Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• Expectation from promise or practice; must be clear, unambiguous, unqualified.
• Procedural (GCHQ) vs substantive (Coughlan); departure controlled by fairness/abuse of power.

SUMMARY

• Ouster clauses try to exclude review; Anisminic construes them against immunity for unlawful decisions.
• Error of law = nullity = no "determination" = ouster bites on nothing.
• SL: constitutional supremacy adds invalidity argument to restrictive construction.

SUMMARY

• Remedies via s 134: quash, compel, restrain, declare, enjoin, compensate; review vs statutory appeal.
• Tribunals: specialist, quick, supervised; Ombudsman (s 146; 1997 Act): maladministration, persuasive remedies; ACC: prosecutes corruption independently.

SUMMARY

• Counter-majoritarian difficulty (Bickel).
• Four answers: legalist (Marbury); rights-protection (Makwanyane); process (Ely); sceptical (Waldron).
• Localise: post-conflict SL strengthens the rights rationale, conditional on real independence.

SUMMARY

• Restrictive tradition (Gouriet) vs PIL revolution (SP Gupta) vs constitutionalised broad standing (SA s 38; Kenya arts 22/258).
• SL: narrower text (ss 24/28) but purposive expansion in practice.
• Justiciability filters: political question, ripeness, mootness.

SUMMARY

• Diffuse (US) vs concentrated (Kelsen/Germany) vs hybrid.
• SL: hybrid tilted concentrated: SC monopoly on constitutional questions (ss 124/127/28); HC supervises administration (s 134).
• Trade-off: doctrinal coherence vs accessibility.

SUMMARY

• Three freedoms (executive, legislative, political); s 120.
• Four safeguards: tenure; finance; appointment; removal, appointment overlap accepted if rule-bound.
• Accountability complements independence; threats: pressure, dominance, enforcement failure.
• Ghana/Torkornoo (2025-26): art 146 removal; ECOWAS dismissed her claims (June 2026); process vs abuse question; regional forum trend.

SUMMARY

• Facts: expulsion from APC; removal by President (17 March 2015); replacement appointed.
• SC (9 Sept 2015): removal valid; party membership a continuing qualification; implied power via s 40 guardianship.
• Critique: express procedures exhaustive; executive has only conferred powers.
• ECOWAS (2017): removal violated his rights; unenforced: law in books vs law in action.
• Bangura: unverified; use verified authorities instead.

SUMMARY

• Activism vs restraint: postures, exemplars; discipline = competence + legitimacy.
• Remedies: declaration + severance; suspended declaration; injunction/mandamus; damages; structural orders.

34. The Comparative Method and Legal Families

The first rule of comparison is the lecture’s own: the comparator must have similarity. Comparing Sierra Leone’s judicial review with Germany’s teaches little unless the institutional contexts are held honestly in view; comparing with Ghana, Nigeria, Kenya and South Africa, common law African states with supreme constitutions and post-authoritarian histories, teaches much. Methodologists distinguish functionalism (compare how different systems solve the same problem), contextualism (rules only make sense inside their history and politics) and the study of legal transplants (rules migrate, but may mutate on arrival).

The world’s systems sort into families. Common law systems (England, Nigeria, Ghana, Sierra Leone) reason from judicial precedent under stare decisis, with adversarial procedure. Civil law systems (France, Germany, their African successors) reason from codes and doctrine, with inquisitorial procedure and, typically, concentrated constitutional courts. Mixed systems blend sources: South Africa (common law, Roman-Dutch civil law and indigenous African law) and Botswana are the lecture’s examples, and Sierra Leone is itself mixed in a different sense, formal law running alongside recognised customary law and local courts.

Case Study: Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC)

Facts. The Richtersveld community, an indigenous people of the Northern Cape, was dispossessed of diamond-rich ancestral land in the 1920s once diamonds were found; the land ended with Alexkor, a state mining company. Under the Restitution of Land Rights Act, restitution turned on whether the community held rights in the land in 1913 and was dispossessed by racially discriminatory law or practice. Issue. Did the community hold rights in land under its own indigenous law, and how should a modern court find and apply that law? Decision. The Constitutional Court held that the community owned the land, minerals included, under indigenous law, and stated the principle for which the case is cited across Africa: indigenous law is an independent and original source of law, living, evolving and to be ascertained on its own terms, not through the distorting lens of common law categories, and valid subject only to the Constitution. Why it matters in Sierra Leone. It dignifies customary law’s place in a mixed system: customary tenure and institutions are law, not anthropology, and constitutional supremacy, not common law condescension, is their only master, a principle with direct purchase on provincial land law and the Customary Land Rights Act 2022.