Augustine Sorie-Sengbe Marrah v Inspector General of Police (SC APP 8 of 2018) [2022] SLSC 1 (21 April 2022)

Sup Ct case 8/2018 IN THE SUPREME COURT OF SIERRA LEONE ORIGINAL JURISDICTION IN THE MATTER OF SECTIONS 17(1); 18(1); 21(1); 28(1); 124 & 127 OF THE CONSTITUTION OF SIERRA LEONE, 1991 AND IN THE MATTER OF AN ACTION PURSUANT TO THE SUPREME COURT RULES, 1982 PART XVI, RULES 89 - 98, STATUTORY INSTRUMENT NO 1 OF

AND IN THE MATTER OF AN UNLAWFUL BAN OF UNAUTHORISED VEHICULAR MOVEMNET AND ITS ILLEGAL ENFORCEMENT BY THE SIERRA LEONE POLICE ON 7th MARCH, 2018 BETWEEN: AUGUSTINE SORIE-SENGBE MARRAH - PLAINTIFF AND THE INSPECTOR-GENERAL OF POLICE - DEFENDANT

Coram

THE HONOURABLE MR JUSTICE A H CHARM, CHIEF JUSTICE (now out of office) THE HONOURABLE MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS JUSTICE OF THE SUPREME COURT THE HONOURABLE MRS JUSTICE N MATTURI-JONES Ag JUSTICE OF THE SUPREME COURT (now retired) THE HONOURABLE MS JUSTICE G THOMPSON JUSTICE OF THE SUPREME COURT COUNSEL: YADA WILLIAMS ESQ and ABDUL KARIM KOROMA for the Plaintiff

OSMAN KANU ESQ, Principal State Counsel and M CONTEH ESQ for the Defendant JUDGMENT DELIVERED THE 21st DAY OF APRIL, 2022 BROWNE-MARKE, JSC

1. The Plaintiff in this action is a practising Barrister and Solicitor. He has brought this action, seeking clarification about certain measures which were taken by the Sierra Leone Police under the direction of the Defendant, the Inspector General of Police, on election day, 2018. The Plaintiff contends in this action, that these measures contravened rights conferred by our Constitution, the Constitution of Sierra Leone, 1991, Act No 6 of 1991 - hereafter "the 1991 Constitution". Further, that these measures were not, in any event, legally justifiable in a democratic society. Five questions were raised by him in his Originating Notice of Motion filed in this Court's Registry on 25 April, 2018; and if these questions are determined in his favour, he is asking for eight reliefs.

2. The questions raised by the Plaintiff are as follows:

(1) Whether on a true and proper construction and/or interpretation of section 18 of the 1991 Constitution, the Defendant acted lawfully and/or was legally justified in placing a ban on what was described as unauthorised vehicular movement - i.e. vehicles without National Electoral Commission (NEC) accreditation - to ply the streets and routes of Sierra Leone on 7th March,2018, being the gazetted day for Presidential, Parliamentary and Local Council elections, by virtue of a press release-dated 26th February, 2018 and revised/reviewed on 5th March, 2018.

(2) Whether the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 5th February, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle, with registration number ANC 636, by officers acting under the command and instructions of the Defendant was lawful or was in contravention of section 17(1) of the 1991 Constitution.

(3) Whether the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 5th March, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle, with registration

number ANC 636, by officers acting under the command and instructions of the Defendant was lawful or was in contravention of section 18(1) of the 1991 Constitution.

(4) Whether the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 5th March, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle, with registration number ANC 636, by officers acting under the command and instructions of the Defendant was lawful or was in contravention of section 21 (1) of the 1991 Constitution.

(5) Whether the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 5th March, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle, with registration number ANC 636, by officers acting under the command and instructions of the Defendant was lawful, the Plaintiff's right to vote as enshrined in section 31 of the 1991 Constitution was unlawfully obstructed, hindered and violated by the Defendant.

3. If these questions are answered in the Plaintiff's favour, he seeks the following reliefs:

(1) A Declaration that the ban contained in the said press release by the Defendant dated 26th February, 2018 and revised on 6th (not 5th) March, 2018 was/is in part and in whole, inconsistent with, or, in violation of section 18 of the 1991 Constitution, and was therefore unconstitutional and/or null and void.

(2) A Declaration that the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 6+h March, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle , with registration number ANC 636, by officers acting under the command and instructions of the Defendant, was inconsistent with and violated the Plaintiff's right to freedom of movement as enshrined in section 18 of the 1991 Constitution.

(3) A Declaration that the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 and revised on 6th March, 2018 by the stop, arrest and/or

detention of the person of the Plaintiff and his motor vehicle , with registration number ANC 636, by officers acting under the command and instructions of the Defendant, was inconsistent with, and violated the Plaintiff's right to protection from arbitrary arrest and detention as enshrined in section 17 of the 1991 Constitution.

(4) A Declaration that the enforcement, application and/or execution of the ban contained in the said press release dated 26+h February, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle , with registration number ANC 636, by officers acting under the command and instructions of the Defendant, was inconsistent with and violated the Plaintiff's right to protection from deprivation of property as enshrined in section 21 of the 1991 Constitution.

(5) A Declaration that the enforcement, application and/or execution of the ban contained in the said press release dated 26th February, 2018 by the stop, arrest and/or detention of the person of the Plaintiff and his motor vehicle , with registration number ANC 636, by officers acting under the command and instructions of the Defendant, undermined and/or deprived the Plaintiff of the exercise of his constitutional right to vote, as stipulated in section 31 of the 1991 Constitution during the public elections of 7th March, 2018.

(6) Compensatory Damages for each and all declarations/holdings of violation in regard to the 1st to 5th reliefs prayed for.

(7) Any other or further Orders that this Honourable Court may deem fit and just.

(8) Costs of the action

4. The Plaintiff brings the action in his capacity as a citizen of Sierra Leone by birth, and as a duly registered voter for the public elections on 7 March, 2018.

5. The Motion is supported by the affidavit of the Plaintiff himself, deposed and sworn to on 23 April, 2018 with several documents exhibited to it. THE PLAINTFF'S AFFIDAVIT

6. The Plaintiff starts by deposing that he is a registered voter and exhibits his voter identification card as "ASM1". His ID number is 3389276. He is also a Legal Practitioner with a then current Practising Certificate issued by the General Legal Council on 10 January, 2018. In his paragraph 4, he deposes to the issuing of the press release by the Defendant on 26th February, 2018. The release is exhibited as "ASM3." It would be useful to set it out verbatim. "VEHICLE RESTRICTION ON POLLING bAY The Sierra Leone Police has agreed with registered political parties and other stakeholders to restrict the movement of too many vehicles on the 7th March, 2018, (which is election polling day) from 6.00am to 7pm. No vehicle unaccredited by NEC will be allowed to ply on polling day. This is done in the interest of public order and public safety pursuant to section 18(3) of the 1991 Constitution, and section 32 of the Police Act of 1964. The said restriction will be focused on the 16 bistrict Headquarter Towns including the Western Area Urban and the Western Area Rural. No inter-bistrict movement of accredited vehicles of political parties will be allowed. The vehicle restriction does not cover the rural areas, or areas outside the bistrict Headquarter Towns. This restriction is not in any way inhibiting the free movement of voters, and other persons going about their normal lawful business, as long as they do not loiter within 300 metres of a polling centre. Accreditation will be granted to the following classes of vehicles: - • Vehicles of political parties without party colours and emblems • Vehicles belonging to Elections Management Bodies (NEC, PPRC, Security Services) • Vehicles belonging to International/Local Observers accredited by NEC • Vehicles belonging to Media Houses, Civil Society organizations and the Sierra Leone Bar Association. • Vehicles belonging to Essential Service Institutions • Vehicles belonging to biplomatic Missions • Hired SLRTC and Additional Commercial buses. The SLRTC Buses will be plying designated routes at no cost to members of the public. Commuters are, however, required to produce Voter Identity Cards before boarding. Members of the public who do not wish to use the gratis

SLRTC Buses are required to pay the normal transport fare for use of the additional designated Commercial buses provided. Consideration will be given to persons travelling in or out of the country by Air upon the production of valid Air tickets and Passports. The public is further informed that the Police could be reached for any emergency service on the following numbers........... DR RICHARD MOIGBE 26/2/2018

Inspector-general of Police

7. I shall return to the significance of this release later in this judgment. In that release, the IGP referred to an agreement reached with political parties. The agreement was reduced into writing and was described as a Memorandum of Understanding. It is exhibited to the Plaintiff's affidavit as "ASM4". It was signed for and on behalf of 12 of the 16 registered political parties. It was not assented to by the SLPP, nor the NGC, nor PPRC, nor NEC. As such, the first line of the press release was a bit misleading. Only a majority of the political parties had signed up. Four of them did not do so.

8. The Sierra Leone Bar Association of which the Plaintiff is a Member issued a press release as well on 5th March, 2018. It is exhibited as "ASM5." The Association pointed out that section 18(3) of the Constitution did not support the stance taken by the TGP; and that section 32 of the Police Act, 1964 on which the IGP also relied, had been repealed. The release also emphasised the right to freedom of movement * of the citizenry.

9. In his paragraph 8, the Plaintiff deposes to the views expressed by the Executive Director of the Centre for Accountability and the Rule of Law, CARL. CARL challenges the Defendant to come up with any legal justification to support the ban on the movement of vehicles on election day. Copies of CARL's Executive Director’s thoughts on the issue are exhibited as “AMS6 (1&2)." Similar views to that of CARL were expressed by the Institute for Governance Reform. A copy of their press release is exhibited as “ASM 7". Another press release from the Renaissance movement of which, the Plaintiff was then interim Chairman is exhibited as "ASM8".

10. In response to these several press releases, the befendant issued another press release on 6th March, 2018. It is exhibited as "ASM9". It stated that though an injunction had been issued by the High Court against the befendant, the same had been set aside on 6th (not 5th) March, 2018, and that the Police would go ahead with the imposition of the ban on movement of vehicles. This last release makes the astonishing and incomprehensible claim that the ban was on the movement of vehicles, and not people. Since we have not advanced to the stage of using as a means of public transport, driverless vehicles, a ban on vehicles, amounts to a ban on people driving cars, or, being driven in cars.

11. The Plaintiff then moves on, beginning with his paragraph 12, to explain his own personal experience of what this ban amounted to. He left his residence at Aberdeen in West Urban Freetown, in his vehicle registration number ANC 636, for Thunder-hill, Kissy where he was registered to vote. He was stopped at East End Police Station and was asked for his authorization to drive a vehicle. He said he had none, as he did not fall into any of the categories of persons who would be issued with one. He was told in no uncertain terms that he could not proceed on his journey with his vehicle. He was taken to the East End Police Station where he was asked to take a seat on a wooden bench with inadequate ventilation. His driver's licence and car keys were taken away. In effect, he was detained, as his liberty and movements had become restricted by the Police officers who were on duty. He, being a lawyer, was subjected to the further and graver indignity of having an already prepared statement put into his hands and then asked to accept its contents. In it, he was recorded as saying that he agreed with the Police version of events that he did not have the requisite authority to ply the streets that day. He refused to accept it as his. As such, an instruction was given by one of the senior officers present that he be recorded as refusing to sign his statement. The Plaintiff protested at the way he was being treated. Instead of trying to placate him, the senior officer said another Statement would be taken from him, but he would be detained until charged to Court. The Plaintiff was allowed to call on two of his colleagues Messrs Bernard Jones and Musa Bittar, who turned up at the Station. The Plaintiff gave his statement; he asked for a copy, but the request was refused. He wrote letters asking for it. These letters are

exhibited as "ASM10 (1-3)". He was eventually released after 3pm, but was told his vehicle would not be released to him until after 7pm.

12. As a result of his detention by the Police, the Plaintiff was unable to get to the polling station at Kissy, thus depriving him of his right to vote. He was able to get back to his residence by a vehicle which had NEC authorization. His vehicle was only handed back to him around Ham the following day, 8th March, 2018. He ends by repeating the reliefs he is seeking in the Motion. ASSESSMENT OF THE CONTENTS OF PLAINTIFF'S AFFIDAVIT

13. This, of course, is the Plaintiff's version of events. But he has not been contradicted in any material particular by the Respondent. It makes unpleasant reading. It seems incredible that 18 years after the beginning of the 21st century, Police officers could act in such an unprofessional manner. That the Plaintiff was a lawyer, seemed to be of little moment to them. If a lawyer could undergo such indignities, one can well imagine, a less fortunate person faring worse. PLAINTIFF'S STATEMENT OF CASE

14. The Plaintiff has also filed a statement of case in compliance with Rule 89 of the Supreme Court Rules, 1982, hereafter "SCR, 1982". The whole of paragraph 2, narrates the events of 7th and 8th March, 2018, respectively. They detail, as in the Plaintiff's affidavit, the manner in which he was treated by the SLP.

15. Paragraph 3 deals, with the Plaintiff's right to bring the proceedings herein in this Court. This Court has original jurisdiction to hear and determine any claim alleging that a person's rights guaranteed under the Constitution, have been violated, or, are about to be violated. SECTION 28 OF THE 1991 CONSTITUTION

16. The Plaintiff has invoked, specifically, section 28 of the Constitution. It states; "28(1) Subject to the provisions of subsection (4), if any person alleges that any of the provisions of sectionsl6 - 27 (inclusive) has been, is being, or, is likely to be contravened in relation to him by any person (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained), then, without prejudice to any other action with

respect to the same matter which is lawfully available, that person, (or, that other person), may apply by Motion to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction - (a) t0 hear ancj determine any application made by any person in pursuance of subsection (1); and (b) to determine any question arising in the case of any person which is referred to in pursuance of subsection (3), and may make such order, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing, or, securing the enforcement of any of the provisions of the said sections 16 - 27 (inclusive) to the protection of which the person concerned is entitled: Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are, or, have been available to the person concerned under any other law."