Subject: To Kelfala Kallon, essay Aiding and Abetting Coupmakers
Date Posted: 16:37:02 06/25/07 ()
Entered From: adsl-66-137-225-138.dsl.rcsntx.swbell.net at 220.127.116.11
Your thoughtful essay on Aiders and Abetters of Coupmakers makes two postulates evinced from a commentary on President Kabbah’s resolve to punish post-coup collaborators for supporting, aiding and abetting treason. The first asks whether Sierra Leoneans enjoy a right of association with coupmakers. The second asks a rhetorical question whether President kabbah has authority to find and punish coupmakers and their collaborators. The postulates are of debate value that draws my attention. Let us take each in turn in the rejoinder ahead.
First, the “right” to support a government of one’s choice. More specifically, you asked whether, “Citizens of Sierra Leone have a right to support any regime, even illegal ones.” There is right to support a government one chooses to behold in accordance with political beliefs. But as you already know, there is no warrant in the extant Constitution (Act No. 6 of 1991) to support illegal regimes. There is no “right” to support coups or to associate with a usurper who overthrows Government! A right is a privilege cognizable under the law. A right is that which can be defended in a court of law because the citizen is endowed with it whether in the organic law of the land or its kindred case law and persuasive authority. A Sierra Leonean who expresses glee over the ouster of President Kabbah and supports the political view that he prefers soldiers in the corridors of government is entitled to that view. Holding dissimilar political views including odious ones is a protected right. If that gleeful Sierra Leonean goes farther to associate with and join the AFRC, to further its criminal enterprise commenced on 25 May 1997, that citizen does so on the pain of committing treason.
It is glaringly clear from Section 108 (8) from Act No. 6 of 1991, that Johnny Paul Koroma and his confederates committed acts of treason on 25 May 1997. It is equally observed that those who have joined in the illegal order resulting from the treasonous acts are their accessories after the fact. I agree with the general import in your assertion that Section 108 (8) is the touchstone for committing treason in Sierra Leone as far as the ousting of the legal order by an overthrow of the Constitution is concerned. But I chaff at your swiping notion that if a citizen fails, or is not actuated by the letter of Section 13 (i), to “participate in and defend all democratic processes and practices,” that he has not risen to the admonition of the section, that every citizen “shall abide by the Constitution”. What if a citizen holds a Hobbesian view of the Constitution that is an antithesis to democracy, would you say that such a citizen is at variance with the Constitution when elsewhere in the Constitution he is informed to have freedom of thought and association?
A constitution cannot compel which political views to hold. It is quite settled that even in established democracies there is a penumbra of political views contrary to democracy. Thus it is not uncommon to see Nazis, Communists, Fascists in the United States, the U.K, or even Israel. I do not question your strict textual interpretation of Section 13, for constitutional interpretation permits a divergence of views which only a court can settle. In the absence of such interpretation I beg to differ.
If we stretch your notion in all its meaning that we give the Constitution its plain meaning as Parliament presupposed or intended in its objects and reasons in 1991, we may all be found guilty of not “abiding by the constitution” because more often than not Sierra Leoneans have chosen to ignore the ambiguous and not-so-democratic grants in their Constitution. You speak of the “requirement” to defend the constitution in Section 13 as if the aspiration expressed by Parliament is broken when we do not affirmatively take the Constitution at its literal meaning. You should look more to the spirit and not letter of the Constitution when looking especially at Section 13. This important section lays before the nation a duty to honour the Constitution by recognizing it as the organic law of the land and obeying its grants in all of its 192 sections. That is the spirit of the law. The letter of the law is not always obeyed so we call upon courts to interpret the letter when the spirit is divorced from it.
We have no established constitutional case law on challenges to the Constitution. Perhaps the closest constitutional doctrine emerging from the Supreme Court of Sierra Leone is when lawyers for Christie Green and others argued before the Court that President Joseph Momoh did not possess constitutional authority to make law. The proponents argued before the Court that their client Christie Green and others arrested during President Momoh’s State of Economic Emergency on corruption charges. They strenuously argued that their criminal conduct is purged because the Constitution (Act No. 12 of 1978 – One Party Constitution) at Section 19 only warranted the President to declare a state of emergency and not an “economic” emergency. That if President Momoh lacked authority to make law, his fiat called State of Economic Emergency negated their prosecution.
The Court supported President Momoh on the question that although Parliament enjoyed the authority to make the laws of Sierra Leone, in special circumstances such as availed themselves in the economic privation in the antecedent years of the Momoh regime, the President was authorized to legislate by fiat. But look everywhere else and you find no precedents in the constitutional law of our nation. The judges of the High Court and the Justices of the Supreme Court have refused to establish judicial independence by correctly interpreting the Constitution for fear that the President might remove them. Let us stroll down to your more important postulate whether post-coup confederates are guilty of treason.
On this proposition I support you with some reservations because of the inconsistent practice of treason law in Sierra Leone. It is axiomatic that the ouster of the legal order on 25 May 1997 was an act of treason. Unless Parliament passes an indemnity act to purge the treasonous acts of the criminal company of the AFRC/RUF they will face charges by the Director of Prosecutions on High Treason. Let me now examine point by point, your arguments in the second postulate. The object is to be clear on the points you raised in your otherwise thoughtful essay.
PROPOSITION I: That “those who help draft, promulgate, and/or enforce decrees issued by illegal regimes are aiding and abetting the commission of treason”
My rejoinder is quite obvious in accordance with the established law of treason. But the practice in Sierra Leone is inconsistent with the spirit and letter of the law. In 1992, Captain Strasser and others seized power.
Instead of condemning them for acts of treason, Sierra Leoneans invested them with the sovereign standards of the nation and assisted them in establishing what the German legal scholar Hans Kelsen has called GRUNDNORM.
According to Kelsen, when a usurper overthrows government and succeeds in effectively controlling the post-coup domestic circumstances, he has consequently succeeded in gaining legal authority as the new order of government, the Basic Norm (Grundnorm) emerges. To Hans Kelsen, a revolution occurs when the Grundnorm (a country’s constitution) ceases to have minimum support when the coupmaker’s dictatorship obtains sufficient support. Other legal scholars have supported Kelsen by stating a test for calling a coup, a revolution which erases the constitution. One such scholar, Deas says that the test whether a new legal order has succeeded the old is efficacy; the new order must be effective to be legitimate.
Others argue that universal acceptance is not required ; only substantial domestic effectiveness is sufficient. The parvenu government of the NPRC succeeded here but the AFRC is still wanting in establishing Grundnorm notwithstanding the coerced adminsitration of the Oath of Office by the Acting Chief Justice, Samuel Beccles Davies. Major Johnny Paul Koromah can foolishly continue to assume that the Oath shields him from prosecution, but his trial will dawn when the rule of law returns unless President Kabbah grants him amnesty as he originally sought to do in a letter to Sani Abacha.
In 1992, the NPRC succeeded in replacing the legal order with arbitrary rule with the aiding and abetting of respectable members of the Sierra Leonean society. One such person was President Kabbah, who aided and abetted the NPRC under Decree No. 7 to take up the post of Chairman of the National Advisory Council, to write its now aborted constitution. On that Commission were George Banda Thomas, Solomon Berewa and other prominent men and women who in fact now grace his cabinet. Such men, Dr. Arthur Abraham, John Karimu, among others also aided and abetted the NPRC by occupying cabinet posts and furthering the Grundnorm of the junta. Is there a distinction between these NPRC aiders and abetters and the AFRC aiders and abetters?
I’ll wholly join you in this proposition of aiders and abetters if we apply uniform and consistent judgment to them all as treacherous Sierra Leoneans, willing to betray the trust of the Constitution for a ride in a Benz or holding a coveted cabinet post. But our eminent men and women in 1992 all shredded the Constitution to establish the NPRC Grundnorm. With such auspicious support the NPRC established effectiveness under Kelsenian standards of ousting the old order for the new NPRC order.
I have returned to the NPRC “Revolution” to make the point that the inconsistent approach to post-coup supporters makes a mockery of establishing a heritage of the rule of law in Sierra Leone. Many of us who really obey Section 13 on the duties of the Sierra Leonean citizen should at all times aspire to the touchstone of the rule of law by never supporting any coup or assisting in the administration of post-coup regime as certain respectable Sierra Leoneans saw fit in 1992. The majority of Sierra Leoneans assisted the NPRC in establishing Grundnorm. Sierra Leoneans established the Kelsenian doctrine hitherto established in Pakistan, Uganda, and Rhodesia. It is a tenuous legal doctrine but was established in Sierra Leone for nearly four years under the NPRC, owing to the aiders and abetters who propped up the juvenile regime of force led by Captain Strasser.
PROPOSITION II: ENFORCEMENT OF THE LAWS OF SIERRA LEONE BY THE PRESIDENT
Professor Kallon, keep in mind that we are all aware of the constitutional responsibility of the President to enforce the laws of Sierra Leone. When he returns to State House as we continue to hope, he should enforce the laws according to his mandate in the Constitution: That all usurpers of the law in the confederacy of the 25 May 1997 coup will be punished in accordance with the rule of law not gestapo recriminations. That suspects will receive due process before the High Court to hear and answer allegations of treason against them on the criminal complaints prepared in accordance with the rule of law.
The APC used to employ gestapo tactics by hunting suspects like the Nazis did in Germany to achieve their “final solution”. It is quite clear that the aiders and abetters of the AFRC should be treated alike and if found guilty of treasonous acts, to receive just punishment. We do not want our democratic President talking of hunting and capturing political enemies in “arata holes” or insinuating reprisals against anybody yet who acted on his own or was in the throes of the duress of fixed bayonets. He should make an arrest of ALL those who joined the criminal enterprise before and after its commission with a certainty of the distinction between those who were wittingly actuated to usurp our laws under the opportunity of the crime of treason and those who carried out mere orders from trigger-happy soldiers. I am not sure if anyone on the Leonenet stated that President Kabbah lacked legal authority to prosecute AFRC collaborators. But we all know that he possesses the constitutional grant to “protect and defend the constitution” including the prosecution of intentional breaches of the law.
We hope the President will not only defend the Constitution but will administer the laws of Sierra Leone fairly as he did not do so before his fall. Take the Passport crime for example, allegedly committed by Dr. Abass Chernor Bundu. Dr. Bundu was not even prosecuted! He was treated with deference and with velvet gloves. He paid restitution and the Kabbah administration permitted him to go free. Restitution is not punishment. The man admitted to the accusation by the implication of returning some of the funds he illegally received. Dr. Bundu returned what was due to the Treasury of Sierra Leone.
The Kabbah administration would have learned from the public prosecution of Dr. Bundu. We would have learned not only his role in the crime but the extent of the practice of selling passports. We would have learned too whether this practice still subsists in a tacit way as a custom among those who work in the department. But the hush, hush resolution of the matter leaves doubt on the alleged crime. He should have been as least given a suspended sentence in the plea bargain for the record that he wouldl not be eligible under Sections 75 and 76 to sit in Parliament or run for State House in the future. A man who sells the passports of his nation to foreigners for profit has committed not only an odious crime, but has contemplated to betray it the way a usurper undermines the Constitution. But long after Dr. Bundu escaped prosecution and walked off whistling, the Kabbah administration started to call him a criminal in its reply to the AFRC’s fatuituous rationale for staging a coup. Small wonder the reply sounded so hollow and inept.
PROPOSITIONIII: MISPRISION OF TREASON
I do not agree with you that those who conceal information on treason are guilty of treason as you asserted in the case of Brigadier David Lansana.
Concealing information on the crime of treason is called MISPRISION OF TREASON. That was one of the crimes charged at the time in the particulars of the assortment of state crimes. Specifically under U.S. law, misprision of treason is defined under 18 U.S.C.A. § 2382:
The bare knowledge and concealment of an act of treason or treasonable plot by failing to disclose it to the appropriate officials; that is, without any assent or participation therein, for if the latter elements be present the party becomes a principal.
Misprision of treason is not punishable by death, although the APC executed its political enemies who were accused of minor breaches of the law as we know that the preferment against Vice-President Francis Mischek Minah averred only vague, overbroad and circumstantial evidence in the Moohamed Gabriel Tennyson Kaikai’s plot. There was no evidence that he incited the other conspirators or did an overt act to implicate him substantially as a principal in the plot against President Momoh. At his appeal, Berthen Macauley established that no evidence was ever adduced to support the assertion that he committed an “overt act” to encompass the death of President Momoh or the overthrow of his government. An overt act is a necessary element for conviction of the crime of treason. The Government could not prove an overt act, but he nonetheless went to the scaffold at Pademba Road protesting his innocence. He was killed for an accusation of the species of the crime itself. But as stated in the U.S. law, unless the person concealing the crime participates or assents to the crime, he is not guilty of treason.
PROPOSITION IV: AIDERS AND ABETTERS – WHO ARE THEY?
Your Ezra Pound example is a bit untenable as persuasive authority for aiding and abetting treason, using the implement of radio broadcasts. It is more a tangential example than a pivot for viewing aiders and abetters. Esra Loomis Pound (1885-1972) was associated with the eminent English and Irish writers. He edited the works of T.S. Eliot, William Butler Yeats and James Joyce. Pound as you pointed out, was accused of treason for broadcasting Fascist propaganda from Rome to the United States. He was arrested in 1945 by Americans on those charges but was declared psychologically unfit to stand trial and was confined to a mental hospital in Washington, D.C.. He was released in 1958 in accordance with the terms of his hospitalization. It is tenuous to hold the view as you did that the court which ordered that he be remanded to a mental hospital did so more on the influence of his “fans” than on his incapacity to appreciate the serious charges against him and to assist in his own defence. Whether he continued to write good poetry or engaged in economic sophistry are matters outside the legal excuse not to try a man adjudged as lacking compos mentis. There are plenty of insane men in English literature who left us classics in their literary legacy. And many a genius who improved our knowledge in science or the arts has been found to be a bit mad.
Perhaps the best example of a radio traitor was William Joyce who was charged in 1945 in accordance of the treason statute 1351of Edward III: “that if a man do levy war against our Lord the King in his realm or adhere to the King’s enemies in his realm, giving them aid and comfort in his realm or elsewhere”. Joyce was tried for his war time radio broadcasts deemed an aiding and giving comfort to the enemy. He was convicted and executed. I am sure that if his mental ability to join in his prosecution were impaired as Pound’s was, he would not have become the cause celebre that he became. In the United States, one may regard the treason trial of Iva Ikuko Toguri (Tokyo Rose), a Japanese-American born in Los Angeles, and that of Mildred Elizabeth Gillars (Axis sally) of Portland, Maine as inspirations of aiding and abetting the enemy using the radio implement. Both women were tried and convicted for treason.
The Pound example enveloped in your aiding and abetting postulate, assumes a precedent to be “instructive” to us. But a comparison must have an analogue which reaches a logical aim: That they are the same or similar, and the premises support the logical aim or conclusion. It appears that the convictions of “Tokyo Rose” and that of “Axis Sally” are more instructive to us than Pound’s aborted trial.
Professor Kallon, if we both sat down to look at the postulates you examined in your wise essay we may reach our aim in the present discontent in Sierra Leone, that the inconsistent practice of the rule of law in Sierra Leone has spurred the errant, incompetent soldiers to aspire to the proposition of President Shagri stated in 1979 when he was confounded with the customary coups of Nigeria: “In this country there are, in the end, only two parties, the civilians and the soldiers”. The NPRC and the AFRC have taught us a lesson that unless we impose a parapet on military rule with continuing reverence for the rule of law, ours will become a praetorian state as Nigeria has already established. Even the buffoon, the lapsed soldier, Corporal Foday Saybana Sankoh, still harbours the quixotic notion of being President of Sierra Leone. Was he not tried for treason along with Bangura and others in an earlier uprising against Siaka Stevens?
Reverence for the rule of law might take root in Sierra Leone, when that execrable document referred to as the 1991 Constitution is thrown away and a democratic constitution inheres in its place. Even then we would still have to do more than inveigh coups d’etat. Until a country settles the grave question of what its organic law is, its soldiers see themselves as players in the game of politics. The proposed” hunting” and prosecuting the AFRC and its collaborators might be the right thing to do. But as Samuel Finer has stated in his celebrated book, Man on Horse Back, a low level political culture attracts coups. Unless we develop our political culture and cultivate democratic ideals which have caused progress in other countries, treason trials would be mere milestones to the next coup d’etat.
If we undermine this notion, we may have forgotten how many treason trials we have had since independence and how convictions and executions have served no deterrence for the next plotters. That challenge lies on the shoulders of the serious-minded educated class committed to trustworthy statecraft. More important, unless we disengage from petty bickering or personal attacks derived from barren, caustic postings, to seriously take the admonition for responsible citizens pointed out in your reference to Section 13 of Act No. 6, 1991, the twenty-first century will meet us mired in another swamp, calling on others to assist us in chasing our errant soldiers from the corridors of government.
John Lansana Musa