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Why Section 32(3) needs Supreme Court interpretation?

By Alfred Koroma

After approving Mr. Abu Bakarr Mamoud Koroma, Electoral Commissioner North-West Region whom the main opposition party refused to accept, Deputy Speaker of Parliament, Hon. Sengehpoh Thomas called on the public to seek Supreme Court interpretation of Section 32(3), one of the many loopholes in the 1991 Constitution.

The opposition party (APC) refused to approve Koroma, alleging that they were not consulted before the appointment was made.

The section made provision for the President to appoint electoral commissioners only after consultation with leaders of all registered political parties in the country. But the provision is ambiguous, rendering it ripe for abuse by successive governments. It has given sitting governments both present and past autonomy to impose whoever they desire to serve in the Electoral Commission, regardless of public objection.

The issue here is that the 1991 Constitution did not provide a definite definition for what it meant by ‘consultation’ in the context of presidential appointment to the country’s sensitive electoral office.  Who determines what is accepted as consultation is also not clear.

Every government interprets and uses the provision at it advantage, often generating animus controversy among political parties when approving appointees to the Electoral Commission office.

 There is too much confusion on the matter of consultation. Consultation is not agreement. There can never be agreement between the government and the opposition in such sensitive issue. Only the Supreme Court can end the agreement, the Speaker says.

Although Koroma was unilaterally approved by the ruling party, it was clear that the process did not go down well with the main opposition party which refused to participate in the vote.

In October last year, opposition parties walked out of the Well of Parliament in protest, citing lack of consultation again in the appointment of Mrs. Zainab Umu Moseray as electoral commissioner. Just the way it happens last week, the Electoral Commissioner for the Western Area was also single-handedly approved by the ruling party despite the opposition boycott.

Political parties have always had issue with the ambiguity of the section 32(3) of the constitution. The meaning of consultation is already diversified among them.  What the ruling SLPP offers to mean consultation is not what APC and other opposition parties view as consultation. In appointments where opposition parties would always yell they not been consulted, the ruling party evidently argues of having done the needful.

 The issue of consultation in section 32(3) has become so thorny, says the Deputy Speaker while calling on the public to approach Supreme Court for interpretation of the ambiguous provision. He made the same call last year when the same controversy resurfaced in the legislative House during the vetting of Commissioner Umu Moseray. “…the issue of consultation can only be determined by Constitutional Court.”

So what is consultation and what the Constitution says?  

The Oxford English Dictionary defines consultation as “the act of discussing something with somebody or with a group of people before making a decision about it.” And section 32(3) of the constitution says:

 “The members of the Electoral Commission shall be appointed by the President after consultation with the leaders of the leaders of all registered political parties and subject to the approval of Parliament.”

 By the lexicon definition, consultation in the appointment of Electoral Commissioners means discussion between the President and leaders of registered political parties before appointment to the electoral office is done. The constitution did not make it clear.  And it did not define how consultation should be done. Furthermore the provision did not state whether political parties should agree with the President before appointment is made.

What has the government been doing?

From MPs argument in Parliament, it has been clear that the ruling party often sends out letters to all political parties informing them about the President’s choice. It is not clear whether this is often done before the President makes appointment to the office as the Constitution demands. In the last two appointments made by the President to the Electoral Commission, opposition parties alleged they were not consulted and that letters were only sent to them after the appointments have been made.

The issue of consultation when it comes to NEC appointment should be treated very thoroughly, Hon. Ibrahim Ben Kargbo, former cabinet minister and current MP of the Main opposition.

The political atmosphere in the country remains tensed since the last election, and elections have proved to be the flash point of conflict in democratic nations.  There is a need to properly handle everything connected to electoral activities. This begins with fair handling of laws governing issues around electoral activities, and fair process in the appointment of those who hold electoral process.

All politicians are concerned about the way elections are conducted. For both parties know the consequences of losing elections, says Ben Kargbo.

The issue of consultation in the appointment of members of the Electoral Commission has been an issue years back.  Until the Supreme Court clearly explains the provision, Section 32(3) remains a loophole ripe for abuse.

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