By: Mohamed Sahr, Audrey R. John
Hon. Chief Justice Desmond Babatunde Edwards and four other Supreme Court Judges have dismissed the oral application made by Charles Francis Margai ordering him to make his submission in an affidavit within 10 days at the High Court of Sierra Leone in Freetown on Thursday.
The ruling came after Charles Francis Margai requested that the Chief Justice and Justice Ivan Sesay step aside before the matter between PMDC against ECSL and the Chief Electoral Commissioner.
Delivering his ruling before the court the Chief Justice said he had listened careful by the oral application made by Charles Francis Margai Esq for the recusal of Hon. Chief Justice and Justice Ivan Sesay Justice of the Appeal Court; adding that application made by motion needs to be supported by an affidavit and it has not been done.
The oral application was dismissed and the applicant was with the freewill to file such a motion within 10 days of the ruling. He told the court that they should proceed with the hearing of the substantive action while addressing the bench after the ruling.
“I have carefully considered the application as unparliamentary language and I will go and file the notice of motion before the stipulated time,” Formal Chief Justice Lawyer Charles Francis Margai said.
Meanwhile, the application was made on Thursday 6th July 2023 of which Lawyer Margai said that the Chief Justice swore the President-elect Julius Maada with such rapidity presupposing that he was either cognizant of his declaration by the Chief Electoral Commissioner, as President-elect or he was aware of the same. He furthered that as a reasonable intellectual, Hon Chief Justice Babatunde Edwards must have presumed if not satisfied that the process leading to the declaration of Julius Maada Bio as elected President was regular.
“If that assumption is correct, then I will submit that it would be a conflict of interest to be a member of this panel”, citing the Hinga Norman case at the Special Court, where Justice Winter was asked to step aside.
With regard to Justice Ivan Sesay, Lawyer Margai made reference to Section 28 (6) of the Sierra Leone 1991 Constitution which he continued that such a matter was a grave concern but also touches on human rights. Therefore, it would not be ideal for the Attorney General to lead such a case. He said aside from the recusal of the Honorable Chief Justice, all other Judges on the panel must be Supreme Court Judges.
According to the Notice of Motion filed the PMDC and Patrick John asked the Supreme Court to declare such process as unconstitutional and null and void particularly the process leading to the appointment of Mohamed Konneh as ECSL Chair. They claimed that Konneh who until his appointment to the position of Chief Electoral Commissioner of ECSL was Director of the Financial Intelligence Unit (FIU) and was equally a public official. As such, the said appointment contravenes the provisions of Section 32(3) & (4)17; 75(c).76(1b), 171(1) & (4): of the 1991 Constitution.
Secondly, the Supreme Court declared that failure to publish by notice in the Gazette and the nominations of candidates should be delivered to the Electoral Commission for Sierra Leone or the returning officer designated by the commission before 4:00 pm. Formal Chief Justice said this action deprived intending candidates of knowledge as to when to comply which accordingly disenfranchises the voters in affected constituencies to freely vote for candidates of their choice.
They also asked the court to declare that not exercising judiciously the latitude given by Section 169 of Act No. 17 of 2022 to the commission, to enlarge or reduce time, depending on the prevailing circumstances. He questioned the fairness, credibility and transparency of the electoral process, especially when one takes into account the introduction by ECSL for the first time, of a novel electoral process known as the Portal System, which has proven to be unreliable because of a series of breakdowns. “The same is being brought to the attention of the commission through its officials,” Charles Francis Margai Esq said.
He mentioned that the court declared that sections 154 & 155 of Act No. 17 of 2022 are both mandatory and not directory and that failure to heed what is therein contained, is a serious transgression, which is not within the spirit and intendment of the sections, meaning that, the commission is under an obligation to strictly comply with the provisions of the said sections, including allotting campaign dates to Presidential candidates, the failure of which, as in the case of the P.M.D.C Presidential candidate that was tantamount to depriving the said candidate of launching an effective campaign to woo voters’ support.
The Notice of Motion also called for the court to declare that matters involving fundamental rights of citizens pending in the Supreme Court, must be heard by five substantive Supreme Court Justices and not otherwise. Further that any hearing short of the above, to be declared unconstitutional and decisions reached, are to be declared null and void and of no effect.
Also “this Honorable Court to declare that to avail of Section 38 (as amended) by section 38A of Act No.6 of 1991, is predicated on two conditions being present each at the same time, that is to say: where, under any law for time being in force, a date for a General Election of Members of Parliament has been appointed; but constituencies have not been established by Subsection”.
The court declare that the absence of any one of the above conditions would shut the door against invoking the said Section and Subsection, and therefore Section 38 (As Amended) of Act No.6 of 1991 will not apply.
They furthered “that the court declares that the electoral process as handled thus far by ECSL is most unsatisfactory and therefore unsafe to predicate upon the elections scheduled for 24th June 2023 and therefore orders an appraisal of Same”.
However, Lawyer Francis Charles Margai representing the first plaintiff Patrick John and the second plaintiff which is the People Movement of Democratic Change (PMDC) filed a notice to the court demanding an apology from the Chief Justice for using unparliamentary language against his personality while delivering his ruling.
This came about after the dismissal by the court on a submission he earlier made requesting that the Chief Justice and Justice Ivan Ansumana Sesay should not be among the panel of judges to seat on the matter they brought before the court against the Electoral Commissioner Mohammed Konneh and the Attorney General and Minister of Justice.
During the proceeding, the Chief Justice in his ruling said Lawyer Margai orally made an application before the court that the Chief Justice and Justice Ivan Sesay should not be among the panel of judges to seat on the matter and they should step aside.
He added that lawyer Margai also submitted that the Chief Justice swore the president-elect as the president of the Republic of Sierra Leone with such rapidity that it supposes that the Chief Justice was either cognizant of the result before it was officially declared.
He furthered that Margai further stated that as a reasonable intellectual, the Chief Justice must have presumed if not satisfied himself that the process leading to the declaration of Julius Maada Bio as elected President was regular.
Chief Justice Edwards and Justice Ivan Sesay, Justice Nicholas Brown Marke, Justice Deen Tarawallie and Justice Alusine Sesay, are among the five Justices being empanelled at the Supreme Court to look into the matter filed by PMDC and Patrick John against the Electoral Commission of Sierra Leone and the Attorney General and Minister of Justice.