On Monday this week, the Supreme Court of Sierra Leone heard the Originating Notice of Motion on the Proportional Representation (PR) System of voting filed by Lawyers Dr Abdulai O. Conteh, Joseph Fitzgerald Kamara among others on behalf of Honourable Abdul Kargbo and Councillor Akiyatu Coker, the first and second plaintiffs respectively.
The PR matter, which started at round 10:11a.m before five season Judges: Justice Brown Mark, Justice Deen Tarawally, Justice Alusine Sesay, Justice Ivan Sesay and the Chief Justice Babatunde Edwards as the presiding Judge, attracted the attention of noticeable public officials including Members of Parliament and government ministers.
The Originating Notice of Motion of the matter was filed on 28 November 2022, on behalf of the aforementioned mentioned plaintiffs in relation to the directive issued by President Julius Maada Bio to the Electoral Commission of Sierra Leone (ECSL) to hold public elections for ordinary Members of Parliament by the PR system.
According to the Motion, such directive by the President is inconsistent with Section 38 (A) of the Constitutional Amendment Act No.15 of 2001. Key amongst the nine concerns raised to the Court by the plaintiffs’ lawyers was that the ECSL lacks the legality to determine the form and mode of public elections rather than to conduct and supervise the processes.
In this regard, the First Respondent in the matter happened to be the Attorney General and Minister of Justice, Mohamed Lamin Tarawallie, who was in Court with his deputy, and the Second Respondent is the Electoral Commission of Sierra Leone (ECSL),which was represented by its Chairman, Mohamed Konneh, together with other Commissioners.
While arguing his case on behalf of the plaintiffs the veteran legal practitioner, Dr Abdulai O. Conteh said their case was not to attack the merits and demerits of the PR System, but rather whether or not the 2023 elections were to be conducted on the District Block System.
The PR System under the Constitution, he argued, was not an alternative to the Constituency basis in a public election in Sierra Leone, as the Block System may prevent independent candidates from contesting.
He underscored that there was no evidence wherein the current Parliament sits without lawmakers from defined constituencies, thus he said the directive by the President in consultation with ECSL was unlawful.
According to Lawyer Conteh, there had been no reason given by the authorities for such a switch of electoral system, which was a must in order for them to do so as per law. He cited two conditions precedent, which must be met for the PR System to come into effect: first is the date of Parliament elections should have been announced, and second there shouldn’t be any existing constituencies.
The first condition, he said, had been met, however, with regards to the latter, Dr Conteh maintained that the current Members of Parliament were representing different constituencies; therefore such condition had not be fulfilled.
While representing the Attorney General and Minister of Justice, in his response Robert Kowa said as at the time of filing the Motion in November 2022 the Constitutional Instrument was yet to be law and therefore referred to the submission of Dr Conteh and team as “preemptive strike”.
He said 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. He said, “Constitutions are made to stand the test of time”.
Lawyer Kowa stated that an instrument was laid before Parliament and that there were parliamentary procedures which were followed to the letter. He furthered that Section 170 (1) of the Constitution stated “clearly how Statutory Instrument come to law”, adding that it was clear from their case that dates had been set for all elections and for the purpose of those elections a date had been announced for the Members of Parliament election.
He said, “We have been found in a position wherein there has been a Mid-Term census, and this census result was published which automatically altered the figures in the population density”.
The Solicitor General said, “Section 38(3) and Section 38 (7) of the Sierra Leone Constitution deal with inhabitants and population density and also the review of constituencies”, relying on their documents and the census result and also on Rule 92 of the Constitution.
He submitted that the Public Election Act of 2022 and the ECOWAS Protocol Limit Legislative Amendment with respect to electoral laws six months towards election and that it was therefore in fairness and in 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 had been reviewed based on the latest census results which were being announced.
Lawyer Kowa said the argument of the independent candidates by the plaintiffs’ lawyers could not stand as both plaintiffs belong to a political party and no independent candidate had made a complaint about it. The Statutory Instrument 13&14 made adequate provision for independent candidates, he said.
Lawyer Osman Kanu, in his submission on jurisdiction objection, said that the Court lacked the power 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 on a Constituency basis for an ordinary Member of Parliament.
Whilst representing ECSL, Dr Emmanuel Saffa Abdulai said everything that had to do with public elections concerned the second respondent (ECSL) and therefore they had the exclusive power backed by law with special reference to section 38(7) of the Constitution to determine what to do based on the current situation.
The ECSL, he said, 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 six months timeline.
He said that there had been a systematic pattern of election after census had been conducted and boundaries delimitation followed. He added that after the President had declared an election date, the ECSL was constrained to wait for the latest census results.
Lawyer Abdulai said if ECSL had done otherwise, they would have violated certain legal authorities both in and out of the country. He said it would be undemocratic to use old census results to do fresh boundaries delimitation when there was a recent population growth of about 57,000 people.
The matter has been adjourned for ruling as Notices will be served.