Course Outline
Introduction Constitutional History of Sierra Leone The Supremacy of Parliament Parliament - Composition, Privileges The President & The Executive The Judiciary Citizenship Fundamental Human Rights The Armed Forces Introduction Law is not merely a matter of rules governing relations between private individuals but also the structure and powers of the state. Law injects order into a chaotic society. Applied to the system of law and government by which the affairs of modern states are characterized, the word “constitution” has 2 meanings -
1) Narrower meaning - A constitution is a document having special legal sanctity which sets out the framework & the principle functions of the organs of government within the state and declares the principles by which those organs must operate. The Supreme Court interprets and upholds the constitution. (Sections 1 thru 4) In countries where the constitution has overriding legal force, there’s often a constitutional court which applies and interprets the text of the constitution in disputed cases. In such countries, legislative or administrative acts may be held by such courts to be without legal force where they conflict with the constitution.
2) Wider meaning - Refers to the whole system of government of the country, the collection of rules which establish & regulate or govern the government or as Belingroke stated in 1733 in ‘A Dissertation Upon Parties’ quote, “By constitution, we mean whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs derived from certain fixed principles of reason that compose the general system, according to which the community hath agreed to be governed.”
The wider sense of the word “constitution” necessarily includes a constitution in a narrower sense. In the USA, India, Sierra Leone and many other states, the written constitution occupies the primary place amongst the assemblage of laws, institutions and customs which make up the constitution in a wider sense. But no written document alone can ensure the smooth working of a system of government. A written document has no greater force than that which persons in authority are willing to attribute to it. Around a written constitution will evolve a wide variety of customary rules and practices which adjust the operation of the constitution to changing conditions. Thus, a constitution could be the fundamental political and legal structure of government of a distinct political economy, settling such matters as Head of State, a Legislature, Executive and Judiciary, their composition, powers and relations.
Every state has a constitution since every state functions on the basis of certain fundamental principles and rules. In older states, the constitution is to some extent a natural and customary development and its only since the Middle Ages that it has been accepted that the people of a country can deliberately settle and adopt a constitution for themselves as the citizens of a state. As stated by Sir John laws in ‘Public Law’, 1996, on page 27 in defining a constitution, quote “that set of legal rules which governs a relationship in the state between the ruler and the ruled. All constitutional questions are about laws which identify the ruler, define the nature and extent of their power and set the conditions for their exercise.”
Constitutional History of Sierra Leone
The Establishment Of The Province Of Freedom
Sierra Leone’s legal history could be said to begin with the case of Somerset v. Stuart, 1772, 20 St.T, 5 in that events following the judgment therein were responsible for the founding of the Settlement of Sierra Leone. The main issue in this case revolved around the legality of slavery in England. Lord Mansfield in delivering judgment stated Inter Alia (amongst other things) that there was no positive English law upholding slavery and that any slave setting foot on English soil instantly became a free man. This set off a massive influx of slaves to England for freedom. This created a social problem of not enough jobs for all these people which eventually led to the Settlement of Sierra Leone. Because the freed slaves became indigent in Britain, their plight aroused public concern leading to the foundation of the Black Poor Committee. It was this committee that conceptualized and put into action the repatriation of these freed slaves from England to the Settlement of Sierra Leone.
The Temporary Regulations for the Province Of Freedom
One of the foremost figures in the abolitionist movement was Granville Sharp. He was also a tireless advocate for improvements in the living conditions of liberated Africans. With the imminent establishment of the new settlement, Sharp drafted a Code of Regulations which he thought would function well as a “Constitution” for the new settlement. Sharp’s conception was a new independent government whose inhabitants would formulate their own laws. Sharp also contemplated that the settlement would be one where there was complete racial equality and freedom of thought and expression and that the settlers should be guided by English Law. It was Sharp who coined the phrase “Province of Freedom” and his designated “Constitution” was published under the title “A short sketch of temporary regulations (until better shall be proposed) for the intended settlements in the Grain Coast of Africa near Sierra Leone.” The major features of these regulations were -
1) The preface provided that the regulations were temporary in nature and could be set aside, rejected or altered in part in accordance with the consensus of the majority of the settlers “ After mature deliberation in their common council.” This was subject to the proviso that such alterations were not to be inconsistent with the fundamental principles of the common law of England.
2) There was provision for a Governor therein described as an agent who was to be elected by popular franchise.
3) The regulations proposed that the English system of Frank Pledge was to be adopted and practiced in the settlement. Under Frank Pledge, the community was divided into groups of 10 families called Tithings and headed by Tithing Men. A group of 10 Tithings was headed by a Hundredor. These officials were to be elected and they formed the Common Council, the body responsible for the formulation of laws in the settlement. Their leaders would also handle judicial matters by adjudication of disputes.
4) The land was to be owned in common by the settlers.
5) Slavery was outlawed in the settlement.
Furthermore, Sharp devised additional regulations which dealt with such matters as remuneration of officials, terms of office etc. It also made provisions as to the manner in which the Common Council was to meet and provided minor measures for the control of officials in public office. Before the settlers left for Sierra Leone, Sharp gave each settler a copy of the temporary regulations and they agreed to be governed by them upon their arrival. The temporary regulations were promulgated into law in 1786 but were not put into practice until May, 1787 when the first settlers arrived in Sierra Leone. Thus establishing the Province of Freedom governed by the temporary regulations. It was in effect from 1787 to 1791. On arrival, a treaty was negotiated on behalf of the settlers with a local Temne sub chief, King Tom, which granted the settlers “all the land, wood and water which is contained in the bay commonly called Frenchman’s Bay, coast ways up the river Sierra Leone to Gambia Island and southerly or inland 20 miles”. This treaty sets out the confines within which settlers would operate. This treaty was later repudiated in 1788 by King Nimbana and a new one executed by the same King with the same piece of land as its subject.
The Common Law in Sierra Leone
Reference has been made to the use of the Common Law by the early settlers. English Common Law described as that part of the law of England which before the Judicature Acts of 1873-75 was administered by the Queen’s Bench, Common Pleas and Exchequer as opposed to equity administered by the court of chancery. In another sense, Common Law is placed in contradistinction to statute law and this denotes unwritten law whether legal or equitable in origin which does not derive any express declaration of the will of the legislature. This unwritten law has some force and effect as statute law. It depends for its authority upon the recognition given by the courts to principles, customs, and codes of conduct previously existing among people. It is now recorded in law reports which embody the decisions of judges together with the reasons which they assign for their decisions. Bealieu v.Finglan, 1401, YB 2 Her.F.18, 6 A man who by his failed to control a fire so that it spread to his neighbor’s house was held liable in damages “according to the law and custom of the realm.” It has been said that Common Law was brought to Sierra Leone because of the temporary regulations and also because of the old rule in Campbell v. Hall, 1772 which states “If there be a new and uninhabited country found out by English subjects, as the law is the birth right of every subject, so wherever they go, they carry their law with them, and therefore such newfound country is to be governed by the law of England.”
1) There are however flaws in this idea. First of all, the British Nationality Act of 1730 established that natural born subjects of Great Britain were nationals of that country whilst the British Nationalists Act of 1772 extended British nationality to foreign born children of British nationals. The settlers fall into neither category and thus could not be described as British subjects.
2) Conclusive evidence exists that the territory occupied by the settlers in 1787 was not “a new and uninhabited country” as historical facts prove the existence of indigenous tribes long before this coupled with the fact that Sierra Leone was “discovered” by Pedro Da Sintra in 1462 and some records go even further to state that it was visited by Hanno the Carthaginian as far back as 450-500 BC.
Constitutional Development 1791-1808
Due to the fact that by 1790 Province Of Freedom was facing difficulties due to financial constraints and external attacks, the abolitionists decided to form a company to assist the growing settlement and for purposes of trade. They thus formed the St. Georges Bay Company principally to engage in trade and also take over control of the province of freedom. The Sierra Leone Company Act was passed in 1791 and effectively brought the Province Of Freedom to an end. The preamble of the act read as follows - “an act for establishing a company for carrying on trade between the Kingdom of Great Britain and the coasts, harbors and countries of Africa and for enabling the said company to hold by grant from his majesty, his heirs and successors and from the natural Princes of Africa, a certain district of land commonly called the Peninsular Of Sierra Leone now vested in his Majesty or belonging to the said princes for the better enabling the said company to carry on the said trade.” In light of the above quotation, the Act now vested the territory of the independent Province of Freedom that is the peninsular of Sierra Leone in the Crown in order that the company could hold the said territory by grants from the said Crown which had at no time owned, controlled or exercised any over it. The territory was thus now under the control of the Board of Directors of the company, 13 in number, who were residents in England. The Sierra Leone Company promulgated in 1791, “the manuscript, orders and regulations from the Directors to the superintendent and council in Freetown.” The most important provisions of the manuscript, orders, and regulations were as follows -
1) The supreme power for the settlement was vested in the hands of the board of Directors in England.
2) The settlement’s chief administrative officer was to be the superintendent who was appointed by the directors in England. He was to be assisted in his duties by a council of 8, though this number was later reduced to 3 from 1792 onwards. The superintendent and council were empowered to pass laws for the settlement provided such laws were not inconsistent or repugnant to the general principles of English law.
3) All offices in the settlement were to be elective and the superintendent and council were to form the govt. and therefore had Executive power.
4) The settlement was to be named Freetown.
5) The superintendent and council were responsible for the administration of justice in both civil and criminal matters. But there was a right of appeal from such decisions to the Directors in England. Each member of council thus also acted as a JP. Freetown was governed by manuscript order of R. up to 1799 when a charter was passed for Freetown. Amongst the significant changes therein, was that it provided for a “governor” in place of superintendents who was designated head of the administration and chief representative of the company in the settlement now officially described as a colony. The charter made Freetown a municipality with a Mayor and Aldermen. This introduced a concept of local government. The charter also had extensive judicial procedure and judicial powers were still exercised by governor and council. This state of affairs continued until 1808 when Sierra Leone officially became a Crown colony under British rule headed by a governor who was representative of the British government.
The First Proper Constitution Of 1863
Prior to 1863 there had been intense pressure from the settlers for constitutional changes providing for their greater involvement in the running of the affairs of the colony. By charter dated 27th May, 1863 and Royal Instructions dated 30th May, 1863, the British govt. provided a new “constitution” for the colony of Sierra Leone. This constitution revoked the charter of 1799 and provided for a Legislative Council and an Executive Council. The Legislative Council had 5 official members comprising the Governor, officially termed “Governor and Commander In Chief”, the Chief Justice, the Colonial Secretary, the Queen’s Advocate and the Officer Commanding the Troops. The unofficial members were “such other person or persons nominated and appointed to serve on the council. Though there was no specific number of nominated members mentioned in the Constitution, it was the practice for the Governor to nominate 1 European and 1 African. The of the legislative council was 3 and the Governor had a casting vote. By the 1863 Constitution, the Crown, by virtue of its prerogative powers, had delegated to the Governor of the colony all powers necessary for the effective governance and control of the colony. The Constitution gave the Governor the right to appoint/nominate whosoever he pleased as members of the Legislative Council. He could summon the meetings of the Legislative council and could adjourn, pirogue or dissolve it at will. He had the power of veto and was responsible for judicial appointments. He was answerable only to the British government. The Executive Council was composed of all the official members of the Legislative Council. As such, it could be alternately described as the Legislative council minus the nominees.
The Establishment of the Protectorate
The latter part of the 19th century saw great expansion by the European powers which culminated in the Scramble and Partition of Africa. The Berlin conference of 1885 established the principle of “Effective Occupation” as the criteria for determining whether any particular European power was entitled to territory claimed by it. There are 3 important statutes which paved the way for further British expansion of overseas territories. The Foreign Jurisdiction Act of 1843 provided that the Crown have jurisdiction in places outside British dominion by virtue of treaty, capitulation, grants, usage, suffrage and any other lawful means. The British Settlement Act of 1887 gave the Crown power to make laws for the protectorate areas of West Africa. And The Foreign Jurisdiction Act of 1890 established that the Crown could “hold, exercise and enjoy” jurisdiction within a foreign country in the same manner as if it had acquired same by conquest and that such jurisdiction could not be questioned in a court of law. In 1895, a proclamation was issued declaring that the territories adjacent to the colony of Sierra Leone and on the British side of the boundary between British and French possessions to the North and East of the colony were now under the protection of the Crown. The Protectorate was divided into 5 districts presided over by District Commissioners. The Legislative Council then passed the Protectorate Ordinance no.20 of 1896 which made detailed provisions for the administration of Justice for the protectorate.
The Constitution Of 1924
The next major constitutional development was the promulgation of the 1924 Constitution which was essentially contained in 4 instruments. To Wit
1) The Sierra Leone Legislative Order-In-Council dated 16th Jan, 1924.
2) Instructions to the Governor under Royal Sign Manual dated 28th January, 1924.
3) Letters Patent dated 28th January, 1924.
4) The Sierra Leone Protectorate Order-In-Council dated January 16th, 1924.
The first 3 of the above dealt with the colony whilst the fourth related exclusively to the Protectorate. This Constitution is significant in that it was the first legal measure to create a merger between the Colony and the Protectorate. It provided for a Legislative council comprising the Governor who was its president and 11 official and 10 unofficial members. The 11 official members were the Colonial Secretary, the Attorney General, the Principal Medical Officer, the Officer Commanding the Troops, the Director of Public Works, the Comptroller of Customs, the Colonial Treasurer, the Commissioner of Lands and Forests and 3 Provincial Commissioners. The unofficial members were 3 elected members from the Colony. 2 Africans from the Colony nominated by the Governor. 2 Europeans nominated by the Governor. 3 Paramount Chiefs from each of the 3 regions in the Protectorate nominated by the Governor; this was the Legislative Council. This was striking because for the first time there were provisions for representation from the Protectorate. The Legislative Council was empowered to make laws for both the colony and the Protectorate collectively referred to as Sierra Leone. The Governor presided over the Legislative Council as a delegee of the Crown and had power of veto in addition to a casting vote. The Executive Council was responsible for administration and was constituted by 5 senior members of the Colonial hierarchy. These were the Colonial Secretary, the Attorney General, the Colonial Treasurer, the Officer Commanding the Troops and the Director of Medical Services together w/ such others as the Governor would appoint. The governor was also Head of the Executive Council.
General Important Features of 1924 Constitution:-
1) For the first time, provision was made for the joint administration of both Colony and Protectorate; the 2 territories which would eventually become independent Sierra Leone.
2) For the first time in the Colonial era, the elective principle had been introduced in that the Constitution granted inhabitants of the Colony the right to vote in sending 3 people to the Legislative Council. To this end the Colony was divided into 2 electoral districts - the Urban Electoral District (constituency) which was to return 2 members and the Rural Electoral District which was to return 1 member.
3) In legislating for the Protectorate, the Constitution required the Legislative Council to take cognizance of Customary Law. The Legislative Council was required by the Constitution to respect native laws which governed civil relationships in the Protectorate except for where they were incompatible with the Crown’s exercise of power through the Governor or injurious to the natives.
Post 1924 Developments
Up to 1943, the Executive Council was wholly official in terms of its membership. However, in 1943, the Governor nominated 2 Africans to the Executive Council; an unprecedented step in that for the first time, Africans now participated in the administration of the Colony. Furthermore, in 1946 Cap 185 of the Laws of Sierra Leone, 1946, established the Protectorate Assembly; a body which though similar to a legislature, was merely an advisory institution to the colonial government. Coupled with the fact that it served as a valuable forum for the Protectorate’s elite to debate national issues. The Protectorate Assembly was dissolved in 1955.
The 1951 Constitution
The Sierra Leone Legislative Council Order-In-Council Public Notice No.106 of 1951 introduced the 1951 Constitution. It provided for a Legislative and an Executive Council. The Legislative Council was composed of 7 official members - The Governor as President, the Attorney General, the Chief Commissioner of the Protectorate, the Financial Secretary, the Director of Medical Services, the Director of Education and the Director of Agriculture. Plus 23 unofficial members. Notable for the majority of elected representatives of the people. There were 7 elected members from the Colonies, 14 “elected” members from the Protectorate and 2 nominated members to represent trade and commerce. The Legislative Council was empowered to make laws for the peace, order and good governance of Sierra Leone. The Governor still presided over the Legislative Council and still retained his veto powers. He was still in complete control of the Legislative Council. The qualifications for membership into the Legislative Council were Literacy in English, Property Ownership, Being above the Age of 21, and being a British Subject or British Protected Person. * Notable as this shows that they are treating those in the Colonies different to those in the Protectorate. The Executive Council was made up of the Governor who was President, 4 Ex-officio members namely The Colonial Secretary, the Attorney General, the Chief Commissioner of the Protectorate and the Financial Secretary together w/ 6 unofficial members who were Africans nominated by the Governor from the Legislative Council. This insures that there were elected officials and African participation in the administration of the colonies. These 6 appointees were given “responsibility” for various government departments led by one of their number termed Leader of Government Business. First was Sir Milton Margai. The Executive Council was still responsible for administration of the Colony. Amongst the notable features of the 1951 Constitution were
1) The Legislative Council for the first time had an unofficial majority in which elected representatives of the people outnumbered the official members.
2) The Constitution attempted to introduce representative government in both Colony and Protectorate though in the latter case, the elections were indirect in nature as members were drawn from the district councils via the Protectorate Assembly.
3) The representatives of the Protectorate in the Legislative council now outweighed those from the Colony.
4) For the first time, ministerial government had been introduced.
Constitutional Changes Post 1951
1) The of 1956 changed the name of the Legislative Council to “House of Representatives”. Whilst at the same time increasing its membership to 57. The Governor now withdrew from the Legislative council to be replaced by a “Speaker”. Thus the House of Representatives was now composed of 4 ex-officio members that is the Colonial Secretary (now renamed the Chief Secretary), the Attorney General, the Chief Commissioner for the Protectorate and the Financial Secretary. And 51 elected members (14 from the Colony, 25 from the Protectorate and 12 Chiefs from the Protectorate plus 2 nominated persons). In addition, the right to vote was granted to every man and woman in the Protectorate above 21.
2) The Sierra Leone Constitutional Order-In-Council, 1958 withdrew all ex-officio members from the Executive Council with the exception of Attorney General whilst maintaining the Governor as its President. The offices of Financial Secretary and Chief Commissioner of the Protectorate phased out and the Leader of Govt. Business was now designated “Chief Minister”.
3) Statutory Instruments of 1960 provided for a wholly African Executive Council now renamed the “Cabinet”. Whilst the Chief Minister was now titled Prime Minister who was empowered to preside at Cabinet meetings. The Governor only retained nominal reserve powers. Also, there was the formation of the Public Service Commission and the Judicial Service Commission. * Significant because of gradual and complete phasing out of Colonial Power.
1961 Constitution
The Sierra Leone Constitution of 1961 was contained in the Second Schedule of the Sierra Leone Constitution Order-In-Council Public Notice No.78 of 1961 which stipulated that said Constitution was to come into operation on 27th April, 1961. A little earlier, the British Parliament had passed the Sierra Leone Independence Act of 1961 which had the effect of relinquishing British responsibility for the governance of Sierra Leone whilst at the same time, transferring its powers and authorities to the government and people of Sierra Leone. In examining the 1961 Constitution, it is worth quoting the Explanatory Notes found at the end of the said Constitution. “By nature of the provisions of the Sierra Leone Independence Act of 1961, Sierra Leone will attain fully responsible status within the commonwealth on the 27th April, 1961. This order makes provision for a new Constitution for Sierra Leone with effect from that date; including provision for an Executive Government, A Legislature, A Supreme Court, A Court of Appeal and Judicial and Public Service Commissions. The Constitution also contains provisions regarding citizenship of Sierra Leone and fundamental rights of the individual.” The Constitution provided for a Parliament composed of Her Majesty and the House of Representatives. The House consisted of the Speaker, 12 Elected Paramount Chiefs (1 from each district) and such number of other members as Parliament may prescribe provided that such a number was not below sixty. For Electoral purposes, the country was divided into constituencies, each of which was to return 1 member. Each member of the House of Representatives, apart from the Speaker was now designated “Member of Parliament”. One was qualified to be a member of the House of Representatives if he was a citizen of Sierra Leone over the age of 25 and sufficiently proficient in English to be able to take an active part in the proceedings of the House of Representatives. The life span of Parliament was for a period of not more than five years, except when Sierra Leone was at war in which case, its life span was to be extended for 12 months at a time. Parliament was empowered to make laws for the peace, order and good government of Sierra Leone. The Speaker was entitled to preside at sittings of the House of Representatives. The power of Parliament to make laws was to be exercised by bills passed by the House of Representatives assented to by the Governor General on behalf of Her Majesty. Executive Authority in Sierra Leone was vested in Her Majesty which said authority could be exercised on her behalf by the Governor General either directly or through officers subordinate to him. The Constitution provided for the office of the Prime Minister who was to be appointed by the Governor General from amongst members of the House of Representatives who appeared to him as likely to command the support of the majority of the members of the House. There was also provision for a Cabinet consisting of the Prime Minister and other Ministers appointed by the Governor General from amongst members of the House of Representatives upon the advice of the Prime Minister. The Governor General was empowered (acting in accordance w/ the advice of the Prime Minister) to allocate to the PM or any other Minister, responsibility for any department of Government. In the exercise of his functions, the Governor General was required to act in accordance with the advice of the Cabinet with the proviso that he was to use his own deliberate judgment in the exercise of his power to appoint the PM and in relation to the dissolution of Parliament. Cabinet was collectively responsible to Parliament for any advice given to the Governor General. The PM was required to keep the Governor General fully informed of the general conduct of the government of Sierra Leone.
The Governor General was entitled to exercise the Prerogative of Mercy. The Constitution also provided for a Judicature comprising of
1) The Supreme Court which was designated a superior court of record and the judges of the Supreme Court were the Chief Justice and such other judges as would be prescribed by Parliament. The Chief Justice was to be appointed by the Governor General acting in accordance with the advice of the Prime Minister. Whilst the Governor General’s appointment of Judges was to be in accordance with the advice of the Judicial Service Commission.
2) There was a Court of Appeal from whence appeals from decisions of the Supreme Court lay. Headed by a President and other judges as prescribed by Parliament. To be qualified for appointment as a judge, one had to be an advocate of 10 years standing and above. All judges were required to vacate office at 62 and could only be removed from office by reason of inability to perform the functions of their office (by reason of infirmity of mind or body) or for misbehavior after recommendation to that effect by an independent tribunal. Appeals from decisions in the Court of Appeal lay to the Privy Council in England, empowered to interpret the Constitution. (). The Constitution of Sierra Leone was unique in that it contained provisions for citizenship of Sierra Leone. The Constitution provided in S.1(1) that “Every person who having been born in the former Colony or Protectorate of Sierra Leone, was on the 26th day of April, 1961, a citizen of the United Kingdom and Colonies or British Protected Person shall become a citizen of Sierra Leone on the 27th day of April, 1961.”
Chapter 2, (SS 11-25), of the Constitution was essentially a Bill of Rights containing detailed provisions for the protection of fundamental rights and freedom of the individual including, Inter Alia, Freedom of the Person, Freedom of Expression, Association etc.
The 1971 Constitution
By 1971, Parliament enacted a bill that brought into existence the Constitution of Sierra Leone Act No.6 of 1971 which for proper legal analysis has to be read in conjunction with the Constitution itself. Amendment Act No.7 of 1971 which came into force barely two days after enactment of the 1971 Constitution, yet made a substantial contribution there to.
Features - Provision for President, Supreme Head of State, Commander-In-Chief of the Armed forces, Election by MP’s. Chief Justice returning officer at presidential Elections. To qualify to run for President, the minimum age was 45 years and one had to be a citizen of Sierra Leone. Executive Power was vested in the President who could summon, prorogue and dissolve Parliament. It also provided for Presidential Immunities such as tax exemption.
1) In executing his Presidential Authority, he was not obliged to follow advice tendered by any authority or person.
2) The Constitution provided for a Vice President who was to be the principal assistant to the President in the discharge of Executive Functions.
3) Parliament was still the Supreme Legislative body for Sierra Leone, composed of the President, the Speaker and MP’s (12 Paramount Chiefs, one from each district and elected Members of Parliament number not less than 60). The President was entitled to appoint members of the Electoral Commission which was to be responsible for Parliamentary Elections. The qualifications as a Member of Parliament were the same as for the 1961 Constitution. The quorum was 1/4 of its members.
4) There was provision for a Cabinet comprising of the president, Vice President and Ministers appointed by the President from among MP’s. The president was empowered to assign, by directions in writing, responsibilities for any business of government to the Vice President or any Minister including the administration of any department of government. The Cabinet was to be the instrument of policy and was responsible for advising the President with respect to the policy of government.
5) The Judicature now consisted of the High Court, Court of Appeal and Supreme Court. The Chief Justice was designated Head of the Judiciary. Appeals from the High Court lay to the Court of Appeal whilst appeals from the Court of Appeal lay to the Supreme Court. The Attorney General and and all Judges and Justices were to be appointed by the President. A person was entitled to be appointed Justice of the Court of Appeal or Supreme Court if he had been a Barrister or Solicitor for not less than 10 years and for not less than 7 years in the case of the High Court. Judges of the High Court were to vacate at age 60 whilst Judges of the Supreme Court upon attaining age 62. The Attorney General, Justices and Judges could only be removed from office for inability to perform functions of office or for misbehavior, such was to be effected by a 2/3 rds majority of Parliament recommending such removal. Chapter 1 S. (1)-(14) contained provisions for fundamental rights of individuals but they carried extensive exceptions which made the said provisions useless.
The 1978 Constitution
The Constitution of Sierra Leone Act No.12 1978 had its short title as follows:- ‘Being an Act to make provisions for a one party Republican Constitution for Sierra Leone.’ The preamble has a brief history of Sierra Leone and postulated that since Independence, the country had been ridden by strife, divisions, disharmony which had been caused by a multi-party system of government. It had therefore been necessary to unite the country under one guiding and leading force: All People’s Congress.
Features
1) That a one party form of government was now in existence in Sierra Leone therein referred to as the recognized party.
2) Chapter 2 sets out the fundamental human rights but stated that their rights and liberties were subject to the rights of the party. The rights and liberties were again subject to numerous exceptions and were again watered down. Eg. A person to be arrested and detained was to be brought to the court without undue delay.
3) Parliament was the supreme legislative body in Sierra Leone and included the President, Speaker and Members of Parliament. There constituted 12 Paramount Chiefs, elected MP’s from single member constituencies (such members to be not less than 60) and not less than 7 members of Parliament nominated by the President. The qualifications for membership were virtually the same as 1961 and 1971 save that the age of eligibility for election to Parliament was reduced to 21 years and such a person had to be a member of the recognized party. Prior to Parliamentary elections, aspirants had to be first vetted by the recognized party. All bills passed by Parliament had to be signed by the President to become law. The Constitution set up an electoral commission which had the duty of conducting Parliamentary elections which was to be responsible to the President.
The Constitution also provided that the Executive Power resided in the President who exercised same either directly or through the Cabinet or Parliament.
4) The President was the Supreme Head of State, Commander of the Armed forces and Guardian of the Constitution. He was responsible for all Constitutional matters and had power to sign treaties and agreements on behalf of Sierra Leone and to declare war. To be qualified as a Presidential candidate, one had to be a Sierra Leonean citizen and at least 45 years old and a member of the recognized party. The members of the National Delegates Conference were empowered to elect a person to be leader of the recognized party and such person was to be the sole candidate at Presidential Elections.
5) The Chief Justice was to be the returning officer at Presidential Elections. The tenure of office was 7 years with the proviso that no one President could hold office for more than 2 consecutive terms. The President was entitled to summon Parliament which he could summon, prorogue and dissolve. There is provision for a 1st and 2nd Vice President and Ministers appointed by the President from elected members of Parliament. The Ministers were to be responsible for such departments of state as the President would assign to them. The President and Ministers formed the Cabinet which was to determine the policy of government.
6) Judicial power vested in the Judiciary of which the Chief Justice was head. The Judicature consisted of the High Court, Court of Appeal, and Supreme Court. The chief Justice was to be approved by the President whereas other Judges and Justices were to be appointed by the President acting in accordance with the 1st Vice President. To qualify for a Judgeship/Justice, one had to have been a Barrister or Solicitor for not less than 10 years (S.C.), 7 years (C.A.), and 5 years (High Court). The President was empowered to require any Judge to retire after age 55 whilst a Judge was mandatorily required on attaining the age of 65.
The Rule of Law
The supremacy of Rule of Law has been a central issue in Constitutionalism since the Middle Ages. It basically means that the exercise of powers by government shall be conditioned by law and that the subject shall not be exposed to the arbitrary will of his ruler. Aristotle (384-322 BC) pronounced that it is better for the law to rule than for any of the citizens to rule.
The Rule of Law was described by 18th Century jurist, Bracton, in terms that “...the King should be under no man but under God and the law, because the law makes him King.”
With the establishment of the Bill of Rights in 1889, it was affirmed that the Monarchy was subject to the law. This set out 2 important points: -
1) That the Crown has to govern through Parliament.
2) Individuals’ rights were protected from unlawful interference by the Crown. Thus in the case of Entick v Carrington (1765) 19 St.TR 1030 - It was held that seizure of the defendant’s papers by the King’s messengers acting on a search warrant issued by the Secretary of State was unlawful in the absence of upholding the legality of such a warrant.
The most used version of the Rule of Law is that popularized by A.V.Dicey in his 1885 lectures published under the title “Introduction To The study Of the Law of the Constitution”. Dicey formulated a 3 fold liberal version of the Rule of Law with the common thread of limited government, policed by the Common Law and no clear distinction between Public and Private law. Dicey gave the Rule of Law 3 meanings: -
1) “It means in the first place, the absolute supremacy of predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or prerogatives or even of undue discriminatory authority on the part of the government. A man may be punished for a breech of the law but he cannot be punished for nothing else”. It is widely accepted that this means that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breech of the law established in the ordinary legal matter before the ordinary courts of the land. This meaning requires that the law be reasonably certain and determinable and that there must be settled guidelines limiting the exercise of discretion. In Sunday Times v U.K. (1979-80), it was stated “A norm cannot be regarded as a law unless it can be formulated with sufficient precision to enable a citizen to regulate his conduct. He must be able, if need be, with appropriate advice, to foresee to a degree that which is reasonable in the circumstances”.
- similarly S.17 of the 1991 Constitution of Sierra Leone sets out clear instances in which a person may be deprived of his personal liberty. Of particular importance is S.17 (1) B which states that “A man will not be unlawfully deprived of his liberties if such deprivation is in consequence of the execution of a sentence of a court after his commission for a criminal offence.”
2) Dicey wrote that the Rule of Law means again “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.” In this sense the Rule of Law conveys that no man is above the law. That officials, like private citizens, are under a duty to obey the same laws. Dicey meant that officials enjoy no special protection just because they are officials and that no person should be exempt from the law just because of his status and that disputes between the citizens and the state are settled in ordinary courts according to the ordinary law.
3) The Rule of Law according to Dicey means “That with us, the law of the court, the rules which in foreign countries naturally form part of the Constitutional Code, and not the source by the consequence of the rights of the individual as defined and enforced by the courts that in short the principles of Private law here with us being by the action of the courts and Parliament so executed as to determine the position of the Crown and/or its servants, thus the Constitution is the result of the ordinary law of the land.” This meant that the right of the individual’s freedom of speech, personal liberty etc. were guaranteed not by their being in a formal code but by the operation of ordinary remedies available in the courts against those who unlawfully interfere with such rights. As such, the Constitutional law provides safeguards for infringement of individual rights. Eg. The right to personal freedom is protected by the of . The right to self defense and the right to bring an action for wrongful arrest or . Justice John Laws in the case of R v Lord Chancellor Witham (1997) 2 HER, 779 “Any such rights will be creatures of the Common Law since their existence will not be a consequence of the democratic process but would be logically prior to it.” Dicey’s formulation of the Rule of Law is not without criticism looking at the first meaning. In modern government, rules cannot be devised to deal with every case and as such some degree of discretion or arbitrariness is inevitable. Discretion is essential to lighten the burden of the strict law on the question of damages which a Judge may order to be paid is lightly discretionary. Also, in times of public emergency, S.29 (5) of 1991, grant the President wide discretionary powers: “Wherever in the opinion of the President...” Dicey’s second meaning of Rule of Law may also be challenged. The law singles out many persons for special treatment. S.48 (4) of 1991 grants the President immunity from civil and criminal procedures whilst S.99-103 grants various privileges and immunities to Members of Parliament. The Criminal Procedure Act No.32 of 1965 grants a police officer wider powers of arrest than the private citizen’s. Besides, many classes of people may find themselves subject to different laws and procedures by virtue of properties they possess. Cap 44 of the laws of Sierra Leone 1960 makes provision for Juvenile courts for the trial of children. The Republic of Sierra Leone Forces Act 1961 makes provision for Court Martial for trial for members of the armed forces.
Separation of Powers
Identifies various power setups in government.
The ancient theory of Separation of Powers tries to combat tyranny by dividing the functions of government between groups with different interests so that no power center can act without the cooperation of others. The most influential version of Separation of Powers is that proposed by Montesquieu in his book ‘De L’Espirit De Lois’ in 1748. He argued that government powers are of 3 kinds: -
1) Legislative Power of enacting general laws.
2) Executive Power concerned with w/ policy making, foreign affairs and law enforcement.
3) Judicial Power concerned with the settlement of disputes arising out of the application of the law.
He was of the view that if any two of these fall into the same hands, there is a risk of tyranny. Eg. If the Executive and the Legislature are the same person or body of persons, there’s a danger of the Legislature enacting oppressive laws which the Executive will administer to attain its own ends. Montesquieu thus advocated Separation of Powers in terms of Personnel, Functions and Control. Thus giving the concept of Separation of Powers 3 meanings: -
1) That the same persons should not form part of more than one of the three organs of government. Eg. Ministers should not sit in Parliament.
2) That one organ of government should not control or interfere with the exercise of functions by another organ. Eg. That the Judiciary should be independent from the Executive.
3) That one organ of government should not exercise the functions of another.
A related version of Separation of Powers is that of Checks and Balances whereby each branch of government is subject to some degree of control by another branch to prevent the former from being able to dominate completely. Thus the exercise of power requires the cooperation of at least two branches of government and each branch is kept within its proper sphere of action. Eg. Independent courts interpret legislation and Executive decisions can be challenged in the courts on the ground that the government has abused its powers or acted Ultra Veris. X Ltd v Morgan Grampian, 1990 2 All ER, 1 Separation Of Powers Under 1991 Sierra Leone Constitution The Constitution clearly sets out 3 organs of govt. S.73 (1) provides that there shall be a legislature for Sierra Leone, to be known as Parliament, which has the legislative power of Sierra Leone vested in It (S.73(2). Whilst S.53 (1) vests Executive power in the President which may be exercised by him directly or through members of the Cabinet or public officers subordinate to him. S.120 (1) vests the judicial power of Sierra Leone in the Judiciary.
1) Personnel - By S.73 (1), Parliament consists of the President, the Speaker and Members of Parliament. The Members of Parliament are comprised of 12 Paramount Chiefs (1 for each district) and not less than 60 elected members. S.76 (1) highlights the situations which disqualify a person from being elected as a member of Parliament and in particular, S.76 (1) (h) disqualifies the President, the Vice President, a Minister or Deputy Minister. The President is part of Parliament and S.47 entitles him to address Parliament but it must be noted that the President is not a Member of Parliament. S.46 (2) provides that any person who is elected President shall, upon assuming office, cease to be an elected member of Parliament and his seat shall be declared vacant. S.40 provides for a President of the Republic of Sierra Leone designated Supreme Executive Authority of Sierra Leone. S.54 (1) provides for a Vice President who is to be the principal assistant to the President and S.56 (1) provides for such other ministers and Deputy Ministers as the President may establish. The President, Vice President, Ministers and Deputy Ministers comprise the Cabinet (S.59 (1). It is important to note the proviso to S.56 (1) which states that no Member of Parliament shall be appointed Minister or Deputy Minister. Further, by S.56 (3), no Minister or Deputy Minister shall hold any other office of profit or emolument, whether public or private. S.121 (1) makes the Chief Justice the head of the Judiciary. The Judicature consists of the Supreme Court, Court of Appeals and High Court (referred to as superior courts of record) and such other inferior courts as Parliament may by law establish (S.120(4). The Supreme Court consists of the Chief Justice and not less than 4 justices of the Supreme Court. See S.121 (1). The Court of Appeal consists of the Chief Justice and not less than 7 justices of the court of appeal w/ a quorum of 3. See S.128 (1). Whilst the High Court consists of the Chief Justice and not less than 9 judges of the High Court w/ a quorum of 1. S.131 (1). S.138(1) provides that salaries, allowances etc. of judges of the Supreme Court or Judicature shall be paid out of the Consolidated Fund which therefore means that judges fall within the definition of “Public Officer” under S.171(1) which means a person holding or acting in a public office. S.171 (1) defines “Public Office” as an office to which emoluments are paid from the consolidated fund. S.76 (1) disqualifies Public Officers from being elected as Members of Parliament.
2) Functions In the case of Duport Steels Ltd v Sirs (1980) 1 All ER 529, 551, Lord Scarman said “...Separation of Powers, or more accurately, functions, must be observed if judicial independence is not to be put at risk.” The functions of the 3 organs of govt. are clearly spelled out by the Constitution. S.73 empowers Parliament to make laws. S.53 (1) vests Executive Power in the President whilst the Judiciary exercises jurisdiction in all criminal and civil matters including matters relating to the Constitution. S.120 (3).
3) Control S.105 makes Parliament the supreme legislative body for Sierra Leone and by S.106 (1), the power of Parliament to make laws exercised by Bills passed by Parliament and signed by the President. However, by S.124(1)(b), the Supreme Court has original jurisdiction to the exclusion of all other courts where any question arises as to whether any act of Parliament was made in excess of the power conferred upon Parliament.
Executive power is vested in the President. However, the Constitution places several checks upon him. Under S.51, there’s stipulation that Parliament may initiate through the speaker, an investigation into an allegation that the President has been guilty of gross misconduct or a violation of the Constitution, which if proved, shall lead to his removal from office. Similarly, by S.56 (2), ministerial appointments by the President must be approved by Parliament. S.60 (1) makes the Cabinet collectively responsible to Parliament for any advice given to the President and for anything done by any minister in the execution of his office. The President is empowered to appoint judges of the Superior Court or Judicature on the advice of the Judicial and Legal Service Commission subject to the approval of Parliament. S.135 (2). S.137 grants judges security of tenure and ensures judicial independence in that S.137 (1) provides that judges of the Superior Court or Judicature shall hold office during good behavior. And S.137(2) provides that judges may retire at any time after attaining the age of 60 yrs and shall vacate office upon attaining the age of 65 yrs. S.137(4) states that a judge of the Superior Court or Judicature may only be removed from office for stated misconduct or for infirmity of mind or body. S.137 (7) provides that such removal shall be done by the President after the investigation of a tribunal and such removal must be approved by a 2/3 rds majority of Parliament.
Supremacy of Parliament
Steeped in British History. Parliament’s power to make laws is not limited.
The doctrine of Parliamentary Supremacy provides the fundamental legal premise of the British Constitution. Central to the meaning of Legislative Supremacy is an examination as to how Parliament established itself as not only the sole legislative authority but also the organ which exercises political supremacy by controlling the Executive. As early as the 14th Century, it became clear that the King could not enact taxes other than by with the permission of Parliament and from this power base, Parliament could control the making of laws. A statute of Edward III, (14 Edw.Stat.ii cl) declared that the nation should no more be charged or grieved to make any common aid or sustain charge except by the common ascent of the Prelates (high officials), Earls, Barons and other magnates and commoners of the realm and that in Parliament. On the other hand, Parliament could not act without the King’s consent. Hence, the notion of the English Constitution as a “harmonious” Constitution driven by the cooperation of powerful groups. However, by the 16th Century, Tudor monarchs like Henry VIII and Elizabeth I developed a powerful Executive that ruled through the Royal Prerogative and to some extent, sidelined both Parliament and the Common Law. th Century Shifting Of Power To The Monarchy Throughout the 17th Century, the political struggle between Crown and Parliament was punctuated by a series of inconclusive law suits which raised the question of whether or not the Monarch could make laws without Parliament. For example, the case of Proclamations (1611) 12 Co. Rep. 74 established that the Monarchy cannot legislate without Parliament. Later cases upheld wide prerogative power. Eg. The case of Ship Money (1637) 3 St.Br 825. The Bill Of Rights of 1688 established that Parliament was superior to the Crown but did not deal explicitly with the relationship between Parliament and the Common Law. By the 19th Century, Supremacy of Parliament had become the orthodoxy because it met the political needs of the day. It conformed to the extension of Democracy and the increasing need for drastic governmental powers of intervention in industrial society. Case law began to emerge in support of Parliamentary Supremacy during the 17th Century. For example in Lee v Bade & Torrington Railway Co.(1871), it was stated, “If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but so long as it exists as law, the courts are bound to enforce it.” Also see Edinburgh & Dolkeith Railway Co.v Wenchope (1842) The notion of Parliamentary Supremacy is firmly entrenched in Britain today. The legal doctrine of Parliamentary Supremacy is concerned only with an act of Parliament; that is a Statute. From a British point of view, an act of Parliament is an act of the Monarch with the consent of the House of Lords and House of Commons, the Queen In Parliament. The doctrine of Parliamentary Supremacy has 2 aspects which must be kept separate: - Firstly, Parliament has unlimited law making power in the sense that it can make any kind of law. Secondly, and more important, the legal validity of laws made by Parliament cannot be questioned by any other body. * This second aspect runs contrary to Judicial Review. The first aspect means Parliament can make any laws irrespective of Fairness, Justice and Practicality hence Sir Ivor Jennings’s famous example that Parliament can make it an offence for Frenchmen to smoke in the streets of Paris. The courts in the United Kingdom would be bound to obey such a statute, irrespective of whether French courts would recognize it. The second aspect means that the courts of the United Kingdom have no power under English law to declare an act of Parliament invalid. Secondly, that in the event of a conflict between a statute and some other kind of law, the statute will always prevail. Thirdly, it means that Parliament cannot bind its successors.
A succession of cases have upheld the concept of Parliamentary Supremacy. In Cheney v Conn, (1968), Ungoed-Thomas.J. in affirming Parliamentary Supremacy stated “...what the statute itself enacts cannot be unlawful because what the statute says and provides, is itself the law, and the highest form of the law that is known to this country. It is the law which prevails over every other form of law, and it is not for the courts to say that in Parliamentary enactments, the highest law in the country is illegal.”
Similarly, in Madzimbanuto v Lardner-Burke, (1968), it was stated “It is often said that it will be unconstitutional for the United Kingdom Parliament to do certain things meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did those things. But that does not mean that it is beyond the power of Parliament to do those things. If Parliament chose to do any of them, the court would not hold the act of Parliament invalid.” In British Railways Board v Puckin, (1974), the claimed a discussed piece of land from the on the ground that the statute entitling them to the land was not valid. Held that the pleadings be struck out as disclosing no cause of action. In delivering judgment, Lord Reid said “the idea that a court is entitled to disregard a provision in an act of Parliament must seem strange and startling to anyone with any knowledge of the history and laws of our Constitution.” The concept of Parliamentary Supremacy has been further upheld in Manuel v Att.Gen, (1982), Pepper v Hart, (1992), and most recently in Defra v Asda Stores Ltd, (2003).
The doctrine of Parliamentary supremacy as defined above is novel to the United Kingdom. In the United States, the Supreme Court is constitutionally empowered to declare Acts of Congress and by implication, the President, unconstitutional if they exceed the powers granted by the Constitution. See Marbury v Madison, (1803). In Sierra Leone, S.73 (1) creates a legislature called Parliament which has the legislative power of Sierra Leone vested in it. S.105 provides that Parliament shall be the supreme legislative body for Sierra Leone. Parliamentary Supremacy is curtailed by S.124(1)(B) which empowers the Supreme Court to review any legislative act and declare some to be null and void if made in excess of the power conferred upon it. The Sierra Leone Constitution clearly stipulates where supremacy lies in Sierra Leone. S.171(15) provides that the Constitution shall be the supreme law of Sierra Leone and that any other law which is found to be inconsistent with any provision of the said Constitution shall to the extent of the inconsistency, be void and of no effect.
Parliament
The word “Parliament” which in origin meant a parley of conference, entered into official language around the 13th Century. It described the formal conferences between the Monarch and his officials summoned for that purpose. Today, from a British point of view, it refers to a meeting summoned by the Monarch under Royal Prerogative of the House of Lords and House of Commons. In Sierra Leone, S.73 (1) provides that there shall be a legislative for Sierra Leone which shall be known as Parliament. And by S.73 (2), the legislative power of Sierra Leone is vested in Parliament. Parliament may make laws for the peace, security, order and good government of Sierra Leone.
Composition of Parliament
S.73 (1) stipulates that Parliament shall consist of the President, the Speaker and Members of Parliament. S.74(1) states that Members of Parliament shall consist of 12 elected Paramount Chiefs, each representing one district and such number of elected Members of Parliament as Parliament may prescribe. It is subsequent legislation that gives an insight as to how these Members of Parliament are elected and their exact number. The Constitution of Sierra Leone Amendment Act No.15 of 2001 makes an addition to the 1991 Constitution by introducing a new section thereto; S.38A provides that where a date for Parliamentary elections has been approved but constituencies have not been established then the President may, after consultation with the Electoral Commission, direct that such elections be conducted on the basis of existing districts in a manner to be known as the District Block Representation. It further outlines that in the DBR system, the election shall be conducted in each specified district by political parties for the Block or number of seats allocated to it by or under an Act of Parliament. And the political parties shall be allocated seats in Parliament by the Electoral Commission on the basis of their proportional shares of the total district votes. The members of Parliament for seats won by a political party in a district are determined by the Electoral Commission from a list of candidates of that political party for the district submitted to the Electoral Commission before the date of the elections, showing the order of preference for the candidates. Finally, it stipulates that the number of candidates on the list shall not be less than double the block or number of seats allocated to a district. With the above provisions in place, S.41 of the Electoral Laws Act of 2002 provides that Members of Parliament shall comprise 12 elected Paramount Chiefs and 112 (ordinary) elected members. S.43 provides that Parliamentary elections may be either by the one member constituency system or by District Block Representation. Whilst S.52 deals with the question of districts for the purposes of the DBR system by stipulating that the said districts are
a) The 12 districts established under the Provinces (Administrative Divisions) Order, Laws of Sierra Leone ( Vol.VI). And
b) The 2 electoral districts (East & West).
Each of these districts is allocated 8 seats. Thus there are 112 elected MP’s. 8 from each provincial district of the Provinces and 8 from each of the 2 electoral districts of the Western area.
Qualifications
S.75 sets out the qualifications for membership of Parliament which are... S.75
a) Citizenship of Sierra Leone other than by naturalization.
b) Having attained the age of 21.
c) A registered voter.
d) The ability to speak and to read the English language with a degree of proficiency, sufficient to enable him to take an active part in the proceedings of Parliament.
S.76 (1) deals with situations to persons which would disqualify being elected a Member of Parliament. They are... S.76 (1)
a) A naturalized citizen.
b) A member of a commission established under the Constitution, a member of the Armed forces, Public Officers and employees of Public Corporations for 12 months prior to the date of the said elections.
c) A lunatic or person of unsound mind.
d) If he has been and sentenced for an offence involving fraud or dishonesty.
e) If he is under a sentence of death imposed upon him by any court.
f) A Paramount Chief.
g) If being a professional, he has been disqualified from practicing his profession by a competent authority.
h) The President, Vice President, Minister or Deputy Minister.
What Would Cause A Member To Vacate His Seat In Parliament?
To vacate, you would have to have been elected. S.77 (1) outlines the cases which necessitate a member of Parliament to vacate his seat. They are... S.77 (1)
a) Upon the dissolution of Parliament next following his election.
b) If he’s elected Speaker of Parliament.
c) If circumstances arise that had he not been a member, he would have been disqualified from being elected as one.
d) If he ceases to be a citizen of Sierra Leone.
e) Absenteeism for a period prescribed by the rules of procedure in Parliament.
f) Becoming a Paramount Chief.
g) If he ceases to be qualified, under any law, as an elector for election of Members of Parliament.
h) He is adjudged to be a lunatic or declared to be of unsound mind or sentenced to death. i) He is declared bankrupt. j) If he resigns from office as a Member of Parliament by notice in writing to the speaker. k) If he ceases to be a member of the party of which he was a member at the time of his election. l) If, by his conduct in Parliament, he indicates that he is no longer a member of the party in which he was at the time of his election. m) If being elected to Parliament as an independent candidate, he joins a political party. n) If he accepts office as an Ambassador or High Commissioner or any position in a regional or International organization.
S.78(1) grants to the High Court, jurisdiction to hear and determine any question as to whether a person has been validly elected a Member of Parliament or as to whether the seat of a Member of Parliament has become vacant.
The Speaker
S.79 creates the office of the speaker of Parliament. S.79(1) provides that the Speaker of Parliament shall be elected by Members Of Parliament from among persons who are MP’s or are qualified to be elected as such and who are qualified to be appointed Judges of the Superior Court of Judicature or have held such office. Eg.Justice Cowan. There is a proviso to this section stipulating that the person may be elected speaker not withstanding the fact that he is a Judge of the Superior Court of Judicature or Public Officer as long as upon his election, he shall retire from public office. The Speaker shall be elected by a resolution supported by a 2/3 rds majority vote in Parliament S.79 (2). However the proviso to S.79(2) stipulates that if three successive resolutions proposing the election of speaker failed to get the required 2/3 rds vote then the Speaker should be elected by a resolution passed by a simple majority of all Members Of Parliament. No person who is a member of the Armed forces, Minister or Deputy Minister shall be elected as Speaker.S.79 (3). The Speaker shall by S.79 (4) vacate his office if
(a) He becomes a Minister or Deputy Minister.
(b) Circumstances arise that if he were not Speaker would disqualify him from being elected.
(c) When Parliament meets 1st after any dissolution or
(d) If he is removed from office by a resolution of Parliament supported by not less than 2/3 rds majority vote of MP’s. No business shall be transacted in Parliament if the office of Speaker is vacant. S.79 (5). The Speaker is empowered to preside at all sittings of Parliament S.79 (7), and in the Speaker’s absence, the Deputy Speaker may preside. S.80 creates the office of Deputy Speaker.
Parliamentary Procedure, Summoning and Dissolution
By S.84 (1), Parliamentary Sessions shall be held at such place in Sierra Leone and shall commence at such time as the President may be proclamation appoint and a session of Parliament must be held at least once a year S.84 (2). At the beginning of each session, the President shall present to Parliament an address on the state of the nation. S.85 provides that Parliament shall be dissolved on the expiration of a period of 5 years commencing from the date of its first sitting after a general election. However, if there is in existence a state of emergency and the President considers it not practicable to hold election, Parliament may by resolution extend the life span from time to time but no longer than six months at any given time. S.86(1) empowers the President to summon Parliament but not withstanding that, 20% of all the MP’s may request a meeting of Parliament and the Speaker may within 14 days of receiving such a request, summon a meeting of Parliament; S.85(2).
The business of Parliament shall be conducted in the English language; S.90.
Parliamentary Privileges
Privilege is an important part of the law and custom of Parliament. It is important to the Legislature that it be immune from interruption and interference both from outsiders and within its rank. The law of Parliamentary Privileges is designed to achieve this. The concept of Privileges originated with the British Parliamentary struggle for supremacy with the Monarch. The Sierra Leone Constitution of 1991 embodies a number of Parliamentary privileges and at the same time places responsibilities on Members of Parliament. S.97 (a) stipulates that MP’s shall maintain the dignity and image of Parliament both during the sittings in Parliament as well as their actions outside Parliament. Whilst S.97 (b) provides that MP’s shall regard themselves as representatives of the people and shall desist from any conduct by which they seek to improperly enrich themselves. A is a special right or immunity available either to the House collectively Eg. To control its own composition and procedure or to individual members Eg. Freedom of speech.
1) Freedom of Speech This is the central privilege of a Member of Parliament who must be at liberty to speak or write without fear of interference from other bodies. The essence is that no penal or cohesive action should be taken against a Member of Parliament for what he has said or done in Parliament. The privilege has a long history. In Haxey’s Case (1397-99), the courts recognized the right of Parliament to question the expenses in the King’s household and later cases such as Strode’s Case and Sir John Eliot’s Case gave further recognition to this Privilege. S.98 of the 1991 Constitution of Sierra Leone stipulates that there shall be Freedom of Speech, Debates and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament. S.99 (1) provides that no Civil or Criminal proceedings shall be instituted against an MP in any court or place out of Parliament by reason of anything said by him in Parliament. The expression “Debates & Proceedings” includes questions asked by a Member of Parliament in Parliament whether written or oral and committee proceedings. On the other hand, a private conversation between two MP’s is not a proceeding in Parliament. In Rivalil v Bilainkin (1953), it was held that a geographical location alone does not grant a Member of Parliament protection. The work of a modern MP is not confined to the precincts of Parliament and may extend to words spoken in the course of his duty as MP provided he speaks in good faith and without malice. Brach v Freeson (1972). The other aspect of this privilege is that legal proceedings cannot be commenced against an MP for anything said by him in Parliament. Church of Scientology v Johnson-Smith
(1972) ; the plaintiff tried to sue the defendant, an MP, over words spoken by him in Parliament. It was held that those words could not be used as they were privileged. Brown J. Stated “a member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter.” Hamilton v Al Fayed (2000) The only limits upon an MP’s freedom of speech is to be found in S.99 (2) which provides that where in the opinion of the person presiding, a statement made by a Member of Parliament is of anyone, the person presiding shall refer the matter for enquiry to the Committee of Privileges which must report its findings within 30 days. By S.99 (3) if the said committee finds that the statement made by the MP is defamatory, then that MP shall tender an apology to Parliament within 7 days of the report. If the MP refuses to render an apology, the Speaker shall suspend that MP for the duration of the session of Parliament in which the defamatory statement was made a MP so suspended shall lose his privileges, immunities and remuneration which shall only be restored to him if he apologizes at any time before the end of the session. With regards to reports of Parliamentary proceedings, S.103 grants any person immunity from legal action in respect of a text, summary reports, papers, minutes, votes or proceedings of Parliament or a contemporaneous report of the proceedings in Parliament. This immunity will only be granted if the reports are not effected maliciously or from want of good faith. Cook v Alexander (1974)
2) Freedom From Arrest S.100 provides that neither the Speaker nor any MP nor the Clerk shall be arrested or served with any process whilst he is on his way to attending or returning from any proceedings in Parliament; this does not prevent a MP from being subsequently arrested for a criminal charge. Thus, MP’s have no privileges preventing them from facing criminal charges. DPP v Stonehouse (1977) State v Casalee - Port Loko; MP involved in ritual killings.
3) Immunity From Witness & Juror Service S.101 (1) provides that a MP and/or Speaker shall not be compelled whilst attending Parliament to appear as a witness in any court or place outside Parliament. S.102 exempts them from juror service.