ACC boss ‘disagree’ with AG
NOVEMBER 11, 2014 By Ibrahim Tarawallie
Commissioner of the Anti-Corruption Commission (ACC) has written to “disagree” with the Attorney-General and Minister of Justice, Franklyn Bai Kargbo, over the constitutional mandatory retirement age of the Chief Justice.
The ACC had written to the chief legal adviser of government seeking clarification on the tenure of office of Chief Justice Umu Hawa Tejan-Jalloh, who according to judicial sources has attained the age of sixty-five, which is the retirement age of judges.
By way of a reply, Mr. Kargbo had submitting that “Section 137 subsections (2) and (3) of the 1991 Constitution provide for the tenure of judges of the superior court of Judicature and does not expressly or necessarily include the Chief Justice”.
However, in the letter dated 10 November 2014, Joseph Fitzgerald Kamara, thanked Mr. Kargbo for his response, but underscored his disagreement with the opinion espoused by the country’s Attorney-General and Minister of Justice.
“Mr. Attorney-General sir, to accede to your line of argument means that the tenure of the Chief Justice is for life (a postulate you made over ‘Culture Radio’ interview). Unarguably, should that have been the intention of the drafters of the constitution, it could have been expressed in no uncertain terms,” Kamara said and added that its absence is deliberate and a strong message that the term of office of a Chief Justice is limited to a mandatory age limit of sixty-five years.
According to Commissioner Kamara, had the framers of the 1991 Constitution contemplated that the tenure of a Chief Justice is for life, provisions therein would have expressly said so, or specifically limited to the express terms of the constitutional authorization and not through general provisions.
“It is our view that the tenure of the Chief Justice has a mandatory age limit of sixty-five years, after which the holder of that office, upon attainment of that age shall vacate office,” the anti-graft boss opined.
“Guided by the profound realization that the constitutional provisions at the core of mandatory age retirement are explicit and certain…, our interpretation is strengthened by history,” he added and referenced Constitutions of 1961, 1978 and the extant 1991 as having no “precedent to suggest that the office of the Chief Justice is tenured for life.”
Kamara supported his argument citing Section 120 subsection (4) of the 1991 Constitution which he said regards the Judicature as the “Supreme Court of Sierra Leone, the Court of Appeal and the High Court of Justice…which shall constitute one superior court of judicature….”
He went further to submit that: “Section 121 (1) depicts the composition of the Supreme Court to consist of (a) Chief Justice, and that a Chief Justice is a member of the Supreme Court, a constituent of the superior court of judicature. Hence to conclude that the composition of the superior court of Judicature ‘does not expressly or necessarily include the Chief Justice’ is untenable, with respect.”
The anti-corruption czar maintained that the drafters of the constitution chose to use the words ‘superior court of judicature’ to depict all the courts defined in section 120 (4), except where it is intended to exclude other positions or courts, which it does expressly.
He said Section 120(9) provides immunity for ‘judges of the Superior Court of Judicature’ without specific reference to the Chief Justice, albeit the Attorney-General’s letter seems to suggest the “Chief Justice cannot avail her to immunity”, which he said “cannot hold”.
He again referenced Section 138 of the Constitution which deals with remuneration of judges, which is charged on the Consolidated Fund, to support his submission that the Chief Justice, like all judges of the Superior Court of Judicature, should retire at age sixty-five.
“Currently, the budgetary line item of the Office of the Chief Justice’s salaries are charged from the Consolidated Fund in practice. Is it your position that the Accountant-General should now desist from such practice and seek ‘executive clearance’ to pay the salary of the Chief Justice?” he queried, adding “With respect, that line of argument is unsupported in law and practice.”
He further said that Section 137 (2) expressly provides for the tenure of every judge of the superior court of judicature, without excluding the Chief Justice.
“Reading Section 137(7) in isolation of sub-section 5, would go against a cardinal rule of constitutional interpretation that the constitution must be looked at as a whole, the entire constitution must be read as an integral whole and no one particular provision should destroy the other but each should sustain the other,” Kamara said. “This is the rule of harmony, of completeness and exhaustiveness.”
In conclusion, the ACC commissioner stated without mincing his words that: “the current Chief Justice has reached and past the mandatory retirement age, and shall vacate office by operation of law,” adding “The constitution makes provision as to what procedure to follow in such circumstances.”