The Sierra Leone Bar Association (SLBA) notes the rulings delivered by Justices Komba Kamanda and Alhaji Momo Jah Stevens on 31st May 2019 in the election petition cases involving 16 members of Parliament and the subsequent disturbances.
The SLBA REITERATES the importance for all the parties concerned and all Sierra Leoneans to respect the decisions of the High Court of Sierra Leone. Sub-section 1 of section 146 of the Public Elections Act No 4 of 2012 provides aggrieved persons with a right of appeal. The SLBA urges all aggrieved parties who so desire to only use and exhaust all legal remedies available to them . The SLBA calls on all political parties and their supporters to remain calm, exercise restraint and maintain peace, law and order and refrain from the use of any form of violence.
For its part, the Association is concerned with the orders granted in the said cases and the implications on our budding democracy, the rule of law, good governance, peace, social cohesion and national development.
To elaborate on a number of our concerns, it is important to state the provisions of section 146 of the Public Elections Act No 4 2012 in extenso:
“146. (l) If the High Court determines that a candidate returned as elected was not duly elected and that the election was void, then the candidate’s seat shall become vacant from the time of the notice of decision of the High Court and if notice of appeal from that decision has been given within fourteen days, the seat shall remain vacant for the period until the determination of the Court of Appeal is given on the appeal or the appeal is abandoned.
(2) Where the question to be decided by the Court of Appeal concerns an election to or the right to remain a member of Parliament, the Registrar of the Court of Appeal shall certify the decision in writing to the Speaker and the Electoral Commission.
(3) Where the High Court has determined that a candidate was duly returned or elected, or that the election was void, and no notice of appeal has been given against that determination within fourteen days, or where on appeal the Court of Appeal has determined that a candidate was duly returned or elected, or that the election was void, then the Speaker shall publish by notification in the Gazette whether the candidate whose return or election is questioned is duly returned or elected or whether the election is void.
(4) If the election is declared void, another election shall be held.” (Emphasis ours)
The SLBA notes that the provisions of subsections 1, 2 and 3 of section 146 provides:
1. A right of appeal to aggrieved parties to the Court of Appeal ‘within 14 days’ after a decision of the High Court.
2. The seat shall remain vacant until the determination of the appeal or the appeal is abandoned.
3. Where the High Court makes a determination that an election is void and no appeal is filed or the appeal is heard and the Court of appeal determines that the election is void, then the Speaker of Parliament shall publish in the Gazette a notification of the same.
The SLBA notes that the “new” members of parliament were sworn in even before the time allowed for appeal was exhausted and without any publication of the required notification in the Gazette.
The SLBA further notes that sub-section 4 of section 146 of the Public Elections Act provides that “If the election is declared void, another election shall be held.”
In the orders granted in the said petitions sub-section 4 of section 146 of the Public Elections Act 2012 appear to have been ignored. The SLBA is of the strong conviction that where an election is declared null and void or void, the provisions of sub-section 4 of section 146 of the Public Elections Act should apply. It is mandatory and as of right. A new election should be held. The SLBA condemns the Court’s apparent reliance on the precedent in the matter between the Hon. Sam May Lamin Macarthy and Ansu Lansana and Others C.C. 267/12 . The facts and circumstances of that case are materially different from the current cases and therefore clearly distinguishable.
The SLBA further notes that over a year after the elections not all election petition cases have been heard. It has been alleged that in both current and previous administrations there has been a failure to assign all politically sensitive cases.
The SLBA condemns in emphatic terms what appears to be the selective assignment of cases for hearing. The right to have one’s case heard is a fundamental human right. The Association is of the view that as a matter of law all matters filed regardless of the parties involved must be assigned. There is no discretion in choosing which matters should be heard and which matters should be confined to the archives. The SLBA urges those responsible to speedily assign all cases and take all the necessary steps to ensure that all pending matters are heard so as to ensure that litigants enjoy their fundamental human right to a fair hearing.
Further, the SLBA condemns the high handedness of the Sierra Leone Police Force (SLP) and urges the Sierra Leone Police to always seek to resolve conflict by peaceful and non-violent means as a first option. The SLP is reminded of the vital role that they should play in the protection of the right to life, liberty and security of the person, as guaranteed by the Constitution of Sierra Leone, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The SLBA remains committed to foster the promotion and enjoyment of human rights, respect for the rule of law, good governance and democracy in Sierra Leone.
Dated June 3rd 2019
ISHMAEL P MAMIE
SECRETARY GENERAL SLBA