28.11.2022 Opinion

The Censure Committee And The Judicialisation Of Parliamentary Business (2)

By H. Kwasi Prempeh
The Censure Committee And The Judicialisation Of Parliamentary Business 2
28.11.2022 LISTEN

RETURNING TO this business of the motion of censure, what we witnessed is the 'lawyerisation' or judicialisation of what is meant to be a political, not a legal, process or sanction. A vote of censure is purely a political matter; it carries no legal consequence or liability, whether civil or criminal. The outcome of a vote of censure is not equivalent to a conviction or an acquittal; it is not a guilty or not guilty verdict. A vote or motion of censure is a political process used to register the collective disapproval or displeasure of the House about the conduct or performance of a minister. The fact that the Minister who is the target of a censure motion is entitled to be heard in his defense does not convert the censure proceeding into a trial or some such judicial matter; it is merely to accord the minister a fair opportunity to address the legislative body on the matter and preserve his rights.

At all times, whether the proceeding takes place before a committee or the House as a whole, it remains a political one. That is also why there are no specific stated grounds required to trigger, consider or pass a vote of censure. MPs can choose, individually or collectively, to vote to censure a minister for reasons that appear sufficient to each of them. As their vote is, like all votes cast in Parliament, a political one, the reason for voting one way or the other on a censure motion cannot be questioned anywhere. Not only that, the censure verdict, however it goes, cannot be challenged or reviewed in any judicial forum. This, in fact, is an important dimension of the “political question doctrine”: responsibilities, decisions and related actions that are constitutionally committed or entrusted to a political branch of government, when taken by that body, are not a proper subject for judicial review.

In fact, it is not even clear what the committee is supposed to do after these hearings. Is it going to issue a report to say that the minister is “guilty” or “not guilty”; that the “burden of proof” has been or not been met; that a motion of censure can or cannot proceed on the basis of the “evidence”? What exactly is the committee supposed to report to the House about after undertaking this exercise? And what is the House supposed to do next?

The principal safeguard against reckless use of Parliament's censure power is that it must secure the support of at least two-thirds of all MPs in order to pass. But even if it were to pass that appropriately high supermajority threshold, a vote to censure a minister is not a verdict of legal guilt or liability on the part of the censured minister. In fact, the President may choose to keep a censured Minister in his or her position, although, having been censured by no fewer than two-thirds of MPs, a decision by the President to keep a censured Minister at post is likely to be politically untenable. In any case, no legal disability or disqualification attaches to a censured minister; in fact, he or she may be nominated or appointed to ministerial office in the future, if a subsequent Parliament approves of the nomination. This further underscores the fact that a censure vote, regardless of the grounds underlying it, is a political verdict, not a legal one.

It bears repeating that Parliament is, in form and substance, a quintessentially political body. It is not a judicial or quasi-judicial body; not even when it sits in committee to investigate a matter. A committee of Parliament is, pursuant to Article 103(6) of the Constitution, clothed, as it must, with the powers of a High Court. But to have the powers of a court is not the same as being a court or the equivalent of a court. A Parliamentary committee is given the powers of a High Court so as to assist and enable it carry out its investigative mandate effectively–such as by summoning witnesses to appear before it or to produce documents it needs to see. A Parliamentary Committee is, in short, given the powers of a High Court “for” very specific purposes. It does not, however, change from a political body to a judicial or quasi-judicial body merely by assuming the powers of a High Court that are necessary for the effective discharge of its legislative or other parliamentary work.

The lawyerisation and judicialisation of the business of Parliament is bad for our democracy. Not only does it improperly narrow the purview or scope of Parliament's remit, it also shifts power in Parliament unduly in favour of lawyer-MPs and forces certain important issues of public interest and consequence from being fully and properly aired and considered by members of the House. In fact, successive Speakers of Parliament, all of whom have been lawyers, as if that was a required or necessary qualification for the job, have used spurious legalistic rulings from the Speaker's chair to prevent certain public matters from being aired on the floor and the House from exercising its investigative mandate to look into certain matters concerning the Executive.

I recall, for example, that when an attempt was made to get Parliament to investigate an allegation of bribery of a Ghanaian president by Nigeria's General Abacha, the process was blocked by the then Speaker of Parliament on some legalistic grounds. Other Speakers have followed this bad precedent to shield the Executive from appropriate parliamentary scrutiny in a number of instances.

While it is not uncommon for lawyers to dominate the business of Parliament, in weight or influence if not in numbers, it is important for MPs, including lawyer-MPs, to appreciate that theirs is a distinctly political, not a legal, role.  Importing ill-fitting judicial or legalistic rules of procedure and evidence as well as doctrines of preemption or ouster of jurisdiction into the conduct of Parliamentary business, whether in committee or on the floor of the House, totally distorts Parliament's essentially political function and undercuts and weakens its role in the constitutional scheme of checks and balances. The limits to Parliament's powers are defined in and by the Constitution. Unfortunately, we are using inappropriate legalism in Parliament (in the service of partisanship or self-interest) to shrink the scope of Parliament's remit and thereby subvert the prospect of implanting constitutionalism in our infant and increasingly stunted democracy.

BY H. Kwasi Prempeh