Parliament, the legislative arm of the state, and the Judiciary, the justice system of the state are in a tussle over how summons of the courts are served on members of Parliament.
The Office of Parliament says it is against the law for court officials to serve notices on members of Parliament within the premises of the legislature.
At a press conference in Accra Friday, the Director of Legal Affairs of Parliament, Mr Ebenezer Ahumah Djietror, said because of articles 117 and 118 of the Constitution, it was impossible for any member of staff of Parliament to deliver summons left in their custody by court officials to MPs.
The press conference was intended for the Office of Parliament to explain the circumstances under which former Attorney-General, Mr Joe Ghartey, failed to appear before the Commercial Court in Accra.
The Commercial Court in Accra on June 17, this year, summoned the Second Deputy Speaker of Parliament, Mr Ghartey, to appear before it and testify in the litigation involving the sale of Ghana Telecom (GT) to Vodafone.
An original subpoena was served on Mr Ghartey sometime last year and as a result, he appeared in court in the company of his lawyer, Mr Frank Davies, on May 22, 2012, but the court could not hear him because a witness from the Ministry of Communication was by then in the box testifying.
Mr Ghartey was, therefore, granted leave to absent himself until the court was ready for him.
The mantle finally fell on Mr Ghartey on June 17, but he was absent because it emerged he had probably not been served with a new hearing notice.
Although, the court’s record indicated that at 9.50 am on June 14, 2013, the Clerk of Parliament had been served with a hearing notice with the previous subpoena issued in 2012 attached, it was not clear whether or not Mr Ghartey had received the said hearing notice.
From that, the presiding judge, Mrs Justice Gertrude Torkonoo, a Court of Appeal judge with additional responsibility as a High Court judge, issued a new subpoena and adjourned the case to Monday, June 24, 2013.
Article 117 states that: “Civil or criminal process coming from any court or place out of Parliament shall not be served on, or executed in relation to, the Speaker or a member or the Clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament.”
Additionally, Article 118 (1) states that “Neither the Speaker, nor a member of, nor the Clerk to Parliament shall be compelled, while attending Parliament to appear as a witness in any court or place of Parliament.”
Furthermore Article 118 (2) says that “The certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament.”
In view of the 1992 Constitution, the Office of Parliament urged court officials, who serve notices on Members of Parliament within the premises of the legislature, to desist from the practice because such a practice contravenes certain provisions of the constitution.
Mr Djietror said any court, which intended to invite any MP, could publish the information in the newspapers.
Alternatively, he said, the court could serve the MP when he was not conducting Parliamentary business or was not on his way to or from Parliament.
Mr Djietror said going by articles 117 and 118, it would be in contravention of the law for any one to serve an MP with court summons within the precincts of the House.
In his view, it was the duty of the courts to determine how they could serve MPs with court processes but advised that they could do so when the House was on recess.
The Office of the Clerk of Parliament, he said, should not be inundated with court processes.
Turning the spotlight on Mr Ghartey, Mr Djietror said he was in Abuja, Nigeria, on official duty and not in the country and, therefore, the document could not be served on him.
He said the court bailiff sought to serve the document on Mr Ghartey, did it through courier service and it was delivered and left in the custody of an intern at his office.
According to Mr Djietror, when the staff in the office of Mr Ghartey returned to the office, they opened the envelope in which the court document was placed and realised that it was an invitation to him.
“When they read it, they realised it contravened Articles 117 and 118 of the 1992 Constitution which prohibited the courts from serving processes on MPs when they were conducting business in the House. It is not that they did not want to serve Mr Ghartey with the document. They were only complying with the law,“ he said.
Mr Djietror emphasised that “We have difficulty serving such documents on MPs because it contravenes the law. We are drawing the attention of the courts to this problem.”
But Mr Ghartey, in an interview with the Daily Graphic, said he was ready to waive his rights under the 1992 Constitution and had already done so.
He said although the action by the court officials contravened the 1992 Constitution, he had appeared before court on more than one occasion to answer questions regarding the Vodafone deal.
“I am not a party to the deal,” he said, adding that “I was only a legal advisor to the government.
“In respect of this particular case, I am ready to waive my rights. I have nothing to hide and I am ready to go to court anytime I am needed. I am merely a witness.
“I was in court in 2012 on this same issue and I told the court that anytime they needed me I was ready to appear. Last week when the court requested my presence in court, I was out of the country, so the processes were not necessary. I am ready to appear anytime,” he said.
Source: Daily Graphic/Ghana