EVALUATING SIERRA LEONE’S DEMOCRACY: A FOCUS ON ARBITRARINESS IN STATE GOVERNANCE!

BY REV. GIBRILLA KARGBO

"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men..."

This is a known dictum or maxim from Lord Acton, an English Catholic historian, politician, and writer. Over time, this dictum or maxim has served as the foundation for assessing power holders to ascertain especially the veracity of the claim. It must be noted emphatically that power holders who do not countenance the essence of power for the common good have always been found wanting with evidence of their excesses displayed to the wonder and consternation of all. The world over, there are clear examples of the wrong use or misuse of power with far-reaching implications for the proper and successful governance of the state. Different nations of the world have seen dictators rise and fall with the people or the ordinary man bearing the brunt of such unbridled use of power. It would then appear as if the world has reached a common understanding that the key antidote to the misuse of power is to adopt the tenets of democratic good governance with a focus on the rule of law. Without asserting that one size fits all in a democracy, it is in place to assume that with the centrality of the people in the governance of the state, arbitrariness should not have a place in enhancing sustainable national development. Given such an assertion, this write-up will focus attention on what is arbitrariness in state governance, the underlying causes of such arbitrariness in state governance, the historical context of such arbitrariness in state governance, providing examples of arbitrariness in state governance given the current realities, identifying the implications of such arbitrariness in state governance, and making recommendations in dealing with arbitrariness in state governance. As we examine the concept of arbitrariness in state governance, the overall objective is to evaluate the workings of democracy in Sierra Leone.

Several worrisome happenings in the governance of Sierra Leone in the past and present should warrant close attention on the issue of arbitrariness as an attempt is made to analyze its nature and implications especially in the context of bad or good governance with the need to consider the way out and the way forward. We proceed on the premise or assumption that the laws in the land are complicit in making our leaders immensely powerful such that they tend towards absolutism in their use of power as they engage in the daily governance of the state. In our context, arbitrariness can be described as the abuse of office or the misuse of power especially by the governors and those who use delegated powers. Furthermore, arbitrariness in the context of state governance can be viewed from the use of power without authority. In other words, with arbitrariness, the issue of legitimacy is seriously challenged with both entrance and performance legitimacy coming under serious question. Without the rule of law, state governance is left to the use of arbitrariness with far-reaching implications for the proper governance of the state. With arbitrariness, constitutional order is usually turned upside down with so-called powerful men trampling on the rights of individuals and groups with evident disaffection among the people, a situation that might plunge the state into chaos and anarchy if care is not taken. Working for an institution that is tasked with the responsibility of fostering constitutional order, it is not difficult to notice the many infractions that are taking place in the context of state governance with clear evidence of the abuse and violations of the provisions of the constitution and related laws of the state with the need to pay attention to the issues by way of making meaningful suggestions to address the many challenges the state is confronted with.

It is almost impossible to discuss the issue of arbitrariness in state governance without reference to A. V. Dicey, a British Whig jurist and constitutional theorist, who popularized the concept of the rule of law. His scholarly works emphasized the importance of the sovereignty of parliament in making and unmaking laws, the impartiality of the courts, free from governmental interference, and the supremacy of the common law. Despite his aversion to unjust laws, he noted and very significantly the importance of law and order in the proper governance of the state with an emphasis on equality before the law with no one being above the law. Dicey held that "personal liberty is the basis of national welfare." He treated Parliamentary sovereignty as the central premise of the British constitution.

On the other side, across the Atlantic Ocean, was Thomas Jefferson and his contribution to constitutional law could be referenced with emphasis on the sovereignty of the people especially with the famous opening lines of the US constitution which makes clear reference to “We the People…” It should be obvious to all that the foundation of constitutionalism is following the due process of the law within the context of the rule of law and not leaving the use of power to the whims and caprices of a few men, thus avoiding all forms of arbitrariness in the governance of the state. The emphasis has been on building strong institutions with a focus on systems and structures in which no one person is more powerful than all the others, but that all are considered to be equal before the law. This situation comes with the territory in the context of an enhanced civic culture that defends and protects the society against entrenched elitism and abuse of office. What is clear with the American model is that everything within the context of the state should work in the best interest of the people with a focus on the common good and not on a few individuals even as the emphasis is placed on making opportunities available for the majority with a utilitarian perspective. It is in this regard that separation of powers, checks, and balances come in handy in the operations of the three arms of government serving as safeguards in recognizing and protecting the rights of the citizens against all forms of abuse or violation in the governance of the state.  

Whether it is with A. V. Dicey or Thomas Jefferson or any other proponent of constitutionalism, law and order are at the heart of the matter with emphasis on leadership by example. However, within the context of Sierra Leone, the emphasis is different with the strongman syndrome holding sway over everything reasonable and rational, thus making it almost impossible to avoid arbitrariness in the governance of the state. The national psyche about and the general understanding of leadership and the use of power have affected us as a people and as a nation and it follows that even when efforts are directed towards constitutional order, we always make the mistake of putting together a constitutional formula that produces an out-of-this-world character for a leader that cannot be accountable to the people. It appears as if it is in our nature not to be accountable to the will of the people and as such, we look for ways and means to put in place laws that can create the atmosphere for that kind of situation. It must be noted that after 1964, three years after political independence in Sierra Leone, frantic effort was made to empower the leader to be fully in charge of the governance of the state even if the means were not legitimate. Successive leaders have benefited from the kinds of laws that have been promulgated over the years. It is difficult not to remember the impact and the implications of the 1965 Criminal Procedure Act, No. 32 of 1965, and the 1965 Public Order Act, No. 46 of 1965. What these laws did was to set the tone and pace for the capture of the state by a few greedy men that would stop at nothing, but to establish themselves as demi-gods ruling in the affairs of the nation. It must be remarked that the nature of the laws in the country is such that the will of the people is always subverted through state capture. The coup and countercoups following the 1967 elections were meant to further entrench arbitrariness in the governance of the state and even when the dust settled after the return to civilian rule in 1968, things were bound to change for the worse in the governance of the state as we had crossed the Rubicon with no turning back. What then followed was the establishment of a Republican state that paved the way for an executive president, a monster that could rubbish our multi-party democracy. Since 1971, it was almost considered as official that every form of opposition was enmity to the state and as such should be met with brutal force. With that posture and being knee-deep with arbitrariness in the governance of the state, it was a smooth ride in introducing the 1978 One-Party Constitution of Sierra Leone, Act No. 12 of 1978, thus making arbitrariness very official and mandatory in the governance of the state. As the Supreme Head of State provided for in Section 21, the president was officially in charge of every arm of government and everybody was working to satisfy the needs of the supreme leader. State capture commenced in full forces as everybody was subject to the one-party rule with every form of opposition considered illegal. Time and space cannot permit us to enumerate all that transpired during that period in the political and constitutional history of our beloved motherland. The records are clear to all regardless of where you stand in the political history of our beloved motherland.

There is a near consensus that the rebel or civil war that started in March 1991 in our beloved motherland was a reaction to the heightened level of arbitrariness in the governance of the state as the opposition was expressed in the uprising that plagued the nation for some eleven years. In essence, when arbitrariness is not put under check, it can lead to the violent overthrow of the state with such insurgency that can have devastating consequences. In the same year also, however, that is in 1991, an attempt was made to reintroduce multi-party democracy through the promulgation of the 1991 Constitution of Sierra Leone, Act No. 6 of 1991. Despite the seeming positive aspect of this arrangement, the process was disrupted in April 1992, when the National Provisional Ruling Council (NPRC) took over the reins of power in a coup and set aside constitutional order till 1996. The military regime that was in power between 1992 and 1996 did not do much to reduce the level of arbitrariness in the governance of the state. It must be stated that a key characteristic of every military regime is to rule by decrees as constitutional order is suspended. In other words, military rule is always characterized by arbitrariness as the fundamental human rights and the freedoms of individuals come under considerable threats. The legacy of arbitrariness from that era is still with us and a lot of work is required to change the narrative for the better as we address the current realities. By 1996 when the nation transitioned into civilian rule again, not much had been done to curb arbitrariness from state governance especially because of the nature of key provisions of the restored 1991 Constitution of Sierra Leone, Act No. 6 of 1991.

It has been remarked by many that the powers of the president in the 1991 Constitution of Sierra Leone, Act No. 6 of 1991, are tremendous, also noting that as a sequel to the 1978 One-Party Constitution of Sierra Leone, Act No. 12 of 1978, not much was done to tone down the larger-than-life leader that was bequeathed to the Sierra Leonean public with obvious implications for bad or good governance. For some analysts, it only takes the wrong person to go to State House and tilt the balance of power for Sierra Leoneans to experience hell on earth. Even though he is no longer the Supreme Head of State, he is still the Supreme Executive Authority serving as both the Head of State and Head of Government with a clear reference to Section 40 (1) of the Constitution of Sierra Leone, Act No. 6 of 1991. With the powers assumed therein, successive leaders have used this provision to their advantage especially with the use of executive orders and even the infamous orders from above. With Section 48 (4), we see a leader that is above the laws of the land as he cannot be brought before any court in the land. There is the tacit endorsement of arbitrariness in this arrangement as the president can never be made to be accountable to the courts and by extension to the parliament of the people. The situation is made worse under Section 53 (3) in which the president’s position on any piece of advice cannot be contested in any court of law in the land, even though he appoints ministers and other officers to provide professional advice on the governance of the state, thus asserting that the president cannot make any mistake and as such his decisions are above board or reproach. By the dictate of Section 63, the president can unilaterally overturn the decisions of the courts, another arm of Government, through the use of the prerogative of mercy. There is every reason to believe that the prerogative of mercy has been abused for political reasons with hardened criminals, in some instances, released on account of them doing the bidding of the powers that be. As if these powers are not enough, in addition to his recruitment function of key state officials, the President can also establish offices at his behest with the power to hire and fire as stipulated in Sections 61 and 70 of Act No. 6 of 1991 to the extent of even crossing the line as it relates to tenured offices. The excessive powers conferred on the President of Sierra Leone are evident in the use of emergency powers as provided for in Section 29 of the 1991 Constitution of Sierra Leone with the potential to usurp the law-making functions of the Parliament of Sierra Leone. In some instances, we have witnessed some wrangling between State House and the Parliament of Sierra Leone regarding the handling of regulations made under a State of Emergency invoked by the President.

With a president that can overturn the decisions of the courts through the use of the prerogative of mercy and usurp the law-making functions of the Parliament of Sierra Leone through the use of a state of emergency, the President of Sierra Leone is one of the most powerful human beings on earth. Therefore, curtailing or curbing such powers should require the attention of all if we are to deal with the dangers of arbitrariness in the governance of the state. It is expected that such a powerful president should be balanced out with an independent judiciary, an effective parliament, and a media with integrity. To say least, the situation in our country has always been precarious in so far as judicial independence, an effective parliament, and media integrity are concerned with the need for more work to be done about curbing arbitrariness in the governance of the state, otherwise, we will continue to live with the consequences of such arbitrariness with the potential to undermine national unity, political tolerance, social cohesion, in addition to meaningful national development. To the best of my knowledge, every opposition party has condemned the enormity and the extent of the powers of the president only to condone it when they get to State House, thus paying lip service to the urgent need for reform in constitutional order especially as it relates to the powers of the president. My argument is that until such excessive powers are curtailed, arbitrariness in the governance of the state will continue as the norm with devastating consequences.

It is high time we started examining the major examples of arbitrariness in the governance of the state in recent years as we sound the alarm bells for meaningful constitutional reforms as we emphasize the importance of the rule of law in the successful governance of the state. Even though the list is not exhaustive, the following are key examples of arbitrariness in the governance of the state:

1. The appointment of cabinet ministers without regard for the number of ethnic groups and regions in the country;
2. Procurement Rules have been flouted without regard for the consequences with the audit reports indicating that not much is done to address the recommendations;
3. Having a National Public Procurement Authority that is encouraging the well-favored to side-step procurement rules that others are asked to follow in addition to establishing a parallel procurement directorate in the Ministry of Finance with recruiting powers to send procurement officers to MDAs;
4. People occupying tenured Offices have been relieved of their duties without regard for the related laws as an affront to legitimacy in the governance of the state;
5. We have witnessed the rampant sackings of workers in different MDAs across the country without following due processes;
6. Provisions of the Constitution and related laws have been abused or violated especially as it relates to the powers of the president to hire and fire;
7. The use of orders from above continue to rock the nation as abuse of office is becoming the order of the day;
8. The bail and sentencing regulations are usually applied in ways that can be described as inimical to the welfare of citizens that come in contact with the law and even though bail is considered as free, the circumstances surrounding its acquisition can be incredibly challenging with some people becoming victims of bail denial on political grounds;
9. The handling of political cases in the courts has shown elements of partiality against some members of the opposition;
10. The election of the Speaker of the Fifth Parliament of the Second Republic of Sierra Leone leaves much to be desired with a lot of arm twisting resulting in the beating of members of the opposition in Parliament;
11. Members of Parliament were disqualified by court orders and not by the will of the people, thus tampering with the balance of power in the Fifth Parliament of the Second Republic of Sierra Leone;
12. Laws made in the Parliament of Sierra Leone without following due processes especially with the need for a two-thirds majority that should be ascertained through voting on a headcount and not on voice count with the latter adopted to the wonder and amazement of all.
13. Police brutality is still commonplace with trigger-happy cops that have gunned down civilians at the slightest provocations;
14. There are instances in which state resources are allocated without recourse to due processes in addition to lacking the express approval of the Parliament of Sierra Leone with failed attempt to get approval for unaccountable traveling imprest;
15. The continued refusal to harmonize salaries in the civil and public services with evident salary disparities that are supposedly negotiated in the best interest of cronies and friends without excluding the possibility of bribes;
16. More institutions are being established without due consideration given to the financial and economic situation of the country in addition to the duplicity of functions and mandates of existing institutions;
17. We continue to witness the funding of non-statutory institutions from statutory funds and making state resources look like private resources sometimes spent anyhow;
18. The April 29, 2020 massacre of inmates at the Correctional Service on Pademba Road in Freetown is hanging like an albatross on the collective conscience of the nation;
19. We continue to witness the oppression and suppression of the Opposition as if they are being hounded with little or no opportunity to express themselves in speech and by assembly;
20. Many analysts have described the current fight against corruption as a one-sided fight that is more focused on those on the other side of the political divide;
21. We witnessed the conduct of Commissions of Inquiry (COI) without formal rules of evidence targeting politicians of the former regime and leaving out civil and public servants that would have aided and abetted any offense against the state;
22. Canceling contracts mostly mining contracts signed by the former government without due diligence and resulting in the unceremonious closure of mining sites with hundreds of Sierra Leoneans losing their jobs and livelihoods;
23. Some people have become victims of state-sponsored intimidation for holding views contrary to the official position of the government and the ruling party;
24. Land grabbing is on the increase with the Ministry of Lands, Housing, and Country Planning serving as both player and referee in dispossessing citizens of their landed properties.

The impact of these infractions in the governance of the state is huge with implications for democratic accountability and the fight against corruption in the country. We are quick to point out the lawlessness of the governed, but we are almost reticent or quiet about the levels of arbitrariness displayed by the governors. In the context of the rule of law, both the governors and the governed should be seen to be upholding the laws meant for the proper governance of the state if we are to maintain the right balance in the democratic consolidation of the state. In these infractions, the civil, political, economic, social, and cultural rights of the people are usually undermined with evidence of seeming injustice as public trust in state governance is seriously challenged. Over the years, the infractions of the governors have impacted negatively on meaningful and sustainable national development. However, spin doctors and propagandists have done their best to make available different ways of presenting the issues mostly at the detriment of the governed even as the governors are made to be above the laws of the land as they continue with their evident state capture agenda. Until due processes are followed in the governance of the state, establishing a genuine democracy can only continue as a pipe dream.  

We now turn attention to key recommendations in addressing the dangers or menace of arbitrariness in the governance of the state:

1. It starts with adopting a zero-tolerance attitude towards all forms of arbitrariness in the governance of the state and this is made possible when both the governors and the governed are aware of their rights and responsibilities to the state on the backdrop of the right civic or democratic or political culture;
2. We continue by establishing a national dialogue forum on dealing with all forms of arbitrariness in the governance of the state with the involvement of key stakeholders to include state and non-state actors with room for nationwide consultation on the key issues;
3. We have to make a strong commitment to undertake or embark on massive constitutional and legal reforms to enhance separation of powers, checks, and balances in the governance of the state with the three arms of government serving as co-equals in the governance of the state;
4. State and non-state actors should continue with raising awareness on the importance of the rule of law or law and order in the successful governance of the state;
5. We should make it a matter of must as we educate and encourage the citizens to defend the constitution and other laws of the country against all forms of abuse or violation acknowledging the fact that adequate knowledge in good governance is the ultimate antidote to curb or curtail all forms of arbitrariness in the governance of the state.

With these key recommendations in view, there is the need to commit to ending arbitrariness in the governance of the state as our governors are expected to serve in the best interest of the governed rather than lord it over them on grounds that are not tenable. The time for such commitment is now as we make Sierra Leone a better place for her citizens that for far too long have been deprived of the benefits or the dividends of democracy. There is nothing like the will of the people in promoting such a genuine cause with the establishment of the right platforms as we deepen the democratic credentials of our beloved motherland. Together, we can build a better Sierra Leone in which the people are conscious of their rights and responsibilities.

Copyright © 2021 Politico Online 10/03/21