Sierra Leone Telegraph: 7 February 2019:
Barely three days after Sierra Leone’s commissions of inquiry started their investigations into alleged corruption by former government officials, the opposition All People’s Congress party (APC) has finally decided to take court action to stop the inquiry.
But according to critics of the APC, this decision comes after much bellicose procrastination, hanging on to the tailcoats of the Sierra Leone Bar Association, who are seeking Supreme Court’s interpretation of the laws governing the establishment and mode of conduct of the commissions of inquiry.
Yesterday, All People’s Congress party (APC) filed its own petition at the Supreme Court. According to local media reports, the party is accusing the government of conducting ‘illegal inquiry’, and is asking the Supreme Court to stop it.
This is how this story was reported yesterday by Awareness Times newspaper:
“Awareness Times can confirm that few moments ago at the Law Courts in Freetown, Alhaji Ambassador Dr. Osman Foday Yansaneh, Dr. Samura Matthew Wilson Kamara and Major (rtd) Alfred Palo Conteh Esq. have just filed at the Supreme Court Registry a Case against the following defendants: Hon. Attorney General & Minister of Justice Dr. Priscilla Schwartz; The Hon. Chief Justice Babatunde Edwards in his capacity as Chairman of the Rules of Court Committee and all three judges acting as Commissioners of all the three Commissions Of Inquiries namely Justice John Bankole Thompson, Justice Biobele Georgewill and Justice William Annan Atuguba.
“The case is hinged on several limbs concerning serious contraventions of the Constitution including a purported attempt to treasonably amend the Sierra Leone Constitution as well as the urgent protection of several aspects of the human rights of the Applicants including their rights to a fair and legitimate judicial process.”
Launching the Commissions of Inquiry in Freetown last week, the country’s Chief Justice – Babatunde Edwards, was confident about the legality of the commissions of inquiry. He said:
“Since the heralded birth and or setting up of the Commissions of Inquiry by the aforesaid Instruments, views have polarized as to whether it should be set up in the first place, and secondly, whether the correct procedure has been followed in setting them up. This is only academic. It has no practical value or significance.
“There has been much talk about the necessity for rules pursuant to Section 150 of the Constitution of Sierra Leone 1991. Who says there are no rules? Check out the Commissions of Inquiry Act Cap 54 of the Laws of Sierra Leone 1960 and the Commission of Inquiry Amendment Act No 1 of 1982; they claim further that the Executive (referring to His Excellency the President) overstepped their mandate as they had no power to make rules for the Commissions.
“Against this background, I say to you Commissioners that is their claim, but such should never stop you from performing your duty. Your duty as Commissioners would be to stay within the parameters and remit that is to say: A full, faithful and impartial inquiry as stated by Section 149(1) of the Constitution and no more.
“The much hyped about Section 150 of the Constitution commences with the words “Subject to his chapter”. The Chapter starts from Section 147 and ends at Section 150 of which section 149(1) is what details your duties as Commissioners. Section 149 (1) provides as follows:
“The Commission of Inquiry shall – a) Make a full, faithful and an impartial inquiry into any matter specified in the commission of appointment; b) Report in writing the result of the inquiry ; and c) Furnish in the report the reasons leading to the conclusions arrived at or reported. Thus implicitly and/or expressly section 150 is subject to section 149(1).
“These provisions as stated in section 149 (1) supra constituting part of the Primary Legislation are bigger and mightier than any proposed rules constituting Secondary Legislation otherwise known as delegated, subsidiary or subordinate legislation created by the same Parliament, that might have come into force by any Rules of Court Committee and indeed, form the basis under which the established Commissions of Inquiry under CI Nos 64, 65 and 67 should operate.
“Any rule made under Section 150 would only have been there to support/ supplement Section 149(1), and its absence or otherwise does not reduce or add to the powers so conferred, especially so, when it says “Subject to this Chapter” and where the Commissioners herein are indeed you such eminent jurists of profound renown, high caliber and proven independence.
“This, as you are well aware, brings to light the power of Primary legislation over Secondary legislation. Primary Legislation consists of Statutes known as Acts of Parliament that set out broad outlines and principles but delegate specific authority to other agencies or bodies. The Sierra Leone Act No 6 of 1991, the Constitution of Sierra Leone, is one such Primary Legislation.
“Delegated legislation are rules and regulations made by persons authorised to make them which cannot in any way override the Primary legislation. Their main purpose is most invariably always to supplement, support and in some case administer or enforce Primary legislation.
“Thus, anything it takes to make a full, faithful and impartial Inquiry as Commissioners would suffice. This may require you to make your own rules to bring about such impartiality and even if there may not be rules from the Rules of Court Committee, which anyway would have been subjected to section 149 (1) of the Constitution, rules made to show such impartiality by you would not only be sufficient but well in place.
“Cap 54 of the Commissions of Inquiry Act 1960 and its Amendment Act No 1 of 1982 forms part of the existing Laws of Sierra Leone by virtue of Section 170 (1) (e) of the Constitution of Sierra Leone Act No 6 of 1991.
“In Section 9 of the Commissions of Inquiry (Amendment) Act No. 1 of 1982 there is power given to you the Commissioners to make rules.
“Rules or no rules and even in the light of an allegedly overstepped constitutional mandate you are still empowered and required to do all it takes to operate within the primary legislation and your constitutional mandate as laid down in section 149(1) supra. This is what you would be judged on.
“At the end of your work people will be asking: Did you make a full, faithful and impartial Inquiry? Did you report in writing the findings of your Inquiry? And whether you disclosed or furnished in the report the reasons leading to the conclusions arrived at.
“A full Inquiry presupposes that all what was required to be inquired into was indeed inquired into leaving no stone untouched. A “faithful Inquiry” presupposes that what was found out was brought out in your findings with no distortion; while an Impartial Inquiry would require that due process was observed, relevant evidence admitted without technicalities and that there was equality of arms to all parties and so on and so forth as you deem fit and just in the circumstances. I have no doubt that you are up to the task hence your appointment.
“To you the members of the public and all concerned, I would ask that you welcome and support the Commissioners who are more than equipped to carry out the Inquiry you have demanded.”
With that statement and yesterday’s decision by the APC to take Supreme Court action to stop the commissions of inquiry, the die has been cast.
It is not clear as to how soon the Supreme Court will sit to deliberate on both the opposition APC and the Bar Association writs. But one thing is clear, it is better for the opposition to seek legal clarification and redress, than to promote anarchy, pursue armed conflict and violence.