TO RESIGN OR NOT TO RESIGN: UNWRAPPING THE CONSTITUTIONAL CONUNDRUM OF THE “12 MONTHS PRIOR” RESIGNATION REQUIREMENT FOR PRESIDENTIAL ASPIRANTS
By: Francis Ben Kaifala Esq.
(A Renaissance Leader)
As the curtains draw on the 2nd and final term of the current President of Sierra Leone and with the announcement of a date for the holding of presidential elections, the debate over the construction of the provisions of the 1991 Constitution of Sierra Leone (“the Constitution”) relating to the resignation of “public officers”, or holders of “public office” has once again taken centre stage in legal and political discourse, and is perhaps even more impassioned than the controversy surrounding the date of the elections itself.
This constitutional conundrum stems from two provisions in the Constitution: Firstly, in the qualification for election as President as outlined in Section 41 of the Constitution, which stipulates as follows:
“No person shall be qualified for election as President of Sierra Leone unless he:
- Is citizen of Sierra Leone
- Is a member of a political party
- Has attained the age of forty years; and
- Is otherwise qualified to be elected as a member of Parliament”
From the above provision, it can be seen in Section 41 (d) that to be elected president, not only should you satisfy the cumulative qualifications set out in section 41 as outlined above, one should also satisfy all the requirements that qualify or disqualify one being elected a Member of Parliament. Those provisions that disqualify one from being eligible for election as a Member of Parliament are found in section 76 (1) of the Constitution and the relevant sub-section being section 76(1)(b) states as follows:
“No person shall be qualified for election as a Member of Parliament—
(b)if he is a member of any Commission established under this Constitution, or a member of the Armed Forces of the Republic, or a public officer, or an employee of a Public Corporation established by an Act of Parliament, or
has been such a member, officer or employee within twelve months prior to the date on which he seeks to be elected to Parliament”
From the above provision, it can be seen that Section 76 (1) (b) of the Constitution inter alia expressly disqualifies “public officer” who does not resign his/her position “within twelve months prior to the date on which he seeks to be elected to Parliament” from being eligible to be elected President.
It is this “12-months-prior-resignation-for-Public-officers” requirement for an aspiring member of Parliament that has brought the cloud over presidential aspirants’ position 12 months prior to their election when they hold actual public office. The question is whether or not that requirement also applies to Presidential aspirants under section 41 (d) of the Constitution.
This question of law came before the Supreme Court for determination in the Case of CHARLES FRANCIS MARGAI V. SOLOMON EKUMA BEREWA (2006) Unreported. The issue put before the Supreme court presided over by Ade Renner-Thomas, then CJ, and on the panel U. H Tejan Jalloh JSC, G. Semega-Janneh JSC was whether Solomon Ekuma Berewa, the then Vice President of the Republic of Sierra Leone was a “public officer” within the meaning of Section 76 (1)(b) of the Constitution of Sierra Leone and whether he ought to have resigned twelve months prior to being a candidate for election in the 2007 Presidential Elections.
The simple question before the Learned Supreme Court Justices was to determine who a ‘Public Officer’ was within the meaning of the Constitution and then apply that definition to Vice President Solomon Ekuma Berewa. They however, curiously proceeded to define “public service” in addition to the relevant terms and then applied that definition to Solomon Berewa which resulted in a decision that, based on the express exclusion of the office of the Vice President inter alia from those who in the Constitution do not include in the meaning of the definition of “public service”, the Vice President ought not resign 12 months prior to presenting himself as a candidate for election in the presidential election. The crux of the reasoning of Chief Justice Ade Renner Thomas was as follows:
“It is my considered view that the three terms “public Officer” “public office” and “public service” are inextricably linked. Thus, based on this premise, one can properly state that a public officer is a person who holds a public office in the public service of the government of Sierra Leone.”
It is certainly questionable why the Learned Justices saw the need to leave the two expressed terms and add a third and then base their ratio decidendi on that third term. It is my view that the real reason why “public service” was added to the two terms which are relevant to determining this issue was because, the definition of “public service” is narrower than the other two more relevant and unambiguous terms in the Constitution and there is a very wide exclusion of several offices paid from the consolidated fund from its meaning in Section 171(4) of the Constitution including that of the Office of the Vice President. Section 171 and 171(4) respectively state as follows:
"public service" means, subject to the provisions of subsections (3) and (4), service of the Government of Sierra Leone in a civil capacity and includes such service in respect of the Government existing in Sierra Leone prior to the twenty-seventh day of April, 1961;
(4) In this Constitution "the public service" does not include service in the office of President, Vice-President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament, or of any member of any Commission established by this Constitution, or any member of any council, board, panel, committee or other similar body (whether incorporated or not) established by or under any law, or in the office of any Paramount Chief, Chiefdom Councillor or member of a Local Court.
From the above, it was, with respect, too wide a net cast by the Supreme Court Justices just to include “public service” in the determination sought when “Public Officer”, as expressly named in Section 76 (b), and “public office” - which stems from that definition, were both CLEARLY defined by the Constitution and it was the definition of those two terms primarily that the Supreme Court needed to apply in order to determine whether Mr. Berewa as then sitting Vice President was a public officer and ought to have resigned or not 12 months prior to the stipulated date for elections in 2007.
The relevant term “Public Officer” is defined in Section 171 (1) of the Constitution as "a person holding or acting in a public office”. The only other question that should naturally flow from such a definition should be: “What is “public office” then?”. The answer to that question is found in the very paragraph above the meaning of “Public Officer” in the very Constitution; and it states as follows:
“"public office" includes an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament”
This definition is so clear that it was completely unnecessary, in my humble opinion and with due respect, for the Supreme Court Justices to state: “In light of the above, I am also of the view that one cannot properly answer the question whether the 1st Defendant is a public officer without averting one’s mind to Section 171 (4) of the Constitution” which defines “public service”. This was an unnecessary veer in the wrong direction by the Supreme Court which resulted in their adding to the definition of a “public officer” as being “a person who holds a public office in the public service of Sierra Leone”. That addition by the Supreme Court Justices of the prepositional phrase “. . .in the public service of Sierra Leone” to an already clear definition in the Constitution was a deliberate addition to the meaning of the term “public officer” which was already CLEARLY and UNEQUIVOCALLY defined in the Constitution without that addition. Other than add to the definition, what the Supreme Court was to have done was to apply that CLEAR UNEQUIVOCAL definition to the Respondent; and by not doing so, they took an unnecessary wrong turn that, with respect, led them to the wrong conclusion per incuriam.
Had it not been for this decision by the Supreme Court, the analysis would have been as follows: section 76(1)(b) makes it mandatory for anyone wanting to vie for the position of president to resign from public office (not public service) within twelve months prior to the next election in which s/he wishes to vie. Going by the definition of “public office” in the Constitution, i.e. the holder of an “office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament”, the real question that each person wanting to vie for the position of President in the next Presidential election would be, “from what source does the salary I currently earn emanate?” If it comes from the “consolidated fund” or through an allocation by Parliament, then that person ought to adhere to the stipulations in section 76(1)(b), advise himself accordingly, and resign immediately before it turns out to be too late, if it already is not, lest s/he may fall foul of the requirement to be elected president under section 41(d) of the Constitution.
That said, while that decision was, in my humble opinion, reached per incuriam, firstly, I appreciate the difficulty that the Supreme Court Justices then faced because, strictly applying the “consolidated fund” and “moneys provided by Parliament” test would result to even a sitting president being barred from re-election if he does not resign twelve months prior to the election (because his salary is paid from the Consolidated Fund or provided by Parliament) – and nothing would have been more practically absurd than that. Secondly, my personal view is that a 12-month resignation requirement is unprogressive, too wide and unnecessary for public officers wishing to vie for the presidency and should be totally expunged from the Constitution. Moreover, it remains a decision of the Supreme Court and has to be respected and applied until it is overturned by legislation or by the very Supreme Court itself.
In conclusion, while the debate will rage on with likely divergent opinions, it certainly behooves anyone wanting to be elected president to rather err on the side of caution and resign now instead of falling foul of the “twelve-month prior” prescription of the constitution later. This is because, the issue was narrowly determined to favour Solomon Ekuma Berewa at the time and since it was not generally determined to cover all those expressly named in Section 171(4) as being unaffected - which includes the President, the Vice-President, Speaker, Ministers, Deputy Ministers, Attorney-General and Minister of Justice, Deputy Speaker, Members of Parliament, etc. and many others in public offices not named within that provision (including ambassadors, other civil servants, etc); all stand on a “quick sand” - as the Supreme Court can deviate from its own previous decision. All the justices of the Supreme Court who reached that decision are no longer in the Supreme Court and the political status quo prevailing then has also since changed. A new panel may just disagree with them and thereby shatter the presidential ambitions of persons who previously felt covered at a time when it would then be too late for them to retrace their steps. With the high number of aspirants from the two main political parties respectively, it would be a dangerous risk to continue in office while relying on a decision of the Supreme Court which, many agree, could have been determined otherwise on the proper application and construction of the relevant provisions of the Constitution.
Francis Ben Kaifala Esq. is the Managing Partner in the Law Firm Kaifala, Kanneh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LLM (Master of Laws) in Law & Economics from the School of Law and the School of Economics and Finance at Queen Mary University of London. Email: firstname.lastname@example.org