This morning my lawyers, on my instructions, petitioned the Accra High Court to declare the Nkoranza North seat, held by Mr. Eric Amoateng, vacant. As you know, on or about November 12, 2005, USA Law Enforcement Officials arrested, detained and charged Mr. Amoateng with conspiracy to distribute heroin in violation of 21 USC 846, a felony that is punishable by a prison term ranging from 20 years to life imprisonment. The MP has since not been able to attend parliamentary sessions and would likely not be able to attend parliamentary sessions for an indefinite period of time.
Undoubtedly, Mr. Amoateng won the 2004 parliamentary elections and therefore has an interest in serving his four-year term. Further, Mr. Amoateng is entitled to a presumption of innocence in the proceedings against him in USA. But Mr. Amoateng's interest and the presumption of innocence must be balanced against other weightier interests. First, the Constitution commands that an MP who cannot serve for an indefinite period of time must vacate his seat. Second, the people of Nkoranza North have an interest in being represented in Parliament. Third, Parliament has an interest in protecting its reputation and integrity. Fourth, every citizen has an interest in ensuring that elected members who are unable to serve give way to others. Fifth, the treasury has an interest in paying only MPs who are actually working.
In a democracy, there is nothing more important than the right to vote and for each vote to be counted and to count. This bedrock principle is defeated when we hold elections and an elected MP, for whatever reasons, good or bad, puts himself in a position where he must be absent from parliament indefinitely. Such an indefinite abstention from Parliament irreparably harms the citizens' fundamental right to representation and does grave violence to Parliament and the Constitution.
It is for this reason that the Constitution, at article 97(1)(c) commands that an MP who, for whatever reasons, absents himself from Parliament must vacate his seat. The only exception is where the MP has the written permission of the Speaker and is able to provide a reasonable explanation for being absent from 15 sittings of a meeting to the Parliamentary Privileges Committee (PPC). Where the absence exceeds 15 sitings, neither the PPC, Parliament nor the Speaker is with authority to grant the absentee MP a furlough and subvert the peoples' right to representation.
Cementing the importance of representation and, perhaps, anticipating that the PPC could be politicized or protect absentee incumbents, the Constitution, at article 99 (1)(a), invests in the High Court the jurisdiction to hear and determine any question whether the seat of a member has become vacant with appellate review by the Court of Appeal. This allows the citizens, or for that matter, an aggrieved MP to challenge the political decisions of the PPC.
Mr. Amoateng was arrested on November 12, 2005 when the 3rd meeting of the 1st session of the 4th Parliament was in session. That 3rd meeting extended from 25/10/2005 to 16/12/2005. Therefore, Mr. Amoateng missed 25 sittings of the 3rd meeting. The 1st meeting of the 2nd session of the 4th Parliament has been in session since 17/1/2006 and Mr. Amoateng has missed all these sessions. Nkoranza North has not been represented and Parliament has been without his services during these extended periods. There is no end in sight to these absences!
Rather than address the effect of this indefinite absence on the right of representation, we are told, however, that Mr. Amoateng has the permission of the Speaker and has offered a reasonable explanation to the PPC (see http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.asp?ID=100294). Explaining the PPC's conclusion that the MP has offered a reasonable explanation, the Chairman of PPC said “the wheel of justice grind slowly so it is necessary to allow due process to take its course in order that the dignity of Mr. Amoateng and the House would be preserved.” Further, the chairman said “Mr. Amoateng has been refused bail by the court trying him and so cannot attend sittings of the House due to his transitory status in the US and the nature of the case made against him. There is the need to allow the judicial process of adversarial contest in the US to take its full course since the judicial process may require a considerable amount of time to conclude.”
Conspicuously and surprisingly absent from the PPC's consideration, are the interest of the people of Nkoranza North, the commands of the Constitution on elected officials who are unable to perform their functions, and the citizens' interest in ensuring that only MPs who are actually working are paid.
In my view, the PPC's conclusion smacks of incumbent protection in as much as the PPC has chosen to protect and defend the interest of the incumbent MP without proper consideration of the interests of Nkoranza North, Parliament and the Constitution. In essence, the PPC has concluded that being held indefinitely in a USA detention on charges of heroin possession is a reasonable explanation to be absent from Parliament.
I, respectfully, disagree and I am completely outraged by this conclusion. Whatever a reasonable explanation for being absent from parliament might include, it surely must exclude absences for indefinite and extended periods for MPs to attend to their private concerns. For if it was so, the exception in article 97(1)(c) would swallow the rule against excessive absences from Parliament and the PPC could effectively allow an MP, as here, to be absent from Parliament indefinitely. Given the 4th Parliament's own definite 4-year tenure, it is unlikely that the framers of the Constitution intended such an absurd result or empowered the PPC to effectively rob constituents of representation.
For the avoidance of doubt, I, too, agree that the MP is entitled to due process and the presumption of innocence. But these matters do not in any way, whatsoever, evidence that the MP has not vacated his seat. Rather, it is precisely because the MP wants to take advantage of his due process rights in USA that he must vacate his seat in Ghana. Plainly then, the peoples' right to representation should not be frozen indefinitely to allow Mr. Amoateng to defend his narcotic charges. Assuming that he is ultimately cleared of these charges, the MP has an action in tort against his incarcerators for malicious prosecution. Whatever loss that he incurs as a result of having vacated his seat in Ghana could then be part of his claim for damages.
In this matter, statesmanship would have required Mr. Amoateng to put his constituents' interests above his own. This, he could have done, by resigning from Parliament to devote his time and energies to defending the charges against him. He failed to do so. The NPP Parliamentary caucus, NPP headquarters, the cabinet, and the Castle should also have weighed in on this matter and urged the MP to resign. I do not know the extent to which this has happened but the vote of the PPC does not give me much comfort that much was done.
I have not gone to Court lightly. In January, I wrote an op-ed in Accra Daily Mail arguing that Mr. Amoateng has vacated his seat. In February, I wrote to the Speaker expressing grave concern about Mr. Amoateng's continued absence from Parliament and urged the Speaker to declare the seat vacant. As no satisfactory resolution has emerged, and as I am completely dissatisfied with the conclusion of the PPC, I have decided to go to the High Court to seek a declaration that Mr. Amoateng has vacated his seat.
It is my fervent hope that the High Court, duly cognizant that Parliament has a definite life and mindful of the irreparable harm that is done to the constitution every day that this matter remains unresolved, would resolve this matter expeditiously and within days.