Article: Absence from Parliament without leave

It has been reported for instance that the Honourable Sarah Adwoa Safo, the Member of Parliament for the Dome-Kwabenya constituency in the Greater Accra Region has been absent for an extended period of time.

Similar accusations have been leveled against other Members of Parliament, mostly from the majority NPP group in Parliament.

Article 97(1)(c) of the 1992 Constitution provides that: “A member of Parliament shall vacate his seat in Parliament – if he is absent, without the permission in writing of the Speaker of Parliament and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet.”

Order 16(1) of the Standing Orders of Parliament also provides that “A Member shall not absent himself during a meeting for more than fifteen sittings without the permission in writing of the Speaker. Any Member infringing this Order shall have his conduct referred to the Privileges Committee.”

In order to fully appreciate these provisions within their proper context, four (4) questions, I believe, have to be asked and answered:

1. What is the definition of a meeting of Parliament?

2. What does it mean to have the permission in writing of the Speaker?

3. What will constitute a reasonable explanation for purposes of the Privileges Committee?

4. At what point can an MPs seat be declared vacant and by who?

In respect of the first question i.e. What is the definition of a meeting of Parliament, Article 112 of the 1992 Constitution of Ghana, captioned ‘Sessions of Parliament’, provides in Clause 1 that “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.”

Article 112(2) then states that “A session of Parliament shall be held at least once a year, so that the period between the last sitting of Parliament in one session and the first sitting of Parliament in the next session does not amount to twelve months.”

What we can deduce from these provisions is that Parliament must hold sessions at least once every year, and that within the sessions of Parliament, there are ‘sittings’.

The only time a meeting of Parliament is referred to in Article 112 is in clause 3, which provides that “Notwithstanding any other provision of this article, fifteen per cent of members of Parliament may request a meeting of Parliament; and the Speaker shall, within seven days after the receipt of the request, summon Parliament.”

Thus, we can safely assume that, within a session of Parliament are also a ‘meetings’, which can be requested for by fifteen per cent of MPs (about 41 or 42 MPs).

Hence, in a typical year in the life of Parliament, there is at least one Session, Meetings and Sittings thereof.

Order 37 of the Standing Orders of the Parliament of Ghana essentially reiterates Article 112 of the 1992 Constitution.

A close reading of the Standing Orders however reveal that a Session of Parliament is divided into Meetings.

A Meeting is simply a reference to the Sitting days of Parliament commencing when Parliament first meets, and ends when Parliament is adjourned sine die or at the conclusion of a Session.

Thus, there are generally three (3) Meetings in a Session of Parliament i.e. First Meeting (January to March); Second Meeting (May to July); and Third Meeting (October to December).

A Sitting of Parliament is therefore a period during which Parliament continuously sits without adjournment.

In respect of the second question i.e. What does it mean to have the permission in writing of the Speaker, A Member of Parliament who is, or intends to be, absent from fifteen sittings of a meeting of Parliament must have the permission of the Speaker in writing according to Article 97(1)(c) of the Constitution and Order 16(1) of the Standing Orders of Parliament.

This means that, that member must formally communicate to the Speaker of Parliament, most likely through his or her group/caucus leadership, of his or her absence from fifteen sittings of Parliament and the reasons for same; and the Speaker may grant him or her permission in writing for such purposes.

The grant of the permission in writing by the Speaker of Parliament, must be prospective and not retrospective in my opinion.

Thus, for a every meeting of Parliament i.e. First Meeting (January to March); Second Meeting (May to July); and Third Meeting (October to December), Members of Parliament may be absent without permission of the Speaker of Parliament for fourteen sittings in every Meeting if you read Article 97(1)(c) of the Constitution closely, but fifteen sittings if you consider Order 16(1) of the Standing Orders of Parliament.

In such a situation of conflict between the Constitution and any other law, it is trite knowledge that the Constitution will prevail, but that is a topic for another day.

Thus, it is only when absence from Parliament in a particular Meeting (whether the First, Second or Third) will cumulatively amount to fifteen sittings that the permission in writing of the Speaker of Parliament is a pre-requisite.

It is my belief therefore that this part of the constitutional provision is quite clear and unambiguous and requires no further explanation.

On the third question i.e. what will constitute a reasonable explanation for the purposes of the committee of privileges, Article 97(1)(c) envisages a situation where a Member of Parliament may absent him or herself from Parliament for fifteen sittings or more in a Meeting of Parliament without the permission in writing of the Speaker of Parliament.

In such a situation, the Constitution prescribes that, such an MP must be referred to the Parliamentary Committee on Privileges, where he or she will be offered an opportunity to provide an explanation for the unpermitted absence.

It must however be noted that, any explanation must be a reasonable one, the determination of which is the sole preserve of the Parliamentary Committee on Privileges.

Order 27 of the Standing Orders of Parliament provides that: “Notwithstanding anything contained in these Orders Mr. Speaker may refer any question of privilege to the Committee of Privileges for examination, investigation and report.”

Thus, if the Speaker receives information and/or an official communication to the effect that a Member of Parliament has been absent for fifteen sittings in a Meeting without his permission in writing, that member is automatically referred to the Parliamentary Committee on Privileges, which shall offer the member in question an opportunity to offer a reasonable explanation for his or her absence.

With respect to the nature of explanations that will be deemed to be reasonable, that may only be determined on a case-by-case basis.

This is because, the reasons for MPs absenting themselves may differ from one MP to the other, depending on the peculiar or other situations that they may have found themselves in.

It will therefore amount to an exercise in futility were we to provide a definite list of reasonable explanations for purposes of the Parliamentary Committee on Privileges.

The Committee, will be in a better position to determine whether or not an explanation is reasonable, and on a case-by-case basis.

It must be pointed out that in the case of Asare v. Attorney General, Speaker of Parliament and Honourable Eric Amoateng, the Court of Appeal held that the Constitution and Standing Orders “sets down 15 days as the maximum period which a member can be absent without the Speaker’s permission or explanation to the Parliamentary Committee on Privileges. It follows therefore that neither the Speaker nor Committee of Privileges can grant a member more than fifteen days absence or indefinite absence.”

Finally the fourth question i.e. when can an MPs seat be declared vacant and by who?

Article 97(1)(c) seems very clear, that by operation of law, if an MP has absented himself from fifteen sittings of a meeting of Parliament without the permission in writing of the Speaker, his or her seat is declared vacant if he or she cannot provide a reasonable explanation to the Parliamentary Committee of Privileges.

Thus, an MPs seat can be declared vacant where the Parliamentary Committee on Privileges finds his or her explanation as not being reasonable after being given a hearing.

In such a situation, the Committee is duty bound under Order 164(2) to recommend to the House that the infringing MP be made to vacate his or her seat, in compliance with Article 97(1)(c) of the Constitution.

When such a situation arises, and the Committee makes the aforementioned recommendation, the Speaker of Parliament is bound under Order 18 of the Standing Orders of Parliament to declare the seat of the infringing MP vacant.

For the avoidance doubt, Order 18 states that, “The seat of a Member shall be declared vacant by Mr. Speaker under clause (1)(b) to (h) of Article 97 of the Constitution.”

In the Amoateng case, the Court of Appeal held that, once a member absents himself from Parliament without explanation for more than 15 sittings, that member’s seat becomes vacant by operation of law under article 97(1)(c).

The court however went on to state that, “Under the 1992 Constitution however, it is the High Court which can declare a Member of Parliament’s seat as vacant. Until such a declaration by the High Court the position of the Speaker seems to be in limbo.

The Constitution does not prescribe a time limit within which the Speaker or the Committee of Privileges should act and no Standing Order of Parliament has been brought to the notice of the court. It is for the Clerk of Parliament to notify the Electoral Commission of a vacancy under Article 112(5) but again no time limit is set for the determination of the vacancy. The matter is thus left in the domain of Parliament to regulate its own procedure.”

In conclusion, the true meaning of Article 97(1)(c) of the 1992 Constitution is to the effect that, if a Member of Parliament absents himself for fifteen sittings in a Meeting of Parliament without the permission in writing of the Speaker of Parliament, and he or she is unable to provide a reasonable explanation for this as determined by the Parliamentary Committee on Privileges, that MPs seat must be declared vacant by the Speaker of Parliament on the recommendation of the Parliamentary Committee on Privileges – the Amoateng case making this quite clear.

It is not a question that must be put to a vote, as the Constitution and the Standing Orders read together, as well as the Amoateng case makes this quite clear as well.

If any vote is to be taken, it is the Parliamentary Committee on Privileges that may engage in that exercise in accordance with its rules of procedure, for purposes of determining whether an explanation for absence from Parliament for fifteen sittings in a Meeting is reasonable or not.