Experts Say

By Issa Francis Kamara, Esq

On October 12, 2022, the Electoral Commission announced that they would use the district block voting representation (Proportional Representation) in the next election. It immediately came under forceful and fierce attacks. Critics accuse the President and the Commissioner of playing fast and loose with the Constitution. They hurried to court to invalidate the decision. In a unanimous opinion on January 27, 2023, the Supreme Court said that the President’s directives to the Commission were constitutional. Parsing the vague constitutional text, the better view—indeed, the most persuasive argument—is that the President and the Commissioner acted constitutionally.

The hub and nub of the constitutional controversy is Section 38A(1) of the 2001 Constitution:

Where, under any law for the time being in force, a date for a general election of Members of Parliament has been appointed but constituencies have not been established in accordance with subsection (3) of section 38 for the purposes of such election, the President may, after consultation with the Electoral Commission, direct that such election shall be conducted…(emphasis added)

APC, focusing on the word established, argued that the established constituencies used in the 2018 election are still there. Furthermore, it argued that the constitutional default is to hold constituency elections, and the Established Clause was added as a wartime provision. The government argued that the establishment of constituencies should be per Section 38, which makes it an impracticability provision.

A constitutional text should not be read to render other parts of it a mere surplusage. If the words said, “but constituencies have not been established,” and stopped there, APC would have won the argument. However, Section 38(3) further says: “The boundaries of each constituency shall be such that the number of inhabitants
thereof is as nearly equal to the population quota as is reasonably practicable.”

The rest of Section 38(3) explains what is reasonably practicable to draw these district lines. If this were just a wartime provision, there would be no need to do so. The government argues that based on the 2022 census numbers, it is impracticable to have “nearly equal to the population quota” districts. Therefore, if valid, one of the triggers for Presidential directives in Section 38A(1) is amply satisfied.

Moreover, another concern is that the Electoral Commission may not be able to meet the ECOWAS Protocol on Democracy and Good Governance. Therefore, even if 38A(1) has never been used when there are existing boundaries, the plain language does not foreclose using it when the 2022 census makes it impracticable to have boundaries of nearly equal population.

One structural weakness in the Constitution is Section 124. According to Section 124, the Supreme Court has original and exclusive jurisdiction in questions of law implicating the Constitution. In this case, the Supreme Court exercised its original jurisdiction. In answering the legal question, the Supreme Court decided the factual issues that a trial court could have best decided. One factual issue is whether the census result made it impracticable to use existing constituencies. Another is whether using proportional representation would significantly or effectively limit the chances of independent candidates. The Supreme Court relied on affidavits and judicial notice in answering those questions.

By nature, appellate courts are institutionally impaired in deciding factual issues. For example, the United States Supreme Court has original jurisdiction (in a small number of cases) where it would have been particularly difficult for one party to have a fair hearing in a trial court. Even when it exercises original jurisdiction, the United States Supreme Court will appoint a “Master” to hear the factual evidence, usually conducted like a trial court.

Most constitutional issues involve an admixture of both law and fact. The factual predicate in constitutional issues is significant in answering legal questions. Therefore, most constitutional questions are first litigated in a trial court (either state or federal). A lower court judge must first decide those issues before a final decision on such a significant constitutional issue. Justice Robert Jackson, a US justice famous for his pithy and pungent lines, once said: “we are not final because we are infallible, but we are infallible only because we are final.”

Moreover, having a trial on both the law and facts would improve the quality of the Supreme Court’s decision. Trial courts help to tee up the factually relevant issues and put them in sharp focus. The Supreme Court will have the brief of the plaintiff and the defendant and the trial judge’s opinion. It would also have the appellant’s and the appellee’s brief to the Supreme Court. Instead of relying on the two briefs filed to the Court when it exercises original jurisdiction, it would have at least four briefs and one opinion by a judge when it exercises appellate jurisdiction. To improve it further, maybe other lawyers and organizations in Sierra Leone who are not a party to the case should be filing briefs to the Court (amicus curiae)–such as by linguists, historians, constitutional scholars, and civil organizations–would help to ventilate other arguments not made by the parties.

Another structural weakness in the Sierra Lone Constitution is Section 53(3), which insulates any advice by anyone to the President when the President acts according to any law. This executive privilege grant is so broad that it is almost imperial. The Supreme Court refused to inquire into the advice given to the President by the Commissioner but only examined the decision of the President based on Section 53(3) and Section 171(4). An executive privilege is the power of the President to withhold confidential communication between him and other officials. However, like all other privileges recognized in law, executive privilege is subject to cognizable exceptions, which are absent in the Sierra Leone Constitution and the Supreme Court’s opinion. Although there might not be good reasons to pierce the privilege in this case, the particular language should be amended.

The argument that it is a result-driven political decision that benefits the President’s party is not the same as saying that the President acted unconstitutionally. If the President and the Electoral Commission followed the constitutionally prescribed procedures, and where it does not disenfranchise voters, whether the choice helps the President’s party is beside the constitutional point.