Is there a higher Law than the Constitution?

Abdulai Mansaray: 22 November 2021:

Defining a constitution can be difficult, but for the purpose of this article, let’s say “a constitution is a body of fundamental principles or established precedents according to which a state or organization is acknowledged to be governed”. Constitutions can be Written, unwritten, Unitary, Federal and Democratic constitutions, to name but a few. Britain has an unwritten or uncodified constitution. Sierra Leone has a written constitution. (Photo above: Author and political commentator – Abdulai Mansaray).

Sierra Leone’s Constitution has been tweaked, revised and amended over the years. The first Constitution was written in 1961, as part of the country’s transition to independence. It was based on a Westminster-style democracy of British rule. After the late President Siaka Stevens won the election as head of the APC in 1967, he dismantled the previous parliamentary system, replaced it with a presidential system and adopted a new constitution in 1971 as the first Executive President of Sierra Leone. He created the 1978 Constitution which, by some political alchemy saw the fusion of the opposition SLPP and APC into a one-party state.

“This new Constitution increased executive powers and extended presidential term limits from four to seven years. Additionally, Chapter IV, Section 34 gave him the power to appoint the Electoral Commissioners and the Chief Justice (head of the Judiciary) as well. The Electoral Commission, the organ entitled to accept or reject candidates for the Parliament, was also controlled by him as the Constitution states, it is responsible to the President “(BBC). You had your mother-in-law, son in law, father in law etc, but Pa Sheki was technically The Law.

The 1991 constitution came into being after President Momoh took over from Pa Sheki, as one-party rule tumbled simultaneously with increasing clarion calls for multiparty politics across the continent.  Although the 1991 Constitution was short lived, thanks to the 1992 coup by Valentine Strasser and the fourteen others, our country recognised and implemented for the first time the separation of powers: the Executive, Legislative and Judiciary.

After the Lomé Peace Accord in 2002, the Truth and Reconciliation Commission (TRC) and the Peter Tucker Constitutional Review Commission (PTCRC) presided over some reconstructive work on our constitution – all aimed at ensuring transparency.  You would expect that following such judicious endeavours in Executive, Legislative and Judicial gymnastics, our constitution should be sacrosanct.

So, why do we have constitutional crises after or during every election cycle?

Former President Koroma sacked his elected VP Sam Sumana for breaching “party rules”, and more recently President Maada suspended the Auditor General for lack of “professional performance”. Both engendered national debates on the constitutionality of their actions with varying and divergent views.

We get two sides of the story, but there are three sides: your side, my side and then the truth. But why the different sides to our constitution when it is written in black and white? Is our constitution so ambiguous or deliberately written to generate such crises of interpretation? Is it naïve to assume that our constitution must have been written by highly educated and highly intelligent people? If so, was it written so that it could be understood by people with limited education and modest intelligence like us?  If it was, why the constitutional gymnastics?

As the only safeguard of our liberties, the constitution cannot protect us unless we protect it. Therefore, it’s obvious that the strength of our constitution lies entirely in the determination and desire of each citizen to defend it.

As citizens, we are duty bound to do our share in defending our constitutional rights to keep them secure. Even though we expect our judiciary to interpret it, it doesn’t mean that our constitution is a mere lawyer’s document. But it is a guide that should not be abandoned. Unfortunately, we seem to pick and choose when we adhere to the constitution or when to cast it aside.

It is natural to assume that the constitution was written with the best of intentions, but that is exactly why constitutions are written – to guard against the dangers of “good intentions”. So why do our legal luminaries give us similarly different interpretations each time we get a seemingly constitutional conundrum?

In the most recent legal gymnastics involving the suspension of the Auditor General Lara Taylor- Pearce, Lawyer Gabbidon argues that the President acted according to the constitution, while Charles Margai portends that the role of the Deputy Minister of Justice in this matter was illegal. Technically, does it feel and mean that our constitution cannot save itself from itself? Confused? Me too. Sounds like if you can’t convince them, confuse them. You know that I am legally bankrupt, right?

So, what is the hope for us intellectual minions, if our judicial goliaths cannot clear up the confusion? Do their similarly different same interpretations depend on the government of the day, their political persuasions or just the weather?

I always believed that the constitution was made for the people and not the other way round. You’d think that they are written usually to restrict the majority’s ability to harm the minority, despite the good intentions.

So, after several tweaks and reviews that involved the Lomé Accord, TRC and PTCRC, did anything change? You notice that each time our Presidents take decisions that are deemed unpopular, undesirable, drastic or controversial, say relieving some prominent individual of their post, there is always a national condemnation. Interestingly, their actions are entrenched and sanctioned by the constitution. The initial reaction of anger and shock are naturally borne out of the knowledge that one person can take such a unilateral decision.

For example, Sam Sumana was elected on a ticket in a general election. But it took only Ernest Koroma to sack him. Lara Taylor Pearce had survived several governments; thanks to her reportedly stellar performances in her job, but Bio had the “audacity” to suspend her.

At face value, it feels and sounds authoritarian and tyrannical for one man, and one man only to sack a democratically elected individual or suspend a universally acclaimed professional. Ironically, our constitutional wordsmiths tell us that the constitution allows them to do so. But here is the trick.

When the late Pa Sheki replaced the 1971 version with the 1978 Constitution that ushered in his ONE-PARTY state, he made two major changes among many.   He increased his executive powers and extended presidential term limits from four to seven years. He gave himself additional powers as Executive President, to appoint the Electoral Commissioners and the Chief Justice (head of the Judiciary).

The electoral commission decided which candidate to accept or reject for parliament.  So, if the Electoral Commission, which was headed by the Electoral Commissioner who was appointed by the President, and that Electoral Commissioner was responsible to the President, this meant that one man, Pa Sheki had the sole authority to decide on the configuration of parliament according to the same Constitution. He appoints the Electoral Commissioner, and the Electoral Commissioner decides who sits in parliament. He who pays the piper calls the tune. Dig it?

Now you see just one of the numerous ways Pa Sheki ensured his grip on power and secured the lifespan of a one-party state? Do you see how he handcuffed and chloroformed the people of Sierra Leone into a life of political servitude? Besides, he had “Orwai-Orsai” to make sure everyone toed the line. Some call it home economics.

So, despite the numerous changes to our Constitution in recent times, has this changed?

Despite opposition objection to the appointment of Zainab Moseray as NEC commissioner for the Western Region; thanks to her alleged questionable record, it still pleased President Bio to appoint her. He has the Constitutional mandate to do so. So, now you see that despite the numerous tweaks to our Constitution over the years, the juicy parts that the late President Sheki used to ensure his grip on power in the One-Party State remain largely INTACT.

But some would say that unlike the days of Pa Sheki, such appointments now require “parliamentary approval”, as a safeguard. But if the majority carries the vote in Parliament, which party is usually in the majority? The ruling Party. So, do you expect objections from the majority or ruling party? Don’t answer that. Now you know why some petitions are lodged after general elections; to balance the power?

So, after all those constitutional reviews, the powers overseeing the appointments or dismissals of heads of the main organs of government (judicial, legislative or executive), still rests with the Head of State, just like it did in a One-Party State.

It is the same people who presided over the Constitutional Reviews that rubber stamped their own authorities. Who appointed the recent Tribunal? Just checking.  And you expected turkeys to vote for Christmas or foxes to vote for the welfare of chickens? Mornehhhh.  So, don’t be shocked to read “It has pleased the President to bla bla bla …….

Should we rip up our constitution and start all over again? Or we need a post millennium/ or Ebola Constitution that is environmentally friendly?

Don’t Forget to shut the door when you leave the room.