State of Emergency : Unnecessary, dangerous and drawback to personal freedom and human rights

LET US VISIT THE PAST AND SEE WHY IT IS DANGEROUS AND THE REASON FOR THE CURRENT PROCLAMATION FOR RAPE IS A PLOY TO FUTURE MISUSE AND NOT THE REAL REASON.
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IN THE COURTROOM [BY FORMER CHIEF JUSTICE OF BELIZE -Dr Abdulai Conteh]

The State Of Public Emergency And The Law: Some Legal Considerations
Posted by Dr Abdulai Conteh on Sep 4, 2007, 02:08.

It has been some time now since president Kabbah by Proclamation declared a state of public emergency in Sierra Leone early this year. This came hard on the heels of the routing of the combined forces of the Revolutionary United Front ( RUF ) and the military junta of the Armed Forces Ruling Council ( AFRC ), by the Nigerian-led expeditionary forces of the Economic Community of West African States Monitoring Group ( ECOMOG ). All this happened between February and March 1998, and resulted in the restoration of the elected civilian government of President Ahmad Tejan Kabbah back to power after its ouster by force in May 1997.

 

It was evidently felt that a state of public emergency was necessary throughout the country perhaps to mop up the remnants of the RUF/AFRC alliance and to pacify the rest of the country. The experience of Sierra Leone with various episodic states of public emergency has not been a happy one.

In 1970/71, a state of public emergency was declared by president Siaka Stevens in the face of vociferous and clamourous political dissent from within his then ruling APC and other parts of the country. This was done under the Public Order Act, 1964, and it resulted in the banning of the vocal and burgeoning National Democratic Party ( NDP ) of Dr. John Karefa- Smart and others. Mercifully, the SLPP, the other political protagonist, was not touched.

Again, in 1977, after students demonstrated against president Stevens at a graduation ceremony at Fourah Bay College, a state of public emergency was declared, and soon after General Elections were held in the country.

Also, in 1978/79, in the face of mounting labour unrest with a threatened nation-wide strike, president Stevens declared a state of public emergency.

During the administration of president Joseph Momoh between 1987/88, in the face of swirling economic problems, he declared a “state of Economic Emergency”.

However, as a result of the new legal and political dispensation brought in by the new national Constitution of 1991, even while fighting the rebel war first launched on 23 March 1991, the Government of Momoh did not declare a state of public emergency. A Member of Parliament submitted a resolution in Parliament in early 1992 to have one declared but he was prevailed upon to withdraw it in view of the new multi-party political dispensation lest it be misapprehended as aimed at the new political parties that were beginning to mushroom

The controlling law governing public emergency today is to be found in the 1991 National Constitution, more particularly in section 29 thereof. In the interpretation part of the Constitution in section 171, “ Public Emergency” is said to include:

when Sierra Leone is at war; or

there is in force a Proclamation issued by the president under subsection (1) of section 29, or

there is in force a Resolution of Parliament made under subsection (3)of section 29.

Subsection (2)of section 29 spells out 6 possible instances when the president may issue a Proclamation of a state of public emergency.

What is evident is that in the past the state of public Emergency was a mighty tool in the hands of the Executive and was wielded to silence, suppress or discourage political dissent. It was a realization of this that probably prevailed in early 1992 so soon after the reintroduction of multi-party system when it was not thought necessary to declare one lest the burgeoning political parties might have thought it was aimed at them. Thus, the country bore the brunt of the first onslaught of the RUF without the Government declaring a state of emergency. It was only after the military coup of 29 April 1992 that the country came under the iron grip of a state of Emergency. In a sense, the coup itself was more than a state of public emergency: it resulted in draconian measures taken randomly but cavalierly by the NPRC and it�s agents against the persons and property of Sierra Leoneans. Their very lives came to count for precious little. They were summarily executed without charge or trial as happened on 29 Dec. 1992 when more than two dozen citizens were grotesquely done to death; some of whom were taken from official custody and others from the sanctuary of their homes at night. Civic and political leaders were routinely detained without charge or trial.

Paradoxically a state of public emergency is a severe limitation on some of the fundamental human rights of the individual and the emergency provisions of the Constitution are to be found in Chapter 3 , thereof under the rubric “The Recognition and Protection of Fundamental Human Rights and Freedoms of the Individual.”

Ironically therefore, the emergency powers provisions, serious a limitation as they are on fundamental rights and freedoms, are nonetheless part of the human rights regime of the Constitution. This point should always be borne in mind.

Indeed, much as the President is given a wide latitude by section 29(5)&(6) to make regulations and take measures during a period of public emergency that could for example, amend any law, suspend the operation of any law and apply any law with or without modification, significantly however, such amendment, suspension or modification shall not apply to the Constitution itself- section 29(6)(d).

That is to say, even in a period of a state public emergency, the Constitution is not set aside. Indeed, to be a valid exercise of emergency powers, any regulation or measures made or taken thereunder must conform with the prescriptions of the Constitution. The fundamental human rights and freedoms of the individual are only to be derogated from or interfered with in accordance with and to the extent and no more, allowed by the Constitution itself.

Significantly and mercifully the fundamental right to life as stipulated in section 16 is unaffected by the existence or declaration of public emergency. The other fundamental human rights are not so unequivocally protected however.

Thus, the fundamental right of protection from arbitrary arrest or detention, freedom of movement, protection from deprivation of property and the privacy of home and other property and such like are however, open to interference by the exercise of emergency powers through regulations or measures that may be made or taken during the emergency period.

It must be emphasized that the President is given powers during a period of public emergency to make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in the country. In other words it’s not a carte blanche power to make regulations or take measures. The regulations and measures must be for a specific end as stated in sub- section (5). However, the force of this requirement is detracted from by the subjective rider that the regulations and measures may be such “as appear to be necessary or expedient” to the President. Is there room for possible challenge or judicial review here? This may be a moot point; but it is feasible in law.

But what is without doubt is that the Constitution does expressly place both temporal and political limitations on the life of any emergency regulation or measure: subsection(10) states that every public emergency regulation or measures shall cease to have effect 90 days from the date upon which it came into operation unless before the expiration of this period, such regulation or measure has been approved by a resolution passed by Parliament. This latter requirement is no doubt meant to bring popular political consideration to bear on the continuance of the regulations or measures. Evidently Parliament is expected to satisfy itself as to the necessity for the continuance of the regulations or measures, unless of course, it is a rubber stamp Parliament.

By the scheme of the Constitution, the necessity for or the decision to declare a state of public emergency, its continuance and duration is eminently a political question and therefore non-justiciable because this determination is committed by the provisions of section 29 to the two other branches of Government namely-The Executive (i.e. the President) and the Legislative i.e. Parliament.

It is respectfully submitted however that the incidence of a state of public emergency can be and is properly justiciable. That is to say, the courts can take cognisance of a challenge or claim that asserts that the regulations or measures made or taken in pursuance of the public emergency are in excess of the powers granted by the Constitution or are not in consonance with its provisions; Therefore, even during a state of public emergency, the provisions of the Constitution do not become a dead letter. In particular, the fundamental human rights provisions are only held in check temporarily and only for the duration and purposes of the emergency. Indeed, the proviso to subsection(6)(d) which gives the President powers to amend, suspend the operation of any law and to apply any law with or without modification , expressly excludes the Constitution’s provisions from any such fate.

Thus, for example, the President cannot, because he has declared a state of public emergency or because one is in existence, refuse to submit his nominees for certain offices for approval to Parliament, where the Constitution subjects such appointment to Parliamentary approval.

Significantly also, there is no ouster of the jurisdiction of the courts even during a state of public emergency. Thus if it is felt that a regulation or measure made or taken pursuant to it offends the provisions of the Constitution it is submitted that the doors of the court will be opened to entertain a challenge. Such a matter is eminently justiciable. Indeed subsection(15) of section 29 makes it clear that there can be adjudication by the courts on aspects of a public emergency when it provides for “the receipt in evidence” of certain documents purporting to be instruments made by or issued by the President or other authority or person in pursuance of the purposes of section 29.

Thus it is clear that a close reading of the Constitution will reveal that much as the existence of a state of public emergency has the potential and in some cases does result in fact in the abridgment of the fundamental human rights provisions of the Constitution, such abridgment it is submitted, is open to both legal scrutiny by the law courts in appropriate cases and political oversight by Parliament .

This is a welcome improvement in the climate for the enjoyment and observance of fundamental human rights in Sierra Leone today. It might be pointed here that the Public Order Act 1964 which has provisions for bringing into being a state of public emergency in the country is of less if any relevance today. It is submitted that today in Sierra Leone, it is the Constitutional provisions as contained in section 29 that govern the declaration, existence, continuance and incidence of a state of public emergency. Any other law is only valid to the extent that it conforms with the constitutional provisions on the matter; and any divergence, departure therefrom or inconsistency therewith, is to the extent of such inconsistency null and void. This is expressly stipulate in the legal supremacy provision of the Constitution in section 171(15) thereof which declares:

“(The) Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of (the) Constitution shall, to the extent of the inconsistency, be void and of no effect.”

It is therefore crucial to remember that the declaration, existence and continuance of a state of public emergency pose a grave threat to the enjoyment and exercise of basic fundamental human rights granted by the Constitution. The combined operation of subsections (5) and (6) of section 29 has the effect of almost freezing these rights during the period of the emergency.

These two subsections empower the President during a period of public emergency to make such regulations and to take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good Government in the country. These regulations and measures may range from making provision for the detention of persons , the restriction of their movement within defined localities, to the deportation and exclusion of persons other than citizens of the country from the country itself or any part of it. These emergency regulations and measures may also authorize the taking of possession or control, on behalf of the Government, of any property or undertaking ; the acquisition on behalf of Government of any property other than land; the entry and search of any premises, the arrest trial and punishment of persons offending against the regulations themselves. In short, the breath and reach of emergency regulations and measures can be far-reaching.

However, the duration of these emergency regulations and measures are limited in time: subsection (10) stipulates that they shall cease to have effect ninety days from the date upon which they came into operation unless before that period they had been approved by a resolution passed in Parliament . By the operation of subsection (13) such a resolution (and probably therefore the regulations and measures) shall remain in force for a period of twelve months or such a shorter period as it may specify.

Thus, while the initial determination to declare the existence of a state of public emergency is vested in the President, the Constitution clearly grants to Parliament an oversight authority throughout the process. For example, a Presidential declaration of public emergency while Parliament is sitting can only last for seven days from the date of the declaration and only for twenty-one days if Parliament is not in session. In any event, Parliament itself may by a resolution supported by two-thirds vote of its membership, decide to approve the declaration or override it: subsection (3) of section 29.

It is expected therefore that through this oversight authority vested in Parliament its members would be vigilant and solicitous of the overall public interest and ensure that the duration and incidence of the public emergency are in fact used for the purpose of maintaining and securing peace, order and good Government in the country and that they do not become a vehicle for oppression and abuse of the fundamental human rights of the people of Sierra Leone, or perceived political opponents.

It is important to note in this regard that a particular fundamental human right that is often in practical, the first victim in a State of public emergency namely-protection from arbitrary arrest or detention (section 17 of the Constitution) is singled out for special mention and treatment by subsection(17) of section 29.

In a state of public emergency -personal freedom is a prime and easy victim: it invariably results in the detention of persons who are perceived, rightly or wrongly, as obstacles of the emergency itself.

The Constitution therefore stipulates in subsection (17) of section 29 that there shall be an independent and impartial tribunal comprised of not more that three persons of not less than fifteen years standing entitled to practice law. The Chairman of the tribunal shall be appointed by the Chief Justice and the two other members shall be nominated by the Sierra Leone Bar Association. The task of this tribunal is to review requests of detained persons during the period of emergency.

Anyone detained pursuant to an emergency regulation or measure shall not earlier than thirty days, after he made a request, be entitled to have his detention reviewed by the special tribunal, which shall make recommendations regarding the necessity or expediency of continuing the person’s detention.

A particular feature of the current state of emergency is the unusually large number of persons that have been detained as a result of it: These include high civil servants, prominent business people, religious leaders, trade unionists and other civic leaders. It is hoped that the independent and impartial tribunal provided for by subsection 17 of section 29 of the Constitution will conscientiously do a fair job of reviewing these detentions. This way it will ensure that only persons genuinely perceived as a threat to public order or safety would continue to be detained and the others will be recommended for release. The Chairman of the tribunal and the representatives of the Sierra Leone Bar Association thereon owe a special duty to balance the public welfare and individual liberties in consonance with the rule of law. Historically, the civil liberty of personal freedom has always fared worse in Sierra Leone during a period of public emergency, and often capriciously: it is about time this sad legacy is abandoned.

The best safeguard of liberty however is not an arid legalism-mere “parchment barriers” as James Madison once dismissed this, but the countervailing power, generated by separate and mutually independent branches of Government and by institutional checks and balances. Empirically, it is evident that the worse erosion of individual rights and liberties takes place when the dividing lines between the distinct branches of Government (The Legislature, Executive and the Judiciary) become blurred or ill-defined. When the law-maker becomes the judge, or the executive becomes the law-maker then individual rights and liberties are truly in jeopardy: they come to mean precisely what the emergent and dominant branch wants them to mean – a la Humpty–Dumpty in Alice in Wonderland the only question then is : “who is the master?”

Therefore, if Parliament does not actively and jealously guard and enhance its position as the undoubted law maker and the incomparable forum for debating and airing serious national issues and concerns and instead plays cozy with the Executive, it becomes worse than a rubber stamp and complicit in the erosion of individual rights and freedoms.

Similarly, a judiciary that does not maintain and display its independence but instead plays the role of His Master’s Voice, echoing and reflecting the wishes of the Executive in its decisions and judgments, is worse than a travesty of the institution of the judiciary, it instead becomes a part of the erosive mechanism of human rights and freedoms, and a sacrilege of the notion of fair, upright and impartial judge.

The impression that during a state of public emergency individual rights and freedoms are utterly subverted must not be allowed to hold sway: fundamental rights and freedoms are only interfered with in accordance with the law and only to the extent and in the manner provided by law. It is the judiciary that ultimately makes this call and no other person or authority.