By Amin Kef Sesay
In a Position Paper released by the Institute for Legal Research and Advocacy for Justice (ILRAJ) bordering on the “Report on the Review of the 2017 Government White Paper on the Constitution of Sierra Leone, 1991 (Act No.6 of 1991)” ,that was published on the 13th January, 2022, the rights based entity commended the Government for incorporating certain recommendations and at the same time stated actions or clauses that should have been or must be incorporated in the White Paper.
On the whole, the ILRAJ stated that it welcomes the Government White Paper and noted that it is a significant improvement from the one issued by the previous Government.
It however urges Government to do its utmost to ensure that the outcomes and recommendations are legitimate and broadly accepted, whilst trusting that Government will take its comments in good faith as they (ILRAJ) look forward to the public consultations and deliberations and the roadmap for implementing the recommendations as some of the amendments are entrenched provisions in the Constitution.
Among many observations made, ILRAJ noted that Government accepted the following CRC’s recommendations to wit:
To incorporate principles of human dignity and equality into the fundamental principles of State policy in Chapter 2 of the 1991 constitution,
To direct its policy towards ensuring adequate medical and health facilities for all persons without qualifying it to “regard to the resources of the State,”
To prohibit discrimination, to provide free quality education, to include civic education and entrepreneurship among the State’s educational objectives,
To promote national culture, citizens to respect the national currency and national pledge which are accepted by ILRAJ
However, ILRAJ says it is disappointed that the Government decided to retain Section 14 of the 1991 Constitution, which ensures that the rights conferred in Chapter 2 of the Constitution, such as the right to health, education, etc. are not legal rights, and citizens cannot take legal action if Government fails to provide them.
According to the ILRAJ such will seriously limit citizens’ rights to seek redress and make these rights merely aspirations adding that where there is a violation of the economic, social and cultural rights, there is no mechanism for redress.
ILRAJ is also of the humble view that the rights stated in Chapter 2 of the 1991 Constitution should be enforceable maintaining that the CRC mentioned that these rights are enforceable in other African countries such as Kenya, South Africa and Uganda.
According to ILRAJ, making them enforceable will ensure that Sierra Leone complies with international obligations. In some instances, in its report Government states that it will follow best practices in other countries. However, ILRAJ argues that we must not be selective and cite international best practices only when it suits our decision.
The rights based entity further maintains that with the greatest respect to the Government, the Constitution is the supreme authority and law of the country and it takes precedence over all other laws and legislation.
Thus, because there is detailed legislation dealing with the media does not mean freedom of the press and its independence cannot be dealt with in the Constitution.
ILRAJ noted that it is important to guarantee and secure those rights suggesting that a breach of those rights in the Constitution could be taken directly to the highest court of the land, i.e., the Supreme Court. Thus, ILRAJ is urging the Government to reconsider its position on that issue and include a new chapter in the Constitution.
On the recognition and protection of the fundamental human rights and freedoms of the individual, ILRAJ noted that under that heading, the following recommendations were accepted:
To rename Chapter 3 ‘The Recognition, Protection and Promotion of Human Rights and Freedoms of the individual’,
To abolish the Death Penalty,
To reduce detention periods from ten days to seven days in cases of capital offences and from seventy-two hours to forty-eight hours in the case of other offences,
To compensate and/or apologize to persons unlawfully arrested and detained,
To subject the protection of fundamental rights to National Security.
Furthermore, ILRAJ welcomes the Government’s acceptance of the recommendation to draft a new Section 27 of the 1991 Constitution to provide for gender inclusivity, protection from discrimination and promotion of the rights and empowerment of women in line with the Government’s policy.
The ILRAJ is now urging the Government to accept the draft new Section submitted by the CRC, which includes the following provisions:
“(1)Every person is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
ILRAJ calls on the Government to review its decision not to add new chapters relating to the right to the environment, the right of the aged, persons with disability and the rights of the child in the Constitution whilst reiterating their view that the Constitution is the supreme law of land and those rights are very important to be included in the Constitution.
The rights based organization says it is delighted that Government accepted the recommendation to draft a new chapter on citizenship in the Constitution “as citizenship is very vital in the Government structure of the State and therefore needs to be clearly defined in the most important legislation – the Constitution.”
In addition, ILRAJ also called for Sections 75 & 76 of the Constitution to be replaced “to enable citizens by naturalization to hold Public Office and Elected offices, except that of the presidency,” for Citizenship by birth to be enlarged to include every person born in or outside Sierra Leone before April 27th, 1991, one of whose parents was born in Sierra Leone and for citizenship by marriage to be granted if a person has been married to a citizen for at least five years.”
On the issue of ‘Supreme Executive Authority’, ILRAJ says it is disappointed that the Government believes that replacing the phrase “supreme executive authority” with “chief executive” is a puerile attempt at undermining the President’s constitutional authority.
The rights based institution noted that in its manifesto, the SLPP stated, “A presidency that is powerful beyond the limits of democratic governance is dangerous for any democracy. Sierra Leone can ill afford an elected autocrat in our presidency…The last 10 years of APC rule has left Sierra Leoneans stunned by the unlimited and unbridled use of “Executive Power.” State governance has been treated by President Ernest Bai Koroma as if there are no constitutional injunctions or limitations under the 1991 Constitution.” The SLPP, according to the ILRAJ, committed to avoiding the reckless use of supreme executive authority and so-called orders from above.
On appointment of Judges, ILRAJ noted that Government rejected the proposed amendment to Section 135(4) of the Constitution of Sierra Leone.
ILRAJ says it strongly believes that the procedure for the appointment of judges must be open and transparent furthering how vacancies must be advertised to provide equal access to all, there must be an open interview process which includes public participation and appointment by the President and approval by Parliament must be only the candidates that have gone through that process. According to ILRAJ, the procedure is currently being used in Kenya and they believe that Sierra Leone should adopt the same.
Whilst ILRAJ strongly commend Government for accepting the CRC’s recommendation to abolish the death penalty, they called for a draft of a New Section 27, not to derogate from fundamental human rights to life, the prohibition of torture, the principles of legality, freedom of thought conscience and religion during a State of emergency, and to have a dedicated chapter in the Constitution dealing with citizenship.
