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Why the Supreme Court Judgment in the Sam Sumana case in not good for the presidency of Sierra Leone: Thankfully the CRC is proposing a reversal

February 25, 2016 By Musa Pessima

In September 2015, five judges of the Supreme Court of Sierra Leone ruled that President Koroma had right to fire his principal assistant, the elected Vice President of Sierra Leone. Alhaji Sam-Sumana was sacked after he was expelled from the ruling All Peoples Congress. A press release issued by State House explained the reasons for the Vice President’s dismissal as follows:

“…Alhaji Samuel Sam Sumana is no longer a member of a political party in Sierra Leone and therefore does not have the continuous requirement to hold office as Vice President of the Republic of Sierra Leone, as provided for in Section 41(b) of the Constitution of Sierra Leone Act No. 6 of 1991, I hereby relieve Alhaji Samuel Sam Sumana of the duties and from the Office of Vice President of Sierra Leone with immediate effect, pursuant to my supreme executive authority as President of the Republic of Sierra Leone as enshrined in Section 40 (1) of the said Constitution of Sierra Leone”

This announcement, and the subsequent appointment of a new Vice President, did not go without a legal challenge. Lawyers representing the sacked Vice President filed a suit seeking the Supreme Court to determine, amongst other things, whether the President had the power to sack the elected Vice President. After six months of legal arguments and deliberations, the judges ruled that it was within the powers of the President to sack his deputy.

In this article, I argue that while most people think the judgment was bad only for Alhaji Sam Sumana alone, the truth is that the judgment is equally bad for the presidency,as it has undermined the security of tenure that an elected president is expected to enjoy under the 1991 constitution. This piece also discusses the cloud of uncertainty that this judgment potentially creates for an elected President. I also argue that the judgment has the potential of supplanting the will of the people which is periodically expressed through the ballot box, and replacing it with, in effect, an Electoral College exclusively comprised of party officials. And here’s why:

The opening paragraph of the press release announcing the dismissal of the Vice President read as follows: “…the National Advisory Committee (NAC) of the All Peoples Congress (APC) took a decision to expel Alhaji Samuel Sam Sumana from the APC; and by letter dated 6th day of March 2015, Alhaji Samuel Sam Sumana was duly expelled from the APC”. Justifying why the Vice President’s expulsion from the ruling party imposed an obligation on the President to sack him, the release added: “And whereas Alhaji Samuel Sam Sumana is no longer a member of a political party in Sierra Leone and therefore does not have the continuous requirement to hold office as Vice President of the Republic of Sierra Leone, as provided for in Section 41(b) of the Constitution of Sierra Leone Act No. 6 of 1991, I hereby relieve Alhaji Samuel Sam Sumana of the duties and from the Office of Vice President of Sierra Leone with immediate effect”.

In their submissions before the Supreme Court, lawyers representing the sacked Vice President argued that Section 41(b), which requires candidates contesting presidential elections to belong to political parties, is not a continuous requirement. They argued that the requirement of belonging to a political party doesn’t subsist after election. They further argued that there is no other way of removing the vice president from office other than by parliamentary impeachment proceedings stipulated in Sections 50 and 51 of the Constitution. They also argued that sovereignty rests with the people, and to protect their mandate, only their elected representatives (Parliament) can change either the President or Vice President,and that can be done only through a process that includes elected representatives.

In making their submissions, lawyers for the President strenuously argued that only a purposive approach to interpreting the Constitution would lead to a fair outcome of the matter. They argued that membership of a political party was a continuous requirement, pointing out that once Alhaji Sam-Sumana had been expelled from the party, the President had the right to exercise his “Supreme Executive Authority” to sack his deputy.

In the end, all the five justices of the Supreme Court agreed with the defence. The following are excerpts from then Acting Chief Justice’s judgment, a position which was generally adopted by a majority of the justices:

 “Section 54(2)(b) states that a person shall not be qualified to be a candidate for the office of the Vice President (Emphasis mine) unless he has the qualifications specified in 41. The qualifications are those cumulative items numbered (a) to (d) in that section. In other words, anyone who should occupy the office of the Vice President must have all those qualifications, both for his election to office and during his tenure in office”.  He added, “In the plaintiff’s case, he was expelled from the political party under whose banner he was designated a candidate for the office of the Vice President.” To put it beyond question, he added, “Once a Vice President loses one of the qualifications specified in Section 41, the next logical question is to deal with the manner in which the vacancy is to be filled”.

In essence, the Supreme Court concluded that membership in a political party is a continuous requirement even after the election, and that the President has the power to sack his elected deputy. On the use of the supreme executive authority and the President’s power to sack his deputy, there is no point re-litigating a matter that has been decided by the Supreme Court. By this judgementany group of top party officials can change the outcome of presidential elections by simply expelling the President from the ruling party. Once expelled from the party, it will only be a matter of replacing him. The question of who announces his dismissal or replaces him remains unaddressed in the judgment.

It may be outside the jurisdiction of the court, but the judgment fails to provide a list of offences that are punishable by expulsion if committed by a President or Vice President. In the absence of such a clearly defined category of offences punishable by expulsion, the President or Vice President may be expelled from the party for any range of reasons, reasons which may have little or nothing to do with the performance of official functions. This has serious implications for our long term peace and democracy consolidation efforts. Imagine a case where the party expels a President who nonetheless enjoys massive support from the citizens; wouldn’t that potentially lead to tension and conflict? It is presumed that courts do not act in vain. What if the party expels a sitting President but he or she refuses to leave? Would that amount to a justification for military takeover, since our military has a constitutional responsibility to defend the Constitution?

The judgement may have inadvertently given political parties the additional power of declaring a vote of no confidence (like in a parliamentary system) against an elected President. By a mere expulsion from the party, regardless of the reasons for expulsion, an elected President may be shown the door. This new law or new status given to political parties may be hard to reconcile with various sections of the Constitution which state that sovereignty rests with the people and that they should participate – directly and indirectly – in the election of their President as well as remove himfrom office.

On the basis of that judgment, one would argue that the National Advisory Council of the ruling All Peoples Congress (APC) has the power to change our President by simply expelling him from the party as long as their decision is endorsed by a majority of the just over 600 delegates who attend the party’s national convention. If that were to happen, as it indeed happened in the case of former Vice President Sam-Sumana, how would one justify such a bizarre outcome especially to non-party members who voted for the President? An unintended effect of the judgment could be increased voter apathy if voters conclude that the power to remove their President is in the hands of an elite group. It may also encourage the idea of voting purely along partisan lines because if one’s vote is going to be overturned at some point, he or she would rather be a part of the institution that is likely to make such a decision. That’s certainly bad for our democracy. It undermines ongoing efforts to encourage Sierra Leoneans to vote on the basis of competence and not party affiliation alone.

No matter the merits of this judgment, it poses a serious threat to the security of tenure of the President and Vice President in a manner that the crafters of the 1991 Constitution never envisaged. What’s more, it enervates the importance of one-man-one-vote in a democracy, and creates a new layer of superior citizens who can change the outcome of a national process without recourse to elected officials. This is hard to accept. It’s got to change sooner rather than later. And there’s an opportunity to do so.

In their submission to the Constitutional Review Committee, the ruling party proposed that they want the President to be granted the power to sack his elected Vice President. Such a proposal would only make a legal sense if the Vice President was appointed by the Presidentafter election. As long as they are elected on the basis of the current constitutional provisions, it won’t be justified for the President to sack his deputy. What’s difficult to accept about the judgment is the idea that the will of citizens can be changed by a small group of party officials without recourse to their elected representatives. It is positive that the Constitutional Review Committee has recommended a reversal of this judgment in the new constitution. It recommends that an elected President or Vice President should not lose his or her job after losing membership in a political party. The reason is that once elected the person becomes a public officer and is expected to serve the interest of the public – not a political party. It is hoped that these recommendations will be included in the draft constitution that will be put to a referendum.