RESPONSE TO DR. ABDULAI CONTEH’S INTERPRETATION OF ASPECTS Of THE CONSTITUTION OF SIERRA LEONE ACT (NO. 6) (as amended) 1991.
By Lawyer Ambassador Adikalie Foday Sumah,
(Dean of the Diplomatic Corps in the Republic of Guinea)
I have had the opportunity of reading the Open Letter of Dr. Abdulai Conteh to His Excellency Dr. Ernest Bai Koroma, President of the Republic of Sierra Leone, posted on the Sierra Leone telegraph online (www.thesierraleonetelegrapg.com), on the 19 March, 2015, on the issue of the relieving of former Vice- President, Hon. Alhajie Sam Sumana, of his duties as Vice President of the Republic of Sierra Leone. The Learned Jurist set forth to give interpretation to the relevant Sections of the 1991 Constitution upon which His Excellency the President, relied on; in justification of the measures taken.
It is crucial to opine that, the abandonment of neutrality by the Learned Jurist in this sensitive matter hinging on our national Constitution with the potential of raising questions for interpretation by the Supreme Court of the Republic of Sierra Leone was, in my stand point, ill considered by his esteemed self; given his acclaimed credentials and status in the field of Law and Jurisprudence in Sierra Leone and beyond.
In particular, the expression of his personal views by way of according interpretation to the relevant Sections of the 1991 Constitution at a time when others are contemplating otherwise, has not only contributed to the heightened of tension in the social media and other quarters of the Sierras Leonean society who, for one reason or the other, appear to have acquiesced to Dr. Conteh’s interpretation of the Constitution as settled; but has also set in motion, to have the general public be judgmental on the whole matter, to some extent; on the basis of his reasoning on Statutory interpretation.
In this piece, I would like to review the Eminent Lawyer’s interpretation of Sections 40 (1) and 54 (8) of the Constitution as it relates to the thematic scenario under review. I will also engaged other salient Sections thereunder including Sections 41, 41 (b), 35 (1) (2) and 54 (2) (b) 14, 55 (b) which are connected to the issues arising from the matter under review. Let me hasten to inform that, the discourse does not intend to engage in a rancor with any one, but simply to offer an opinion which, in a manifold of ways, intent to subscribe to the apparent academic, constitutional and legal discussions triggered by the Learned Jurist’s decision to enter the panorama.
Accepted is the viewpoint that, the Office of Vice- President of the Republic of Sierra Leone as provided for under the 1971 national Constitution which proclaimed the Sovereign State of Sierra Leone a Republic was firmly settled as appointive. This is also true of the 1978 national Constitution which ushered in the One-Party system of Government. Notwithstanding that, the President had the latitude of freedom to appoint his Vice-Presidents – the First and Second Vice- Presidents, yet he was restricted to so appoint persons from the elected Members of Parliament who are themselves members of the ruling Party. In that manner, both defunct national Constitutions of 1971 and 1978 respectively accorded primacy in the membership of a political Party as a qualification for election to those offices including that of Member of Parliament.
Incontestable is the point that, the 1991 national Constitution clearly set- a- pace to consolidated the primacy of membership of a Political Party as a condition- precedent which, any prospective candidate for an election to the Offices of Member of Parliament; President and Vice – President has to fulfill before he is deemed qualified to be elected as such. This is clearly accounted for under Section 41 (b) of the 1991 Constitution. As to whether or not the requirement for membership of a political party is a continuing one, this issue will be dealt with later under this discourse.
Without mincing words, I would like to state here that, having read between the lines and accorded a bird’s eye view on the Learned Jurist’s interpretation of the specific Sections of the 1991 national constitution upon which His Excellency based the justification for the measures taken, I hereby submit that, he has adopted a narrow, restrictive and therefore an inappropriate tool of Statutory Interpretation in the process of discovering the reasonable intention of the people of Sierra Leone through their elected Members of Parliament as couched under the above Sections of the Constitution.
It is instructive to observe that, the provision of the national Constitution under section 54(1), (2) and (3) of the Constitution do not raise any question as to whether or not the measures under review run counter to those provisions. And the Learned Jurist is in concordant with this position.
However, the Learned Jurist, inter-alia, submitted that Section 40 (1) “vests or grants no power to His Excellency the President on the plinth that; it is “merely declaratory of the attributes and incidence of the Office of the President”. This, with due respect, is a profoundly an illogical and incoherent construction of the above enactment of which effect is one of absurdity, redundancy and distortion of purpose, which the People of Sierra Leone and their Members of Parliament intended. The Learned Jurist would subscribe to the view that, the national Constitution contained Declaratory Clauses which include inter-alia, the Declaration of Republic under Chapter I; Fundamental Principles of State Policy under Chapter II; and the Recognition and Protection of Fundamental Human Rights and Freedoms of the Individual under Chapter III. The Learned Jurist will note that, Section 14 of the 1991 national Constitution succinctly provides that, the provisions contained under Chapter II of the Constitution are not justicable. In its plain and grammatical meaning, Section 14 confers no legal rights which are capable of being enforced by any individual in any Court of law in the jurisdiction of Sierra Leone. However, the provisions contained under the relevant Chapter are basic principles which are accorded judicial notice or legal notice in the governance of Sierra Leone, and Parliament is enjoined to have those basic principles in mind and at heart in their law-making-process. In the case of the provisions contained under Chapter III, the Learned Jurist will reason with me that; despite being declaratory; yet they confer protected rights and enforceable remedies to every individual subject to the jurisdiction of the Republic of Sierra Leone.
In this manner, the people of Sierra Leone through their elected Members of Parliament made no mockery of their intention to accord the President of the Republic of Sierra Leone exercisable supreme executive authority of the Republic of Sierra Leone in the discharge of his onerous executive functions.
It is posited that, where the people of Sierra Leone and, through their elected Members of Parliament had intended the substantive provisions of Section 40 (1) to be declaratory as purported by the Learned Jurist, they would have stated so in clear terms in the Constitution. It appears that, the Learned Jurist has arrived at this unsafe conclusion when interpreting the relevant provision under Section 40 (1) by engaging an unhelpful tool (s) of Statutory Interpretation, the Literal Rule. This is conspicuously evident in his expression: “a simple, plain…..reading of these provisions would readily show that they vest or grant no such power in you or anyone else for that matter….” The inappropriate or unhelpful tool of statutory interpretation employed by the Learned Jurist occasioned the narrow and restrictive decoding of Section 40 (1). I am of the conviction that, where the Purposive Rule which is also referred to as the Mischief Rule was utilised in this particular Section, the learned Jurist would have come to realize that the relevant Section does and clearly so; set out to accord the substantive occupant of the Office of President of the Republic of Sierra Leone, who is the Head of State and, who is the supreme executive authority of the Republic of Sierra, exercisable and enforceable powers thereunder. For the purpose of grammar and semantics of the English Language, how could the Learned Jurist distinguish the term ‘authority’ from that of ‘power’ without given sway to an absurd meaning of the relevant Section. The strain, I believe, would have simply been avoided by the Learned Jurist where he had asked himself the salient question as to what purpose the enactment contained under Section 40 (1) set out to serve or what defect (mischief) it intents to remedy. To have adopted the Literal Rule here, the Learned Jurist is basically telling the people of Sierra Leone that, they created the office of President of Sierra Leone with the unfettered intention to render it impotent in terms of exercisable and enforceable authority or power. And that they only clearly accorded him powers under Part II of the 1991 Constitution but no further. The Learned Jurist should be reminded that, the People of Sierra Leone, through their elected Members of Parliament, when enacting the relevant provision did not intend to differentiate the animal from its skin.
Given the above, the Learned Jurist should be mindful of the fact that, the schematic and teleological method of statutory interpretation means he should not have employed the literal meaning of the words or by the grammatical structure of the sentence if he were to discover the reasonable intention of the framers and legislature of the relevant enactment. He should have safely followed the design or purpose of the enactment as succinctly expressed by Lord Denning (M R) in the leading case of James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1977] 2 WLR 107 at 112.)
Already, the Learned Jurist acknowledged the fact that, the 1991 national Constitution is sealed slips silence on what or what may not constitute executive powers. And this is a typical challenge which invariably faces the draftsman of any statute to cover everything he has in mind in terms of ascertainable expression under any Statute including national Constitution such as the 1991 Constitution under review. The Learned Jurist is reminded as per John Salmond J that, “the essence of the law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it”. From this premise, the Learned Jurist would realise that, Section 40 (1) can not be judiciously construed if the discovery of the reasonable intention of the people of Sierra Leone as enacted by their elected members of Parliament is utterly confined to the word or phrases used to coin their intent.
The Leaned Jurist’s attention is drawn to what Lord Denning (M. R.) has to say on the difficulty attending the draftsman to capture every thing he has in mind when drafting an Act of Parliament: “Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision.”
The Learned Jurist advanced the point that, “provisions of sections 50 and 51 of this Constitution, relating to the removal from office of the President, shall apply to the removal from office of the Vice-President.” However, with respect and adoration the Learned Jurist needs to be reminded that, Section 50 of the national Constitution deals with the event which may give rise to the removal of the President of the Republic of Sierra Leone by reason of mental or physical incapacity; while Section 51 provides for the removal of the President on the grounds of gross misconduct. The Learned Jurist should noted that, a competent review of the scenarios which occurred immediately before the Release from State House was promulgated will inform that, neither Sections 50 or 51 nor 54 (8) applies in the instant scenario, I presume, for the following reasons:
- As clearly announced under the Release, the Hon. former Vice- President had sought Political Asylum in a foreign embassy. Without any iota of doubt, the conduct is indicative of a carefully thought of and, indeed, an unfettered intention to relinquish his Office and duties as Vice President of the Republic of Sierra Leone.
- By availing himself of international protection pursuant to the Geneva Convention relating to the Status of Refugees 1951 and the New York Protocol 1967 thereof, the former Hon. Vice-President has effectively fled the Republic of Sierra Leone thereby abandoning his duties as Vice- President, and abdicating his Office as Vice-President.
- The conduct of abandoning his office and duties without leave amounted to a resignation form the Office of Vice- President of the Republic of Sierra Leone by default for the purpose and meaning of Section 55 (b) of the 1991 Constitution.
- Its suffice to say that, the State House Release of the 17th March, 2015 was promulgated only after, it had become manifestly evidential that, a vacancy had occurred in the Office of Vice- President of the Republic of Sierra Leone for the purpose and meaning of Section 55 (b) of the 1991 national Constitution.
- In the prevailing circumstances, His Excellency the President as Head of State and, as the supreme executive authority of the Republic of Sierra Leone; is empowered pursuant of Section 40 (1), to address that unfolding constitutional interregnum in the office of Vice- President effectively and timely.
In the face of these state of affairs; it is pertinent to inquire as to what sort of advice the Learned Jurist would have availed His Excellency the President; especially where the Learned Jurist may have now come to the realisation that, the measures taken by His Excellency the President, are off the bracket of Section 54 (8) of the 1991 Constitution.
It is submitted that, the purposive object of Section 40 (1) of the national Constitution, in particular, the exercise of the Supreme Executive Authority of the Republic is, inter-alia, to deal with such rare situation arising from the operation of the national Constitution. As custodian and guarantor of the Constitution, the President of the Republic of Sierra Leone is expected to act in the manner that would avert a cataclysm of constitutional interregnum arising from the vacancy which occurred in the Office of Vice- President of the Republic of Sierra Leone by way of resignation by default as evident in the conduct of seeking Political Asylum in a foreign embassy.
The Learned Jurist could not find that, membership of a political party for qualification for election to either the Office of President or Vice-President, is a continuing requirement. This uncertainty lingers in the mind of the Eminent Jurist consequent of; perhaps, his apparent act of stupor, which may have rendered him trance to have properly engaged aspects of the 1991 national Constitution which emphasise on political parties and interpret same in the round with other provisions of the Constitution.
Section 41 (b) emphatically drove home the point that: “No person shall be qualified for election as President unless he is a member of a political party.” Again Section 42 (1) provides as follows: “A presidential candidate shall be nominated by a political party”. And Section 54 (2) (b) succinctly states that: “A person shall not be qualified to be a candidate for the office of Vice-President unless he has the qualification specified in Section 41. For clarity of purpose; the qualifications specified under Section 41 which relates to the instant scenario is contained under paragraph (b) of Section 41 which informs that, “No Person shall be qualified for election as President unless he is a member of a political Party.
It is noted that, the Learned Jurist misguided himself when reviewing these provisions of the Constitution which resonate the very primacy of political party with the reasonable implication that, the requirement for such membership is intended to be continuous and that; any break in the chain of membership consequent to, for instance, a properly instituted internal party disciplinary action, would bear concomitant effect. The emphasis laid thereunder is indicative of the unfettered intention of the people of Sierra Leone to properly position politicians within the circumference of a properly registered political party which conforms to the democratic principles contained in the 1991 national Constitution under Section 35 (2). It is worthy of mention that, where the Constitution is construed to the extent that, membership of a political party is an essential requirement ONLY for the single purpose of getting elected to the Offices of Member of Parliament; President and Vice President etc, then the Constitution would have exposed political parties to a nonsensical state of affair where; loyalty of party members would have been undermined under the legal watch of the 1991 national Constitution. Further more, it would have been viewed as an orchestrated move to debase the primacy of political parties in the process of shaping the political will of the people of Sierra Leone. As sovereignty under the national Constitution is vested in the people of Sierra Leone, the exercise of which, inter-alia, is expressed through their association with political parties of their free choice.
Moreover, by Constitutional Convention, the 1991 national Constitution without doubt, requires that the conduct of Parliamentary proceedings and the formation of a national Government are largely effectuated along political party lines. To that effect, Section 35 (1) provides that: “Subject to the provisions of this Constitution, political parties may be established to participate in the shaping of the political will of the people, to disseminate information on political ideas and social and economic programmes of a national character, and to sponsor candidate for Presidential, Parliamentary and Local Government elections”. This provision can not be accorded a skewed construction which dilutes the implied primacy of maintaining continuous membership of the political party in a sustainable status. Where an occupant of an elective office lost his membership of the political party which sponsored him in an election, it is implied with reasonable certainty that, the forfeit should have a concomitant and contemporaneous effect on the tenure of office of that member. This is the implied reasonable intention of the people of Sierras Leone through their elected members of Parliament when enacting section 41 (b) of the constitution.
So where the Leaned Jurist could not fine validation under the national Constitution of 1991 for the measures taken by His Excellency the President, with humility and due respect, I would like to invite the eminent Jurist to have a taste of this informed discourse and, if any, offer an alternative reasoning.
In a nutshell, I am of the opinion that, the measures taken by the President in dealing with the vacancy which occurred in the Office of Vice – President; were so done within the parameters of the Constitution of Sierra Leone Act (No. 6) (as amended) 1991.
This piece will alight by humbly saying to the Learned Jurist that, with respect, unless he construes the provisions of our national Constitution beyond the letters and endeavour to ascertain the purpose of an enactment, his inequitable intervention in a matter which, by his informed admission, is of grave public importance such as the one under review, would give rise to an unsavory conclusion.
Author: Lawyer Ambassador Adikalie Foday Sumah,
Dean of the Diplomatic Corps in the Republic of Guinea
