By Alieu Sahid Tonkara
I speak in the lone voice of a humble and patriotic Sierra Leonean, expressing my opinion on the constitutional review process that is being carried out by the Constitutional Review Committee (CRC) in the country. The interest to contribute to this process is generated in me by jingles aired on FM 103.5 Star Radio and Radio Democracy FM 98.1.
The people of Sierra Leone will agree with me that any modern sovereign state demands a constitution that defines the fundamental rights and responsibilities of the citizenry, as well as regulates the functions of and relationship among the three arms of government - the legislature, executive and judiciary.
This constitution, being the supreme law of the state, should be fiercely guarded and some watchful eyes should be kept on it. Expunge provisions or clauses that are inimical to the interest of the state and bring in new provisions or clauses that resonate with the collective aspirations of the people.
By all accounts, this is the primary objective for which the constitutional review committee is set up. To be part of the nation-state project, I feel most obliged to draw the attention of the CRC to key issues.
First, I have always argued against the non-justiciability of the fundamental principles contained in Chapter II of the 1991 Constitution. I believe that those principles constitute the main purpose for the installation of governments in any state. This part of the Constitution subscribes to the philosophy that the need for a government arises from the need for security, protection and the provision of essential services to the people. It further bolsters the Social Contract Theory which espouses that a government is voted into power to deliver services to the people, and must provide the greatest amount of happiness to the greatest number of persons.
To that end, if a particular government fails in meeting this basic responsibility, there is no need for that government to continue to exist in power. Therefore, making it mandatory for the government to provide these services is the best option. Only Section 11, which deals with the obligations of the mass media, and Section 13, which defines the duties of the citizen, should remain intact.
Equally paramount is the effective protection and enforcement of the fundamental rights and freedoms embedded in Chapter III of the 1991 Constitution, especially Section 16, which deals with the protection of the right to life. Although Section 28 provides for the enforcement of these rights, this will never be complete until the state invests its resources in the setting up of a Court of Human Rights and confers prosecutorial rights on the Human Rights Commission so that those, especially state actors who commit grave human rights violations, will not be beyond the reach of justice. It is my opinion that with such a structure, impunity will be dealt a severe blow. That court will stand as an ultimate rebuke to all forms of human rights violations in Sierra Leone.
It is still being argued in academic circles that recognition of and respect for fundamental human rights is the foundation of peace, security and justice in a country. Again, it is good that the Constitution has a provision that creates the office of the Attorney General and Minister of Justice, who is the principal legal adviser to the government and prosecutes offences on behalf of the state in the superior court of judicature as stated in Sub-section (1) 3 of Section 64 of the 1991 Constitution.
In executing such a sacred function, the Attorney General has audience in all courts in Sierra Leone except local courts. It will be better if the Constitution provides for the office of the ‘Principal Legal Defender’ to offer legal representations for any person arraigned before a court of law for either a criminal or civil offence. This office should be funded by the state. This will be of particular benefit for our indigent citizens. It will also strengthen a fundamental provision in the Constitution that says: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty”, Sub-section 4 of Section 23 of the 1991 Constitution.
Meanwhile, it is not only necessary to separate the office of the Attorney General from the Ministry of Justice, but to also dissolve the ministry of justice. This is because the head of the judiciary, who is the Chief Justice, is capable of administering or handling that revered organ of government. I think this will guarantee judicial independence in Sierra Leone. Retention of the Ministry of Justice implicitly means the subservience of the judiciary to the executive arm of government. A critical look at the Constitution reveals that the political arrangement of the state thrives on the principles of Separation of Powers.
As the process rolls out, it is my wish that the Constitutional Review Committee ensures that new provisions are brought into the Constitution with the aim of limiting the enormous powers of appointment being enjoyed by the president. It is true that Sub-section 1 of Section 40 creates the office of the president, who is the Head of State, the supreme executive authority of the Republic and Commander-in-Chief of the armed forces of Sierra Leone.
That notwithstanding, key personnel such as the Chief Justice, the Inspector General of Police, the Chief Electoral Commissioner and other heads of commissions should not be nominated for appointment solely by the president. The CRC must explore other means of nomination and appointment. Since the police or the army possesses instruments of coercion, there is the tendency for a sitting president to misuse these institutions in order to ensure his continued stay in power. Don't forget that the president comes to power through a political party. All being equal, the president is always ready to project the interest of his party.
Similarly, the office of the Vice President must be changed to the office of prime minister with well-defined powers. Sub-section (1) of Section 54 establishes the office of the Vice President, who is the principal assistant to the President in the discharge of executive functions. This provision means that the VP is active in governance only when the president is away. In the Sierra Leone political landscape, the situation of the principal assistant to the President is further made useless by the setting up of the office of the Special Executive Assistant (SEA) to the President and that of the state house Chief of Staff, who heads the Strategy and Policy Unit in the office of the President. These two offices have led to the dormancy of the office of the Vice President.
To correct this incongruity, I pray that the review process insert clauses in the Constitution that confer original powers on the Vice President to be named Prime Minister to reinvigorate the office. Also worth mentioning in this article is the retention of Sub-section (1) of Section 46, which limits the tenure of office of the President to only two terms. It reads: “No person shall hold as president for more than two terms of five years each whether or not the terms are consecutive.” This provision can remain as it is. The slightest interference with it will lead to an erosion of the confidence in the CRC in the public. Mind you the people are yet to recover from the wounds inflicted on them by the amendment of Subsection 1 of Section 79, which relates to the position of the Speaker of Parliament. It generated huge debate with people pointing fingers of suspicion at the government, and suggesting that it had a hidden agenda.
We must not forget that Sierra Leone's political situation can best be said to volatile. Its volatility is anchored on the primordial urges of ethnicity. I subscribe to the view that the provision, on the term of office of the President, will stand the test of time.
In a nutshell, the message running through this article is that the Constitutional Review Committee should endorse this as my humble submission to the process and I pray they give us a new Constitution that will be an enduring legacy.
(C) Politico 26/02/14
