I see the law as an artificial being with two components: the hidden mysteries and the revealed codes. But those two facets are interlinked. Generally, we read statutes for academic research purposes, personal edification, or in aid of judicial proceedings. Things may be subterranean at first glance, and may remain so for a long time until a situation triggers a debate around a statutory provision, and perhaps culminating in some application for judicial interpretation. Then, and only then would new perspectives emerge that may even be at discordance with the much esteemed and acclaimed legal minds.
The Constitution of Sierra Leone, Act No. 6 of 1991, and other sub-legislations are not without provisions that have generated divergent schools of thought; and the discussions, debates, and judicial interpretations (by way of obiter dicta or ratio decidendi) all help to spice up the jurisprudence on critical areas of the law.
The Constitution of Sierra Leone, Act No. 6 of 1991 repealed and replaced the Constitution of Sierra Leone, Act No. 12 of 1978. The 1978 One Party Republican Constitution legitimized an authoritarian one party political and state system, a system that was deeply entrenched. Academics, legal practitioners, judges, journalists, politicians, civil servants, teachers, trade unionists, etc with a few isolations, were all subsumed into the “same soup”. The journey therefore from the 1978 Constitution to the current 1991 Constitution was not going to be free from master-minded intrigues, and some of those who may have been involved in drafting the 1991 Constitution indeed may have been stakeholders in or beneficiaries of the old system. Therefore, when we read the 1991 Constitution, we have to bear in mind our constitutional development particularly within the context of a struggle between the conservative school and the emerging liberal school.
In the weeks prior to the pronouncement, first by His Excellency the President Dr. Ernest Bai Koroma, and subsequently, by the National Electoral Commission, of dates for holding presidential and General Elections; there had been clarion calls on both institutions to make a determination and proclamation accordingly of the dates for the said elections. And when it did happen that the proclamations were so made, appointing the 7th day of March 2018 as the day for the conduct of presidential and general (parliamentary) elections, two key questions have emanated from those proclamations.
The first issue that has seemingly arisen, articulated in substantial part in civil society discourses, has to deal with the time for the holding of presidential elections, or generally framed, the period during which presidential elections ought to be held.
The second issue has to deal with who has the statutory competence to make a pronouncement of date for holding presidential and/or parliamentary (general) elections.
This is a commentary by a legal practitioner with a modest ten years standing, to convey my own perspective of the legal regime and the discussions relating to the issues so occasioned by the proclamation of dates. My ideas are not strictly the view of the Court that has the ultimate competence to make a determination on the issues, if at all (which is the Supreme Court of Sierra Leone). It is hoped that this piece will be seen as a leaf within the several leaves contributing to the discourse; but more importantly, standing in solidarity with well-meaning calls for amendment to some aspects of the relevant provisions in the Constitution of Sierra Leone, Act No. 6 of 1991, and also The Public Elections Act, No. 4 of 2012 that may suggest ambivalence, leaving room for manoeuvrings. The relevant provisions are highlighted hereafter.
In this piece, the principal reference documents are the following:
*The Constitution of Sierra Leone, Act No. 6 of 1991
*The Public Elections Act, No. 4 of 2012
*Any other document as may be practicable/useful
For there to be presidential (and let me also add general/parliamentary) elections, what ignites the election must be “vacancy in the office/seats”. In the case of general elections, they are held every five years (by way of practice, held concurrently with the time presidential elections are held).
For general elections, as I have noted, they are held every five years upon dissolution of parliament. The life term of Parliament is clearly provided for, and may only be extended for a period not beyond six (6) months if there is a compelling state of emergency.
Section 77(1) (a) of the Constitution provides:
“A member of parliament shall vacate his seat in Parliament on the Dissolution of Parliament next following his election”
Section 85(1) of the Constitution provides:
“Parliament shall stand dissolved at the expiration of a period of five Years commencing from the date of its first sitting after a general Election”
Section 87(1) of the Constitution provides: “A general election of the Members of Parliament shall be held
Not earlier than thirty days and not later than ninety days after
Any dissolution of Parliament”
Note: Where within the currency of five years, a situation occurs leading to loss of seat (e.g death of a sitting parliamentarian), there shall be a bye-election to fill that vacancy.
The trigger to presidential elections
For a presidential election to be held there has to be a vacancy in the office. How does a vacancy occur in the seat of President? There are three general conditions noted in the Constitution.
Section 49(1) of The Constitution provides:
“The office of President shall become vacant-
(a)On the expiration of any of the terms prescribed In subsection (1) of section 46 of this Constitution;
(b)Where the incumbent dies or resigns or retiresFrom that office; or
(c)Where the incumbent ceases to hold that office in Pursuance of section 50 or 51 of this Constitution; Provided that the President shall not resign or retire from his office Even at the due expiration of his term of office while a general election of Members of Parliament is pending within the ensuing three months, Or where a state of public emergency has been declared”
Only subsections 1(a) and 1(c) require slight clarity. The word “any of the terms” referred to in subsection 1(a) are stated in Section 46(1) of The Constitution.
Section 46(1) of the Constitution provides:
“No person shall hold office as President for more than two terms of five years each whether or not the terms are consecutive”
From the reading of Section 46(1), it is clear that the President remains in office for five years. You may choose to serve only one term as President and bow out of political life at the expiration of your five year term; or you may choose to run for a second term of five years if you still have steam to continue. And I bet that the latter is more appealing. The second ambit makes it ten years straight, but of five years each (as it now operates in the case of Dr. Ernest Bai Koroma 2007 to 2017). What a game, but I think Mr. President has had too much of squash. Someone else may want to do one term of five years, then he/she goes on a political nap, and after five or more years, he/she comes back to run for another term of five years. If your comeback is successful, you are entitled to serve as pr esident for only five years, and you will not be eligible any longer having done two disjointed terms of five years (but 10 years cumulatively). The bottom line is that you cannot go beyond two terms of five years each (whether or not the terms are consecutive).
Subsection 1(c) of Section 49 of the Constitution on the other hand refers to situations where the President becomes unable to continue performing his duties by reason of infirmity of mind or body, and steps are initiated to let him cease to act.
How are presidential vacancies treated?
It is important to note that there are two kinds of remedies to vacancies in the office of President. On the one hand, when a sitting president is doing his complete five year term, there will be a presidential election to fill the vacancy that will occur. That presidential election will be held within the period specified under Section 43 of the Constitution.
On the other hand, where an incumbent dies, retires, resigns, or becomes unable to continue performing his functions due to mental or physical infirmity, the vacancy is cured simply by the Vice President assuming that office and completing the unexpired portion of the term. Elections will then be held upon the office becoming vacant at the completion of the five years.
Section 49(4) of the Constitution provides:
“Whenever the President dies, resigns, retires, or is removed From office as a result of paragraphs (b) and © of Subsection (1), the Vice President shall assume office as President for the unexpired term of the President with effect from the date of the death, resignation, retirement or removal of the President, as the case may be”
The distinction is important to bear in mind, that whilst in the case of the tenure of parliament (which is also five years), elections can be held at any time during that term to fill vacancies by way of bye-elections; in the case of president, there is nothing like bye-election, mid-term election, or any election midway until the five year term is spent either by the incumbent himself or completed by the Vice President (whatever the case might be).
The Time to hold elections, and who has the competence to pronounce it reference to time for holding a presidential election is in correlation to the time of expiration of the presidential term. Again, one has to be reminded that the possible vacancy situations as specified under Section 49(1) of the 1991 Constitution are:
*Vacancy arising from expiration of the term of five years; or
*Vacancy arising from retirement, resignation, or death of an incumbent president; or
*Vacancy arising from inability to continue in office due to mental or physical illness.
Unless and until proper attention is given to the fact that elections only come to fill vacancies, there is the tendency to proceed on an erroneous assumption of the period of elections.
To have an idea of the period to hold presidential elections, principal reference has to be made to the whole of Section 43 of The Public Elections Act 2012, with particular emphasis on subsections 3(a) and 3(b) thereof; in conjunction with Section 43 of the 1991 Constitution.
But firstly, Section 43 (1) of The Public Elections Act 2012 provides:
“There shall be a presidential election to fill a vacancy occurring in the office of the President under subsection (1) of section 49
Of the Constitution”
Secondly, Section 43 (2) of The Public Elections Act 2012 provides:
“The vacancy to be filled by a presidential election shall be declared by the Electoral Commission by proclamation made after consultation with the President”
Thirdly, Section 43(3)(a) and (b) of The Public Elections Act 2012 provide:
“Where the vacancy in the office of President occurs-
(a) In any of the circumstances referred to in paragraph (a)
of subsection 1 of section 49 of the Constitution, a period during which the presidential election shall be held shall be determined by the Commission in accordance with
section 43 of the Constitution; and (b)In any other case, the Electoral Commission, may in the Proclamation referred to in subsection (2), fix the actual date of the election, the date not being earlier than thirty days and not later than sixty days before the day appointed For voting in the elections”
Section 43(2) of The Public Elections Act requires careful explanation, and I wish to highlight two things:
First, you can see from its reading that it merely makes reference to ‘declaration of vacancy’ and nothing more. It says nothing about date or time of elections. A very simple or narrow construction of that provision would be that NEC comes up with a Public Notice announcing/declaring/proclaiming that there is or will be a vacancy to be filled. But that construction is not consistent with the custom or practice, because what usually obtains is that the proclamation of vacancy and the date of elections are actually embedded in the proclamation.
Second, the proclamation of vacancy (which invariably also include determination of the period within which to hold elections) will be made by NEC after consulting with the President. It would appear that NEC’s independence in this case is undermined but no. The President has full responsibility for, and exercises oversight over activities of the state. He is not only head of government, head of state, and member of the executive branch of government; but also sits in parliament as well on occasions. The moment we evolve to a state where the election date is fixed by law, then consultation with the President may be dispensed with. But currently, NEC has no carte blanche but to have recourse to State House before determining the vacancy and the election period.
What is consultation in this sense? When a client consults a Solicitor, what consultation there should actually mean is, seeking legal advice on an issue. And so we often hear “Ar dae go consult me lawyer”. But interestingly, some clients are not actually going to the Solicitor’s chambers to seek legal advice; they are going there to tell the lawyer what to do. In that case, a predetermination of what is intended has already been made; and woe to that lawyer if he thinks or advises otherwise. I have never been in the consultation room with NEC and the presidency, and perhaps other stakeholders, but I can imagine that in that situation room, three things are not absent: deliberations, caution, and interests. Consultation does not only involve knowing what to do, but letting wise counsel attend to doing what is required. So, for general elections, the President can only fix a date after ‘hanging-heads’ with NEC; and for presidential election, NEC has to ‘hand-heads’ with the President before coming out with a period. So, the doctrine of “prior consultation” is sina qua non.
Let me now briefly give my own view of Section 43(3)(a) of The Public Elections Act 2012 as scenario one. What it simply means is that, in the event where a president is elected, and from all indications he is coming to the end of his five years, it is NEC that will make a determination of the period ‘during which elections will be held’ to fill the vacancy arising from effluxion of time, and that period is guided by Section 43 of the Constitution. This scenario one applies to a president who serves a full one term of five years, or serves for two terms of five years each. This scenario actually applies to President Koroma.
Section 43(3)(b) of The Public Elections Act 2012 is scenario two. My understanding is that, where an incumbent ceases to hold office by reason of death, resignation, retirement, or inability due to mental or physical incapacity, and the Vice President finishes the unexpired term, NEC may then fix the actual date for the elections in its proclamation of vacancy. Please take note of the expression “fix the actual date of the election” which applies to scenario two and not scenario one.
It appears ludicrous, but the absence of “fix the actual date of the election” in Section 43(3)(a) does seem to suggest confusion as to whether or not NEC can fix the actual date for an election filling a vacancy following effluxion of time. There is abundant opinion however that it is NEC that has the sole authority to fix dates when it comes to presidential elections; and it is the President that has the sole authority to do likewise for general elections. Whilst fixing or appointment of actual date by the President for general elections is so express in the Public Elections Act, it is not so express for NEC when it comes to fixing/appointing a date for elections arising under circumstances referred to under Section 49(1) of the Constitution. Let us see Section 57 of the Public Elections Act 2012.
Section 57 of The Public Elections Act 2012:
“The time for a general election of the ordinary members of Parliament shall be appointed by proclamation made by the President after consultation with the Electoral Commission”
Compare this with “a period during which the presidential election shall be held shall be determined by the Commission…” as in Section 43(3)(a) supra.
When we get to Section 43 of the Constitution in a short while, we will understand that the determination of ‘a period’ or ‘that period’ by NEC is limited to:
a)NEC simply determining that elections will be held within the first three months of the period of four months; or
b)NEC simply determining that elections will be held within three months from the date of vacancy.
It is my genuine opinion that judging from the transition from one-party to multi-party democracy, commitment was not wholesome to give NEC unhindered independence. It takes a proactive NEC, one with gravitas, to demand and jurisdiction in this case.
As noted above, it is advised that you read Section 43(3) of The Public Elections Act 2012 in conjunction with Section 43 of the Constitution of Sierra Leone 1991 to form a better appreciation of things.
Section 43(a) and (b) of the Constitution provides:
“A presidential election shall take place-
(a)Where the office of President is to become vacant by effluxion
Of time and the President continues in office after the beginning of the period of four months ending with the date when his term of office would expire by effluxion of time, during the first three Months of that period;
(b)In any other case, during the period of three months beginning
With the date when the office of President becomes vacant”
This provision is in substantial part like Section 23(7) of the 1978 Constitution as follows:
“A Presidential Election Meeting shall take place-
(a)If a retiring President continues in office after the beginning
Of the period of four months ending with the date when the term of office of the retiring President would expire by the effluxion of time, during the first three months of that period;
(b)In any other case, during the period of one month beginning with the date when the office of President becomes vacant; Provided always that whenever there is a vacancy during any Dissolution of Parliament, the Presidential Election shall be Held and completed before the election of Members of Parliament”
The wording in 43(a) is rather dicey. It makes room for two interpretations: On the one hand, it could mean that elections be held in the first three months during a period of four months terminating with the date the five year term ends. On the other hand, reference to four months could be interpreted as holding elections in the first three months within a period of four months immediately following the date the five years expire. If Section 43(a) of the Constitution requires election to be held within the first three months during the period of four months to the time the office is to become vacant, is it practicable and well-founded in our constitutional and political history. Would this be a better alternative to holding elections within three months after date of vacancy? The reason why date is crucial especially in our own circumstance is because the President’s term starts from the date of his election, and not like in the USA where elections are held in November every four years but the term commences on the day the President is sworn-in and moves into the White House. Donald J. Trump was elected in November 2017, and took the oath in February 2018.
It is because of the seeming confusion which Section 43(a) generates that some believe that Section 43(b) is the proper provision that applies to the elections to fill Dr. Ernest Koroma’s vacancy. And if that is the case, then why has the President and NEC pronounced 7th March 2018 as the date for elections, quite in excess of the three months period required?
I have canvassed in great deal arguments in favour of Section 43(a) as the regime that strictly applies to effluxion of time, but have not found sufficient comfort in the confusion it bears. And if as legal minds, we have our own divides on such issues, how much more the layman? In that regard, I have proposed that an amendment to Section 43 is necessary firstly to have a condensed and simple directive, and secondly to ensure that perhaps we have a date fixed by the constitution so we all know that is the date to hold elections every five years. In their University of London compiled text titled “Common Law Reasoning and Institutions-2007”, W.J Morrison and A. Gearey noted on page 155 under the heading ‘The need for interpretation’ as follows:
“We understand what language means by interpreting. Interpretation Is inescapable. Words can have many different meanings-even the Simplest of phrases can be interpreted in a variety of ways…”
Also, under the heading ‘Interpretation of Statutes as sources of law and their application in court processes’ it is noted:
“Statutes are a fundamental source of law. They are an indicator to both lay persons and legal professionals as to certain directives, propositions and rules that the legislature direct should cover certain situations. In contrast to case law, the statute is both the source and the statement of the law, but is the proposition or Rule or principle easily understood so that it can be applied without difficulty?”
The text and substance of that note advises that statutes be plain in reading, and that they are not meant only for reading and comprehension by lawyers, but lay persons as well. A lay person should be able to grab the constitution and any statute and have a fair appreciation of things.
In support of my proposition for fixed dates, let me give a few examples. In Ghana for instance, elections have been held on 7th December every four years in 1996, 2000, 2004, 2008, 2012, and the latest in 2016. In the USA, presidential elections occur quadrennially (every four years), and since 1845, it has been the Tuesday after the first Monday in November (i.e. the first Tuesday after November 1). In the United Kingdom, Election Day is by tradition a Thursday. This tradition may have come about as the best of several scenarios. If elections are held on Fridays which are usually pay-days, there may be more drunken voters on elections day; and if on Sunday, Sunday sermons would be affected. But on Thursdays, local markets were held and local population would gravitate to town that day anyway. The Fixed-term Parliaments Act 2011 provided that all future General Elections shall take place on the first Thursday in May every five years. In Liberia, pursuant to Article 83(a) of the Constitution, elections are held every six years on the second Tuesday of October.
If we can’t adopt a similar style of fixed dates as in Ghana, USA, UK, perhaps generally, it could be stated definitively in the constitution that in all cases of presidential elections (unless state of war or grave emergencies), such elections be held not later than three months from the date of expiration of the five year term. In this way, Section 43(a) and (b) of the Constitution are condensed into a single reading.
President Dr. Ernest Bai Koroma’s 5 year term determines/effluxes as at 23rd November 2017 which is the 5th anniversary of his assumption of office. Consistent with the dominant view is the school of thought holding that the election must be held not later than three months from that time which is 23rd February 2018. I belong to that dominant school. Therefore, the demand put on the NEC or the Presidency to give explanation for proclaiming the date of 7th March 2018, in excess of the three months window is not misplaced, but, may be redundant.
Much as I identify myself with the 3 months cap, I honestly do not believe the date of 7th March 2018 may invalidate the proclamation. I hold the view that a vitiating circumstance has not existentially arisen or may not potentially arise because, the principle of law on constitutionality is well-settled that where a constitutional infraction does not create injustice through injury or prejudice, such infraction may not amount to invalidation. I am not in any way subscribing to constitutional infractions, and I have a good public record for standing up to constitutional abuse.
The date of 7th March for holding presidential and general elections has already been well-received locally and internationally. Recently at the 13th Regional African-Caribbean-Pacific/EU Joint Parliamentary Assembly held in Freetown, positive sentiments were expressed regarding the announcement, and I had cause to listen to similar sentiments expressed by the Special Representative of the U.N Secretary-General and former ACP Secretary (Dr. Mohamed Ibn Chambers) when he paid a courtesy call on President Koroma at State House. Whilst the date in itself is already a relief, we are all urged to jealously guard the electoral process.
The Issue of Resignation
I am aware that one issue that may also require elucidation deals with the category of persons who are supposed to resign from service at least 12 months prior to seeking election as President. I promised a friend in one of my Star Television appearances that I will hint on the issue, and perhaps come back to it at a later date. Suffice at this point to note the provisions under Section 41 and Section 76(1)(b) of the 1991 Constitution as follows:
Section 41 of the 1991 Constitution provides:
“No person shall be qualified for election as President unless he-
(a)Is a citizen of Sierra Leone;
(b)Is a member of a political party;
(c)Has attained the age of forty years; and
(d)Is otherwise qualified to be elected as a Member of Parliament”
Section 76(1) of the 1991 Constitution provides:
“No person shall be qualified for election as a Member of Parliament-
(b) if he is a member of any Commission established under this constitution, or a member of the Armed Forces of the Republic, or
A public officer, or an employee of a Public Corporation established
By an Act of Parliament, or has been such a member, officer or
Employee within twelve months prior to the date on which he seeks
To be elected to Parliament (emphasis mine)…”
This applies to persons seeking parliamentary seat. Does it apply to persons running for State House? I will give my perspective on this next. Till then, I give my best wishes and prayers for a smooth transition.
25TH FEBRUARY 2017
SOLOMON A.J JAMIRU
Tuesday February 28, 2017