Sierra
Leone's Judges, Mainly Krio, Continue a Long, Dishonourable Tradition
The
Sierra Leone Supreme Court on September 9 handed down its
long-anticipated
ruling in the case brought by former Vice-President Sam Sumana over his
sacking from his position by the President, Ernest Koroma. Sumana and
his lawyers had argued that under the Sierra Leone Constitution the
President did not have the power to sack his Vice. The five
presiding judges of the Supreme Court ruled unanimously that under the
circumstances then existing the President did have the constitutional
authority to
sack the Vice-President.
The ruling aroused surprise and disbelief in some quarters. Sumana's
case had appeared strong. Prior to the dramatic public announcement of
his
removal by President Koroma on March 17,
all public
speculation had centered on the possibility of his removal by the
lengthy process of impeachment, which is the method specifically
outlined in the Constitution for removal of the Vice-President and
which requires among other things the approval of a two thirds majority
in Parliament. There
is no precedent for sacking of the Vice in this republic. When former
President Tejan Kabbah fell out with his Vice in the previous regime,
he waited until the next national elections to quietly remove him as
candidate of the then ruling party. The Sierra Leone Constitution is
quite explicit in laying out the methods by which the Vice-President
can leave office, and sacking by the President is not one of those
methods. Nevertheless, by a contorted argument, the five learned
justices unanimously found justification for President Koroma's
decision.
This is by no means the first time Sierra Leone judges have issued
controversial rulings in favour of the political leadership. Going all
the way back to shortly after Independence, Sierra Leone leaders have
undermined the supposed independence of the judiciary and used the
institution to achieve political ends. The Sierra Leone judiciary for
its part,
right
from these early days, has shown spineless character and overwhelming
lack of principle. Thoroughly emasculated, the judiciary has been
unable to offer
even the mildest of protests as one political shove after another has
pushed it hither and thither over the decades.
In 1971, when APC President Siaka Stevens made Sierra Leone a republic,
the transition mechanism adopted was to make then Chief Justice, C.O.E.
Cole first (and only) ceremonial President of the new republic. Within
barely a day of this appointment the top judge was removed from his new
appointment and asked to swear in Siaka Stevens as executive
President. The head of the judiciary was thus shown to be, at the very
least, a willing assistant of the executive in matters of huge
constitutional significance. Would any prudent man have bothered to
challenge the process?
In elections after 1971 but before the infamous "one-party state" was
introduced, electoral malpractices were the order of the
day as the APC fought to submerge its archrival, the SLPP. According to
the TRC report (Volume 3, Chapter 2, paragraph 25), "Court cases
involving elections under the APC were decided in favour of the APC by
a compliant judiciciary. Violent by-elections conducted..." Candidate
nominations were physically prevented resulting in numerous
constituencies where the APC was the unopposed candidate. Ballot boxes
were stuffed or their contents miscounted. APC election candidates in
these days invariably won
with 90+% of votes cast, and votes cast often surpassed registered
voters. This was all common knowledge in Sierra Leone at the time, and
yet, in all the election
petitions that went before the Sierra Leone courts, learned judges
found little
wrong with the conduct of the various elections.
As the country was forced into a one-party state in 1978, the Supreme
Court
was unable to find any fault with the new state of
affairs and would doubtless have continued to pronounce learned
judgments on one-party laws had
not political pressures forced a return to multi-party politics in 1991.
In 1992, a military coup brought the NPRC to State House, and Chief
Justice S.M.F Kutubu obediently swore in Captain Valentine Strasser,
the new
leader who had just trampled all over the Constitution. The NPRC,
which went on to trample all over the laws of Sierra Leone, then went
ahead to set up three commissions of enquiry (Marcus-Jones, Lytton
Nylander, Beccles-Davies) at which the learned senior judges selected
presided, as far as we know without qualms, for many months. Again, the
return to
democracy, in 1996, was not achieved through or with the assistance
of some landmark court ruling but through courageous political action
by
civil society.
In 1997, another military coup
brought the soldiers
back to State House, this time the AFRC. Chief Justice Samuel
Beccles-Davies, by now accustomed to serving military masters, swore in
rebel leader Johnny Paul Koroma without public complaint or comment,
then or thereafter. In fairness, Johnny Paul's rebels included butchers
who would have gladly eliminated Beccles-Davies if he had opposed them.
When democracy was eventually restored (again partly through the
efforts of a courageous civil society) then President Tejan Kabbah
wasted little time in sending Beccles-Davies on leave to retirement.
The point has been well made (Retirement,
Sacking and the Appointment of a New Chief Justice) that there is
no provision in the
Sierra Leone Constitution for a President to summarily send a Chief
Justice, however errant, on leave to retirement, especially when he/she
has not reached the official retirement age, and that this seriously
compromises the independence of the judiciary. Beccles-Davies, even if
he had decided not to resist the wishes of the President, could later
have made this point in a quiet, calm public forum so as to bolster the
defence of one of the fundamental tenets of democracy in Sierra Leone.
Until his death, however, whatever his private views, Beccles-Davies
remained silent in public on the matter.
A few years later, another Chief Justice, this time Ade
Renner-Thomas, was again sent on leave to retirement by the President,
this time Ernest Bai Koroma, well before reaching the official
retirement age. Again, even if he had decided not to create a
Constitutional crisis by resisting the President's wish, Renner-Thomas
could have later, in a public forum, in order to defend the crucial
principle of the independence of the judiciary, discussed the
irregularity of the manner in which he was removed. He has not yet done
so.
In the two most recent national elections, won by the APC, a
pattern has been set of hasty swearing-ins, bizarrely similar to the
manner in which the NPRC and AFRC sought to legitimize their authority
after performing the most illegitimate of acts. In 2007, amidst a
fiercely disputed election outcome following cancellation of some
election results, President Ernest Bai Koroma was sworn into office
immediately after the final results were announced by the Chief
Electoral Officer. Interestingly, then Chief Justice Ade Renner-Thomas,
looking ill-at-ease, appeared at the ceremony in a suit rather than
robes and this has been rumoured to be one of the causes behind his
later sacking. In 2012, President Ernest Bai Koroma was again hastily
sworn in, by then Chief Justice Umu
Hawa Tejan-Jalloh, on the day of the announcement of the final results.
Using the Chief Justice to immediately legitimize
the announcement of presidential election results compromises the
independence of the judiciary and compromises the prospects of any
appeal of those announced results to the Supreme Court, such appeal
being provided for in the
Sierra Leone Constitution. However, none of our learned judges has
seen fit to make
this point in a public forum in defence of their institution and the
country's democracy.
Now we have this latest, shocking decision by the Sierra Leone Supreme
Court, in
which not a single one of the five justices, Thomas, Browne-Marke,
Solomon, Roberts and Hamilton, found any fault with a Presidential
decision that so many
others, including one of the original framers of the Constitution, have
questioned. Did they all genuinely see something that so many of us
missed, were they moved by their conscience, or were their opinions conditioned by decades of Sierra Leone
judicial subservience to the executive? In all these decades no serving
Sierra Leonean judge has ever come
out publicly to discuss, if even in the mildest of
terms, the independence of the Sierra
Leonean judiciary.
The ethnic origin of so many of the judges involved over the decades
cannot escape notice. Perhaps more than any other tribe, Krios are
conscious of the deterioration of Sierra Leone; they have after all
been witness to Sierra Leone in its heyday. It is sobering to
note that at every misstep along this 54-year-long slide, Krio judges
have been unable to find fault with the politicians; unable to offer
that crucial dissenting opinion.