KKY CASE: Pauline Supreme Court Delivers Solomonic Judgment

   Andrew Keili, author

On the face of it, the Supreme Court’s announcement that it would deliver judgement on the election case brought to the court by the plaintiff, David Fornah against NGC leader Dr. Kandeh Yumkella (KKY) should have been treated as a normal issue. After all, KKY had renounced his American citizenship before the elections and the plaintiff’s lawyer had withdrawn the case. Although some people regarded this as a routine issue, many ardent NGC supporters were suspicious this might be a ploy to remove KKY from his Parliament. The announcement by the judiciary that the proceedings were going to be televised live fueled speculations that something “big” was going to happen.

Indeed, the judiciary has over the years given some judgments in election cases that many may consider spurious. I commented thus in this column on this mistrust some time ago thus:

“The actions and inactions of the judiciary continue to cause political turmoil in this country. The unfortunate part is that their judgments on major political issues often seem to be mirror the views of the Executive, overtly or covertly. To make matters worse, more often than not these also result in the reshaping of the third arm of government, Parliament. So with one stroke of the pen, they seem to unwittingly make nonsense of the separation of powers!”

The cases involving constituencies 5 and 15 in the Kailahun and Kenema Districts respectively after the 2012 elections had the court ruling delivered some fifteen months after the elections. The learned Judge ordered that the SLPP candidates’ votes be nullified and the results of the elections read. The ruling essentially disenfranchised the constituents and sent to Parliament representatives for the APC party which they overwhelmingly voted against in these constituencies-In the case of Constituency 5, the APC candidate who ‘won’ had got less than 20% of the votes.

Fast forward to the 2018 elections. The aftermath of election petition cases resulted in catapulting ten SLPP MPs who came second in the elections into Parliament. Questions bordered on several issues – How can the second place candidate be automatically catapulted to be an MP against the will of the people without a bye election?

The Supreme Court’s defence of the Supreme Executive Authority of the President resulting in its endorsement of the removal of Vice President Sam Sumana from office left many people scratching their heads.

Sceptics could be forgiven for thinking that this would be another case of déjà vu. And so the nation listened with rapt attention to the Supreme Court Judges. It soon became clear that apart from passing judgment on KKY’s eligibility, they each were carefully dissecting the constitution and various laws related to the important issue of citizenship.

Justice Nicholas Browne Marke, the Presiding Judge made it clear that in any case KKY had been exonerated as he had renounced his USA citizenship before the hearing and the elections. They would go beyond this to answer the question of “who is a citizen of Sierra Leone in terms of the Constitution of Sierra Leone, 1991 – Act No. 12 of 1991 for the purposes of contesting Presidential and/or Parliamentary elections; and at what point in time that person loses his citizenship, and whether having lost it, he could regain it at a later date.”

Each of the judges carefully gave their interpretation of the constitution and the statute, the Sierra Leone Citizenship Act, 1973 and its amendments in 1976, in 2006 and in 2017, and the Public Elections Act, 2012.

Justice Browne Marke gave his summary and conclusion thus:

“This specific provision throws open for argument the issue of whether a Member of Parliament elected as such, at a time when he held dual nationality, could be asked to vacate his seat for that reason, though he continues to hold Sierra Leone citizenship. It seems to me that he could not so long as he continues to hold Sierra Leone citizenship. Though possessed of dual citizenship, he would be qualified in terms of section 77(1)(g) of the 1991 Constitution, to be registered as an elector for election of Members to Parliament. There is no disability attached to dual nationality for the purpose of being eligible as an elector under the PEA,2012.”

The other judges, save from one dissenting voice, were in general agreement, though arriving at the conclusion from differing angles.

Justice Glenna Thompson weighed in on the issue of whether section 76 (1)(a) of the Constitution disqualifies Sierra Leoneans who hold dual citizenship from standing for parliament by stating:

“The effect of this is that the disqualification of Sierra Leonean citizens who voluntarily hold citizenship of another country by virtue of section 76(1) (a) is now only relevant to elections conducted before the 2006 Act was passed. If it needs stating, the law as it now stands is that Sierra Leonean citizens who are voluntarily citizens of another country are no longer disqualified from standing for Parliament.”

And so, it appeared that the learned judges were in fact saying that dual citizenship should not disqualify one from being a Member of Parliament.

It was Justice Glenna Thompson who went further than the others in justifying why the constitution must be interpreted to reflect society’s evolution and progressive attitudes. Her remarks could be considered anathema to arch conservatives, especially on the citizenship issue. She stated:

“If as stated above, the constitution is a living document, then it must adapt and respond to changes in society’s attitudes. It could not surely have been the intent of Parliament to give to some of its citizens a right whilst leaving in place provisions which deprived them of the benefits of that same right. On the occasions where parliament does not act, this court must step in to ensure that the constitution or any enactment is interpreted to reflect society’s evolution and progressive attitudes particularly towards gender, tribe, religion, race or citizenship, so that no one group or part of a group is left.” Profoundly progressive!

There is little doubt that the Judges have made us a lot more aware on the issue of citizenship and eligibility for elections.

Justices Nicholas Browne Marke, Eku Roberts, Glenna Thompson, Alusine Sesay and Sengu Koroma should be congratulated for shedding greater light on such an important issue. The Chief Justice should also be commended on this openness and seeming “independence” displayed by the Judges.

There have however been some comments made by some learned lawyers that the judgment is not as clear as they would have wished and that it still does not mean that the “two-sim issue” has gone away. In their view, the law would need to be changed first. Not surprisingly, others disagree and cite the supreme court ruling as essentially nullifying this. Well, whatever the case, at least this is progress!

This brings us to the matter of the need to simplify many of our legal rules and also pursue the matter of the new constitution. I can only point to the advice given in the conclusion of the TRC report: “Access to justice can also be achieved through a simplification of legal rules so that they may be understood and used by anyone.”

The current government has said it is still reviewing Justice Cowan’s CRC report and is committed to meaningful constitutional reform. This government and the previous two have however spent a total of over fifteen years on discussions and review of Draft constitutions but none of them have been bold enough to move forward. What an indictment! Dr. Peter Tucker had almost completed a new Draft constitution at the tail end the tenure of the President Kabbah’s government. Justice Cowan was commissioned by the Koroma government to produce a new constitution. He completed this and a new Draft constitution which was bold on issues such as citizenship and land tenure and others thorny national issues.

The government has thankfully however taken onboard some progressive issues like the changes to the criminal libel law, abolition of the death penalty and more recently gender empowerment and representation and the “two-sim” issue. Incidentally the latter two have also been issues that have long been championed by Dr. Yumkella who has even gone further to address other issues related to greater inclusiveness like shortening the period of resignation before elections for public officials. Unfortunately, it would seem that they are singing from the same hymn sheet but in different rooms with discordant voices and without a choir master! Hopefully there will come a time when we will no longer have what I choose to call “Judiciary MPs”, who get into Parliament because of the machinations of an irrational judiciary and/or bad laws.
Meanwhile I would lie to remind Parliament of Justice Thompson’s advice that Parliament should make laws to reflect society’s evolution and progressive attitudes particularly towards gender, tribe, religion, race or citizenship, so that no one group or part of a group is left out, or else the court’s intervention would be justified.

As a postscript I will shy away from discussing politics and reproduce what one irked NGC supporter told me about the case, without comments:

“This David Fornah was an errand boy. He had already inflicted grave damage to NGC and KKY, whether or not the case was resolved. Imagine going into an election with supporters and potential ones not certain their leader would not be ultimate disqualified. This was a sure recipe for the NGC to lose support.”

Congratulations are in place for the judiciary and in particular the Supreme Court which seems in the eyes of many to have undergone a “Saul to Paul” conversion to make such a wise judgment. Pauline Supreme Court Judges have truly delivered a Solomonic judgment and redeemed the judiciary.
Ponder my thoughts.
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Critique Echo Newspaper is a major source of news and objective analyses about governance, democracy and human-right. Edited and published in Kenema city, eastern Sierra Leone, the outlet is generally referred to as a level plying ground for the youths, women and children.

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