PUTTING A CART BEFORE A HORSE

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By: Winstanley. R. Bankole. Johnson

If it was only last Wednesday 8th December that Mr. Adrian Fischer was “approved and confirmed” by Parliament as a High Court Judge, then I feel terribly ashamed for my country because it logically follows that for as long as he had been presiding as such within the Judicature of Sierra Leone prior to that substantive Parliamentary “approval and confirmation”, he had been doing so irregularly.  To me it was belated, like putting the proverbial “Cart before a Horse”.

And my boldness to so assert stems from my reliance on Sec. 135 (2) of our National Constitution which makes it mandatory for anyone appointed to serve as a Judge of a superior Court to first subject him/herself to prior Parliamentary scrutiny and approval. There is no exception or exemption to that constitutional prerequisite.  None at all!! Not even Sec. 136 (3) which clearly qualifies the latitude for appointment of Judges under Sec. 135 (3) or as Acting Judges that in Sec. 136 (2) are restricted only to persons qualified for appointment as a Judge and/or that has retired from that position. Cumbersome? Not quite!!

Thus the Parliamentary “confirmation and approval” of Mr. Adrian Fischer on 8th December as a substantive High Court Judge spoke to a few things that should be worrisome for our country and among which are:

  1. That the principle of separation of powers guaranteed by our Constitution do not appear to exist in the polity this country anymore. Otherwise neither the Hon. Chief Justice (CJ) who provided a Court for Mr. Fischer to have begun presiding within his judicature, nor the Speaker and Members of Parliament would ever have allowed him to have either commenced and/or continue presiding as one for over two years unchallenged, and without first guiding the Executive to that sacred constitutional prerequisite for his prior Parliamentary “confirmation and approval”.
  2. By not so guiding the President on (1) above, the Hon. CJ and Speaker of Parliament and MPs and the Anti-Corruption Commissioner were complicit to a major Constitutional breach. And vicariously, the same complicity applies to General Legal Council and the ACC Commissioner as well as to those purporting to be representing the voices of the voiceless (Civil Societies groups including Inter-Religious outfits) and worst of all the Sierra Leone Bar Association), for not living up to their responsibilities of holding the establishment to account.

Nullity

Can one not now safely conclude that all matters presided upon by the said Mr. Adrian Fischer up to his “confirmation and approval” to sit as a substantive Judge of the High Court prior to Wednesday 8th December could be challenged on grounds of “nullity”? Because insofar as our Constitution requires, he had been doing so irregularly. That is to say “acting as a regular High Court Judge” when technically he wasn’t constitutionally one “confirmed and approved” by Parliament.

I am given to understand (and verily believe) Mr. Adrian Fischer may not be the only Judge to have been presiding as a High Court Judge without prior parliamentary “confirmation and approval”. I can also very well recall a Minister or two commencing duties straight from after their appointments and oath taking before the President without prior parliamentary scrutiny and approval. I have written copiously on this gaffe in the past, but no one seem to care a hoot about such a serious constitutional anomaly as aforesaid: neither the Rt. Hon. Speaker, nor the MPs that are supposed to be protecting our interests, nor the General Legal Council or the ACC Commissioner, nor those purporting to be representing the voices of the voiceless (Civil Societies groups including Inter-Religious outfits and worst of all the Sierra Leone Bar Association).

One reason that to me made the belated 8th December parliamentary “confirmation and approval” of Mr. Fischer irksome is that the Parliamentary Communications Department Presser was categorical in that it was not retroactive, but fresh. Meaning anyone is now free to seriously question and possibly seek leave of the Hon. CJ for a revisit and pursue an annulment of all rulings delivered by Mr. Fischer prior to his parliamentary “approval and confirmations” on 8th December, whether or not they impact the APC or its  memberships and or affiliates.

Co-ordinates

To seasoned politicians adding up the co-ordinates of events in the days prior, Mr. Fischer’s “confirmation and approval” by a Parliament comprising vociferous/vibrant opposition APC MPs with the swiftness of a hot knife passing through melted butter came as no surprise. First there was his public remonstration and conviction (albeit suspended) of Peter Conteh. Then followed his subsequent public chastisement of the lead ACC Prosecutor Mantsebo in the NY Chancery Building saga to close his case involving the lead 2023 APC Presidential aspirant Dr. Samura Kamara – Pronto. Against those backdrops also emerged a consensual but rather distractive clamour of threats by MPs to block all debates (including on the Financial Appropriation Bill that incidentally includes approval and payments of “Severance Benefits” for all Presidential Appointees by 31st March 2022, and of course the pending debates on confirmation of appointments hearings) unless and until their own “welfare issues” were satisfactorily addressed.  Given the fact that no one receives Parliamentary summons for confirmation hearings on the night before, Mr. Fischer’s pending confirmation appearance should have come as no surprise to anyone. Are you seeing the co-ordinates now?

But whether or not those seemingly swift placating about-turns by Mr. Fischer were intended as ground softeners for his pending confirmation hearing, or that the threats by MPs were to elicit a Quid-Pro-Quo (something for something) from the government, they tend to lend credence to convictions of the Africanist Press that for the greater part of their incumbencies, our MPs would seem to prioritize their own welfare over and above those of the people they purport to be representing. A clear testimony to that was that no one in the “Well” of Parliament dared to question the nominee on what basis he had been presiding as a High Court Judge (and even occasionally empanelled to sit on the Appellate Bench) for over two years, without their prior parliamentary “confirmation and approval” even as a substantive High Court Judge.

With our next multi-tiered elections barely six months away, I am aware that this would (as usual) all sound like pouring water on a duck’s back. This is because most of our MPs will certainly not be returning to the “Well”. Rather unfortunately and as in the past, all previous crop of MPs have

been branded much worse than their precursors. So as we await the epitaph of the present crop of MPs constituting the 5th Parliamentary Session of this Republic, it behooves us all to choose our next crop of MPs wisely and discretely too, to ensure that those we elect do not prioritize the advantages of rank and fortune above service and integrity, but would rather always have the fortitude not necessarily to be confrontational with, but where necessary to be punctiliously guiding the Executive into a strict observance of Constitutionality and the Rule of Law.

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