Socialize

S.108 (3): TELEOLOGY OF DANGEROUS PROPORTIONS?

April 15, 2016 By Moses Massa

Teleology simply means the study of ends or purposes of a thing by looking at its outcome; good or bad, and a teleologist believes that things happen for a reason It is a fact that we make laws to control the actions of all so that order is maintained, conflicts resolved, right and liberties protected. These are put together in Constitutions, which are broad, recognized, definite, and similarly applicable to all. The end is to regulate, distribute powers for effective state machinery and prevent power abuse. A constitution by itself is not perfect, and often the need arises to change the socio-economic and political trajectory of a state to redressing the injustices of the past and present.

Against this backdrop, the contradictory provision; s.108(3)1991 Constitution is considered, which many do not see as a problem, but is a threat to our future national security if we fail to eliminate its intrinsic mischief in the new constitution. The 1991 Constitution for all its best intention; as seen over the years has many gaps that the Constitutional Review Committee (CRC), which like a quilt was supposedly assembled with various shades and textures to critically review.The result of its almost two years public consultations is the present draft report that looks at 145 sections of its 192 sections. True, it has proposed changes to a few and leaving others unchanged with the potential of future cracks in the new constitution.

To start with S.46 (1) reads: no person shall hold office as President for more than two terms of five years each, whether or not the terms are consecutive, and S.108 (3) reads: A Bill for an Act of Parliament enacting a new Constitution or altering any of the following provisions of this Constitution, that is to say:

  1. this section
  2. Chapter III
  3. Sections:46,56,72,73,74(2),74(3),85,87,105,110-119,120,121,122,123, 124,128,131,132,133,135,136,140,151,156,157

shall not be submitted to the President for his assent and shall not become law unless the Bill after it has been passed by Parliament and in the form in which it was so passed, has, in accordance with the provisions of any law in that behalf, been submitted to and been approved at a referendum.

Why the 1991 Constitution and s.46 (1)? Sadly, after independence, the spectrum of bad governance started with the SLPP under Sir Albert Margai, fine-tuned by President Stevens under the 1978 Constitution that legalized his APC one party rule, and mastered during President Momoh, gave us a governance cancer. To control the cancer’s spread, a political chemotherapy was administered by passing the 1991 Constitution, aimed at protecting the sovereignty of citizens through democratic values, promoting good governance; restrict the abuse of political power, but the 1991 Constitution is not too different than its 1978 predecessor. Thus, s.46 was inserted by the old (provided the current is believed to be new)APC to givethe impression that it would give other political party candidates a chance by limiting the presidency to ten years.

But what is the purpose of s.108 (3)?Since parliament has the sole authority to make laws, some provisions were made entrenched to protect the fundamental rights of citizens and key institutions, where any one of these can only be changed by a referendum. And why is s.46 inserted in s.108 (3)?Perhaps, the Old APC government wanted to close one end and open another backdoor to the presidency after the 2nd term of a sitting president to conduct a referendum to continue in power without any term limit. The closest we have come to subverting the provision of s.46 is the APC’s position paper and Mohamed Bangura’s letter respectively to the CRC; proposing a change to allow such person is eligible to run for future Presidential elections after their two terms. This reflects the problem in s.108 (3) and if the current APC is suggesting to the CRC to change s.46 (1), there is no guarantee we might not have it as the only referendum issue in the future.

This is where I am at odds with the CRC for not making the required amendments. But if it does not, I kindly ask any willing strong legal mind to explain to us if there is no inherent problem with this provision that the CRC cannot review it.Thispresages what is happening in Burundi, Rwanda, and Uganda presently where there are no term limits to stay in power. In Africa where the institutions of governance and public accountability are weak, power can dangerously corrupt; leaders should not be given space in the law to manipulate. In the United States, it was a practice and not a law that a president should serve for two terms. This changed when President F.D Roosevelt of the Democratic Party won four consecutive elections (1932-45) against his Republican Party rivals. The Republicans felt threatened and with their majority led Congress in 1947 passed the 22nd Amendment to set the presidential term limit to specific two terms, whether consecutive or not.

Finally, it should be noted no law will make fair that which is unfair, because the majority are not always right, and if s.108 (3) remains unchanged, the two terms limitation in the next Constitution will have but a different intention. I want to take this opportunity to tell the CRC that the presidential term limit should not be jeopardized as a referendum decision. It should be removed from s.108 (3) but left in s.46 (1)to prevent any future manipulation.

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