Celebrated veteran legal luminary , Charles Margai, the fiery lawyer and politician who founded the People’s Movement For Democratic Change ( PMDC ) and was President Maada Bio’s first Attorney General in 2018 before he resigned, has insinuated that President Bio be impeached by Parliament for misconduct.
Giving his legal opinion on the suspension of the auditor general by President Bio , Lawyer Margai said :
LEGAL OPINION
Charles Margai Esq
MY THOUGHTS ON THE MRS. LARA TAYLOR PEARCE SAGA.
By letter dated 8th November, 2021, the Deputy Minister of Justice, Mr. Umaru Napoleon Koroma addressed a letter to the Hon. Chief Justice, triggering the commencement of investigations into the conduct of Mrs. Lara Taylor Pearce and her deputy, Mr. Tamba Momoh, Auditor-General and Deputy Auditor-General respectively, concerning as he put it, to address, “several allegations in form of complaints lodged to His Excellency, the President, amounting to misconduct OR lack of professional performance while in office”.
The letter is predicated on Section 119(9) of the Constitution of Sierra Leone Act No.6 of 1991 and Section 137(5) of the said Constitution.
Section 119(9) of Act No.6 of 1991 (the Constitution of Sierra Leone) provides:-
“The provisions of Section 137 of this Constitution, relating to the removal of a Judge of the Superior Court of Judicature other than the Chief Justice, from office, shall apply to the Auditor-General.”
Section 137(5) of Act No.6 of 1991 which is the applicable subsection and provides:-
“If the Judicial and Legal Service Commission represents to the President that the question of removing a Judge of the Superior Court of Judicature, other than the Chief Justice, under subsection (4) ought to be investigated then –
(a) the President, acting in consultation with the Judicial and Legal Service Commission, shall appoint a tribunal which shall consist of a Chairman and two other members, all of whom shall be persons qualified to hold or have held office as a Justice of the Supreme Court; and
(b) the tribunal appointed under paragraph (a) shall enquire into the matter and report on the facts thereof and findings thereon to the President and recommend to the President whether the Judge ought to be removed from office under the subsection”.
The reason why the Judicial and Legal Service Commission has a role to play in the removal of Judges, is because the Judicial and Legal Service Commission is by virtue of Section 135(1) and (2) of Act No.6 of 1991, involved in the appointments of all Judges including the Chief Justice.
Reference to the Judicial Service Commission in Section 119(9) of Act No.6 of 1991, on the removal from office of the Auditor-General is in my opinion misplaced; as the Judicial and Legal Service Commission is not a player in the appointment of the Auditor-General. (I think the drafters of the Constitution should have added after “Auditor-General” in Section 119(9) of Act No.6 of 1991, the words – “as may be applicable”.
The Deputy Minister of Justice, which title I venture to say, has no constitutional support, realizing the inapplicability of Section 119(9) of Act No.6 of 1991, for reasons above proffered, disingenuously resorted to writing to the Hon. Chief Justice in his capacity as chairman, Judicial Service Commission, as a prelude to commencing investigations into the conduct of the Auditor-General and her deputy.
Has the Deputy Minister of Justice, authority to act as he did? The answer is NO!
(a) Section 64(1) of Act No.6 of 1991, established the office of Attorney-General and Minister of Justice (conjunctive).
(b) Section 64(2) states that the holder of such office shall come from among persons qualified to hold office as a Justice of the Supreme Court; meaning as per Section 135(3) of Act No.6 of 1991, from among persons who have practised as counsel OR be entitled to practise as such for not less than twenty years.
The question is:
(a) does the Constitution of Sierra Leone, Act No.6 of 1991, provide for separate offices of Attorney-General AND that of Minister of Justice (Disjunctive)? The answer is NO!
(b) who has the right to disjunct Section 64(1) of Act No.6 of 1991? It is the House of Parliament.
(c) is the current designate of Deputy Minister of Justice appropriate constitutionally? The answer is NO!
(d) does the current holder of the purported office of Deputy Justice Minister meet the threshold set out in Section 35(3) of Act No.6 of 1991? The answer is NO!
What then is the effect of the letter addressed to the Hon. Chief Justice dated 8th November, 2021, by Umaru Napoleon Koroma, Deputy Minister of Justice?
Answer: It is a none starter, amounting to nothing.
Does the above letter support the suspension by Mr. President of the Auditor-General and her deputy?
Answer: At all not!
The President’s action is precipitous and a breach of his constitutional obligation (reference: second schedule, president’s Oath “I … do hereby (in the name of God swear) (solemnly affirm) that I will at all times well and truly discharge the duties of the office of the President of the Republic of Sierra Leone according to law, that I will preserve, support, uphold, maintain and defend the Constitution of the Republic of Sierra Leone as by law established, and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will. So help me God”!
The President’s suspension of the Auditor-General and her Deputy, should have suffixed and not prefixed a referral of their removal from office to a tribunal. (See Section 137(6) of Act No.6 of 1991).
I say ‘precipitously’ because even if Section 137(5) were applicable, (which is not the case), the President’s suspension of the Auditor-General and her Deputy should have suffixed and not prefixed a referral of their removal from office to a tribunal. (See Section 137(6) of Act No.6 of 1991, which provides:- “where the question of removing a Judge of the superior court of Judicature from office has been referred to a tribunal under Subsection (5), the President may suspend the Judge from performing the functions of his office an any such suspension may at any time be revoked by the president, and shall in any case cease to have effect if the tribunal recommends to the President that the Judge shall not be removed from office.”
Are there attendant consequences when a president breaches provisions of the constitution?
Answer: see Section 51 of the Constitution of Sierra Leone Act No.6 of 1991 – titled misconduct by President.
Dated this 17th day of November, 2021.
C.F. MARGAI ESQ.
COCORIOKO HAS PROVIDED BELOW THE RELEVANT PROVISIONS OF THE CONSTITUTION ON THE ATTENDANT CONSEQUENCES OF PRESIDENTIAL MISCONDUCT , FOUND IN SECTION 51, ACT 5 OF THE 1991 SIERRA LEONE CONSTITUTION , not Act 6 as actually stated by the learned lawyer.
