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A Week to Remember: Supremacy of the 1991 Constitution or Powers of the President?

March 16, 2016 By Moses Massa*

This week has been an interesting one for the President of Sierra Leone; his refusal to sign the Abortion Bill and Cabinet reshuffle for the last years of his tenure. To the latter, some of the names are commendable, like the 1st youngest regional ACC Boss to be; a London educated lawyer, Mr. Ady Macauley, while others are a bit controversial, which we need not waste time on.

But the President’s 2nd refusal to sign the Abortion Bill and referral to the Constitutional Review Committee (CRC) is confounding. To start with, the connection between the Abortion Bill and the CRC is a tenuous one because the Abortion Bill IS NOT A LAW by reason of the President’s decision. CAN A BILL BE REVIEWED BY A REFERENDUM THAT IS NOT YET LAW? I am not a lawyer and would need to be educated on this. Referendum seeks citizens’ opinion and approval on specific laws passed by parliament. Perhaps, what could have happened is that have the Bill becomes law and then put it to a later referendum.

What does our Constitution say about life? S16(1-2) 1991 Constitution says nobody shall be deprived of his life intentionally except by a court order in respect of a criminal offence, lawful act of war, riot, self defence, defence of property, person under legal detention and preventing a crime by another.

Who is a person? Simply put, a living being including a child.  But can a child be legally killed in some of the above circumstances? The answer depends on the situation. For instance what do you think would be the response of the Presidential guard who sees a heavily armed child combatant aiming a rifle at the President or holding grenades waiting to attack a presidential convoy? The answer is obvious.

Over the years, abortion was strongly condemned and criminalized as murder. But the law is not static and supreme courts with some of the best minds in the world have come to the conclusion that legally abortion is not murder. In the US for e.g. the Supreme Court, in Roe v Wade 1973, with a 7-2 majority voted in favour of woman’s right to abortion, while in the UK, abortion was legalized in 1967 and strengthened by the Human Fertilisation and Embryology Act 1990, but it was the landmark decision in the case of the Conjoined Twins, 2001, which made it clear that legally where a deliberate surgery that would lead to the foreseen death of one twin partner was not murder, but an inevitable consequence of the intended and necessary act to save the other.

In some countries the power to make laws rest with the President, Parliament and in some cases where Court judges through interpretation of statues so as to create new laws. But I know the 1991 Constitution is clear that parliament is the supreme legislative authority and not the President. S 106 (7) says the President can refuse to sign a bill passed by Parliament into law but the process does not end there. The President is required to return the Bill to Parliament explaining his reason for the refusal.

Finally, s.I06 (8) reads that if pursuant to s.106 (7) above, Parliament passes the Bill with a 2/3s majority, it becomes law and the Speaker shall have it published in the Gazette. SO WHY DID THE PARLIAMENT TAKE IT BACK TO THE PRESIDENT FOR HIS ASSENT? Interestingly, the above provisions do not say that after his initial refusal the Bill should be sent back to the President for his assent, nor does it say the President can refuse to sign a Bill twice passed by Parliament into law. That power is ONLY EXERCISED WHEN a Bill is first sent to the President by Parliament for his approval. This issue falls within s.124 (1) (a) which needs interpretation by the Supreme Court. It would be GREAT if this matter is taken to the Supreme Court for interpretation. BUT WHO WILL?

 

*Moses Massa is a Senior Chevening Fellow on Conflict Prevention and Resolution