IN THE COURTROOM The Supreme Court Of Sierra Leone: A National Disgrace Or the Bulwark of Our Civil Liberties? Posted by on Jun 24, 2009, 06:34

The Supreme Court of Sierra Leone is the Highest Court of the land as provided for by the 1991 Constitution and the final court of appeal from which there can be no further appeals. In layman’s terms the decision of the Supreme Court is final. The nature of the finality of the Supreme Court’s decision is one that such decisions must not only be accurate on the legal issues raised but must be seen by members of the public who are subject to the constitution and by implication to the Supreme Court as correct and of unquestionable moral character. 

Such decisions are of a precedent setting nature and whilst such decisions ought to be open to criticism on grounds of academia or legal jurisprudence, they ought not to be of such a character where such criticisms as are leveled are done as a result of the judgment being considered by right thinking members of the public as a national disgrace or where the judgement raises justifiable public outcry or are seen as members of the public as lacking in basic legal character or indeed are so severely discredited for other reasons that public outcry and dissatisfaction is justified. Such discredited judgements ought to be treated with disdain and condemned out-rightly for the good of the country.

Quite recently members of the public would recall the words of the Prince of Wales and heir to the British throne, Prince Charles, who in a speech in Sierra Leone in 2007 told his audience that Sierra Leone has a “troubled Judiciary”.  This speech was delivered during the stewardship of the former Chief Justice, Dr. Ade Renner-Thomas. Sadly today those words ring true and continue to ring true. The Judiciary is more troubled than it was under Dr. Renner-Thomas. Never in the history of the Sierra Leone Judiciary has an institution been under such heavy media and public scrutiny all for the wrong reasons.

A total of four judicial personnel including Judges and Magistrates have been whisked off to the Anti Corruption Commission to answer charges of corruption, whilst other senior judicial personnel are being “investigated” by the ACC for quite some time without any conclusions in sight.  Judicial vehicles have been sold out to family members and friends without any lawful authority by senior members of the Judiciary and the ACC for some reason seems powerless to investigate such blatant corrupt activities.   The Judiciary meanwhile continues to deteriorate.  Former Chief Justices, the likes of the late Beccles Davies (CJ), Okoro Cole (CJ), Livesly Luke (CJ) who have walked the marble halls of fame and integrity in judicial life would be turning in their graves at the current Judicial Set up, that is made up of dictatorial decisions, bad administration and most worrying of all BAD JUDGEMENTS. 

Also the likes Bankole Thompson of the special want for Sierra Leone would find it difficult to comprehend the role and behaviour of some of his colleagues in dispensing justice.  The Highest Court of any country attracts only the best legal minds and obviously the most experience. In addition, they attract {or ought to attract} only the most fearless that are prepared to abide by their oaths of office “to defend and uphold the constitution and to do right to all manner of persons”, regardless of whether Government interests are at stake or not. Let me digress a little and look at the current set up in the House of Lords in the UK, which is the UK’s Highest Court.

The opening statement by both the Lord Chancellor and the Lord Chief Justice is as follows: “The Lord Chancellor and the Lord Chief Justice believe that the public deserves and expects the highest standards of conduct from those who hold Judicial Office”. What does our Chief Justice and Attorney General and Minister of Justice believe? We don’t really know what they are up to.  In the UK House of Lords, there are eminent personalities like, The Right Hon. Lord Philips of Worth Matravers, a former Chief Justice and Master of the Rolls, The Right Hon. Lord Hope of Craighead, The Right Hon. Lord Saville of Newdigate, The Right Hon. The Baroness Hale of Richmond, The Right Hon. The Lord Newberger of Abbotsbury, The Right Hon. The Lord Walker of Gestingthorpe, The Right Hon. The Lord Brown of Eaton-Under-Heywood, The Right Hon. The Lord Collins of Mapesbury to name a few. These are people whose CV speaks volumes for their professionalism and legal knowledge.  In Sierra Leone who do we have? Well we all know them and where they come from.  

In Sierra Leone our own Highest Court attracts exactly the opposite. Our judges are feeble minded and lack the independence of mind necessary to earn them the right to be labeled as Judges of the Highest Court in Sierra Leone who have walked the marble halls of fame and integrity, with the exception of very few like Justices Browne Marke, Eku Roberts, Salamatu Koroma, Abel Stronge and a handful of few. Only two weeks back, the same Supreme Court was accused of acting illegally by failing to deliver a judgement on a constitutional case within the three month period required by law. 

As a result of that failure, the affected party.  The Sierra Leone Association of Journalists, (SLAJ) decided to impose a news blackout on the Judiciary for a period of one week.  What is the foreign-born Ghanaian consultant Master and Registrar doing about these problems faced by the Judiciary?  How much is she being paid for all this mess? Is there no competent Sierra Leonean capable of filling this position? What about the recognized Master and Registrar of the High Court? These are some of the questions that need to be answered as they clearly raise more issues than can instantly be recognized. This leads me to the piece of argument which is the bad decisions the Supreme Court of this country have been habitually dishing out to the citizenry whenever Government interests are at stake.

The Supreme Court has proved quite incapable over the years of giving a judgement against the government in support of the citizenry. One cannot recall a single judgement since the early 1980s when the Supreme Court of this country has ruled against the government of the day. In recent times, the Biriwa Limba Chiefdom case is a clear example where despite the fact that the former Vice President, Solomon Berewa had given a legal opinion whilst serving as Attorney General which declared Chieftaincy elections as public elections to be conducted by NEC, the Former Chief Justice Ade Renner Thomas brazenly held that such elections were not public elections, and his decision was equally slavishly and brazenly followed by other judges in the Supreme Court without question.

The Hinga Norman case was another example where despite the fact that Solomon Berewa was ineligible to run for president, the same Supreme Court claimed those who lodged the legal challenge had no “locus standi” on such an important issue of national public importance.  This was a convenient “cop out” to avoid ruling on the issue.  Such conduct was clearly reprehensible and the actions of the APC government in instituting a commission to look into the Biriwa Limba Chiefdom case and the subsequent passing into law of the Chieftaincy Act 2009 have served to expose the decision of the Supreme Court in that case for what it truly was.

Absolute Rubbish!  The appointment of judges without going through parliament is yet another example of an arrogant and conceited Supreme Court. Recently, again the Supreme Court has deliberately broken the law in failing to give a judgement within the constitutional three month period, without any explanation. This is breathtakingly arrogant on the part of exalted judges who have failed to live up to their constitutional duty. When the judiciary fails this country to whom do we complain?

With all these criticisms leveled at the Supreme Court they behaved in exactly the same way in the matter of The State v Adrian Fisher, just one day after they had been criticized for failing to deliver a verdict within the constitutional time frame.  They gave a judgement that no one could understand and one which again failed to address the issue before them. This writer must point out that he/she is not a Fisher sympathizer. The issues raised by this judgement are bigger than Fisher and no right thinking person should assume that this piece is in defence of him. Rather it is an exposé of the Judiciary at its very worst and it is in the public interest that these issues are discussed publicly.

FACTS

Fisher was a former Magistrate of the Bo Magistrate Court, who had been accused of misappropriating public funds and soliciting and receiving an advantage by the Anti Corruption Commission, ACC. After an extraordinary long “investigation” the matter was charged to court. Readers would recall that during the 2007, Presidential elections campaign, President Koroma claimed that his first task would be zero tolerance on corruption and as part of that zero tolerance policy, he would ensure that the ACC was independent from the Attorney General’s Office. This was as a result of criticisms leveled against the previous government of interference by the Attorney General into matters being prosecuted by the ACC.

Prosecutions were being stalled by the Attorney General’s Office. Upon assumption to office, the President ensured that the ACC had a new Act passed Parliament, the Anti Corruption Act 2008 which was passed into law in August 2008. However the new ACC Act conflicted with specific provisions of the 1991 constitution of Sierra Leone which made provision for the following:

 s64{3} “All offences prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Attorney General and Minister of Justice, or some other person(s) authorized by him in accordance with any law governing the same”.

s66{4} “ Subject to subsection {3} of section 64, the Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

 {a} to institute and undertake criminal proceedings against any person before any court in respect of any offences against the laws of Sierra Leone; It clearly could be seen that the independent ACC under the new Act could not supersede the provisions of the constitution which granted the sole powers of prosecution to the Attorney General and the Director of Public Prosecutions only. The same constitution provides: s171{15} “ This constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, be void and of no effect”.  In order to remedy that problem, Parliament went about  amending ss64{3} and 66{4} of the 1991 Constitution, by enacting a specific law to amend the Constitution which led to the enactment of  The Constitution of Sierra Leone (Amendment) Act, 2008 in the following manner.

1.      The Constitution of Sierra Leone 1991 is amended by the repeal and replacement of  subsection (3) of section 64 thereof by the following subsection:-

(3)     All offences prosecuted in the name of the Republic of Sierra Leone except offences involving corruption under the Anti Corruption Act 2000, shall be at the suit of the Attorney General and Minister of Justice or some other person(s) authorized by him in accordance with any law governing the same”.

2.    The Constitution of Sierra Leone, 1991 is amended by the repeal and replacement of paragraph (a) of subsection (4) of section 66 by the following paragraph:-

3.   to institute and undertake criminal proceedings against any person(s) before any court in respect of any offence against the laws of Sierra Leone except any offences involving corruption under the Anti Corruption Act 2000. 

It is clear that Parliament carried out these amendments to the constitution to facilitate the independence of the ACC to prosecute its own matters independently of the Attorney General and Minister of Justice.  There was however one flaw in the new ACC Act which was the fact that it failed to make provision for the mode of trial in corruption cases. That being the situation, the ACC resorted to the Attorney General to make the application for the mode of trial to be by Judge alone instead of by Judge and Jury, which the Attorney General attempted to do, under an old existing law, s144{2} of the Criminal Procedure Act  No 32 of 1965.

There was an objection from Fisher’s lawyers {and quite rightly so} on the basis that the ACC was now independent from the Attorney General and he could not involve himself into a corruption trial by virtue of the Amendment to the Constitution in the 2008 Constitutional Amendment Act, which had removed him from doing so. The Judge, Mary Sey J realized the significance of the objection raised by JB Jenkins –Johnston Esq, she decided that the matter ought to be forwarded to the Supreme Court for an interpretation. This was what she said: “Having considered all the above objections, I am of the view that the objection raised is a very contentious constitutional matter and what ever decision I may arrive at may ultimately be appealed against. To my mind the objections raised by the defence borders on interpretations and this must first be determined by the Highest Court of the land”.

 She then sent the following two questions to the Supreme Court for determination:

1.      Should the Constitution of Sierra Leone (Amendment) Act, 2008 be read as having removed the Attorney General and Minister of Justice and the Director of Public Prosecutions from prosecuting offences under the Anti Corruption Act 2000?

2.    IF SO, what effect would that have on the power of the Attorney General and Minister of Justice to make application for trial by Judge alone instead of by Judge and Jury pursuant to s144 {2} of the Criminal Procedure Act no 32 of 1965 as repealed and replaced by section 3 of the Criminal Procedure Act {Amendment} Act No 11 of 1981?

What was the answer the Supreme Court gave to these two questions?

1.      Question 1 the answer is that it is not a Constitutional issue.

2.    Question 2 the Attorney General and Minister of Justice has power to make the application and need not do so personally in court.

What is so bad about this judgement was that all the judges with all their combined experience signed such a judgement with the simple statement, I AGREE.  This is how low the Supreme Court has sunk to give a judgement of this dimension, which woefully fails to address the issue. There was not a single dissenting judgement from any of the other judges indicating what they thought of the issues raised as is customary in courts of this nature in other countries where each judge is anxious to show his expertise. Rather, they followed the Chief Justice in giving a very bad judgement ignoring the fact that their own personal integrity was at stake. This judgement raises a number of issues.

1.      Looking at the answer given to question 1 by the Supreme Court, was that a proper answer to the question?  Was the question even addressed?

2.    How on earth can this issue not be a constitutional issue when it touches and concerns the interpretation of the constitution?

3.    Did the Supreme Court not understand what it was required to do?

4.    Looking at the questions posed by the Judge, how can the Supreme Court answer the 2^nd question when it had failed to answer the first question? Surely, if the matter was not for them to determine {as it was not a constitutional issue} then they ought not to have answered the second question in any event. The judgement of the court clearly shows that in a shabby manner the court was only interested in answering the second question and lacked the backbone to answer the first question.

CONCLUSION

Either way this judgement by the Supreme Court makes this country a laughing stock to the outside world and in particular the West African sub-region. If modern day slavery were still to exist, then it is in the Supreme Court of this country. Such a judgement exposes us to ridicule following our usual claim to have the oldest University in West Africa.  The Supreme Court is referred to judgements of the Supreme Court of Nigeria and Ghana that would cause them to hang their heads in shame. Quite recently, the Supreme Court in Nigeria refused to sanction a third term for former President Obasanjo when he attempted to twist the Constitution in his favour. That is the way a Supreme Court should behave.

Had it been in Sierra Leone, the Supreme Court would have given its blessing to the illegality if ex-president Kabbah wanted a third term. The court is expected to uphold the Constitution not to answer to his master’s voice.  This judgement is all the more reason why the government has failed to get rid of some of these boring old judges who are no longer useful to the general populace in terms of decisions upholding the constitution, but by all accounts are useful to the Government of the day as it enables them to benefit from such tasteless decisions at the expense of the masses.  The people of Sierra Leone have a right to expect the Supreme Court to uphold the constitution of this land without fear or favour or without deference to elected governments.