Why the President released Mahama Ayariga for judging

General News on Friday, June 7, 2019

Source: Graphic.com.gh

2019-06-07

On June 4, 2019, the Speaker of Parliament, Professor Aaron Michael Oquaye, decided that Bawku Central MP Mahama Ayariga would be released while the House was sitting to appear before the High Court (Financial Court) to begin the Accused. proceedings against him.

In his ruling, the President relied on Articles 117, 118 (1) and 122 of the 1992 Constitution, as well as Articles 5 and 98 of the Rules, which provide for privileges and immunities for the President, the deputies and the Registrar. Parliament.

He stated that, although these immunities and privileges are not intended to place a deputy above the law, they must prevent any hindrance that might impede the work of Parliament.

The President instructed the Court to respect the standard of scheduling court sessions in order to adapt to the legislative calendar so as to avoid any obstacle to proceedings before Parliament.

He concluded that the combined effect of the provisions on privileges and immunities is to ensure the proper administration of the Government's arms of the Republic.

Below you will find the President's detailed decision on the matter.

DECISION ON THE APPLICATION OF THE HON. MAHAMA AYARIGA ON HIS INVITATION, BY LETTER FROM THE SPECIAL PROSECUTOR, APPEARS BEFORE THE HIGH COURT TODAY, TUESDAY, JUNE 4, 2019 at 9 o'clock.

L & # 39; Hon. Colleagues, this decision is made as a result of the question of privilege raised by the hon. Mahama Ayariga at the reception of a letter from the Special Prosecutor of the Republic asking the President to release the Hon. Ayariga will appear before a criminal court today Tuesday, June 4, 2019. The Hon. Ayariga indicated that he had sent his lawyers to court to represent him and that his partial immunity would not allow him to appear in court during the sitting of Parliament.

The deputy. In addition, out of respect and in order to avoid a battle between the legislature and other state organs, he would appear before the Court at 1 pm and take his immunity before the court. The deputy. refers to our Constitution and, respectfully, I echo the following words:

a. Article 117 which reads as follows: "Civil and criminal proceedings by a court or a place outside Parliament can not be served or executed in relation to the President, a member or the Clerk of the Parliament. that he went to or returned from any procedure of Parliament. "

b. Article 118 (1), which reads as follows: "Neither the President, nor a Member of Parliament, nor the Clerk of Parliament shall, when appearing before Parliament, be compelled to testify before a court of law or a place outside Parliament. "

c. Article 122 reads as follows: "An act or omission that impedes or impedes the performance of Parliament's duties or prevents or hinders a member or senior officer of Parliament in the exercise of his or her its functions, or that undermines the dignity of Parliament or directly or indirectly tends to dignity indirectly obtain this result, constitutes an outrage to Parliament. "

Our Constitution provides that no one is above the law. Indeed, the Hon. Members of Parliament are not above the law. Fortunately, it is clear that members are aware of this and no one should dispute this rather fallacious point. Nevertheless, the Constitution grants limited immunity to members for a good reason. Any invitation that would prevent a member from sitting is not acceptable under our 1992 Constitution. All law-abiding citizens must respect this as a provision of the supreme law of the land.

The provisions include a space to judge a Member of Parliament. This is where the practical aspect comes in. In the case of the Hon. Dan Abodakpi, the hearings took place on Mondays and recess in Parliament. This allows the continuation of the trial and also satisfies the constitutional provisions. Hearings can even be conducted day-to-day during vacations and a case must be heard exclusively by the judge to expedite the trial and meet constitutional requirements. Students in law, separation of powers and constitutionalism will appreciate this position.

During the first Republic of Ghana, the PDA was applied to detain opposition MPs. The latter, however, were absent from the House of Representatives for 14 days and then expelled from Parliament. This is dangerous for human rights and democracy, because it can be used in the context of criminal charges and trials that prevent representatives of the people from representing them.

Our constitutional injunction against carpet crossings is also designed to protect representative government. The price of freedom is eternal vigilance. If, at any time, 20 opposition MPs were to be brought before the Court by a regime aimed at destroying representative governance, what should we do? It is not the day the visionaries begin to manifest.

Suppose the trials are over, Bawku, Tumu, Enchi, Aflao, etc., can Parliament work? What if court appearances are timed just before crucial votes in the House?

The history of these privileges must be studied by lovers of freedom. In England, at one point, the Crown did everything in its power to prevent Parliament from making arrests, et cetera. Hence the need for protection that has evolved until we have incorporated it into our Constitution. We need a sober reflection on these questions. Our constitution provides for the possibility that one day the party of the president will be a minority. Should we allow him to use some tactics to paralyze the majority in trials?

L & # 39; Hon. Members, the constitutional document that we, the Ghanaian people, introduced in 1992, provides that the exercise of political authority will operate in such a way as to limit the government and guarantee freedom. The proper functioning of this mechanism is largely based on the aspiration of our founders that the three branches of equality of power function independently. As the late Chief Justice Wiredu pointed out: "The doctrine of separation of powers … enshrined in the 1992 Constitution seeks to ensure that every organ of the state discharges its functions in the context of of the Constitution, 1992 … law[s] independently and should not be hindered in the exercise of its lawful functions or be unduly disturbed ". It is therefore of crucial importance that when arms are sold to the government and other state actors, that legitimate tasks are not hindered or hindered. The Constitution must be the guiding principle at all times.

As the Hon. Members are aware that our laws provide that civil and criminal proceedings from any court or place outside Parliament shall not be served or enforced in connection with the Speaker, the Member or the Clerk of the Parliament while in the House of Commons. returns to the meeting. to or from any procedure of Parliament.

As I understand it, and as our courts will soon come to an agreement, the purpose of this constitutional provision is to ensure that the legitimate activities of Parliament are not disrupted. These privileges and immunities ensure that any body exercising any form of executive power will not use it to frustrate, interfere with and, in any way, interfere with Parliament's legitimate exercise of its duties. as a whole or by its members. Parliamentary privileges and immunities are considered essential for Parliament, as an institution, and its members, as representatives of the people, to fulfill their functions. They do not exist for the personal benefit of the President, Members or Clerks. Parliamentary privileges and immunities are intended to protect the freedom, the authority and the dignity of Parliament.

Privileges and immunities were never intended to place the deputies of this Assembly above the very laws which our democracy obliges us to adopt; nor were they meant to guarantee members absolute immunity in a manner reminiscent of despotic and dictatorial relations.

This reminds me in particular of the words of the late Supreme Court Justice Amua-Sekyi, J.S.C. who said with an eloquence of which he was known, that:

"The medieval fiction that the" king can not do any harm ", interpreted by the sophist as meaning that if the action was bad, then it was not that of the king, nor did he its place in a republican setting that prides itself on all citizens equal before the law and therefore required to act in accordance with it. ".

L & # 39; Hon. Be that as it may, the House does not sit all year long, nor does it undertake its activities all year round. Similarly, MPs are not always "going to a session of Parliament, attending or returning to Parliament". There are periods of suspension and periods in the week when the House is not sitting or working on committees. Judicial or judicial proceedings may be served on that member during those periods or during periods that do not contravene section 117. In addition, as was customary, the courts that have noted the Constitutional injunction were willing to take into account the legislative timetable so as to "ensure the proper administration of judicial, legislative or executive governance of the state". I urge that any organization wishing to serve the Speaker, a Member of Parliament or a Clerk of the Parliament in the criminal and civil process, remain alert to what these relevant sections say and to the luster that tried and true practice has given to Parliament. L & # 39; Hon. Members, to proceed in any other way violates the 1992 Constitution.

L & # 39; Hon. Ayariga agreed to appear in court at 1 pm He is therefore released today. I hope that a reasonable arrangement will be made to judge him (since he is certainly not above the law). But in a way that will allow him to represent the good people of Central Bawku. In the meantime, he is presumed innocent by law until his guilt is established. I hope that the Court will also act accordingly.

This is my thoughtful decision on this issue raised by the Hon. Ayariga.