Yoni Emmanuel Sesay: Sierra Leone Telegraph: 18 January 2026:
In Sierra Leone’s debate over the 2025 Constitutional Amendment Bill, the most troubling feature is not the substance of the proposals themselves but the silence that has settled around them.
Institutions that traditionally speak during constitutional moments — the judiciary, the Bar, legal academics, and even law students — have retreated into quiet observation.
In a constitutional democracy, such silence is not neutrality; it is passive assent.
When those trained to interrogate power decline to do so, the space for informed public judgment narrows, and constitutional change proceeds without its natural safeguards.
What makes this silence more striking is that it exists alongside an unusually engaged and vocal citizenry. Students, traders, market women, drivers, and young professionals have raised questions about the direction of constitutional change with clarity and seriousness.
The constitutional instinct of the public is alive. It is the institutional guardians — not the citizens — who have fallen quiet. In this inversion, the problem is not civic apathy but elite withdrawal.
The metaphor of The Silence of the Lambs is therefore apt, though not for dramatic effect. Lambs do not remain silent because they are unaware of danger, but because they are conditioned to believe that noise invites consequence and that survival lies in stillness.
Today, the lambs are not powerless citizens but the guardians of legality themselves. Their silence is not ignorance; it is informed withdrawal in a sensitive environment.
What appears as restraint may in fact be a deeper form of acquiescence, one with consequences that extend far beyond the present debate.
History shows that constitutions rarely collapse through dramatic events. They erode slowly — through hesitation, caution, and the quiet retreat of those who understand the stakes but choose not to engage.
Legal theorist Mark Tushnet warns that democratic decline often begins with “legalism without legitimacy” laws enacted through proper procedures but without the institutional resistance that gives them democratic meaning.
Silence, in this sense, is not harmless. It becomes a mechanism of constitutional drift, allowing power to consolidate while appearing formally compliant with the law.
The Constitution is often described as a three-legged stool: the Executive, Parliament, and the Judiciary. Each leg must bear equal weight if the structure is to stand.
When the judiciary — the branch entrusted with constitutional interpretation and the protection of rights — withdraws from public engagement during a moment of constitutional redesign, the entire structure becomes unstable.
The absence of visible legal engagement leaves Parliament and the Executive to reshape the constitutional order without the counterweight that gives the system balance.
Other democracies confronted with similar moments have recognised this danger and responded by encouraging engagement rather than silence.
During Ghana’s 2010–2012 constitutional review, the Judicial Council and the Bar Association submitted detailed memoranda on judicial appointments, tenure, and court structure. Their participation was not framed as political interference but as constitutional stewardship.
Legal input was understood as part of the democratic process itself, enriching rather than undermining legitimacy.
Kenya followed a similar path in the lead-up to its 2010 Constitution. Judges, magistrates, and legal scholars played visible roles throughout the reform process, advising on electoral timelines, dispute-resolution mechanisms, and institutional design.
Rather than weakening judicial authority, this engagement strengthened public confidence in the final constitutional settlement and anchored the reforms in legal coherence.
South Africa offers perhaps the clearest illustration of how openness can function as a constitutional safeguard. Its post-apartheid constitutional culture is built on transparency, with judges submitting written opinions during the drafting of the 1996 Constitution and continuing to comment on legislation affecting judicial independence.
In that system, silence is viewed not as prudence but as abdication, because constitutional authority is understood to be sustained through visible accountability.
Even in the United Kingdom, where parliamentary sovereignty is deeply entrenched, judicial engagement has long been normalised. Between 1979 and 2015, UK judges provided evidence on at least twenty bills, including major constitutional reforms. Their contributions focused on technical clarity, institutional impact, and legal coherence rather than political outcomes.
Judicial independence was not weakened by this practice; it was reinforced by public confidence that judges understood and defended the constitutional architecture.
Paradoxically, it is in the United States — long regarded as a strict adherent to the separation of powers — that judicial appearances before congressional committees are most prevalent.
Former Chief Judge of the United States Court of Appeals, Robert Katzmann, observed that when legislative committees consider revisions to complex statutes, judges experienced in interpretation can usefully testify about technical difficulties in discerning legislative intent.
Such engagement, he argued, strengthens rather than compromises judicial interpretation, because understanding legislative law-making better equips judges for their interpretive role.
Explaining institutional consequences is not partisanship; it is constitutional stewardship.
These comparative experiences demonstrate a consistent lesson: judicial and legal engagement during constitutional reform is neither exceptional nor dangerous. It is expected, normal, and essential to democratic legitimacy. Silence is the anomaly, not participation.
Sierra Leone itself has followed this path before. During the 2013 Constitutional Review Committee, sitting Supreme Court Justices chaired key sub-committees, while the Ombudsman — a former Speaker of Parliament and Supreme Court Justice — chaired the entire process.
The Bar Association, practising lawyers, and pupillage trainees all participated openly. This was not regarded as political activism but as a necessary contribution to national constitutional development.
Against this history, the present withdrawal of the legal community is striking. A debate of equal, if not greater, national significance is unfolding, yet those who once spoke with confidence have fallen silent.
Judicial restraint cannot adequately explain this shift. Alexander Bickel’s famous “passive virtues” apply to adjudication in live cases, not to moments of constitutional redesign. Restraint does not require muteness.
On the contrary, silence during amendment debates undermines the very legitimacy that judicial restraint is meant to preserve.
Legal theory reinforces this conclusion
Jeremy Waldron argues that constitutional legitimacy depends on robust public deliberation, particularly when fundamental rules are being altered. When legal experts withdraw, deliberation becomes thinner and less informed, and amendments passed under such conditions lack the democratic legitimacy that deliberative processes are meant to secure.
Ran Hirschl identifies two principal dangers for constitutional democracies: juristocracy, where courts dominate politics, and judicial abdication, where courts retreat from their constitutional role.
Sierra Leone faces no realistic risk of juristocracy. The more pressing danger is abdication — a judiciary and legal community that withdraw from shaping the constitutional order at precisely the moment when their guidance is most needed.
David Dyzenhaus further insists that the rule of law requires more than procedural compliance; it demands legality with integrity. Amendments that introduce ambiguity, weaken checks and balances, or alter institutional relationships require careful legal examination.
Lon Fuller’s theory of the inner morality of law adds another layer: law must be clear, coherent, and predictable if it is to command respect.
Legal professionals therefore have a duty of craftsmanship to identify and address amendments that undermine these qualities. Silence, in this context, is not caution but a failure of professional responsibility.
Across these theoretical perspectives, a single theme emerges constitutions endure not because they are written, but because institutions actively defend them. Text alone cannot protect democratic order; only engaged guardianship can do that.
Preventive engagement is more faithful to constitutional responsibility than remedial regret, because courts cannot easily restore democratic balance once constitutional damage is entrenched.
The stakes in the 2025 Amendment Bill make this duty unavoidable. Constitutional power rarely shifts through dramatic language, but through technical provisions with cumulative effect.
The proposals include party-expulsion mechanisms that could trigger presidential removal, deregistration of political parties following electoral defeat, suspension of trials during election periods, and lowered victory thresholds that fundamentally reshape electoral competition.
Viewed individually, these measures may appear procedural. Taken together, they alter the architecture of power, recalibrate political pluralism, and affect where authority is exercised — upward or closer to the people.
This vertical dimension of constitutional design matters. When authority is drawn upward without corresponding institutional capacity below, access to justice suffers.
Subsidiarity is not nostalgia for custom; it is a functional principle of democratic governance. Silence obscures these distributive consequences and distances constitutional change from lived experience.
The legal community must therefore speak — not as partisans, but as guardians of constitutional order.
Judges, lawyers, academics, and law students need not oppose the amendments. They need only do what their counterparts in Ghana, Kenya, South Africa, the United Kingdom, and the United States routinely do: analyse, question, clarify, and illuminate.
For law students in particular, engagement is not activism but professional formation.
They will inherit the constitutional framework now being shaped and will be responsible for interpreting and defending it.
Democracy rarely dies in noise. It dies in silence — the silence of those who understand the fragility of law but choose not to defend it. Silence in constitutional moments is not absence; it is a decision, and one with lasting consequences.
Sierra Leone now stands at a constitutional crossroads. Its guardians of legality must step forward, calmly and courageously, to ensure that tomorrow’s Constitution is not only dignified in form but legitimate in substance.
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