Adrian Fisher Esq
Sierra Leone Telegraph: 5 November 2017
I have read with interest, a short article written by my learned friend and senior colleague at the Bar, Francis Gabbidon Esq, entitled “Sierra Leoneans with dual citizenship cannot be members of parliament”. He premised his article on the basis that:
1. Sierra Leoneans who hold dual citizenship, are not allowed to contest in the forthcoming elections for membership of parliament, either as candidates for a political party, or as independent candidates; and, that
2. Naturalised citizens also cannot contest for membership of parliament.
My learned senior’s arguments in relation to the above are grounded on constitutional provisions to wit, Section 76(1) of the 1991 Constitution, Act No 6 of 1991 which provides: 76. (1) No person shall be qualified for election as a Member of Parliament –
a. if he is a naturalised citizen of Sierra Leone or is a citizen of a country other than Sierra Leone having become such a citizen voluntarily or is under a declaration of allegiance to such a country.
Upon a plain and literal reading of the said provision, of the constitution, it is arguably the case that no person shall be qualified for election as a member of parliament, where;
a. He is a naturalised citizen of Sierra Leone; b. Or is a citizen of a country other than Sierra Leone, such citizenship having being obtained; (i) Voluntarily, or (ii) The individual in question is otherwise under a declaration of allegiance to such country.
It is safe to conclude as a matter of fact, that at the time the 1991 constitution was drafted and enacted, the concept of dual nationality or dual citizenship was not part of the Laws of Sierra Leone and the concept had no basis in Sierra Leonean law.
The 1973 Citizenship Act Under the 1973 Act, section 2 provides that: “Every person who, having been born in Sierra Leone before the nineteenth day of April, 1971, or who was resident in Sierra Leone on the eighteenth day of April, 1971, and not the subject of any other State shall, on the nineteenth day of April, 1971, be deemed to be a citizen of Sierra Leone by birth”:
Provided that- (a) his father or his grandfather was born in Sierra Leone; and (b) he is a person of negro African descent; “That any person of Sierra Leonean parentage who carries a foreign citizenship and is past the age of majority (age 21) was automatically deemed to have lost their Sierra Leonean Citizenship.”
The effect of the 1973 legislation in this regard was two fold:
1. It provided for the manner in which citizenship was acquired; and 2. It also made provision for the manner in which citizenship was automatically lost in situations where a person who had acquired citizenship by virtue of Section 2, losses that citizenship, where: a. He is subject to another state, and or; b. Carries a foreign citizenship after the age of 21 years old.
Where such a citizen loses his citizenship in a manner provided for under the Act, the plain intention of parliament is that such a person is no longer a citizen of Sierra Leone.
At the time the 1991 constitution was enacted, the provisions of the Citizenship Act 1973 were in force and the clear intention of parliament was that a non citizen would not and cannot qualify for membership of the Sierra Leone Parliament. Upon its proper construction, the provisions of the section 76(1)(a) of Act No 6 of 1991, is entirely in keeping with the spirit, intendment and provisions of the Citizenship Act 1973. However that is not the end of the matter.
The Sierra Leone Citizenship (Amendment) Act, 2006.
This was an Act of parliament that was enacted “ to amend the Sierra Leone Citizenship Act, 1973 so as to grant the right of dual citizenship. In simple terms acquisition of dual citizenship has now become a right that is enshrined in law.
The effect of this amendment to the 1973 Act is that citizenship is no longer lost or deemed to be lost automatically by the acquisition or possession of citizenship of another state. This leaves the provisions of section 76(1) in some disarray, in view of the fact that the constitution is the supreme law of the state, Section 75 of the Constitution Act No 6 of 1991
This section provides that : 75. Subject to the provisions of section 76, any person who: a. is a citizen of Sierra Leone (otherwise than by naturalization);
“shall be qualified for election as such a Member of Parliament: Provided that a person who becomes a citizen of Sierra Leone by registration by law shall not be qualified for election as such a Member of Parliament.”
The effect of this provision is that all citizens of Sierra Leone, save for those who are naturalised citizens, qualify for election as a member of parliament, unless that citizen is a citizen of Sierra Leone by registration or naturalisation.
Further the Citizenship Amendment Act 2017 now provides for citizenship of Sierra Leone, by birth to be acquired through the mother, and such persons are deemed to be citizens by birth.
The question for determination is whether section 75 when read in conjunction with section 5 of the 2006 Amendment Act and the 2017 Amendment Act is now inconsistent with the provisions of section 76(1)(a) of the Constitution 1991 to the extent that such citizens are now citizens by birth as opposed to citizens under allegiance to another country. By the grant of a right to maintain citizenship of Sierra Leone whilst holding on to the citizen of another state, Parliament could not be said to have intended to grant a right that is contrary to the constitution.
The grant of the right to dual citizenship effectively means that save for citizens who naturalise, these citizens are now citizens by birth and are therefore eligible to contest for election for member of parliament notwithstanding their holding on to dual citizenship.
The provisions of section 76 are now relevant only in so far as the categories of citizens who acquired their citizenship by registration or naturalisation, all categories of citizens specified in sections 2 to 5 of the 1973 Act are all citizens by birth and therefore eligible to contest for election for members of parliament.
The enactment of section 5 of the 2006 Amendment Act, now places such citizens squarely within the provisions of section 75 whilst removing them from section76.
The provisions of section 75 are subject to the provisions of section 76 only with respect to the limited category of citizenship acquired otherwise than by birth. The rules of statutory interpretation require that the literal rule of statutory interpretation should be the first rule applied by judges.
The words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statute. Upon its true construction by way of the literal rule, a citizen of Sierra Leone as provided for in section 75 is a citizen of Sierra Leone for the purposes of section 75 notwithstanding the fact that he “is a citizen of a country other than Sierra Leone having become such a citizen voluntarily or is under a declaration of allegiance to such a country”.
A citizen of Sierra Leone who acquired his citizenship by registration and/or naturalisation, is unarguably excluded by the provisions of section 75 by section 76 of the Constitution from being eligible to contest for membership of parliament.
The Purposive approach to statutory interpretation
Lord Simon explained the purposive approach in Maunsell v Olins AC 373 in these words:
“ The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.’
This is sometimes referred to as the “common sense” approach to statutory interpretation is separation of powers is to be maintained. In Leader v Duffey 13 AC 294 Lord Halsbury LC at page 301 remarked “but I agree you must look at the meaning of the instrument taken as a whole in order to give it effect, if it be possible to do so, to the intention of the framer of it”.
Further LJ Laws in the English Court of Appeal in Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited (1999) 2 All ER 799 had this to say:
“It is nowadays misleading – and perhaps it always was to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between the purposive and literal construction is in truth one of degree only…… the real distinction lies in the balance to be struck, in the particular case between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other”
The enactment of the 2006 and 2017 amendments of the citizenship Act clearly and unambiguously reinforce to a significant degree of particularity, the intention of Parliament, the supreme law making body in Sierra Leone, to bring all citizens of Sierra Leone, save for naturalised citizens and those acquiring citizenship by registration, under the provisions of section 75 by the grant of a right to acquire citizenship by birth notwithstanding their status as dual nationals.
It remains to be seen whether there would be legal challenges to dual citizens who may wish to contest for parliamentary seats. Should such challenges materialise, it would undoubtedly be a case for the learned justices of the Supreme Court to interpret the said provisions of the constitution. My guess is this can only go one way.
In conclusion, I would opine that contrary to the opinions expressed by my learned senior, persons holding dual citizenship are eligible to contest for membership of parliament, so long as they did not acquire their citizenship of Sierra Leone by registration or naturalisation.
About the author
Adrian J Fisher LLB Hons, LLM, ACIArb, is a Barrister- at- law and Lecturer in media and telecommunications law at Fourah Bay College University of Sierra Leone.
The opinion expressed in this article is written to further academic discourse – an important provision of the Sierra Leone constitution.