I recently did a commentary titled “Presidential Elections in Sierra Leone; is there a time conundrum?” It was published in the Awoko Newspaper, Tuesday 28th February 2017 edition, and also accessed online on www.awoko.org. I am indebted to SLAJ President and Awoko proprietor Kelvin Lewis. Sequel to that piece, this is a commentary on an issue that bears nexus with the 7th March 2018 Presidential and General Elections. Like the previous commentary, the subject-matter of this discourse derives its rise and footing from statutory regimes that have received (though not in substantial terms) judicial opinion/interpretation.
The question of resignation of public officers seeking elective offices is as much a just and equitable demand as it is an ethical condition. Where the requirement is enshrined in law, compliance seems to be sufficiently attained; but where it is required simply as a code of practice or policy guideline, the circumference of compliance is susceptible to shifts to suit the interests of those who harbour political aspirations. It is therefore not sufficient to merely expect compliance on the basis of statutory obligation to resign, but additionally emphasize that it is inconsistent with the principle of ‘standards in public life’ for public officers to enjoy the paraphernalia of their offices and use them to establish preponderance and leverage over their competitors.
Let me give a precursor to this piece by referring to R.W.M Dias in his book “Jurisprudence” published by Butterworths, London, 1964. In Chapter Five of that book captioned “Statutory Interpretation”, this is what the esteemed scholar noted:
“After a statute has been passed and has come into force, its provisions have to be applied to the situations that fall within them. The decision whether they apply or not calls for the interpretation of the wording. The once cherished illusion that it is possible to legislate in such a way as to obviate the need for interpretation has long been dispelled. Legislation, except on rare occasions, contemplates future situations and in this respect differs from judicial decisions which pronounce on specific previous occurrences…”
In the case of London Transport Executive vs. Betts (1959) A.C, 213 at page. 232, Lord Reid noted instructively as follows:
“The law is what the judges say it is. If the House of Lords were to give an Act of Parliament a meaning which no one else thought it could reasonably bear, it is their construction of the words used in preference to the words themselves that would become the law”
I have deliberately set out the preface because this commentary will be anchored not only on statutory provisions, but also judicial opinion on the subject-matter. Talking about judicial opinion, let it be noted that the Supreme Court of Sierra Leone has original jurisdiction, to the exclusion of all other courts, when it comes to interpretation of any constitutional provision by virtue of Section 124 (1)(a) of the 1991 Constitution. Once the Supreme Court makes a pronouncement on any provision, it constitutes the law for the time being until the Court sees reason to vacate that opinion expressed. Our Supreme Court is expected to carefully consider some of the opinion expressed on certain issues, and to take the most humble, sincere, and just step to depart from the same when it appears right to do.
At the end of the day, it is hoped that this piece would be appreciated as a constructive commentary on the statutes and the judicial reasoning revolving around the issue discussed.
The principle of equal and fair access
Why are persons required or expected to step down from their substantive offices when contesting for a public office? I think it is a question of ethics that has received legal and judicial endorsement. Western democracies including the United States of America, Great Britain, Canada, Australia, France, Germany, etc are very much advanced in their defence of this moral and ethical hallmark, as distinct from our own part of the world where the culture is for holders of public offices to continue enjoying the fruits thereof even when the sub-structure no longer exists. It is an issue that needs to be discussed and debated within the broader context of ‘standards in public life’.
The struggle for equal and fair access to electoral opportunities continues in Sierra Leone. To win that fight, every citizen has the sacred responsibility to squarely consider the framework of the laws speaking to fair and transparent elections, but equally be willing to constructively critique any existing judicial opinion that may be incongruous with fair and just political access.
Basic meaning of a Public Officer
Firstly, the word ‘Officer’ has to be used or construed in connection with an office or institution. So, one cannot refer to a police officer or an officer of a bank disconcertedly from the police force or bank to which he/she belongs. Secondly, the word officer has its attendant role(s). In that sense, an officer is someone that occupies an office, and bears some form of responsibility to performing the duties assigned to that office. As an officer therefore, you are entrusted with a task, and so, you are holding a position of ‘trust’.
In furtherance of their state responsibilities, broadly speaking, to serve the public interest, governments all over the world (through constitution and other statutes) do establish institutions and offices. They are strictly speaking termed institutions of state. There is quite a long array of institutions bundled under a category of workforce known as the “Public Service”. Unless some persons are excluded by law, public servants/officers include those appointed and elected to perform services in the public interest. In this regard, parliamentarians, presidents, ministers, ambassadors, civil servants, and a host of others are generally considered public officers because they form part of the critical mass of the public service. Quite frankly, it is this question of excluding some categories of persons from the list of public officers that normally generates confusion and transmits a sense of discrimination when looked at within an electoral context. I shall deal with that later on.
Some public officers perform executive roles (like ministers); some perform judicial assignments (like judges and magistrates); some provide legislative roles (like parliamentarians). An important feature of public servants is that of loyalty to the state (most times conceived narrowly as loyalty to government), and the just expectation to act always in the public interest. So, they take or subscribe to an oath when elected or appointed to office.
Statutory definition of Public Officer in Sierra Leone, and the application of the resignation requirement
In dealing with this area, I will take a slice of constitutional history at least from the time we became a Republican state. But first, the expression “public officer” is not defined in The Interpretation Act, No. 8 of 1971, which is a principal authority in aiding construction and interpretation of Acts of Parliament, and by necessary extension, operative words therein contained. What The Interpretation Act contains is as follows:
“Public office”, “public officer” and “public service” have the meanings assigned to them in the Constitution”.
In referring to section 93(1) of The Constitution of Sierra Leone, Act No. 6 of 1971 (even though that constitution was repealed a long time ago), it stated:
“public officer means a person holding or acting in a public office”.
with respect to the regime dealing with resignation of public officers, Section 22(1)(b) of The 1971 Constitution stated:
“No person shall be qualified for election as a member of Parliament If he is a member of any Commission established under this Constitution, A public officer or a member of the armed forces of the Government or
Has been such member or officer within twelve months prior to the Date on which he seeks to be elected”
Then, section 22(6) stated:
“A person shall not be disqualified for election as a member of Parliament under paragraph (b) of subsection (1) by reason only
That he holds the office of Prime Minister, Minister, Deputy Minister, Chief, Member of a Chiefdom Council, Member of a Local Court or member of any body corporate established by Or under any of the following laws, that is to say, the Freetown
Municipality Act, the Chiefdom Councils Act, the Rural Area Act, The District Councils Act, the Sherbro Urban District Council Act, The Bo Town Council Act, and the Townships Act or any law
Amending or replacing any of those laws”
Section 26(7) of The 1971 Constitution further stated:
“Save as otherwise provided by Parliament, a person shall Not be disqualified for election as a member of Parliament Under paragraph (b) of subsection (1) by reason only that he Holds office as a member of a statutory corporation”
And section 26(8) stated:
“If any person who holds office as a member of a statutory Corporation is elected as a member of Parliament, he shall Unless it is otherwise provided by Parliament, thereupon cease To hold office as a member of the corporation”
The Constitution of Sierra Leone, Act No. 12 of 1978, specifically section 156(1) thereof, adopted the definition of “public officer” as was contained in the 1971 Constitution. The relevant provision for resignation was section 45(1)(b) thereof, which stated:
“No person shall be qualified for election or appointment as a Member of Parliament if he is a member of any Commission established under this Constitution, or a member of the armed forces of the Republic or has been such member within twelve months prior to the date on which he seeks to be elected”
then in section 45(6), the seeming exclusionary provision was made as follows:
“A person shall not be disqualified for election or appointment as a member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of Vice President, Minister,
Deputy Minister, Special Parliamentary Assistant, Paramount Chief, member of a Chiefdom Council, Member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws”
two fundamental observations are worth noting from the provisions in the 1971 and 1978 Constitutions. Firstly, unlike in section 22(1)(b) of the 1971 Republican Constitution where the expression “public officer” is specifically mentioned among those required to vacate office before twelve months to the date their election is sought, section 45(1)(b) of the 1978 Constitution omitted it. Secondly, whilst one provision was seeking to disqualify some persons, you could see that a counter provision was retained to make total nonsense of the disqualification. By so doing, what the constitution did in effect was to create and legitimize a discriminatory policy on resignation.
Is the case any different in the 1991 Constitution? We shall see eventually. Thirdly, both constitutions contained no express provisions on the requirement to resign if one was contesting for the presidency.
I have had the temptation to normally go back in time and have a glimpse of the constitution(s) immediately preceding the 1991 constitution, and it’s a temptation I am not usually strong at resisting. I do so bearing in mind the struggle that may have existed between the one party school of old on the one hand, and the emerging liberal school on the other. Bearing this in mind helps shed light on some seemingly ambivalent provisions in the 1991 Constitution.
The current framework of public officers’ resignation
“Public office” and “public officer” are defined in section 171(1) of the Constitution of Sierra Leone, Act No. 6 of 1991 as follows:
“Public office” includes an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of monies provided by Parliament” “Public officer” means a person holding or acting in a public office”
There is quite an array of public offices as a matter of fact, and when one takes time to highlight those whose salaries are paid from the Consolidated Revenue Fund, then you realize that the public workforce is not only expansive, but inconceivably over-bloated. I dare say, by the definition of public office that, the President is the “chief public officer”, the Vice President is the “Deputy Chief Public Officer”, and so on and so forth.
Those who are admitted into employment through the agency of the ‘Public Service Commission’ are sometimes classified as the ‘proper’ public servants. To my mind, that is a rather narrow construction of the term, and I say this because holding any public office in itself corresponds to performing a public service. That is the general view of things. Justice Ade Renner-Thomas (then Chief Justice), opined in the case of Charles F. Margai and Solomon Berewa as follows:
“It is my considered view that the three terms “public officer”,
“public office” and “public service” have the same connotation and are inextricably linked. Thus, based on this premise, I can properly state that a public officer is a person who holds a public office in the public service of the Government of Sierra Leone”
Proceeding on that basis then that a public officer in Sierra Leone is also a public servant, there is the issue of declassification to deal with.
Section 171(4) of the 1991 Constitution has created a situation whereby certain persons/offices are excluded from the broad categorization of ‘public servants’.
Section 171(4) provides:
“In this Constitution “the public service” does not include service in the office of President, Vice President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament, or any member of any Commission established by this Constitution, or any member of any council, board, panel, Committee, or other similar body (whether incorporate or not) Established by or under any law, or in the office of any Paramount Chief, Chiefdom Council or member of a Local Court”
This exclusion indeed has implications, and such implications become prominent in the run-up to presidential and general elections. How do I put this in its relevant context?
Qualification for presidency
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”
It goes without saying that, in order to be qualified for election as president, you must have fulfilled the qualification criteria for election as Member of Parliament. There is a four-fold condition for election as Member of Parliament, set out under Section 75 of the 1991 Constitution as follows: being a citizen otherwise than by naturalization, being at least 21 years, being an elector with one’s name on the register of electors, and proficient in speaking and writing English. Section 76(1) of the 1991 Constitution further sets out certain circumstances under which one might be disqualified for election to Parliament, and the relevant areas in my assessment are 76(1)(b) and (h).
“No person shall be qualified for election as a member of Parliament 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”
Now, Section 76(1)(h):
“No person shall be qualified for election as a Member of Parliament if he is for the time being the President, the Vice President, a Minister or a Deputy Minister under the Provisions of this Constitution”
A few observations
Firstly, there is no express disqualification clause (whether or not including the requirement to resign) for a person seeking to be elected as president. Therefore, the question that arises is whether the expression “…twelve months prior to the date on which he seeks to be elected to Parliament” should also be construed as twelve months prior to the date on which one seeks to be elected as president. One school of thought proffers that those who specifically seek election as president, and not running for parliamentary seat, have no business resigning. The other school holds that because qualification for election as Member of Parliament forms part of the qualification for election as President, then, the obligation to resign at least twelve months to the date you seek to be elected is not limited to a parliamentary bid, but covers those who seek election as President as well. Members of this school believe that Parliament had no intention to let the resignation requirement have limited application.
Secondly, having regard to Section 43(3) of the Public Elections Act 2012 and Section 43 of the 1991 Constitution, there is no express obligation on the National Electoral Commission to declare a date for presidential elections at least twelve months prior to the date of the elections; and similarly, having regard to Section 57 of The Public Elections Act 2012, there is no express obligation on the President to declare a date for general elections at least twelve months prior to the date of the said elections. What then would be the implication if the declaration of date is made less than twelve months to the elections? Can public officers be forgiven for resigning less than twelve months, or would there be an avalanche of objections to party nominations and petitions to elections? This is food for thought. However, in my earlier commentary on presidential elections’ time conundrum, I did propose that the constitution be amended to have date for elections fixed by law.
Thirdly, there is the question of infringement on or infraction from the fixed term theory. Presidents and Vice Presidents are elected on the same party ticket for a fixed term of five years, and this tenure similarly applies to Members of Parliament. A careful reading and literal interpretation of section 76(1)(b) and(h) supra would demand that public officers not only in appointive offices, but even those in elective offices vacate their seats within twelve months prior to the date they seek to be elected. In fact, section 76(1)(h) is a time-bomb for presidents, vice presidents, ministers, and deputy ministers. That means, an incumbent president, vice president, and substantive ministers and deputy ministers must vacate their seats before re-election and/or election. If presidents, vice presidents, and members of parliament should resign at least twelve months to elections, it means they can only serve for not more than four years, and use the last year to pursue their political ambitions. This will amount to a complete carnage of the five years enshrined in the constitution. In that case, there will be no need for dissolution of Parliament when the five years would have effluxed, because at the fourth year, Parliamentarians have vacated their seats. In the same vein, our President and Vice President can only utilize four out of the five years provided for. This will amount to a political brouhaha and a government shut-down.
The fourth observation is the period of twelve months. If public officers are expected to resign at least twelve months prior to date of elections, whilst the constitution talks about holding elections within three months from the date the term is deemed expired, won’t the twelve months period be perceived as quite long? The most plausible answer to that would be, if public officers were allowed to resign willy-nilly, then it means no sufficient notice is issued by them to the state. It would be bad employment practice. An employer is entitled to reasonable notice of resignation.
Also, what about losing very fine public officers to resignation, only for them to fail in their bid and cannot be readmitted into the service? Well, politics, they say, is a game of chance and chess. If it is more appealing and perhaps more rewarding to a non-elective office, then, it is left with all of us to decide. My advice is that we weigh our chances well.
The Case of Charles F. Margai and Solomon Berewa
On the 3rd of August 2007, the Supreme Court determined a challenge to the presidential candidacy of Solomon Ekuma Berewa. One of the issues dealt with in that matter had to do with the resignation requirement. As incumbent vice president, Solomon Berewa was elected at the party convention as the presidential candidate, and eventually nominated at NEC.
One of the outcomes of that case, was that the supreme court validated the exclusion provided for under section 171(4) of the constitution, thus holding among others that, the vice president was not a public servant.
Going forward, there has to be close attention paid to sections 171(4) and 76(1)(h) of the 1991 Constitution, among others.
It is my respectful view that because the constitution has enshrined a fixed term of five years for president, vice president, and members of parliament, any resignation by such persons prior to the effluxion of time would amount to carnage of the five years. It therefore makes sense where an incumbent president, vice president, or member of parliament could remain in office and seek re-election. For members of parliament seeking re-election, they only vacate at dissolution of parliament, and not 12 months to elections. For persons holding appointive offices on the other hand, it readily suggests unjust and inequitable practice for some persons to remain in appointive offices whilst others have resigned. It becomes absurd for instance, where ambassadors and other officers seeking presidential or parliamentary seat, will resign, and ministers and deputy ministers remain in post. They were all appointed.
The issue at hand has to be discussed within the broader context of the actual and potential conflicts and damaging outcomes that public servants’ involvement in politics can occasion. In Kenya, Section 23(3) of the Leadership and Integrity Act prohibit public officers from engaging in the activities of any political party or acting as an agent of a political party or candidate in an election and publicly supporting or opposing any political party or candidate participating in an election. Commenting on a similar issue, Lady Justice Mumbi Ngugi had pointed out that “The intent behind these provisions was to lessen the considerable influence that public officers have historically yielded in public affairs which was deemed to give them an unfair advantage over others in the electoral context.”
I hope this piece has made a good reading.
Solomon A.J Jamiru
Tuesday March 14, 2017