2. Sources of law

The constitutional list

Section 170(1): The laws of Sierra Leone comprise the Constitution; laws made by or under the authority of Parliament; orders, rules, regulations and other statutory instruments made under a power in the Constitution or any other law; the existing law; and the common law.

Section 170(2): The common law of Sierra Leone comprises the rules generally known as the common law, the rules generally known as the doctrines of equity, and customary law, including rules of customary law determined by the Superior Court of Judicature.

Section 170(3): Customary law means the rules of law which by custom are applicable to particular communities in Sierra Leone.

A lecture that stops at subsection (1) is incomplete. Customary law is not outside the Constitution. It is inside the common law, by subsection (2).

The Constitution

Supreme law: Where a country has a written constitution, that constitution ranks above other law. Section 171(15) is the Sierra Leone statement of that rank. If a custom forbade a citizen to speak and Chapter III protected expression, the Constitution would prevail. The lecture's example is the right shape, even though the precise limits of expression are in the rights chapter, not in a single sentence.

A short history, for the date line only: Constitutional government is associated with the 1863 Constitution, then the 1924 and 1951 Constitutions. The 1961 Constitution was the independence constitution. The 1971 Constitution made Sierra Leone a republic. The 1978 Constitution made it a one-party state. The current Constitution is Act No. 6 of 1991. Use those dates as labels. The detailed history is in the constitutional-law notes.

Legislation

Parliament: Section 73 establishes Parliament. It consists of the President, the Speaker and the Members of Parliament. An Act usually prevails over the common law on the same point.

Habeas corpus is not a 24-hour statute: The lecture uses habeas corpus, loosely "show us the person", as an English idea that the police cannot hold someone in secret. Do not turn that into a Sierra Leone time limit. Detention in Sierra Leone is governed by section 17 of the Constitution: reasons, access to a lawyer, and being brought before a court within the periods the section states. Emergency powers, where they exist, are also constitutional, not a vague "war on terror" exception copied from elsewhere.

Delegated legislation

What it is: Parliament cannot draft every detail. It gives ministers, councils and other bodies power to make rules, regulations, orders and by-laws. Those instruments are law because section 170(1) names them, and because the parent Act authorises them. An instrument made outside that power can be challenged.

Statute law, received and local

Two groups: Some statutes were applied in Sierra Leone because it was a British colony. Others are Acts of the Parliament of Sierra Leone. Since independence, ordinary new statute law is enacted in Freetown.

Name the English Acts correctly: The Wills Act 1837 and the Larceny Act 1916 are received statutes students still meet. The Offences Against the Person Act is the Act of 1861, not 1816. A lecture that says 1816 is a slip. The Laws of Sierra Leone 1960 replaced the 1949 revised edition. The Interpretation Act 1971 (No. 8 of 1971) governs how Acts are read.

Received common law and equity

Courts Act 1965, section 74: The common law, the doctrines of equity, and the statutes of general application in force in England on 1 January 1880 apply in Sierra Leone, subject to local legislation and adapted to local circumstances. The lecture's sentence that only "the common law up to 1880" applies leaves out equity and the statutes of general application. Section 74 is the fuller rule. Later English statutes do not apply unless Sierra Leone has adopted them.

Equity: Equity is the body of rules developed in the Court of Chancery. It supplements and corrects the common law. It is not a synonym for "being fair", and it is not the same thing as the rules of natural justice in administrative law, though both use the language of fairness. Section 170(2) makes the doctrines of equity part of the common law of Sierra Leone.

Repugnancy: Lectures often say customary law does not apply if it conflicts with equity, natural justice and good conscience. That is the traditional repugnancy limit. Do not invent a constitutional quotation for it. State section 170(2) and (3) for what customary law is, and read the limit with the Local Courts Act 2011 and the legal-system chapter on customary law.

Case law

Precedent: Parliament makes the text. Courts decide what it means in a dispute. A court follows a decision of a higher court in the same hierarchy when the question is the same. That practice is stare decisis, standing by what has been decided. A higher court's decision on the point binds a lower court. The Supreme Court may depart from its own previous decision when it appears right to do so (section 122(2)). The detail is in the legal-system chapter on precedent.

Customary law

What it is: Rules which by custom bind particular communities. They are largely unwritten. In Sierra Leone they still matter for land, titles, marriage and family among persons subject to them. Section 170(2) also treats customary law as including rules determined by the Superior Court of Judicature, so a written judgment can settle a customary point.

Islamic law: Lectures often fold Islamic personal law into the customary-law heading. Muslim marriage, divorce and inheritance have their own statutes and courts practice. Say "customary law, and Islamic personal law where a statute or the parties' law applies it", rather than treating the two as identical.

The risk: A custom can be old and can conflict with rights the Constitution now protects. Age is not a defence to that conflict.

Books

Secondary sources: Textbooks, dictionaries, encyclopaedias, notes in law reports and journal articles help a court and a student find and explain the law. They are not themselves law. They do not bind. Cite a book as an argument. Cite a section or a case as authority.