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22nd July 2018

NEC and High Court Ruling: Two Legal Minds Bombard Each Other in Public Again! 

By Adrian Fisher Esq (02/04/18)

It is now normal for legal luminaries in Sierra Leone to wash their dirty linens in the open; a scenario that continues to infuriate the public big time. 

 

The author Adrian Fisher writes: This piece is written as a rejoinder to an article written by Francis Ben Kaifala Esq as a response to a legal opinion written to the Chair of the National Electoral Commission, by the Attorney General and Minister of Justice dated 29 March 2018. (Photo: The Law Courts building in Freetown).

He premises his article on the basis that the opinion of the Attorney General and Minster of Justice contains abysmal misrepresentations of the positions of the law yet in his opening paragraph he concedes that by virtue of Section 64(1) of the Constitution of Sierra Leone, Act no 6 of 1991, the learned Attorney General is adviser to the Government of Sierra Leone.

However he concludes that the Attorney General is not the legal Adviser to NEC, who have their own legal advisers as an independent institution and the opinion given by the Learned Attorney General is WHOLLY INCORRECT and MISPLACED.

For the avoidance of doubt, this piece is not written in defence of the Attorney General, such defence not being needed in the circumstances as the law on the role of Attorney General is behind dispute.

However this piece is written as an academic discourse to further legal knowledge on key issues of public law and dispel the inaccurate assertions of the author. I shall attempt to deal with the issues he raises in order.

1. The suggestion that the Attorney General is not the legal adviser to NEC as NEC have their own lawyers is wholly absurd. As he has conceded the Attorney General holds a constitutional position by virtue of section 64 (1) to act as the principal legal adviser to Government.

The question to ask is what constitutes the government of Sierra Leone? Sections 4 and 5 of the Constitution refers to organs of government exercising legislative, executive and judicial powers. Section 53 of the Constitution vests executive powers in the President which may be exercised by public officers subordinate to him.

Section 70 (d) of the constitution vests power in the president to appoint the sole commissioner or the chairman and members of any commission established by the constitution. This is abundantly clear by virtue of section 32 (3) which provides for such appointments to be made by the president. Further the National Electoral Commission Act 2002 in sections 2, 43 provides for the establishment of the commission, its independence and the removal of a member of the commission by the president exercising executive functions.

If the NEC is an arm of the Executive branch of government, it is unarguable to suggest that the Attorney General cannot advise NEC simply because NEC have their own lawyers.

The opinion of the Attorney General was clear that NEC has in the past received legal advice from his office. The suggestion that the advice given is unsolicited is misconceived. The nature of the advice given by the Attorney General is in accordance with his mandate to give such advice even proactively where necessary or expedient.

As the principal legal adviser to government he cannot sit by when there are potential breaches of a court order and do nothing to prevent such breaches. In the event of contempt proceedings being issued as a result of breaches of a court order, the Attorney General may have to serve as the prosecutor in any such proceedings.

How then can he set out to prosecute when he has not been proactive to advise as to the potential consequences of breaches of a court order. Contrary to counsel’s assertion the proactive advice is not misdirected in anyway and any suggestions that it is amounts to misinformation

TRIBUTE: ALPHA SHAW


1958 -1980

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