BY Andrew Keili
Underestimate the impact of the judiciary on our democracy at your peril! Despite our gains in having what many consider free and fair elections and changing governments in a peaceful atmosphere over the past few elections, the judiciary has always been centre stage in major decisions affecting especially opposition parties. Injunctions have become much too commonplace to the extent that opposition parties go through trials and tribulations to hold their conventions to elect a flagbearer before General Elections. As we have seen in the current injunction imbroglio affecting the APC, a single judge could decide the fate of a whole political party, usually through court orders that are hard to understand and interpret.
Armchair lawyers are still trying to decipher what Justice Hannah Bonnie’s various orders mean. I obviously would not proffer my views on the substantive matter as it is still sub judice and “Banbakayaka” is the last place I would like to be hosted at present. Besides, I must admit that our lawyers do confuse me, despite the fact that I went to CKC. Terms like interlocutory injunction, perpetual and interim injuctions leave me totally confused and I am certain they would confuse close to four quarters of our voters!
Lawyers remind me of a learned man who told his tormentor- “I will get the Police to charge you for assault and battery and you will be answerable in a competent court of law and incarcerated in a penitentiary facility after a guilty verdict”. His ill-educated tormentor retorted- “A nor know da wan day. A nor get torchlight. A nor get battery. But if you form am, a go gi you dorty beat en dreg you nar gron”!
I will state what I have heard from others. First the impression was given by those who dared to interpret the first set of orders that APC would be banned from holding its convention, pending the outcome of the case. Then the next set of orders seemed to infer that the ban only applied to APC’s ITGC and that the party could go ahead with its convention. Then our armchair lawyers argued over whether those cited as defendants (including some deceased APC members!) could in fact be voted for. Social media has been awash with speculations as to what may have caused what many consider a volte-face. Some pundits have even gone so far as to suggest that diplomats representing our major development partners must have exerted pressure on our judiciary. Another confusing aspect of this case is that apparently the report by the plaintiffs was already the subject of investigations by the PPRC.
Many people have complained about what they consider is the incessant “weaponisation” of our laws to disadvantage opposition parties close to General Elections. Some go so far as to point the finger at sitting governments, accusing them of remotely controlling the judiciary in such cases. A pliant and compromised court, they reason may mete out injunction after injunction destabilising the opposition. Critics say injunctions flirt with generating civil unrest. There are others who are however adamant that aggrieved citizens who are party members should have access to justice if they have not been properly treated within their parties. Seeking redress in court for any minor infraction may however be misused by some who may be used as surrogates by others for personal gain if it is not well controlled.
Whatever the case we have been here before-injunctions are not new. Just before the 2012 elections, the Supreme Court banned the SLPP from meeting to choose its presidential candidate, sparking accusations of government interference. It was unclear whether the party would be able to choose its candidate on time and start campaigning. The Party’s Secretary General remarked that “Such acts serve as a recipe for instability”, and purportedly cited a 2005 ruling stating that the court does not have jurisdiction over the workings of political parties. He said the injunction was politically motivated. As with the current case, the court injunction followed a lawsuit by a member of the party, Dr. Bubuakei Jabbi, a strong party stalwart and flagbearer aspirant who argued the SLPP had wrongfully extended the mandates of some of its officials. Also, as with now, the sitting government denied it had any hand in influencing the injunction. I recall those “injuction days” all too well. “Fa”, an ardent supporter of mine used to complain about Dr. Bubuakei Jabbi- “All tem dis man ya go for injection. E nor go go see gud Dokta? Na dat mek den for stop we conbention? Mone-oo!”
It seems patently obvious that unless we have the political commitment on all sides to abrogate the inordinate powers given to the judiciary to determine internal party matters, these situations will always arise. The late Justice Tholla Thompson, when heading the PPRC would always advise parties to keep away from the courts. His report on the SLPP electoral conflict after the 2013 convention gave sage advice which will bode well for any political party.
Stressing on the need for compromise and sacrifice by major players within the party, he wrote:
“However, it behoves those engaged in the practice of politics to compromise and sacrifice their personal stance for the sake of accommodating democratic norms in the interest of the majority. In doing so, we must not allow our ego to overwhelm us…….. what is desired at this stage is to identify men and women of goodwill and honour, self-respect and integrity who will not indulge in frivolous, unwarranted imputation, expressions and comments against other members of the Party.”
He, a Supreme Court Judge, warned about exercising some restraint in going the legal route with political matters:
“It is the policy of the Commission that when dealing with disputes among the membership of Political parties, usually, the Commission endeavours to strike a balance between legality and political expediency – simply put, what is legal might not necessarily be politically expedient. The Commission intends to adopt that Policy on this occasion.”
Sage advice indeed!
Existing regulations for intra-party democracy are in many instances ineffective and their provisions cannot be enforced either because of the lack of capacity or the deviance from democratic culture by the parties. Accusations of the government’s meddling into the affairs of opposition parties in subtle and overt ways and the slow pace of justice with electoral cases would seem to have merit in certain instances.
There were however expectations that with the extra powers now granted to the PPRC, they would use these to stop parties from openly defying their own constitution. Judging by the current spate of court cases or threats of them, this does not appear to be the case. There are also unsubstantiated accusations that the PPRC deliberately sometimes encourages intra party turmoil by its actions or inactions and that these obviously benefit the party in power. The PPRC obviously disputes these accusations.
One thing is however for certain-unless things change drastically with internal party democracy and the PPRC fully meets its mandate, court injunctions will be here to stay and we will keep having court orders that will make King Solomon’s head spin. The frightening part of all of this is that if we are not careful, the judiciary’s role in determining what happens with our political parties will always determine what type of government we have. This may not bode well for the future.
It seems obvious from their statements that our development partners are concerned about our elections. Their local diplomatic representatives have reaffirmed, almost in unison that Sierra Leone needs a strong democracy and that credible, inclusive, multi-party, multi-candidate elections as essential to consolidate, strengthen and build on democratic gains. All their utterances of late have alluded to free, fair and peaceful elections.
We have to be careful that the courts do not determine our future political course as a nation, especially knowing our political history and our politics which is largely based on ethno-regional considerations. Besides injunctions on holding conventions, it would seem the sword of Damocles always hangs over major opposition political players before and sometimes right through elections in the form of never-ending court cases that many say are aided and abetted by a pliable judiciary. We will leave this for later. As Justice Thola Thompson opined, “what is legal might not necessarily be politically expedient”. It behoves the PPRC and the parties themselves to step up and the government of the day to provide a level playing field. We must not allow injunctions to trump conjunctions which are required between various factions.
Ponder my thoughts.