A SEPERATE CONSTITUTIONAL COURT MUST BE CREATED TO PROTECT THE OBJECT, PURPOSE AND SPIRIT OF THE NEW CONSTITUTION OF SIERRA LEONE

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A position paper by Rashid Dumbuya for the consideration of the Constitutional Review Committee of Sierra Leone

November 24, 2015 Author: Rashid Justice Dumbuya

Introduction

It has been a common practice for countries that have gone through bitter conflicts and constitutional review processes to have in place as a proactive measure, distinct and independent constitutional courts to protect and safeguard their new constitutions. Examples of such countries include Columbia, South Africa, Germany, Uganda, DRC etc. In South Africa for example, the Constitutional Court is the highest court in the country when it comes to the interpretation, protection and enforcement of the constitution. The court deals exclusively with constitutional matters. That is, those issues that raise questions about the application or interpretation of the constitution. The Constitutional courts in the above mentioned countries have been reputed to have held the societies together by jealously guarding the provisions enshrined within the various constitutions.

Conversely, in Sierra Leone today, there is no provision within the judicial system for a Constitutional Court. However, within the country’s legal system, the Supreme Court operates as the Constitutional Court. It positions itself as the highest court in the land and also enjoys among other things original and exclusive jurisdiction on constitutional matters. But whiles constitutional interpretation, protection and enforcement forms part of its integral function, the Supreme Court also serves as the final court of appeal in respect of all other matters in the country.

Because of this plethora of functions, many critics have maintained that the Supreme Court of Sierra Leone has become overwhelmed with non-constitutional matters to the extent that its watch on the constitution has become unimpressive and undesirable. A justification to this assertion is the lack of adequate constitutional law jurisprudence by the Supreme Court within the judicial system of Sierra Leone.

It is hoped therefore that, with the introduction of a new constitutional court within the judicial system of Sierra Leone, the protection of the new constitution will not only be guaranteed but a significant development in the country’s constitutional law jurisprudence will also be realized.

Justifications or Reasons for having a separate Constitutional Court in Sierra Leone

Firstly, a constitutional court will help protect and jealously safeguard the provisions enshrined in the new Constitution of Sierra Leone.

Secondly, a constitutional court with exclusive jurisdiction on constitution matters will further enhance the growth and development of the country’s constitutional law jurisprudence through the interpretation, protection, application and enforcement of the constitution by the court.

Furthermore, Sierra Leone needs a separate constitutional court because the present Supreme Court which also functions as a constitutional court in the country has become overwhelmed with non-constitutional matters to the extent that its watch on the constitution has become unimpressive and undesirable.

More important still, proper oversight and accountability on constitutional matters can be ensured   when a constitutional court is in existence. For example, disputes arising between organs of the state concerning their constitutional status, powers and functions, the constitutionality of parliamentary bills, the constitutionality of any amendment to the constitution and a presidential failure to fulfill a constitutional obligation will be swiftly and effectively addressed by a constitutional court.

Also, having in place a constitutional court in post – conflict Sierra Leone will not only help knit the society together but will also make way for the effective interpretation, protection, application and enforcement of the spirit , object and purpose of the new constitution of Sierra Leone.

A separate constitutional court will also ensure the speedy determination of constitutional matters.

Finally, since the Supreme Court also serves as the final court of appeal in respect of all other matters in the country, having a separate constitutional court will help throw a spotlight on the new constitution and expose matters that are of potential threat and abuse to the constitution. This will subsequently enhance the protection and respect for fundamental human rights embedded within the constitution.

Proposed Recommendations

Firstly, there must be a complete overhauling in the judicial structure of Sierra Leone. A separate Constitutional Court must be created to deal exclusively with the interpretation, protection, application and enforcement of the new constitution. Its composition must consist of 7 Judges including the Chief Justice of the Republic of Sierra Leone with a minimum standing of 15 years.

Secondly, the present Supreme Court of Sierra Leone should be converted into a Supreme Court of Appeal and conferred with exclusive jurisdiction to serve as the highest court in respect of all other matters other than those that touch on the constitution. It must also be conferred with jurisdiction to hear and determine appeals emanating from the High Court. Its composition must consist of 5 Judges with a minimum standing of 10 years.

Furthermore, the present Court of Appeal must be discarded within the judicial system of Sierra Leone and its functions subsumed under the Supreme Court of Appeal. This is the case because Sierra Leone’s Court of Appeal largely exists for the determination of appeals; a function that can be aptly performed by the Supreme Court of Appeal.

Below the Supreme Court of Appeal should follow the High Court whose composition shall consist of a judge with a minimum standing of 5 years. As a consequence therefore, the Superior Courts of Judicature as enlisted under Section 120 (4) of the 1991 constitution of Sierra Leone should be amended to now read as follows:

the Constitutional Court;

the Supreme Court of Appeal;

the High Court.

Below the High Court should follow the Magistrates Court presided over by Magistrates. And last in the Hierarchy should follow the Local Courts presided over by Local Court Chairmen/clerks whose operations should now be limited to areas outside of the Freetown Municipality.

Thus, the recommended court structure in the judicial system of Sierra Leone must now read as follows:

Constitutional Court

Supreme Court of Appeal

High Court

Magistrates Court

Local Courts

Conclusion

Sierra Leone must learn from the brutal past of other post-conflict nations as it seeks to review its 1991 Constitution. A high probative value will usually envelop a post-conflict nation that reviews its constitution and establishes alongside it a constitutional court to safeguard its provisions. Germany and South Africa are clear signposts to look at. Among other things, such a court will not only help keep the society together but will also make way for the effective interpretation, protection, application and enforcement of the spirit, object and purpose of the new constitution.

*All Rights Reserved

Rashid Dumbuya is a practicing Barrister and Solicitor from the Republic of Sierra Leone as well as an international human rights advocate and Public Defender. He is currently a state prosecutor at the Anti- Corruption Commission and a part-time lecturer in the Department of Law, Fourah Bay College University of Sierra Leone.

For further inquiries, please contact RASHID DUMBUYA Esq. via Email: rashiddum@yahoo.co.uk


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