By Moses MASSA, Esq.
The Hypothetical
Imagine a massive political crisis or a total boycott where only ten Members of Parliament show up to the well of Parliament in Freetown. If our politicians get away with their latest act, a mere seven people out of those ten could vote “Yes” and legally rewrite the entire Constitution of Sierra Leone. They could change presidential term limits, wipe out fundamental human rights, or dismantle our courts—all with just seven votes. If that sounds completely absurd, that is because it is. Yet, this is the exact loophole that a temporary ruling majority in Parliament is trying to force through right now.
Introduction: The Jurisprudential Crossroads
The ongoing constitutional crisis regarding the passage of the Constitution of Sierra Leone (Amendment) Act, 2025 (voted upon in August 2026) has brought the republic to a critical jurisprudential crossroads. At the heart of the referral to the Supreme Court lies a narrow but profound question of mathematical and textual interpretation:
Does the supermajority requirement in Section 108(2)(b) mean two-thirds of the total statutory membership of Parliament, or merely two-thirds of those present and voting on the day of the division?
While defenders of the recent parliamentary vote argue that an opposition walkout lowers the threshold required to pass an amendment, a basic exercise in logical extremes exposes the catastrophic danger of this “shifting-floor theory.”
The endurance of a constitutional democracy depends entirely on strict adherence to mandatory procedures established within its Supreme law. When the legislature treats the explicit procedural thresholds of Section 108 of the 1991 Constitution as discretionary rather than mandatory, it shifts a profound institutional burden onto the Supreme Court. For members of the Bar and the Judiciary—guardians of the rule of law and constitutionalism, this referral underscores a fundamental concern: if the apex court can declare a contested procedure compliant and thus valid, it risks establishing a dangerous precedent where political expediency permanently overrides the constitutional text, or political pragmatism creates a framework where future legislative majorities can dismantle entrenched constitutional protections at will—placing the ultimate defence of the Republic squarely back upon the Judiciary.
The Textual Conundrum: Contrasting Sections 91 and 108
The core legal dispute is remarkably clear-cut, relying entirely on a strict textual reading of our 1991 Constitution. Prepositions and qualifying phrases in constitutional drafting are dangerously slippery, and political actors are masters at exploiting them. Yet, the constitutional text draws a sharp, unmistakable line between routine business and supreme lawmaking.
Under Section 91(1), the rule for everyday parliamentary voting is explicitly defined:
“Except as otherwise provided in this Constitution, any question proposed for decision in Parliament shall be determined by a majority of the votes of the Members present and voting.”
This establishes a flexible threshold that changes dynamically based on daily attendance.
However, when turning to Section 108, which governs how Parliament may alter the Constitution, the language changes entirely. Section 108(2)(b) mandates that a constitutional amendment bill shall not be passed unless:
“…the Bill is supported on the second and third readings by the votes of not less than two-thirds of the Members of Parliament.”
This slippery manipulation of prepositions becomes even more glaring when compared to other critical safeguards in the same Constitution—such as Section 137(7)(b)& (10) (b), which dictate that the removal of a superior court judge and chief justice must be approved by a “two-thirds majority in Parliament.” Defenders of executive overreach may attempt to color these phrases—interpreting “in Parliament” or the absence of the word “all” as a licence for the shifting floor, claiming it implies a mere two-thirds of whoever happens to be seated in the chamber on a given day.
This interpretation is a dangerous sleight of hand. Whether phrased as “of the Members” or ” Members in Parliament,” treating these foundational thresholds as fluid rather than fixed completely destroys their protective purpose. In plain English, the entire fixed statutory composition of the House stands at 149 seats. Therefore, the absolute floor required to legally pass any entrenched amendment at the second and third readings is a fixed, mathematically unchangeable threshold of 100 votes. It does not matter how many members walk out, are absent, or leave their benches empty. Much like the Senate filibuster rule—which requires a 60-vote majority to prevent Senators from rushing a vote through—our Constitution demands a true, uncompromised consensus; leaving no room for conjecture. Thus, treating a simple majority of whoever happens to be seated in the chamber as sufficient to alter our Constitution completely ignores the clear text of the law.
The Danger of Judicial Laundering
Judicial laundering occurs when a court upholds a flawed process simply for the sake of perceived convenience. If the Supreme Court takes a deferential position—essentially giving a pass to Parliament on these procedural rules—it will permanently damage Sierra Leone’s jurisprudence. We cannot confuse political usefulness with actual legality.
A court ruling that validates a procedurally broken act simply because it contains popular policy benefits—such as the minimum 30% female quota or dual-citizenship changes—is a hazardous compromise. In constitutional law, the manner and form of passing a bill cannot be separated from the validity of the enactment itself.
When a court allows a ruling party to bypass the Constitution that gives it authority, it undermines its legitimacy and upends the doctrine of separation of powers. The ultimate danger here is a cyclical trap: allowing this procedural shortcut today means tomorrow a future administration can use the exact same trick to attack fundamental rights, weaken judicial tenure, or manipulate electoral frameworks with a bare political majority, using the court’s prior ruling as a shield.
Political Compromise and Institutional Displacement
Our recent political history reveals a frustrating trend where international political mediation is constantly used to settle deep constitutional disputes, pushing local legal frameworks aside. We must call this out for what it is: diplomatic interventions by regional bodies almost always prioritize short-term political stability over strict legal compliance and that is dangerous.
When political actors are charmed into extra-constitutional compromises—such as utilizing a nolle prosequi to politically dispose of critical treason or structural prosecutions—the actual legal questions are buried. This practice creates a system of governance that lacks legitimacy, leaving core legal issues unresolved and aggrieved parties without genuine legal remedies.
The Krauthammer Warning on Institutional Expediency
This structural manipulation mirrors the exact warning issued by prominent U.S. political analyst Charles Krauthammer during historical US supreme court battles. Krauthammer observed that when a judicial system stops relying on strict, blind legal principles and starts bending to satisfy specific political outcomes, the entire nature of justice is corrupted.
He warned that replacing neutral, rule-based jurisprudence with institutional expediency reduces the law to nothing more than raw power. When courts step aside to let political committees or diplomatic communiqués settle constitutional thresholds, they displace the judiciary, surrendering their sacred role as guardians of the Grundnorm.
Conclusion: The Burden on the Bench
These legal fences ultimately point back to something greater: when political actors normalize extra-constitutional shortcuts, the burden of preservation shifts entirely back to the institution that is supposedly stronger than any political force: the court. Indeed, the ultimate power to defend the constitution and the state rests squarely with the Supreme Court.
If the issue comes up before the bench for constitutional interpretation or judicial review, it is not just a standard adjudication of a parliamentary disagreement; it is a definitive test of constitutional supremacy. The Supreme Court of Sierra Leone stands at a historic crossroads, and must look at this matter through a lens of strict constitutional construction, rejecting the absolute floor theory once and for all. By anchoring entrenched thresholds to fixed mathematical figures rather than fluid counts of those present, the judiciary can prevent an absurd legal reality where foundational rights are whittled away by default.
Protecting the procedural integrity of Section 108 is the only way to prevent future constitutional collapse—guaranteeing that our democracy can never be quietly dismantled or mathematically managed away by a half-empty chamber. More so, entrenched protections exist to force broad-based national consensus and prevent a temporary political majority from reshaping the state at will. If a legislative majority can lower the constitutional ceiling simply because their opponents vacate the chamber, then the guardrails of the state are an illusion.
In short, constitutional law in the absence of procedural integrity and good conscience is nothing more than autocracy dressed in democracy.