On Friday 31st May 2019, the High Court of Sierra Leone presided over by Justices Komba Kamanda and Alhaji Momo Jah Stevens delivered its decisions on 16 cases involving APC members of parliament.
These decisions raise a number of issues which needs further consideration and review.
NEW ELECTIONS ARE MANDATORY
Section 146(4) of the Public Elections Act provides that “If the election is declared void, another election shall be held.” The term shall is used to indicate that something must be done, as opposed to the term may which simply means that something is discretionary. The word ‘shall’ is an imperative command. “In common, or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command, and one which has always, or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears; but the context ought to be very strongly persuasive before it is softened into a mere permission,” etc.[People v. O’Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)]
In EP18/2018 Alieu Ibrahim Kamara vs Mohamed Sheriff Kassim-Carew and others, Hon Justice Komba Kamanda made the following orders:
“That the election of Mohamed Sheriff Kasim-Carew of the All People’s Congress be declared null and void.
That Mohamed Sheriff Kasim-Carew of the All People’s Congress was not duly elected or returned as Member of Parliament for Constituency 122.
That Alieu Ibrahim Kamara the Petitioner is declared winner of the parliamentary elections for constituency 112 Western Urban District aforesaid.
Each party to bear its costs.” (Quoted verbatim)
In all the decisions read out in Court, the learned Justice Kamanda did not explain the reasons why the provisions of section 146 (4) of the Public Elections Act 2012 was not applicable.
Where an election is declared null and void or void, the provisions of sub-section 4 of section 146 of the Public Elections Act should must apply. It is mandatory and as of right. A new election should be held. Case law cannot override a statutory provision. Judges interpret laws and do not make them. It is not up to the Judiciary to determine who represents the people of Sierra Leone in Parliament. That decision is vested in the people by the Constitution of Sierra Leone.
It is a usurpation of the rights of the voters to cancel the votes of the majority of voters and substitute runners up without having another elections.
As a result of an error, Justice Kamanda declared Alieu Ibrahim Kamara winner of constituency 112 instead of constituency 122. In the results published by the National Electoral Commission for constituency 122, Mohamed Sheriff Kassim-Carew polled 17,615 votes representing 55.68% of the votes cast. Alieu Kamara polled 9,847 votes representing 31.12% of votes cast. As a consequence of the said decision, the votes of 17,615 constituents of Constituency 122 have in effect been cancelled and made meaningless.
New’ Members of Parliament Illegally take the oath as a member of Parliament
In its release, the Sierra Leone Bar Association notes that section 146 provides a right of appeal to aggrieved parties to the Court of Appeal ‘within 14 days’ after a decision of the High Court; that the seat shall remain vacant until the determination of the appeal or the appeal is abandoned and where the Court of appeal determines that the election is void, then the Speaker of Parliament shall publish in the Gazette a notification of the same.
Sadly, even before the time allowed for appeal was exhausted and without any publication of the required notification in the Gazette, the Speaker of Parliament in breach of the provisions of section 146 Public Elections Act proceeded to administer the oath of office to the purported “newly elected” members of parliament as required by section 83 of the Constitution of Sierra Leone 1991.
The “new” members of parliament were sworn in on the same day of the judgement. The time allowed for appeal had not even been exhausted. No publication was done in the Gazette. This was in clear breach of section 146 of the Public Elections Act 2012.
THE ANSU LANSANA CASE DISTINGUISHED
On page 12 of _EP7/2018 M No 1 Abdul Sulaiman Marray-Conteh vs Osman Abdal Timbo and others_, Hon Justice Komba Kamanda stated inter alia “I have also averted my mind to the case of _Hon. Sam May Lamin Macarthy and Ansu Lansana and Others C.C. 267/12_ in which the High Court set a precedent that in situations where a candidate is in breach of any law or orders of the court there shall be no need for a rerun of that election but the candidate who pulled the second highest vote should be declared the winner. I am not bound by the said ruling or judgment but however due to the principles of binding precedent I shall adopt the said in this case.”
The decisions in the _Hon. Sam May Lamin Macarthy and Ansu Lansana and Others C.C. 267/12_ was a grave miscarriage of justice. The decisions of one High Court is not binding on another High court. There was no obligation or duty to follow what in my humble view was a badly decided case.
In its statement dated 31st May 2019, the Renaissance Movement stated that it “has not found any legal justification, either statutory or a judicial precedent, for such a strange declaration by the High Court of Sierra Leone apart from the highly controversial decision by Justice A. Showers JA, in 2012 in the Hon. Sam May Lamin Macarthy V. Ansu B Lansana Petition – which the movement believes was predicated on no precedent and had no support in the electoral laws of Sierra Leone. The movement believes that where such a situation arises, the proper position ought to be that a fresh election takes place in the affected constituencies and not an ad hoc assumption of office by judicial proclamation, thereby leaving the constituents with no voice in the matter. The Movement is weary of what seems to be the egregious abuse of its judicial powers and privileges by the Judiciary; that relies on such wrong precedents, with possibility of stoking the flames of discontent amongst aggrieved citizens and opposition groups.”
The facts and circumstances of that case are materially different from the current cases and even if it was binding could not be precedent for what happened.
Ansu Lansana case was not an election petition case. It started long before the election. It was fight between two candidates within the SLPP party. An injunction was granted by the Court before the elections. NEC defied the court and proceeded to ignore the High Court injunctions. No election was ever declared by NEC for constituency 005.
Ansu Lansana was never declared the election winner. He never took the oath of office. He was never a parliamentarian even for a day. The circumstances were completely different.
SELECTIVE ASSIGNMENT OF COURT CASES
Over a year after the elections not all election petition cases have been heard. It has been alleged that the Honourable Chief Justice and his immediate predecessor have primarily assigned cases of one political party and/or have failed to ensure that the necessary steps are taken under the Public Elections Act to ensure that petitions filed by other political parties are heard.
The selective assignment of cases for hearing by the Honourable Chief Justice should be roundly condemned.
The right to have one’s case heard is a fundamental human right. The Chief Justice is bound by law to assign all matters filed regardless of the parties involved.
The Honourable Chief Justice has no discretion in choosing which matters should be heard and which matters should be confined to the archives.
DISPROPORTIONATE USE OF FORCE BY THE POLICE
Further, HRCSL ‘observed that the police fired rubber bullets and teargas directly into the APC Headquarters while supporters were inside the building. HRCSL also observed that APC supporters barricaded roads, burnt tyres around the APC party office and pelted stones at police officers.’ They further reminded ‘the SLP of their responsibility to protect lives and property and to the provisions in the UN Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officials. HRCSL therefore calls on the SLP to apply a rights-based approach to policing.’
In a report entitled ‘A Force for Good? Restrictions on peaceful assembly and impunity for excessive use of force by the Sierra Leone police’ published by Amnesty International last year, Solomon Sogbandi, Director of Amnesty International Sierra Leone stated that “The authorities must ensure and promote the right of individuals to peacefully assemble without fear for their safety. Sierra Leone’s new government has a key opportunity to implement reforms that would help the police manage demonstrations effectively and safely, restore the public’s trust in the security forces and live up to the police’s own motto – A Force for Good.”
The African Commission on Human and Peoples’ Rights Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa (African Commission Guidelines), issued in 2017 underline that peaceful assembly is a right and not a privilege. The responsibility of African states and their law enforcement agencies and officials is to facilitate peaceful assemblies, and not to repress them. The Guidelines clearly state that, “Lack of prior notification of an assembly does not render an assembly unlawful and should not form the sole basis of a decision by law enforcement officials to disperse an assembly.” The Guidelines state that:
‘9.1. Recognizing the important expressive role that spontaneous assembly can play in a democracy, law enforcement agencies must have in place processes and procedures to ensure the facilitation of spontaneous assemblies, including in relation to known or scheduled political or social events, commemorative days, and in anticipation of decisions made by courts, parliaments and other state authorities. Lack of prior notification of an assembly does not render an assembly unlawful and should not form the sole basis of a decision by law enforcement officials to disperse an assembly.
9.2. As soon as practicable after knowledge is gained of an intended or actual assembly, law enforcement officials should take all reasonable steps to identify and communicate with assembly organizers and/or participants to prepare the facilitation of the assembly in accordance with these Guidelines.”
*The Sierra Leone Police must be made to account for their highhandedness.*
In its New Direction Manifesto, the SLPP opined that “the biggest challenge confronting the Judiciary today is the growing erosion of public confidence. Neither are the Judges of the superior courts immune from public chastisement and this is occasionally engendered by their suspension from office without due process and their replacement by colleagues with known sympathies for the APC.
The present status of the judicial system therefore continues to be a huge source of grave concern for the maintenance of good governance and national stability.”
The New Direction government undertook that it “will as a matter of utmost urgency undertake an overhaul of the judiciary and the justice delivery system in the country with a view to restoring public confidence in its independence and impartiality and make justice accessible and available for all.”
Sadly, based on the evidence thus far, the new government has failed to keep to its promise. The situation has worsened under its tenure.