Supreme Court okays PR System for 2023 elections

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Scene in the Supreme Court of Sierra Leone during the judgment

By Ibrahim Kabba Turay

Supreme Court presided over by Chief Justice Desmond Babatunde Edwards and four other empanelled judges, has upheld that the Proportional Representative System should be used for the June, 24th, 2023 general elections.

The presiding judges further said that the directive given by the president to the Electoral Commissioner to Sierra Leone to hold the 2023 public elections for ordinary Members of Parliament by the district block presentation system instead of constituency was intandem with the provision of Section 38A (1) of the 1991 Constitution of Sierra Leone, as amended and therefore not ultra-virus.

They also ruled that the correct parliament will soon be dissolved and there after constituency currently existing will be distinguished for the purposes of representation, in pilot in favour of representative representing each of the sixteen districts in Sierra Leone, inclusive of independent candidates who secure the minimum threshold to secure seat in parliament.

They ruled that independent candidates can and be part of the electoral system and can stand and be voted for, and be included in any of the seat represented in the sixteen districts in the country.

The judges have ruled that the statutory instrument No 13 and 14 of the 16th November, 2022 were part of the law of Sierra Leone, and not ultra-viras of Section 33 and 38 of the 1991 Constitution of Sierra Leone Act No (6) of 1991 of Section 38A of  the Constitution as amended in 2001 and Section 171 of the Public Election Act No 17 of 2001

“Subject to the current law of the country,inclusive of the Constitution of Sierra Leone and Statutory Instrument No. 13 and 14 of 16th November, 2022, local council election is expected to be by district block representation,” they ruled

They further refused an order sought by the plaintiffs for the Court to restrain the second defendant-the Electoral Commission of Sierra Leone (ECSL)  from taking steps in conducting the 2023 multitier elections under the district block representation system.

The Supreme Court judges further refused an order sought by the plaintiffs for the court to annul the directive given to the second defendant,ECSL, to hold the June 2023 elections for ordinary members of parliament, councillors on a constituency or ward basis.

“On cost, these court notes that this is public interest based litigation and hence it is not incline to award cost. A menial cost is awarded in a sum of three thousand new Leones, and three million old Leones,” they ruled.

The plaintiff filed a motion in court challenging the legality of using the PR System in the 2023 general election.

The plaintiffs, Hon.Abdul Kargbo and Councillor Hariaku had instituted an action in the Supreme Court tittle “FCCT” to invoke the original jurisdiction of the Supreme Court pursuant to Section 124 and 127 of the Constitution Act No. 6 of 199.

The plaintiff prayed for reliefs including, the declaration on a proper interpretation of Section 38 (A) of the Constitutional Amendment Act No. 15 of 2001, that the directive by the president to the Electoral Commission of Sierra Leone to hold every public elections for ordinary members of parliament by the proportional representation system, where an extant and substantive constituencies, was  is ultra-viras to the constitution.

They also prayed for a declaration that the current parliament was itself elected on constituency basis as provided for in Section 38 (1) (2)(3) and that those constituencies are substantive.

The plaintiffs further prayed for a proper declaration that revision of constituencies as provided for in section 4 of the constitution does not necessary results in the establishment of constituencies stipulated in section 38 (1)(2) and (3) of the constitution, but the section provides for the purpose  when existing constituencies should be reviewed.

The Chief Justice continues that in 2022, a bill titled, the ‘Public Elections Bill’ was introduced in parliament and clause 57 of the said bill provided that the general election of Members of Parliament order than Paramount Chief Members of Parliament, shall be one member constituency system under section 2 of section 38 of the constitution.

He said during the first and second reading of the bill, it was evidenced that there was strong and vocal opposition to the bill in so far as it purported to introduce the District Block System for the ordinary members of Parliament.

He said the Speaker of Parliament perhaps sensing the mood of Parliament later removed clause 57 for consideration by the Parliament.

He said the Speaker then announced that proportional representative system in election must always be part of the laws of the country in light of the amendment introduced by section 38 (a) of the Constitutional Amendment Act No. 15 of 2001.

He said on the 21st October 2022 the Electoral of Sierra Leone issued a press statement in which it stated that on the directives of the president of Sierra Leone, it would use District Block voting system to conduct the 2023 elections.

 He recalls that Dr. Abdulai O.Conteh for the plaintiffs submitted that the PR System was not an alternative system of election in a democratic country govern by the rule of law and argued that it was section 38 (A) (1) of the constitutional Amendment Act No.15 of 2001 that introduced such system, but that it must be in conjunction with section 38 (1) of the constitution of Sierra Leone Act No. 6 of 1991, which has imposed constituency based election, and in which case Section 38 (A) is not free standing or ultra-net.

The Chief Justice further recalls that Dr. Conteh also argued that the power vested in section 38 (A) of the constitutional amendment must be exercised within the parameters of the 1991 Constitution Act No. 6 of 1991.

The Chief Justice further cited Robert Kowa representing the Attorney General and Minister of Justice, who argued that as at the time of filing the motion in November 2022 by Counsels representing the plaintiffs, the Constitutional Instrument was yet to be law and therefore  refer the submission of Dr. Conteh and team as a pre-emptive strike.

He said Kowa has argued that, the plaintiffs being dissatisfied with the press statement on 28 November 2022, filed an originating notice of motion to the Supreme Court pursuant to Section (1)(2)(4) of the 1991 Constitution and that the main plan of the plaintiffs case was that the conduct of the 2023 election or the district block representation system would offend the control position in section 38(A)(1) of the constitution.

The Chief Justice stated that both plaintiffs are not independent candidate as they belong to the All Peoples Congress Party and that they didn’t have the locust standi to contest that action

He said the second defendant who is the ECSL acted within their limit and the decision was not remitted and that didn’t in any way undermine the country’s democracy.

The Chief Justice stated that the directives given by the President requested to the electoral commission to hold the 2023 public election of ordinary members of parliament by the district block representation system instead of constituencies was intact with the provision of section 38 (A) (1) of the 1991 Constitution of Sierra Leone as amended and therefore not ultra-viras .

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