Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• Schools: originalism; living constitution; purposive; structural.
• Commonwealth Africa: generous and purposive, especially for rights (Tuffuor; Rabiu).
• Canons: whole-text reading; avoidance; no surplusage; ejusdem generis; expressio unius; generalia specialibus.

SUMMARY

• s 29: presidential proclamation in defined situations; parliamentary control; limited derogation.
• Five design questions: declarer; approver; duration; non-derogable rights; oversight.

9. Further Research for Part I; Master Recall

Primary texts. Read the 1991 Constitution itself, at least Chapters III, V, VI and VII, with ss 53, 73, 106, 108, 120, 124, 127, 134 and 171(15) marked; then the TRC, Witness to Truth (2004), especially the volume the tutor assigns on governance and the causes of the conflict, and the Constitutional Review Committee Report (2017) with the Government White Paper response.

Scholarship. Montesquieu and Locke in extract; Dicey, Introduction to the Study of the Law of the Constitution; Bingham, The Rule of Law; Hilaire Barnett, Constitutional and Administrative Law (Routledge, latest edition) for structure; Jacobsohn, Constitutional Identity; Roznai, Unconstitutional Constitutional Amendments; Charles Fombad (ed), Separation of Powers in African Constitutionalism (OUP 2016) for the African comparative frame. On Sierra Leone specifically, the course tutor’s books connect these foundations to governance practice: Emmanuel Saffa Abdulai, Freedom of Information Law and Good Governance: The Curse of Corruption in Sierra Leone

(2021) and The Diverse Facets of Corruption in Sierra Leone (2024).

SUMMARY

• Fundamental rights: basic, supreme, binding on all organs, entrenched, justiciable.
• Three foundations: natural law (recognised, not created); positivism (enacted); social contract (terms of legitimacy).

SUMMARY

• Catalogue: s 15 umbrella; ss 16-27 substantive; s 28 enforcement; s 29 emergency; s 30 interpretation.
• Most rights qualified by internal limitation clauses; s 20 (torture) absolute.
• Two-tier design: Ch III justiciable civil-political rights; Ch II non-justiciable directive principles (s 14).

Case Study: S v Makwanyane 1995 (3) SA 391 (CC)

Facts. Two men were sentenced to death for murder under South African law. The new interim Constitution of 1993 guaranteed the rights to life and dignity and prohibited cruel, inhuman or degrading punishment, but said nothing express about capital punishment. The Constitutional Court, in its very first great case, had to decide whether the death penalty survived. Issue. Is capital punishment consistent with the rights to life and dignity and the prohibition of cruel punishment, given the limitation clause? Decision. A unanimous Court struck the death penalty down. Chaskalson P applied limitation analysis proportionately: the state’s aims, deterrence and retribution, were legitimate, but the evidence that execution deters better than long imprisonment was unproven, and the ultimate, irreversible destruction of life and dignity could not be a proportionate means. Famously, the Court refused to follow public opinion, which favoured hanging: constitutional rights exist precisely to protect the unpopular, and the Court answers to the Constitution, not the crowd. Principles. (a) Proportionality as the grammar of limitation. (b) Counter-majoritarian role of constitutional courts. (c) Dignity as the organising value of a rights order. Why it matters in Sierra Leone. Sierra Leone abolished the death penalty by statute in 2021; Makwanyane supplies the constitutional reasoning that would resist any attempt to bring it back, and it is the standard citation for proportionality review and for judicial courage against popular pressure.

SUMMARY

• Proportionality: legitimate aim; rational connection; least restrictive means; fair balance (Oakes; Barak).
• SL clauses say "reasonably required in a democratic society"; read through proportionality.
• Makwanyane: death penalty unconstitutional; dignity central; public opinion not decisive.

SUMMARY

• Negative = refrain; positive = provide. Objection: budgets; answer: all rights cost money.
• Models: India (directive principles read into life); SA (justiciable, progressive realisation, Grootboom reasonableness); SL/Nigeria (two-tier, non-justiciable).
• ECOWAS side door: SERAP makes Charter socio-economic rights justiciable regionally.