By Amin Kef Sesay
In an Advisory Opinion expressed by Rashid Dumbuya Esq, the Executive Director of LEGAL LINK and former Commissioner for Human Rights in Sierra Leone dated 3rd May, 2022, he said it could be recalled that on Thursday 28th April 2022, Justice Adrian Fisher delivered the final Judgment in the landmark case between Alfred Peter Conteh ( Plaintiff) and former President Dr. Ernest Bai Koroma, the All People’s Congress (APC) party, the Secretary General, Osman Foday Yansaneh and the PPRC ( Defendants).
He pointed out that amongst other things, the learned Judge dissolved the current APC National Executive, ordered for an Interim Transitional Governing Committee to be set up and imposed a perpetual injunction against the current National Executive, barring them from holding themselves out as Executive members of the APC party forthwith.
Lawyer Rashid pointed out that the All People’s Congress National Secretary General, Ambassador Osman Foday Yansaneh was also ordered to vacate office within 14 Days and to further provide handover notes to the Chairman of the Interim Transitional Governing Committee (ITGC) that would be set up.
He furthered that without any doubt, the judgment of Justice Fisher has sparked hues and cries as well as hot debates in many parts of the country and also on many social media platforms with some agreeing to the judgment while others questioning the ratio decidendi ( reason for deciding) in the entire case.
The rights activist said as one of the leading Civil Society Organizations that advocates for constitutionality, the rule of law, democratic good governance, justice and fairness in Sierra Leone, the legal interns of LEGAL LINK have taken time out to do a thorough analysis of the judgment delivered by Justice Adrian Fisher in that case bringing out the “highs” and “lows” in a bid to not only applaud best practices but also hold the Judiciary to account where applicable.
He said but before delving into the crux of their analysis, it is vital to emphasize that this academic exercise and critique is being done in good faith without any ill-will, malice or unrelated considerations of any kind.
The learned lawyer maintained that as a matter of fact, there are a plethora of judgments that LEGAL LINK has similarly critiqued in time past namely such as the Dual Citizenship case brought by Yumkella at the Supreme Court, the case of Augustine Sorie Sengbeh Marrah Vs the Inspector General of Police recently decided by the Supreme Court and the High Court Judgments against 10 APC parliamentarians amongst others.
“The Alfred Peter Conteh vs APC case is therefore no exception and must be treated as such,” he established a premise.
He said also that it is worthy to mention that this piece does not set out to inquire as to whether Justice Adrian Fisher was qualified, fit and proper to have presided over the case as a Judge but rather, the piece limits itself to analyzing the highs and lows of the judgement of Justice Adrian Fisher and his handling of the entire case till its logical conclusion.
The Executive Director said firstly, it must be applauded that the Judge’s mentioning and interpretation of the preamble of APC’s 1995 constitution in arriving at his decision was apt and revolutionary maintaining that no doubt, the preamble of any constitution establishes the history, objective, purpose and spirit of the constitution.
He said it is important therefore for such preamble to always be referenced when determining the true object, purpose and spirit of a constitution.
According to him, a cursory look at the preamble as stated under the APC 1995 Constitution, reveals that the 1995 constitution envisaged a democratic APC party and one that would always uphold the tenets of democracy, rule of law, respect for human rights and constitutionality as the modus operandi.
He said the Judge was therefore apt and correct to have called out on the preamble and philosophy of the APC Party as a basis for his decision.
Rashid said according to the Judge, Article 3 of the 1995 APC constitution sets out the aim, objectives and philosophy of the Party citing one of such key objectives of the 1995 defunct constitution which is “to attain and sustain political power through democratic and constitutional means in order to build a free, democratic society with equal rights and opportunities and justice for all”.
The Executive Director argued that secondly, the Judge’s move to dissolve the Executive of the APC party on the grounds that they were not democratically elected and hence illegal in office was also plausible.
He maintained that such is the case because, save for only two officers of the party, all other executive members ought to have been elected into office as dictated by the 1995 APC constitution and not nominated or selected.
Rashid continued that furthermore, declaring that the National Advisory Committee (NAC) of the APC party was not properly constituted since bulk of its members were never elected but selected was also a revolutionary way of thinking by the Judge.
He pointed out that certainly if bulk of the Executive members that constituted NAC were never elected into office, then they certainly would have been illegal and unfit to be a part of NAC in the first place since it is only the Chairman and Deputy Chairman of NAC that are allowed to be selected as provided for by the 1995 APC constitution. Rashid pointed out that because the two of them cannot form NAC, hence according to the Judge, NAC was not properly constituted and as such never existed in the first place.
The Lawyer said such an argument is quite plausible indeed and must be applauded.
He continued that more significant still the Judge’s nullification of NAC’s decision/ bye law introducing the “selection clause” for the determination of Executive members / officers/National Delegates was also commendable as such decision/ bye law was inconsistent with the 1995 APC constitution and the 1991 constitution of Sierra Leone.
Lawyer Rashid said according to Justice Fisher, Article 14.1.1 of the 1995 APC constitution provides as follows:
“The National Advisory Committee may for ratification by the National Delegates Conference, make rules and enforce any bye law(s) not inconsistent with the provisions of this constitution and the national constitution of Sierra Leone”.
He continued that according to Justice Fisher, “The NAC of the All People’s Congress party doesn’t have the POWER to override the party’s Constitution…” adding that the bye law gazetted which introduced the selection clause was illegal and outrightly inconsistent with the spirit, object and purport of the 1995 APC constitution and the National constitution of Sierra Leone. Hence, it’s nullification.
Lawyer Rashid stated that such a reasoning by Justice Fisher is quite commendable.
He said importantly also, was the forming of an Interim Transition Governing Committee( ITGC) by the learned Judge to take charge of the APC party in the interim period and conduct its affairs till the National Delegates Conventions were held.
The Lawyer argued that the directive by the Judge for the formation of such a structure is quite superb as it will help ensure that no vacuum exists in relation to leadership within the APC party after his judgment.
He said additionally the endorsement and retention of the new APC constitution was also a correct decision by the Judge notwithstanding the fact that the Executive body that oversaw its making were illegal in office.
Lawyer Rashid continued that any order from the Judge to the contrary would have increased frustrations within the party and perhaps led to outright unrest in the nation considering the amount of time, resources and energy that have been put by the members of the APC into the making of their new constitution.
He therefore argued that retaining the new APC constitution was certainly a step in the right direction.
The Legal Link boss said also worthy of mentioning is the strength, vitality and resilience displayed by Justice Adrian Fisher in the face of outright molestation, humiliation and threats both from within and outside of Sierra Leone as he presides over this matter saying that is quite commendable to say the least.
He said a Judge, in their opinion, must always muster courage to pursue the ends of justice irrespective of agitations, condemnations and threats that may be levied on him both within and without in the execution of such mandate.
“Let Justice prevail even if the heavens were to fall!” he acclaimed stating that perhaps the most plausible and outstanding legacy of the judgement is that it brings back democracy in the APC party and gives ultimate power to the masses of the party especially in determining the choice of leaders (Executive officers, wards, districts, constituency and regional representatives, delegates, flag bearer of the party) that could represent their interests going forward .
He argued that such democratic power of choice by the people/ masses of the party had longed being eroded away from them by virtue of the selection clause that was being introduced by NAC.
But with the Justice Fisher judgement, he maintained, power has again been restored into the hands of the masses of the party as against the few which he said is quite laudable indeed!
Lastly, according to Lawyer Rashid, the fact that the Judge was also able to deliver such an all important judgment within the three months period as provided for under the 1991 constitution is also something that is praise worthy of.
He said according to Section 120 (16) of the 1991 Constitution of Sierra Leone:
“Every court established under this constitution shall deliver its decision in writing not later than three months after the conclusion of the evidence and final addresses or arguments of appeal, and furnish all parties to the cause or matter determined with duly authenticated copies of a decision on the date of the delivery thereof.”
He said from the above provision, it is clear that Justice Adrian Fisher had three months after the close of the final application/ address to deliver the Judgment in the case.
Rashid said, truth be told, the proceedings actually ended on the 28th day of March 2022 when the defendants finally filed their Affidavit of Compliance to the court maintaining that counting from that date, it is clear as crystal that the Judge actually took about one month to deliver the all important judgement.
He concluded by saying that LEGAL LINK therefore salutes the deep sense of cosmic responsibility displayed by the Judge particularly with respect to speed and further urges other Judges in the Judiciary of Sierra Leone to emulate such an example particularly in the area of speedy delivery of judgements.
With regards the lows and negatives of the judgment, he said notwithstanding the above great accolades evident in the judgment, there were however a few downsides picked up by LEGAL LINK in the judgment of Justice Adrian Fisher as well as the handling of the entire trial by him which is also worth mentioning to all and sundry.
He said first and most, regrettably, it is their candid submission that the learned Judge missed out on a golden opportunity to inject a democratic culture within the Interim Transitional Governing Committee ( ITGC) when he directed that the Chairman of the ITGC be nominated instead of being elected.
Rashid said the fact that Justice Adrian Fisher ruled that Alfred Peter Conteh is to Nominate 9 representatives including the Chairman of the ITGC makes the judgment of his a dramatic irony indeed.
He said let’s remember that the whole object and purport of this judgment by Justice Fisher was to see an APC Party that embraces the tenets of democracy (elections, human rights, rule of law) on all fronts including its leadership stratas.
According to him or them, it was therefore inconceivable, preposterous and disappointing to say the least for the Judge to revert to the “old order” which was the very reason why he dissolved the entire Executive of the APC including NAC in the first place.
He said that the defence that such a directive was ok since the ITGC was only an interim, transitional arrangement in their opinion, does not still exculpate the Judge from blame since such a chairmanship position in the ITGC is of immense importance for the actualization of a democratic culture within the APC party from the onset.
Its formation therefore, he said, ought to have depicted the highest of democratic standards, providing the Chairman with the requisite legal standing and moral high ground to enforce democratic culture and ideals within the party during his limited tenure.
He claimed that they assert that the Chairman cannot instill a democratic culture within the party if he did not come to office by such means. “He who comes to equity must come with clean hands”, he quoted.
The Lawyer said it could certainly had made a huge difference if the Judge had ordered that the 21 man committee shall elect amongst themselves a chairman who will now preside over the affairs of the ITGC.
He said the role of a chairman in any organization or arrangement is very key and for people to accept his leadership as legitimate, they must be given an opportunity to make a decision into his coming into office in the first place arguing that such is however lacking in the judgment of Justice Adrian Fisher and unfortunately so.
Secondly, the fact that the Judge at some stage of the trial allowed the APC executive and NAC to do an emergency delegates conference for the adoption of a new constitution but later declared this very executive as illegal in office is also quite conflicting and confusing to say the least.
Why did the learned Judge then allow an illegal executive undertake such a democratic exercise in the first place? Could this have been an oversight on the part of the Judge? or was he under the reasonable belief at the time that the APC executive and NAC were duly elected and as such legitimately in office? At what stage did this thinking of the Judge change? Is the work done by this illegal executive not also illegal?
To be continued