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“ME JESS THRO ME CORN….ME NOR CALL NO FOWL…….

May 11, 2021

By: Winstanley R. Bankable. Johnson

President Bio is on record as the first leader in post republican Sierra Leone to have appointed the highest number of Puisne and other senior Judges within the first three years of his incumbency. The reason underpinning those appointments are highly laudable to wit: facilitating access to justice and the fast-tracking delivery to underserved and or hard to reach judicial districts like never before.

Perhaps I should pause here to reflect why our compatriots in the hinterland comprising over 80% of our country’s population from which a corresponding 80% of votes for our Members of Parliament are cast (and from where all past and present presidential materials hailed) could have remained so unnoticeably disadvantaged since our attaining independence in 1961. 

Aberration

The commendation of the President stops precisely where the appointment of those Puisne Judges ended, because the oddity in those arrangements in my humble submission rests with the procedural aberration inherent in their appointments that they did not go through regular parliamentary scrutiny in accordance with Sec. 135 (2) of Part IV of our Constitution. That section which makes it mandatory (shall) for all newly appointed Judges to the bench pass through prior parliamentary scrutiny after having appointed by HE the President. The law makes no exemption for that requirement as to whether or not the appointment is temporary or not. Several months down the line and with those Judges properly settled in their respective tasks without anyone – neither the Judicial and Legal Services Commission (that initiated and or supported their nominations) , nor the Bar Association or any of the Civil Society Rights watchdog groups concerned the administration of justice batting their eyelids about that.

This piece is not to question the Constitutional prerogative of the President to identify and nominate resources to any position nay more High Court Judges who after their appointments proceeded straight to subscribing to their Oaths of Office before the president without first going through parliamentary scrutiny as the Constitution demands. During the disgraceful 19th April parliamentary brouhaha when opposition were shouting themselves hoarse of procedural breaches with their Standing Orders regarding the tabling of the Order Paper for that day, the Rt. Hon Speaker Dr. Abass Chernor Bundu dwelt amply on the sanctity of the of the Constitution and emphasizing that at no time should its provisions be circumvented or compromised under any circumstances.  This leaves me wondering why – assuming it was an Executive oversight – the Rt. Hon Speaker who very well knows that that (particularly entrenched) Constitutional provisions should not be breached did not think it prudent to have prompted the Presidency into compliance, and further opens up a myriad of questions demanding answers as under-:

  1. Could one be right then to suggest that the appointment of those Judges that did not receive prior Parliamentary endorsement was irregular? If so how do we regularize them long after they have begun dispensing justice?
  2. Why did that happen and why has no one challenged or questioned it to this day, given it is certainly a constitutional variant of concern undermining sound democratic values?
  3. Was the Executive apprehensive that his choices would have been rejected by the Legislature? From recent reports by Journalists that anything can be “muzzled” though Parliament with the direct involvement of the Police OSD occasionally on standby as putative SLPP back benchers ready to stick senses into opposition MPs skulls, that seems an unlikely reason.

Confused

From random inquiries I am given to understand all of those Judges are hired on contract. But Sec.136 (2) which presupposes to allow that (hiring Judges on contract) clearly states that persons so appointed on good behavior in addition to being so qualified and eligible must also have held office as Judge, notwithstanding the fact that s/he has attained the retiring age as prescribed in Sec.137 (a) which is 65 years. The inference here and in my humble submission is that only those above or nearing retiring age who were substantive Judges or were legal practitioners eligible by years of practice and good behavior to become Judges should be eligible for hire as Contract Judges. Now this makes the matter serious as all of those supposedly Contracted Judges appointed by President Bio were neither Judges before, nor passed retiring age of 65 years to have been eligible in the first place. So why did they not pass through Parliamentary scrutiny?

And even if the matter were allowed to lie unprovoked, given the fact that their appointment does not strictly conform to Se. 137 (2) what do we as public know are the terms or tenure of their contracts? If they are not tenured, does it mean further that opportunities can exist for them to also be promoted through the ranks of the Bench (and possibly made more senior in rank than those who went through Parliament) in the same way as those regularly appointed Judges that passed through Parliamentary scrutiny? Or will their status first have to be regularized be recalling them to pass parliamentary scrutiny before they will be promoted in the Bench? I am confused and so want to know.

Egg-Shell

The Constitutional requirement for Presidential appointees to be vetted by Parliament (particularly Benchers) ensures greater probity into their choices by which the security agencies and the public are also encouraged to participate. That is precisely why a lead time exist between dates of their nominations and Parliamentary appearances. Where a breach of that requirement occurs as in the appointment of some Contract Judges, the public will have to be forgiven for misconstruing any adverse rulings in litigations involving opposition elements as biased and or malicious especially in a volatile and egg-shell political situation as ours. The only way to avoid such suspicions is either for the Chief Justice to discontinue empaneling Contract Judges for all matters between the opposition and a sitting government or from any Contract Judge to voluntarily recuse him/herself in all such matters. Ideally opposition parties should by themselves petition the Chief Justice to desist from empanelling Contract Judges in such matters to avoid suspicions of miscarriages of justice in instances where a Contract Judge that delivered a ruling at High Court will also be sitting on appeals of that same matter.

From testimonies recorded from the Truth and Reconciliations Commission (TRC) Reports our Judiciary was blamed as one of the institutions bearing the greatest responsibility for the eleven-year carnage called Rebel War. Further in a recent Afro-Barometer Report, our Judiciary was painted amongst the most corrupt institutions in this country. If things are not nipped in the bud and us as citizens do not ensure that things are done in the right way we might just find our Judiciary involuntarily sliding down the same paths that led us political upheavals again.  

Justice

Whether in the appointment of Judges or in  setting up of Commissions of Inquiries, or in the replacement of parliamentarians or in the declarations of a State of Public Emergency, a Judiciary that is allegedly on record for denying victims easy access to justice  is a judiciary on a brink. The situation beggars many questions and demanding as many corrective answers. But as the West Indians would say: Me jess throw me corn……..Me nor call no fowl…..But who truss im bones kin cam insai” and contribute to this debate, so that “Justice in this country will begin to roll down like waters, and righteousness as ever flowing streams.

I will therefore in this specific case recommend that every effort be made to regularize the appointments of all Contract Judges who were regularly nominated and have subscribed to their oaths of office but did not pass parliamentary scrutiny.  But should that not happen I can out-rightly make one prediction: In the event of a change of political dispensation the appointment of all those Contract Judges that did not pass parliamentary scrutiny will be cancelled “pronto”. The laudable reasons for which they were appointed and the Courts created (fast-tracking justice service delivery to under-served communities) will disappear, thus reverting poor citizens in the hinterlands to the status quo ante, apart from also leaving matters inconclusive (and judgments undelivered). 

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