Yoni Emmanuel Sesay: Sierra Leone Telegraph: 12 November 2026:
A country may have a Constitution, a Parliament that makes laws, courts that deliver judgments and a government that exercises authority, yet its people may still wonder whether the law belongs to them. The institutions remain, their officials perform their duties, and the machinery of government continues. But something important begins to disappear – public confidence that the law exists to protect the governed rather than merely empower those who govern.
Sierra Leone must confront this uncomfortable possibility. Our problem is not necessarily a shortage of laws. We have a constitution, statutes, courts and an established legal profession. The more troubling question is whether these institutions consistently serve the purposes for which they were created.
Are our laws carefully made? Are judicial decisions guided by principle? Can ordinary citizens meaningfully exercise the rights guaranteed to them?
These questions find an interesting philosophical foundation in the work of Professor Upendra Baxi, particularly his essay Demosprudence versus Jurisprudence: The Indian Judicial Experience in the Context of Comparative Constitutional Studies. His examination of constitutional adjudication in India provides a useful starting point for reflecting on Sierra Leone’s constitutional experience.
Three ideas help illuminate the problem: jurisprudence, legisprudence and demosprudence.
Jurisprudence concerns the principles through which law is understood, interpreted and applied. It asks whether judicial decisions rest upon sound reasoning rather than personal preference, political convenience or arbitrary discretion.
Legisprudence concerns the responsibility of making laws. It asks whether legislation emerges from careful deliberation, constitutional discipline and proper consideration of its consequences.
Demosprudence, associated particularly with American scholars Lani Guinier and Gerald Torres, places ordinary people at the centre of constitutional enquiry. It examines whether legal institutions enable citizens to participate in democratic life, challenge injustice and hold public authority accountable.
These ideas may appear academic, but their consequences are immediate. They concern the detained citizen awaiting trial, the family unable to afford legal representation, the community affected by legislation it scarcely understands, and the voter who discovers that political participation seems to end once the election results are announced.
The true test of constitutional government is not simply whether institutions possess authority, but whether they exercise that authority lawfully, responsibly and for the benefit of the people.
Sierra Leone’s 1991 Constitution establishes the framework for constitutional government. It distributes powers, recognises fundamental rights and prescribes procedures through which public authority must be exercised. Yet constitutional provisions cannot enforce themselves. Their effectiveness depends upon the conduct of those entrusted with interpreting and applying them.
Consider Parliament
Section 91(1) provides for the exercise of ordinary legislative power, while section 108 establishes special requirements for constitutional alteration. The distinction is fundamental. A parliamentary majority may possess sufficient votes to enact ordinary legislation without necessarily satisfying the constitutional requirements for amendment.
Constitutional entrenchment exists precisely because some rules are too important to be altered through ordinary political majorities.
The controversy surrounding the Constitution (Amendment) Bill, 2025/2026 has brought these questions into public discussion. The precise legal issues must be determined by the courts, and responsible commentary should not prejudge their conclusions. Nevertheless, citizens are entitled to examine the constitutional principles involved.
A parliamentary majority is a political achievement. Constitutional compliance is a legal obligation. The former cannot substitute for the latter.
This is where legisprudence becomes indispensable. Parliament should be more than a place where decisions already taken elsewhere receive formal approval. It should provide an opportunity for proposals to be examined, assumptions questioned, competing arguments heard and legislative consequences considered.
Yet party loyalty can overwhelm independent judgment. Members may feel greater pressure to defend their political positions than to examine whether proposed laws are necessary, proportionate, workable or constitutionally sound.
When parliamentary debate becomes a contest of numbers rather than an exercise in public reasoning, laws may continue to be passed while the quality of lawmaking deteriorates.
A law does not become good merely because a majority supports it. Its legitimacy also depends upon the constitutional procedures followed, the purposes it serves and the consequences it produces.
The same concern for principle must guide the judiciary.
Judges interpret laws, resolve disputes, protect rights and determine whether public authorities have acted within their lawful powers. Their decisions may affect not only the parties before them but also the conduct of government and the expectations of society.
Such responsibility demands independence, intellectual honesty, consistency and courage.
Precedent matters because similar legal questions should ordinarily receive consistent treatment. Reasoned judgments matter because judicial authority must be explained rather than merely asserted. Procedural fairness matters because justice concerns not only the outcome of a dispute but also the manner in which that outcome is reached.
A court does not strengthen its authority simply by announcing a decision. It strengthens that authority by demonstrating why the decision follows from the law.
Baxi’s examination of the Indian judicial experience is instructive. India’s Supreme Court has contributed significantly to the development of constitutional rights and access to justice. Yet judicial innovation raises difficult questions about institutional boundaries, consistency and the relationship between courts and elected government.
Sierra Leone should therefore resist treating judicial activism as inherently virtuous or judicial restraint as inherently desirable. Excessive restraint may leave fundamental rights unprotected, while excessive intervention may undermine the separation of powers.
What matters is whether judges act according to defensible constitutional principles.
The Indian Supreme Court’s decision in Kesavananda Bharati v State of Kerala (1973), associated with the basic structure doctrine, illustrates the concern that constitutional amendment powers should not become instruments for destroying constitutional government itself.
Sierra Leone cannot simply import that doctrine. Our Constitution contains express amendment procedures, particularly section 108, which must remain the starting point. Nevertheless, the underlying warning deserves attention: no institution should assume that powers granted by a Constitution are unlimited.
Judicial independence must also be distinguished from immunity against criticism. Courts exercise public authority, and their reasoning, procedures and decisions may properly be questioned.
There is, however, a difference between criticising a judgment and attacking a judge, just as there is a difference between raising legitimate concerns about judicial conduct and making unsupported allegations.
Unfortunately, our political culture sometimes blurs these distinctions. A judgment favourable to one political camp may be celebrated as proof of judicial independence, while an unfavourable decision is condemned as evidence of interference. The same court may be praised today and denounced tomorrow, depending upon whose interests appear to have prevailed.
Such reactions do little to strengthen constitutional government.
The proper questions are whether the court had jurisdiction, whether proceedings were fair, whether relevant principles were considered and whether the reasoning supports the conclusion reached.
Yet even responsible legislation and principled judicial decisions would leave our constitutional democracy incomplete if ordinary citizens could not benefit from them.
This brings us to demosprudence. The people are not spectators in constitutional government. They are the reason for its existence.
Consider an ordinary Sierra Leonean who believes a public authority has acted unlawfully. What does constitutional justice mean if legal representation is unaffordable, proceedings take years or procedural obstacles prevent a hearing?
What does equality before the law mean to a poor family unable to pursue a legitimate claim? What protection does the right to liberty offer someone who remains unnecessarily detained because the machinery of justice moves too slowly?
These questions cannot be answered merely by pointing to constitutional provisions. Rights must be capable of being exercised. Remedies must be accessible. Justice must be available not only to those who understand the legal system or can afford its services, but also to those most vulnerable to its failures.
Baxi’s discussion of Indian public interest litigation demonstrates how procedural developments helped disadvantaged communities bring grievances before the courts. That experience raises an important question for Sierra Leone: do our legal procedures genuinely facilitate access to justice?
Rules governing standing, costs, delays and judicial remedies serve legitimate purposes. Nevertheless, they should be periodically examined to determine whether they promote justice or unnecessarily obstruct it.
A legal system cannot be judged solely by the sophistication of its lawyers or the elegance of its judgments. Its success must also be measured by what happens to the citizen who needs its protection.
This understanding should inform law reform.
The appointment of Justice Nicholas Colin Browne-Marke as Chairman of the Law Reform Commission presents an opportunity to examine not only outdated statutes but also the practical operation of our legal institutions.
Why do cases experience prolonged delays? Are administrative decisions effectively reviewable? Do existing remedies provide meaningful protection against unlawful exercises of power? Are laws sufficiently scrutinised before enactment?
The Commission cannot assume the constitutional responsibilities of Parliament or the judiciary. It can, however, identify weaknesses, consult widely and recommend reforms that strengthen the legal system.
Such consultations should extend beyond lawyers and judges. Teachers, farmers, traders, community leaders and ordinary litigants encounter the law in different ways. Their experiences may reveal problems that legal texts alone cannot expose.
A farmer struggling with a land dispute may have something important to teach those responsible for reforming land law. A family unable to secure a timely hearing may reveal weaknesses in judicial administration that official statistics cannot fully explain.
Legal expertise remains indispensable, but it should never become detached from the people whose lives the law governs.
Ultimately, jurisprudence, legisprudence and demosprudence are not competing claims to constitutional supremacy. They are interconnected responsibilities within the same constitutional order.
Parliament must make laws worthy of obedience. Courts must deliver judgments worthy of confidence. The executive must exercise authority within constitutional limits. Citizens must have meaningful opportunities to participate, question official conduct and seek protection when their rights are threatened.
The danger arises when Parliament regards its majority as sufficient justification for whatever it enacts, when judicial authority becomes detached from consistent reasoning, or when the executive treats constitutional restraints as inconveniences rather than obligations.
The people then become increasingly distant from institutions exercising power in their name.
Sierra Leone does not need constitutional principles that become important only when political controversies reach the Supreme Court. Constitutional responsibility begins much earlier: when legislation is proposed, when a minister exercises discretion, when a public officer makes a decision and when a court determines how promptly justice should be administered.
The Constitution was not established merely to organise those who govern. It was also established to protect those who are governed, including from the very institutions entrusted with governing them.
When legislation loses sight of justice, legisprudence loses its purpose. When judicial reasoning abandons principle, jurisprudence loses its authority. And when citizens become spectators in a constitutional order supposedly established in their name, demosprudence loses its meaning.
The law begins to forget the people long before the people lose faith in the law. Our responsibility is to recognise the warning signs before that loss of confidence becomes another enduring feature of national life.
A Constitution should not speak only when judges interpret it or politicians invoke it. Its promises should be felt in the everyday relationship between the citizen and the state. Only then can we say that the law has remembered the people.
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