NOVEMBER 18, 2014 By: Bankole Clifford Ekundayo Morgan, Human Rights Advocate
It is my belief that a write-up on the due process of the law in times of public emergency (as in the case now in Sierra Leone) powers in the 1991 Constitution of Sierra Leone and the Truth and Reconciliation Commission of Sierra Leone (TRC) recommendations will help to enlighten the public.
The TRC was a product of the Lome’ Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF) and was set up after the eleven years of senseless brutal civil conflict that engulfed the nation (1991 – 2002). TRC was considered to be highly significant for the healing of the traumatised nation which it reported had been torn-apart due to bad governance, corruption, tribalism, lack of freedom of expression and the press, lack of respect for the promotion and protection of human rights, etc.
It is a plain truth that the work of the Commission laid the foundation for reconciliation and healing for all those affected by the civil war. This was made manifest as victims and perpetrators were able to find a common ground on which to stand, live and develop the country together in peace and harmony.
The TRC Report calls for introspection and a retrospective examination of the political, historical, economic, social and moral activities of both the state and the nation. It is on this basis that I developed the desire to write this piece as a way of reminding every Sierra Leonean of the effect of doing things that will remind us all about the ugly past.
PUBLIC EMERGENCY POWERS IN THE REPORT OF SIERRA LEONE TRC (Pages 127 – 129 of Vol. 2 of the Report of the Sierra Leone Truth and Reconciliation Commission)
According to the TRC, “The current Constitution of Sierra Leone devotes more space to taking away the rights of citizens than to ensuring their respect. Section 29, which provides for public emergencies, is the best example of this”.
(See paragraph 66 of Chapter 3, Vol. 2 on Page 128 of the TRC Report).
As a human rights advocate, such description has huge impact in the enjoyment of fundamental human rights; this should be the concern of every sober-minded Sierra Leonean human rights advocate. Chapter III Section 29 which talks about public emergency is said to be a clear example.
In fact, successive governments of Sierra Leone have been officially enjoying a collection of sweeping powers in relation to public emergencies under the 1978 constitution unto the present Constitution of Sierra Leone, 1991. Section 19 of the 1978 Constitution of Sierra Leone gives wide powers to the President in the period of public emergency. Also, Section 29 of the Constitution of Sierra Leone, 1991 gives a collection of powers to the President in the period of public emergency. Section 29 sets the parameters for which the President may at any time by proclamation, which shall be published in the Gazette, declare a public emergency.
Section 29 (5) states that “during a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof”.
Sierra Leone, being a signatory to lots of international and regional human rights treaties, conventions and or optional protocols, as well as a member state of the United Nations, must ensure as a nation to abide by those human rights documents and aware of the implications of doing things contrary to international human rights law.
The TRC report observed the weakness in the enjoyment of civil and political rights during periods of public emergencies. It notes that “The President is given wide powers under sections 29 (5) and (6) to make regulations and take measures during a period of public emergency that may have the effect of suspending all fundamental human rights. Clauses authoring such powers should be removed from the Constitution”.
The TRC therefore recommended that ‘all emergency measures must be subject to judicial review by the Courts of Sierra Leone’. Judicial review refers to the power of a court to review a statute, treaty or administrative regulation for constitutionality or consistency with a superior law. It is the power of the judicial branch of government to decide whether or not acts of government are constitutional. In the process of judicial review ‘any superior court of record should be able to decide on the validity of a declaration of a state of emergency’. Therefore, upon a declaration of public emergency, ‘no clause should be permitted to stand, which prevents the courts from reviewing any measure taken in terms of a public emergency. ‘No law made under a public emergency should permit the indemnifying of the state or any person, in respect of any unlawful act’. In short, there should be ‘no ouster of Courts’ jurisdiction in Public Emergencies. Certain rights are not derogable in Emergencies” (see page 205, of Chatper 3 Vol. 2 of the TRC report). The TRC thus viewed that a ‘partial repeal of sections 29(4) and (6) of the Constitution’ is necessary and made it an imperative recommendation that must be implemented by the government (See paragraph 68, of Chapter 3, Vol. 2, at page 128, of the TRC report. Unfortunately this recommendation is yet to be implemented.
I humbly remind government of Part V, Section 17 of the Truth and Reconciliation Commission Act, 200 which provides that:
“The Government shall faithfully and timeously implement the recommendations of the report that are directed to state bodies and encourage or facilitate the implementation of any recommendations that may be directed to others”.
DURING PUBLIC EMERGENCY STATES SHOULD BE GUIDED BY INTERNATIONAL HUMAN RIGHTS LAW
The United Nations Human Rights Committee realized that some states exercise excessive powers during public emergency. The United Nations Human Rights Committee, in the bid to put corrective measures in place for the full enjoyment of civil and political rights, prepared guidelines by which states should abide by during state of emergency. The Committee states that in a state of emergency member states should ensure that:
“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Furthermore, during a state of emergency, judicial remedies must be available so that citizens can contest the legality of special measures, including detention.”
When issuing a state of emergency, state parties should therefore endeavour to abide by international human rights law, which is the body of international law designed to promote and protect human rights at the international, regional and domestic levels.
THE CURRENT STATE OF HEALTH EMERGENCY IN SIERRA LEONE
I now realize why the President did not declare a public emergency at the time we were all clamouring for it. This can be interpreted that the President did not, at the initial stage envisage any imminent threat of the Ebola. The President was right to view it that way according to the mandate given to him in section 29 of the Constitution of Sierra Leone, 1991. However, according to international human rights law, it is sad that a range of powers as stated in section 29 could be entrusted in a single hand. To support this principle that was why the TRC made a very strong recommendation for clauses authorizing such powers should be removed from the Constitution. Furthermore, paragraph 71 of Chapter 3, Volume 2 states that ‘laws or regulations made in terms of a public emergency should be consistent with Sierra Leone’s obligations under international law that apply to states of emergency. This requirement should be enshrined in section 29 of the Constitution’.
I hope the Constitutional Review Committee will take cognisance of the collection of recommendations made in the report of the Sierra Leone Truth and Reconciliation Commission into which lots of resources and time were invested.
It is evident that the government has put in place the following regulations and taken measures that appear to the President to be necessary as provided for in section 29 of the constitution of Sierra Leone, 1991.
- declared a public emergency
- enacted the Public Emergency Act, 2014
- required local government officials to establish laws to support Ebola prevention efforts.
- quarantined suspected Ebola home(s) for twenty-one days
- instituted quarantine measures for communities affected by Ebola, eg. Kailahun, Kenema, Makeni, etc.
- re-organized the EOC, renamed it National Ebola Response Centre (NERC) and appointed the Defense Minister as Chief Executive Officer (CEO).
- instituted restrictions on public and other mass gatherings.
- declared three day “Ose-to-Ose” Ebola sensitization.
- authorized house-to-house searches to locate and quarantine Ebola suspected cases and Ebola cases.
- ordered that all deaths be reported before burial.
- ordered that all death whether at home or hospital should be taken care of by government.
- authorized police and military personnel to help enforce these and other prevention and control measures of the spread of the Ebola virus.
- Le. 63,000,000.00 given to each Member of Parliament to conduct sensitization and curtail the spread of the disease in their constituencies
With all of the above regulations and measures, government is yet to conquer the Ebola outbreak. Let me pose this question: Are we winning, losing or have we lost the Ebola fight? May I humbly submit to the President that we need to go back to the drawing board to re-strategise the way forward to fight Ebola. As I write another of our gallant medical doctor and lecturer at the College of Medicine has tested positive of the Ebola virus (he died yesterday in Nebraska, USA). What mechanism has been put in place to make his own situation a success story, and what mechanism has been put in place to put an end to the huge death rate of Ebola? We are losing precious souls every day. Oh God! Visit our nation, grant the President and all stakeholders the wisdom to tackle the Ebola outbreak, cleanse and heal our nation from the attack of this deadly disease in Jesus’ mighty name I pray, Amen.