Sierra Leone Telegraph: 6 February 2018
After losing its two protest hearings at the National Electoral Commission to ban Dr Yumkella from contesting the forthcoming elections, the ruling APC has now taken its anger and what many regard as a divisive plot to the country’s Supreme Court.
The central point of law that the ruling APC have taken to the Supreme Court for legal interpretation of the constitution and ruling , is that: “Dr. Kandeh Kolleh Yumkella with voter identification card number 2282101 is a dual citizen of the Republic of Sierra Leone and the United States of America in violation of section 76(1a) of the Constitution of Sierra Leone Act No 6 of 1991 and the Public Elections (Act No 4) of 2012……….and that Dr. Kandeh Kolleh Yumkella with voter identification card number 2282101 said openly on the 18th Day of January 2018 in a Press Conference that he holds a dual citizenship and that he has renounced same.”
But speaking today to the Sierra Leone Telegraph, a senior retired judge made this observation to the editor – Abdul Rashid Thomas in a telephone conversation – not as an answer to the issues raised by the Supreme Court case, but as an observation:
“Government brought changes to the immigration laws in 2006, with the intention not to punish its citizens or disenfranchise them. When government failed to ensure that those legal changes are also effected in the constitution, its the govt that has failed its citizens in its duty.
“Should a citizen going about his or her daily lives, reasonably believing that all is well with the law, be held responsible for the lapses of government to ensure the legal changes have been properly effected, and that there are no conflicts between legislation and the constitution? No.
“Citizens cannot be held responsible, nor should they be disenfranchised, if the laws are allowed to conflict with the constitution over a period of time”.
This legal observation does not answer the question of dual citizenship as pertaining to the kandeh Yumkella case, but an interesting and serious observation by a retired judge, regarding the legality and morality of the Koroma government’s Supreme Court hearing against Yumkella, which many in Sierra Leone believe is a witch-hunt.
A few weeks ago, a legal commentator – Abu Bakarr Bangura, said this:
I am shocked to hear that the APC party has filed a petition against Kandeh Yumkella’s candidacy. I recently posted a commentary supporting the views expressed by Francis Gabbidon on the dual citizenship issue.
I stated that the constitution is the supreme law of the land and consequently, any law that is inconsistent with provisions of the constitution law is invalid to the extent of the inconsistency.
Since the 2006 Citizenship Act neither addressed nor contradict provisions of the constitution, Section 76(1) of the Constitution is still valid and will remain in force until amended.
However, it would be a total miscalculation with far-reaching ramifications for the APC party to petition the candidacy of Kandeh Yumkella.
The APC party/government had over 50 dual citizens who served as MPs in the recently dissolved Parliament, and there are still people with dual citizenship and foreign nationals serving as MINISTERS in the current government in flagrant violation of section 76 of the Constitution.
The effect of this violation is that any law that was passed by a Sierra Leone Parliament with illegal MPs (foreign nationals or dual citizens) is void ab initio. The same also goes for all nominations approved or confirmed by the said Parliament.
This means the entire country has been operating illegally for the past ten years. To put the extent of this illegality into perspective I will give just a few examples.
The SUPREME COURT
All or most of the judges in the current Supreme Court of Sierra Leone were confirmed by the last two parliament which had illegal MPs. This means that the confirmation of such judges is illegal, and consequently those judges are illegally serving in the Supreme Court.
This makes it very complicating for an illegal Supreme Court whose Judges were confirmed in violation of Section 76 of the Constitution to hear a petition against the nomination of a candidate alleged to be in violation of the same Section 76.
Also, since all or most judges of lower courts were also approved by the Sierra Leone Parliament in the last ten years, it would be apt to say that all judgments/decisions given by the Sierra Leone courts in the past ten years are illegal.
Since all CABINET MINISTERS, except the Attorney General must be approved by Parliament, it is obvious that ALL ministers who have served in the past ten years have done so illegally by virtue of them being approved by an illegal Parliament.
All CONTRACTS / AGREEMENTS (mining, debts, international agreements) entered into by the government in the last 10 years are illegal. Again, ALL actions of NEC approved by an illegal parliament including the registration of voters are illegal. The list goes on.
These are just some of the implications of a petition against Yumkella. It would be like opening Pandora’s box. According to the famous equitable maxim, he who comes to equity must come with cleans hands.
The APC does not have clean hands because APC has violated Section 76 in the past 10 years and the violation still continues with dual citizens/foreign national currently serving as ministers.
The APC lawyers, who suddenly have become moral guarantors of the constitution should hold their heads in shame as Section 76 has always been alive.
You cannot file a petition for a violation of a law that you have consistently violated and still violating. You cannot complain about the snow in your neighbour’s house while your doorstep is unclean.
My advice to the APC government/Party and the judiciary is that let sleeping dogs lie and let Section 76 be applied henceforth and not retrospectively.
About the author
Abu Bakarr Orkailkail Bangura has a BA, LLB (UNDA), GDLP, LLM (USYD), LLM (UNSW), PhD in Law Cand. (UNSW)