UPHOLDING CONSTITUTIONAL PROVISIONS
ALHAJI SAMUEL SAMSUMANA v ATTORNEY GENERAL AND VICTOR BOCKARIE FOH
A LEGAL OPINION
By Adrian Joscelyne Fisher Esq
A declaration by the President of the Republic that the elected Vice President of Sierra Leone Samuel Samsumana had been relieved of his duties as Vice President of the Republic sent shockwaves across the world with many Sierra Leoneans concluding without proper consideration that the President had overstepped his powers given to him by the Constitution of the country. The declaration by the president set in motion a chain of events which led to the person of Victor BockarieFoh being appointed by the President as Vice President to replace Samuel Samsumana. Being dissatisfied with the decision the said Samuel Samsumana instructed lawyers to launch a legal challenge to the Country’s highest court, the Supreme Court. It is necessary to state the basis of the challenge to the Supreme Court. In essence the Plaintiff approached the Court to provide answers to the following questions:
1. Whether the Constitution of Sierra Leone empowers the President to relieve the Vice President of his office and duties in any way other than by the procedures set out in sections 50 and 51 of the said Constitution?
2. Whether the Supreme Executive Authority of the President mentioned in section 40(1) of the Constitution includes the power to relieve the Vice president of his office and duties other than by the procedures set out in sections 50 and 51 of the said constitution?
It is without doubt that the decision of the President to relieve the former Vice President was unprecedented in the politics of Sierra Leone and the challenge of the decision in the courts was equally unprecedented in Sierra Leone Legal history and provoked considerable controversy. It was a constitutional conundrum not before seen on these shores. On 9 September 2015 after a full hearing of the matter, the Supreme Court rendered its decision. Suffice to say the decision has equally provoked considerable controversy with a number of legal and non legal commentators condemning the decision of the court in unsavoury and derisory terms. The Plaintiff himself Alhaji Samuel Sam Sumana labelled the court as a “disgrace” whilst others have levied serious allegations of impropriety at the court and its Judges. It is without doubt that that these allegations are without merit and are fuelled by a suspicion (unfounded or not) of a court unable or unwilling to render a true verdict on account of the politically sensitive nature of the matter before it. This opinion is an academic exercise that seeks to address the substance of the decision of the court and the issues before it and is not in any way intended to defend the Supreme Court or take into account political considerations.
I hold no brief for the Judiciary but when criticism is levied at it in an unfounded way, those who seek to unjustly criticise and who have no experience of judicial adjudication should firstly consider whether their criticism fuelled and guided by emotion and other non-legal considerations is misplaced in the light of their obvious lack of experience in adjudication.
The Court was faced with two issues:
1. An unprecedented legal challenge , and
2. A Constitution that is badly drafted with many anomalies and inconsistences which makes interpretation a minefield that has to be traversed with the utmost care.
THE CONSTITUTION
The relevant provisions of the Constitution are sections 34,35, 40,41,42 49.40,51,53, 54,55. In relieving the vice president of this duties and office, the president relied upon ss 40(3) 41(b) and 40(1) of the Constitution, and in particular s40(1) which gives him the Supreme Executive powers. A few questions need to be asked in this regard:
1. What is a Supreme Executive Power and how is it to be exercised?
2. Having regard to the fact that the president and vice president are elected does the President have the power pursuant to the constitution to relive the Vice President form his office and duties?
3. Are the Requirements to be elected to the office of Vice President continuous?
4. Did the solicitors for the plaintiff ask the correct question?
5. Is the Court bound to go beyond the questions posed by the plaintiff for determination? The Approach of the courts.
What is a Supreme Executive authority and how is it to be exercised?
The Constitution of Sierra Leone vests executive power in the President, by virtue of s53(1) of the Constitution, In like manner, s40(1) does not simply vest executive power in the president it confers upon him “a supreme executive authority”.
The Executive powers referred to in section 53(1) is exercised by virtue of the Presidency being the supreme executive authority, hence the reference to such executive powers being exercised pursuant to the executive authority vested in him as provided for by s53(4). In simple terms the president has executive powers and those powers are exercised by him as conferred by the constitution and by being the supreme executive authority in the country in his capacity as President.The Constitution provides that the “executive power shall be vested in a President of Sierra Leone,” making the President the head of the Executive Branch of Government. Specific powers are granted to the president, as well as wider powers not specifically written in the constitution which include the authority to appoint judges, ambassadors, and other high-ranking government officials. Crucially the use of the words “shall be construed as reference to his powers and duties in the exercise of the executive authority of sierra Leone and to any other powers and duties conferred or imposed on him as president by or under this constitution” is of significance and is entirely relevant to the power to relieve the Vice president of his duties and office.
S40(3) confers a duty on the president of being the guardian of the constitution.. This is of crucial significance. S46(4) provides that the president shall take and subscribe to the oath of office as set out in the second schedule which provides: “that I will preserve, support, uphold, maintain and defend the Constitution of the Republic of Sierra Leone as by law established, Cumulatively, As guardian of the constitution the President has A LEGAL DUTY to preserve, support, uphold, maintain and defend the constitution as part of “the other powers and duties conferred or imposed on him as president by or under this constitution” against any breaches. Being the guardian of the constitution is a duty conferred or imposed on him under the Constitution within the meaning of s53(4) of the Constitution. This provision should be referenced and construed to powers that the president has albeit not expressly or specifically stated in the Constitution.
The idea or suggestion that the president only has powers expressly given in the constitution is legally flawed on account of the spirit and context of the executive powers which he exercises by virtue of the supreme executive authority and I dare say as guardian of the constitution. The President is therefore empowered to act to preserve, support, uphold, defend and maintain the Constitution in ways not specifically mentioned in the constitution. Failure to act to do so may amount to a violation of the Constitution which could render him liable to impeachment pursuant to section 51 of the Constitution.
Having regard to the fact that the President and Vice president are elected does the President have the power pursuant to the constitution to relive the Vice President form his office and duties?
The bane of this issue rests upon this point. Much has been made of this issue and in my view too much was made of this issue by lawyers for the plaintiff whilst ignoring other legal technicalities in the construction and interpretation of the Constitution. There can be no doubt that there is no provision in the constitution that provides for the President to relive the vice president of his office and duties. To rely on that lack of an express provision in the constitution in concluding the President has no power to relive the vice president is an oversimplification of the Constitution and a misinterpretation of the Constitution itself.
VICE PRESIDENTIAL QUALIFICATIONS AND CONTINUITY POST ELECTION
The qualifications for the vice presidency are set out in section 54.It is significant to note that subsection 1 makes the vice president the “principal assistant to the president in thedischarge of executive functions”. In subsection 2 the framers used the words “a candidate for the office of Vice President both in subsections 2 (a) and (b). This is in my view deliberate. Having been designated a candidate, the candidature is ultimately designed to occupy the office of Vice President post election. This makes the election to the office and the occupation of the office inextricably linked and consequently the qualification requirements referred to in subsection 2 (b) of section 54 as provided by section 41 can only be intended to be a continuous requirement extending to occupation of the office. The operative words in section 54(2)(b) are “shall not be qualified to be a candidate for the office of vice president”To hold otherwise would have been absurd for the reasons given by the Hon Chief Justice. On a literal interpretation of section 41, tohold that the provision is not continuous would lead to a potential situation where after election the Vice President or President can renounce their citizenship of Sierra Leone and still be able to remain as Vice President AND President respectively, simply because the provisions of section 41 are held not to be a continuous requirement. Section 41 uses the operative words “no person shall be qualified”. The intention of parliament is therefore unambiguously clear that not having the requirements set out in section 41 disqualifies a person from election to the office and subsequent occupation of that office.
The question I pose is if it is considered unacceptable for a person who is not a Sierra Leonean to occupy the office of vice president, or is not otherwise qualified to be elected a member of parliament on account for example having being convicted of an offence for fraud or dishonesty why should it be acceptable for such a person to hold such an office when he is no longer a member of a political party as provided for by section 41? It should be borne in mind that the requirements of section 41are not alternatives but mandatory.
SECTION 54
Subsection 8 of section 54 provides: “that the provisions of section 50 and 51 relating to removal from office of the president shall apply to the removal of office from the Vice President. This subsection has been relied upon by commentators to argue that it is only Parliament that has the powers to remove the vice president on account of the fact that they were both elected as president and vice president at the same time pursuant to section 54(3) of the constitution In my view that argument though attractive is untenable in law for the following reasons which I now give.
SECTINS 50 AND 51
It can safely be agreed that section 50 in relation to removal in this situation is inapplicable. This leaves us with section 51. For the avoidance of doubt, neither of these two sections (50 and 51) empowers the president to remove the vice president or relieve him of his duties.
Section 51
The premise of the operation of the section triggering the impeachment proceedings by parliament are as follows:
a. Notice in writing to the speaker signed by half of all members of parliament;
b. Allegations of violation of the constitution or gross misconduct;
c. In the performance of the functions of his office;
d. Specifying the particulars of the allegations, and
e. Proposing that a tribunal be appointed to investigate those allegations.
I have underlined the operative triggering mechanisms of section 51 in order to clearly and specifically identify the legal basis upon which impeachment proceedings can be commenced against the Vice President for his removal. It is submitted that for any impeachment process against the Vice President to be lawful, the legal basis as set out in the Constitution must be clearly made out, that is to say only violations of the constitution in office and gross misconduct can give rise to impeachment proceedings. The next question to ask is whether the Vice President has violated the constitution.
HAS THE VICE PRESIDENT VIOLATED THE CONSTITUTION?
It has not been argued by any commentator that there is evidence (worthy of investigation) that the Vice President violated the constitution. There is however an argument that can be made that in losing the membership of a political party and remaining in office, the Vice President may be violating the constitution and hence could be susceptible to the impeachment provisions of section 51. That argument though not raised in any arguments so far is an attractive one and I will deal with it for the sake of completeness.
I would submit that if the above scenario were to manifest itself, section 51 would not avail it self to those who would wish to claim the Vice president is violating the constitution by remaining in office for these reasons:
1. The wording of section 51 “committed a violation of the constitution” denotes a situation where the Vice President commits an act by which the constitution is violated. Remaining in office after losing membership of his partymay well amount to such a violation. On the other hand, the Vice President may well be entitled to argue that the act of losing his membership of a political party is an involuntary act over which he has no control and cannot amount to a violation of the constitution. However he may also argue as he has done in this case that the provisions are not continuous and he has not violated the constitution.
2. If it is adjudged as has been done in this case that the provisions are continuous, does the Supreme Court have the power to order his removal from office? I doubt that to be the case and any such order would be ultra vires. As the court is the highest court in the country there can be no appeal.The court can only issue a declaratory order which then takes the matter back to parliament.
3. By the time the matter goes back to parliamentto engage the section 51 procedure, what if the vice president decides to join or form a new political party in the interim? Does he then qualify under section 41 having attained membership of “a political party”? Undoubtedly he would. What would be the consequences?
a. A Vice president no longer a member of the ruling party but cannot be removed because he has attained the membership of another political party;
b. Governance of the state in disarray as the vice president who deputises the president in accordance with section 52 of the constitution is a member of another political party which was not elected in the election.
4. Most importantly such a state of affairs may well amount to a breach of sections 42(1) and 54(2)(a) of the constitution.
5. The question then remains as to whether having regard to sections 42(1) and 54(2) of the constitution, the requirement in section 41(b) can include a reference to a vice president attaining membership of a political party other than the one which designated him as a vice presidential candidate.
6. Further, section 41 (d) imposes a requirement (which we now know is continuous) for qualification to be elected as a member of parliament as a prerequisite for continuing in office as vice president. Section 77(k) precludes members of parliament joining a different political party from the one under whose symbol he was elected to parliament.
7. These procedures may well take over a year to complete with judicial and parliamentary procedures to be accomplished.
8. For reasons advanced earlier, it is doubtful there can be substantiated allegations of misconduct, which removes the other limb of parliamentary involvement.
9. Further the intention associated with section 51 appear to be misconduct associated or linked with violations of the constitution ie acting in excess of the powers conferred by the constitution or other forms of misconduct.
10. The Tribunal investigating the complaint may well have been subject to an injunction on the basis that the violation of the constitution being investigated does not amount to misconduct within the meaning of section 51.
11. In addition, the vice president may well be able to argue that notwithstanding the court having adjudged that he no longer has a requirement for remaining in office, the state of affairs do not amount to him “having committed any violation of the constitution ” but rather a state of affairs by his political party led to him losing the requirement. It would be equally doubtful whether he could be compelled to resign as resignation is voluntary.
12. Finally, the misconduct must be in the performance of the functions of his office which precludes the current state of affairs.
VACANCY IN THE OFFICE OF THE VICE PRESEIDENT
Section55 provides the circumstances under which the office of the vice president becomes vacant. In particular subsection (c), the operative words being “if the Vice President is removed from office in accordance with the provisions of section 50 or 51”.The next question is whether the wording of section 55 suggests that the vice president can be removed from office by any other means. The answer to this question could be found in in a possible interpretation of section 54(5) which provides:
“whenever the office of the vice president is vacant, or the vice president dies, resigns, retires or is removed from office, the president shall appoint……..
It is suggested that the use of the words, vacant, dies, resigns, retires or removed from office are not by accident or a surplusage. We know the office becomes vacant by operation of section 55 and specifically the use of the words “removed from office in accordance with the provisions of section 50 or 51”. The use of the words “is removed from office” (without the words in accordance with the provisions of sections 50 or 51) in 54(5) suggests there is another way(s) other than the provisions of section 50 and 51 by which the vice president may be removed from office. It is safe to conclude that other than parliament, there is no other competent body capable of removing the vice president, other than the President.
CAN THE PRESIDENT RELIEVE THE VICE PRESIDENT OF HIS DUTIES UNDERTHE CONSTITUTION?
PRESIDDENTIAL POWERS
As pointed out earlier there are no expressed provisions of the constitution enabling the president to remove the vice president from office. Having regard to the provisions of sections 54(5) and 55, the inescapable conclusion is that there are other provisions from which it can be inferred when interpreted that the president arguably has the constitutional mandate to remove the vice president from office where certain circumstances apply. What powers do the President have within the constitution?
The starting point in so far as relevant is Section 40 of the constitution. Subsection 1 provides that the president shall be “the supreme executive authority of the republic”in sub section 3, the constitution provides that the president “shall be the guardian of the constitution”. Subsection 4 provides that notwithstanding any provisions of the constitution or any other law to the contrary, the president shall, without prejudice to any such law as may be adopted by Parliament, be responsible, in addition to the functions conferred upon him in the constitution, for…, What functions are these? I humbly submit the following as relevant to the issues :
1. Supreme executive authority
2. Guardian of the constitution
The supreme executive authority has been dealt with above. The next issue is the concept of guardian of the constitution. There is no explanation of the phrase “guardian of the constitution in the constitution. The ordinary meaning of the word needs to be ascertained. The ordinary meaning of the word guardian denotes: “a person who guards,protects, or preserves.A guardian of the constitution is charged with the responsibility of guardian, protecting and preserving the constitution. Having regard to section 46(4) and the second schedule to the constitution regarding the presidential oath, I am of the opinion that as guardian of the constitution charged with the legal and constitutional duty in the second schedule to preserve, support, uphold, maintain and defend the constitution as part of “the other powers and duties conferred or imposed on him as president by or under this constitution” against any breaches, it is unarguable to suggest that the president the president has no powers other than those specifically and expressly set out to guard, uphold and maintain the constitution, against breaches,
BREACHES OF THE CONSTITUTION
It is undoubtedly the case that the Vice President in this instant case lost a key requirement to hold on to the office of vice president when he lost his membership of his political party the APC. If it is accepted that the constitution pursuant to section 41 lays down mandatory requirements for the holder of the office of vice president to possess, losing one or all of those requirements makes the holder of the office ineligible to continue to hold on to the office and that amounts to a breach of the constitution. If the constitution is to be maintained, preserved and upheld, the task of doing so falls to the guardian of the constitution to enforce that. Consequently, the president is under a legal duty to preserve and maintain the constitution by relieving the vice president of his duties on the basis that he lacks a key qualification to continue in office. I am further reinforced in this opinion by the provisions of section 54(5) alluded to above which provides:” Whenever the office of the Vice-President is vacant, or the Vice-President dies,resigns, retires or is removed from office, the President shall appoint a person qualified to be elected as a Member of Parliament to the office of Vice-President with effect from the date of such vacancy, death,resignation, retirement or removal”.
Is the Court bound to go beyond the questions posed by the plaintiff for determination?
The Approach of the courts.
Much has been made by opponents of the court’s decision that what the Supreme Court did in this case was usurp the functions of the legislature and effectively re-write the constitution. At first glance such a suggestion appears to have some merit but in the wider scheme of acceptable approaches to judicial decisions, the suggestion is untenable. The concept of judicial activism is an acceptable concept in English Common Law which is part of Sierra Leone law. It is normally the common response to any argument which supports the concept of judicial activism that it strikes against the very fundamentals of democracy, that of electoral accountability and the sovereignty of Parliament.. Such a suggestion is frequently based on the notion that, our judges are not elected, unlike in the US for example, and do not have to take account of public tastes or inclinations when coming to a judgment.At a sound-bite level, this approach seems not only solid, but a comfortable position to take for any democrat. But close analysis reveals that not only is judicial activism an essential safeguard to the protection of good law, it is also, when needed, a bulwark to protect democracy in difficult or unbalanced times.
What many commentators do not understand is the fact that the task of interpretation is a very difficult task especially having regard to a document like the Sierra Leone constitution which is littered with inconsistencies and anomalies and ambiguities.
F.A.R. Bennion (Statute Law, 1990), has identified a number of factors that may cause doubt:
1. The draftsman may refrain from using certain words that he or she regards as necessarily implied. The problem here is users may not realise that this is the case.
2. The draftsman may use a broad term (“a word or phrase of wide meaning”) and leave it to the user to judge what situations fall within it.
3. Ambigious words may be used.
4.There may be unforseeable developments.
5. There are many ways in which the wording may be inadequate. There may be a printing error, a drafting error or another error.
It is notable that the general methods of statutory interpretation are not themselves regulated by Parliament, but have been developed by the judges.
GENERAL APPROACHES TO STATUTORY INTERPREATION
The rules of statutory interpretation were analysed by Professor John Willis in his influential article “Statutory Interpretation in a Nutshell” (1938). He suggested that:
‘a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another
Reference is now frequently made by judges to the concept of “purposive” statutory construction, ie one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet [1978] 1 WLR 220). There will be a comparison of readings of the provision in question based on the literal or grammatical meaning of words with readings based on a purposive approach. In Pepper (Inspector of Taxes) v Hart [1993] AC 593, Lord Browne-Wilkinson referred to “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”. Lord Griffiths stated:
“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
However, a purposive interpretation may only be adopted if judges “can find in the statute read as a whole, or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament’s purpose or policy” (per Lord Scarman in R v Barnet LBC [1983] 2 AC 309).
THE JUDGE’S ROLE
Lord Bingham (a very senior law lord in Britain’s highest court) summed the role up best in the case of A v Secretary of State for the Home Department 2005 2 AC 68 para 37 to 42when he said that: “… the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.The Attorney General is fully entitled to insist on the proper limits of judicial authoritybut [it is] wrong to stigmatise judicial decision making as in some way undemocratic.” In RJD Mcdonald Case the Chief Justice of Canada stressed that “to carry judicial deference to the point of accepting parliament’s view simply ion the basis that the problem is serious and the solution difficult diminishes the role of the courts in a constitutional process”
In considering judicial activism as an important concept in democratic governance, regard must be had to the fact that Dicey writing about parliamentary sovereignty in 1885 formulated the principle of parliamentary sovereignty in this terms: “That parliament has the right to make or unmake any law whatsoever and further that no person or body is recognised by the law of England or Sierra Leone as having the right to override or set aside the legislation of parliament”. There two consequences of the dicey approach Firstly Parliament can do what it likes and secondly no one can set aside the legislation however bad it might be. The question then is how far can the courts go?
The Judiciary ahs always been the master of the common law and one key common law constitutional principle is the presumption of statutory interpretation which was designed to protect common law constitutional principles. The theory is that parliament should not be taken to have intended to do anything foolish or unreasonable so as to undermine the principle of statutory interpretation. If legislation can be properly interpreted in a way which is compatible with the principle, then it should be.In R v Secretary of State ex p Simms 2000 2 AC 115 Lord Hoffman sitting in the house of Lords stated that Primary legislation could be read down and that the principle of legality means that Parliament must squarely confront what it is doing and accept political costs. In the absence ofexpress language or necessary implication, the courts must therefore presume that even the most general words wereintended to be subjected to the basis rights of the individual. The effect of such an interpretation upholds the sovereignty of parliament rather than weaken it.
APPROACHES TO STATUTORY INTERPRETATION OR CANNONS OF CONSTRUCTION
Having shown that reading down legislation is not out of step with parliamentary sovereignty under constitutional law principles, it is necessary to examine the approach of the judges in this case. There are four rules of statutory interpretation under the common law constitutional principles.
The literal rule;
The Golden rule;
The Mischief Rule;
And the Purposive approach.
As part of their functions, judges are assisted by internal aids and external aids to interpretation where there exists drafting errors or ambiguity in the statute. The judges in this case used the purposive approach to determine this case.
The LITERAL RULE
Under the literal rule (also: the ordinarymeaningrule; the plainmeaningrule), it is the task of the court to give a statute’s words their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v Sirs (1980) said “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application.” The literal rule is often applied by orthodox judges who believe that their constitutional role is limited to applying laws as enacted by Parliament. Such judges are wary of being seen to create law, a role which they see as being strictly limited to the elected legislative branch of government. In determining the intention of the legislature in passing a particular statute, this approach restricts a judge to the so called black letter of the law. The literal rule has been the dominant approach taken for over 100 years.
THE GOLDEN RULE
The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey v Pealson (1857), Lord Wensleygalesaid : “The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further.”
One example of the application of the golden rule is the case of R v Allen – Defendant is charged with bigamy, an offence prohibited in Offences Against Persons Act 1861 which reads “whoever is married, marries another commits bigamy.” The court held that the word “marries” need not mean a contract of marriage as it was impossible for a person who is already married to enter into another valid contract of marriage. Hence, the court interpreted it as “going through marriage ceremony”.
The Mischief Rule
The final rule of statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854): “…for the sure and true interpretation of all statutes in general, four things are to be discerned and considered:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?
4. The true reason of the remedy; and then the office of all the judge is always to make such construction or shall suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
PURPOSIVE APPROACH
This system of relying on external sources such as the common law in determining the true intention of the parliament is now seen as part of the purposive approach. Although the literal approach has been dominant in common law systems for over a century, judges now appear to be less bound by the black letter of the law and are more willing to try to determine the true intention of the Parliament. The task of the judge is now seen as being give effect to the legislative purpose of the statute in question.
Lord Simon explained the purposive approach in Maunsell v Olins 1975 AC 373 in this manner: “’The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language “
It is submitted that notwithstanding the fact that both the president and vice president are elected on the same day, it was never the intention of the parliamentary draughtsman to equate the powers of the vice presidency with that of the presidency.It was for that reason that the draughtsman drafted the provisions of section 54(5) in the way it did. Having regard to section 53(4)The use of the words is vacant, dies,resign, retiresor is removed from office is clear evidenced of the draughtsman not intending to equate the powers of the vice presidency to the same as that of the presidency save for the election and removal for misconduct provisions. The key benefit of using the modern purposive approach is It is a much more flexible approach giving judges greater scope to develop the law in line with what they perceive to be Parliament’s intention. The purposive approach more readily embraces the use of extrinsic aids to assist in finding Parliament’s intention. For example in relaxing the rule on reference to Hansard in Pepper v Hart 1992 3 WLR 1032the House of Lords adopted a purposive approach.
THE INFLUENCE OF POLITICAL PARTIES
Commentators have equally argued that, that the decision of the Supreme Court has now elevated political parties in the body politik above the electorate. This argument is equally untenable in law for the following reasons:
1. Section 34 of the constitution makes provision for a commission which is responsible for the registration of all political parties.
2. Secondly and most crucial in my submission is section 35. The operative words of that section are set out in subsection 1 of section 35 which provides:
“ Subject to the provisions of this section, political parties may be established in shaping the political will of the people……. Further subsection 4 outlaws political party leaders whoareno qualified to be elected as members of parliament. This is to give corresponding effect to the provisions of section 41(b) and subsection 6 of section 35 relating to the registration, functions and operation of political parties being enshrined in law.
3. Further section77(k) makes provision for a member of parliament to vacate his seat if he ceases to be a member of the political party of which he was a member at the time of his election. political party t elected him
There can be no doubt that the intention of the framers of the constitution was to have political parties at the apex of democratic governance in Sierra Leone and not the other way round. The will of the people can only be exercised through the forum of political parties and in my view it is incorrect to suggest that political parties are now more powerful than the electoral will of he people. The framers of the constitution intended exactly such a result by the use of the words “ shaping the political will of the people” in section 35(1)
CONCLUSIONS
In conclusion I simply bring to the forefront of those who claim the decision of the court was wrong and he president had no power to relieve the Vice President of his duties. Section 54(2) is clear that a vice president must fulfil the requirements of section 41 and notwithstanding the provisions of section 41(b) the vice president arguably failed to fulfil the continuous requirement of section 41(d) equally when he lost his membership of the APC party. This disqualifies him from being a member of parliament pursuant to section 77(k). He therefore could not possibly continue as vice president. As for the power to remove IU have amply demonstrated that the President in my view had the legal and constitutional powers pursuant to the provisions of section 40(3), 46(4) and the second schedule to the constitution where he is no longer qualified to remain as vice president pursuant to section 41 of the constitution.
The Author is a Barrister at law and lecturer in law at the University of London. He Holds a LLM in E-Commerce and Telecommunications Law.
© 2015.
