Joseph Fitzgerald Kamara: Sierra Leone Telegraph: 9 July 2019:
The leitmotiv of making Constitutions belies in the Rule of Law. This concept, having been refined in its modern formulation by Albert Venn Dicey, is at the heart of law and order in all societies that strive for democracy and respect for human rights.
Most often than not, it is those who are placed in the highest echelons of political power, that find themselves at loggerheads with the Rule of Law. Hence the need to set up rules and regulations to guide, direct and also rein in errant leaders.
Constitution Making And The Need For Reform
Constitution drafting includes both the process for making a new constitution or amending an existing one. It is also about processing substantive decisions on the design, form and content of the new or amended constitution.
The Draft APC Constitution (2019) is a new Constitution, as it seeks to make changes that overhaul the entire 1995 Constitution.
As a Political Party, the Constitution typically embodies purposes and principles – particularly those that concern the rights, duties, freedoms, ideals that the membership believe that their Party should uphold linearly, with limitations on the powers of the leadership.
This seminal review is meant to disseminate knowledge of the controversial provisions of the Draft 2019 APC Constitution, and thereby trigger public discourse to engender respect for it, not only among its members, but also to buy-in grassroot ownership.
This begins by ensuring that priorities are determined by a bottom-up approach.
It is crucial that time, space and processes exist to promote dialogue that can lead to a consensus-based Constitution.
If ordinary actors participate in defining the problem, then they are more likely to take ownership of the solutions, thereby engendering peace within the APC. In other words, if people feel a sense of ownership of their Constitution, they are more likely to protect it and exercise their duties under the new constitutional order. Through such healthy conversations, party stability is fostered and assured.
It is therefore desirable that a Constitution becomes accessible to common citizens and does not just remain the preserve of lawyers and scholars. A Constitution – like peace – cannot be imposed.
The APC Constitution and the Vision for Democracy
For the APC Constitution to be credible and durable, the voices of its membership from across society must be heard and incorporated in its creation. After all, a constitution should be a document that unites rather than divides. Bringing people together, building trust, and developing shared ownership should be the target. So, the opinions and voices of members matter.
As we seek to express our opinions by way of review, credit must be given to the Drafters for the hard work, commitment and valuable time expended on the project. It was time well spent. As Members, we are grateful.
To start with, holistically the Draft Constitution clearly describes the fundamental principles and basic framework of the Party, functionaries, membership requirements, types of membership, disciplinary procedures, and elections/appointments to offices in more often than not clear and concise language.
This review will particularly focus on the process of choosing a Presidential Candidate and the awarding of party symbols to Candidates for Members of Parliament and Local Councils.
Electing the Presidential Candidate
Starting with Article 17: Powers And Functions Of The National Delegates Conference (NDC); in Sub-Article (vi), the Constitution grants powers to the National Delegates Conference (NDC) “to elect the Flag Bearer who shall become the Presidential Candidate at the Presidential elections”.
It is noteworthy to point out that the above provision contradicts the provisions in Article 60(a) & (b) which specifically deals with the election of a ‘Presidential Candidate’. It states:
(a). “The Party shall elect its candidate for Presidential Election at the National Delegates Conference either by the delegates present and voting at the National Delegates Conference or after a closed primaries process.”
(b).”The Elections Management Committee shall upon consultation with and approval of the National Advisory Committee decide what process of election to be used”.
Interestingly, while Art.17 as cited above gives the NDC the singular and exclusive power to ‘elect’ a Presidential Candidate, Art.60(a) & (b) on the other hand, wittingly introduces the element of “closed primaries” as an alternative to the exclusive election by the NDC. What could this mean for an interpretation, should there emerge a conflict between the two processes?
Tellingly also, there is no definition to interpret the meaning of “closed primaries” in the entire Constitution. The question in the minds of many is whether the convolution is deliberate or unintentional. I reserve my view on this point.
In the construction and interpretation of statutes, the law applies the principle and maxim commonly referred to as “lex specialis derogat legi generali”. This doctrine states that a law governing a specific subject matter overrides a law that only governs general matters. In this instance, when a general provision clashes with another, which is specific and particular, the law upholds the specific and particular provision.
And so, Art.60(a) & (b), which deals with the specifics of Electing a Presidential Candidate through “closed primaries” will override the application of Art.17 dealing more generally with the exercise of powers of the NDC. Hence the need for a reconsideration of that provision, to meet the public call for greater transparency and participation by voting for the Presidential Candidate at a National Delegates Conference.
Notably also, the Draft Constitution is woefully silent on what constitutes a “closed primaries process”. The Elections Management Committee is to exercise its discretion in defining what could be a ‘closed primaries process’. This wide latitude of an exercise of a discretionary power has the potential to corrupt absolutely and undermine the will of the people.
To enhance transparency and accountability of power, the Party membership must know and understand all the processes involved in the choice of leaders. The Constitution must therefore clearly and simply spell out those processes.
Furthermore, it must be noted, that the use of the connective “or” in the sentence:
“the Party shall elect its candidate for Presidential Election at the National Delegates Conference either by the delegates present and voting at the National Delegates Conference or after a closed primaries process” means that there is provision for alternatives. That is to say, a Presidential Candidate can either be: (a) elected directly by the NDC on the one hand; or (b) by closed primaries as prescribed by the Elections Management Committee. It is either (a) or (b). Definitely not both.
Now, how can we rise above the challenges posited above?
One can proffer that the Secretariat must publish the List of all Candidates that have applied and meet the criteria for Presidential Candidate two-years to the due date for a Presidential election. The Constituency Convention must conduct Presidential primary elections in the Constituency, to choose at least FIVE of those listed Candidates.
The District Convention must likewise conduct Presidential Primaries in respect of the FIVE Candidates after the Constituency elections, to choose three out of that number.
Similarly also, the Regional Convention must also conduct Presidential Primaries in respect of the remaining THREE Candidates after the District Presidential elections, to choose TWO out of the THREE. Thereafter, NAC, will present the two candidates at the National Delegates Conference, which will make the final choice of the Presidential Candidate. The diagram below explains the suggested process in simple terms:
Nomination for Members of Parliament/Local Council Candidates
Article 69(b) & (c) of the Draft Constitution provides that:
b) “at every General and/or Local Council Elections the Elections Management Committee, shall, in consultation and with the National Advisory Committee, decide which method is in the best interest of the Party, at that time, to be used for the nomination of candidates, such methods to be limited to a multitier election and/or multitier Consultation.”
c) “In the case where the decision is to use a multitier election process, the votes from the constituency shall constitute at least forty percent of the final grading score.”
Quite astonishing is the element of a multitier ‘Consultation’ as an alternative method to awarding party symbols to Parliamentary and Local Council candidates. As it may be recalled, consultation is defined in the interpretation section of the Draft Constitution as;
“a process of awarding Party symbols to parliamentary and local council candidates shall involve multitier discussions and negotiations with relevant stakeholders at the constituency, district and regional levels to get their input, advice or opinion in order to improve transparency and involvement in the decision-making process”.
The danger of ‘consultation’ as a method of awarding parliamentary/local council symbols is the opportunity of abuse by the few, to impose their will on the majority of the Membership.
The fine language of ‘multitier’ is skeptical and hides the real intention of holding the process to ransom.
To hoodwink the will of ordinary members in slipshodness is the greatest disservice to the cohesiveness of the APC and ultimate success at the next general elections.
To surreptitiously bypass the will of the people under the guise of ‘consultation’, must be a thing of the past, and cannot be accepted in today’s democratic dispensation.
Therefore, the making of a New APC Constitution, is all about the choice to choose our leaders. It is a Right!
About the author
Joseph Fitzgerald Kamara, is currently a Legal Practitioner, Chairman/Head of Chambers of JFK & Partners; Attorney-General & Minister of Justice of the Republic of Sierra Leone (2016-2018); Commissioner of the Anti-Corruption Commission (2010-2016); Deputy Prosecutor United Nations Special Court for Sierra Leone (2008-2010).