Food for Thought

By Pa Momo Fofanah, Freetown

“Out of the experience of an extraordinary human disaster that lasted too long, must be born a society of which all humanity will be proud...”

Nelson Mandela, presidential inaugural address, 10 May 1994.

Were President Kabba(h) and Vice President Berewa Constitutionally (Re-)elected? If Not, They Must Resign Now!

To many, the above question is either rhetorical, superfluous or at best redundant. The President has been “democratically and constitutionally” re-elected and is almost at the verge of finishing his second term in power; so why the question? To some, a ponderous enquiry ought to be set in place to see if the question: “Were President Kabba(h) and Vice President Berewa Constitutionally (Re-)elected?” merits an answer. As my column (Food for Thought) implies, I certainly belong to the latter school of thought.

What set the above question in motion is the current application before the Supreme Court by Mr. Sam Hinga Norman that certain questions relating to the National Constitution and the Sierra Leone People’s Party’s nomination of Party Leader be judicially answered by the country’s highest constitutional court. Whilst that matter is now sub judice (i.e. before the court and therefore removed from the comments of ordinary men until final decision), that process does not, in my humble estimation, stop ordinary minds from asking further questions about the issue, at least for public debate.

For the plain understanding of ordinary minds, I will set out the constitutional provisions that Mr. Norman’s application, as I understand it, in part seeks to clarify. Section 35(2) of the Constitution of Sierra Leone, Act No.6 of 1991, provides that “[t]he internal organisation of a political party shall conform to democratic principles, and its aims, objectives, purposes and programmes shall not contravene, or be inconsistent with, any provisions of this Constitution.” Section 35(4) provides further that “[n]o political party shall have as a leader a person who is not qualified to be elected as a Member of Parliament.” By virtue of section 76(1)(h), it is provided inter alia that “[n]o person shall be qualified for election as a Member of Parliament - if he is for the time being the President, the Vice-President, a Minister or a Deputy Minister under the Provisions of this Constitution.” This last quote must be carefully noted and remembered as it is the most significant thrust of this exercise.

Section 41(d) of the Constitution also provides that “[n]o person shall be qualified for election as President unless he - is otherwise qualified to be elected as a Member of Parliament”. Section 54(2)(b) of the Constitution also provides that “a person shall not be qualified to be a candidate for the office of Vice-President unless he has the qualifications specified in section 41 [which includes the above provision that no person shall be qualified for election as President unless he - is otherwise qualified to be elected as a Member of Parliament]”.

The following questions doggedly emerge from the foregoing provisions:
1. Is it not the ordinary, plain and unadulterated meaning of the above provisions that a serving (i.e. “for the time being”) President, Vice-President, Minister or Deputy Minister cannot, for the purposes of a subsequent election, be eligible for election as the Leader of a Political Party and/or President or Vice President of the Republic of Sierra Leone if he/she has not resigned his/her post prior to re-election to any of these positions?

2. If the above question is answered in the affirmative, did President Kabba(h) (as serving President of the Republic of Sierra Leone) and Vice-President Berewa (as serving Attorney-General and Minister of Justice of the Republic of Sierra Leone) resign their respective positions before seeking (re-)election to the respective offices of President and Vice-President of the Republic of Sierra Leone, so that they can each qualify first as being eligible to be elected as a Member of Parliament of Sierra Leone pursuant to the provisions of section 76(1)(h) above?

3. Is it not the case that the 1991 Constitution of Sierra Leone envisaged that serving Presidents and their Deputies will, if permitted, use undue political influence on vulnerable electorates and have free and unaccountable access to state money for their (re-) election to office? Did the Constitution of Sierra Leone not therefore seek to prevent and, where necessary, arrest this mischief by positing section 76(1)(h) above?

4. If President Kabba(h) and Vice-President Berewa did not resign their respective constitutional positions as indicated above before vying in 2002 for the offices of President and Vice-President of the Republic of Sierra Leone respectively, weren’t their respective conduct, and for that matter their current positions as personalised by their persons, unconstitutional? Note: It really does not matter if these men polled 70% of the votes for their (re-)election; the words of the Constitution are supreme! And if the words of the Constitution are supreme, can both men resign now to save the basic law of the land from impeachment?

5. Was it not the case that both President Kabba(h) and Vice-President Berewa had, at the time of their (re-)election and even continue to have, free and probably unaccountable access to state money as well as influence over vulnerable electorates?

Whilst pondering the above questions, further questions will, by implication, be posed on the ongoing campaign by the Vice-President - Mr. Berewa - and the Minister of Finance - Mr. Dauda - to vie for the leadership of the Sierra Leone People’s Party and Presidency of Sierra Leone:

1. Based on section 76(1)(h) above (if given what I have called its ‘ordinary, plain and unadulterated meaning’), should the Vice-President and the Minister of Finance continue to hold their respective positions in government whilst vying for election to the leadership of the Sierra Leone People’s Party and Presidency of Sierra Leone?

2. By the same stretch, will the mischief that section 76(1)(h) of the Constitution sought to prevent and arrest be avoided if the Vice-President and the Minister of Finance continue to hold their respective positions in government? Note: The mischief here includes free and unaccountable access to state money, abandoning state duties for ‘unofficial’ campaigning at the expense of the state, as well as undue influence over vulnerable electorates. Nearly 90% of the Ministers, Deputy Ministers, Civil Servants and some Parliamentarians are busy escorting the Vice-President or the Minister of Finance to various parts of the country to campaign for “presidency” some two years ahead of the electoral timetable, which is yet to be announced.

3. Was it proper for President Kabba(h) to ‘officially’ announce his Vice-President as his nominated successor almost two years to the official election for presidency? Has the President appointed the Political Parties Registration Commission to register other parties, in line with section 34 of the 1991 Constitution of Sierra Leone?

4. Is it also proper for the Vice-President to have actively started campaigning for presidency almost two years (some say since his election as Vice-President) prior to the official election for presidency? Does the Vice-President and the Minister of Finance’s campaigning for “presidency” of Sierra Leone not coincide with the Electoral Commission’s failure to register S.L.A.P as a new political entity on the grounds that the Commission is yet to properly set up party registration mechanisms?

Fellow countrymen, this is a clarion call to salvage the Constitution of Sierra Leone. I call upon all Sierra Leoneans to begin the debate and save the supreme and ultimate law of the land from impeachment, if the answers to my questions suggest so. In particular, the foregoing questions are for your active discussion and consumption in the hope that the rule of the fundamental law (i.e. the Constitution of Sierra Leone) will prevail and govern Sierra Leone. Of note is that, apart from interpretation of the Constitution by the Supreme Court, Parliament cannot, by any stretch of the imagination, move to amend section 76(1)(h) of the Constitution to take retrospective effect. Such move will defeat the rule against retrospectivity and undercut the essence of the Constitution! I trust that our Parliament will not seek to legitimise an odd situation.

I do recall that in 2001, three colleagues of mine and I set ourselves to the task of simplifying the 1991 Constitution of Sierra Leone into lucid language for the readership of the ordinary man on the street. A caveat was sounded that it was not an attempt to usurp the functions of the Supreme Court, but merely an attempt to make the Constitution the people’s document. I am not sure how far the World Vision - sponsors of that exercise - went in disseminating that important piece of information. I can, however, recall that Mr. Keith Biddle - the former Inspector-General of Police - once commended me for helping put that document together; he told me that it served as a useful reference point for his policing duties. Though I felt innately proud, I am disappointed that many police officers, soldiers, teachers, civil servants and numerous other ordinary Sierra Leoneans are yet to see and own the simplified Constitution. I urge World Vision and civil society groups to reach out to these Sierra Leoneans with copies of this all-important document. This way, constitutional abuses will be debated and put to rest in time.
Before I conclude, I will use this opportunity to demand the immediate formation of a Constitution Review Committee to seriously view, review, clean up and revise the Constitution in order to bring it up-to-date with our history (of unbelievable civil war included) and our circumstances (of unbelievable poverty included). In particular, the economic, social and cultural rights posited in Chapter Two of the Constitution must be amended and made justiciable now! This way, we can fight poverty, mismanagement and rampant corruption that have painted and continue to paint the offices of all governments that I have known in Sierra Leone since birth in 1972.

In the light of today’s Food for Thought and in view of our horrific past and present determination to positively change our country, I will conclude with a quotation from Ex-President Mandela’s 1994 inaugural speech to South Africans and the world: “Out of the experience of an extraordinary human disaster that lasted too long, must be born a society of which all humanity will be proud...”.