The President and The Executive
The President
The 1991 constitution of Sierra Leone provides for the office of the President. S.40 (1) designates the President as Head of State, the Supreme Executive Authority of The Republic and Commander-In-Chief of the Armed Forces. He is described as Fountain of Honor and Justice and the symbol of National Unity and Sovereignty by S.40 (3). S.40 (4) makes the President responsible for certain key issues (in addition to the functions conferred upon him in the constitution). They are S.40 (4) (A) All constitutional matters concerning legislation. (B) Relations with foreign states. (C) The reception of foreign envoys and the appointment of principal representatives of Sierra Leone abroad. (D) The execution of treaties, agreements or conventions in the name of Sierra Leone. (E) Exercising the Prerogative of Mercy. (F) The grant of honors and awards. (G) Declaration of war. (H) Such other matters as may be referred to him by parliament.
The proviso to S.40(4) stipulates that where any treaty, agreement etc. executed by the President relates to the legislative of parliament or which in any way alters the law of Sierra Leone or imposes a charge on the consolidated fund and any declaration of war, shall be subject to ratification by parliament.
By S.41, no one is qualified to be elected President unless he is S.41 (A) A citizen of Sierra Leone. (B) A member of a political party. (C) Has attained the age of 40 years. (D) Is otherwise qualified to be elected as a member of parliament.
S.42 to S.45 deal with the election of the President. S.42 (1) provides that a presidential candidate shall be nominated by a political party. S.42(2)(a) provides that all persons registered in Sierra Leone as voters for the parliamentary elections shall be entitled to vote at the Presidential elections. S.42(2)(c) provides that if only one person is nominated for the office of President in a Presidential election, then that person shall be deemed duly elected President after the close of the nomination . S.42 (2)(e) provides that where there is more than one Presidential candidate, no person shall be elected president unless he has polled not less than 55 % of the valid votes cast. Where the 55 % threshold is not attained at a Presidential election, the 2 candidates with the highest number of votes shall contest a second election to be held within 14 days of the announcement of the results of the first election and the candidates polling the higher number of votes shall be declared President. S.42(3) provides that a person elected to the office of President shall enter office on the day upon which he is declared elected by the returning officer or upon the date when the office of the President becomes vacant; whichever event is the latter. S.44 empowers parliament to make laws for the purpose of regulating the election of a President. S.45 (1) provides that the Chief Electoral Commissioner shall be the returning officer at a Presidential election. S.45(2)(b) provides that if there is any question relating to the Presidential elections or as to whether a person has been validly elected President, it shall be referred to and determined by the Supreme Court.
The tenure of the office of President is dealt with in S.46.
S.46 (1) provides that no person shall hold office as President for more than two 5 year terms whether or not the terms are consecutive. S.46 (2) provides that if a member of parliament is elected President, he shall, upon his election as President, cease to be an elected member of parliament and his seat shall be declared vacant. S.46 (3) forbids the President from holding any other office of profit or emolument whilst he continues in office. S.46 (4) provides that upon assuming office, the President is required to take and subscribe an oath of office which is administered by the Chief Justice by S.46 (5). S.47 empowers the President to address Parliament and his salary and allowances are charged on the consolidated fund by S.48 (1).
S.49 (1) (1) outlines the situations when the office of the President becomes vacant. S.49 (1) (A) On the expiration of a Presidential term. (B) Where the incumbent dies or resigns or retires from that office. (C) Where the incumbent ceases to hold that office pursuant to S.50 & S.51 of the constitution.
Importantly, the proviso to S.49 (1) states that a President shall not resign or retire from office whilst a general election within the ensuing 3 months or where a state of public emergency has been declared. If Sierra Leone is at war in which the National territory is physically involved and the President considers that it is not practicable to hold elections, Parliament may by resolution extend the 5 year Presidential term but not for more than 6 months at any given time; S.49(2). Where the President dies, resigns, retires or is removed from office in accordance with the constitution, the Vice President shall assume the office of the President for the unexpired term of the President with effect from the date of the death, resignation etc. of the President; S.49(4).
S.50 deals with the issue of physical or mental incapacity of the President. By S.50 (1), where the cabinet has resolved that the question of the President’s physical or mental capacity to discharge his functions ought to be investigated, cabinet must inform the speaker whom shall, in consultation with the head of the medical services of Sierra Leone, appoint a Board of not less than 5 medical practitioners registered under the laws of Sierra Leone. This Board shall then investigate into the President’s physical or mental condition to ascertain whether or not he is capable of discharging his functions; S.50 (3). When the Speaker makes the referral to the Board, the President shall cease to perform his functions until the Board submits its report; S.50 (2). S.50 (4) Where the Board reports that the President is incapable by reason of infirmity of mind or body of discharging his functions, the Speaker shall certify this in writing and thereupon, the President shall cease to hold office and a vacancy shall be deemed to have occurred in the office of the President. And S.49 (4) shall apply. S.50 (5) requires the Speaker to communicate the report to Parliament.
S.51 tackles the important issue of misconduct by the President. By S.51 (1), if notice in writing is given to the Speaker, signed by not less than half of all members of Parliament of a motion that the President has committed a violation of the constitution or any gross misconduct and specifying the allegations and proposing that a tribunal be appointed to investigate this, the Speaker shall then cause the motion to be considered by Parliament; S.51 (1) (A) & (B). Under S.51 (2), Parliament shall meet in secret session to consider the motion and vote upon it. If the motion is supported by not less than 2/3 rds votes of all MP’s, then the Speaker shall declare the motion to be passed. Once the motion has been declared to be passed, the Speaker shall notify the Chief Justice, whom shall appoint a Tribunal which shall consist of a Chairman who shall be a justice of the Supreme Court and not less than 4 others. At least 2 of whom shall hold or shall have held high judicial office; S.51 (3) (A). This Tribunal shall investigate the matter and shall report to Parliament within 3 months from the date on which the motion was passed whether or not the allegations were true; S.51(3)(B). S.51 (3) (C) grants the President the right to appear before the Tribunal and to be represented thereat. Under S.51 (4), if the Tribunal reports to Parliament that the allegations against the President have not been sustained, no further proceedings shall be taken in respect of those allegations under this section. On the other hand, by S.51 (5), where the Tribunal reports to Parliament that it finds that the particulars of any allegation have been substantiated, then Parliament may meet in secret session and on a motion supported by 2/3 rds majority, resolve that the President is guilty of misconduct and that such misconduct is incompatible with his continuance in office as President and a vacancy shall then be deemed to have occurred in the office of President and S.49 (4) shall apply. S.52 (1) provides that whenever the president is absent from Sierra Leone or by reason of illness or any other cause, unable to perform his functions, then those functions shall be performed by the Vice President.
The Executive
The executive function embraces the direction of the general policy of the government. This includes the initiation of legislation, the maintenance of law and order and the promotion of social and economic welfare and indeed all administration, though some public services are administered not by government departments but by local authorities and independent statutory bodies. There are 2 cases which highlight the executive function. The 1st case is Town Investments v Dept.of the Environment, (1978). The 2nd case is R v. Sec.of State for the Home Dept. Fire Brigades Union, (1995). S.53 (1) vests executive power in Sierra Leone in the President which may be exercised by him directly or through members of the Cabinet, Ministers, Deputy Ministers or Public officers subordinate to him. The President may act in accordance with the advice of the cabinet or a minister except where the constitution or any other law compels him to act in accordance with the approval of Parliament or in accordance with the advice of any person or authority; S.53 (2). The proviso to S.53 (2) states that the President shall act in accordance with his own deliberate judgment in appointing members of his personal staff. Importantly, S.53 (3) stipulates that where the President is required to act in accordance with the advice of any person or authority, the question as to whether he has received or acted in accordance with such advice shall not be enquired into by any court.
S.54 (1) creates the office of the Vice President who shall be the Principal Assistant to the President in the discharge of his executive functions. A person shall be designated a candidate for the office of Vice President by a Presidential candidate before a Presidential election; S.54 (2) (A), and shall not be qualified for the office of Vice President unless he possesses the qualifications set out in S.41. Refer to S.54 (2) (B). A candidate shall be deemed duly elected as Vice President if the Presidential candidate who designated him under S.54 (2) has been duly elected President; S.54 (3). Should the office of Vice President become vacant or if he resigns, retires or is removed from office, the President shall appoint a person qualified to be elected as an MP with effect from the date of such death, resignation, removal or vacancy etc; S.54 (5). Further, if both the President and Vice President are unable to perform the functions of President, the Speaker of Parliament shall perform those functions until the President or Vice President is able to perform those functions; S.54 (6). But under S.54 (7), where the Speaker assumes the office of President as a result of death, resignation or removal from office of the President and Vice President, there shall be a Presidential election within 90 days of that assumption of office. S.54 (8) stipulates that the provisions of S.50 & S.51 are applicable to the removal of the Vice president from office.
S.55 deals with the situations in which the office of the Vice President may become vacant. They are S.55 (A) Upon the expiration of the term of office of the President. (B) If the Vice President retires, dies or resigns from office. (C) If the Vice President is removed from office in accordance with S.50 or S.51 of the constitution. (D) Upon the assumption by the Vice President to the office of the President under S.49 (4).
Ministers
The Constitution by S.56 (1) makes provisions for such other offices of Ministers and Deputy Ministers as may be established by the President with the proviso that no Member of Parliament shall be appointed as Minister or Deputy Minister. S.56 (2) sets out the qualifications necessary for one to be appointed Minister or Deputy Minister. These are (A) Being qualified to be elected as an MP. (B) The person must not have contested and lost as a candidate in the general election immediately preceding his nomination for appointment. (C) His nomination must be approved by Parliament. No Minister or Deputy Minister is allowed, while he continues in office, to hold any other office of profit or emolument by S.56 (3). Subject to the provisions of S.53, all Ministers and Deputy Ministers shall hold office at the President’s discretion. The Vice President and other Ministers, under the direction of the President, shall be responsible for such Departments of State or other business of government as the President may assign to them by S.56 (5). S.58 (1) sets out when the office of the Minister or a Deputy Minister shall become vacant - (A) On the expiration of the term of office of the President. (B) If the appointment is revoked by the President. (C) If he resigns or retires from office or dies. (D) If he is elected Speaker or Deputy Speaker of Parliament. (E) Upon the assumption of any other person to the office of President.
However, by S.58 (2), notwithstanding the provisions of S.58 (1) (A) and S.58 (1) (E), Ministers shall not vacate office by reason of the expiration of a Presidential term or the assumption by the Speaker to the office of President pursuant to S.54 (7) and S.54 (8) and shall accordingly continue to perform their functions until the election of a new President and Vice President. S.59 (1) establishes the Cabinet, whose function shall be to advise the President in the government of Sierra Leone and consists of the President, Vice President and such ministers as the President may from time to time appoint. The Cabinet determines the general policy of the government by S.59 (3). S.59 (4) requires the President to hold regular meetings of the Cabinet at which he shall preside or in his absence, the Vice President. S.60 (1) provides that the Cabinet shall be collectively responsible to Parliament for any advice to the President by or under the general authority of the cabinet and for all things done by or under the authority of any Minister in the execution of his office; collective responsibility. Collective responsibility of the Cabinet to the President does not, according to S.60 (2), apply to 3 situations - (A) The appointment or removal from office of Ministers and Deputy Ministers on the assignment of responsibility to any Minister. (B) The exercise of the Prerogative of Mercy.
(C) The exercise by the Attorney General and Minister of Justice or the DPP of the powers conferred upon them by S.66. By S.62, Ministers shall exercise general control over government departments assigned to them and subject to such control, each department shall be under the supervision of a Permanent Secretary whose office shall be a public office. S.64 (1) creates the office of Attorney General and Minister of Justice, who shall be the Principal Legal Adviser to the government and a minister. S.64 (2) provides that the Attorney General and Minister of Justice shall be appointed by the President from among persons qualified to hold office as a justice of the Supreme Court. And the Attorney General shall have a seat in Parliament. By S.64 (3), all offences prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the AG and Minister of Justice or some other person authorized by him in accordance with any law governing the same. The AG and Minister of Justice shall have audience in all courts in Sierra Leone except local courts by S.64 (4). There has been considerable debate as to whether the appointment of the AG and Minister of Justice is subject to the approval of Parliament. This issue, amongst others, was examined in the case of Sierra Leone Bar Association vs. 1) Attorney General and Minister of Justice
2) Eke Ahmed Halloway Reference - SC. 2\2002 On the 27th May, 2002, it was announced on the radio that the second , among others, had been nominated by the President to the office of Attorney General and Minister of Justice, subject to Parliamentary approval. In August 2002, the President, by various government notices, appointed Mr.E.A.Halloway, Attorney General and Minister of Justice. The then brought an action by way of notice of motion seeking the following reliefs pursuant to Sections 122, 124 (1) (A) and 127 of the 1991 Constitution. Seek the interpretation of Sections 56, 57, 58, 59, 60 (1), 64 (1) and (2) of the Constitution. More specifically,
(i) Whether the appointment to the office of Attorney General and Minister of Justice referred to in 64 (1) and (2) is subject to the provisions of S.56 (2) of the Constitution.
(ii) If the answer to (i) is yes, what is the effect of such an appointment to such office without the approval of Parliament?
(iii) Whether the provisions of S.56 (2) to (5) inclusive of the Constitution, are applicable to the office of the Attorney General and Minister of Justice referred to in S.64 (1) and (2) of the Constitution. The plaintiff also asked for, among other things, a declaration that the appointment of the 2nd defendant as Attorney General and Minister of Justice, without the prior approval of Parliament, as stipulated in S. 56 (2) of the Constitution, contravened the said provisions of the Constitution and is consequently null and void and of no legal effect. In delivering judgment, Timbo C.J. stressed
(1) That there was nothing in the Constitution which expressly states that S.64 (2) is to be read subject to S.56 (1) and (2). He cited the dicta of Kania C.J. in the case of Gopalan v State of Madras reported in 1950 SCJ 191, who stated “...we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not mentioned in the instrument.” He ruled that when words used by the legislature are precise and unambiguous, it is not the business of the courts to busy themselves in finding out what the supposed intentions of the framers were. He buttressed this by pointing out that when Parliament in its wisdom, had deemed it necessary that Parliamentary approval should be sought for appointment to certain public offices, it had done so. This had been done in no less than ten different places in the Constitution.
(2) The office of Attorney General and Minister of Justice is “Sui generis” or unique and completely distinct from that of other Ministers in S.56. As a matter of law, the Attorney General need not be a registered voter or a citizen of Sierra Leone, unlike other Ministers. All he need possess are the requisite professional qualifications. Also, S.115 (1) deals with the remuneration of the President and certain other public officers generally. S.115 (4) specifies the offices to which S.115 (1) applies. They are President, Vice President, Attorney General and Minister of Justice, Ministers, Deputy Ministers etc. If the Attorney General and Minister of Justice were the same person as any other Minister of State, there would have been no need to name him separately in the subsection. Accordingly, the declaration sought was denied as it was held that the provisions of S.64 (1) and (2) were not to be read subject to those in S.56 (2).
The Judiciary
Chapter VII of the 1991 Constitution deals with the Judiciary. In accordance with S.120 (1) of the Constitution, the judicial power of Sierra Leone shall be vested in the Judiciary of which the Chief Justice shall be the head. The administration of justice is the foremost function of the judiciary and this involves the determination of disputes between private persons and between private persons and the State. By S.120 (2), the Judiciary has over all civil and criminal matters relating to the 1991 Constitution and such other matters conferring jurisdiction on it by Parliament or under an act of Parliament. S.120 (3) stipulates that in the exercise of its functions, the judiciary shall be subject only to the 1991 Constitution or any other law and shall not be subject to the control or direction of any other person or authority. In accordance with S.120 (4), the Judiciary consists of the Superior courts of Judicature (High Court, Court of Appeal, Supreme Court) which shall be the superior courts of Sierra Leone and such other inferior or traditional courts that Parliament shall by law establish.
The Supreme Court At the apex of the hierarchy of courts in Sierra Leone is the Supreme Court. S.121 (1) provides that the Supreme Court shall consist of the Chief Justice, not less than 4 justices of the Supreme Court and such other justices of the superior court of judicature or of the superior courts in any state operating a body of law similar to Sierra Leone which the Chief Justice may, for the determination of any particular cause or matter, request be set in the Supreme Court, for such period as the Chief Justice may specify or until the request is withdrawn.
The of the Supreme Court shall be not less than 3 justices by S.121 (2). S121 (3) provides that the Chief Justice shall preside at the sittings of the Supreme Court and in his absence, the most senior of the justices of the constituted Supreme Court shall preside. With regard to its jurisdiction, S.122 (1) stipulates that the Supreme Court shall be the final court of appeal in and for Sierra Leone and it shall have such appellate and other jurisdiction as may be conferred upon it by the Constitution or any other law. S.124 (1) gives the Supreme Court original jurisdiction to the exclusion of all other courts... (A) In all matters relating to the enforcement or interpretation of any provisions of the Constitution. (B) On questions arising as to whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law or under the Constitution. S.125 gives the Supreme Court supervisory jurisdiction over all courts in Sierra Leone and over any adjudicating authority and in the exercise of its supervisory jurisdiction, it shall have power to issue such directions, orders or including writs of , Order of , and Prohibition as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers. Importantly, S.127 (1) provides that a person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with or in contravention of a provision of the Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect.
The Court of Appeal S.128 (1) provides that the Court of Appeal shall consist of the Chief Justice, not less than 7 justices of the Court of Appeal and such other justices of the superior court of judicature as the Chief Justice may for the determination of any particular cause or matter, request to sit in the Court of Appeal for such period as the Chief Justice may specify or until the request is withdrawn. S.128 (2) provides that the Court of Appeal shall be duly constituted by any 3 justices thereof. And when so constituted, the most senior of such justices shall preside. S.129 (1) grants the Court of Appeal jurisdiction to hear and determine appeals from any judgment, decrees or order of the High Court of justice or any justice of the High Court and such other appellate jurisdiction as may be conferred upon it by the Constitution or any other law.
The High Court S.131 (1) provides that the High Court shall consist of the Chief Justice, not less than 9 High Court judges and such other judges of the superior court of judicature as the Chief Justice may, for the determination of any particular cause or matter, request to sit in the High Court for such period as the Chief Justice may specify or until the request is withdrawn. The High Court shall be duly constituted by any one judge of the High Court sitting alone or by a judge of the High Court sitting with a jury by S.131 (2). S.131 (3) provides that the High Court may be divided into such divisions consisting of such number of judges as may be assigned to such divisions by the Chief Justice and sitting in such places in Sierra Leone as the Chief Justice may determine.
In accordance with S.132 (1), the High Court has jurisdiction in all civil and criminal matters and such other appellate and other jurisdiction as may be conferred upon it by the Constitution or any other law. S.132 (2) gives the High Court jurisdiction to determine any matter relating to industrial and labor disputes and administrative complaints. The High Court has, by S.134, supervisory jurisdiction over all inferior and traditional courts and any adjudicating authority.
The Magistrate’s Court The primary inferior court of judicature is the Magistrate’s Court. Pursuant to the Court’s Act No.31 of 1965, Sierra Leone is constituted into Judicial Districts and S.4 of the said act, there shall be constituted Magistrate’s Courts in and for every judicial district. S.3 of the said act makes provision for 3 Judicial Districts in the Western Area. In addition, in the areas of the provinces declared to be districts, for the purposes of the Provinces Act Cap 60 of the Laws of Sierra Leone, 1960 as amended of which there are 12, are also declared to be Judicial Districts; there are thus 15 Judicial Districts in Sierra Leone. Each Magistrate’s Court is presided over by a Magistrate or by at least 2 Justices of the Peace. In the case of the Magistrate’s Court sitting as a juvenile court, the Magistrate sits with 2 assessors. It is not an open court; it is a closed proceeding. Pursuant to S.5 of the Courts Act, 1965, a Magistrate has jurisdiction as a Magistrate throughout Sierra Leone and may be assigned to any Judicial District or transferred from one Judicial District to another by the Chief Justice and any Magistrate so assigned or transferred shall exercise jurisdiction as a Magistrate of the Magistrate’s Court constituted in and for such Judicial District. By S.6, Magistrate’s Courts have limited jurisdiction. Subject to their limitations, S.8 of the Courts Act, 1965 provides that the Magistrate’s Court shall have the jurisdiction to do all lawful acts necessary to enquire into and dispose of or to hear and determine all civil and criminal matters arising within the district area or place for which it is established or transferred to it by the High Court and such jurisdiction shall be exercised by the Magistrate duly appointed to such courts.
By S.137 (1), a judge of the superior court of judicature shall continue to hold office during good behavior. S.137 (2) stipulates that a judge of the superior court of judicature may retire as a judge at any time after attaining the age of 60 years and shall vacate office upon attaining the age of 65 years. By S.137 (4), a judge of the superior court of judicature may only be removed from office for inability to perform the functions of his office whether arising from infirmity of mind or body or for stated misconduct and shall not be removed except in accordance with the provisions of S.137 (5)(6)(7). By S.138 (1), the salaries, allowances and gratuities of judges shall be charged upon the consolidated fund. S.140 (1) establishes the Judicial and Legal Service Commission which shall advise the Chief Justice in the performance of his administrative functions and shall consist of A) The Chief Justice who shall be chairman. B) The most senior justice of the Court of Appeal.
C) The Solicitor General. D) One practicing counsel of not less than 10 years standing, nominated by the Sierra Leone Bar Association. E) The Chairman of the Public Service Commission. F) Two other persons not being legal practitioners, appointed by the President, subject to the approval of Parliament. S.140 (2) makes the Chief Justice, acting in accordance with the advice of the Judicial and Legal Service Commission, responsible for the effective and efficient administration of the judiciary. The tenure of office of members appointed pursuant to S.140 (1) (d) & (f) shall be 3 years.
Judicial Review
is the court’s power to police the legality of government decisions. Sometimes called the supervisory jurisdiction, judicial review brings together the most basic principles of the court. The requires the court to ensure that the government keeps within the terms of its own legislation. requires courts to avoid substituting their views on the merits of government action for those of the government. In exercising the power of judicial review, the courts are not concerned with whether government action is good or bad, right or wrong but whether it meets certain legal standards. The basis of judicial review has a long history. Historically, the basis of the court’s intervention was the doctrine. If a body exercising statutory powers went beyond those conferred upon it by the particular act, then the court could intervene. In the case of Attorney General v. Fulham Corporation, (1921); a local authority had power under the Baths and Wash Houses Acts, 1846-78, to establish baths, wash houses and open bathing places. The court held that this did not give it the power to operate a commercial laundry. However, the ultra vires approach was limited in that if a government decision fell within the language of a statute that created the power, the courts could not interfere however unfair or unjust the decision. In recent years, however, the restrictive approach of the ultra vires doctrine has been abandoned in favor of a wider approach. The categorization of grounds for judicial review were set out by Lord Diplock in the case of Council of Civil Service Unions v. Minister for The Civil Service, (1985); “Judicial review has, I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under 3 heads the grounds upon which administrative action is subject to control by judicial review. The first ground, I would call ‘Illegality’, the second, ‘Irrationality’ and the third, ‘Procedural Impropriety’. That is not to say that further development on a case by case basis may not in the course of time add further grounds...”
1) ‘Illegality’ - in commenting on this ground, Lord Diplock stated “By ‘Illegality’ as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. ‘Illegality’ includes the old ultra vires doctrine in the sense of doing something which is neither expressly authorized by a statute nor reasonably incidental to something that is authorized by a statute. In the case of Allingham v. The Minister of Agriculture and Fisheries, (1948); the minister had a statutory power to give directions regarding the cultivation of land for agricultural purposes. He had an express power to delegate this function to a committee which, in turn, attempted to sub-delegate its functions to an executive officer who issued a directive to a farmer that only sugar should be grown in a particular field. The farmer failed to comply with the directive and when fined, challenged the validity alleging that the executive officer had no power to issue the directive. The court quashed the fine, finding that only the minister and the committee had the power to issue such orders under the statute. In R. v. DPP ex parte Association of First Division Civil Servants, (1988); it was held that the delegation of certain functions under the Prosecution of Offenses Act to non-lawyers was unlawful. The courts take a strict approach to the concept of “Reasonably Incidental”. For example, in the case of Marcarthy and Stone Ltd v. Richmond LBC, (1991); the imposition of a charge for giving advice in connection with a planning application was held not to be reasonably incidental to the authority’s planning powers. This was because the giving of advice was not expressly authorized and was therefore, at best, an incidental function and the House of Lords took the view that something cannot be lawfully incidental to that which is itself incidental. ‘Illegality’ may also arise where the decision maker used the decision making power for a purpose not specified or implied in the statute. This aspect arises mostly in the context of discretionary powers. For example, in the case of Padfield v. Minister of Agriculture, (1968); it was held that a minister, when acting under a particular statutory power, must not be influenced by general political considerations. Similarly, ‘Illegality’ would also arise where the decision maker, in reaching the decision, failed to take into account a relevant and/or took into account an irrelevant consideration. The courts decide what factors are relevant and in R. v. Sec. of State ex parte Venables, (1997); it was held that public opinion in the shape of an opinion poll in the Sun newspaper was not relevant where the Secretary of State was charged with the judicial duty of reviewing the sentence of a notorious child murderer.
2) ‘Irrationality’ - ‘Irrationality’ or ‘unreasonableness’ has a special and limited meaning designed to stop the court from investigating the merits of a decision in too much depth. Lord Diplock in Council of Civil Service Unions v. Minister for The Civil Service, (1985), stated “By ‘Irrationality’, I mean what can now be succinctly referred to as ‘Wednesday Unreasonableness’..... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it.... This ground of review is often called ‘Wednesday Unreasonableness’ after the dicta of Lord Greene in the case of Associated Provincial Picture Houses v. Wednesday Corporation, (1948); Lord Greene MR emphasized that the court will interfere only where a decision was so unreasonable that no reasonable authority could have made it. Not merely because they think it is a bad decision. Another way of putting it is that the decision must be beyond the range of responses open to a reasonable decision maker; the dicta is R. v. Minister of Defense ex parte Smith, (1996). In Wheeler v. Leicester City Council, (1985); a local authority banned a rugby club from using a recreation ground because the club had not attempted to prevent six of its members from visiting South Africa. The House of Lords held that the local authorities were entitled to take into account race relations matters in exercising their powers but that it was perhaps unfair and certainly unreasonable for the council to impose what amounted to a punishment when the club had done nothing positively wrong.
3) ‘Procedural Impropriety’ - Lord Diplock stated in Council of Civil Service Unions v. Minister for The Civil Service, (1985), “I have described the third head as ‘Procedural Impropriety’ rather than failure to observe the basic ....because....this head covers failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” This ground has 2 aspects - A) Failure to comply with a procedural requirement lay down by statute or such as time limits, consultation or giving required information or notice could make a decision invalid. In other words, this ground could arise because the decision maker fails to observe a procedural requirement clearly stated in the statute conferring the decision making power. London & Clydesdale Estates Ltd. v. Aberdeen District Council, (1979). R. v. Immigration Appeal Tribunal ex parte Jeyeanathan, (1999).
B) The court may review a decision for non-compliance with the rules of natural justice. This ground of review is of ancient common law origin and central to the idea of the rule of law. It has 2 branches -
1) Nomo judex in causa sua meaning ‘no man to be judged in his own cause’. This is often referred to as the rule against bias. If the judge has an interest in the outcome of a case, then he’s absolutely barred from hearing it. There is no need to show bias; the mere existence of an interest is enough to disqualify the judge. The main examples of interest are as follows - A personal financial interest, however small, will automatically disqualify the decision maker. In the case of Dimes v. Grand Junction Canal, (1852); the Lord Chancellor held shares in a company appearing before him but was unaware of the fact. His decision was set aside. Another example is, a judge who has a close personal connection with one of the parties in the case is automatically disqualified, irrespective of other circumstances. R. v. Bow Street Magistrates Court ex parte Pinochet (no.2), (1999); Lord Hoffman, a law lord, was a director of a branch of Amnesty International, a party to an appeal. The decision was set aside.
2) Audi alteram partem meaning ‘hear the other side’ or ultimately, the right to a fair hearing. It means that no party ought to have his case decided without being afforded an opportunity of hearing the case which he has to meet as well as stating his own case. In Doctor Bentley’s Case, (1723); it was stated “Even God himself did not pass sentence on Adam before he was called to make his defense.” The minimum requirement is that the person must have an adequate opportunity of presenting his case. A person must also have adequate notice of any charges to be brought against him or any matters that have to be taken into account. Ridge v. Baldwin, (1964); the Chief Constable of Brighton was dismissed by the local police authority without a hearing. They had statutory power to deprive him of his position for incapacity or misconduct but not otherwise. The House of Lords held that he was entitled to a hearing for 2 reasons -
1) He had been deprived of a public office (not just an ordinary job).
2) The power to dismiss was limited by statute so that the authority did not have a complete discretion. Lord Reid emphasized that the right to be heard should depend on the consequences of the decision to the individual and not whether the decision is judicial.
Examine remedies available to a party seeking Judicial Review.
Look at Natural Justice. Circumstantial evidence, nature of the decision, consequence of failure to give a fair hearing etc.
Citizenship
Citizenship is the legal link between an individual and a particular state or political community under which the individual receives certain rights, privileges and protections in return for allegiance and duties. Both in international and national law, the nationality of citizenship of an individual determines many aspects of the relationship which a person has with the state of which he or she is a national and with other states. Jennings and Watts in ‘Oppenheimer’s International Law’ at page 849 stated, “...to the extent to which individuals are not directly subject to international law, nationality is the link between them and international law. It is through the medium of their nationality that individuals can normally enjoy the benefits from international law.” By an established principle of international law, each state is entitled, subject to treaty obligation, it may have to determine through its constitution and other laws, who are its subjects or nationals. The fact that states enact their own rules on nationality may cause some persons to have dual or multiple nationalities. Upon an individual’s nationality, other rights and duties may depend. Not only the right to hold a passport but also liability to military service, the right to seek employment, political rights, the right to own land or enter into the civil service.
In Sierra Leone, citizenship is governed by the Sierra Leone Citizenship Act No.4 of 1973 as amended by Act No.13 of 1976. The act is described in the preamble as “...an act to consolidate and amend the law relating to the acquisition and loss of citizenship, and for matters connected therewith.”
Acquisition
The act deals with various categories of citizenship.
(1) Citizenship by Birth - By S.2, every person born in Sierra Leone before 19th April, 1971 or who was resident in Sierra Leone on 18th April, 1971 and not the subject of any state shall on 19th April, 1971 be deemed to be a citizen of Sierra Leone by birth provided (A) that his father or his grandfather was born in Sierra Leone. (B) He is a person of Negro African decent.
S.3 provides that every person born in Sierra Leone on or after 19th April, 1971 in the circumstances set out in S.2 shall be deemed a citizen of Sierra Leone by birth.
S.4 stipulates that every person born or resident outside Sierra Leone on or before 18th April, 1971 and who, but for such birth or residence outside Sierra Leone, would be a citizen of Sierra Leone by virtue of S.2, shall on 19th April, 1971 be deemed to be a citizen of Sierra Leone by birth.
By S.5, every person born outside Sierra Leone on or after 19th April, 1971 of a father who was or would, but for his death, have been a citizen of Sierra Leone by virtue of sections 2, 3 and 4 is a citizen of Sierra Leone by birth.
By S.6, a person who’s mother is or was a citizen of Sierra Leone by virtue of sections 2, 3, 4 and 5 and who does not or did not acquire the citizenship of another state shall be deemed to be a citizen of Sierra Leone by birth.
(2) Citizenship by Naturalization - The act identifies various categories of persons who may be eligible for citizenship by naturalization. S.7 provides that every woman who is not a Sierra Leonean and who is or has been married to a Sierra Leonean citizen may, upon application made by her in the manner prescribed, be granted a Certificate of Naturalization.
S.8 (1) provides that every person of Negro African decent, born in Sierra Leone after 18th April, 1971 may, on application made by him in the manner prescribed, be granted a Certificate of Naturalization. But such a person shall not be granted a certificate (A) Neither of his parents was a citizen of Sierra Leone and his father possessed diplomatic immunity at the time of his birth. (B) His father was an enemy alien and the birth occurred in a place under the occupation of the enemy.
S.8 (2) provides that any person of full age and capacity either of who’s parents is a person of Negro African decent, who is resident in Sierra Leone and has been continuously resident for a period of not less than 8 years may, subject to the qualifications set out in the second schedule to the act, on application, be granted a Certificate of Naturalization. The qualifications are... (A) He must have resided in Sierra Leone throughout the 12 months immediately preceding the date of his application. (B) That during the 7 years immediately preceding the said period of 12 months, he has resided in Sierra Leone for periods amounting in the aggregate to not less than 5 years. (C) He has an adequate knowledge of a language in current use in Sierra Leone. (D) That he is of good character. (E) That he would be a good citizen of Sierra Leone. (F) That he intends, if naturalized, to reside permanently in Sierra Leone.
Under S.8 (3), every person of full age and capacity, neither of who’s parents is a person of Negro African descent, who is resident in Sierra Leone and has been continuously so resident for a period of not less than 15 years may, subject to the qualifications contained in the 3rd schedule of the act, be granted a Certificate of Naturalization. The qualifications are (A) That immediately preceding the date of the application, he has either
(1) Resided in Sierra Leone for a continuous period of 15 years.
(2) Resided in Sierra Leone for a period of 12 months immediately preceding his application and in the 20 years immediately preceding the period of 12 months, he has resided in Sierra Leone for periods amounting in the aggregate to not less than 15 years. (B) That he has an adequate knowledge of a language indigenous to and in current use in Sierra Leone. (C) That he is of good character. (D) That he’s a person who has made or who is capable of making a useful and substantial contribution to the advancement, progress and well being of Sierra Leone. (E) That he is capable of renouncing his current citizenship and he has renounced the citizenship or nationality and any claim to the protection of any other country. (F) That he has shown a clear intention of his desire, if naturalized, to continue to reside permanently in Sierra Leone. (G) That he has paid such fees as may be prescribed. (H) That he has made such further declaration as may be prescribed.
By S.8 (4), any person under the age of 21 and (A) Whose mother or father was a citizen of Sierra Leone by naturalization and (B) Born after his father or mother became a citizen by naturalization may, if he so desires, apply to become a citizen of Sierra Leone by naturalization.
Under S.9, no person applying under sections 7 and 8 shall be granted a Certificate of Naturalization unless (A) He is of full age and capacity. (B) He has renounced any other citizenship he possesses. (C) He has taken an Oath of Allegiance to the Republic in accordance with the first schedule of the act and (D) He has paid such fees as may be prescribed.
It is important to note S.8 (5) which stipulates that no naturalized citizen may hold the following public offices... (A) President of the state of Sierra Leone. (B) Member of any Commission established under the constitution.
(C) Ambassador or diplomatic representative of Sierra Leone in any foreign country. (D) Member of the Army or Navy or Air Force or Police Force of Sierra Leone. (E) Permanent Secretary, Provincial Secretary, Secretary to the President, Secretary to Cabinet or Establishment Secretary. (F) Member of Parliament or of a local authority.
S.10 provides that no person shall have Sierra Leonean citizenship and any other citizenship at one and the same time and S.11 provides that any person who upon attaining the age of 21, is a citizen of Sierra Leone and any other country, shall on attaining the age of 22, cease to be a citizen of Sierra Leone.
The Armed Forces
S.165 (1) of the 1991 Constitution provides that there shall be the Armed Forces of Sierra Leone which shall consist of the Army, the Navy and the Air Force and such other branches for which provision is made by Parliament. By S.165 (2), the principal functions of the Armed Forces shall be
(1) To guard and secure the safety and territorial integrity of the State.
(2) To participate in its development.
(3) To safeguard the people’s achievements and to protect the Constitution.
No member of the Armed Forces shall hold office as President, Vice President, Minister or Deputy Minister whilst he remains a member of the Armed Forces by S.165 (3). S.166 prohibits any person from raising any armed force except by or under the authority of an act of Parliament. S.167 (1) establishes the Defense Council which shall consist of (A) The President who shall be Chairman. (B) The Vice President. (C) The Minister responsible for defense. (D) The Chief of Defense Staff. (E) The Commanders of the Armed Forces (Army, Navy & Air Force) and their deputies. (F) The minister of Internal Affairs. (G) Two other persons as the President shall from time to time appoint.
S.167 (3) provides that the Permanent Secretary of the Ministry of Defense shall be the secretary to the council.
S.168 (1) empowers the President, acting on the advice of the Defense Council, to appoint the Chief of Defense Staff of the Armed Forces. And subject to the provisions of S.168 and the control of directives of the Defense Council, the Chief of Defense Staff and the commanders of the Armed Forces shall be responsible for the operational control and administration of the Armed Forces as a whole.
S.169 (1) makes the Defense Council responsible for advising the President on all major matters of policy relating to defense and strategy including the role of the Armed Forces, military budgeting and finance, administration and the promotion of offices above the rank of lieutenant or its equivalent. By S.169 (2), the Defense Council may, with prior approval of the President, make regulations for the performance of its functions and for effective and efficient administration of the Armed Forces. By S.169 (3), regulations made pursuant to S.169 (2) shall include regulations made in respect of (A) The control and administration of the Army, Navy and Air Force of Sierra Leone. (B) The ranks of officers and men of each such rank and the use of uniforms by such men. (C) The condition of service, including those relating to the enrollment and to the pay, pension, gratuities and other allowances of officers and men of each Armed Force and deduction there from. (D) The authority and powers of command of officers and men of each Armed Force. (E) The delegation to other persons of powers of commanding officers to try accused persons and the conditions subject to which such delegation may be made. A member of the Armed Forces becomes subject to military law on enlistment but he also remains bound by the ordinary civil and criminal law. See Burdett v. Abbott, (1812).
The principal act dealing with the Armed Forces in Sierra Leone is the Republic of Sierra Leone Military Forces Act No.34 of 1961 as amended and it contains detailed provisions for enlistment, terms of services and discipline of soldiers. The act deals extensively with various offences under military law. The main ones are
(1) Aiding the enemy. S.30
(2) Cowardice. S.32
(3) Looting. S.36
(4) Mutiny. S.37
(5) Insubordinate Behavior. S.39
(6) . S.43
(7) Absence without Leave. S.44
(8) Malingering. S.47 These offences are peculiar to persons subject to military law. A soldier may sometimes find himself in a dilemma if he’s ordered by a superior officer to do something unlawful and the question has arisen, how far, if at all, he can plead obedience to superior orders (one of the first duties of a soldier) as a defense. In R. v. Smith, (1906); Solomon J. Said “I think it is a safe rule to lay down that if a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known that they were unlawful, the private soldier will be protected by the orders of his superior officer. In that case, it was held that the order to shoot an African if he did not fetch a bridle, was not so plainly illegal that the accused would have been justified in the circumstances in refusing to obey i and it was therefore not necessary to decide whether in the circumstances, the order was unreasonable or unnecessary. The accused was therefore, not guilty of murder. In Keighley v. Bell, (1866); Willes J. Stated “I hope I will never have to determine that difficult question, how far the orders of a superior officer are a . Where I compelled to determine that question, I should probably hold that orders are an absolute justification in times of actual war.... I believe that the better opinion is, that an officer o soldier acting under the orders of his superior not being necessarily or manifestly illegal - will be justified by these orders.” The soldier’s belief in the lawfulness of the order must be reasonable. A lawful command is one which is not contrary to local or international law and is justified by military law. In the manual of military law, it is stated “A superior has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of a military duty or regulation or for a purpose connected with the welfare of the troops.”
Court Marshall
Courts Marshall are established pursuant to S.84 of the Republic of Sierra Leone Military Act and are empowered to try any person subject to military law, in addition to offences against the general law which are applicable to all persons who join the army. S.85 of the act provides that Courts Marshall shall be convened by the force commander or any general officer, Brigadier or Colonel or officer of corresponding rank. According to S.86 (1), the President of Courts Marshall shall be appointed by order of the convening officer and shall not be under the rank of Major and the other members of the Courts Marshall other than the President shall be appointed by order of the convening officer; S.86 (4). By S.86 (1), a Court Marshall shall consist of the President and not less than 2 other officers but according to S.84(2), a Court Marshall for the trial of an officer or warrant officer shall consist of at least 5 officers. Under S.87 (2), any officer who at any time between the date on which the accused was charged with the offence and the date of trial, has been commanding officer of the accused, shall not sit as judge or as judge advocate. By S.87 (1), the officer who convenes a Court Marshall shall not be a member of that Court Marshall with the proviso that if in the opinion of the convening officer it is not practicable to appoint another officer as President, then he may himself be President. Under S.87(2), the same rule applies to any officer who investigated the trial against the accused. In accordance with S.123 of the Act, the convening officer may appoint a Judge Advocate. The Judge Advocate advises the Court Marshall in matters of questions of law and procedure and advises the courts before it deliberates on its finding.
Jurisdiction Courts Marshall have jurisdiction to try and punish persons subject to military law for 2 classes of offences created by the Republic of Sierra Leone Act, Part V. To which military offences and other offences in accordance with S.72 to which Courts Marshall have concurrent jurisdiction.
S.129 of the act grants an accused person the right of appeal from decisions of a Court Marshall as of right in offences carrying the death sentence and with leave from the CA for any other offence. This provision was repealed by Act No.5 of 1971 in which it was stipulated that the decision of a Court Marshall shall not be questioned in any court of law thereby abolishing a soldier’s right of appeal from a Court Marshall decision. The State v. Amara Conteh and Others, (1994) The State v. Chernor Malador Deen, (1995) The State v. Tamba Gborie and Others, (1998)
However, Act No.13 of 2000 repealed S.129 as provided for in the 1971 Act and S.129 now stipulates that an appeal shall lie on any decision of a Court Marshall to the CA with leave from that court with the proviso that an appeal from a sentence of death by a Court Marshall shall be to the CA as of right. S.131 (1) of the Act as amended by sections S.129 - 136, Act No.13 of 2000 now stipulates that the CA shall allow an appeal if it thinks that the finding of the Court Marshall is unreasonable, or cannot be supported having regard to the evidence or involves a wrong decision on a question of law or that on any ground, there was miscarriage of justice and in any other case shall dismiss the appeal. By S.73 (1) of the 1961 Act, there is a scale of punishment that a Court Marshall may award to an officer depending on the gravity of the offence committed.
According to S.73 (2), the said scale is (A) Death (B) Imprisonment (C) Cashiering (Withholding of salary) (D) Dismissal from the service. (E) Forfeiture of seniority of rank. (F) A fine of a sum not exceeding the equivalent of 90 days pay. (G) Severe reprimand or reprimand. (H) Where the offence has occasioned any expense, loss or damages - Stoppages (deduction to pay the assessed loss).
In addition to the punishment set out in S.73 (2), S.75 provides for field punishment which consists of such duties or drills in addition to those which the offender might be required to perform if he were not undergoing punishment and loss of privileges.
Fundamental Human Rights
The term ‘right’ is a much overused word. In a legal context, it is a concept dealing with an advantage or benefit conferred on a person by rules of a particular legal system. In Greek philosophy or Roman law, a right seems to have been identified with what was just and right. Later, a right was sometimes deduced from the fundamental notion of free will or sometimes seen as essentially based on legal relationships between persons by a rule of law and sanctioned by legal order or sometimes as an interest recognized and protected by a rule of legal justice. In Warwick v. Queen’s College, it was stated “Where you find an undiluted exercise of rights, you must, if you can, find a legal origin for it. If you entirely fail in that, however long the apparent right may have been, you cannot establish it.” In other words, a right is traceable to a particular legal rule in law. Chapter III of the 1991 Constitution assures the recognition and protection of fundamental human rights and freedoms of the individual which S.15 stipulates that every person in Sierra Leone is entitled to. For legal discourse, these rights can basically be divided into 4 broad categories - (A) Freedom of the Person. (B) Freedom of Property. (C) Freedom of Expression. (D) Freedom of Assembly and Association.
(A) Freedom of the Person
1) Right to Life This right has been described in the case of Bugdaykay v. Sec. of State, (1987), as most fundamental and S.16 (1) of the 1991 Constitution provides that no person shall be deprived of his life intentionally except in execution of the sentence of a court in respect of a criminal offence under the laws of Sierra Leone of which he has been . S.16 (2) outlines a number of situations where a person would not be deemed as having been unlawfully deprived of his life (provided the force so used is reasonably justifiable) the situations are - (A) The defence of any person from unlawful violence or for defence of property. (B) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained. See the case of Augustus v. Gosset, (1996). (C) For the purpose of suppressing a riot, insurrection or mutiny.
(D) In order to prevent the commission by that person of a criminal offence. (E) If he dies as a result of a lawful act of war.
2) Right to Personal Liberty Dicey stated “The right to personal liberty...means, in substance, a person’s right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.” Lord Atkin in Liversidge v. Anderson, (1942), stressed “Every imprisonment is prima fascia unlawful, and it is for the person directing the imprisonment to justify his act.” S.17 (1) provides that no person is to be deprived of his personal liberty except where such deprivation is authorized by law in the following cases - (A) In consequence of his unfitness to plead a criminal charge. (B) The sentence or order of a court (whether in Sierra Leone or elsewhere) in respect of a criminal offence of which he has been convicted. (C) The execution of an order of a court of the Superior Courts of Judicature or any other court established by Parliament on grounds of of such court. (D) The execution of an order of a court made in order to secure the fulfillment of any obligation imposed on him by law. Eg. See Cap 24, Laws of Sierra Leone, 1960. (E) For the purpose of bringing him before a court or tribunal. (F) Upon removable suspicion of his having committed or of being about to commit a criminal offence. (G) In the case of a person under the age of 21, for the purpose of his education or welfare. A husband has no such right over his wife. See the case of The Queen v. Jackson, (1891). (H) For the purpose of preventing an infectious or contagious disease. (I) In the case of a person who is or is reasonably suspected to be of unsound mind, addicted to drugs or alcohol or a vagrant for the purpose of his care or treatment or for the protection of the community. (J) For the purpose of preventing that person’s unlawful entry into Sierra Leone or for the purpose of effecting his extradition, expulsion or other lawful removal from Sierra Leone.
Arrest and Detention Though there is no statutory definition of arrest at common law, it is the physical restraint by compulsion of the freedom of the individual. Lord Devlin explained in the case of Hussein v. Chong Fook Kam, (1970), “An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also, when by words or conduct, he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.” This definition is subject to slight modification in that a private citizen can, in certain circumstances, effect an arrest. In Sierra Leone, the concept of arrest is governed by the provisions of the Criminal Procedure Act No.32 of 1965. According to S.4 (1) of this Act, in making the arrest, the constable or other person making same, shall actually touch or confine the body of the person to be arrested unless that person submits to custody by words or action.
Under S.4 (2), if the person to be arrested forcibly resists the endeavor to arrest him or attempts to evade arrest, then sufficient force must be used to effect the arrest but no more. See the case of R. v. Inwood, (1973). S.4 (3) establishes that no right is given to the person effecting the arrest to cause the death of any person except where the constable or other person is legally attempting to arrest the person killed upon a charge of treason, felony or inflicting a dangerous wound and the arrest of such person cannot be otherwise accomplished. S.4 (4) provides that where a constable is being obstructed when making any arrest, it shall be the duty of any private person on whom he may call for aid to go to his assistance.
By S.8, the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. What is necessary will clearly depend on the circumstances. See the case of Pollard v. Chief Constable of West Yorkshire Police, (1998); a police dog bit the plaintiff who had been arrested. It was held that although the crime concerned criminal damage amounting to only 18 Pounds, the dog was assisting in the arrest and its actions did not constitute unreasonable force. By S.11 of the Criminal Procedures Act, a private person may arrest without warrant (A) Any person who in his presence commits a felony. (B) Any person whom he suspects of having committed a felony if such felony had actually been committed and such private person has reasonable grounds to believe that the person arrested has committed that felony. (C) Any person offering to sell, pawn or deliver any property which such private person has reasonable grounds to believe to be stolen property. (D) A person about to commit an act which would manifestly endanger another person’s life. (E) A person detaining or suspected of detaining any other person with intent to kidnap or unlawfully remove him from Sierra Leone.
But S.12 provides that where a private person arrests any person under S.11, he shall deliver the person arrested as soon as may be to a police constable. See the case of Walters v. W.H.Smith, (1914). By S.13 (1), any constable may arrest without warrant (A) Any person who commits any offence involving violence or dishonesty in his presence. (B) Any person who another positively accuses of having committed any felony or any larceny, embezzlement, false pretenses or receiving. * He can act on second hand information. (C) Any person who another suspects of having committed any felony or any misdemeanor mentioned in paragraph B if the suspicion of such other person appears to be well founded. (D) Any person whom he has reasonable cause to suspect of having committed or being about to commit any felony. (E) Any person he finds between the hours of six i the evening and six in the morning, laying or loitering in any street, highway, yard, compound or other place and not giving a satisfactory account of himself. (F) Any loose, idle or disorderly person whom he finds in any way disturbing the peace, whether in a public or private place and causing annoyance to any person.
By S.14 (1) of the Criminal Procedures Act, where any person who has been accused of committing an offence refuses to give, on demand, his name and address to a constable or gives a false name and address, he may be arrested by the constable in order to ascertain his name and address. See the case of R. v. Brown, (1997). S.17 (2) (a) of the 1991 Constitution provides that any person who is arrested or detained shall be informed in writing or a language he understands at the time of his arrest, or failing which, not later than 24 hours after such arrest, the facts and grounds for his arrest. See the case of DPP v. Hawkins, (1988). The underlying rationale of this provision is explained by Viscount Simon in Christie v. Leachinsky “...A person is prima fascia entitled to his freedom and is only required to submit to restraint to his freedom if he knows in substance why it is claimed that his restraint should be imposed.” If the person arrested or detained is not told the reason for his arrest when it becomes mandatory to do so, the arrest from that stage becomes unlawful. See the case of DPP v.Hawkins, (1988). Under S.17 (2) (b), the person arrested or detained must be informed immediately at the time of the arrest of his right to access to a legal practitioner or any person of his choice and shall be permitted to instruct without delay, a legal practitioner of his choice and to communicate with him confidentially. See the case of Minister of Home Affairs v. Dabengwa, (1982); a local authority used regulations prohibiting detainees from receiving communication from their lawyers. This was held to be unlawful. The same principle applied in R. v. Samuel, (1979). S.17 (3) provides that every person arrested or detained and who is not released shall be brought before a court of law (A) Within 10 days from the date of arrest in cases of capital offences carrying life imprisonment and economic and environmental offences. (B) Within 72 hours of his arrest in cases of other offences. If the person arrested or detained is not tried within the period specified above then he shall be released unconditionally or upon such conditions that are reasonably necessary to ensure that he appears at a later date for trial. Where an individual’s right to personal freedom has been wrongfully infringed, he can institute a civil action for . However, it is not enough that the subject should be able to pursue his remedies in the ordinary law in the courts. For he may be detained by order of the state or for that matter by an individual and so not be in the position to institute legal proceedings. Accordingly, the law provides the Writ of Habeas Corpus, a process by which a person who is confined without legal justification may secure release from his confinement. The wrongdoer is not hereby punished but the person imprisoned procures his release and is thus at liberty to pursue his remedies against the wrongdoer in the ordinary way. The Writ of Habeas Corpus is available against any person who is suspected of detaining another unlawfully and it is directed to the person detaining, commanding him to produce the body of the person and the reason for his detention. If there is no justification for the said detention, the prisoner is unconditionally released. See the cases of R. v. Holmes ex parte Sherman, (1981), R. v. Brixton Prison Governor ex parte Narajan Singh, (1962), R. v. Board of Control ex parte Rutty, (1956).
3) Freedom of Movement S.18 (1) of the Constitution provides that no person shall be deprived of his freedom of movement. And further defines Freedom of Movement as the right to move freely throughout Sierra Leone, the right to reserve in any part of Sierra Leone, the right to enter or leave Sierra Leone and immunity from expulsion from Sierra Leone. Any restriction on a person’s Freedom of Movement shall not be held to be consistent with or in contravention of S.18 where such a restraint is consequent upon his lawful detention; S.18 (2). According to S.18 (3), there are certain situations which justify a restriction on personal movement...
(A) Where the restriction is required in the interest of defence, public safety, public morality, public health or the conservation of the natural resources of Sierra Leone. (B) For the impositions of restrictions of residence in Sierra Leone of non citizens or for their exclusion or expulsion from Sierra Leone. (C) For the imposition of restrictions on the acquisition or use by any person of land or property in Sierra Leone. (D) For the imposition of restrictions of movements of residence within Sierra Leone of public officers or members of the defence force. (E) For the removal of a person from Sierra Leone to be tried outside Sierra Leone for a criminal offence recognized as such by law of Sierra Leone or to serve a term of imprisonment outside Sierra Leone pursuant to a sentence of a court in respect of a criminal offence of which he has been convicted. (F) From preventing the departure from Sierra Leone of a person who is reasonably suspected of having committed a crime or seeking to evade the fulfillment of legal obligation or military service.
(B) Freedom of Property
1) Protection from Deprivation of Property S.21 (1) provides that no property of any description shall be compulsorily taken possession of and no interest in or right over property of any description shall be compulsorily required unless the following conditions are satisfied... (A) The taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public health, town and country planning and the development or utilization of any property is such as would provide the public benefit or public welfare of citizens of Sierra Leone. (B) There is reasonable justification making it necessary for causing the hardship to the person having an interest in or right over the property. (C) Provision is made by the law for
1) Prompt payment of adequate compensation.
2) The right of the person so affected to access to a court or other impartial or independent authority for the determination of his right or interest, the legality of the taking of possession and the amount of compensation to which he is entitled. See the case of Att.General v. Dekeyser’s Royal Hotel , (1920) .
(C) Freedom of Expression
Under S.25 (1), no person shall be hindered in the enjoyment of his freedom of expression and further states that freedom of expression includes the freedom to hold opinions and to receive and impart ideas and information without interference, and freedom of interference with his correspondence, freedom to own, establish and operate any medium for the dissemination of information, ideas and opinions and academic freedoms in institutions of learning. See the case of R. v. Secretary of State ex parte Simms, (1999).
Under S.25 (2), there are certain instances where certain laws would not be viewed as inconsistent with or in contravention of S.25. (A) Those which are reasonably required
1) In the interest of defence, public safety, public morality or public health. Eg. Public Order Act No.46 of 1965.
2) For the purpose of protecting the reputations, rights and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the court or regulating the telephony, telecommunications, post, wireless broadcasting, television and public entertainment.
The chief protection the law gives to the individual lies in the of . Defamatory matter is that which reflects on a person’s reputation so as to lower him or her in the estimation of right thinking members of society ( Sim v. Stretch, (1936)) or may tend to cause them to be shunned or avoided ( Youssoupoff v. MGM, (1934)) or would bring the plaintiff into ridicule or contempt ( Dunlop Rubber Co. Ltd v. Dunlop, (1921)).
Freedom of expression may also be restricted by preventing the disclosure of confidential information. See the case of Attorney General v. Guardian Newspapers (No.2), (1988); the case concerned the memoirs of a former secret agent in a book, ‘Spycatcher’. The book contained inter alia allegations of a conspiracy amongst members of MI5 to destabilize the Wilson administration in the 1970's and a plot to assassinate President Nasser of Egypt. The majority of the House of Lords held that the restriction of freedom of expression employed in the banning of ‘Spycatcher’ was necessary in the interest of national security and that the secrets contained within the book were acquired by the agent as part of his contract of employment, and therefore, he was selling the book in breach of confidence.
(B) Which imposes restrictions upon public officers or members of the defence force.
(D) Freedom of Assembly and Association
S.26 (1) provides that no person shall be hindered in the enjoyment of his freedom of assembly and association except with their own consent. This right is described as the right to assemble freely and to associate with other persons and in particular, to form or belong to any political party, trade unions or other economic, social or professional organizations, national or international, for the protection of his interest. S.26 (2) provides that nothing done under the authority of any law shall be held to be in contravention of or inconsistent with S.26, where the law makes provision for - (A) That which is reasonably required
1) In the interest of defence, public safety, public order, public morality, public health or provision for the maintenance of supplies and services essential to the community. The case of Thomas v. Sawkins, (1935); talks about demonstrations especially when it is in breach of public protection.
2) For the purpose of protecting the rights and freedoms of other persons.
(B) Which imposes restrictions upon public officers or members of a defence force. Eg. S.76 (1) (b) of the 1991 Constitution and S.165 (3) of the Armed Forces Act.
(C) Which imposes restrictions on the establishment of political parties or regulates the organization, regulation and functioning of political parties and the conduct of its members.