Hon Abdul Kargbo & Another v Attorney-General and Minister of Justice & Another (SC MISC APP 2 of 2022) [2023] SLSC 5 (27 January 2023)

oft Por stew A 4 S Ra S.C. Mise APP. NO. 06/2022 C fj : IN THE SUPREME COURT OF SIERRA LEONE — IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991, SECTIONS 33, 38: 74(1)(b); 77(m); 108(7) (8): 124 AND 127 AND IN THE MATTER OF SECTIONS 38(A)(1), (2), (3) &

(4) OF THE CONSTITUTIONAL AMENDMENT ACT, 2001 AND IN THE MATTER OF SECTIONS 55, 56, 68 AND 171 OF THE PUBLIC ELECTIONS ACT, 2022 AND SCHEDULE THERETO AND IN THE MATTER OF AN ACTION PURSUANT TO THE SUPREME COURT RULES 1982 PART XVI, RULES 89 - 98 OF STATUTORY INSTRUMENT NO. 1 OF 1982 AND IN THE MATTER OF THE PRESS STATEMENT BY THE ELECTORAL COMMISSION OF SIERRA LEONE DATED THE 21°" OCTOBER, 2022 AND IN THE MATTER OF THE STATUTORY INSTRUMENT NO. 83 PUBLISHED IN THE SIERRA LEONE EXTRA ORDINARY GAZETTE VOL. CXLXIII DATED 16" NOVEMBER 2022 BETWEEN: HON. ABDUL KARGBO 39 NYLANDER STREET FREETOWN : 15" PLAINTIFF COUNCILLOR HAKIRATU MAXWELL-CAULKER BLOCK 11 D LOW-COST HOUSING SITE 1 - 2%” PLAINTIFF KISSY MESS MESS _ FREETOWN AND

7 ATTORNEY-GENERAL AND MINISTER OF JUSTICE * LAW OFFICERS’ DEPARTMENT - 18? DEFENDANT GUMA BUILDING FREETOWN ELECTORAL COMMISSION TOWER HILL FREETOWN - 28? DEFENDANT

Coram

HON MR. JUSTICE DESMOND BABATUNDE EDWARDS CJ HON MR. JUSTICE NICHOLAS COLIN BROWNE-MARKE JSC HON MR. JUSTICE M.F DEEN TARAWALLY JSC HON MR. JUSTICE ALUSINE SANI SESAY JSC HON MR. JUSTICE ANSUMANA IVAN SESAY JA COUNSEL: DR. ABDULAI CONTEH, JOSEPH FITZGERALD KAMARA ESQ PIOUS SESAY SNR. ADY MACAULEY, IBRAHIM KAMARA ESQ A. CAROW KAMARA were counsel for the Plaintiffs R. B. KOWA ESQ, OSMAN I. KANU ESQ, BIGAIL SUWU-KAINDOH (MS), M. P. BANGURA ESQ, T. J. FREEMAN ESQ, FRANCESS MOIGULA (MS), ADAMA BOIMA (MS), YUSUF KEKETOMA SANDY ESQ and AMARA LANSANA ESQ were counsel for the 1 Defendant DR. EMMANUEL F. ABDULAI, A. T. TURAY AND J. A. BOCKARIE ESQ were counsel for the 2™ Defendant

Judgment

DELIVERED THIS 27TH DAY OF JANUARY, 2023 Action intituled SC6/2022

1. BY Originating Notice of Motion dated the 28" of November, 2022, the Plaintiffs instituted action in the Supreme Court intituled SC 6/2022 to invoke the original jurisdiction of the Supreme Court pursuant to Sections

. 124 and 127 of Constitution Act No 6 of 1991 praying for the following ‘ Reliefs:

a) A Declaration that on a proper and purposive interpretation of Section 38A of the Constitutional Amendment Act No15 of 2001, the controlling provisions stipulated in sub-section (1) thereof, namely: “...but constituencies have not been established...” are conditions precedent to warrant or justify the holding of a general election of the ordinary Members of Parliament by the District Block system, (hereinafter referred to as the Proportional Representation System).

b) A Declaration that the Directive by the President to the Electoral Commission of Sierra Leone (ECSL) to hold any public elections for ordinary Members of Parliament by the Proportional Representation System where there are extant and subsisting constituencies is, ultra vires the Constitution, 1991 as amended.

c) A Declaration that the current Parliament was itself elected on a constituency basis as provided for in Sections 38(1), (2) and (3) and that these constituencies are still extant and subsisting.

d) A further Declaration that revision of constituencies as provided for in sub-section 4 of Section 38 does not necessarily result in the establishment of constituencies stipulated in Section 38(1) (2) & (3) but that rather the Section provides for the period when existing constituencies should be reviewed, which revision may or may not necessarily result in a delimitation of the respective boundaries of existing constituencies.

e) A Declaration that to rely on Section 38A of the 2001 Act as stated by the 24 Defendant in their Press Statement would preclude independent

. candidates from contesting for Parliament as contemplated in Section 7 77(m) of the Constitution of Sierra Leone Act No 6 of 1991.

f) A Declaration that the entirety of Section 38A of the Constitutional Amendment of 2001, does not provide nor contemplate Local Councils Elections. The ward basis on which Local Authorities were last elected is the subsisting and lawful basis on which any public elections involving Local Authorities can be held and not by the Proportional Representation System.

g) An Order restraining the 2™ Defendant, its agents, servants, privies or howsoever from taking any steps aimed at conducting the June 2023 multi-tier public elections on a Proportional Representation basis.

h) An Order directing the 2" Defendant to hold the June 2023 elections for ordinary Members of Parliament on a constituency basis as presently established.

i) A Declaration that Section 2 of the Statutory Instrument No. 83 dated 16" November, 2022 making provision for both Proportional Representation for Members of Parliament and Local Council Elections, is ultra vires Sections 33 and 38 of the Constitution, 1991.

2.The Application was supported by the Affidavits of Hon. Abdul Kargbo, Member of Parliament representing Constituency 077 in the Port Loko District in the North Western Region of the Republic of Sierra Leone and Councillor Hakiratu Maxwell- Caulker, elected councillor for ward 414 in Constituency 118 in Freetown in the Western Urban District, the 1* and 2™ plaintiffs, respectively, both sworn to on the 28" November, 2022

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3. On the affidavit of the 1* Plaintiff Hon Abdul Kargbo was attached 2 exhibits ‘ viz exhibit AK1 which is a true copy of clause 57 of the Public Elections Bill 2022 and exhibit AK2 which isa letter dated 15" November 2022 from Joseph Fitzgerald Kamara Esq of JFK and Partners, Solicitors for the Plaintiffs herein to the Secretary to the President requesting for the Secretary to the President to furnish them with a copy of the Presidential directive issued to the Chairman of the Electoral Commission to conduct the June 2023 Elections on the basis of the District Block representation system -

4. On the affidavit of the 2™ Plaintiff was attached 1 exhibit, to wit, exhibit HMCI which is a copy of the Press Statement dated 21° October 2022 from the 2™ Defendant herein.

5. Accompanying this Originating Motion and Affidavit in support of Motion was the Plaintiffs’ Statement of Case also filed on the same date, the 28" of November

6. The Defendants had 10 days thereafter service on them of the plaintiffs’ papers, without leave, to file a statement of the defendants’ case. Service of the plaintiffs’ papers was effected on the 30 of November, 2022 and on the 8" of December, 2022, both defendants obliged this Honourable Court with statements of the Defendants’ Case.

7. Taking cognisance of Rule 97 (1) of the Supreme Court Rules PN No 1 of 1982 which states that ‘this court may, after considering the statement of the plaintiffs’ case and of the Defendants’ case.......and any arguments of law decide to determine the action and give Judgment in court on a fixed date without argument seeessseee’ I have taken liberty to produce herein despite their length a verbatim production of the Plaintiffs and Defendants’ case. STATEMENT OF THE PLAINTIFF'S CASE PURSUANT TO RULE 90(2) OF THE SUPREME COURT RULES, 1982

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8. FACTS AND PARTICULARS OF THE PLAINTIFFS’ CASE

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1. The 1* Plaintiff was elected as an MP in 2019 to represent Constituency 077 in the Port Loko District in the North/Westem Region of the Republic of Sierra Leone.

2. The 2™ Plaintiff was elected as Councillor in the Freetown City Council in 2018 for Ward 414 in Constituency 118 in Freetown in the Western Area of the Republic of Sierra Leone. Both Plaintiffs were successful candidates for the All Peoples Congress Party in the aforesaid elections.

3. Since their election, the respective Constituency and Ward of both Plaintiffs are still extant and subsisting and they have not been delimited by revision nor disestablished by law or otherwise.

4. In 2022, a Bill entitled the Public Elections Bill was introduced in Parliament. Clause 57 of the said Bill provided as follows: “A general election of Members of Parliament, other than Paramount Chief Members of Parliament, shall be by — (a) the one-member constituency system under subsection (2) of Section 38 of the Constitution; or (b) the district block representation system in accordance with Section 38A of the Constitution, as set out in the Twelfth Schedule.”

5. During the first and second Readings of the Bill it was evident that there was strong and vocal opposition to the Bill insofar as it purported to introduce the district block system of voting for the ordinary Members of Parliament.

6. The Speaker of Parliament, perhaps sensing the mood of Parliament, later unilaterally withdrew the said Clause 57 from further consideration by Parliament.

7. The Speaker then pronounced from the chair that proportional representation system of election was already part of the laws of this country in light of the amendment introduced by Section 38A of the Constitutional Amendment Act No 15 of 2001.

8. Then, on the 21 day of October, 2022, the Electoral Commission for Sierra Leone issued a Press Statement in which it stated that on the directive of the President of Sierra Leone it would use the District Block voting system

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