SAM SUMANA VS. AG & VICTOR FOH: A CASE REVIEW
By: Francis Ben Kaifala Esq.
After having the opportunity to read the 128 pages judgement of the Supreme Court of Sierra Leone which was decided with Justice Valesius Thomas (President of the Court), Justice Patrick Hamilton, Justice Vivainne Solomon, Justice Nicholas Browne-Marke, and Justice Ekundayo Roberts Sitting and giving individual judgements in favour of the Attorney General and Victor Bockarie Foh in the Sam Sumana Vs. The Attorney General and Minister of Justice & Victor Foh matter, this is the summation of my humble opinion by way of review only:
The judgement of the Learned Justices of the Supreme Court is based on the legal faux pas that 'if the Constitution does not say so, we (the SC Judges) think this is what should be done'. Basically, its ratio decidendi (main reason for the decision) is that 'what the law does not say you cannot do, you can do'. That is in fact in most cases wrong as one can only do what the Constitution says you can do. In this case, the powers of the President ought to derive from the Constitution and not from metaphysics - it is limited by the Constitution, not beyond it. In other words, the Supreme Court Justices in effect made a new law rather than interpret what was before them relying on a rather queer application of the purposive approach to legal interpretation - which, with respect, ought not be their business but that of Parliament.
To put this into perspective, since there are expressed procedures for the removal of the VP and the President or otherwise for the existence of a vacancy in either offices (Sections 50, 51, 49, 55) why import another means that does not exist and without precedent simply to fill a perceived void? That will be making new law (in the American Realist sense). If there is a deficiency in the law, to wit the absence of a stipulation as to what happens when the so-called "continuous requirement" is lost, judges ought not repose powers on someone (the president) who does not have such powers so as to remedy the anomaly. That will be outside their powers as interpreters of the law. They ought to declare it as such only (i.e. that there is a lacuna in the law), and leave parliament to do their job (i.e. remedy the impasse by a new law). This is what Separation of Powers is all about. The reasoning that the provision in Section 41 was continuous may have merit (even though I disagree with it vehemently) but the conclusion that the President has powers to sack the VP is, with respect, incorrect. It is one thing for a vacancy to arise; it is another for who can effect the vacancy. In this case, the Supreme Court Justices held that the President could effect the vacancy by sacking the elected Vice President rather than they focus on him having powers to take steps to fill the post as the constitution mandates under Section 54(5) when there is any such vacancy. It baffles me for the supreme court to hold that a vacancy had arisen by the Vice President losing his membership of a political party; but at the same time, they proceeded to rule that the President had powers to sack him and he was right to sack him. The question is, why sack someone who has lost his position? The best the Supreme Court judges could have said would be that by reason of the loss of the continuous requirement status by the elected Vice President after being expelled by the All Peoples Congress Party, a vacancy had arisen. Then, perhaps, the President would have been justified to exercise his right to replace the Vice Presidential post; as he is empowered to do under Section 54(5) of the Constitution in the light of that "vacancy". It is erroneous to say he has powers to sack the elected Vice President - as that would be ultra vires his powers in the Constitution and would be metaphysical rather than legal - and in this case, with respect, it was the wrong conclusion.
I must commend the Learned Justices of the Supreme Court for the clever analogy between "belonging to a party" and "citizenship" which stems from clever lawyering during the trial. I however respectfully contend that that particular provision relating to belonging to a political party is not a continuous requirement and equating it with citizenship is merely to exaggerate its use and create a bias in the minds of lawyers and citizens who feel strongly about citizenship (and many have been led to believe that they are right because of that rather emotional comparison); but serves no legal utility. Indeed, a sitting Vice President has to be a citizen; but I do not believe that the framers of the Constitution intended that he has to remain a member of a particular political party so as to remain in office. It is my humble view that once elected, the Vice president becomes a Sierra Leonean and accountable to the entire Sierra Leonean Citizenry and not to any political party (be it the one which put him on the ticket to run or another). When the framers of the Constitution wanted Parliamentarians to remain members of political parties, they CLEARLY stated that a parliamentarian would lose his seat upon ceasing to be a Parliamentarian (See Section 77K of the Constitution). Even for citizenship, Section 77d clearly makes a Parliamentarian lose his seat upon ceasing to be a citizen. NO SUCH CORRESPONDING PROVISION EXISTS FOR THE PRESIDENCY OR THE VICE PRESIDENCY. By the doctrine of Harmonious Construction, it would not be wrong to think that Parliament deliberately left it out so as to ensure security of tenure of those two offices.
In conclusion, the reasoning of the learned Justices (and they are all similar) that a vacancy had arisen may have merit (even if just for argument sake); but their conclusion that the President had "Supreme Executive Authority" (a rather vague expression in the constitution that confers no right or authority but merely entreats the person so described) to sack the elected Vice President, Sam Sumana, is, with respect, de-meritorious and unsupported by law. When that point was argued by the Learned counsel for the Attorney-General, I was expecting him to refer to some law that supports his point. I must say, with all due respect to him, that it sounded more logical than legal particularly when there was no authority provided to support it and neither did the Honourable Supreme Court Justices who were swayed by it provide one when relying on it to reach their decision. Had the Learned Honourable Justices simply held that by the removal of the Vice President from a political party a vacancy had arisen (which I contend is also not the case), they would have been instead justifying the appointment of a new Vice President (Victor Bockarie Foh) rather than the "sacking" of the elected Vice President (Sam Sumana). What they ended up doing was to justify the sacking by the President of the elected Vice President; which in my view, did not back their reasoning (that a vacancy had arisen) but rather deviated from it.
I therefore recommend that this anachronistic judgment be made to become a relic of history by our parliamentarians moving swiftly to amend the Constitution and override it; or rather that the Constitutional Review Committee makes it a duty to close the door on it before it is too late by CLEARLY providing in the new Constitution that the elected Vice President in the same manner as the PRESIDENT derives his authority from the PEOPLE and he cannot be sacked by the President without following impeachment procedures as set out in the Constitution. Similarly, it should be made clear that losing a party membership does not by itself make elected Presidents or Vice Presidents lose their positions. If that is not done, political parties and their executive will have more control over the executive than the citizenry - which will be unfortunate - and they can determine the tenure of a President and/or the Vice President who does not dance to their whims and caprices, thereby making a mockery of the Supremacy of the People over political parties and undermine our already fragile democracy.
Francis Ben Kaifala Esq. is a Senior Partner in the Law Firm Kaifala, Conteh & 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