March 31, 2015 By Andrew Lavali

When a judiciary enjoys independence and is faithful to its constitutional mandate, then peace, good governance and sustainable economic development is achievable for a country. This is the test Sierra Leone’s Supreme Court faces as it prepares to begin a historic constitutional matter and find a solution to the rising political tension following President Koroma’s controversial sacking of the country’s elected Vice President, Alhaji Samuel Sam-Sumana.

The President’s move has been roundly criticized and condemned in many quarters, including by one of the framers of the country’s 1991 Constitution Justice Abdulai Conteh, opposition parties, leading civil society actors, and a majority of Sierra Leone lawyers. Many believe that the President’s action is unconstitutional. Outside Sierra Leone, protest marches calling for due process have taken place in front of the Sierra Leone embassy in Washington and on Downing Street in London. Further demonstrations are planned by Sierra Leoneans across party lines at the UN headquarters in New York, as well as in Europe and here in Freetown. Vice President Sam-Sumana has taken the matter to the Supreme Court (SC) and there is wide consensus that the trial will be a test of judicial independence and democratic consolidation.

The stakes are high in the awaited decision as it comes at a time the SC really needs public support. If the Vice President wins the case, it will mean President Koroma has breached the constitution, a possible impeachable offence. If Sam-Sumana loses the case, it is likely to anger the vast majority of Sierra Leoneans who believe that the President’s action was unconstitutional. The Sierra Leone judiciary could well be on a trial of public opinion. We argue in this paper that the SC does not necessarily need to pass a judgment that will please everyone; rather it should have a decision with which Sierra Leoneans will be content to live.

Judicial independence is a major issue for Sierra Leone. No citizen has ever won a constitutional or criminal case against a sitting government since 1991. However, it is the wish of the electorate that constitutional democracy survive and Sierra Leone show that it has a truly independent body of judges loyal to the oath of office who stand ready to administer justice to the aggrieved. The case therefore constitutes a major opportunity for the Sierra Leone judiciary to show that it is the true protector of the constitution and that its judges will promote the rule of law. It is also an opportunity for the judiciary to be the arm of government that redeems the image of the country; and prove to the world that a breach of constitutional obligation will face penalties in court regardless of who commits the offence.

Despite fifty-four years of independence, and over $85m investment in judicial reform following the civil war, Sierra Leone continues to have a poor history of observance of rule of law, including recent accusations of corruption going unpunished. For example, a recent report by the medical charity Medecins Sans Frontieres (MSF) shows that authorities were not committed to the fight against Ebola when the epidemic started in the opposition district of Kailahun, leading to the current state of infections of over 10,000 people, and the destruction of the economy. Eight months into the epidemic, the government’s own audit report concluded that over $14m of Ebola funds were unaccounted for, and that the lack of accountability was undermining government response to the epidemic. It would appear that these incidents persist largely because our leaders prioritize consolidation of power over the welfare of citizens. The decision to sack the VP at the height of the fight against Ebola has left many wondering what the limit of the EXECUTIVE POWERS of the President is. This is where the SC is critical in setting the record straight and averting the following dangers:

1. Sacking an elected Vice President can give rise to unpredictability. It places pressure on democratic governance institutions and law enforcement agencies including the police to restrict democratic freedoms. Over the last two weeks, for example, the government has become increasingly intolerant of dissent even within its own ranks. Such intolerance has been supported by the Sierra Leone Police (SLP) who has warned against and blocked all avenues for peaceful protests and public meetings on right-promotion activities. Certainly, such actions are threatening the gains made in democratic consolidation and national cohesion in the last 19 years. The threats posed by the restriction of civil liberties, freedom of speech and assembly by the SLP could significantly undermine the confidence citizens were developing in the SLP. It can also affect the re-inventing of the kind politics historically associated with the promotion of dictatorship in the 70s and 80s, and the corresponding abject poverty and injustices that led to the Sierra Leone civil war.

2. Sacking an elected Vice President through use of vague supreme executive powers, impinges Sierra Leone’s democratic credentials, which will further adversely impact investment volume in the economy which, according to a recent UN report lost close to 35% private sector jobs as a result of Ebola. The epidemic has scared away many investors from West Africa’s lowest foreign direct investment earner (according UNTAD). Rebranding Sierra Leone starts with a fair SC decision as this has the potential to create an investor-friendly atmosphere: knowledge that the rule of law is enforced in any country creates strong incentives for investment. And there is no doubt that SC judges are equal to the task.

On the other hand, increased political tension during the course of the trial can only stretch police capacity further, and increase the cost of policing. If the situation is not controlled, the Ministry of Finance should not be surprised to see a request from the Inspector General for extra budgetary spending before the end of 2015.

3. Any decision by the SC that due process is not followed in sacking of the VP has the potential to undermine President Koroma’s legacy on good governance and reform, as well as his Agenda for Prosperity. The likelihood of attaining funds through the Millennium Challenge Cooperation and other international funding instruments that prioritise good governance appears to be slim under these circumstances.