Part One (1)
October 19, 2020
By: BANKOLE CLIFFORD EKUNDAYO MORGAN, HUMAN RIGHTS ADVOCATE.
It is my view that reflection on the emergency powers in pages 127 and 128 of Volume 2 of the report of the Sierra Leone Truth and Reconciliation Commission (TRC) and public emergency powers as enshrined in section 29 of the Constitution of Sierra Leone, 1991 will help to enlighten the public on the historic usage or abuse of emergency powers.
The establishment of the Truth and Reconciliation Commission (TRC) in Sierra Leone came about through a strategic meeting with stakeholders in Conakry, Guinea in January, 1999. The meeting was spearheaded by a committee known as the Sierra Leone Human Rights Committee. During the said meeting, discussion about the establishment of the Truth and Reconciliation Commission came in as top priority. The Truth and Reconciliation Commission (TRC), was considered to be the vehicle of forgiveness in the need for alternative accountability mechanism where prosecution was impossible. Thereafter, a working group was established, supervised by the Sierra Leone Human Rights Committee. Later the working group mandated the National Forum for Human Rights, a coalition of civil society organizations based in Freetown to take the lead in engaging civil society organizations on the need for the establishment of the Truth and Reconciliation Commission in Sierra Leone. The National Commission for Democracy and Human Rights then, also joined in the public education for the establishment of the Truth and Reconciliation Commission by hosting group discussions in various locations in the country. In April, 1999 a workshop was held in Freetown, and this workshop set the human rights agenda for onward discussion at the pending Lome’ peace engagement with stakeholders. During the Lome’ meeting the negotiating committee on humanitarian and human rights issues unanimously agreed on the 7th July, 1999 to set up the TRC in Sierra Leone as indicated in Article XXVI of the Lomé’ Peace Agreement. Essentially, the Sierra Leone Truth and Reconciliation Commission is an outcome of the Lomé Peace Agreement, signed by the late President Ahmad Tejan Kabbah, and the leader of the Revolutionary United Front (RUF), the late Foday Sankoh, on July 7, 1999, was a first step towards ending the 11 year civil war conflict in Sierra Leone.
ESTABLISHMENT OF THE TRUTH & RECONCILAITION COMMISSION (TRC)
After several advocacies and planning workshops, following the Lomé Agreement, the TRC was established by an Act of Parliament titled the Truth and Reconciliation Act, 2000. The TRC had as its mandate “to create an imperial historical record of the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lome’ Peace Agreement. Within a period of two (2) years the TRC conducted several activities that included statement taking and interviewing of complainants as well as witnesses who were willing and ready to testify. Consistent and effective investigations into thematic issues and cases of human violations and public hearings began. Submissions were also invited from the general public on anything related to the conflict including recommendations. All of these culminated in the production of a report made up of three volumes, that is volumes (1, 2, and 3 (A) and 3(B)) containing the historical narrative, findings and Recommendations of the TRC.
PUBLIC EMERGENCY POWERS IN THE CONSTITUTION AND EMERGENCY POWERS IN THE TRC
For the purpose of this write-up, it is generally important to bring to the fore the provision of section 29 of the Constitution of Sierra Leone, 1991 which provides the conditions under which public emergency can be invoked by the President of Sierra Leone. According to the provision of section 29(1) of the Constitution of Sierra Leone, 1991, it is only in the opinion of the President that a public emergency can be declared. That is, even if in the opinion of the public a given situation necessitates the declaration of a state of emergency the President is not bound to declare it based on his opinion. This provision accorded a sitting President enormously wide-ranging power, which in modern day democracy can be described as excessive power given to a single person to run the state.
IMPOSING OF PUBLIC EMERGENCY TO SILENT POLITICAL OPPONENTS
According to the TRC, successive governments of Sierra Leone used public emergency to silence political opponents who posed challenges to different regimes. Paragraph 64 page 127, Volume 2 of the TRC report, states that the resort to emergency powers to deal with political opposition is a sign of failure on the part of the government to govern effectively. Thus the TRC recommended in Paragraph 65 page 127, Volume 2 of the TRC report, that “emergency powers should be used only as a last resort to deal with a genuine state of emergency in which the life of the nation is actual threatened by war, insurrection, natural disaster or other public emergency” and emergency powers are required to restore peace and order. Against the backdrop of this historical extract, “was the proclamation made by the government of Sierra Leone concerning the coronavirus in line with the recommendation made by the TRC report”? Or can the declaration of the public health emergency by the government of Sierra Leone construed in the light of the TRC’s finding that governments of Sierra Leone have been declaring public emergency in order to silence political opponent? At Paragraph 64, page 127 of Volume 2, the TRC essentially concludes that the imposition of emergency powers inevitably results in the denial of human rights. This begs the question “does the threat of coronavirus warrant a declaration of public emergency”? Or was the threat commensurate to any of the recommended provision of the TRC regarding emergency powers?
GOVERNMENT OF SIERRA LEONE SHALL FAITHFULLY & TIMEOUSLY IMPLEMENT…
The TRC Act requires that the government of Sierra Leone shall faithfully and timeously implement the recommendations of the report. Since the establishment of the TRC in 2000, has any of the recommendations of the TRC been faithfully and timeously implemented by past and present government? It is important for public consumption to cite below some imperative recommendations as provided in Chapter 3, Vol 2 pages 127 and 128 of the report of the Sierra Leone Truth and Reconciliation Commission. It is important to note that the government of Sierra Leone has the obligation as recommended by the TRC Act of 2000 to faithfully and timeously implement the recommendations of the TRC report.
In paragraphs 64-74, of chapter Three, Volume Two of its report, the TRC deals exclusively with Emergency Powers and makes recommendations therein as follows:
Paragraph 66 “The current Constitution of Sierra Leone devotes more space to taking away the rights of citizens than to ensuring their respect. Section 29, which provides for public emergencies, is the best example of this”.
Paragraph 69 states “A state of emergency must be effective only prospectively. Parliament should be permitted to extend a declaration of a state of emergency for no more than three months at a time. This will require an amendment to section 29 (13) of the Constitution”.
Paragraph 70 states “ The President is given wide powers under sections 29(5) and (6) to make regulations and take measures during a period of public emergency that may have the effect of suspending all fundamental human rights. Clauses authorising such powers should be removed from the Constitution”.
Paragraph 71 states “Laws or regulations made in terms of a public emergency should be consistent with Sierra Leone’s obligations under international law that apply to states of emergency. This requirement should be enshrined in section 29 of the Constitution”.
As human rights or civil society advocates, it is our duty to remind the government of Sierra Leone about the TRC recommendations. We should be concerned as advocates, that non-implementation and or half-way implementation of the TRC recommendations may likely affect the enjoyment of fundamental human rights during the period of public emergency. Human rights advocates, including civil society organizations need to engage Government and other stakeholders constructively on the need for the full implementation of the imperative recommendations of the TRC report.
SECTION 29 OF THE CONSTITUTION OF SIERRA LEONE, 1991
As provided in Chapter III Section 29 of the Constitution of Sierra Leone, 1991, it is evident that this provision on public emergency gives collection of powers to a single person (President) during the period of public emergency. Imperative recommendation No. 70 of the TRC totally and entirely frowns at the provision of section 29, sub-sections (5) and (6). Section 29 sets the parameters for which the President may at any given time by proclamation which shall be published in the Gazette declare a public emergency.
Section 29 (5) states that “during a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof”. By this provision, the President is given the latitude in declaring a state of emergency in Sierra Leone. As provided in the TRC report, given the President the enormous power to determine when to declare a public emergency is a weakness. It is true that, successive governments of Sierra Leone have been officially enjoying a collection of all-encompassing powers in relation to public emergencies under the 1978 constitution unto the present Constitution of Sierra Leone, 1991.
From the above, it is evident that Chapter III, Section 29 of the Constitution of Sierra Leone provides sitting president collection of powers in determining when a public emergency could be declared and also during public emergency. This provision of the constitution of Sierra Leone, 1991 runs contrary to the findings and recommendations of the TRC regarding public emergency. I’m kindly calling on the present government to urgently establish the long overdue Follow-Up Committee of the report. Also, I want the present government to honour the obligation set by the TRC Act, which is the faithful and timely implementation of the recommendations of the report.