You cannot build the foundations of a State without the rule of law

Abdulai Mansaray: Sierra Leone Telegraph: 11 September 2021:

Democracy is not a new concept to Africa and Africans., but judging by the volumes of airtime, reams of paper and number of clicks on the subject recently, you’d be forgiven to think that it’s a new topic on the Discovery channel. Until its colonial masters brought their revised standard edition, it is plausible for many to assume that Africa and Africans had never encountered democracy.

Let us attempt a click on the reset button. I am not talking about as far back as Olduvai but the genre of great African empires like Songhai, Mali, Ghana and Mwenemutapa, to name but a few.

Many scholars believe that the great African empires had their own form of democracy. Let us take Sundiata Keita of Mali for example. The king or emperor had absolute power but required many bureaucrats to oversee the massive empire.   The Mansa had territorial governors to oversee various regions of the empire. These governors in turn had tribal chiefs and clan leaders who were elected by the people at local level. Technically, it could pass for democratic autocracy; as power rested with one man, ably assisted by selected courts, just like the Roman Empire then.

I was taught in my civics class in primary school that a government is divided into three branches, namely the legislative, the executive and the judiciary. The legislative makes the laws, the executive carries out the laws, and the judiciary evaluates the laws. These organs of government are summarily guided by the constitution of the land.

But for these organs to perform effectively, the need to be SEPARATED from one another. This is to prevent to prevent the abuse of power and safeguard freedom for all in a democracy. While the separation of powers allows each organ to share its power, it also ensures that each of them can check the others. By so doing, no one institution can become so powerful in a democracy as to destroy the whole system. It therefore goes without saying that these organs can paradoxically coexist independently.

Let’s visualise a bit. Democracy is the cooking pot that sits on the legislative, executive and judiciary as the three fire stones. That pot cover is the constitution. The three organs form the main ingredients of the recipe of democracy.  When you have a good head chef, who ensures that all the three ingredients are separately but proportionally added in the cooking pot, the food becomes palatable to every taste bud.

In Africa, we shout to the rooftops about democracy but struggle to see democracy at work and wonder why. When the recipe is ignored, the stage for democracy to work will be declared dead on arrival.

If truth be told, most of our ideas about democracy do not go past free and fair elections. We use free, fair and peaceful elections as the litmus test for democracy in Africa. This is because we see every government of the people, for the people and by the people as the finite definition of democracy.  But in fact, it goes beyond the ballot box.

The foundations of democracy are built on the sacred rudimentary functions of the “three fire stones”. Creating an environment where these three organs can operate separately usually provides a solid foundation on which democracies can thrive.

So, can we honestly say that this is what obtains in our professed democracies in Africa?  Are these organs separate, independent and impartial? With the issue of coup d’états as the flavour of the month, we have with our various experiences tried to diagnose the causes for the recent spate of coup d’états on the continent.

Many seem to agree that they caused by the  insatiable greed of our leaders to extend their grip on power, courtesy of the “Third Term Syndrome”. Despite our raison d’etre, we have unconsciously blindsided ourselves from looking at what goes on in the cooking pot.  The “Third term Syndrome” is more often the coup de grace.

“The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defence are the constitutional rights secure.” (Albert Einstein). It is an abuse of power each time a leader fidgets the constitution for their own benefit.

How do you expect the legislative(parliament) to oppose the leader when their party is in the majority, and when “the majority carries the vote?”.  Will the executive which includes the police, military etc refuse to implement the law when they owe their appointment to the President? Will the judiciary, which is expected to adjudicate and decide independently and impartially where disputes arise do so, when their appointments are subject to the approval of the head of state?

When Alpha Conde fidgeted the constitution for his third term, his Prime Minister then, Kassory Fofana said “this is the starting point for a new, bright and promising future for Guinea and Guineans. We are proud to be vectors of this new hope for our country and our people”. When former President Ernest Koroma summarily sacked his “democratically” elected Vice President, the Judiciary became his cheer leader.

Just like the APC, most court cases involving the sitting SLPP government goes in their favour. There are so many examples across the continent, where the public perception is that the judiciary is compromised and made to do the government’s bidding. The requirement for their impartiality and independence is usually much to be desired. No one would like to bite the finger that feeds them.

The judiciary needs public trust, for the rule of law forms the bedrock of democracies. When judges make decisions based on the political winds that are blowing; for fear of retribution the safeguards of our liberty under the constitution fail. The need for their impartiality cannot be overemphasised. That is why in most democratically minded countries, in order to protect their ability to be independent and impartial, judges cannot be deposed or assigned to other positions against their will.

So, it is plausible to assume that it is the “third term syndrome” that has been the midwife of the recent coups. Can we expect stable democracies if we don’t adhere to the very building blocks that provide the foundations on which democracies are built?

The deterioration of governments mostly begins with the decay of principles. Are coup d’états the result or cause of fragile democracies? Are they symptomatic of the absence of the rule of law?

But until we respect and adhere to the rule of law in democracy, until we bring the concept of democracy from the back of beyond free, fair and peaceful elections, and until we keep the three organs (three fire stones) of democratic governments, our ideas and practice of democracy will remain a fleeting illusion to be pursued…………but never attained. And everywhere is …….

Don’t steal. Governments hate competition. Don’t forget to close the door when you leave the room. Get your Marklate. Marklate saves lives.

1 Comment

  1. Recently the Biafran separatist leader Nnamdi Kanu, sues the federal government of Nigeria under the leadership of president Buhari, to tune of five billion nira , and demanded an apology for what his lawyers called an infringement of his fundamental human rights. Given the way our justice system works, that would have been unthinkable for a Sierra leonean that thinks they have been hard done by the state to sue president Bio’s government, what ever the rights, or wrongs of the case . And that is where we want to be. For ordinary citizens to take government, or commercial companies, or their fellow citizens to court to get a redress with the knowledge the case will be heard with out fear or favour .Right now we are long way off from that utopia world . And for all of Nigeria’ problems, the one institutions that Nigerian citizens look up to, to defend their rights is the judiciary. Is not 100% guaranteed,is still working in progress, but better than the way our justice system is delivered to our people in Sierra leone.

    The functions of the three arms of government, the executive, legislature and most importantly of all the judiciary should be sperate and independent of each other. And the one thing that underpin it, is the respect of the rule of law. Which is define as “a durable system of laws, institutions, norms and community commitment to deliver accountability” And it applies to governments and private individuals. Unfortunately for us, over the years, the blend of traditional and modern law, have allowed the head of the executive branch of government,the (president) to amass powers beyond the powers given to him by our constitution. He had cast a massive shadow over the legislature, and the judiciary rendering them ineffective. The former has unwittingly becomes a rubber stamp parliament .It won’t look out of place in North Korea, or Communist China. The 27th April 2018, after the Sierra Leone police forcibly removed ten APC elected members at the state opening of Parliament, was a case in point .

    The only way that action could have been reverse, if we had an independent judiciary to look in to the complaints lodge by ejected APC members of Parliament and rule accordingly. The Sierra leone police which is part of our justice system have played their role. Further up the ladder where they get their instructions from, the judiciary’s arms are tied behind their backs by the executive branch, Bio himself, there is nothing they could have done. Effectively, Bio have used the police to sabotage the legislature, the elected chamber that is meant to represent the voice of the masses and the judiciary arm of government that interpret our laws. Which brings me to the respect of our traditional rulers. Bio thinks he is a paramount Chief rather the president of Sierra Leone and he deserves the respect given to traditional rulers . What ever they say goes. I wonder how much of elected members knows what is meant in practice by the rule of law?

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