• July 5, 2023

  THE ABOLITION OF THE DEATH PENALTY IN OUR LAWS WITHOUT A REFERENDUM IS JUST A KERFUFFLE

  THE ABOLITION OF THE DEATH PENALTY IN OUR LAWS WITHOUT A REFERENDUM IS JUST A KERFUFFLE
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BY SYLVANUS FORNAH KOROMA (WHAT A MAN!)

The Government of President Bio has proposed the “Abolition of the Death Penalty Act, 2021,” but with all indications that this amendment of the 1991 Constitution of Sierra Leone is fraught with legal inconsistencies and in any event represents a direct confrontation with an entrenched clause of that same Constitution. It is submitted therefore that this legislation so hurriedly conceived would not stand the test of time. This submission is supported by arguments that demonstrate to what extent the legislation ignores the constitutional provisions as described in the Constitution; in other words, any attempt to do otherwise (i.e. not complying with the provisions as stated in the Constitution) in terms of enacting a new Constitution or altering any of the entrenched provisions in the constitution would amount to a “kerfuffle” (i.e. just a mere unnecessary excitement). This is so because the legality of the said law without referendum will not go uncontested in our Supreme Court for its interpretation of the law as per case stated, and/or it will be taken to the Supreme Court at the appropriate time to seek Judicial Review pursuant to the procedures and provisions of the Constitution.

 

The argument set forth in the different constitutional provisions dealing with Section 16 of the Constitution of Sierra Leone 1991 (i.e. Act No.6 of 1991) which should be read in tandem with Section 108(3). The argument would establish a clear understanding of Section 170 and other related sections of the Constitution pertaining to existing law (and including Section 74 of The Court Act 1965) and then be determined by Section 171(15) of the Constitution.

 

Chapter III of the 1991 Constitution of Sierra Leone spans from Sections 15-30, and it deals with the recognition and protection of fundamental human rights and freedoms of the individual. Section 16 (an entrenched clause) deals with protection of right to life is now in conflict with the Abolition of the Death Penalty Act, 2021. The 1991 Constitution puts it clearly that an entrenched clause cannot be altered except after such due process as stated in Section 108 are complied with and this cannot be done in a hurry as it requires extra activities outside of Parliament (i.e. referendum). More so, Section 108(3) states that to alter Section 16 of the Constitution has to be done via referendum. Section 16(1) reads;

 

No person shall be deprived of his life intentionally except in the execution of the sentence of a court in respect of a criminal offence under the laws of Sierra Leone, of which he has been convicted.

 

Pursuant to Section 16(1), the State is required to go through the courts for authority to deprive the life of a convict (i.e. to legally kill a person convicted by the execution of a court sentence) pursuant to the offence in criminal law. In other words, with the due process of the law, the State through the court can punish the convict by death penalty for intentionally killing or depriving another of his life through an execution of a court sentence in respect to criminal offence of the laws of Sierra Leone. And because Chapter III, and or, this particular Section 16 is protected as an entrenched clause in Section 108(3), and whereby there are a set of procedures for this law to be altered, then, it is but lawful to adhere to those laws and anything short of those procedures would be considered ultra vires.

 

Section 108(3) of the 1991 Constitution of Sierra Leone reads: “A bill for an Act of parliament enacting a new Constitution or altering any of the following provisions of this Constitution, that is to say-

  • this section
  • Chapter III
  • sections 46, 56, 72, 73, 74(2), 74(3), 84(2), 85, 87, 105, 110-119, 120, 121, 122, 123, 124, 128, 129, 131, 132, 133, 135, 136,137, 140, 151, 156, 167.

Shall not be submitted to the President for his assent and shall not become law unless the Bill, after it has been passed by Parliament, and in the form in which it was so passed, has, in accordance with the provisions of any other law in that behalf, been submitted to and been approved at a referendum.” Section 108(3) mandatorily instructs the process and procedure of enacting a new Constitution or altering its aforementioned provision and such changes must also have met the criteria set in 108(2).  It must be noted that part of section 108(2) was displayed on our National Television that the Parliamentarians voted in favour of passing the Bill into an Act i.e. Section 108(2) (b). Based on that voting, the United Nations Secretary General, Antonio Gutiérrez also tweeted about it.

 

What some of us are interested in knowing is whether in fact Section 108(2) (a) and its proviso were fully complied with by Parliament. Going back to the thrust of the argument, Section 16(1) of our Constitution was key in the minds of the drafters of our Constitution knowing fully well that the existing laws are in agreement with it. Hence, making the exception in the execution of the sentence of a court to deprive the life of someone who has intentionally deprived another in respect of a criminal offence, was purposeful, as the drafters considered those criminal offences in the picture of the law in section 16(1). The criminal offences that the Constitution is referring to are those existing laws which the abolition of the death penalty is trying to abolish and thus alter the functionality of 16(1). It must be noted that the law does not allow for such alteration except the due process is done. Without those particular existing laws which were functional when the 1991 Constitution came into existence, the judges become functus officio, and this in itself is an alteration of the functionality of the law in section 16(1) of the Constitution.

 

It must be noted here that the drafters were aware of the different types of laws and this was manifested in Section 170(1) which states the laws of Sierra Leone in a hierarchical manner. The drafters of the Constitution further created an interpretation section, Section 171 of the 1991 Constitution. In this section, the drafters of the Constitution endeavoured to create Section 171(15) to address the possible conflict in the laws of the country and this section reads: “This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency be void and of no effect.” The Abolition of the Death Penalty Act, 2021, and the amendments of Section 16(1) complimenting existing laws i.e. Offences Against the Persons Act, 1861, Larceny Act, 1916, Sierra Leone Military Forces Act, 1961, and Treason and State Offences Act 1963, are all Statutes under the provisions of Section 170(1) (b) which in terms of conflict or inconsistency with the Constitution, the Constitution shall prevail. For our edification, murder is a common law offence and Common Law in the hierarchy of laws in Sierra Leone is the last of the five.

 

An Act to abolish the death penalty in the case of persons convicted in Sierra Leone of murder under the Offences Against the Persons Act 1861, robbery with aggravation under the Larceny Act 1916, mutiny under the Sierra Leone Military Forces Act 1961, treason and related offences under the Treason and State Offences Act 1963 would alter Section 16 (1) which provides for the deprivation of the life of that person who intentionally deprives the life of another in respect of the aforementioned criminal offences.

 

An amendment of these existing laws would not only alter and render Section 16 (1) less functional, but its functionality to curb or control the intentional killings of convicts and the deprivation of life convicts would also be a serious cause for concern as the abolition of such penalty may trigger the spate of intentional killings. It would be recalled in recent history that this country was experiencing a spate of gangsterism and intentional killings but for the cleaning of the gallows by the then Internal Affairs Minister, Rtd Major Paolo Conteh, the country was saved. Religious stalwarts in the Christian faith, recognises that Christ did not condemn the Moses law of ‘an eye for an eye,’ Christ in relation to that only said that if you slap him on the left cheek he’ll give you the right. This is so because the gravity of the offence of slapping a cheek is of less consequence to that of plucking an eye.

 

The exception to the law in Section 16 (1) allowing for the deprivation of the life of a person who intentionally kills or deprives another of his life is a deterrent to the spate of intentional killings, and it is in this spirit of the law that the drafters of the constitution ensured that section 108(3) is enshrined in our Constitution. It must be reiterated that the amendment of the existing laws and the subsequent Act or Statute of the Abolition of the Death Penalty Act, 2021, fall under the category of laws known as Statutes and existing law- which are themselves subject to Section 171(15) of the Constitution of Sierra Leone Act No.6 of 1991, wherein their inconsistency or conflict with the Constitution renders them void and of no effect.

 

For our edification, a Statute is simply defined by the 12th edition of Osborn’s Concise Law Dictionary as an Act of Parliament; and the 8th edition of the Oxford Dictionary of Law defines Statute as ‘The body of law contained in Acts of Parliament’. Whereas the term ‘Acts’ is defined in Section 106(6) of the 1991 Constitution and the section reads:

 

 “All laws made by Parliament shall be styled “Acts”, and the words of the enactment shall be “Enacted by the President and Members of Parliament in this present Parliament assembled.”

 

Having also established the meaning of Act, it shall for the purposes of this writing, ‘Acts’ and ‘Statute’ shall be used interchangeably to refer to laws directly enacted by Parliament and most often with assent of the President.

Wherein the President refuses to give assent for certain reason(s), this then warrants Section 106(7) (8) to take effect, which explains how laws can be enacted without the President’s assent. Going forward Statutes or Acts are captured second in the hierarchy of the laws of Sierra Leone in Section 170(1)(b) of the 1991 Constitution of Sierra Leone, and it reads:

 

“Laws made by or under the authority of Parliament as established by this Constitution ”.

 

Having established this, it is worthy to also note that existing law is fourth in the hierarchy of the five types of laws, and existing laws are also captured in Sections 170(1) (d), 170(4) (5), 176 and 177 of same. In addition Section 74 of the Courts Act 1965 explicates common law and the application of existing laws in Sierra Leone. As mentioned earlier, Section 170(1)(d) of the 1991 Constitution of Sierra Leone in stating the laws of this country reads: “the existing law; and” whereas in Section 170(4) the drafters endeavoured to define existing law and it reads thus:

 

The existing law shall, save as otherwise provided in subsection (1), comprise the written and unwritten laws of Sierra Leone as they existed immediately before the date of the coming into force of this Constitution and any statutory instrument issued or made before that date which is to come into force on or after that date ”.

 

In other words existing law in general captures all laws stated in Section 170(1) (b-e) of the Constitution of 1991 which were functional before the adoption of this current Constitution on September 24, 1991. Section 170(5) explains the relation of the existing laws and its adaptation as well as its conformity to the Constitution. Section 170(5) reads:

 

 “Subject to the provisions of this section, the operation of the existing laws after the coming into force of this Constitution shall not be affected by such commencement; and accordingly the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution or otherwise to give effect to or enable effect to be given to any changes effected by this Constitution”.

 

This provision is particularly useful in the argument against the abolition of the death penalty without a referendum as it provides is solid ground for the interpretation of Section 171(15). It must be noted that Section 170(5) clearly states that it is existing laws which are to be in conformity with the provisions of this Constitution or otherwise to give effect to or enable effect to be given to any changes effected by this Constitution. Section 176 of the 1991 Constitution further explains the meaning of existing law and it reads:

 

“In this Chapter, the expression “existing law” means any Act, rule, regulation, order or other such instruments made in pursuance of, or continuing in operation under, the existing Constitution and having effect as part of the laws of Sierra Leone or any part thereof immediately before the commencement of this Constitution or any Act of Parliament of the United Kingdom or Order of Her Majesty in Council so having effect and may be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution as if it had been made under this Constitution.”

 

This section further explains the supremacy of the Constitution as all existing laws brought into conformity with this Constitution as if they had been made under this Constitution. Section 177(1) of the 1991 Constitution deals with the application of existing law, and it reads thus:

 

“The existing law shall, notwithstanding the repeal of the Constitution of Sierra Leone Act, 1978, have effect after the entry into force of this Constitution as if they had been made in pursuance of this Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution”.

 

All of these existing law provisions are in agreement with the Constitution so far as the laws of Sierra Leone are considered. However, the Constitution is clear on its procedures and where it stands in resolving conflict in the laws of Sierra Leone when the need arises. Section 171(15) should come into application, and it states that the Constitution is supreme and any other law found to be inconsistent with any provisions of this Constitution shall, to the extent of the inconsistency, be void and of no effect.

 

Section 74 of the Courts Act 1965 explicate how certain laws of England to apply in Sierra Leone and it reads: “Subject to the provisions of the Constitution and any other enactment, the common law, the doctrines of equity, and the Statutes of general application in force in England on the 1, day of January, 1880, shall be in force in Sierra Leone”. It is worthy to note that common law is broadly defined in the Sierra Leone context in 170(2)(3) of the 1991 Constitution. Common law is generally distinguished as judge made laws, whereas existing laws are those Statutes and laws which were in existence before this Constitution came into force. However, the laws mentioned in Section 74 of the Courts Act 1965 explains the application and limitation of existing laws in England to the laws of Sierra Leone. All existing laws of ‘general application’ in force in England on the 1st day of January 1880, shall be in force in Sierra Leone (general application means the whole of England and not just county for example) and this therefore includes the Offences Against the Persons Act of 1861 which predates January 1, 1880.  And it must be noted that any law after January 1, 1880, has to be enacted by the Sierra Leone Legislature and if Sierra Leone wishes to adopt any law from England, then, it has to be expressly adopted and enacted by the Sierra Leone legislature. In the case of the Larceny Act of 1916, it came after the January 1, 1880 cut off period and so it has to be expressly adopted into our legislation and those Statutes that are so adopted are what we refer to as the Ordinances and are also commonly referred to as ‘Cap’ as in Cap 122 and Cap 95 for example. In addition to the existing laws generally applicable in England before January 1, 1880, and the adopted laws or Ordinances thereafter our legislature in Sierra Leone also enacted laws for instance Sierra Leone Military Forces Act, 1961, and the Treason and State Offences Act 1963, all these laws form the existing laws including the 1978 Constitution of Sierra Leone Act number 12 of 1978. Section 74 of the Courts Act of 1965 brings to play any other enactment (and this basically refer to Statutes that predate January 1,1880, which is the reception clause period; and those laws which are passed in England on January 1, 1880 and thereafter are the Ordinances which adopted by the Sierra Leone legislature; and then there were laws which were passed originally by a legislature in Sierra Leone), and common law are judge made laws and these laws are also applicable using the reception clause period.

 

However, it must be noted that judge made laws of England are mostly of persuasive effects in our jurisdiction whereas those judge made laws in Sierra Leone have binding effect taking into consideration the principle of binding effect of decisions of our court and its application in the court structure. Section 74 of the Courts Act 1965 is essentially used to distinguish and clarify foreign laws particularly those laws of England that came into our legislation in Sierra Leone.

 

The Abolition of the Death Penalty Act, 2021, without the due process of the law as enshrined in our Constitution Act No.6 of 1991 would open a floodgate for abuse of the laws of Sierra Leone. If this law is allowed without a referendum, then our Constitution has given up one of its entrenched clauses for a floodgate of abuses going forward. Tomorrow or very soon after this abusive law is adopted, the next step would be to remove the tenure of the President as stated in Section 46 (another entrenched clause), and then they would change Sections 85 and 87 and more other entrenched sections without due process of the law. As true Sierra Leoneans, We should stand up and protect our Constitution and speak out the truth to the powers that be! We should implore them to adhere to the dictates of our revered law; the Constitution Act No.6 of 1991. This Constitution in its Part V, lays out the legislation and procedure in Parliament across five sections, and these include Section 105 (Power to Make Law), Section 106 (Mode of Exercising Legislative Power), Section 107 (Minister may introduce Bill and be summoned to Parliament), Section 108 (Alteration of this Constitution) Section 109 (Residual authority of Parliament). Having put forth into perspective the relevant laws for consideration into our thought processes, it behoves us to now bring into the discussion the authoritative legal doctrine, principle, or precept applied to the facts of an appropriate case i.e. adopting the RULE OF LAW that is most persuasive in light of precedent, reason and policy. The rule of law presupposes that the government by law adheres to the due process of law whereby institutions established by law must themselves follow the law and adhere to the law in full. The 1991 Constitution of Sierra Leone establishes Section 73, i.e. the establishment of Parliament. Section 105 of the same states that ‘Subject to the provisions of this Constitution, Parliament shall be the supreme legislative authority for Sierra Leone’. And the provisions in Section 108(3) (4) (5) specifically give the power to make such laws to the electorate and not just the parliamentarians and the President. This right is constitutionally given to the electorate, and we as an electorate would not sit by and allow the government to take from us what is due us! We would speak out about the unconstitutionality of the action until the needful is done!!! It must also be noted that the second limb of Section 108(4) is an important criterion to meet in order to approve the enacting of a new Constitution or altering any of the entrenched provisions. The second limb of Section 108(4) reads: “…and the Bill shall not be regarded as having been approved at the referendum unless it was so approved by the votes of not less than one-half of all such persons and by not less than two-thirds of all the votes validly cast at the referendum.” It suffices to say that the legality of procedure is key, and there is a binding precedent of a Court of Appeal case to that effect.

The case of ALL PEOPLES CONGRESS & OTHERS v THE SPEAKER OF THE HOUSE OF PARLIAMENT & OTHERS (CIV.APP.NO.13/2000) [2002]. SLCA 3 (10 January 2002). This is a locus classicus of parliamentary adherence to its proceedings and procedures. It is a case worth reading and it was held that Parliament must adhere to its own procedures- the ruling in this case was a celebration of THE RULE OF LAW in Sierra Leone, and it serves as a manifestation to the adherence of the tenets of the rule of law in terms of adhering to the due process of law whereby an institution established by law must itself follow the law in it fullness.

 

The second phase of the argument is that the Abolition of the Death Penalty Act, 2021, is selective and bias and therefore should not be allowed in our laws. In the first phase we examined Section 16(1) of the 1991 Constitution of Sierra Leone in relation to other relevant sections of the same and even brought in Section 74 of the Court Act 1965 to shed light in distinguishing existing laws particularly of foreign origin and England to be specific. It was established in Sections 177 of the 1991 Constitution that existing law have effects after the entry of this constitution as if they had been made in pursuance of this Constitution and shall be read and construed with such modifications,  adaptations,  qualifications and exceptions as may be necessary to bring them into conformity with this Constitution. Sections 176 and 177 are therefore the principal nexuses between Section 16(1) and those existing laws that the Abolition of the Death Penalty Act, 2021, seeks to amend (i.e. An Act to abolish the death penalty in the case of persons convicted in Sierra Leone of murder under the Offences Against the Persons Act, 1861, robbery with aggravation under the Larceny Act, 1916, mutiny under the Sierra Leone Military Forces Act, 1961, treason and related offences under the Treason and State Offences Act, 1963, to make alternative provisions for the punishment of persons convicted and to provide for other related matters). Without much ado, let us now look into murder which is the mischief that Section 16(1) and both the murder in the Offences Against the Persons Act, 1861 and the murder with robbery and aggravation under the Larceny Act, 1916, seek to address.

 

One of the definitions of Murder by Osborn’s Concise Law Dictionary (12th edition) is “as where the accused causes death by unlawful act with the intention to cause death or grievous bodily harm (R v Maloney (1985) A.C. 905). Section 16(1) says no person shall be deprived of his life intentionally, but for murder in respect of the criminal offence under the laws of Sierra Leone, the law gives power to the courts to adjudicate and sentence a convicted murderer to be deprived of his life. And the abolition of the death penalty would alter the power of the courts as given in the entrenched clause as stated in Section 108(3) of the same.  More so, when this Constitution was coming into force, the drafters were aware of the existing laws and they were construed to have been brought in conformity with this law as established in Section 177 of the Constitution of Sierra Leone, 1991 (Act No.6 of 1991) which came into forced on September 24, 1991.The selective nature and biasness of the Abolition of the Death Penalty Acts 2021, is manifested in Section 16(2) of the 1991 Constitution which is not amended.

 

It is disturbing to know that murderers for instance cannot be killed as they are so protected by the Abolition of the Death Penalty Act, 2021, and Section 16(2) of the Constitution allows certain people to kill certain people in certain given conditions, and even wherein those conditions given are not reasonably justified, no one can be allowed by law to deprive the life of the murderers and killers. This means, killings and or deprivation of life can be intentionally done in disguise under this section with no recourse to the court for the punishment as stated in Section 16(1). In effect, the Abolition of the Death Penalty Act 2021, is about or only stops the killing of those convicted intentional killers or murderers while the law still allows for killings (and or murders) to go without equal punishment. This is a travesty of justice!

 

Those in authority can kill but they cannot even be tried so long as they can ‘reasonably justify’ the deprivation of another’s life. The Pademba Road prison break of April 29, 2020 comes so fresh in mind and over a year, no official report has been made public by any of the committees of enquiry about who is responsible and has taken responsibility for the killings at Pademba Road Prison on that fatal day. What a travesty of justice!!! This is as well a miscarriage of justice because in a situation wherein a person is deprived of his life intentionally in guise of executing Section 16(2) and with no reasonable justified cause, is a food for thought as room for another miscarriage of justice. This is what Section 16(2) of the 1991 Constitution reads: “Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case, that is to say-

  • for the defence of any person from unlawful violence or for the defence of property; or
  • in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
  • for the purpose of suppressing a riot, insurrection or mutiny; or
  • in order to prevent the commission by that person of a criminal offence; or
  • if he dies as a result of lawful act of war”

 

In simple words, the Abolition of the Death Penalty Act, 2021, is saying that the triable offences in respect of criminal offence under the laws of Sierra Leone as stated in Section 16(1) to which the court has power to sentence a convict to be deprived of his life has been altered, and that the court has no longer such power because such power has now been abolished by the aforementioned Act.

 

The travesty of justice is that killings are allowed (and even murder too) but such executioners or killers or murderers (as the case may be) are exempt from being deprived of their lives even if the person or victim whom they may have deprived his life has died of something not reasonably justified! This allows malice and intentional killings of those in authority and thus a recipe for chaos in our country. Altering the powers of the judiciary itself is a cause for concern. The judiciary which is the bastion for justice should be competent enough to dispense justice without fear or favour. In the past government of President Koroma, there was a treason trial and the judiciary independently adjudicated the matter and justice was served without fear or favour. That was a shining example of allowing the Rule of Law to prevail.

 

The abolition of the death penalty in our laws has been one of the recommendations of the Truth and Reconciliation Committee (TRC), and this recommendation was borne out of the fear that there is the tendency for abuse of the law on mutiny under the Sierra Leone Military Forces Act, 1961, and the law on treason and related offences under the Treason and State Offences Act 1963. The reality is that mutiny and coups are still happening in our societies even though they are waning now. Be it as it may, the dithering of the previous government not to implement such TRC recommendation was borne out of respect for our laws to follow the due process as per law requires.

It is submitted therefore, that if the government of President Bio chooses to implement the TRC recommendation, it must do so within the framework of the law, and it must be done in full compliance with the law. However, it is important for President Bio to be reminded and kept in the known that if he cannot abolish the death penalty now, in terms of meeting the full compliance with the law, his intention can still be achieved within the law by exercising Section 63 of the 1991 Constitution. In the wisdom of the drafters of the said Constitution, they included this provision that stands as a substitute for the abolition of the death penalty. Section 63 gives the President of Sierra Leone the Prerogative of Mercy which is an exclusive right given to the President of the Republic to pardon or mitigate the punishment of a convict within the jurisdiction of Sierra Leone. This provision of the Constitution has the equivalence of kind of abolishing or doing away with the death penalty within the scope of the law and without altering the entrenched clause of Section 16(1) unlawfully. Section 63 with its marginal note of Prerogative of Mercy reads

 

“The President may, acting in accordance with the advice of a Committee appointed by the Cabinet over which the Vice President shall preside –

  1. grant any person convicted of any offence against the laws of Sierra Leone a pardon, either free or subject to lawful conditions;
  2. grant to any person a respite, either indefinitely or a specified period of the execution of any punishment imposed on that person for that offence;
  3. substitute a less severe form of punishment for any punishment imposed on any person for such an offence;
  4. remit the whole or any part of any punishment imposed upon any person for such an offence or any penalty or forfeiture or otherwise due to the Government on account of such offence.

63(2) where any person has been sentenced to death by any court for any offence, the Committee appointed under subsection (1), shall cause a written report of the case from the trial judge together with such other information, including a medical report on the prisoner, derived from the record of the case or elsewhere, as the Committee may require, to be submitted to it as soon as possible.”

 

The provision of the aforementioned section is as good as the abolition of the death penalty and until the referendum is done, and all requirement as per law stated are met, there is no abolition of the death penalty to law abiding Sierra Leoneans. However, if the government of President Bio in want of satisfying a manifesto promise, PAOPALLY bulldozes its way without following the due process of the law, it would later come to the realization that THE ABOLITION OF THE DEATH PENALTY IN OUR LAWS WITHOUT A REFERENDEUM IS JUST A KERFUFFLE!

 

Yes, it will be a mere unnecessary excitement that would only last as long as this Government is in power. In fact, the purported glory of wrongfully passing a law without the due process of the law would have a boomerang effect on this government, and it would go down on record that this government of President Bio abused and violated our entrenched constitutional provisions and thus opened the floodgate for the abuse of the revered Section 108 of the 1991 Constitution.

 

It must be noted at this point that the tweeting of the United Nations Secretary General Antonio Guterres is itself not wrong because according to Section 108(2) (b) of the 1991 Constitution of Sierra Leone, the Bill has to go through that stage. Hence, he tweeted on that basis. Section 108(2) (b) reads; “the Bill is supported on the second and third readings by the votes of not less than two-thirds of the Members of Parliament.” But it must be noted that this quoted section is just part of the process to amend an entrenched clause. In fact, this stage of the process of enacting a new Constitution or altering any of the entrenched provisions is just a qualifier to another very key stage of the entire process. The continuation of the process and procedures are stated in the succeeding subsections of Section 108 (i.e. 108(3) (4) (5)). And just for the records, this was what Antonio Gutierrez tweeted:

 

I commend the Parliament of Sierra Leone for their unanimous vote to abolish the death penalty. The death penalty has no place in the 21st Century.”

 

Those were the words of his tweet and that must not be construed as a message saying that the death penalty is no longer in our laws. It is important to note that the Constitution in terms of its Mode of Exercising Legislative Power states in Section 106(1); “The power of Parliament to make law shall be exercised by Bills passed by Parliament and signed by the President.” Section 106(2) further emphasized the importance of the adherence to the Rule of Law in following the due process. Section 106(2) reads, “Subject to the provisions of subsection (8), a Bill shall not become law unless it has been duly passed and signed in accordance with this Constitution”.

Hence, reading the whole of Section 106 of the 1991 Constitution in tandem with Section 108(3) of the same, wherein the latter section mandatorily instructs for the purpose of enacting a new Constitution or  altering any of the entrenched provisions, that such Bill shall not become law unless the Bill, after it has been passed by Parliament and in the form in which it was so passed, in accordance with the provisions of any law in that behalf, been submitted to and been approved at a referendum.

 

Therefore, it is my opinion that if at all Parliament has sent the Bill to the President for his assent, the President should not sign it but send it back to Parliament and exclude himself from bad precedent. And by so doing, subsections (7) and (8) of Section 106 of the 1991 Constitution would come into play. Some of us are committed to ensure that the due process is done, no matter what the situation is, We believe in the Rule of Law. We would seek for a Judicial Review if the need arises but so far, we stand by the Court of Appeal’s judgment in the case of APC & OTHERS V THE SPEAKER OF THE HOUSE OF PARLIAMENT & OTHERS (CIV.APP.NO.13/2000) [2002] SLCA 3 (10 January 2002).

 

In conclusion, as a concerned citizen, I am asking the President and the government to adhere to the tenets of the rule of law and allow the due process of the law in its effort to abolish the death penalty. The Abolition of the Death Penalty Act, 2021, is a manifestation of a travesty of justice and maintaining Section 16(2) having altered Section 16(1) is a recipe for distrust and suspicion of a hidden agenda which some of us would stand against. In the interest of peace, unity, justice, love and respect for our fundamental Human and Democratic Rights, allow us as electorates, as per law requires, to exercise our rights in the decision making process as enshrined in our revered Constitution in Section 108(3) of the Constitution of Sierra Leone (Act No.6 of 1991). In nutshell, there would be no Abolition of Death Penalty Act, 2021, unless a referendum is done to effect it! The so called ordinary or subordinate laws which the Parliament has amended are not as ordinary as people are tempted to think. The effect of repealing those legislations has rendered Section 16(1) irrelevant and inoperative, thus amounting to the alteration of an entrenched section.

 

The repeal of those legislations has deprived Section 16(1) of its recognition of the death penalty. That deprivation is effectively an alteration which can only be legally sustained by way of a referendum as stated in Section 108 particularly Section 108(3) of the Constitution. The drafters of the 1991 Constitution could not have intended a dormant Section 16(1) or any other provision of the Constitution for that matter. All provisions of the Constitution are operative, not dormant. It is worthy to note the definition of the term ‘alteration’ in this discussion. The Oxford Dictionary of Law (8th Edition) defines alteration: A change that, when made in a legal document, may affect its validity. With this I will conclude that my argument relies on Section 171(15) of the Constitution of Sierra Leone, Act No. 6 of 1991.

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