Can the executive decision of a sitting President of Sierra Leone be the subject of litigation after leaving office? Op ed

Andrew Conteh: Sierra Leone Telegraph: 5 May 2022:

While H.E Ernest Bai Koroma was serving as President of the Republic of Sierra Leone under the ticket of the All People’s Congress (APC), the National Social Security and Insurance Trust (NASSIT) had embarked on the construction of a multi-purpose market in response to the proliferation of street trading along major streets in Freetown’s central business district.

Unfortunately, after considerable work on the construction of the Sewa Grounds Market, the project had stalled, provoking a public protest by market women who were supposed to be beneficiaries of the contract.

When this came to his attention, President Koroma summoned a meeting of the stakeholders including NASSIT (the funder of the project) the contractor, the City Council etc, in order to be comprehensively briefed on what was holding up the works. What emerged from that meeting was that, the payment to the contractor was being delayed as a result of issues extraneous to procurement and financial management.

At this time, it was reported that the payment to the contractor was in fact already due. Therefore, to rekindle the project on which the government, through NASSIT, had already invested substantial funds, and to assuage the public agitation by the market women, the President instructed NASSIT to fast track the payment so that the works could continue.

Upon assumption of office in April 2018, President Bio instituted three Commissions of Inquiry to look into the activities of the previous APC administration, which included the Sewa Grounds project.

What was before the Commission of Inquiry of Justice Atuguba?

At the Commission Of Inquiry (COI) of Justice Atuguba, where former President was 1st Person of interest, the question before the judge was whether in his capacity as president, he unduly put pressure on NASSIT to complete the works of the Sewa Grounds.

Findings by COI of Justice Otuguba

The presiding Judge, Justice Atuguba concluded that “the president hoisted his executive expedience over and above the requirements of good governance and proper financial management…”.

On behalf of former President Koroma, his lawyers appealed this ruling on the basis that an executive discretion taken by a sitting president cannot be a subject of litigation even after he has left office.

The defence presented seven questions which they asked three Appeals Court judges to refer to the Supreme Court for interpretation. The questions touch and border on Section 48(4) which deals with presidential immunity.

Yesterday’s, 4th May 2022 ruling by the Appeals Court Judges

The three judges, Adrian Fisher, Ivan Sesay and Momoh-Jah Stevens say it is not necessary to seek Supreme Court interpretation on all the seven questions because, as they put it, “the 1991 Constitution is clear on that matter of presidential immunity”. This means that the COI Appeals which had been suspended pending this clarification can now proceed with the substantive matters before them.

In other words, the case before the Appeals Court and in which the three judged panel ruled on yesterday May 4, 2022, was not about anything rather than clarification as to whether the seven questions relating to Section 48(4) which deals with presidential immunity should be taken to the Supreme Court for interpretation.

The substantive matter which triggered this ruling is itself purely administrative in nature, emanating from an executive discretion regarding the expeditious payment of the contractor for the Sewa Grounds market construction project.

So once again, former President Koroma Defence team insists that this was not an attempt to shield the former president from accountability. They say he is always ready at all times defend his executive decision and his good name.

They maintain that they decided to seek clarification on the constitutional provisions relating to presidential immunity to establish for the records how such provision affects the functioning of the president.

The implications for all people holding executive office including Members of Parliament and even judges, relating to the exercise of discretion could be scary. As one legal practitioner puts it, “No state will properly function where the exercise of executive discretion is fettered.”

Some governance analysts have gone as far as drawing parallels between that executive discretion to Justice Fisher’s Order last Friday April 28, 2022, in which he granted Peter Conteh the authority to select 9 people including the chairman of the 21 Man Committee. They argue that that particular order was the judge’s discretion and not on a point of law. The question then follows: Should this be litigated after Justice Fisher would have retired?

It is important to note that to deliver the ruling on this single question, it took the Court of Appeal seven months. Whatever meaning the Phrase: “Justice delayed is justice denied” may have, could not have been more striking when the timing of this ruling is assessed by the curious fact that the Bench of three Justices was again led by Fisher who, just few days ago, delivered a ruling that dismantled the entire national, regional, district and constituency executives of the main opposition All People’s Congress.

Below are the full complement of questions before the Appeals Court as presented by former President Koroma’s defence, which the Court of Appeal has refused to refer to the Supreme Court for interpretation:

1. Whether Section 147 of the Constitution of Sierra Leone, 1991, Act, No. 6 of 1991 (“Constitution”), should be read in conjunction with Section 48(4) of the Constitution? If the answer is in the affirmative, what effect would that have on a former President for executive decisions taken while holding office;

2.Whether the exercise of powers conferred under Constitutional provisions of section 147 exercised in non-compliance of section 48(4) of the Constitution, render the exercise of that power a nullity?

3.Whether Section 148(1)(a) and (b) of the Constitution, that is to say, enforcing the attendance of witnesses, examining them on oath, affirmation or otherwise; and compelling the production of documents; amount to ‘proceedings’ as contemplated under Section 48(4) of the Constitution.

4. Whether section 4 of Constitutional Instrument No.67 of 2018, expressly or by necessary implication, conflict with section 48(4) of the Constitution? If the question is answered in the affirmative, does that fact render the impugned provision null and void?

5. On a true and proper construction of Constitutional provisions of section 48(4), whether a President of the Republic of Sierra Leone, is vested with Presidential immunity; If the answer to this question is in the affirmative, can the immunity be characterized as personal or functional, or both;

6. Whether Presidential immunity, is extended to cover executive decisions ONLY during the currency of the term of Office of the President; or is it in continuum, that is, the immunity continues in respect of those executive decisions while in office, even after he or she has vacated the Presidency?

7. In the light of Question 4, whether ‘immunity’ continues after a president has vacated office, is it that such immunity is limited and subject to Parliamentary Waiver? Can it then be said that under section 48(4) of the Constitution, Parliament confers immunity while a person holds or performs the functions of the Office of President and by necessary implication ONLY PARLIAMENT can waive that immunity in express and unequivocal terms?

 

2 Comments

  1. Yes a former president of Sierra leone can be subject to litigation for his misuse of his executive powers as conferred to him by the Sierra Leone Constitution through Acts of Parliament.But a word of caution the powers vested to the executive branch of the government of Sierra leone is full of ambiguities and grey areas it will take an almighty break from the laws of the state as written in our Constitution,our African tradition for respect elder statemen, and conventions that have never been tried before to successfully bring proceedings against a former president in our courts.Chapter V of the Sierra Leone constitution.The Executive .PART 1 .Office of the President.Section 40 sub-section (1).There shall be a president of the Republic of Sierra leone , who shall be head of state , supreme executive authority of the Republic and the commander-in -,chief of the Armed forces.Section (2)The President shall be the fountain of Honour and justice and the symbol of national unity and Sovereignty.etc .And it went on to say this powers given to the President is (1)by an enactment of parliament or (2)by a resolution supported by voted of not less than one-half it members of Parliament.

    The president can pardon killers , confer honours to ordinary citizens that have contributed to the welfare of the state and he or she can also declare war and state of emergency etc .Now ,unless the president use his powers outside what is given to him , like complicity to murder , genocide,torture and illegal detention, or commit serious crimes that will undermine the security of the states and the well-being of the citizens or is involved in facilitating drug trafficking and weapons charges it will be had to bring a case against a former president on issues like enriching themselves whilst in office or signing contracts with foreign business entities that are detrimental to the economic well-being of the state .Iam not trying to down play the seriousness of corruption.

    The logic here is simple, if they are charged with corruption, they can afford the most expensive lawyers in the state .Closer to home Blase Compahore was recently tried in absentia and convicted for the murder of Capatin Thomas Sankara .Two former presidents of Egypt were put on trial after leaving office Mubarak and Mosie .Jacob Zuma of South Africa, Al -Barshire , of Sudan ,Charles Taylor of Liberia and Conde of Guinea will soon go on trial for crimes committed when he was in office .So the possibilities exist .What is lacking is the will power .

  2. Thanks to the almighty for directing the voters that kicked the former lifetime leader from power. His mindset was, he owns Sierra Leone and no one has the right to question his deeds. He promised to run the country as his personal business, and motivated most of his supporters to be petty traders but cannot even built a single market place for them in 11 years. Now they occupy most of the streets in the city.
    His role model late Pa Saki who was the only civilian president in history to formally handover power to a military officer was successful, based on the fact that he was scared of his Vice President S.I Koroma that he will hold him accountable for his stewardship. The lifetime leader almost succeeded in installing his handpicked stooge Drunkard Samura Kamara who should have covered up his looting. Now he is the richest man in our country and nervous of losing his loot and properties.
    The people gave the lifetime leader opportunities not only to be a legislator, leader of the opposition but also the commander in chief. Now after he has been caught with his pants down, he needs clarification about the constitution which he has “bastardized during his misrule.
    President Bio has set a precedent which every patriot should applaud, based on the fact that corruption is the main reason why our country has been rated as one of the poorest in the world.
    Finally, I hope and pray that after President Bio has completed his second term, he also should account for his stewardship even if his party is elected for the third time. Accountability should not be misconstrued as “Witch Hunt”.
    I hope one of the brightest legal minds in our country former Vice President Abdulai Conteh will once again advise the lifetime leader as he previously did in the link below:
    https://www.thesierraleonetelegraph.com/international-lawyer-dr-abdulai-conteh-says-president-koromas-sacking-of-vice-president-is-illegal/

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