Parliament versus The People: Contempt of Parliament or Contempt of the People? - CONCLUSION

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Category: Law Commentaries

Created on Saturday, 25 July 2015 00:00

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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.

Source: By Professor H. Kwasi Prempeh