8. The President and the Executive

The office

Section 40(1): There is a President of the Republic, who is Head of State, Supreme Executive Authority and Commander-in-Chief of the Armed Forces. The President is described as the fountain of honour and justice and the symbol of national unity and sovereignty.

Section 40(4) duties: The President is responsible for constitutional matters concerning legislation, relations with foreign states, receiving envoys and appointing ambassadors, signing treaties, the prerogative of mercy, honours, and declaring war. A treaty that touches Parliament's legislative competence, changes the law or imposes a charge on public funds, and any declaration of war, must be ratified by Parliament.

Qualifications and election

Section 41: A presidential candidate must be a citizen of Sierra Leone, a member of a political party, at least 40 years old, and otherwise qualified to be elected to Parliament.

Nomination and voters: A candidate is nominated by a political party. Everyone registered to vote in parliamentary elections may vote.

The 55 per cent rule: Where there is more than one candidate, a person is elected only if he wins at least 55 per cent of the valid votes. Otherwise the two leading candidates face a run-off within fourteen days, and the one with more votes wins (section 42(2)(e)).

Disputes: The Chief Electoral Commissioner is the returning officer. The Supreme Court decides any question about whether a person was validly elected President.

Tenure

Two terms: No person may hold office as President for more than two five-year terms, whether or not they are consecutive (section 46).

No other paid office: The President may not hold any other office of profit. He takes an oath administered by the Chief Justice.

Immunity: While in office the President is immune from civil and criminal proceedings in court (section 48(4)).

When the office falls vacant

Section 49: The office falls vacant when the term ends, on death, resignation or retirement, or on removal under sections 50 or 51. The Vice President then takes office for the rest of the term.

Incapacity, section 50: If the Cabinet resolves that the President's mental or physical capacity should be investigated, a medical board is appointed. If the board reports that the President is incapable, the office falls vacant.

Misconduct, section 51: A notice signed by at least half of all Members, alleging a violation of the Constitution or gross misconduct, starts the process. If at least two-thirds of all Members support the motion, the Chief Justice appoints a tribunal chaired by a Justice of the Supreme Court. The President may appear and be represented. If the tribunal finds the allegations proved, Parliament may remove the President by a two-thirds vote.

The Vice President

Section 54: The Vice President is the principal assistant of the President. He is named as running mate by the presidential candidate and elected with him. He must have the same qualifications as the President. If the office of Vice President falls vacant, the President appoints a replacement with the approval of Parliament.

Ministers and the Cabinet

Ministers outside Parliament: The President may create offices of Ministers and Deputy Ministers, but no Member of Parliament may be appointed (section 56(1)). A nominee must be qualified for election to Parliament and must be approved by Parliament (section 56(2)).

The Cabinet: Section 59 sets up a Cabinet of the President, the Vice President and such Ministers as the President appoints. It advises the President and decides the general policy of government.

Collective responsibility: The Cabinet is collectively responsible to Parliament for advice given to the President and for what Ministers do in their offices (section 60).

The Attorney-General

Section 64: The Attorney-General and Minister of Justice is the principal legal adviser to the government and a Minister. He is appointed by the President from people qualified to be Justices of the Supreme Court. Criminal prosecutions in the name of the Republic are at his suit.

No parliamentary approval needed: In Sierra Leone Bar Association v Attorney-General and Minister of Justice (2004) the Supreme Court held that the appointment of the Attorney-General under section 64 is not subject to the parliamentary approval required for other Ministers by section 56(2).

The executive function

What the Executive does: The Executive directs general policy, proposes legislation, keeps law and order and runs public services. In Town Investments v Department of the Environment (1978) the House of Lords treated a lease taken by a minister as taken by the Crown. In R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) the House of Lords held that a minister could not use the prerogative to set up a scheme that defeated a statutory scheme Parliament had passed.