Vice President Solomon Berewa Reacts to PMDC Petition

"That since the only requirement for being Leader of a Political Party is to be “qualified to be elected as a Member of Parliament” I can properly hold the office of Leader of the SLPP and hold the office of Vice President at the same time."

SIERRA LEONE GOVERNMENT
OFFICE OF THE VICE PRESIDENT
The Lodge,
Spur Road,
FREETOWN.
28th June, 2006.

The Chairman,
Political Parties Registration Commission,
Roxy Building,
Walpole Street,
FREETOWN.
Dear Chairman,

RE: PETITION OF PEOPLE’S MOVEMENT FOR DEMOCRATIC CHANGE
AGAINST ELIGIBILITY OF SOLOMON EKUMA BEREWA
AS LEADER OF THE SIERRA LEONE PEOPLE’S PARTY WHILE
HOLDING OFFICE AS VICE-PRESIDENT OF SIERRA LEONE

I write in response to allegations contained in a purported petition dated the 14th day of June, 2006, and addressed to you by Ansu B. Lansana on behalf of the People’s Movement for Democratic Change (PMDC).

2. In that petition it is sought to have determined whether in the light of the provisions of section 14 (1) of the Political Parties Act 2002 (Act No. 3 of 2002) and sections 35 (4) and 76 (1) (h) of the Constitution of Sierra Leone 1991 (Act No. 6 of 1991), I, Solomon E. Berewa, as Vice President of the Republic of Sierra Leone and Leader of the Sierra Leone People’s Party (SLPP) am not contravening the aforementioned provisions.

3. It is most unfortunate that notwithstanding Sierra Leone’s proud march into sustainable democratic governance, there are still those who are so afraid of equal, fair and transparent competition for the votes of the electorate, that they would resort to optimistic and gratuitous misinterpretation and constructions of our constitutional and statutory provisions, under a self-serving ploy to eliminate potential competition before facing the electorate, even to the point of distorting the constitutional and statutory provisions.

4. I wish to state here that although the purpose of the Constitution of Sierra Leone, 1991 (Act No. 6 of 1991) (hereinafter called “the Constitution”), is to organize a system of government for the country, it seeks to do so as “the supreme law of Sierra Leone” (See section 171 (15) of the Constitution. As all Lawyers know or ought to know, a written law, the Constitution, must be read and construed in accordance with the rules governing the interpretation or construction of statutes, so that any interpretation or meaning accorded it which is contrary to those rules can be rejected as being legally incorrect and therefore unacceptable.

5. For instance, one of the most durable and time-honoured canons or rules of statutory construction is the rule or exposition ex visceribus actus or “construction within the four corners of the Act”. As explained by Lord Edward Coke, the greatest of English Judges, in a 16th century case -

“The office of a good expositor of an Act of Parliament is to make construction on all parts together and not of one part only by itself ...” (See the Lincoln College Case (1595) 3 Co. Rep. 58b; cited in Craies on Statute Law, P. 98)”.

Thus, the interpretation of section 76 (1) of the Constitution without regard to other sections of the Constitution, particularly to section 75, which according to that very section is “subject to the provision of section 76” can be said to be in breach of the rule in the Lincoln College Case and is therefore to be rejected as legally incorrect.

What the petitioner has done is to select only a paragraph in the Constitution, that is, section 76 (1) (h) and to rely on this paragraph alone, to construe or interpret section 35 (4) of the Constitution as well as section 14 (1) of the Political Parties Act, 2002. He has ignored other relevant provisions of the Constitution, which, if considered, would render the Petitioner’s construction of section 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002 grossly and wholly erroneous and repugnant to the letter, intentment and spirit of the Constitution. It is the failure of the petitioner to apply the ex visceribus actus rule of statutory construction or interpretation that led him to the erroneous conclusion that as Vice President I am not qualified to be elected as Member of Parliament and therefore not qualified to become Leader of the SLPP, a Political Party.

He has, for instance, ignored or failed to consider other relevant and material provisions which he needed to consider in order to arrive at the correct meaning of the expression “.......qualified to be elected as a Member of Parliament” as used in the case of a Leader of a Political Party in sections 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002: Some of those relevant and material provisions in the Constitution are as follows:

(i) Section 75 which states when a person is “qualified to be elected as a Member of Parliament”.

(ii) Sections 46 (2) which prohibits a Member of Parliament from holding the office of President .

(iii) Section 56 (1) - the proviso thereto, which prohibits a Minister or Deputy Minister from holding the office of a Member of Parliament, but by section 56 (2) (a) he has to be “qualified to be elected as Member of Parliament” before he can be qualified to be appointed a Minister or Deputy Minister.
The proviso to section 56 (1) and section 56 (2) (a) are typical illustrations of a situation where the holder of an office, that is, Minister or Deputy Minister, is disqualified or excluded from holding the office of a Member of Parliament but he is “qualified to be elected as a Member of Parliament”, in the same way that a Vice President is by section 54 and section 41 (d) “qualified to be elected as a Member of Parliament: but by section 76 (1) (h) he is disqualified or excluded from being elected as a Member of Parliament. In this way the doctrine of the separation of powers is reinforced.

(iv) Section 46 (1) which provides for a two-term Presidency, and which even allows an incumbent President to succeed himself.

(iv) Section 32 (4) which requires a Member of the Electoral Commission to be “qualified to be elected as a Member of Parliament”, as a condition for his appointment to that office.

The requirement or qualification to hold any of the offices of a Member of the Electoral Commission (section 32 (4), a Minister or Deputy Minister (section 56 (2) (a); the President or Vice President (section 41 (d) and section 54 respectively) is the same expression, namely “.....qualified to be elected as a Member of Parliament.” It is the same requirement or qualification under section 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002 for the holder of the office of Leader of a Political Party. It is submitted that the same meaning should therefore be given to that same expression wherever it appears. It is an elementary rule of statutory interpretation that where the same word or expression is used in different parts of the same statute, the intention is that the same meaning or construction should be assigned to that word or expression wherever it appears in that statute.

Thus just as the meaning or application of the expression “......qualified to be elected as a Member of Parliament” is in no way different, limited or modified in the case of the other political offices created by the Constitution, so too it is not different, limited or modified when it applies to “Leader” of a Political Party referred to in section 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002. Thus my being “qualified to be elected as a Member of Parliament” also qualifies me for holding the office of Leader of a Political Party.

Quite apart from the ex visceribus or the “four corners” rule, common sense would also demand that provisions of a statute that are so closely connected with each other, as sections 75 and 76 of the Constitution are, must be read and interpreted together in the light of such connection. But strangely enough, not a single word is said by the petitioner about section 75 of the Constitution which, even more importantly, also contains the very definition of a person “qualified for election as such a Member of Parliament” which is at the bottom of his petition. That section is as follows:-

“75 Subject to the provisions of section 76, any person who -
(a) is a citizen of Sierra Leone (otherwise than by naturalization); and
(b) has attained the age of twenty-one years; and
( c) is an elector whose name is on the register of electors under the Electoral Laws Act, 2002 (Act No. 2 of 2002); and
(d) is able to speak and read the English Language with a degree of proficiency sufficient to enable him to take an active part in the proceedings of Parliament,

shall be qualified for election as such a Member of Parliament....”

6. It is to be noted that because the conditions stated in section 75 are conjunctive, the failure to meet the requirement of just any one of them renders the person concerned “not qualified for election as a Member of Parliament”. It is therefore not section 76 (1) (h) which
determines who is not qualified for election as a Member of Parliament but rather the failure to meet all the conditions specified in section 75. Thus the person referred to in section 35 as
(“not qualified to be elected as a Member of Parliament”) is not determined by section 76 (1) (h) as contended by the petitioner but rather by section 75, that is by such person being -
(a) not a citizen by birth; or
(b) not 21 years of age; or
(c) not on the electoral register, or
(d) not able to speak, read and understand the English Language proficiently.

7. Indeed, in the light of the foregoing any person who at any time has the attributes in section 75 can at that time hold or stand for election to any office which requires that the holder must be “qualified for election as a Member of Parliament”. Some of those offices include the following:

(i) Leader of a Political Party under section 35 (4) of the Constitution; and section 14 (1) of the Political Parties Act 2002;
(ii) President under section 41 (d) of the Constitution;
(iii) Vice-President under section 54 (2) (b) of the Constitution as read with section 41 (d) of the Constitution;
(iv) Minister or Deputy Minister under section 56 (2) of the Constitution;
(v) Member of the Electoral Commission under section 32 (4) of the Constitution;
(vi) Speaker of parliament under section 79 (1) of the Constitution; and
(vii) Member of Parliament under section 75 of the Constitution

Accordingly, section 75 is to be understood essentially as a general or abstract qualification applicable to persons seeking not only to be elected to Parliament but also to hold any of the other political offices mentioned in sub-paragraphs (i) to (vii) above, including the Vice-President as Leader of the SLPP and as Vice President at the same time.

Thus, reading sections 75 and 76 of the Constitution together, as they should, will show that, far from being a general disqualification provision, section 76 is really limited to showing the particular occasions or situations in which the general definition of who is qualified for election as a Member of Parliament as stated in section 75, would need to be modified or qualified by section 76 to which section 75 is subject. A typical example of how section 76 (1) is intended to operate to modify or qualify section 75 of the Constitution can be found in paragraph (f) of that section. In that regard, far from that paragraph saying that a Paramount Chief is generally disqualified from election as a Member of Parliament, which will be inconsistent with section 74 (1) (a) of the Constitution, what section 76 (1) (f) is saying is to disqualify or exclude Paramount Chiefs only from standing for election to Parliament in a general election of Ordinary Members of Parliament thereby limiting them to election to Parliament by ChiefdomCouncillors as provided in Part VII of the Electoral Laws Act, 2002 (Act No. 2 of 2002).

8. Similarly, in the case of the President, Vice-President, a Minister or a Deputy Minister, far from section 76 (1) (h) saying that they are each generally disqualified from election as a Member of Parliament, which will be inconsistent with section 75 of the Constitution, as well as a number of other provisions of the Constitution, such as section 41 (d) as read with section 46, what that paragraph is saying is to state only the particular occasion or situation in which they will each be so disqualified, namely only when they actually seek to be elected to Parliament, while remaining President, Vice-President, Minister or Deputy Minister.
They are in that case excluded or disqualified from the membership of Parliament because of the principle or doctrine of the separation of powers upon which the Constitution is based and which operates to prohibit the executive and legislative powers of the State from being vested in the same authority or arm of the Government.

In other words section 76 (1) (h) only operates to disqualify the President and Vice-President among other members of the Executive, from seeking membership of Parliament while in office as such, and not otherwise.
In particular, it does not disqualify the President or Vice President from holding the office of Leader of a Political Party referred to in section 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002.
Section 75 being subject to section 76 does not mean that the former section is rendered nugatory by the latter.

9. Other examples of the operation of the principle or doctrine of separation of powers under the Constitution include the following:-

(a) section 46 (2) of the Constitution which requires a Member of Parliament to vacate his seat upon election as President;
(b) the proviso to section 56 (1) of the Constitution which prohibits the appointment of a Member of Parliament as a Minister or Deputy Minister which, by implication, requires the Member of Parliament to vacate his seat upon appointment as a Minister or Deputy Minister.

In the light of paragraphs (a) and (b) above, it is submitted that the election of the President and Vice-President to Parliament were it to be allowed would be an exercise in futility, and preventing such a futile exercise would appear to be the only reason for having such election prohibited by section 76 (1) (h) of the Constitution. Accordingly, section 76 (l) (h) of the Constitution does not apply to a President or a Vice President who is not seeking election to Parliament.

10. Finally, it is submitted that, if the interpretation put on section 76 (1) (h) by the petitioner is correct, then the most undesirable and unacceptable consequences will follow. It will make nonsense of sections 43 (a) and 46 (1) both of the Constitution under which an incumbent President can seek re-election as a person qualified to be elected as a member of Parliament by virtue of section 41 (d) as read with section 75, also of the Constitution.

In other words, if we were to accept the petitioner’s interpretation that a President, Vice-President, Minister or Deputy Minster are each no longer qualified for election as a Member of Parliament while holding office as such, then, for instance, the president who is by virtue of section 46 (1) and section 43 entitled to seek re-election within the last 4 months of his first term, will no longer be able to do so.

In that case the Presidency of Sierra Leone will be reduced to a one term Presidency. And, indeed, the re-election of the present President in 2002 will no longer be valid, a point which no one can seriously maintain in this country. The Constitution certainly could not have intended or contemplated this situation which will be inconsistent and directly negating section 46 (1). Accordingly, the petition must for this additional reason be rejected as being founded upon a wrong interpretation of section 76 (1) (h) of the Constitution.

11. In the light of all the foregoing, the following are submitted in reply to the petitioner:

(a) That section 76 (l) (h) of the Constitution is not applicable to the Vice-President who is in fact qualified for election as a Member of Parliament under section 75 of the Constitution, as long as he does not seek election to Parliament. In this regard it is important to note again that section 76 (l) (h) is not saying simpliciter that a President or Vice-President is disqualified for election as a Member of Parliament, which will be inconsistent with section 75 as well as section 41 (d) as read with section 54 both of the Constitution, but that they are each disqualified if “he is for the time being” President or Vice-President, that is to say, consistently with section 75, only if they go beyond mere qualification for election into actually seeking election to Parliament.

(b) That as Vice President I am, by virtue of section 54 read with section 41 (d) and by definition “qualified to be elected as a Member of Parliament” under section 75 of the Constitution. I was so qualified when I was elected Leader of the SLPP on the 4th day of September 2005.

(c) That since the only requirement for being Leader of a Political Party is to be “qualified to be elected as a Member of Parliament” I can properly hold the office of Leader of the SLPP and hold the office of Vice President at the same time.

(d) That the Sierra Leone People’s Party in electing me,. Solomon Ekuma Berewa as Leader of that Party did not contravene any provision of the Constitution or the Political Parties Act, 2002 (Act No. 3 of 2002) to warrant the cancellation of the registration of that Party.

( e) That the petition of the petitioner should be dismissed as based on an erroneous interpretation of section 76 (l) (h) of the Constitution or as lacking any merit whatsoever or both.

12. It will be noticed that I have given exhaustive response to the referred petition. I have even repeated and restated elementary legal and constitutional principles which every lawyer should know. I have done so in order to explode the error manifest in that petition and to put an end to the much trumpeted issue of my not being qualified to hold the office of Leader of the SLPP, a Political Party. This issue is at the moment the main political campaign issue of the PMDC as it is the main item for discussion at all its public meetings or rallies. This is an undesirable approach to a matter of which your Commission is seized, an approach could have been adopted only for the purpose of misleading the electorate.

13. I have taken this step to indicate that we must always respect our Constitution and should not attempt to distort it or any of its provisions by misinterpreting or misrepresenting its provisions in the manner the Petitioner has done in order to gain undeserved political advantage. We must give democracy a chance, and the people an opportunity to make a real choice by giving accurate and correct information to the electorate so that they would be able to make a a proper decision at elections. After all, the basis of democracy is the ability to make a choice, to exercise an option. A choice made on the basis of inaccuracies, misinterpretation or misrepresentation of law or fact is no real choice.

14. Finally, I loathe to write to your Commission on a matter which is within the competence of that Commission and copy my letter to all and sundry, including journalists, diplomats and civil society. Please allow me to indulge in this same unsavoury act of apparent impropriety in response to what the Petitioner has done. If I fail to circulate my response to all the addressees to whom he circulated the so-called petition, the wrong impression may be created especially among those untutored in the law or the Constitution that there is in fact some merit in the petition. That is his real, true and only intention. I wish to remove that impression by enabling the same addressees to know from my response that there is no merit whatsoever in that petition.

Respectfully submitted.

Solomon E. Berewa

VICE PRESIDENT

REPUBLIC OF SIERRA LEONE AND LEADER OF THE SIERRA LEONE PEOPLE’S PARTY (SLPP)

c.c.

1. The Chairman, National Electoral Commission

2. The Diplomatic Corps

3. The Chairman, Sierra Leone people’s Party (SLPP)

4. Mr. Ansu B. Lansana, Interim Secretary-General (PMDC)

5. The All Political Parties Association

6. The Chairman, All people’s Congress (APC)

7. The Chairman, People’s Democratic party (PDP)