Mohamed Kunowah Kiellow: Sierra Leone Telegraph: 2 May 2018:
APC is really at the end of its political tether. The party is finding it extremely difficult to come to terms with the political tragedy that befall it on 31 March 2018, when they lost the run-off election to President Maada Bio.
Their reactions to this defeat have given fillip to one catastrophe after another, that in no small way have dragged the party into political quagmire.
On Monday 25th of April tensions developed after High Court justice placed injunctions on 14 elected APC parliamentarians, barring them from participating in the initial session.
These injunctions followed claims by the SLPP that their APC parliamentarian rivals had illegally received government salaries throughout their election campaigns.
In the evening of the same day, APC member S.B Dumbuya, the outgoing speaker, declared in a press release that he had indefinitely postponed the opening session considering the “confused situation”.
The newly appointed parliament clerk, Paran Tarawally of the SLPP, countered with a statement terming Dumbuya’s declaration illegal, and said the session would go ahead as planned
The number of injunctions against APC parliamentarians had risen to 16 by Wednesday, which included outgoing deputy speaker and former APC vice-presidential candidate Chernor Bah.
The opposition APC party said the move was evidence of an attempt by the SLPP to undermine the APC majority before the opening session’s speaker elections.
Parliament reconvened on Thursday 26 April 2018 with barricades put in place along the approaching roads to prevent the public from entering the Houses of Parliament.
When APC officials learned that 16 of their number had been banned, they began shouting and slamming their fists on the desks. To show political solidarity, the remaining members of the APC party followed them.
These unfortunate incidents have led to outcry among the APC leadership and supporters. They are claiming that their parliamentarians have been unconstitutionally forcefully removed from the Wells of Parliament. I do not agree with them.
Section 83 of the 1991 Constitution stipulates that ‘Every Member of Parliament shall, before taking his seat in Parliament, take and subscribe before Parliament the oath as set out in the Third Schedule, but a Member may, before taking that oath, take part in the election of a Speaker’.
The APC ‘Members of parliament’ were just MP-elects who should have become full-fledged MPs after satisfying Section 83 of the Constitution. The fact that they had not taken their seats in Parliament because they had not taken the oath as set out in the Third Schedule, they had no right to enjoy the privileges and immunities accorded them in the Constitution.
The blunder on the side of APC was they didn’t wait until they had taken and subscribed to the oath before ‘misbehaving’ in Parliament. They might have enjoyed the privileges and immunities accorded to them in the Constitution if they had taken the oath.
Given that the MP-elects had not taken the oath, and ‘misbehaved’, they were no different from the people who were shouting’ go out, go out’. Therefore, any bad behaviour by the MPs-elect in the Wells of Parliament should be met with the full force of the law.
‘Until the oath or affirmation is taken, an MP may not receive a salary, take their seat, speak in debates or vote. They could have their seat declared vacant “as if they were dead” if they attempt to do so’.
Let’s assume that they enjoyed the privileges and immunities conferred on them by the constitution. Nonetheless, it can be argued that the conditions stipulated in the Constitution have not been met.
Section 98 of the 1991 Constitution states that ‘There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament’.
The privilege or immunity conferred under Section 98 is limited to “freedom of speech, debate and proceedings”. It is therefore only the exercise by MPs of their freedom of speech, in the context of debate and proceedings of the House, that may not be challenged in any court or tribunal.
Section 98 does not extend a blanket immunity to every act that is done by MPs in Parliament. If, for example, I appeared before parliament and was physically assaulted by an MP, that Member could not hide behind Section 98 to claim immunity from being sued for criminal and civil liability.
The behaviour of the APC MPs does not fall under the privilege or immunity conferred on them in Section 98. The intervention of the police, to forestall further chaos in the legislative House, was therefore justifiable.
I am also of the opinion that the APC MPs, through their behaviour, have shown contempt of parliament. According to Section 95 of the Constitution ‘any act or omission which obstructs or impedes Parliament in the performance of its functions, or which obstructs or impedes any Member or officer thereof in the discharge of his duties or affronts the dignity of Parliament, or which tends either directly or indirectly to produce such a result shall be a contempt of Parliament’.
There is nothing in this provision stating that contempt of parliament is purely and exclusively meant for non-MPs. It states that any act or omission which obstructs or impedes Parliament in the performance of its functions, or which obstructs or impedes any Member or officer thereof in the discharge of his duties or affronts the dignity of Parliament, or which tends either directly or indirectly to produce such a result shall be a contempt of Parliament’.
This means that even MPs can be ‘guilty’ of contempt of Parliament if they act or omit in a manner which obstructs or impedes Parliament in the performance of its functions, or which obstructs or impedes any Member or officer thereof in the discharge of his duties or affronts the dignity of Parliament, or which tends either directly or indirectly to produce such a result.’
The behaviour of APC MPs was nothing but contempt of parliament and it was constitutional and legal for the police to forcefully take them out of the Wells of Parliament. Their action obstructed Parliament and its Members, the Clerk of Parliament in the performance of their duties.
Their punishment is enshrined in Section 96 of the Constitution, which states that ‘where an act or omission which constitutes contempt of Parliament is an offence under the criminal law, the exercise by Parliament of the power to punish for contempt shall not be a bar to the institution of proceedings under the criminal law’. This provision says that, the fact that a conduct offends a provision of the criminal laws does not mean it cannot also be treated separately and additionally as contempt of Parliament.
In other words, it tells us that, in some cases a person may be punished first, for contempt of Parliament, and second, for violation of the criminal laws. To my mind, I think this is not necessary for the sake of peace and unity in our country. Moreover, nay action to punish them twice will amount to double jeopardy, punishing a person for the same crime twice.
In this article, I argued that the forceful removal of APC MPs out of parliament for ‘gross misbehaviour’ is constitutional and legal. The APC members could have invoked the privileges or immunities conferred on them by the Constitution if they had taken the oath, which would have made them full-fledged MPs.
Further, even if they enjoyed these privileges or immunities, their behaviour did not fall under ‘Speech and Debate clause’ in Section 98.
Lastly, the APC MPs showed contempt of Parliament by obstructing or impeding Parliament in the performance of its functions, obstructing or impeding Members and officer in the discharge of their duties, which affronts the dignity of Parliament.
About the author
Mohamed Kunowah Kiellow has a combined master in International Law and Criminal Law from Utrecht University in The Netherlands, a Postgraduate Certificate in Law from University of East London in the UK. He is Human rights Consultant. He is also a trainer in Lean and Asset Management.