April 16, 2015 Abu-Bakarr Sheriff
President Ernest Bai Koroma’s decision to sack his vice president, the man with whom he signed election nomination forms and whose picture was placed beside his on giant billboards across the country, portends the greatest test yet to our fledgling democracy.
No doubt a controversial or brave decision, depending on which side of the schools of thought one stands, it has energized our democratic space – as played out in the court and on the streets by way of demonstrations, albeit in the United States and United Kingdom!
First the courtroom:
Sierra Leoneans at home and in the Diaspora are in agreement that the five justices of the apex court in the land have the unenviable task to determine arguably the greatest constitutional question since democracy took foothold in our country. On Thursday, 9 April, 2015, the Supreme Court of Sierra Leone heard arguments and counter-arguments in respect of an interim injunction motion filed by lawyers representing Alhaji Sam-Sumana, to restrain Mr. Victor Bockarie Foh from continuing to serve as Vice President pending the determination of the substantive constitutional questions: whether the president acted within the spirit and letters of the 1991 Constitution to sack the Vice President, using his “supreme executive authority” instead of relying on an impeachment process as expressly stated in the said constitution.
As expected, the courtroom had more lawyers than was required, although only three – J.B. Jenkins-Johnston, Berthan Macauley and Ajibola Manley-Spaine – addressed the court, with the first two being the main protagonists.
In attendance also was a bevy of journalists and concerned citizens, eager to experience the legal drama and the rule of law at work, informed by justice and equity, instead of ‘technicality’ which to all intent and purpose is an aberration.
The five judges, though not robed in their bright red gowns and wigs, looked anything but mundane. Indeed their facial expression foretold a certain seriousness over a matter which has a potential to forever shape theirs and our political history. The atmosphere though was congenial. Rival lawyers, those who had the real business of putting their case to the quintet of judges, behaved not like adversaries but learned colleagues as the legal battle unfolded in court. On that score, both sets of lawyers looked serious in appearance and presentation.
Another caboodle of lawyers was jostling for recognition, all in a desperate bid to seek attention! Some may have crossed the red line for touting, a breach of the legal code, by openly soliciting a client which had not retained or hired their services.
Some columnists have sensationalized the fact that lawyers went in droves to support the president’s action. But the fact is, which any serious lawyer would agree, a lawyer acts on his brief and it does not necessarily mean ‘support’ for the client’s action or not. Otherwise, the logic would read that lawyers who represent convicted rapists are in support of rape!
But the hard truth is whether hundred lawyers announce representation, the protagonists in this legal showdown are Messrs Jenkins-Johnston, Macaulay and Manley-Spaine, ably supported by those whose names were formerly announced. All others are mere attention seekers.
Lawyers for the plaintiff, led by Jenkins-Johnston, anchored their argument on the fact that the case is a serious one, a breach of constitutional order, hence an affront to the public good, while also emphasizing on the need to preserve the status quo ante, that which existed prior to the “purported sacking” of the vice president. Brilliant submission. No brinkmanship, as one columnist mischievously puts it. The veteran legal luminary relied much on the landmark case of American Cyanamid Co. v Ethicon Limited , in the House of Lords in England, which prescribes test for the grant of an interlocutory or interim injunction.
Defence counsel Berthan Macaulay, a consummate trial attorney, justified why he is considered for the plump briefs. While in agreement that his colleague on the opposite side was in fulfillment of one of the tests enunciated in the American Cyanamid case, that there was a serious question for trial, he however contended that they had failed to state whether they would be in a position to provide adequate damages to the second defendant (Victor Foh) if an interim injunction was granted them and the court subsequently ruled against them. He also emphasized the need to preserve the status quo, which according to him, is the appointment of Foh as Vice President on 19 March, a day before the plaintiff filed his case, because no vacancy should be entertained in the office of the Vice President. The legal doyen also urged the court to adopt the de facto doctrine which by his reasoning means Foh’s action as Vice Presidency would not be nullified even if the case goes against the first and second defendants.
He too relied on the American Cyanamid case, albeit submitting that counsel for the plaintiff fulfills just one of the four tests prescribed by that landmark case.
In the said case, Lord Diplock and his colleagues held that in exercising the discretion to grant an interim injunction, a number of considerations must inform the decision whether or not to grant an interim injunction. They are: whether there is a serious issue to be tried; would the claimant be adequately compensated by an award of damages at trial?; does granting an injunction favour the balance of convenience?; and where there is an even balance between the parties’ cases, the court should favour the status quo.
As is the case in legal arguments, the duty to decide which way to go now rests on the shoulders of four men and one woman. They have reserved their judgment with a promise to communicate to both sets of lawyers, subsequently.
As the citizenry at home and aboard wait for the verdict, a certain columnist, either deliberately or ignorantly, has suggested that the case was adjourned sine die. Technically, there is a difference between a case being adjourned sine die and a reserved judgment. The former suggests an act of suspending a trial or hearing without another date for the next session, while the latter is a judgment that is not given immediately after the conclusion of the hearing or trial. Hence it can be deduced that a sine die adjournment connotes an inconclusive matter, while a reserved judgment points to a concluded hearing which verdict will be given within days, weeks or months.
Thus, as that columnist would want the public to believe, the matter is not dead! It is still alive, with the substantive case still to be determined by the court. And just in case that columnist is unaware or pretend not to know, one of the reliefs sought in the originating motion filed at the Supreme Court is a prayer for an interim injunction. It was not a surprise therefore that the judges in their wisdom commenced with it, before the substantive matters. A verdict will be declared, whatever way it goes, as expected, prior to the hearing and determination of the substantive issues in question.
Sierra Leoneans in the United Kingdom and United States have taken to the street to demonstrate for or against the sacking of Vice President Sam-Sumana. Like in the court, there is polarity; one group has been vociferous in condemning the president’s action while another is characteristically vocal in their endorsement of the president.
Two groups of demonstrators came out to tell the world that the president is either a “dictator” or “darling of democracy”. While tension may have boiled over in social media, the demonstrations have been relatively peaceful. The placards did all the talking. Though not without shouting matches in Washington, yet both went incident free.
More protests have been planned for this week as the president and a large retinue of aides attend post-Ebola strategy meetings at the White House and World Bank in Washington.
The Sierra Leone Police should send men to Washington to study how “peaceful” demonstrations are marshaled even when two rival groups are out and up against each other. Sierra Leoneans who have postulated that any kind of demonstration at home would bring war should also look at pictures from Washington and London as democracy and tolerance is abundantly on display.
Totalitarian regimes are the ones who crackdown on demonstrations as they stifle rights and do not allow free expression of views. In a democracy, due process in court and public demonstrations are not diametrically incompatible, rather anything short of recognizing both rights is a serious aberration.