Essay
Abdul Karim Bangura
&
Sarath K. Ganji
Introduction
This essay was motivated by the paucity of published scholarly works on Sierra Leone’s judiciary. Laborious library and Internet searches yielded only four published scholarly works on the subject. The first of these works is Bankole Thompson’s book titled The Constitutional History and Law of Sierra Leone, 1961-1995 (1996) in which he provides a legal analysis of the complex interactions among constitutional norms and institutional and societal forces. The author illustrates the country’s experience with one of constitutional law’s most fundamental and enduring challenges-i.e. the delicate relationship between its legal and political components.
The second work is another book by Thompson tiled The Criminal Law of Sierra Leone (1999). In this book, the author employs relevant case-law authorities and illustrations to show how the substantive criminal law has been applied, expounded and developed in Sierra Leone since the introduction of English Common Law in the nation. Using cases to highlight and elucidate the principles and rules developed by the courts, Thompson employs a broad approach to investigate the country’s criminal law and to also demonstrate the real world impact of the judicial decisions. In the end, he presents defenses to criminal liability available under the law and makes the case for major reforms of the country’s criminal law.
The third work is an article titled “Marriage, Divorce, and Inheritance Laws in Sierra Leone and Their Discriminatory Effects on Women” (2005) written by Pamela O. Davies. She begins by examining the violations of Sierra Leonean women’s human rights under the General Laws, Customary Laws and Islamic Laws that deal with marriage, divorce, and inheritance. Next, she utilizes the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Universal Declaration of Human Rights (UDHR) to explain how the laws and customs pertaining to marriage in Sierra Leone violate the commitments the country has made to these international instruments. She then concludes with recommendations for urgent reform and domestic codification of the provisions contained in the international agreements to which Sierra Leone is a signatory.
The fourth work is also an article, “Sierra Leone Legal System and Legal Research” (2006), written by Hanatu Kabbah. It is a general description of the country’s legal system. The judicial aspects discussed in the article include a description of the structure of the judiciary, common law, customary law, statute law, legal foundation and the legal profession, treaties, law reporting, primary and secondary legal sources, and the legal profession.
In sum, the existing published scholarly works on Sierra Leone’s judiciary are descriptive case studies that are not guided by any particular theory. The current essay systematically adds to these works by basing its analysis of the judiciary on the well-tested Rawlsian theory of justice.
Indeed, as the international community remained fixated on matters of national interest-nuclear proliferation, Iraqi democracy, and United Nations reform, to name a few, blood stained the lands of Sierra Leone. Victor A B. Davies explains:
The rebel war...claimed thousands of lives . . . and internally or externally displaced . . . nearly half of the country’s population. The rebels...amputated, sexually assaulted and conscripted thousands of men, women, and children, posing a potential AIDS crisis.... Infrastructure and public and private property (were) looted or destroyed. Major economic activities (were) disrupted while the provision of basic social services...virtually stopped outside of Freetown, the national capital (Davies 2000:350).
Davies’ grim description characterizes a state in the midst of social, political, and economic turmoil. Yet, rather than viewing such issues as isolated conditions, one must accept the intersection of these issues and their interconnected effects upon people’s individual rights and quality of life.
In Pathologies of Power, Paul Farmer refers to the multidimensional nature of rights violations as “structural violence.” For Farmer, structural violence encompasses a variety of offenses that threaten human dignity, including “extreme and relative poverty, social inequalities ranging from racism to gender inequality, and the more spectacular forms of violence that are uncontestedly human rights abuses” (2005:8). Political instability breeds economic problems; economic problems erode public health and hamper individual rights; and the loss of rights makes political instability all the more likely. This circular trap of economic starvation and social deprivation dooms nations to an ever-destructive path culminating in state collapse.
Central to any discussion of solutions to such tragedies is the concept of justice. The preeminent political philosopher John Rawls elaborates on the issue:
society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice . . . it is a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles (Rawls 1971:4).
Rawls’ unique insight posits two important arguments. First, justice is integral to the application of equality to the body politic. Uniformity to a pre-established set of standards and rules allows individuals to exercise a type of political power in light of their knowledge of what actions are condoned and condemned within civil society.
Second, through this uniformity of morality, justice shapes the validity of social and political institutions, ultimately determining their success or failure in maintaining civil order. As Rawls later notes, “one may think of a public conception of justice as constituting the fundamental charter of well-ordered human association” (1971:5). Thus, those legal institutions administering justice to the population are responsible for protecting the social fabric of nations.
As structural violence tore apart the very seams of civil order in Sierra Leone, state collapse appeared imminent. How are we to resolve this nation’s crisis? What rubric or paradigm ought to guide our actions in implementing reforms? How can we even address such an issue knowing full well the problems arising from the intersection of social, political, and economic dilemmas?
Locating Sierra Leone’s structural dilemmas within a Rawlsian framework of justice, this essay examines the nation’s future prospects for peace according to the strengths of its judiciary. Does the judiciary possess the resources needed to effectively administer justice? How independent is the judiciary when adjudicating? Moreover, does the judicial system’s track record reflect a nation capable of democratic self-governance?
This essay addresses such issues methodically and comprehensively in four sections. The first section concerns the very structure of Sierra Leone’s judicial branch along with supporting theories for judicial governance; the second section investigates the branch’s relationship with the executive and legislative bodies of government; the third section describes the cases of three different courts to ascertain the judiciary’s strengths and weakness; and the final section argues the feasibility of the justice system in promoting democratic principles and ensuring the very future of the state itself. The goal of this paper is to determine the effectiveness of a post-colonial state in adopting modern democratic norms without sacrificing pre-colonial cultural traditions or dislocating institutional order.
The Structure of Justice
For the Republic of Sierra Leone, legality largely derives from a cultural commitment to regionalism and a legacy of British legal institutions. These principles’ combination reveals a system very familiar to Western eyes-a federalist judicial system. In post-colonial states, such a system offers the most pragmatic of methods for judicial governance, allowing for regions to self-govern unless decisions require a higher source of authority for arbitration. Concentric circles of authoritative power shape the core of the Sierra Leonean judiciary, which models Western court systems to a large degree but adds additional safeguards to ensure that legally just rulings are made.
A theoretical understanding of federalism and judicial power is posited in The Federalist Papers. James Madison suggests that “State governments may be regarded as constituent and essential parts of the federal government; whilst the latter are nowise essential to the operation or organization of the former” (1788:294). In what is a mutually beneficial relationship, local and national apparatuses for governance address the shortfalls of one another. On the national level, laws outlining the most important of principles and beliefs ensure a moral and legal framework for uniting a conglomerate of states into a single entity. On the state level, efficiency and competition are harnessed to produce national progress through individual state achievement, evident in the evolution of legal doctrine, political economy, and national purpose. States serve as “laboratories” for experimentation, testing the waters of political, social, and economic changes before allowing an entire nation to plunge into its abyss (Inman and Rubenfield 1997:46).
The structure of Sierra Leone’s judiciary resembles Madison’s own vision through its hierarchy of authority and purpose in addressing criminal, civil, and pressing disputes. The beginnings of its court system, however, lie in the status of West Africa as a British Crown Colony. Divided between superior and subordinate courts, Protectorate judicial systems functioned on both regional and local levels, the former according to which administrative regions they were a part (Jearey 1960:397). The superior system consisted of a Supreme Court, with jurisdiction over the entire colony, and a High Court, with jurisdiction over an individual Protectorate. The subordinate system provided Magistrates’ Court and native or customary courts, both of which functioned on local levels and were limited in the offences that could be tried and punishments that could be decreed under their jurisdictions (Jearey 1960:401-403).
Although Sierra Leone created a constitution following its independence in 1961, the National Constitution of Sierra Leone that governs its current affairs did not come about until 1991. Outlining a similar system of courts to the pre-1961 system, the Constitution set up a Superior Court of Judicature composed of the Supreme Court of Sierra Leone, the Court of Appeal, and the High Court of Justice (The National Constitution of Sierra Leone 1991: Section 120).
The Supreme Court of Sierra Leone consists of a Chief Justice and no less than four other Associate Justices. These Justices act as the final arbiters in all matters concerning criminal law, civil law, and presidential referrals: i.e. petitions for which the president seeks a judicial opinion. In an appellate capacity, the Supreme Court takes cases from the Court of Appeal and High Court if they “[involve] a substantial question of law or [are] of public importance;” it entertains applications concerning particular cases it wishes to be tried; and it reviews previous decisions to determine the legality of such rulings if they defy conventional or newly developed norms (The National Constitution of Sierra Leone 1991: Sec. 123). In an administrative capacity, the Supreme Court oversees the actions of lower courts and the enforcement of state law, possessing the power to issue such orders as writs of habeas corpus.
The Court of Appeal resembles the Supreme Court in make-up but carries no less than seven Justices alongside the Chief Justice. In both criminal and civil cases, the Court of Appeal serves as a final arbiter in criminal and civil matters, but only possesses jurisdiction over lower courts. One such lower court, the High Court of Justice, is the least authoritative of the courts that compose the Superior Court of Judicature; its purposes, however, are diverse. The court presides over such civil and criminal matters as “industrial and labor disputes and administrative complaints” and Petition of Right cases against the government (The National Constitution of Sierra Leone 1991: Sec. 132-133). Moreover, as a key link between state law and local society, the court consists of more judges than the higher courts-no less than nine High Court Judges along with the Chief Justice.
As an important check on judicial corruption, the Judicial and Legal Service Commission (JLSC) serves as an advisor to the Chief Justice of the Supreme Court. The commission is composed of a host of judicially significant figures in Sierra Leone, including the Chief Justice himself, the most Senior Justice of the Court of Appeal, the Solicitor-General, a practicing litigator appointed by the president, the Chairman of the Public Service Commission, and two other individuals approved by the president and parliament. The primary function of the JLSC is to advise the Chief Justice in matters when the “effective and efficient administration of the court” is in question (The National Constitution of Sierra Leone 1991: Sec. 140). This process is expedited by the creation of a Rules of Court Committee found in Section 145, which establishes and governs the tasks and rules of legal proceedings.
A final noteworthy aspect of the Sierra Leonean judicial system is its Ombudsmen and Commissions of Inquiry institutions. As special offices of the judiciary, they investigate particular cases concerning the government. Specifically, the former is charged with investigating any Ministry of Government Department, any corporations or institutions of higher learning, and any member of a public service agency; the latter is utilized for document-finding and witness-examinations requiring measures beyond the court’s abilities (The National Constitution of Sierra Leone 1991: Secs. 146-148).
The interplay between federal and local systems of adjudication is evident in the hierarchy of courts present in Sierra Leone’s judicial branch; at the most local level, however, Magistrates provide judicial policing to administrative sections of the state. Yet, certain conditions preclude their success as effective arbiters, disrupting the entirety of the superior court system. First, the government’s recent plan to partition the state into districts is inadequate and ineffective, as chiefdoms remain intact throughout Sierra Leone. Magistrate Courts are second to chiefs in terms of power, nullifying the state’s legal framework by increasing case loads and decreasing legal services. Second, Magistrates are increasingly becoming viewed by the public as corrupt themselves, hurting the population’s confidence in the justice system (Baker 2005:374-375). The result of such legal deformities is a schism between the superior and subordinate court systems, fragmenting native courts and silencing the concerns of traditional communities.
Independence and Power
Fusing traditional and modern systems of legal interpretation, Sierra Leone’s judicial branch is certainly impressive. The relevance and success of a state’s judiciary, however, lie in its effectiveness at properly administering justice to the population. As Sandra Joireman suggests, “The effectiveness of legal institutions is an issue of importance to legal scholars, academics, politicians and policy-makers because...the rule of law is intricately connected to democracy and capitalist development” (2001:572). Thus, the first step to democratizing post-colonial states and alleviating economic turmoil is to establish successful judicial institutions.
Central to this task is the preservation of judicial independence. This concept, often discussed as part of the “Separation of Powers” doctrine, is best articulated by French political thinker Charles de Secondat, baron de Montesquieu:
Nor is there liberty if the power judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor (Montesquieu 1748: 157).
Montesquieu’s position measures governance according to two unique standards. First, the state breaks down into a triumvirate of oversight, occupying the roles of creator, interpreter, and enforcer. Second, these roles, although similar to one another in paternalistic power, regulatory drive, and sovereign responsibility, cannot encroach upon another’s established duties without jeopardizing the entire system itself.
Increasingly, constitutional scholarship and legal theory point to the judiciary as the linchpin of just such a system-stable and democratic. One of its responsibilities is to “protect citizens against the arbitrary or inequitable use of political or economic power” exercised by other national bodies. Additionally, judicial respect for predictable rules and secure legal rights is the “basis for an effectively functioning society” (Decker, Sage & Stefanova 2005:4). Thus, for democratic processes to flourish in Sierra Leone, its judicial branch must be independent of outside influence and steadfast in its ability to prevent the overextension of executive and legislative power.
Similar to the development of its structure, Sierra Leone’s view of judicial independence is heavily influenced by its colonial affiliation with the National Congress of British West Africa. Even in the 1930s, proponents of the “Separation of Powers” doctrine voiced concerns about the exercise of political authority by a single, amalgamated unit. One historian references an influential paper titled “Legal and Judicial Reforms,” which argues for changes in the West African Protectorate, “including the separation of executive power from judicial powers” (Wyse 1985:695). More recently, a study concerning Africa’s common law heritage and civil law development maintained that, under common law, African courts “acted as a check on the executive” and have a long history of exercising judicial review (Joireman 2001:575). These observations are significant in illustrating how traditional Sierra Leonean courts evolved according to an adherence to separate governmental powers. Consequently, to argue that Montesquieu’s doctrine is beyond the reach of Sierra Leone’s judicial branch is not only misguided, it is also empirically incorrect.
Such legal traditions, grounded in the logic of judicial independence, are evident in Sierra Leone’s 1991 National Constitution. Important to note, however, are the fundamental principles from which the judiciary derives its jurisdictional and adjudicatory power. Outlining political, social, and even economic objectives for the government to follow, the Constitution establishes a variety of national beliefs, the most important of which is Section 6: “The State shall take all steps to eradicate all corrupt practices and the abuse of power” (The National Constitution of Sierra Leone 1991: Sec. 6). From this clause, the judiciary’s power and purpose seem to flow, culminating in the formulation of two relationships of balance: the first concerns the legislative branch and the second the executive branch.
Sierra Leone’s judiciary plays a procedural role in its relationship with parliament. In one respect, the judicial branch has the power to review the election of parliamentary officials deemed corrupt: “The High Court shall have jurisdiction to hear and determine . . . whether . . . any person has been validly elected as a Member of Parliament” (The National Constitution of Sierra Leone 1991: Sec. 78). In another respect, its judiciary either affirms or negates the decision of parliament to sanction the president for alleged misconduct. If such a vote passes the legislature, its Speaker must notify the Chief Justice of the Supreme Court who then forms a tribunal. This tribunal-consisting of five members including the Chief Justice, an Associate Justice acting as chairman of the tribunal, no less than two members who have held high judicial office, and no more than two additional members of lesser political standing-proceeds to investigate those allegations voted on by parliament. Its final decision-should it confirm parliament’s accusations-is then debated by legislative members once more and given the force of punishment if the president is found guilty (The National Constitution of Sierra Leone 1991: Sec. 51).
Alongside these attributes, the courts possess the power of judicial review, a responsibility outlined in multiple articles. Section 123 states that “The Supreme Court shall have power to entertain any application for special leave to appeal in any cause or matter;” Section 124 delineates the Court’s influence when “an enactment [is] made in excess of the power conferred upon Parliament or any other authority; and Section 127 specifies that individuals may seek the Court if authority or enactments are perceived as “in contravention of a provision” of the Constitution (The National Constitution of Sierra Leone 1991: Secs. 123, 124 & 127). Combining elements of procedural and evaluative power, the Constitution appears to have adequately fashioned a system protective of judicial independence.
Yet, implicit in these constitutional powers is the passive reiteration or denunciation of legislative power rather than the active use of juridical force. As this theme develops, one will notice how few powers are truly conferred upon the judiciary. To further this point, three examples must be noted. First, Members of Parliament are immune from arrest-in cases dealing with parliamentary debate and conduct-witness summons, and jury duty (The National Constitution of Sierra Leone 1991: Sec. 99). Second, the position of Speaker of Parliament must be filled by an individual having qualifications equal to or holding the position of judge in the Superior Court of Judicature (The National Constitution of Sierra Leone 1991: Sec. 79). And third, the position of Attorney-General and Justice Minister are held by the same individual (The National Constitution of Sierra Leone 1991: Sec. 64). Each of these examples, although the former two seem harmless, indicate two potentially devastating realities: first, that the legislature is held in higher regard than the judiciary; and second, that the judiciary’s most pivotal roles are occupied, in at least some capacity, by another branch of government.
The judiciary’s position, although tragic when pitted against the legislature, is horrendous when juxtaposed with the executive. Most alarming is the president’s influence in appointing judges. As Sections 135 and 137 maintain, the president appoints and even removes judges, only receiving advice from the Judicial and Legal Service Commission. Without lifetime appointments, judges are under the constant pressure of satisfying political needs through legal decisions, a position that directly violates the statement “The Judiciary . . . shall not be subject to the control or direction of any other person or authority” (The National Constitution of Sierra Leone 1991: Sec. 120). In regard to the removal of a court judge, one check does exist on this grievous misuse of power-the provisions of Section 137, stating that a tribunal must be formed to rule on the president’s recommendation for expulsion. Yet, not only are members of the tribunal appointed by the president and the Judicial and Legal Service Commission, but members of the commission itself are subject to removal by the president (The National Constitution of Sierra Leone 1991: Sec. 141). Thus, presidential influence is found in every body and at every level of Sierra Leone’s hierarchical structure of government.
Judicial independence is the basis of rule of law and the crux of Sierra Leone’s democratic future. Usurpation of this power ensures a legacy of corruption and institutional failure, both responsible for economic downturn and political instability. Furthering this point, Sahr Kpundeh argues that the absence of a “Separation of Powers” doctrine in Sierra Leone was responsible for the fusion of executive and legislative powers, contributing to the state’s “gross misuse of public funds” prior to 1991 (1994:148). The creation of the National Constitution, however, offered some hope:
the 1991 Constitution introduced changes that were designed to reduce the fusion and centralization of powers . . . by strengthening both the legislature and the judiciary in the expectation that their greater independence and authority would help the executive become more responsible and accountable (Kpundeh 1994: 149).
Yet, by strengthening the legislature and maintaining the executive, the Constitution has done nothing more than to further marginalize the judiciary. Such an outcome will fuel domestic disorder and chaos until justice is finally placed on Sierra Leone’s political agenda.
Adjudication in Effect
Lacking an effective framework for safeguarding the autonomy of governmental bodies, Sierra Leone appears ill-equipped to handle the demands of a democratically-structured political system. Important to note is how crucial the autonomy of the judiciary is, in particular, to future democratic endeavors carried out by African nations. Oftentimes, a successful judicial branch means the difference between a stable and a failed state. As Robert Rotberg suggests, should “citizens know that they cannot rely on the court system for significant redress or remedy,” statism and militarism will prevail, laying the groundwork for state collapse (2002:87).
To identify Sierra Leone as another breakdown within the Westphalian geopolitical order, however, requires an examination of its most recent court decisions in regard to the post-1991 Constitutional state. Two problems plague any such examination concerning African judicial proceedings. First, literature analyzing the nature and “correctness” of African court decisions often escapes Western legal consideration and study. This dilemma is especially true of scholarly works that vest much in the principles of rule of law and judicial independence-concepts thought nonexistent in many African nations-and thereby exclude African developments from the purview of international legal order.
Second, with current African court systems still in their infancy, judges are not constrained by precedent when making rulings. Typically, those nations with stable judiciaries have legal histories rich in precedent-based decisions, allowing for their espousal of “legalism.” Yet, Sierra Leone, without such a luxury, adheres to the logic of “legal realism,” also known as “sociological jurisprudence” (George and Epstein 1992:323). The result is an activist judiciary that brings extralegal factors, such as judges’ attitudes and past experiences, into the deliberation process.
Acknowledging these deficiencies in any discussion concerning Sierra Leone’s judicial branch, one can better understand the context in which current rulings are made. To ascertain a holistic view of the judicial branch, adjudicatory acts at the superior court-in particular, the Supreme Court and High Court-and subordinate court levels are discussed through the following court decisions: the Biriwa Judgement, Union Bank v. Abdul Latif Labi, and Sylvia Blyden v. Phillip Neville.
The Supreme Court of Sierra Leone, as the decisive judicial body of the state, hears only those cases which transcend the legal jurisdiction of the High Court of Justice and Court of Appeal. Thus, the Biriwa Judgement delivered on November 10, 2006, by virtue of reaching the Supreme Court, was considered a matter of vital importance to Sierra Leonean jurisprudence. The case was heard before five justices-the Honorable Ade Renner-Thomas serving as Chief Justice-and concerned an election for the Office of Paramount Chief of the Biriwa Chiefdom (The Supreme Court of Sierra Leone 2006). A case unique to the post-colonial climate of Sierra Leone, it examined an institution prevalent during pre-colonial Sierra Leone that survived British rule and was later legitimized by Section 72 of the National Constitution of Sierra Leone: the chiefdom.
As a decentralized mode of judicial governance, the chief utilizes customary law to mediate civil disputes at the local level (Baker 2005:380). In the Biriwa case, a group of plaintiffs contested the public election of such a figure in the Bombali District of the Northern Province, citing its violation of “Native Law and Custom,” traditions deemed legally binding by the Constitution. Furthermore, the plaintiffs sought relief through the expulsion of Dr. Issa M. Sheriff-the elected chief-and the holding of a new election. By custom, potential candidates for the position of chief must come from one of the four established ruling houses of the district, none of which Sheriff was a part. In response, the defense maintained that the election was neither public nor under the jurisdiction of the Court (Supreme Court of Sierra Leone 2006). By reaching the Supreme Court, the merits of the case seemed to be customary law’s influence on Sierra Leone’s current legal order and the application of Section 72 to the matter.
Yet, the greater portion of the proceedings was occupied by the very question of original jurisdiction and whether the Court could rule on the case’s merits in the first place. According to Chief Justice Renner-Thomas, original jurisdiction required the Court to decide whether a provision of the Constitution was in need of interpretation or enforcement, and then whether such interpretation was required by law (Supreme Court of Sierra Leone 2006). Simply put, the Court’s position was two-fold: first, it must decide if a law had been broken; and second, finding so, if it had the jurisdictional authority to resolve the issue. This case, by the mere fact of being heard by the Supreme Court, added much to Sierra Leone’s limited case law regarding original jurisdiction and Section 127 of the Constitution; another matter still to settle was whether the decision would also build case law concerning Section 72.
Based on the Court’s opinion, however, Section 72 appeared quite irrelevant to the proceedings. In fact, the issue was only momentarily examined in reference to the term “public” and its literal versus legal meaning. Hinging on the term’s definition as “the opposite of private affecting the community as a whole or a portion of the community,” the plaintiffs’ case was dismissed, as the justices determined the legal meaning of “public” to derive from the intent of parliament, which viewed chiefdom elections as legally distinct from presidential, parliamentary, and local ones. As a final note, Section 72, rather than giving the plaintiffs a legal cause for redress, actually supported the defense’s position by identifying chiefdoms as an institution apart from normal political affairs and, therefore, without the protections of the Constitution’s many safeguards (Supreme Court of Sierra Leone 2006).
Moving down the ladder of juridical power, the High Court of Justice case Union Trust Bank v. Abdul Latif Labi was a civil case filed by the bank to recover over Le 8.7 million (in currency of Leones)-including the amount accrued from an interest rate of 40% per year over a three-and-a-half-year period-from Labi. On April 20, 2005, the Honorable A. B. Rashid and the High Court of Justice ruled that Labi pay the full sum and required him to appear before the court periodically once the decision was made final to enforce the court order (Sierra Leone Law Court 2006). Although a somewhat unimportant court decision in terms of setting legal precedent, the case does reveal how little power the High Court exercises-especially since many other High Court cases accessible to the public deal with financial reparations as well-and how small the docket must be for those more powerful courts.
Below the superior court system, the subordinate court system functions as a micropolitical institution. Magistrates’ Courts, for example, act as local judicial mediators in both civil and criminal matters. Judicial power in Sierra Leone is most prevalent at this level, as magistrates act within the legal bounds of local customs and traditions but possess the legitimacy of a recognized judicial body that chiefdoms lack. The indictment of Philip Neville is one of the most intriguing cases found in a Magistrate’s Court. Editor for the Standard Times in Freetown, Sierra Leone, Neville was indicted on eight counts of Defamatory Libel for publications that falsely and maliciously defamed the plaintiff, Dr. Sylvia Blyden (Awareness Times 2007). Indicted on eight counts and punished by fine, Philip Neville appears rightfully guilty, proving the viability and effectiveness of Magistrates’ Courts.
Conclusion: A Paradigmatic Understanding
Assessing the strengths and weaknesses of lesser developed countries in adopting democratic norms is a task of immense difficulty. For African states, however, such a task transcends the rubrics of modern statecraft. Not only must one take into account the role of colonial institutions in present society, but one must also be conscious of the growing tensions between past cultural practices and modern standards of governance. At its core, this essay frames Sierra Leone’s British colonial legacy, civil strife, deteriorating economy, and political chaos in the context of its judicial institutions.
Discussion of the Biriwa Judgement, Union Bank v. Abdul Latif Labi, and Sylvia Blyden v. Philip Neville highlights two important themes concerning Sierra Leone’s judiciary. One theme is the Supreme Court’s preoccupation with original jurisdiction in the Biriwa Judgement, reflecting a judicial system now accountable to two distinct, legal ideologies: (1) state legality and (2) pre-state legality. Although the Court systematically determined its jurisdiction in the matter to be unwarranted and legally inappropriate, the decision still raises the question of how state apparatuses for governance are to address matters grounded in pre-state traditions. By ruling in favor of the respondents, the Court created a legally-binding precedent dividing Sierra Leonean jurisprudence into two realms and further muddling the characteristics of democracy for both the state itself and those neighbors that were formerly a part of British West Africa that face similar challenges.
A second theme of the judiciary is its susceptibility to external influences, especially those of the executive branch. In the words of Supreme Court Chief Justice Ade Renner-Thomas, even though parliament is the only political body that exercises power over the judiciary, “there are so many other subtle ways in which the executive could . . . seek to undermine the independence of individual judges” (Renner-Thomas 2005). These words appear true in two instances. In one instance, through dismissal of the Biriwa Judgment, the Supreme Court ruled against the authority of the Electoral Commission in deciding the legitimacy of elections. Section 33 of the National Constitution stipulates that the “Electoral Commission shall be responsible for the conduct and supervision of the registration of voters for, and of, all public elections and referenda” (The National Constitution of Sierra Leone 1991: Sec. 33). Yet, interpretation of the term “public” to encompass parliament’s intent, rather than the Constitution’s definition, leads one to question whether the Court deferred to executive influences and, with them, those individuals wrongfully elected in the process. As the Standard Times Press argues, “the Biriwa Chieftaincy election was a politically engineered election, for which the highest Court in the land has once again demonstrated its ostensible policy stance against the promulgation of a determination which would embarrass the respondent State Executive” (Sumah 2007).
With a judiciary operating under two jurisprudential philosophies and exercising power according to the whims of an overreaching executive, the backbone of a Sierra Leonean democracy appears too weak to succeed. In reference to James Madison’s theoretical insights on judicial federalism, Sierra Leone’s subordinate courts lack the efficiency and administrative capacity to enhance legal doctrine and build national unity. Chief Justice Renner-Thomas remarks that the “Judiciary has come under very intense scrutiny from members of the public at large as they cry out for justice in our new democratic dispensation.” He further concedes that the public’s current perception of the judiciary is that it is “one of the most corrupt institutions in the country unable to perform its constitutional role . . . because of lack of credibility and professionalism” (Renner-Thomas 2005). His words offer an authoritative view of the fissure between the subordinate and superior court systems that is detrimental to the federalist model.
The principles of judicial independence so integral to Montesquieu’s ideal democracy are threatened by executive forces at both superior and subordinate court levels. The political philosopher accurately likens an executive-judicial power to an oppressor whose actions are unfettered by public demands, unquestioned by legislative figures, and unchecked by judicial oversight. So long as ruling elites undermine the “interpreter” role of government, Sierra Leone will remain a nation peripheral to those states accustomed to civil society and democratic agendas.
Although Madison and Montesqueiu’s arguments highlight the deficiencies of state judiciaries, they do little to predict the future of Sierra Leone’s democracy. How are we to view its government in light of a disabled judicial branch? Are we justified in prematurely labeling the state a “failure,” knowing its current difficulties? Should we remain optimistic? How far away from attaining democratic standards is the nation?
To truly measure the impact of a failing judiciary on the state’s democratic development requires the adoption of a paradigm for reviewing political governance. According to Thomas Kuhn, two elements characterize a paradigm: first, if an idea or theory is “sufficiently unprecedented to attract an enduing group of adherents away from competing modes of scientific activity;” and second, if it is “sufficiently open-ended to leave all sorts of problems for the redefined group of practitioners to resolve” (Kuhn 1962:10). In this case, relevant paradigms for understanding political governance encompass the tenets of liberalism and authoritarianism. Sierra Leone, being neither democratic nor authoritarian, must be evaluated under a different rubric.
Under such constraints, the “transition paradigm” offers the most useful principles for analyzing Sierra Leone’s present state. Thomas Carothers, a renowned scholar on democratic studies, posits five assumptions of the transition paradigm: (1) countries moving away from authoritarian rule are moving toward democracy; (2) democratization unfolds in stages beginning with political liberalization and ending with the institutionalization of democratic norms; (3) elections must become a regular process; (4) underlying national conditions-such as economic status, political history, and ethnic makeup-will not affect the transition process; and (5) those states being fashioned into democracies must be fully-functioning and politically capable before the transition period (Carothers 2002: 6-9). These assumptions not only characterize states in-between liberal and authoritarian regimes, but they also satisfy the conditions necessary for nations pursuing democratic futures.
According to these assumptions, Sierra Leone appears an unlikely candidate for becoming a premier African democracy. First, as the second assumption suggests, three components shape democratization: opening, breakthrough, and consolidation. While the former two components were satisfied through the breakdown of dictatorial rule and establishment of liberal institutions, the latter remains incomplete so long as judicial corruption and civil disorder are prevalent. Second, the crux of the fifth assumption-that states must be politically coherent and stable prior to democratization-is clearly absent from the West African nation’s political landscape. In actuality, democratization has gone hand-in-hand with the state’s development since independence and decolonization in 1961. Moreover, democratic transition, although inclusive of “institutional redesign,” assumes that states have already implemented parliamentary and judicial reforms and that the adoption of democratic structures involves only marginal institutional modifications (Carothers 2002:7-8). With Sierra Leone’s judiciary, legally and jurisprudentially, still in its infancy, reforms providing greater autonomy against executive influences are unlikely to happen soon.
Although it is a concession proponents of the “Third Wave of Democracy” may be unwilling to make, Sierra Leone’s judiciary seems ill-equipped to handle the rigors of a democratically-structured, federalist system. This essay, however, by likening judicial oversight to democratization, does provide insight as to how a democratic future for the nation is attainable. Initially, the nation’s legacy as a colonial state must be allowed to grow into its present democratic institutions. As the Biriwa Judgement demonstrates, Sierra Leone’s status as a very new nation-state presents problems when attempting to reconcile traditional norms with an alien Westphalian system. A gradual amalgamation of the two facets, old and new, must occur before reforms can be undertaken toward democratic change.
Finally, with the causes of state failure so diverse and interconnected in nature, a framework for administering justice to the population ought to take precedence over other state priorities. Clearly, a stable judiciary creates the conditions necessary for national unity, political coherence, and state security. Regardless of executive tyranny or legislative complacency, the judiciary provides the public with a solid foundation upon which to build civil society. Whether a national interest or a humanitarian endeavor, investment in Sierra Leone’s judiciary is requisite to any democratic future the international community envisions for one of West Africa’s most remarkable, complex, and troubled nations.
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About the Authors
Abdul Karim Bangura is professor of Research Methodology and Political Science at Howard University and a researcher-in-residence at the Center for Global Peace in the School of International Service at American University in Washington, DC. He holds a PhD in Political Science, a PhD in Development Economics, a PhD in Linguistics, a PhD in Computer Science, and a PhD in Mathematics. He is the author of 58 books and more than 450 scholarly articles. The winner of numerous teaching and other scholarly and community service awards, Bangura is also fluent in about a dozen African languages, six European languages, and studying to strengthen his fluency in Arabic and Hebrew.
Sarath K. Ganji is Bangura’s research assistant and a student in the Edmund A. Walsh School of Foreign Service at Georgetown University. He is the coauthor of a chapter in a forthcoming book on the political systems of majority Muslim states being edited by Bangura.
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