By Umaru Fofana
Even before it truly starts the constitutional review process has attracted controversy and suspicion. I doubt anyone reasonable will be surprised. In the untrusting and distrusting country that we find ourselves, plus the untrustworthy political class, everybody has their opinion on the process.Rightly or wrongly.
Who will blame the sceptics or cynics when we have well entrenched and endemic secrecy in government and leaders who prefer politics to governance. In such a situation it is all but natural that suspicion galore abound.
To start with the process started with the Office of the Attorney General serving as the hub or conduit or coordinator or champion. This is a false start that can bring government interference into and control or micromanaging of a process that it too crucial to toy with. That will be the start of the end of the process even before it actually starts, and will drag it on like the Kenya one.
Generally we are not doing very badly. Time wise, at least. The process started in the lead up to the 2007 election about which I will say a bit more momentarily. But I say we are doing reasonably well because Kenya’s spanned two decades: 1990-2010. But we do not have reasons to take that long. The east African country had a one-party system when the agitation started and it took two years to repeal the one party constitution.
President Arap Moi thwarted efforts to have a formal constitutional review in part because he appointed a cabinet member – Vice President George Saitoti to lead the process. The move prompted religious groups and the opposition to start a parallel people’s constitutional convention named the National Convention on Constitutional Change. It gathered steam leading to calls for more reforms. This led to the repeal of the country’s sedition laws – including libel which I mention for obvious reasons – as they were considered the biggest obstacles to a true review process.
The Kenyan parliament passed a Constitutional Review Act before the process got underway. Among other things the Act provided for experts who were nominated by political parties and other stakeholders and appointed by President Daniel Arap Moi. It held public sessions throughout the country and produced a draft constitution which was to be subjected to enormous scrutiny by a constitutional conference.
The conference had all members of parliament (222) and over 300 other representatives from different groups including media and civil society organisations, other professional groups, religious groups, women’s organisations, etc. That was dissolved in 2002 by President Moi for political expediency.
Another process was put underway and it came up with another draft constitution which was subjected to a referendum in 2005 but was defeated. If you remember the Orange and Banana, which were position symbols on the referendum, then you are spot on.
The final phase which managed to pull it off led to the passage of the new Kenyan constitution which, without doubt, is among the best on the continent, and perhaps in many ways better than the much-hailed South African one.
Like our civil war, which should have accelerated a lot of reforms, the post-election violence in Kenya prompted them to be more serious with a new constitution. And in many ways that document is a one-stop shop for Kenyan legal regulation.
The Kenya constitutional review was led by a committee of experts on the one hand, and the Ministry of Justice and Constitutional Affairs' and a multiparty Parliamentary Select Committee on Constitutional Review on the other. Government’s influence or even involvement was minimal because of their earlier experience. A draft constitution was developed by the Committee of Experts which had held extensive sessions of stakeholders and submitted to Parliament through the Parliamentary Select Committee. After a back and forth process it allowed for the production of a final draft by the experts. That draft was voted for and passed into law on August 27,2010.
That was not all. The constitution has a self enforcing schedule which clearly outlines what laws must be passed within a certain timeframe in the first five years. Failure to do so would lead to the dissolution of parliament. It sets out clear ways of dealing with electoral matters – including adjudication – in a way that cannot be manipulated by the government.
Even a child born last year knows that a constitutional review in Sierra Leone is of extreme necessity and urgency;A genuine and honest one that is free from government manipulation. The reasons are not too hard to find. Our laws are archaic – some so old that they make the Bible and the Quran look very recent. Our rights are being eroded – the use of too much discretion by the police to arrest and detain and later release without charge is testament to this.
The ambiguity in some of our laws and in some parts of our constitution is providing ammunition against the masses. Take the Independent Media Commission Act which says that appointments to the commission should be done by the President on the advice of the Sierra Leone Association of Journalists. But Section 53/3 of the country’s constitution says you cannot challenge the president’s decision in court if he decides to do otherwise. It reads: “Wherebythis Constitutionorunder any other law thePresident is requiredtoact inaccordancewith the advice of any person or authority, the question whether he has in any case received or acted in accordance with such advice shall not be inquired into in any court”. This is absolute power and we all know that corrupts absolutely.
Our constitution vests too much power into the hands of one man – the president – so much so that he can do anything including, perhaps, turning a man into a woman if he so desires. A Member of Parliament cannot serve his conscience and his nation, or even those in his constituency he should be representing, if that conflicts with the interest of his political party.
We have a constitution which, on the face of it, dictates Separation of Powers. In reality it allows for so much fusion of power that Baron de Montesquieu would turn inside his grave, regretting that he ever propounded any such theory. He would even deny that what we practice here is anywhere near his political philosophy.
Free speech is criminalised by a 1965 law even though chapter three of the constitution guarantees it, seemingly unequivocally, in a more recent law in 1991.
Our citizenship law is racist and obsolete.
Our political system is fertile for division and nepotism – winner takes all – so much so that the votes of 48% of the people can count for naught just because 52 % of them voted otherwise. The judiciary seems to be losing its essence – cases are delayed and justice denied in part because some judges are on contract whose extension is at the say-so of the president. But also because promotion to superior courts is at the behest of the president and all presidents of lower courts want to be in the higher ones.
Conflict of interest is a non-issue and MPs and ministers can afford to become government contractors. Politics is killing everything. Safeguards do not exist to hem in on public officials who deny others a job for simply supporting the losing party in an election, or award jobs and contracts to quacks for simply having supported the political party in authority. We are fizzling ourselves out of essence.
But who would blame the public for being sceptical, or even cynical, about the ongoing review process. After all our political class has shown in more ways than a million times that their own vested interest and how to stay in power is all that matters. Not the welfare of the people or doing things right.
In the run up to the 2007 presidential and legislative elections there had been an attempt at having a referendum for a constitutional review. As if to test the intelligence of the people, one of the recommendations was immunity for life for anyone who serves as president. I remember running away with that in a series of BBC reports leading to some SLPP fanatics calling me names. Eventually it was withdrawn.
So we must never think for a moment that the politicians – especially those in power - would want to give us a process that will be in our interests where they conflict with theirs. NO! They will attempt to tilt it to their selfish interest unless we all stand very firm. Sierra Leoneans must stand up like Kenyans did to be able to have a true and open process. So far the composition has not been made public. We need to know to question those that have no business but political expediency to be there. And the Attorney General’s office must desist forthwith from being the champion of the process. Otherwise it will be a wild goose chase.
And I hope the outcome, however brilliant, the people effecting it will leave their GREEN and RED, a situation that seems to be eroding anything Sierra Leonean that is left in us. It is nothing but tribalism.
(C) Politico 23/05/13
