CHALLENGING TIMES AHEAD?

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By: Winstanley. R. Bankole. Johnson

Truth be told, only naivetés in politics within the All Peoples’ Congress (APC) Party were left gob smacked at the verdict of the Supreme Court last Friday on the Proportional Representation (PR) petition filed by Hon. Abdul Kalokoh and Cllr. Hakiratu Maxwell- Caulker against the offices of the Attorney General (AG) and the Electoral Commission Sierra Leone (ECSL).  In the same way and in retrospect it was only naivetés in the politics of the Sierra Leone Peoples’ Party (SLPP) that were left gob smacked at the Supreme Court verdict in the matter of EBK/APC Vs then sitting Vice President Samuel Samsumana (Circa 2015). But to a few – and I mean very few of us senior comrades in the APC cadre, the outcomes of both matters were a “Deja Vue” – or rather not unexpected – at least not in Sierra Leone. But let’s discuss further.

Repair

To me, both matters (EBK/APC Vs Samsumana and Hon. Kalokoh/Cllr Maxwell-Caulker Vs the AG/ECSL) though deliberated at totally different material times and being totally unrelated provided several deep lessons for the naivetés within both the APC and SLPP to leverage from going forward, but chief of which is that in interpreting constitutionality, the exigencies and expediency of circumstances cannot be totally ignored or discountenanced because among the major pre-requisite underpinning national cohesion and social stability are Constitutionality and the Rule of Law – or the existence of a semblance of both. And that is exactly what makes our Judicature – no matter one’s preconceived perceptions – will forever remain a necessary evil. And the outcomes of both matters (APC/EBK Vs Samsumana and Hon. Kalokoh/Maxwell-Caulker Vs AG/ECSL) provided ample justifications on the relevance of our Judicature in ensuring national political stability.

For the Supreme Court to have been influenced by the whims, sentiments and expectations of the public and to have ruled otherwise in both matters would have fast-tracked the polity of our entire country along the trajectory of a failed state. Hence the expediency underpinning those rulings in both instances, all in an endeavor to safeguard constitutionality and the rule of law – or semblances of it. So much displeased as anyone might have felt, in my humble opinion I believe the Hon. Chief Justice Babatunde Edwards ought to be celebrated for giving the Judicature yet another opportunity to rebrand itself going forward. Thankfully whichever side of the political divide one stands, the fact that the Supreme Court is the only body that can purge itself out of its own case laws and precedents, will one day – under the next political dispensation – have another opportunity to repair whatever implicit reputational damage their rulings may have cumulatively caused it.

Nemesis

Again instead of attempting to asperse on the integrity of the empanelled Judges in both matters, we should try to be mirroring ourselves in their situations as they struggled to wriggle themselves out of unsavoury political conundrums requiring far less of law and jurisprudence but more of common sense. For example in the case of EBK/APC Vs Samsumana, the Honourable Judges must have weighed the odds against their personal safety vis-à-vis the continued stability of the country and possibly concluded out of expediency not to have ruled against a very popular incumbent President and political party (EBK/APC) in favour of a very unpopular sitting Vice President (Samsumana). Equally the Judges empanelled for the PR matter must have out of expediency weighed the odds of their personal safety vis-à-vis the continued stability of the country and possibly concluded again out of expediency not to have ruled against a very unpopular incumbent President (Bio) in favour of a very popular party (APC) whose leading flag-bearer potential Dr. Samura Matthew Wilson Kamara’s appeal is not only phenomenal and cascading the length and breadth of the country, but is inarguably  the greatest nemesis of this sitting government.

Expedient

In both scenarios (EBK/APC Vs Samsumana and Hon. Kalokoh/Cllr. Maxwell-Caulker Vs AG/ECSL) any contrary ruling would not only have exposed the safety and security of the Judges (and their entire family stock) to huge risks (after all Judges are mortals too!!), but law and order countrywide would have been extensively compromised. The ever growing disgruntled masses now totally fed up with this present political administration would no doubt have misconstrued that as a vote of no confidence by the Judiciary of the SLPP government of President Bio, and chaos would have engulfed the entire country leading to a total breakdown of law and constitutional order. So again the ruling of the Supreme Court though not without its own demerits, wasn’t only a win-win for both the APC and SLPP, but also for national stability through the expedient safeguarding of constitutionality and the rule of law by the Honourable Supreme Court Judges.

Subjunctive

But perhaps at this point one may wish to ask: What then are the demerits or their implications thereof of the Supreme Court PR judgment on the polity of Sierra Leone? For starters stellar as legal luminaries may have considered those rulings to be, they did not satisfactorily address my own long held inhibitions on the possibility of a dictatorial presidency abusing the excessive “powers and authority” conferred on them by Sec. 40 (1) of the 1991 Constitution through the issuance of “directives” to government agencies under the guise of exercising his/her “Supreme Executive Authority of the Republic” but which in actuality are intended to safeguard their personal and political party interests. The original reliefs sought by the plaintiffs in their PR plea that President Bio had no right to have “directed” the ESCL on the manner of elections to be conducted was not granted, which has left me much more confused that no clear distinction has ever existed between the “powers” (i.e. the ability and capacity of one to act) and “authority” (i.e. the right of one to give orders and to enforce compliance with or obedience to those orders) of the presidency, and that both the “powers” and “authority” of a sitting President are subjunctive/related and inseparable.

Based on the above submission therefore (and the ruling of the Supreme Court now justifying “directives” of HE President Bio to the ECSL) can I safely conclude that previous actions or “directives” of the present and former Presidents ought not to have been challenged in any Court of Law or Commissions of Inquiries and that all proceedings on them should be dismissed in the same way that the case of unconstitutionally authorized expense from the CRF to the Office of First Lady Dr. Fatima Bio as “directed” by the Office of the President was addressed and dismissed pronto. Two such matters that immediately come to mind are-:

  • The summary Presidential Bio “directive” for the Auditor General and her deputy to proceed on indefinite suspension leave (in contravention of Sec. 119 (6) of the Constitution which prohibits “directives or control” to that office by any other person), and the Commission of Inquiry instituted for the purpose
  • All “directives” of former President Ernest Bai Koroma as were challenged and criticized at the various Commissions of Inquiries (COIs) and for which appellate processes are being heard in the Courts

Although no national constitution can be considered perfect I can sense challenging times ahead.  So in my opinion there is an urgent need to expedite completion of reviews of our present 1991 Constitution to address all ambiguities and lacunae therein. Otherwise it would be futile to continue along these path of always having to run to the Supreme Court for interpretations on Presidential “directives” deemed to be outside the Constitution against incumbent administrations, knowing full well that for as long as they are in office, the “power and authority” accompanying their incumbencies can be undefinable.

Finally a pertinent question deserving a pertinent response from the ECSL: Is the timing of the Supreme Court ruling to conduct the 2023 election on PR basis not too late for implementation having regard for the ECOWAS Electoral limitation Protocols precluding introduction of any new electoral laws within six (6) months of an electoral calendar?

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