Courts Cannot Prevent Parliament From ....

Holding Session on Creation of 45 New Constituencies

By Professor Paul Kuruk

Regarding the alleged request by lawyers for Ransford France for an injunction to restrain Parliament from meeting to take up the matter of Constitutional Instrument 73 (CI-73) on the creation of 45 new constituencies (reported in a posting on the Ghana web on September 1, 2012), the half-baked legal pundits should be mindful of the following points of law.

To begin with, the Speaker of Parliament has an unfettered constitutional power to determine when Parliament can meet - a prerogative that cannot be interfered with even by the judiciary in the absence of proof that the Speaker had exceeded her constitutional authority in convening Parliament. The relevant constitutional provision is Article 112 of the Ghana Constitution which provides “A session of Parliament shall be held at such place within Ghana and shall commence at such time as the Speaker may, by constitutional instrument, appoint.” By a proper instrument, the Speaker has recalled Members of Parliament to Parliament House in Accra in Ghana for a session of Parliament beginning September 3, 2012. On these facts, her action cannot be challenged as an unconstitutional exercise of her authority.

Any attempt to disrupt the parliamentary session through court action would run afoul of various constitutional privileges and immunities granted to Parliament. Article 115 for example, guarantees “the freedom of ... proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.” Under a liberal interpretation of the provision, the convened session of Parliament would qualify as a proceeding and the purported request for a temporary injunction would therefore violate a fundamental parliamentary immunity guaranteed by the Constitution.

In similar vein, Article 116 prohibits the institution of “civil ... proceedings ... against a member of Parliament in any court or place out of Parliament for any matter or thing brought by him in or before Parliament by petition, bill or otherwise....” Because CI-73 is a matter that has been brought before Parliament by certain members of Parliament, naming such persons as defendants in the request for injunctive relief (a civil proceeding) would violate Article 116.

The reasoning proffered by Mr. Godfred Odame (a lawyer for Ransford France) as the basis for the purported request for temporary injunctive relief is completely misguided with respect to the law on injunctions. Essentially, he is arguing that Parliament should be restrained from meeting on September 3 because CI-73 would have matured by October 4 when the Supreme Court is expected to take up the substantive action the plaintiff has filed. However, the lawyer fails to understand that interim injunctions are normally granted only in cases where irreparable harm would be caused to the plaintiff pending the determination of the merits of the substantive action. In relation to CI-73, hearing the case in October will not cause such irreparable harm to the plaintiff’s case to warrant granting an interim injunction against Parliament now, even if it was possible to restrain Parliament.

In the substantive case, the attorneys for Ransford France are mainly challenging the legality of CI-73. Because the alleged grounds for attacking the legality of CI-73 will not have disappeared by the October 4 and could still be raised before the Supreme Court in October, delaying court action on CI-73 until October will not cause the plaintiff any irreparable harm. Indeed, if there are grounds to consider the CI-73 to be unconstitutional, it is expected that the Supreme Court would rule accordingly at the appropriate time even after the maturation of the CI-73.

Simply put, Mr. France’s attorneys must accept the stark reality that Parliament is going to act on CI-73 and they should prepare themselves to respond to the action of Parliament rather than seek to restrain Parliament on the basis of unfounded and irrational fears that any action taken by Parliament would be unconstitutional. In other words, they should respect Parliament’s freedom to meet and act as permitted by the Constitution and then challenge Parliament, if they must, only after Parliament has acted.

In any event, if the attorneys are truly concerned about a delay, they should ask the Supreme Court - the same forum where they are requesting the temporary injunction - to expedite action on their substantive action on CI-73 rather than engage in a futile attempt to disrupt parliamentary proceedings. The doctrine of judicial review that underlies the system of checks and balances enshrined in the Constitution requires nothing less. Judicial review is founded on the principle that Parliament has the latitude to meet and act on constitutional matters assigned to it, and that the courts may only review such acts of Parliament after they have occurred. Therefore, the courts cannot stop Parliament from meeting on CI-73 on the rather bizarre notion even before the meeting has taken place, that there is some remote possibility that Parliamentary action on CI-73 as a result of the meeting would be unconstitutional.

Professor Paul Kuruk Cumberland School of Law, Birmingham, Alabama; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV) Accra.