24th September 2017
APC Resignations: Are the Lawyers Lying or Misleading the Public?
By a press release (13/03/17)
Sierra Leoneans' civic duty is to respect and abide by the supreme law of the land, the Constitution and all other laws of Sierra Leone.
Including, of course the case law, that is determined by the Superior Court of Judicature. This is the so-called principle of legality. (Pictured: Deputy Speaker of the House Chernor Bah).
The resignations of the ‘Apprentice’ and special adviser, Alhaji Alpha Khan; former ambassador to China, Alimamy Petito Koroma; and former presidential adviser, Dr Sam Sesay is not as surprising as the fact that not many other flag-bearer aspirants (as expected) have resigned. To be true to the principle of legality (respect for the law), all aspiring flag-bearers who occupy public offices must be seen to have respect for the Constitution.
Section 76 (1) (b) disqualifies all such aspirants from contesting parliamentary election if they failed to resign their public offices twelve months prior to the date on which s/he seeks to be elected. Although Section 41 deals with the qualifications for President, the reference in Section 41(d) provides the link to the disqualification for election as a parliamentary.
So Section 41 does not really deal with the disqualifications for election of the President as Section 76 does for parliamentarians. However, this could be interpreted as the case and by necessary implication Section 41 could be read in conjunction with Section 76 to provide the disqualifications for election as Member of Parliament applies to the election of the President.
If the 1991 Constitution of Sierra Leone is not so clear on the question who must resign their public offices, then the 2007 Supreme Court of Sierra Leone’s interpretation leaves no room for doubt on this particular question. The case of Charles Francis Margai v Solomon Ekuma Berewa SC1/2007 and SC2/2007 has settled the issue of who qualifies to run for President and who is disqualified. At page 101 of the judgment, Ade Renner-Thomas CJ ruled that ‘…one cannot properly answer the question whether the 1st Defendant is a public officer without adverting one’s mind to section 171 (4) of the Constitution which expressly states that: “In this Constitution "public service" does not include service in the office of President, Vice-President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament…”
If a Sierra Leonean in ‘public service’ (that is a person whose position is not included in the list above or section 171 (4) of the Constitution) intends to run for President of the Republic or as a member of parliament, s/he must resign their public office. Accordingly, for the purposes of the 2018 elections, the Vice-President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament are not public servants and therefore need not resign, should any of the above intend to run for flag-bearer and President of the Republic of Sierra Leone.
The view proffered by Alpha Khan is not only misguided but plainly wrong: that “So long as you are paid from the Consolidated Fund you are a public official and you must resign to contest the presidential race. Whether you are a minister, or Ambassador or adviser, so long as you are a public official you much resign now.” (Awoko, Tuesday, February 28, 2017).
The language of the law is technical and different from ordinary use of language. But this is no excuse for lawyers to tell the general public that the Vice-President, Attorney-General and Minister of Justice and other Ministers have to resign if they intend to contest the flag-bearer position. This is plainly wrong and misguided.
The suggestion that anyone paid from the Consolidated Fund must resign is also plainly wrong considering the language in Section 171 (4) of the Constitution. One rationale for excluding ministers and those named in Section 171 (4) is that these are, broadly speaking, political appointees on short term basis.
They are not public servants because they are not part of the permanent and general administration of the government in the sense that they come and go with the President who appointed them. On the other hand, public servants have security of tenure and do not necessarily hold office at the President’s whim or discretion.
The views of lawyers Sulaiman Banja Tejan Sei and Charles Francis Margai canvassed on radio and other media outlets are dangerous. Lawyer Tejan Sei suggests that only a sitting President and the Vice President should not resign. It was surprising to hear lawyer Charles Margai on the Radio Democracy this morning (03/03/2017) arguing that the 2007 Supreme Court decision was wrong because the case ought to have been considered by the full Court or at least by more than three Justices of the Supreme Court.
This is contrary to the principle of legality and respect for the law. As a lawyer, Margai should have known that the Electoral Laws Act, No. 2 of 2002 describes the composition of the Supreme Court when sitting to consider a citizen’s objection to the nomination of a person as a presidential candidate. Section 32(3) of Act No 2 of 2002 provides for three Justices to hear the case. That said, it is quite alarming to hear and misleading for lawyer Charles Margai to criticise the 2007 judgment based on the composition of the court. This is not what lawyers should do!
The legal principle both Tejan Sei and Charles Margai attempt to undermine is that of the role of judicial precedent. As a common law jurisdiction or a jurisdiction where the doctrine of judicial precedent operates, the decisions of the Sierra Leone Supreme Court create binding rules. So the 2007 Supreme Court decision is binding and authoritative in the sense that Section 171 (4) provides a list of persons who need not resign their offices (as required under Section 76 (1) (b) of the Constitution) in order to contest presidential or parliamentary elections.
It is fair to mention section 64 of the Constitution since this expressly provides for the establishment of the office of Attorney-General and Minister of Justice. Unlike other ministerial positions, the AG/MOJ is the only cabinet position established under the Constitution.
For this reason, the AG/MOJ will be abrogating his constitutional duty if he were to resign to contest the flag-bearer position or run for President of the Republic. By contrast, section 65 of the Constitution which establishes the office of the Solicitor-General is quite clear that that office is a public office. However, no such description is made of the office of the AG/MOJ. When sections 64, 65 and 171 (4) of the Constitution are read conjunctively, it is clear that the office of the AG/MOJ is unique and the holder need not resign to contest for a flag-bearer position or run for President.
At the end of the day, until and unless the Constitution is amended and/or the Supreme Court is seized of the opportunity to consider this matter again, it is unwarranted for senior Lawyers to argue and mislead the public on matters which are settled law.
Section 171 (4) of the Constitution as determined by the 2007 Supreme Court decision is quite clear that the President, Vice-President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament… etc. are not public officers and do not have to resign in seeking election to the office of the President.
Our lawyers should stop misleading the public by suggesting that Ministers have to resign. To continue to do so is to undermine our very Constitution and pay lip-service to the principle of legality.
Courtesy: Awoko Newspaper