Lawyer Adikalie Foday Sumah , ESQ:
Sierra Leone Telegraph: 11 December 2017:
The recent political development in Sierra Leone sparked by the determination of the Community Court of Justice (hereinafter referred to the CCJ) of the Regional Multilateral Body, the Economic Community of West African States (hereinafter referred to as the ECOWAS) on the Matter: the Hon. Alhaji Chief Sam Sumana (hereinafter referred to as the Applicant) -V- Government of Sierra Leone (hereinafter referred to as perceived Respondent State Party) has occasioned contending legal opinions across the Sierra Leonean communities both at home and abroad.
The contending views expressed by my compatriots from a diverse of life including political scientists, historians, international relations and diplomacy practitioners Law students and legal luminaries are set forth to compound the specific constitutional, legal and substantive rules of procedural issues which the determination have given rise to.
It is also observed that, the way in which the Learned Justices of the CCJ prepared, produced and promulgated their decision on the matter, in itself is palpably tainted with appreciable degrees of flaws with regards the intents and purposes of the decision.
In particular the lack of clarity on structure and coherence, left legal minds to decipher the intended purpose of the determination in confused states of minds, to say the least. Reviewing the voluminous judicial piece, there is no doubt in my mind that, the judgement followed a zigzag course and pattern thereby rendering it so confounding for the very conscious reader with a corresponding interest in the matter, to clearly ascertain with ease, as to whether or not the CCJ was determining the matter as a procedural issue founded on its vested jurisdiction under the Revised Treaty and its Supplementary Protocols. Or it was actually setting sail to address the claim in a multifaceted procedural manner.
What is also clear in my mind is that, the CCJ appeared to be predisposed to dispose of the matter in a calculated ploy to give the Applicant the impression that, he has triumph over the perceived Respondent State Party- the Govt-SL. Again, I have no doubt in my mind that, the Learned Justices may have either advertently or inadvertently set sail to achieve both ends in their decisions on the matter.
At a glance, the Learned Justices entered no substantive contention on the heart of the promulgated decision of the most Learned Justices of the Supreme Court of Sierra Leone in respect of the Constitutional Question placed before the Supreme Court of Sierra Leone (hereinafter referred to as the SCSL) for interpretation of specific provisions of the Constitution of Sierra Leone (as amended 1991) relating to the removal of the Applicant in the instant Case from office of Vice President of the Republic of Sierra Leone. This, I believe, resonates with the Respondent States Party’s pleading of lack of jurisdiction for the CCJ.
Before progressing to addressing the substantive issues at the bone of contention in the CCJ decision, I would like to inform that, the purpose of this legal reasoning is to contribute to the ongoing debate centered on the issues of jurisdiction, in particular, the CCJ’s destitution (lack) or having jurisdiction in the matter brought before it by the Applicant for determination.
It is not, in any way, intended to infuriate the minds of any one in the process of achieving this goal. However, I have to point out what, with respect, noted from certain quarters of the Debate, that is, the manifest level of ignorance of the substantive areas of International Law and Jurisprudence relating to the Law of Treaties, and how state parties could become obligated to the terms of treaties they enter into.
Many opinions including political, legal as well as common sense, have been canvassed since Monday 27th November 2017 when, the CCJ decision was promulgated. In the following manner, I would like to add my voice to the contending positions by proffering this legal reasoning on the matter.
The specific aim is to clearly and emphatically submit that, the CCJ is destitute of jurisdiction in the matter brought before it by the Applicant and, to have heard the matter and promulgated a decision on same, is nothing other than arrogating itself with a responsibility as judicial institution of the ECOWAS accorded with the unfettered jurisdiction to review decisions of the Supreme Courts of Members State of the ECOWAS including the perceived Respondent State Party in the matter under review, the Supreme Court of Sierra Leone (hereinafter referred to as the SCSL).
My revered compatriots are hereby engaged to ascertain my reasoning substantiating my position for the perceived Respondent State Party. At this juncture, it is pertinent to review the historical background relating to the establishment of the CCJ of the ECOWAS with a view of informing my interested compatriots, the sources of the jurisdictions of the CCJ, and whether those jurisdictions place the perceived Respondent State Party as a Member State of the ECOWAS within the scope of contemporaneous binding effect which, demand a prima face strict compliance and adherence.
The legal reasoning will engage the conflict of International Law relating to the Dualist and Monist Systems in the application and enforcement of treaty obligations to state parties, and how these two systems impact the status of national Constitutions of the different jurisdictions.
The reasoning will conclude by highlighting the need for clarity of the relevant law in the face of the legal systems dichotomy, coherence in the legal jurisprudence in the disposal of matter in which the CCJ is called upon for determination, and to exhibit tolerance in accommodating and respecting the independent opinions of others in the onerous effort of developing our laws and legal jurisprudence.
The Establishment of the ECOWAS Community Court of Justice
Articled 6, of the ECOWAS Revised Treaty of 1993, created the Community Court of Justice (hereinafter referred to as the CCJ). The Court has jurisdiction to consider matters (cases) relating to: alleged breach or failure by Member State to comply with Community law; any dispute arising from the interpretation and application of Community acts; any dispute occurring between Community institutions and their officials; any liability of the Community; human rights violations by Members State or State actors; and the legality of Community laws and policies.
The adoption and implementation of Supplementary Protocol A/SP.1/01/05, which followed the adoption of Protocol A/SP1/12/01 on Democracy and Good Governance, requiring that, the Court should be accorded the mandate to, inter alia, hear cases relating to alleged violations of human rights; albeit short of expressed extension to “people Rights”, which would also incorporate civil liberties in the strict sense of the concepts constituting the Body of International Human Rights Law.
By this Revised Treaty and its Supplementary Protocols, the CCJ become vested with the jurisdiction to determine cases of alleged violations of human rights and (fundamental freedoms, my emphasis) that occurred in any of the Member State of the Community, commencing 2005 on words.
Unlike the European Court of Human Rights (hereinafter referred to as the ECrHR), which interprets, apply and enforce the European Convention of Human Rights and Fundamental Freedoms, 1950, the CCJ’s decisions on human rights matters interpret the African Charter on Human and Peoples’ Rights, as provided for under Article 1(h) of Protocol A/SP1/12/01 with the intention to contain constitutional principles shared by Member States.
The CCJ’s jurisdiction also encompasses Body Corporates established in the territories of Community as well as individual applicants who are citizen of the any of the Member States of the Community, may submit complaints alleging human rights violations by the Community or Member State actors
Again, unlike the ECrHR which requires that, for an applicant to bring a claim before the Court, they have to establish that, they have exhausted all local remedies, the CCJ, in contrast, has no such requirement for domestic exhaustion of remedies.
However, it is fundamental requirements that the application should not be anonymous and that the matter is not pending before another international court. This terms of the Supplementary Protocol was given credence under: Radiator Mani Koraou v. Niger, Judgment No. ECW/CCJ/JUD/06/08, 27 October 2008.
It is submitted that, this assumption of boundless jurisdiction is seen and, exactly so, as vesting individual applicant to leap frog national judicial remedies. The legislative provision under the enabling Supplementary Protocol (s) could be construed as an orchestrated ploy to place CCJ locomotion on constant motion in the discharge of its mandate.
This reasoning emboldens the view that, upon its inception, and until the expansion of its jurisdiction to human rights, the CCJ was, for a considerable period of time, remained diminished in destitution of business in Abuja. As pointed out by a keen observer of the Court at its formative stages that, ‘the Court’s docket has been limited, with no more than two dozen judgments rendered annually.
However, since 2005, when the Court’s jurisdiction was expanded to include human rights claims, the vast majority of cases decided by the Court concern human rights’. The delay which marred appointment of Judges of the Court, strongly underpins the apparent undesirable dispositions of Members State of Community for the creation of the Court in the first instance.
The relevant Supplementary Protocol thus opens the flood gates for the Court to keep it busy with the determination of alleged violations of human rights. And since the period under review, the Court has heard cases involving slavery as evident in, Hadijatou Mani Koraou v. Niger, Judgment No. ECW/CCJ/JUD/06/08, 27 October 2008) etc.
The Status of the CCJ under the Provisions of the national Constitutions of Members State
It has to be sated from the outset that, the status of the CCJ and its decisions on the Members State of the ECOWAS is determined largely by the Legal systems operating in their respective jurisdictions. In international law, there are two legal systems which demarcate jurisdictions of the legal systems across world with regard to the accession of treaty law to domestic jurisdictions of state parties to treaties.
These varying legal systems are known and often referred to as the Dualist and Monist Systems. The interaction between international and domestic or municipal (national) law in the two different systems must be understood by tribunals of law when, they faced with the judicial function of interpreting and applying treaties obligations of state parties to treaties in their Dualists and Monists systems.
This palpable legal dichotomy needs to be addressed by responding to the salient question of: how does international law apply in a domestic legal system? A Competent way of responding to the above is to examine two systems which determine the applicability of international law into the varying domestic jurisdictions across the world.
For instance, in a Monist system, international law as enshrined in the law of treaties does not require the enactment of enabling Act of Parliament for the purpose of giving the binding obligations of the state party under the treaty within the force of domestic body of laws. By ratifying an international treaty of either bilateral or multilateral character, provides for contemporaneous accession – incorporating that international law into national law.
The Statute of Rome which creates the International Criminal Court (Hereinafter referred to as the ICC) as well as the Statute of the ICC, for instance, can be directly applied and adjudicated in national courts.
The Monist systems do differ in their approach in that, under some national Constitutions, direct incorporation of international obligations derived from treaties into the domestic law simply occur upon ratification and once the ratification formalities such as placing the treaty before the national legislature for a (period of 21 days), the provision of the treaty is deemed biding, adjudicated and applied by the domestic courts. In other States direct incorporation occurs only for self-executing treaties.
Self-Executing Treaties, by definition, are those treaties which are adequately clear and precise in terms of substance and purpose to confer rights and or obligations on individuals under domestic law without the need of enacting an enabling Act of Parliament.
However, self-executing treaties are qualified by two pre-conditions viz: (1) a personal criterion; which dictates that, the rights and obligations created under the treaty must be enforceable by individuals directly before national courts. The individual who avails himself of entitlement to the right or subject to the obligation under the treaty, must be characteristically targeted by the treaty itself. (2) material criterion: the rule must be amply precise and unblemished not to require national implementing measures. A limited latitude of freedom to infer a possible scope for different interpretations for the application and enforcement the treaty.
The Monist system is mostly applied by the French Members State of the Community. It is believed with reasonable conviction that, in the leading case of Hadijtou Mani Korabou v. Niger, Judgment No. ECW/CCJ/JUD/06/08, 27 October 2008), it is seen that, the Respondent State Party, Niger, apparently, did not challenge the jurisdiction of the CCJ consequent of it Monist system in it approach to international law including the implementation of her treaty obligations such as the Revised Treaty of the ECOWAS and its Protocols in the determination of the cited Case above.
It is also pertinent to see the following precedents to support the above proposition. In particular, the famous cases relating to education as in SERAP v. Nigeria, Judgment, ECW/CCJ/APP/0808, Oct. 27, 2009, finding that education is a legal and human right); the rights of women and children enunciated in Amouzou Henry v. Cote d’Ivoire,Judgment No. ECW/CCJ/JUG/04/09, 17 December 2009.
Reviewing Specific Provisions of the national Constitutions of Members State of the Community under the Dualist Systems
In Sierra Leone, the status of treaties is provided for under the national Constitution. In particular at Section 10 which enacted the Foreign policy objectives provides: the Foreign Policy Objectives of the State Shall be—
- the promotion and protection of the National interest;
- the promotion of sub-regional, regional and inter-African co-operation and unity;
- the promotion of international co-operation for the consolidation of international peace and security and mutual respect among all nations; and respect for their territorial integrity and independence; and
- respect for international law and treaty obligations, as well as the seeking of settlement of international disputes by negotiation, conciliation, arbitration or adjudication.
In a carefully calculated manner, the national Constitution places a lid on any would be claimant against government for breach of the provisions under CHAPTER II — FUNDAMENTAL PRINCIPLES OF STATE POLICY, by enacting Section 14; Fundamental principles not justiciable. It succinctly provides that:
“Notwithstanding the provisions of Section 4, the provisions contained in this Chapter shall not confer legal rights and shall not be enforceable in any court of law, but the principles contained therein shall nevertheless be fundamental in the governance of the State, and it shall be the duty of Parliament to apply these principles in making laws.” The provisions under Chapter II above should be read and construed in the light and spirit of the provisions contained under CHAPTER VI — THE LEGISLATURE PART IV — RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES
Section 105 Power to make laws:
- “Subject to the provisions of this Constitution, Parliament shall be the supreme legislative authority for Sierra Leone.”
The purposive element of this Section 105 above, is that, Parliament is not only vested with mandate to enact laws, it also has the supreme authority to give credence and force of law on other laws including the laws contained in treaties, in the domestic jurisdiction of the realm, Sierra Leone Such treaties include bilateral and multilateral agreements, Conventions and covenants.
By this unfettered supreme authority, the common law doctrine of the Supremacy of Parliament is unequivocally evoked and guaranteed under the national Constitution of Sierra Leone (as amended) 1991.
The Revised Treaty of the ECOWAS and the Supplementary Protocol (s) thereof, the African Charter on Human and Peoples’ Rights and the Protocols which established the Mano River Union are, typical treaties, among others, to which Sierra Leone is signatory.
As the Sierra Leone international legal system is founded on the Dualist system, her signatory and ratification alone, does not automatically transplant her obligations derived from treaties including the Revised Treaty and Supplementary as well as the African Charter on Human and Peoples’ Rights into the domestic law of the Country with the force of law capable of rendering them binding on Sierra Leone as a State Party.
The doctrine of Parliamentary Supremacy as enunciated under the national Constitution, and pursuant to her dualist system of international law, Parliament has to enact the enabling Act of Parliament for the purpose of domesticating treaties with the force of law enforceable by the ordinary Courts of the Land.
And for the Revised Treaty and the Supplementary Protocol (s), as well as the African Charter of Human and Peoples’ Rights to have the legislative codification blessing of the national Parliament, the provisions contained in them, are only to the extent that, they are not inconsistent with the provisions of the national Constitution.
Let us now give a bird’s eye view on Dualist jurisdictions in order to discover their correlations of other dualist systems including Nigeria and the United Kingdom to name but a few, to that of Sierra Leone with regard to the doctrine of Parliamentary.
Like the 1991 national Constitution of Sierra Leone, this are similar provision under the national Constitution of Nigeria. In particular, Section 12 (1) of the Constitution of Nigeria, clearly provides that:
“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted by the National Assembly.
Prior its enacted enactment into law by National Assembly, an international treaty has no force of law capable to make its provisions justiciable in the national Courts of Nigeria. In the leading Case of Higgs & Anor. V. Minister of National Security & Ors. The Times of December 23, 1999, the Judicial Committee of the Privy Council decided that:
“In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the Crown. Treaties formed no part of domestic law unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizen’ right and duties in common or statute law. They might have an indirect effect upon the construction of statues or might give rise to a legitimate expectation by citizens that the government, in its act affecting them, would observe the terms of the treaty.”
It follows that, where a treaty is enacted into law by the National Assembly, as it was case with the African Charter for instance, which is incorporated into the domestic law of Nigeria, pursuant to the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10), it becomes binding and the national Courts has to give effect to it like all other laws falling within the Judicial power of the Courts. By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws the Courts must uphold it.
The African Charter on Human and People’s Rights gives the citizens of Member States of the African Union, rights and obligations, which rights and obligations are to be enforced by the Courts, the National Assembly of the Federation of Nigeria has to enact an enabling legislation if they must have any meaning in their municipal jurisdiction.
It is interesting to note that, the rights and obligations contained in the African Charter of Human and Peoples’ Rights Charter which, the CCJ gives effect to when they are faced with the judicial duty to determine allegations of human rights violations in the territories of the Members State of the Community, are not new to Sierra Leone given the fact most of these rights and obligations are enshrined in the national Constitution.
For a better understanding of the legal challenges pose by this area of conflict of international law by the reasonable man on the Clapham Omnibus, it is necessary to pose this question: Does Ratification of a Treaty such as the Revised Treaty of the ECOWAS and the Supplementary Protocol as well as the African Charter on Human and People’s Rights
It is reasoned that, in the jurisdiction the jurisdiction of Sierra Leone, ratification of treaties does not accord them a contemporaneous force of law unless and until domesticated by the enactment of an enabling legislation by the Parliament of Sierra Leone in the exercise of its exclusive and unrivalled legislative superiority and supremacy.
In this regard, it is submitted that, for the Revised treaty and the Supplementary Protocols to have force of law in Sierra Leone, and to the extent of binding the respondent State Party within the scope of its jurisdiction, the treaty has to be domesticated, and above all its provisions should not be tainted with defect to the extent of being inconsistent with the national Constitution of the Respondent State Party.
It is interesting to note the unfolding change of traditional approach to the International Law of Treaties regarding its application to national laws and jurisdictions in sovereign states under Monist system.
The Netherlands, a monist system, signed the Rome Statute (hereinafter referred to as the Statute of the ICC), on 18th July, 1998 and ratified it on the 17th July 2001. Notwithstanding being under a Monist System, the view of the Netherlands is that is propelled by the popular principles of Parliamentary Sovereignty or the Legislative Supremacy of Parliament as propounded by A. V. Dycey in his Book entitled, “The Laws of the Constitution” that, as a State Party obliged to implement the Statute by enacting an enabling national legislation.
The International Criminal Court (Implementation) Act (2002) and, Amendment Act (2002) were both enacted on the 20 June 2002 as the enabling legislation domesticating the ICC Treaty into the law of the Netherlands.
The Implementation Act entered into force on the 1st July 2002, thereby according the Dutch Government a statutory basis for transferring suspects to the ICC and for cooperating with the ICC.
‘For many years, War Crimes and Genocide have been defined as criminal offences under Dutch municipal law. Therefore, persons accused of these crimes could stand trial in the Netherlands even prior to the ICC Statute coming into force. In a calculated move to deviate from her Monist system, and to provide the ground for the implementation of the principle of complementarity pursuant the Statute of the ICC, and avail herself of the jurisdiction to try persons accused of crimes against humanity, the Netherlands was compelled to domesticate the relevant provisions of the Statute of the ICC into her national law.
In effect, the International Crimes Act (2003), was enacted on 19 June 2003 and entered into force on the 1st October 2003. This brought Dutch criminal law into conformity with the Statute of the ICC’s requirements, and thereby give effect to the principle of ‘complementarity’.
The European System in the Protection of Human Rights
The European system of the protection and enforcement of human rights and fundamental freedoms as enunciated by the Council of Europe and enacted under the European Convention on Human Rights and Fundamental Freedoms of 1950, is the most celebrated mechanism in the world which, as an aftermath of the wide spread gross violation of human rights and fundamental freedoms during the Second World War (hereinafter referred to as WWII), was promulgated.
The system of protection of fundamental rights and freedoms established by the European Convention on Human Rights (hereinafter referred to as the Convention), is couched under the principle of subsidiarity.
It follows that, the onus of ensuring its application and enforcement falls primarily with the sovereign precinct of the States Parties to the Convention; the European Court of Human Rights (hereinafter referred to as the European ECrHR) should intervene only, where it is palpably manifested that, a Member State has failed in its Convention obligations to protect and enforce the rights and fundamental freedoms of her citizen as provided for and guaranteed under the Convention.
The inherent Supervisory role of the Court in Strasbourg is largely triggered by individual applications lodged with the Court by any individual or Body Corporate located within the jurisdiction of a State Party to the Convention. Consequently, the puddle of prospective applicants is gargantuan coupled with 800, 000, 000 million inhabitants of Greater Europe as well as the nationals of third countries living there or in transit, there are millions of associations, foundations, political parties, companies and so forth not to mention those persons who, as a result of extraterritorial acts committed by the States Parties to the Convention outside their respective territories, fall within their jurisdiction.
For a number of years now, and owing to a variety of factors, the Court has been submerged by individual applications over 99,900 were pending as of 31 December 2013. The overwhelming majority of these applications more than 95%) are, however, rejected without being examined on the merits for failure to satisfy one of the admissibility criteria laid down by the Convention, the exhaustion of domestic remedies.
Article 34 – Individual applications stipulates that:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. …”
Protocol 14 follows on from Protocol 11 in proposing to further improve the efficiency of the Court. It seeks to “filter” out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore, a case will not be considered admissible where an applicant has not suffered a “significant disadvantage”.
This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court.
The dominant leading role of the ECrHR is clearly displayed by the aforementioned substantive provisions of the Convention. In particular, while Article 34 provides for individuals to submitted applications to the Court for determination of violation of human rights under the Convention, in contrast with the Revised Treaty and the Supplementary Protocol, Article 24 of the European Convention on Human Rights and Fundamental Freedoms, stipulated the proviso which compel applicants to have exhausted local remedies before submitting applications to the Court. Here, the Convention is seen on a flight promoting the upholding and respecting the primacy of the sovereignty of Members States in whose province the protection of the rights and civil liberties of their citizens is vested, hence the principle of subsidiarity.
In an orchestrated ploy not only to undermine the principle of subsidiarity in international law, by wavering the requirement for the exhaustion of local remedies by applicant, the CCJ, with purpose, deviates from the maxim of best practice in the task of protection the rights of individuals as provided for under the African Charter of Human and People’s Rights, but with clear intent and purpose, set sail to infringe into the unfettered omnipotence and omnipresence of the Apex Courts of the Members State of the Community as provided for in their respective national Constitutions, which expressed the will of their peoples whose rights the CCJ is purporting to protect in the perceived Respondent State Party.
And in the instant Case brought to the Court by the Former Vice- President of Sierra Leone, the Hon. Alhaji Chief Sam Sumana, the Court conspicuously infringed into and, without good cause, usurped the Supremacy and Sovereignty of the national Parliament of Sierra Leone which, under the national Constitution of 1991, in the exercises the collective will of the people, created the Supreme Court of Sierra Leone under: Chapter VII- The Judiciary, and Part ii specifically made provisions for the element and objects of the Supreme Court, and in particular Section 122 provides that-
- “The Supreme Court of shall be the final court of appeal in and for Sierra Leone and shall have such appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law;
Without any contestation in the interpretation of the above provision, the Constitution, expressing the collective will of the people of Sierra Leone, in whose ambit the sovereignty of the State is unequivocally vested, proclaimed the Supreme Court as the Superior Court of the Land, and literally and purposively connote that, it is not subordinate to any other court in Sierra Leone or any other court exercising any jurisdiction confer to it by any treaty in the discharge of same for Sierra Leone pursuant to her obligations under that treaty.
Further to above, the 1991 national Constitution of Sierra Leone stipulates under sub-section that-
- The Supreme Court may, while treating its own previous decisions as normally biding, depart from a previous decision when it appears right to do so, and all other courts shall be bound to follow the decision of the Supreme Court on questions of law.
This subsection did not only lay emphasis on the superior status of the Apex Court of the Land, but also under no uncertain terms, it has given credence to its sovereignty over any and, all other courts both within and outside of the territorial jurisdiction of the realm- the Republic of Sierra Leone.
The interpretative value of this subsection and it application to the ECOWAS decision under review is that, the decisions of the Supreme Court of Sierra Leone are not subject to review by any other court including those in Sierra Leone or the CCJ of the ECOWAS Community, save by itself with the inherent liberty to depart from its previous decision.
And pursuant to this supremacy of the Supreme Court of Sierra Leone, it is consistently interpreted to the extent, when any other court: be it those in the jurisdiction of Sierra Leone and or those outside of it including the CCJ, is faced with a question bordering on the national Constitution of Sierra Leone, it is only the Supreme Court of Sierra Leone that has and enjoys exclusive jurisdiction to interpret the 1991 national Constitution of Sierra Leone for the purpose of giving meaning to any question of law that is referred to it. This provisions without doubt represents a close correlation to the House of Lords Statement of Practice of 1966.
A review of the European Treaty Law will readily inform that, the European Union (hereinafter referred to as the EU), in addition, by Art 6 recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights 2000, and furthermore the EU shall accede to the European Convention on Human Rights.
Yet again, significantly, it is stated that “fundamental rights, as guaranteed by this Convention, shall constitute general principles of the Union’s law”.
With a manifest determination to uphold, respect, apply and ensure sustained protection of the Supremacy of the House of Commons (hereinafter referred to as the Westminster Parliament or the British Parliament), the United Kingdom which, prior to the Brexit, obtained a legally binding Protocol which, inter-alia, states that, ‘no court can rule that, the laws, regulations or administrative provisions, practices or action of the UK are inconsistent with the principles laid down in the charter, and moreover the charter creates no new rights enforceable in the UK, over and above those already existing in UK national law, and that the charter cannot be used by the European Court of Justice to alter UK Labour Law or laws dealing with social rights’.
This is a classic example where, in the Law of Treaties, a member state party to a treaty may either wholly acquiesced to the terms of a treaty or enter reservation and excuse herself from the application and enforcement of those term with no force of law to hold her binding under the treaty.
By not domesticating the ECOWAS Revised Treaty and the Supplementary Protocol, Sierra Leone, as Member State of Economic Community of West African States, with carefully a careful intent, stayed the domestication of the said Treaties.
And the fact that, ratification in a Dualist Legal System under which Sierra Leone International Legal System is founded cannot be found obligated its term either vertically or horizontally.
It also means that, as the CCJ lacks jurisdiction to review any decision of the Supreme Court including that which it promulgated in the Matter between the Applicant and the then Attorney- General and the sitting Vice-President, it is submitted that, for the CCJ to have promulgated a decision on the matter brought before it by the Hon.
Former Vice-President, represents a vertical and horizontal errors of law and substantive rules of procedure. This reasonable assertion is strongly supported by the following reasons:
- The CCJ lacks jurisdiction in the matter brought before it by the Applicant in that, the Respondent State Party does not recognize the Court in a point of law, and the Respondent State Party evoked this as a substantive issue which the Court should have taken notice of in its onerous judicial responsibility to the Applicant and the Applicant only, when consideration admissibility of substantive Application.
- Applying the Rules of Procedure of the CCJ as provided for under Chapter Paragraph (…..), the CCJ would have arrived at the safe conclusion that, the Applicant Case was already the subject of a determination by the Supreme Court of Sierra Leone, which, by the national Constitution of Sierra Leone (as amended) 1991, is vested with the exclusive supreme authority to interpret and give meaning to any question arising from the operation and application of the national Constitution of Sierra Leone, a Member State of the Economic Community of the West African States (ECOWS).
- By admitting the Applicant’s application and proceeded in promulgating a decision of the Court, without cause, reneged from and thereby dishonor the principle of subsidiarity in international law, which inter-alia, dictates that, the application and enforcement the African Charter on Human and People’s Rights falls primarily within the precinct of the sovereignty of the States Parties to the Charter.
- The fact that, the CCJ fails to accord due notice with correspondent weight to the principles of international law which demarcate the legal systems between Dualist and Monist system in order to ascertain the system divide in international law as it relates to the Law of Treaties, deciding that, the Respondent State Party is obligated under the Revised Treaty and the Supplementary Protocols of the ECOWS represents a flagrant dishonor of the said principles and a concomitant error of law.
- Under the Particulars of the Application, the CCJ, was well briefed that, the substantive issues pleaded thereunder, was before the Apex Court of the Land, of which the Applicant is a national, the CCJ is unequivocally precluded by the provisions under Section 105 (1), and Sections 122 (1) of the national Constitution of Sierra Leone (as amended) 1991 from hearing the application as these provisions are res Ipas loquitur.
- The Freedom of assembly, freedom of association and right to access to domestic remedies of the Applicant were protected and guaranteed by the present Government.
- The All People’s Congress (Party) followed the due process of the law in the disposal of the matter occasioning the expulsion of the Applicant from the A. P. C. (Part) as provided for undersection 35 – Registration and Conduct of Political Parties (1) and (2) of the national Constitution of Sierra Leone (as amended) which provides that,
(1) Subject to the provisions of this section, political parties may be established to participate in shaping the political will of the people, to disseminate information on political ideas, and social and economic programmes of a national character, and to sponsor candidates for Presidential, Parliamentary or Local Government elections.
(2) The internal organisation of a political party shall conform to democratic principles, and its aims, objectives, purposes and programmes shall not contravene, or be inconsistent with, any provisions of this Constitution.
With the above representations, I believe, it worth mentioning the probative human rights credentials of the Government of Sierra Leone under the competent superintendence of Dr. Ernest bai Koroma are unrivalled to any of its predecessors.
If anything, since coming to power, this Government is on record that, since coming to power the 17th September, 2007, through a free, fair transparent and credible democratic elections, it has no prisoner of conscience and or sent any of its citizenry to the gallows.
The Multilateral Regional Body which gave birth to the CCJ will attest to the fact that, President Koroma’s democratic and good governance accolade have been effective utilizes in stabilizing conflicts in other Members State of the Community, with reverence, including the Cotê d’Ivoire, Guinea Bissau and The Gambia.
As Chair of the Peace abs Security Council of the African Union, his report on the State of Peace and Security (hereinafter referred to as AU- PSC) on the Continent, together with those of his Report as the AU Co-ordinator of the Committee of Ten (hereinafter referred to as the C – 10) on the Reform of the UN Security Council under the Common African Position contained under the Ezulwini Consensus and Sirte Declaration continue to embolden his personal respect as President of a once war torn Nation- State.
This, without doubt, has catapulted the good image of Sierra Leone, an enviable status which cannot be subsumed by the insignificant aftermath the CCJ decision which has no leg to stand in the sovereign jurisdiction in Sierra Leone.
About the author
Lawyer Adikalie Foday Sumah , ESQ is Ambassador Extraordinary and Plenipotentiary, and Permanent Representative of Sierra Leone to the United Nations.