Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• Sources: syllabus; lecture materials; verified constitutional and statutory texts; Commonwealth and African case law and scholarship.
• Method: plain-language first; cases as stories with memory hooks; Summary and Recall boxes per chapter; Further Research and Master Recall per Part.
• Key corrections: executive power is s 53 (not s 56); Supreme Court original constitutional jurisdiction is s 124 (not s 111); vacation of seats (cross-carpeting) is s 77.

PART I: CORE FOUNDATIONS OF CONSTITUTIONAL LAW

1. What a Constitution Is: Nature, Sources and Evolution

Start with the simplest picture. A country is like a very large team, and a constitution is the rulebook that says who is captain, who picks the players, who referees, and what no one, not even the captain, is allowed to do. In legal language, a constitution is the body of rules, written or unwritten, that establishes the organs of the state, distributes power among them, and defines the relationship between the state and the individual. The Constitution of Sierra Leone 1991 does all three: it creates the Presidency, Parliament and the Judiciary; it shares power among them; and in Chapter III it promises every person a set of fundamental rights that the state must respect. 1.1 Two Rival Answers to the Question: Where Does Law Come From?

Natural law is the theory that law is grounded in moral principles which exist before and above any government: principles derived from nature, reason or divine authority. Its key idea, associated with thinkers from Aquinas to Locke, is that an unjust law is not truly law at all. Natural law matters to a constitutional lawyer because it supplies the moral foundation of fundamental rights: the idea that people have rights simply because they are human, which the constitution recognises rather than creates. The Universal Declaration of Human Rights of 1948 is drafted in this register: rights are declared, not invented.

Positive law is the rival theory: law is whatever has been validly enacted by a recognised authority, whatever its moral quality. Austin described laws as commands of a sovereign; Kelsen built a hierarchy of norms resting on a basic norm; Hart explained legal validity through a rule of recognition. The 1991 Constitution is, in this sense, positive law: it is valid because it was formally adopted, approved at referendum, and enacted as Act No 6 of 1991. The two theories are not enemies in practice. The Constitution is positive law in its form and natural law in much of its content: Chapter III writes moral entitlements into enforceable text. When the Supreme Court interprets Chapter III generously, it is reading positive law through natural law spectacles.

1.2 The Evolution of the Sierra Leonean Constitution

Sierra Leone has lived under a succession of constitutional orders: the Independence Constitution of 1961, which retained the Queen as Head of State; the Republican Constitution of 1971, which created an executive President; the one-party Constitution of 1978, under which the All People’s Congress became the sole lawful party; and the 1991 Constitution, which restored multi-party democracy on the eve of the civil war. The Truth and Reconciliation Commission, whose report the course tutor directs every student to read, concluded that constitutional failure was among the causes of the war: the concentration of power in the executive, the emasculation of Parliament and the courts, and the one-party state all helped make conflict possible. The lecturer’s aphorism, that our constitution is our problem, is a compressed version of that finding.

Reform has been repeatedly attempted and repeatedly stalled. A Constitutional Review Committee reported in 2017 with far-reaching recommendations; the Government’s White Paper of November 2017 rejected most of them, a decision Amnesty International described as a missed opportunity for human rights. Students should contrast Kenya, which replaced its independence-era constitution wholesale in 2010, and Ghana, which has conducted comprehensive review exercises, with Sierra Leone, where the 1991 text remains substantially intact. The comparison returns in Part V.