By: Hafsatu Z Bangura
The Chief Justice of the Republic of Sierra Leone, Desmond Babatunde Edwards and four empaneled judges, have on Friday 26th January 2023, ruled in favor of using the Proportional Representative System in the forthcoming June 24th General Election.
This ruling came in a case that was brought before the court by the opposition APC party challenging the legality of using the PR System in the 2023 election.
Delivering his judgment, the Chief Justice said by an originating notice of motion dated 28th November 2022, the plaintiffs Honorable Abdul Kargbo and Councilor Hakiratu, instituted action in the Supreme Court tittle “FCCT” to invoke the original jurisdiction of the Supreme Court pursuant to section 124 and 127 of the constitution act No. 6 of 1991.
It was also premised on the following releases which include, the declaration on a proper interpretation of section 38 (A) of the constitutional amendment Act No. 15 of 2001, the declaration that the directive by the president to the Electoral Commission of Sierra Leone to hold every public election for ordinary members of parliament by the proportional representation system where an extant and substantive constituencies is ultra-vires to the constitution.
Also prayed that a declaration that the current parliament was itself elected on constituency basis as provided for in section 38 (1) (2)(3) and that these constituencies are substantive.
A proper declaration that revision of constituencies as provided for in section 4 of the constitution does not necessary results in the establishment of constituencies stipulated in section 38 (1)(2) and (3) of the constitution, but this section provides for the people when existing constituencies should be reviewed.
The Chief Justice continued that in 2022, a bill entitled the Public Elections Bill was introduced in parliament adding that, clause 57 of the said bill provided that the General Election of Members of Parliament other than Paramount Chief of members of Parliament shall be one member constituency system under section 2 of section 38 of the constitution.
He said during the first and second reading of the bill, it was evidenced that there was strong and vocal opposition to the bill in so far as it purported to introduce the District Block System for the ordinary Members of Parliament.
He intimated that the Speaker of Parliament perhaps sensing the mood of Parliament, later removed clause 57 for consideration by Parliament.
The Chief Justice further asserted that the speaker announced that proportional representative system in election must always be part of the laws of this country in light of the amendment introduced by section 38 (a) of the constitutional amendment Act No. 15 of 2001.
He said on the 21st October 2022, the Electoral Commission of Sierra Leone issued a press statement in which it stated that on the directives of the President of Sierra Leone, it would use District Block voting system for the conduct of the 2023 multi-tier elections as provided for in section 38 (A) of the constitution.
In his submission, Abdulia Conteh representing the plaintiffs submitted that the case is about the merit of the proportional representative system. He added that the crucial issues are whether the 2023 multi-tier election involving Parliamentary and Local Council Election, should be held through the proportional representation system. He considered such action as a strike at the heart of the rule of law.
Dr. Conteh further submitted that the PR System was not an alternative system of election in a democratic country govern by the rule of law. He also argued that it was section 38 (A) (1) of the constitutional amendment act No.15 of 2001, that introduced such system but that it must be in conjunction with section 38 (1) of the constitution of Sierra Leone Act No. 6 of 1991.
The Chief Justice furthered that Dr. Conteh also argued that the power invested in section 38 (A) of the constitutional amendment must be exercised within the parameters of the constitution Act No. 6 of 1991.
The learned Chief Justice furthered in his ruling that, Robert Kowa representing the Attorney General and Minister of Justice replied that as at the time of filing the motion in November 2022 by Counsels representing the plaintiffs, the Constitutional instrument was yet to be law and therefore referred the submission of Dr. Conteh and team as preemptive strike.
Kowa submitted that as per constitutional provisions, the census had altered the population density which required a review of constituency boundaries adding that, the President acted within the constitution for the introduction of the PR System.
Kowa also stated that an instrument was laid before Parliament and there are parliamentary procedures and the Chief Justice said Kowa then refer to the case of Samuel Inga Nova against Dr. Banya and others which was a judgment given by Justice Tolla Thompson dated 31 August 2005 and the said judgment reported that the court cannot enquire into parliamentary proceedings.
The Chief Justice continued that Kowa in his reply also said section 170 (1) of the constitution stated clearly how statutory instrument comes to law and it is clear from their case that a date has been appointed for all election and for the purpose of those elections a date has been announced for members of parliament.
Kowa further submitted that there has been a mid-term census and this census resulted is published which has automatically uttered the figure in the population density.
Kowa he said also submitted that section 38(3) and section 38 (7) of the Sierra Leone constitution deals with inhabitant and population density and also the review of constituencies.
Kowa further submitted that he relied on their documents and the census result which also relied on rule 92 of the constitution. He said the date has been announced for the election which is to be held in 24 June 2023 and the constitutional elected has acted with the law.
Kowa furthered submitted that the public election Act of 2022 and the ECOWAS protocol limit legislative amendment with respect to electoral laws six months towards election. He said it is therefore, in fairness and good governance not to have attempted to proceed with any law in this case review of constituencies and possible the limitation of those constituencies which have been reviewed based on the latest census result which has been announced.
He said the argument of the independent candidates by the plaintiffs cannot stand as both plaintiffs belong to a political party and no independent candidate has made complain about it and the statutory instrument no 13&14 made adequate provision for independent candidate.
In his ruling, the learned Chief Justice stated that the directives given by the President requested to the Electoral Commission to hold the2023 Public Election of Ordinary Members of Parliament by the District Block Representation system instead of constituencies, was intact with the provision of section 38 (A) (1) of the 1991 constitution of Sierra Leone as amended and therefore not ultra-variance with the existing law of Sierra Leone.
He said an order restraining the second defendant ECSL from taking steps in conducting the 2023 multitier election under the District Block Representation System is refused.
He added that an order directing the second defendant ECSL to hold the June 2023 election for ordinary members of parliament on the constituency or what basis is refused.
He therefore, orders that each of the plaintiff should pay the sum of three million Leones to the defendants.
