Grave concerns over declaration of state of emergency on rape and sexual violence

Joseph Fitzgerald Kamara Esq: Sierra Leone Telegraph: 23 February 2019:

The Declaration of a State of Emergency by H.E. Rtd. Brig. Julius Maada Bio in an attempt to seemingly address the increasing spate of the incidence of rape, has raised worrying eyebrows to many persons and organizations, including the Bar Association and civil society groups.

The Premise underlying emergency powers is simple: The government’s ordinary powers might be insufficient in a crisis, and amending the law to provide greater ones might be too slow and cumbersome. Emergency powers are meant to give the government a temporary boost until the emergency passes or there is time to change the law through normal legislative processes.

The Declaration of a State of Emergency regarding Rape and Sexual Offences, appears well meaning, but the road to meeting the challenge is risky, and could open the floodgate for abuse of the powers that go with the invocation of a State of Emergency.

It is no gainsay, that most of the citizenry support an aggressive pursuit in the fight against gender violence and other related offences that have besmeared the good image of our country and engender our women to serious physical and emotional injury.

Yet, concerns have been raised on the extent of powers been sought and the applicability of such powers to meet the challenge being fought.

It is important to note, that this article by no means lessen, nor belittle the desire to seriously address the issue of rape and sexual violence in Sierra Leone, but rather query the wide ranging powers to be conferred on the President, that may have no bearing in that quest and could salivate the appetite of quashing dissent.

The moment a president declares a “Public Emergency” – a decision that is entirely within his discretion – he is able to set aside many of the legal limits on his authority.

While many of these powers tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader who may be bent on amassing or retaining power and crushing opposition elements.

For instance, the president can, with the flick of his pen, activate laws allowing him to detain  persons; restrict movement of persons; authorise the entering and search of any premises; taking of possession or control on behalf of the Government of any property or undertaking, or freeze; provide for the apprehension, trial and punishment of persons; or freeze bank accounts, to name but a few of the wide powers to be exercised by the President once the Proclamation is approved by Parliament.

The Constitution confers on the President sole, unquestionable and unchallengeable power to determine the existence of a situation deserving of a Declaration by Proclamation of the existence of a State of Public Emergency. “The enjoyment of, or right to the enjoyment of, such rights and freedoms as guaranteed under the Constitution is neither absolute nor unlimited in scope, but relative and restrictive in all its aspects in the interest of an orderly society under the sovereignty of the law” expounded by the immortalized words of Kutubu, C.J. (then of the Supreme Court of Sierra Leone) in the case of the State v Adel Ousman and Others (1988) LRC.

Furthermore, the same Court held, that an Emergency situation inevitably connote the curtailment of the rights and freedoms of the individual, and Emergency Regulations are laws to which the fundamental rights constitutionally must give way.

This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has not held up in the case of Sierra Leone.

But what if a president, backed into a corner and facing increasing public resentment or paranoiac apprehension of fear of being removed, were to declare an emergency for the sake of intimidating or harass the opposition with a view to cling on to power? In that scenario, our laws and institutions might not save us from a presidential power grab or longevity as the case may be. They might be what takes us down as a Nation.

Worthy of note however, is that other powers are available within our legal framework, even without a Declaration of Public Emergency, including laws that allow the president to seek, through Parliament, to amend and strengthen the Sexual Offences Act, 2012 (as amended); and the Offences against the Persons Act 1861, and to even punish sexual penetration with life imprisonment.

So, what begs the question is, why declare State of Emergency?

Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared or not.

In the case of R v Millberry, [2002] EWCA Crim 2891, [2003] Crim LR 207, the Court of Appeal held that “there are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk posed by the offender to society.” Subsequently, the court held in Attorney General’s Reference (Nos. 91, 119, 120 of 2002) that these three dimensions can be applied to sentencing for other categories of sexual offences.

In applying the three different tests enunciated above, none, demand the kind of powers requested for under the emergency power.

Interestingly, it appears to me to be a “copy and paste” of the Donald Trump declaration of ‘National Emergency’ over the building of a wall separating Mexico from the United States of America. This has been challenged by Congress, several States of the Union; and Civil Rights Organizations. (Photo: Joseph F Kamara).

In retrospect, key points in American history, presidents have cited inherent constitutional powers when taking drastic actions that were not authorized or, in some cases, were explicitly prohibited by Congress.

Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks.

Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.

Aiming to rein in this proliferation, Congress passed the National Emergencies Act in 1976. Under this law, the president still has complete discretion to issue an emergency declaration, but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months.

By any objective measure, the law before Parliament, attempting to invoke the colossal powers of State of Emergency in Sierra Leone, is singing the same ode as Donald Trump, on extraordinary powers of the executive. The threat of abuse far outweighs the anxiety it seeks to address.

In any event, it is now for Parliament to formulate or amend the necessary legislation to give effect to strengthening the fight against rape and sexual violence.

Concomitantly, the Judiciary must exercise its power to deliver timely and competent judgments, and the Law Office must endeavour to prosecute qualitatively, leading to successful convictions.

The Declaration of State of Emergency is advisedly to be rejected by our Parliamentarians, but the “ayes” have it, according to the Speaker of Parliament. So mote it be. God save us all.

About the author

Joseph Fitzgerald Kamara is the former Attorney General in the Koroma led APC government of Sierra Leone. Following the end of the civil war in Sierra Leone, he was appointed Deputy Prosecutor for the Special Court for Sierra Leone, which tried perpetrators of war crimes.

10 Comments

  1. In my personal opinion, I think the APC is picking the wrong fight as usual but it’s also difficult for them to just sit down and say nothing which will aggravate their grass-root supporters.This social issues just like the free quality education is paramount within the largest voting block (Women) within our country and I believe that the president has used his executive privilege to declare a state of emergency just to shock the conscience of every citizen at home and abroad and now it’s been an open discussion in public squares.

    Let’s stop being mind readers (psychics) and judge the president based on his implementation of the law that parliament has just passed.

  2. I don’t think Sierra Leoneans should be bothered about the declaration of the state of emergency if all the organs of government are working accordingly. If only the judiciary remains independent from the executive, then all will be fine. But will that happen? It remains to be seen.

    What is bad and dangerous during state of emergency is when the judiciary tends not to use it’s powers independently, but takes orders from the executive branch. It has happened in the past, that’s why people are anxious and nervous I believe. However, let’s wait and see what happens this time.

    LONG LIVE OUR DEMOCRATIC INSTITUTIONS and SEPARATION OF POWERS.

  3. Was it a rash decision or a good one, I dont know. But you are sending very bad signal to world tourists to think about Salone as a destination. In that one decision, tourism might never take off.

  4. JFK should better go to the law school for further legal upbringing. it was the same nonsense, blunder, and legal ineptitude he grossly manifested in the case between Sam Sumana and the government of Sierra Leone. Even boys who have just graduated from the Fourah Bay College can better explain legal issues than JFK.

    My advise to you is that if you have nothing serious, better shut your mouth and listen to better headed people to decide rather than complicating your already manufactured and self made ignorance.

  5. Joseph Kamara wasted his time studying law.He would have been far better suited for one or other of the physical sciences like chemistry or physics.

    In the physical sciences one is able to test a theory in a laboratory before introducing it to the world outside.During the various tests,there could be anger,frustration and and despair,leading to the kicking of a table or smashing a glass cup on the floor.President Bio is denied this luxury.

    The world only gets to see the end product which the physical scientist has tested and retested in the lab.He is able to explain everything with ease and answer all intricate questions.The unconditional functioning of the device/product sends his career on an upward trajectory which wins him a Nobel prize.

    The article is full of speculations and assumptions designed to create unease in the country with no regard for the fact that even in a state of emergency the President can be legally challenged and thwarted if excesses emerge.

    The emergency declaration only deals with rape and nothing else.In the event that President Bio starts to hide behind it to curtail the overall rights of people,that’s when Joseph Kamara should rise and say, Mr President, you will have to kill me first before I can allow such a conspicuous abuse of power to take hold.

    Until such a time, Mr Kamara should keep his judicial precedents to himself which are not persuasive to a significant number of us at the moment anyway.

    For over ten years while Joseph Kamara and his boss,Earnest Koroma,held office,what did they do about rape and other diabolical crimes? Or is he trying to tell us that the entire phenomenon started in the eleven months since Julius Maada Bio has been in office. The nation would rather see President Bio stumble in the right direction than walking upright and strong in the wrong direction.

    It is almost inexplicable that Mr Kamara has suddenly found his legal expertise since Maada Bio assumed office, not while he served in the kingdom of kleptomania under Earnest.

  6. Oh boy!! I’m not surprised a bit for seeing people taking this issue way out of context…But guys,if only ya’ll know what a ‘state of emergency’ is you all should be able to forgive the president for making such a grave mistake!!! Period…
    Just as am going to forgive you Mr. Fofana for not knowing when state of emergencies are being declared.

    But remember,state of emergencies in the US you cited can only be declared when the situation out there is not favourable for anyone..like in the situation of fire, flood, snow, etc..whereas the rape situation in our country has not yet and will not reach that level..period!

  7. Of course, Joseph Fitzgerald Kamara Esq. is quite right in expressing concern about the potential abuse of emergency powers with impunity. He should also be given credit for his ability to write in such a manner that even the layman can comprehend to his legal construct and terminology. Love him or loathe him, the guy has got a fine legal mind.

    The problem here can be derived from two fronts; and they are all embedded in the House of Parliament. In the first instance, there is a Speaker that conducts parliamentary proceedings in finality, with a touch of arrogance and a know-it-all type of attitude. No wonder he was imposed upon the House by the ruling Sierra Leone Peoples Party (SLPP) under obscure circumstances. And on the other hand, there is the All Peoples Congress (APC) party that is as large as an alsatian, which barks but doesn’t bite. This is evident from the fact that they didn’t even bother to request for a vote after the debate on the emergency issue.

    Each and everyone all over the world knows the evil of rape especially when it is associated with minors. It is a filthy act and it makes one’s blood pressure to rise when reading about the incident of the five-year-old girl that was allegedly assaulted by her uncle and left her partially paralysed.

    But does this require the President to act on impulse and bypassed parliament to declare a national emergency? What are the implications of the President’s actions to the rest of the word? Is Sierra Leone a lawless country where rape is the order of the day? How is this going to feature to people intintending to visit Sierra Leone?

    Since the SLPP came to power on April 2018, the APC has been TRAMPLED UPON like a contemptible entity, even though they are in majority in parliament. Without any doubt, the majority of Sierra Leoneans want the present SLPP government to succeed; but politics in a democratic background, is just like a game of football. The players, the fans and the supporters are there to see their team score and win the match at the end of the day.

    In that context, is the APC still hibernating after their unthinkable defeat in the last elections? Even the tiny National Grand Coalition (NGC) come up with more constructive opposition than the ‘mighty’ APC.

    Where is the APC?

  8. Mr Fitzgerald is correct in this case. The need to tackle the spate of sexual violence and rape in our country cannot be understated. However, the president does not need a state of emergency or emergency laws to tackle this. What we need is for the judiciary and law enforcement bodies to pull their fingers out and tackle this canker worm.

    To declare it as a state of emergency leaves one thinking that the offence is so rampant that women are forbidden to walk walk the streets of our nation. We all support a VIGOROUS attempt to curb this crime. but we don’t need an over the top approach to this.

    We need education, mass awareness, sensitisation and above all, assure and reassure our women folk that the silence is over. we need to give them a voice and we need the listening ears for their plight. Emergency powers could be reflective of our nations age old negative attitude to the problem; meaning that sexual violence and rape has never been considered as an issue. now is a good time to address the problem. but we don’t need emergency powers to do so.

    If so, it will nullify the use of emergency powers, and as the writer rightly pointed out, we don’t want to set a precedence where the President can invoke emergency powers willy nilly. It may serve as a precedence for misuse of power. If the president can get away with this, who is to say that social media would not be banned under the emergency powers tomorrow?

    This is like taking a sledgehammer to a mole hill. lets keep it in perspective, and together we can tackle this menace. it is time our women folk feel listened to and HEARD.

    • I see the Bio detractors again in overdrive over an issue that is not at all complicated. First, declaring a state of emergency is discretionary to a head of state/government.

      Second, by declaring a state of emergency, a government seeks empowerment to perform actions that it would otherwise find difficult to perform under normal circumstances. For example, under a state of emergency, a government can implement fiscal policy without the approval of the legislative body if it is believed that local resources are not enough to tackle a problem.

      Third, a state of emergency is a warning to citizens to change a pattern of behaviour. In the United States, states of emergencies are declared for even weather related reasons.

      Rape and sexual abuse/violence have been pervasive problems in Sierra Leone for a quite a long time. Unfortunately, successive governments have failed to give this scourge the attention that it deserves. It follows that if president Bio is to successfully fight corruption and lead Sierra Leone in the direction of sustainable growth and prosperity, he must fight any problem that poses a danger to Sierra Leone’s national security.

      I therefore see nothing wrong with president Bio declaring a state of emergency to fight rape and sexual abuse/violence.

  9. Okay, Joseph Kamara. How about the president declaring a state of emergency on persons who pilfered state funds between 2007 and 2018? Would that not be necessary for flushing out all the APC rats that wrecked Sierra Leone’s economy?

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