By: James Kamara-Manneh
The Supreme Court, headed by the Honourable Chief Justice, His Lordship Justice Desmond Babatunde Edwards and four other Judges of the Superior Court of judicature has heard arguments in favor of and against the Proportional Representation (PR) Case brought before the Court on its applicability or otherwise in the 2023 Multitier elections slated for June 2023.
The matter was filed by Lawyer Joseph Fitz Gerald Kamara and Partners on behalf of Honourable Abdul Kargbo-first Plaintiff and Councillor Hakiratu Maxwell-Caulker- second Plaintiff against the Attorney General and Minister of Justice-first Defendant and the Electoral Commission-second Defendant.
Representing the Plaintiffs, Dr. Abdulai O. Conteh said the matter was initiated by an Originating Notice of Motion and does not attack the merits or demerits of the P. R but whether or not the Multitier elections in 2023 should be held on the Proportional Representation basis.
He stated that the P. R system is not an alternative for the conduct of Public Elections in Sierra Leone.
Representing the plaintiff, the Lead Counsel Dr. Abdullia O. Conteh started by referring the court that the PR system is the practice by the majority of members state of the United Nation and most of the stable democracies in Scandinavia countries.
Delving into the issue properly, Dr. Conteh said they on the side of the Plaintiff are not attacking the demerits or the merits of Proportional Representation as the half of this case.
“As outlined in this case by the Plaintiff it is a crucial issue of whether or not the 2023 election for ordinary members of parliament and councils in their respective wards and local authorities, whether or not as this crucial issue whether the multi-tier election 2023 should depend on the proportional representation that is what this case is about” he highlighted.
He further called on the panel to seriously consider the Rule of Law to know whether the country is governed by such, as this will be a big step in respecting the legal of counsels in this case.
He succinctly pray with the court that the laws of this country, particularly its highest law which is the 1991 constitution as amended; the Proportional Representation System not an alternative system of Public Elections in our country.
Alluding further, Dr Conteh said section 38 (a) which introduced the Proportional Representation system of voting in the constitutional amendment Act of 2001 no. 15 of 30 provides that the president after consultation with the Director General of the Electoral Commission may direct that the country’s election shall be conducted based on the existing districts instead of the representation basis.
He said it is therefore reasonable to conclude that by the constitutional scheme, the election of ordinary members of parliament shall be on a constituency basis not restricted law.
He reminded the court that Sierra Leone is divided into constituencies to elect the members of Parliament referred to in paragraph P. section 1, section 74 of the Constitution.
He submitted that the power granted in section 38 (a) as Amended in the constitution directed elections to be held on a PR basis is not constitutional. Rather, the powers of the president must be exercised lawfully within the parameters of the constitutional, the highest law.
“We are not challenging any advice given by the electoral committee by any person. We are saying the directives to order the electoral commission to hold the 2023 election in this country in a proportional representation system is in the circumstances that would be unlawful, and that Section 53 (3) is a red herring and must be ignored,” he concluded.
Whereas the Counsels for the Respondents the Attorney General and Minister of Justice, Robert B. Kowa said at the time of filing the motion in November 2022 by Counsels for the plaintiffs, the purported Constitutional instrument was yet to be law and therefore referred to the submission of Dr. Abdullai O. Conteh and the team as a preemptive strike.
He submitted that as per constitutional provisions, the census had altered the population density which required a review of constituency boundaries, he further submitted that the president acted within his power and Constitution.
R.B Kowa’s Submitted that Supreme Court cannot require into parliamentary proceedings of section 94 (2) of the constitution that in that application no certificate of maturity was filed.
In the submission of Lawyer Osman Ibrahim Kanu, the court lacks the powers to hear the relief sought by the plaintiffs that the President acted beyond his constitutional powers to have given such directives for a public election to be held using a PR system instead of a constituency basis for an ordinary member of parliament.
Dr. Emmanuel Saffa Abdulai, Counsel for ECSL said everything that has to do with public elections concerns the second respondent and therefore is in the exclusive position backed by law with special reference to section 38 subsection 7 of the Constitution to determine what to do based on the available circumstances.
Dr. Abdulia the ECSL acted reasonably and followed due process of the law that it was practically impossible to conduct the elections based on available population figures and the timeline.
He submit that he recalled there’s been a systematic pattern of elections after the census and boundaries delimitation, he said after the president had declared an election date.
He said it would be undemocratic to use old census results to do fresh boundaries when there has been a recent population growth of about 57,000.
The Chief Justice who is the presiding judge has informed the counsel representing the plaintiff and the respondent that they will send notices to both the counsel for the judgment.
However, the corrum of Supreme Judges were led the Hon. Chief Babatunde Edwards presiding on the issues, Justice Nicolas Browne-Mark, Justice Abdulia Sesay, Justice Deen Tarawally and Justice Asumana Ivan Sesay.
Representing the Plaintiffs, Dr Abdulai O Conteh, Joseph Fitzgerald Kamara, Mr Pious Sesay, Ady Macualey, Ibrahim Kamara, E.Karrow Kamara, whereas Counsels for the Respondents, the first Respondent counsels for the Attorney General and Minister of Justice, Robert .B Kowa, Osman I Kanu, A.Surie Kendor, M.P Bangura, TJ Freeman, F.Moigula,A.Boima, Y.K Sandy, and A.Lansana, and the second respondent counsels Dr Emmanuel Saffa Abdulai, A.T Turay, J.A Bockarie.
The first plaintiff is Hon Abdul Kargbo and the Second Akiratu Maxwell Coker.
