power too, whether it is the power of Parliament or any other state institution, is far from absolute.  What is important, then, is not the non-absoluteness of rights or power; it is how the two, rights and power, interact with each other in the context of a particular constitution.

Our Constitution, like most modern democratic constitutions, first enumerates and guarantees certain specific rights.  It then states, often in a separate provision (called a “limitation clause”), the limited grounds and the specific ways by which a guaranteed right may be restricted.  A common error is to read constitutional rights narrowly and the permissible limitations broadly, thereby treating the limitations as practically eviscerating the rights.  This, of course, would make nonsense of the very idea of constitutionally protected rights.  But modern limitation clauses are not to the read like the “clawback” clauses of old.  When a modern constitution guarantees a right but allows certain limitations, the rights represent the “rule” and the limitations the “exception”; the rule applies generally, while the exception may be used only in very limited instances and only under certain specific conditions.

In the case of the general right to freedom of speech, Article 21(4)(e) of the Constitution allows the right to be restricted by ”a law” if that law is “reasonably required” “for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community” and “is reasonably justifiable in terms of the spirit of this Constitution.”

Concerning the media specifically, Article 164 also allows restrictions to be imposed on them by “laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

Each of these limitation clauses has three elements.  First, any restriction of a right must come in the form of “a law”.  Second, the restriction must be “reasonably required” to accomplish certain specified purposes. The key principle here is one of proportionality and necessity. This means that, in terms of its effect or impact on the right at stake, the purported restriction must not go beyond what is required or needed to protect or achieve the stated objects or interests. Restrictions that are disproportionate or go too far are not constitutionally permissible.  Third, there are only a limited number of legitimate grounds or reasons for which the restriction may be employed. Restrictions that are employed for reasons other than those specified in the limitation clause are not constitutionally permissible.

Does contempt of Parliament, as used in the Blakk Rasta and Professor Dodoo cases, qualify as a constitutionally permissible restriction of the right to free expression under these terms?  Clearly not.

First of all, punishing a perceived offense or insult to MPs or public speech that allegedly “brings the name of Parliament into disrepute” (whatever that means) is not one of the grounds upon which a private individual’s constitutional right to freedom of expression may be restricted under either Article 21(4) or Article 164.  It is important to note that, the right to freedom of speech is needed the most in a democracy when it is used to say things that those in power might find offensive or insulting to them in their capacity as public officeholders.  The primary logic behind the right to freedom of speech would, therefore, be turned on its head if citizens were only free to say those things that our elected officials did not deem offensive or insulting.

Secondly, even if it could be argued that the use to which Parliament has sought to apply its contempt power in these two cases fell within the constitutionally permissible grounds, it would still be hard to defend or justify it as a proportionate or “reasonably required” restriction. As we have already seen, MPs have the freedom and opportunity, both in and out of Parliament, to respond to any attack on them or on Parliament as a whole that they deem unfair or wrong.

And for those individual MPs who may feel personally defamed by a public remark or statement, they are free to seek relief from the courts under existing defamation laws.  Because of the availability of these alternative and less restrictive means of dealing with any public attack on MPs, Parliament’s contempt power, in the context in which it has been deployed here, is plainly excessive and disproportionate.  In short, the use of contempt of Parliament to punish public speech cannot be reconciled with the exacting requirements of the constitution’s limitation clauses under either Article 21(4) or Article 164.

Standing Orders Cannot Expand the Contempt Power of Parliament

What about the Standing Orders of Parliament? What can it tell us about the permissible scope of Parliament’s contempt power?   In the current debate, the Speaker and MPs have made repeated reference to Standing Order 30 (2).  Standing Order 30(2) defines as contempt of Parliament as “Any act or omission which affronts the dignity of Parliament or which tends either directly, or indirectly to bring the name of Parliament into disrepute.”

It is important to note at the outset that Parliament cannot, through the use of its Standing Orders, arrogate to itself powers or jurisdiction that it does not constitutionally possess.  Article 110(1), which confers on Parliament the power to “regulate its own procedure” through its Standing Orders, also states, appropriately, that that power is “subject to the provisions of this Constitution”.  Moreover, the power conferred on Parliament by Article 110(1) is to be used by Parliament only to regulate “procedure”.  It is not to be used by Parliament to expand or increase the substantive powers bestowed on it by the Constitution.

Coming back to Standing Order 30(2), it repeats the “dignity of Parliament” language from Article 122 of the Constitution, but then add onto it any act or omission “which tends either directly or indirectly to bring the name of Parliament into disrepute.”  This additional language goes beyond the constitutional definition of contempt of Parliament as set forth in Article 122.

An act or omission that affronts the “dignity of Parliament” is not necessarily the same as one that brings “the name of Parliament into disrepute”.  The latter appears designed to reach much further than the former.  But more importantly, the “dignity of Parliament” is affronted when Parliament’s authority as an institution is intentionally flouted or disregarded or when a Member or officer of Parliament does an act (such as taking a bribe or engaging in a public brawl) that tarnishes the image or diminishes the standing of Parliament in the public eye.  Merely because a private citizen, fairly or unfairly, excoriates Members of Parliament or calls them names in the media does not mean the dignity of Parliament as an institution has been affronted.

Indeed, the duty of upholding the dignity of Parliament is a duty that falls squarely on the Speaker and MPs themselves; the dignity of Parliament rises and falls according to how the Members and officers of Parliament conduct themselves within the House and without.  It is what MPs themselves do, not what citizens say about MPs, that determines whether Parliament is perceived as a dignified body or not.

Sovereignty of Parliament versus Sovereignty of the People

Reference has also been made in this debate to Erskine May Parliamentary Practice as an authoritative source of the Ghana Parliament’s elastic conception of its contempt power.  Indeed within the common law world, Erskine May, which is edited and updated by successive clerks of the British Parliament, is widely consulted as the leading authority on the law of parliamentary practice.

I am aware that Erskine May substantially informed Ghana’s own Standing Orders.  However, while both Erskine May and English parliamentary precedents may serve as a useful guide for common law parliaments generally, they do not control the scope of the Ghana Parliament’s contempt power.  And it is not because they are foreign sources.  Rather, it is because the Parliament of Westminster and the Ghana Parliament are founded, constitutionally, on radically different conceptions of power and sovereignty.

The Westminster Parliament, upon which Erskine May is based, is a “sovereign” Parliament.  Its powers are, theoretically, without limit.  Thus, the Westminster Parliament enjoys “supremacy” within the English constitutional system.  This is not the case with Ghana’s Parliament.  Unlike the U.K., Ghana’s constitutional system is not based on the notion of the Sovereignty of Parliament.  The 1992 Constitution is based on the “Sovereignty of the People” and the supremacy of the Constitution, a fact that is affirmed in Article 1 of the Constitution, which states that, “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

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This has important implications for the scope of Parliament’s powers under the two systems.  Being a constitutionally sovereign parliament, the powers of the Westminster (English) Parliament, including its contempt power, are constitutionally unlimited.  Only the Westminster Parliament may limit its own powers.  Not so under Ghana’s constitutional system.  In our system, not only are Parliament’s powers limited by the Constitution, but those powers emanate from the people and are to be exercised on their behalf and for their benefit.

The notion that the Ghana Parliament may use its contempt power to punish citizens for merely saying unflattering, even unspeakable, things in the public square about their MPs, individually or collectively, is at variance with the philosophy that underpins our constitutional system.  .    Under our system of government, it is Parliament that is subordinate and accountable to the people; the people are not accountable or subordinate to Parliament or to their elected MPs for that matter.  Our Parliament cannot use an expansive conception of “contempt of Parliament” to reverse this normative hierarchy between the people and their paid representatives.

In terms of its underlying constitutional philosophy, the Ghana Parliament is far more like the American Congress than it is like the Westminster Parliament. Unlike their Westminster counterpart, both the Ghanaian and the American constitutional systems are founded on the idea that sovereignty in the republic resides with “We the People”.  The U.S. Supreme Court has long recognized this essential difference between the American Congress and the English parliamentary model and its implication when it comes to defining the scope of Congress’ contempt power.

As far back as 1881, the U.S. Supreme Court held, in a case called Kilburn v. Thompson, that the Congress of the United States did not have a limitless contempt power.  In that case, the U.S. Supreme Court disallowed the use by Congress of its contempt power to pry into the personal finances of a private individual on the ground that the action by Congress was not related to performance of any of Congress’ responsibilities.  Moreover, the Court expressly rejected any reliance on English precedents to establish the scope of Congress’ contempt power.  The Court stated that, “[w]e are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices.”

The Court further noted that, “this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation”.  Not surprisingly, under the American constitutional system “contempt of Congress” cannot be used to punish a member of the public who uses harsh words to describe Congress or members of Congress in public.

In fact, even Erskine May’s Westminster no longer uses contempt of Parliament to punish so-called “abusive contempt”—the kind of alleged contempt things said or published in a public forum or media by private citizens.  The last time a non-member of the British Parliament was reprimanded at the bar of the House of Commons over a published story was on January 4 1957, when the editor of the Sunday Express was rebuked for some remarks he had printed alleging that some MPs were evading  petrol rationing introduced in the wake of the Suez Canal crisis.

Both Houses of the British Parliament now require evidence of a substantial interference with the business of Parliament before an act or omission of a non-member would be treated as contempt of Parliament.  “Abusive contempt” has also been abolished in Australia, another common law jurisdiction heavily influenced by Westminster in its parliamentary traditions and practice.  Australia’s Parliamentary Privileges Act (1987) states that, “Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee, or a member.”  In short, even in jurisdictions where the influence of Westminster parliamentary practice holds sways, the kind of act for which Professor Dodoo and Blakk Rasta are being subjected to contempt proceedings by the Ghana Parliament have long ceased to be treated as contempt of Parliament

Conclusion: The Proper Uses of Contempt of Parliament against Non-Members

To recap, the contempt of Parliament actions against Professor Dodoo and Mr. Abubakar Ahmed are objectionable on multiple grounds. First, the actions, insofar as they seek to punish the two non-members for harsh or insulting words spoken in the public media about Parliament or MPs, do not pass muster under the provisions of Chapter 5 of the Constitution guaranteeing all persons the right to freedom of expression.

The use of contempt of Parliament in these two cases is not “reasonably required” to protect any of the legitimate interests on the basis of which the right to freedom of speech may be lawfully restricted under the Constitution.  Parliamentarians, unlike judges, have ample opportunity and equal rights as citizens and as politicians to defend themselves in the public square, on the floor of the House, and even through private lawsuits, if they believe their private reputations to have been wrongfully harmed by statements made in the media. Contempt of Parliament is, therefore, an excessive and disproportionate response to the kind of acts involved in the Professor Dodoo and Blakk Rasta cases.

As far as the “dignity of Parliament” is concerned, it is not one of the constitutionally permissible grounds upon which freedom of expression may be lawfully restricted. Moreover, it is the conduct of Members and officers of Parliament themselves, not the utterances of private citizens in the public media, that may affront the dignity of Parliament.  Second, as a legislative body operating under a constitutional order based on the Sovereignty of the People, the Parliament of Ghana cannot construe its contempt powers in the same way and to the same extent as the sovereign Westminster Parliament.  Importantly, the power claimed by Parliament, to punish citizens for excoriating Members of Parliament, is at variance with the overarching constitutional principle of the Sovereignty of the People, pursuant to which MPs and Parliament are subordinate and accountable to the People, not the other way around.  Parliament is not supreme in our constitutional dispensation; its contempt power cannot, therefore, be as elastic as it wishes it to be.

Third, “abusive” contempt, which would include the acts involved in the Professor Dodoo and Blakk Rasta cases, is no longer treated as contempt of Parliament even in the Mother of all Parliaments where parliamentary supremacy, as opposed to popular or constitutional supremacy, is the governing principle.

What conduct, then, on the part of non-members would constitute contempt of Parliament? Although it is not possible to give an exhaustive list of what specific acts or omissions by non-members would amount to contempt of Parliament, the following list of acts and omissions, drawn from current practice of the UK Parliament, provides a useful guide: “interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee; assaulting, threatening, obstructing or intimidating a member or officer of the House in the discharge of the member’s or officer’s duty; deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition); deliberately publishing a false or misleading report of the proceedings of a House or a committee; removing, without authority, papers belonging to the House; falsifying or altering any papers belonging to the House or formally submitted to a committee of the House; deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee; without reasonable excuse, failing to attend before the House or a committee after being summoned to do so; without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee; without reasonable excuse, disobeying a lawful order of the House or a committee; interfering with or obstructing a person who is carrying out a lawful order of the House or a committee; bribing or attempting to bribe a member to influence the member’s conduct in respect of proceedings of the House or a committee; intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee; bribing or attempting to bribe a witness; assaulting, threatening or disadvantaging a member, or a former member, on account of the member’s conduct in Parliament; divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.”

The common thread running through these various acts and omissions is that they all involve acts which, in one way or the other, interfere with, obstruct, or frustrate the conduct of the business of Parliament. This indeed is the modern context in which non-members may be cited for contempt of Parliament even in those jurisdictions in the Westminster tradition where the power of Parliament is not as constitutionally constrained as Ghana’s.

Ghana’s nascent democracy and constitution, founded on the sovereign will of the People, would be dealt a severe setback if the people’s elected representatives in Parliament were allowed to impose as the law of the land the draconian and elastic conception of contempt of Parliament they seek to apply.  Parliament’s actions in these recent cases amount to an abuse of power and an affront to our constitutional democracy.  The public, civil society, the media, and academia must stand together to challenge and resist this extraordinary descent into parliamentary authoritarianism.

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