The case for the enfranchisement of Sierra Leoneans abroad

By  | 8 September 2010 at 02:14 | 1487 views

This is not a policy statement. It is however an invitation. It calls on fellow Sierra Leoneans to engage in constructive dialogue with the government of President Ernest Bai Koroma to consider the possibility of extending the franchise to Sierra Leoneans living, working or studying abroad. As will be discussed further below, this opinion will highlight some benefits as well as logistical requirements of such a government policy.

In 2012, the electorates in Sierra Leone will exercise their right to participate in presidential and parliamentary elections. The 2012 elections will be the fourth multiparty general elections after the collapse of the one-party state, caused by the military junta overthrow of President Joseph Saidu Momoh’s All Peoples Congress (APC) government on 29 April 1992. Thereafter, the first multiparty general elections were held in 1996 which were followed by those held in 2002 and 2007.

Sierra Leone is building up a credible reputation in Sub-Saharan Africa and even in the developing world as a country capable of organising successful and largely violence-free public elections. This is indeed an enviable achievement which all Sierra Leoneans at home and abroad should be very proud of.

In parliamentary elections, Sierra Leone is divided into numerous constituencies but the whole of Sierra Leone is one constituency for the presidential elections. In all of this, there is one more constituency of potential Sierra Leonean voters who are yet to participate directly in any public election or referendum in Sierra Leone. This is the constituency of Sierra Leoneans living, studying or working abroad.

There is evidence that Sierra Leoneans abroad have been participating indirectly in elections in Sierra Leone through financial donations to political parties in Sierra Leone and holding individual membership of those political parties. Sierra Leoneans abroad also participate indirectly in Sierra Leone’s elections by hosting chapters and branches of their respective political parties in their countries of residence. These forms of indirect participation do not necessarily provide a cast-iron justification to extend the franchise to Sierra Leoneans abroad. However, these undoubtedly indicate that Sierra Leoneans abroad are increasing demonstrating interest in the political development of their county. This is positive. This is something the government of Sierra Leone should harness for the betterment of Sierra Leone.

President Ernest Bai Koroma’s government would like to know that the Constitution of Sierra Leone contains provisions that could provide justification to extend the franchise to Sierra Leoneans abroad or to enact legislation to achieve this objective. Section 31 of Act No. 6 of 1991 (the Constitution of Sierra Leone 1991) provides as follows: “Every citizen of Sierra Leone being eighteen years of age and above and of sound mind shall have the right to vote, and accordingly shall be entitled to be registered as a voter for the purposes of public elections and referenda.” This is the only section in the Constitution of Sierra Leone that provides every Sierra Leonean ‘the right to vote’ in public elections and referenda. It is short but clear in its requirements. Therefore the government of Sierra Leone will be acting lawfully and constitutionally to enable any Sierra Leonean who meets the requirements of Section 31 to exercise her/his franchise.

There may currently not be a legal instrument enacted under the authority of the Constitution of Sierra Leone that expressly provides for the right of Sierra Leoneans abroad to vote in public elections held in Sierra Leone. As far as this writer is aware, there is equally no Sierra Leonean legal instrument that expressly outlaws overseas voting for elections held in Sierra Leone. In the circumstances, Section 31 serves as a fundamental enabling provision that empowers the government of Sierra Leone to extend the franchise to its citizens abroad.

Section 31 does not specify any geographic or territorial limit to its application. It is therefore open to the government of Sierra Leone to use this provision to enable its citizens abroad to take part in public elections and referenda in Sierra Leone. Section 4(1) of the Electoral Laws Act 2002 (Supplement to the Sierra Leone Gazette Vol. CXXXIII, No. 6 dated 7th February 2002) however contains geographic limitation to the exercise of the right to vote. A qualifying person must be ‘ordinarily resident in a ward’ to be registered as an elector. Nonetheless, Section 4(3) of the Electoral Laws Act 2002 is considered as providing express powers to the Electoral Commission of Sierra Leone to register electors in other places outside wards: “… the Electoral Commission may, by order made by statutory instrument, specify places, other than the areas referred to in those subsections, for the purposes of registration, voting or transfer of the votes of such electors as may be specified in such order.” This provision is therefore sufficient to enable Sierra Leoneans abroad to vote in public elections or at least the presidential elections.

There is already a precedent when a class of Sierra Leoneans outside Sierra Leone was given the right to vote. Section 6 of the Electoral Laws Act 2002 is therefore important in informing all stakeholders about the mechanisms used to extend the votes to Sierra Leoneans outside Sierra Leone: "6. (1) Without prejudice to section 4, the Electoral Commission may— [a.] register outside the country any Sierra Leonean citizen registered by the approved authority as a refugee either in the Republic of Guinea, Liberia or any other lawfully established Refugee Camp during the period of the rebel war commencing 1991 and ending 2002 who— (i.) is qualified to be registered as an elector under section 31 of the Constitution; (ii.) presents himself to the Registration Officer or field registrar; (iii.) possesses the appropriate identification document issued by the approved authority; or (iv.) is on the register or official list of the approved authority; [b.] make provision for the registration outside the country of any non-resident citizens of Sierra Leone who may wish to be registered as electors. This is an invaluable precedent to build upon to extend the franchise to all qualifying Sierra Leoneans abroad.

Sierra Leone is not going to be the first country to extend the right to vote to its citizens abroad. There is a long list of countries that allow its citizens abroad to vote in their elections. These countries include the United Kingdom, the United States of America, Canada, New Zealand, South Africa, etc. South Africa is an important case to study. The right to vote for its citizens abroad was granted (declared) following a constitutional / legal challenge made on 26 January 2009 by Willem Stephanus Richter, a South African teacher working in the United Kingdom. Both the North Gauteng High Court in Pretoria (judgement on 9 February 2009) and the Constitutional Court of South Africa (judgment on 12 March 2009) considered this matter. The High Court ordered the Electoral Commission to do all things necessary to ensure that all categories of citizens absent from the Republic of South Africa who are registered as voters will be entitled in terms of the Electoral Act, to vote by means of special votes.

The government of Sierra Leone would like to consider the views expressed by the courts in South Africa on the issue of logistical difficulties about voting abroad: ‘The High Court noted that the only explanation tendered on behalf of the respondents to justify the provisions related to the need to protect the integrity of the polling process and the financial and logistical strains that permitting a broader class of absentee voters to vote would entail. However, the Court reasoned that given that those on government service would be permitted to vote at embassies, high commissions and consulates, the only additional cost would be the ferrying of additional ballot papers to and from these places. This, the Court decided, would not constitute an undue burden on the state’s resources. The Court therefore concluded that the provisions constituted unfair discrimination and had to be declared inconsistent with the Constitution.” (Willem Stephanus Richter v The Minister of Home Affairs, The Electoral Commission and The Minister of Foreign Affairs, Case CCT 09/09 [2009] ZACC 3, paragraph 44).

Sierra Leone has considered and adopted other countries’ institutions and models of development. For example, Sierra Leone’s Anti-Corruption Commission was established in year 2000 and it is based on the models found in Botswana and Hong Kong. On this point, see http://www.defenceagainstcorruption.org/publications/all-publications/116-defence-contracts-and-anti-corruption-reforms-the-reality-in-sierra-leone/download . There is therefore no justifiable criticism if the government of Sierra Leone closely studies or adopts the electoral model used in South Africa to extend the franchise to its citizens abroad.

There are benefits to Sierra Leone and its citizens if the franchise is extended abroad. The logistical difficulties and the likelihood of unscrupulous individuals exploiting the extended franchise should not be reasons to fail to consider this as a viable and achievable policy. Even in Sierra Leone, there are always logistical difficulties and there are those who attempt to exploit the electoral process. There are mechanisms to guard and protect against unscrupulous electoral thieves and a study of the South African (or any other) model should consider such mechanisms.

For now, let us briefly consider some benefits of the extended overseas franchise. Sierra Leone has clearly made political progress and has had three successful presidential and parliamentary elections. The elections in 2012 will be the fourth. The expansion of the right to vote to Sierra Leoneans abroad is therefore a necessary consequence of our current democratic and political development. The expansion of the vote will also mean that overseas-based Sierra Leoneans will be given the opportunity to actively and directly participate in choosing the country’s political leaders (especially the president) for the first time. With this form of involvement, it is possible that a stronger bond will be created or re-established between those Sierra Leoneans who hitherto the expansion of the franchise had little or no contact with the country or its embassies / high commissions in their countries of residence. The expanded franchise will also enhance a sense of national pride and patriotism in every Sierra Leonean having the right to vote abroad.

If the current framework on voter registration in Sierra Leone is linked to local taxation or other forms of taxation, the extended franchise may also want to consider this as part of its requirements. If so, it is possible for the tax authorities in Sierra Leone to raise or collect funds as a consequence of the extended franchise. However, caution must be exercised to avoid double taxation on the same income, profit, capital gain, inheritance and other taxable sources of Sierra Leoneans abroad who already pay such taxes. As a developing country, Sierra Leone may not have many (bilateral) tax treaties with other countries and this may affect its ability to raise such fund without falling foul of double taxation. (For more information on this point, see Christians, Allison (April 2005). "Tax Treaties for Investment and Aid to Sub-Saharan Africa: A Case Study", Northwestern Public Law Research Paper No. 05-10; Northwestern Law & Econ Research Paper No. 05-15 available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=705541 . In any case, the link between taxation and the right to vote should be considered carefully.

This is my case for the government of Sierra Leone to consider extending the franchise to its citizens living, working and studying oversea. A rejoinder will be most welcome to this discourse.

Editor’s note: Patrick Hassan-Morlai is a part-time law lecturer at the University of East London.

Gibril Koroma
Phone: 604-308-6087