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Beyond the Constitution

 

March 24, 2015 By Basita Michael

– LLM (Order of Merit) BL

– International Criminal Justice

– Barrister & Solicitor of the High Court of Sierra Leone

– Founder Sierra Eye Magazine

It is amazing how many of us in this country still romanticize about the Supremacy of the 1991 Constitution when we very well know that in many ways it is wanting and inadequate. But thanks to the current impasse between the President and the Vice President we are once again strongly reminded of this.

Following the different constitutional interpretation given to justify or to dispute the dismissal of the Vice President, it becomes imperative more than ever to replace the 1991 Constitution otherwise we will find ourselves embroiled in more issues not envisaged by the current Constitution and which will not bode well for our democracy.

Many argue that the action of the President is irreconcilable with the Provisions of the 1991 Constitution but give little attention to the ways in which the constitution itself is deficient.

I am not a constitutional expert but I am of the view that we would not have found ourselves in such a situation if we had clear provisions that are not so susceptible to different interpretation. Section 40 (1) tells us the President is the supreme executive authority. Section 53 tells us the President can exercise executive power. However, both sections do not define executive power nor do they tell us the scope and limit of such power. It is therefore arguable that the scope of executive power is uncertain. As one reads along the whole of Chapter 5 one cannot help but think that the drafters of the 1991 Constitution intended to mask rather than prescribe what are executive powers. Needless to mention that there is no judicial interpretation defining the scope of the power.

Another important question that we may have to answer is: “Did the drafters of the 1991 Constitution intend the provisions of the constitution to apply to a situation where a serving Vice President seeks asylum or refugee status to a foreign country?” I am of the view that the answer is a resounding NO.

Sections 50 and 51 therefore do not apply in the special circumstances of this matter. Section 50, which talks about mental incapacity, obviously does not apply to the VP. Section 51, which talks about impeachment for any violation of the constitution or any Gross Misconduct in the performance of the functions of his Office, also will not apply for the following reasons:

According to an article written by Ilona Bray J.D. on Asylum or Refugee Status/ Who Is Eligible? Found at Nolo.com: “Asylum or refugee status are special legal protection available to people who have left their home country for their own safety and are afraid to return. The difference between asylum and refugee status under U.S. immigration laws — that is, who should seek asylum status, and who should seek refugee status? It’s simply a matter of where you are when you apply. People outside of the United States must apply for refugee status. People who have already made it to the United States border or the interior (perhaps by using a visa or by entering illegally) can apply for asylum status. Once granted, both statuses allow you to stay in the United States indefinitely. Asylees and refugees are given permission to work and are allowed to apply for a green card (within one year of either entering the United States as a refugee or being approved for asylum). But not everyone qualifies for asylum or refugee status. You must meet some strict requirements, as described in this article. In particular, you must show two things: You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-founded fear that you will be persecuted if you go back. The reason you have been (or will be) persecuted is connected to one of five things: your race, religion, nationality, membership in a particular social group, or your political opinion.”

Let’s put some of these requirements into perspective by quoting the Vice President: “I have fled my house and am with my wife in a place I cannot disclose waiting to hear from the U.S. Ambassador whom I have asked for asylum,” Sam-Sumana told the Reuters news agency on that Saturday. Going by this statement and in the absence of any confirmation by the Americans as to whether the VP had actually entered the U.S. Embassy, we are left to wonder whether what he actually sought could be described as asylum or rather refugee status.

In any event neither can be said to be a violation of the Constitution as the very Constitution guarantees the protection to life and to liberty and so anyone that feels that those rights are in danger may choose to seek asylum, a legal protection that is recognized under international law. Thus the drafters could not have envisaged asylum seeking or otherwise to be a ground for the removal from office of the VP when asylum or refugee status is a legal protection recognized under international law. Whether he is eligible or not is a different issue.

Is the act of seeking asylum by the VP a gross misconduct in the performance of the functions of his Office? I want to believe that when the drafters of the 1991 Constitution used the phrase “gross misconduct” here it was used in the context of theft, violence, negligence, corrupt practice, seeking an advantage in the process of exercising his functions and duties of the office of the VP. However, in our case we have a VP that did not only abdicate his office but tried to leave the country through the Americans with the intention never to return.

In other words by seeking asylum or refugee status he (the VP) removed himself from his own office with the intention of no longer being part of this government. The subsequent announcement therefore by the president of the dismissal of the VP was just a natural consequence of the unwillingness of the VP to be subject to our jurisdiction. Assuming he went into the premises of the U.S. Embassy which could be considered as within U.S. borders and he sought asylum, in effect he was saying I am unwilling or unable to return to my home country as I have a well-founded fear that I will be persecuted if I go back.

Assuming he didn’t enter the premises at all then likewise in effect he was saying I am unwilling or unable to stay in my home country as I have well-founded fear that I will be persecuted if I stay.

Given the above it is my humble opinion that the subsequent dismissal of the Vice President by the President cannot be judged with reference to the Constitution as the dismissal grew out of the inherent necessities of the unique situation the President found himself, a situation that was not contemplated, envisaged or provided for by the Constitution. It could not have occurred to the drafters of the 1991 Constitution that a serving Vice President who is supposed to be the Principal Assistant to the President will attempt to runaway or seek asylum from another country. It is therefore a unique situation that could not have been predicted or foreseen by the 1991 Constitution and so therefore its provisions are inapplicable. Let’s look into the common law and equity instead, which I personally find more useful and effective than the 1991 Constitution.

Many will find such a position difficult to accept as their reverence for the document equates their Bible or Quran. Indeed whilst the supreme importance of our Constitution cannot be overstated, we have to admit that it is neither perfect nor is it the Ten Commandments. It is simply a man-made document that is infallible and inadequate in many ways. Even the drafters of the 1991 Constitution were gracious enough to recognize that a matter may arise for which this Constitution fails to provide for or else they would not have added section 177 (2), which reads as follows: “Where any matter that fails to be prescribed or otherwise provided for under this Constitution by Parliament or by any other authority or person…….” This is just to quote the relevant portion.

For those who call for an interpretation from the Supreme Court, whilst I believe that will be significant, I will also ask: is that the best we can do? Are we going to waste our time, energy and resources on interpretation of a Constitution that is undergoing review? Why interpret it when we can get rid of it? Can we not advance further or better by calling for the urgent replacement of this Constitution that does not even define who a Sierra Leonean is?

Besides today in our country we have a lot of people whose inalienable rights are being repeatedly violated. Defending them in full requires more than merely suggesting interpretation of the Constitution.

With reference to the ongoing work of the CRC, I propose an expansion on the circumstances under which the Office of the Vice President shall become vacant by adding provisions that would cover even the most remote of situations or by specifying specifically the provisions and stating that in any other circumstances not envisaged by this Constitution, Parliament or the Supreme Court shall have the sole right to remove the VP upon application by the President.

I also propose that Section 54 (5) be changed to read as follows: “Whenever the Office of the Vice President is vacant, or the Vice President dies, resigns, retires, is removed from office or is no longer qualified to hold office under section 41, the president shall appoint a person qualified to be elected a member of Parliament to the Office of the Vice President with effect from the date he has ceased to qualify to hold office under section 41, or from the date of such vacancy, death, resignation, retirement or removal. Section 41 would also have to be amended to include ‘member of political party’ before and after elections, which would mirror the provisions relating to Parliamentarians. Tribune