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2023 Elections: Sierra Leone Supreme Court rules elections to be conducted on PR system

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2023 Elections: Sierra Leone Supreme Court rules elections to be conducted on PR system


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The Sierra Leone Supreme Court has unanimously dismissed a challenge against President Bio’s directive to the Electoral Commission of Sierra Leone (EC-SL) to hold the 2023 national elections on Proportional Representation (PR) system.

The matter was brought by Lawyer Joseph Fitzerald Kamara  who was Attorney-General and Minister of Justice of Sierra Leone (2016-2018) and Anti-Corruption Commissioner (2010-2016) under the opposition All Peoples Congress Party (APC)  and Partners on behalf of the first Plaintiff,  Hon. Abdul Kargbo from the APC and the second Plaintiff, Councilor Hakiratu Maxwell-Caulker from the APC against the Attorney General and Minister of Justice as first Defendant and the EC-SL as the second Defendant on the holding  of election on the PR System.

In their declarations, the Supreme Court Justices; Hon. Justice D.B. Edwards (presiding), Hon. Justice N.C Brown-Marke, Justice M. Deen Tarawally, Hon. Justice Alusine Sesay and Hon. Justice A.I Sesay dismissed claims brought by the Plaintiffs.  “An order restraining the 2nd Defendant, Electoral Commission, its agents, servants, privies or however called from taking steps aimed at conducting the June 2023 multitier public elections on the District Block Proportional Representation system is refused,” according to the judgment.


The Plaintiffs, represented by legal luminary Dr Abdulai Osman Conteh submitted that the case was not about the merits or demerits of a Proportional Representation System. At the heart of this case, he argued that the crucial issue of whether the 2023 multi-tier Elections involving Parliamentary and Local Councils Elections should be held through a proportional representation system which he concluded strikes at the heart of the Rule of Law in that whether we can truly say as a country we are governed by the Rule of Law and the Constitution of Sierra Leone. He further submitted that the proportional representation was not an Alternative System of Election in a Democratic Country governed by the Rule of Law.


The Plaintiffs argued that it was Section 38 A (1) of Constitutional Amendment Act No.15 of 2001 that introduced such system but that it must be read in conjunction with Section 38 (1) of the Constitution of Sierra Leone Act No. 6 of 1991 which had imposed a Constituency based Election in which case it must be concluded that Section 38A is NOT (FREE STANDING) OR ULTRA MED.


Thus, the Plaintiffs argued the powers vested in Section 38A of the Constitutional Amendment must be exercised within the parameters of the Constitution Act No.6 of 1991 which provides that Elections be constituencies based as in Section 38 (1) thereof.


The Plaintiffs further submitted that apart from it not being free standing, this case was about the limit of that power vested on the President and that of the Electoral Commission and when and how that power to run Elections by Proportional Representation system could be lawfully exercised. The Plaintiffs submitted that it was against this background that they were submitting that the directive given by His Excellency the President to the Electoral Commission for it to run the 2023 Elections following the alleged consultation with the Electoral Commission to be (ultra vires) the Constitution.


The Plaintiffs argued that they were not questioning the directive per se except that it was ultra vires to the Constitution because there were already existing constituencies.  The Plaintiffs further questioned whether the Electoral Commission was right in advising the President to make such a directive when the conditions precedent in their estimation has strictly not been met or followed.


The 1st Defendant opposed the granting of the reliefs prayed for. With regards to the unconstitutionality of Statutory Instrument No. 13 & 14 of 16h November 2022 they argue that at the time of filing this Originating Notice of Motion by the Plaintiff that Instrument was not yet Law but as of now the Instrument has received the certificate of maturity and it is now law in which case it cannot be regarded as unconstitutional.


On the  issue of whether the conditions precedent for the bolding of Elections through PR which related to the 1st, 2nd, 3rd, 4th, 5th & reliefs prayed, the 1st Defendant’s Counsel, Solicitor-General argued that the Plaintiffs were not reading Section 38A in full and that a full reading of it would no doubt bring into focus that it was not that constituencies do not exist but that they have not been established in accordance with subsection (3) of Section 38 for the purpose of such Elections.


Defendant submitted that a midterm census was concluded with results published in September 2022, which results necessitated a review of the current existing Constituencies. However, because of the ECOWAS Protocol & Section 18 of the Public Elections Act No 17 of 2022, it was impossible to conduct any exercise to delimit boundaries without offending the aforesaid provisions.  The defendant argued that the advice by EC and the directives given by the President were within the mandate of the Law provided in Section 38A.


On the issue of independent candidates, Mr. Kowa, the Solicitor General submitted that no independent candidate has brought a claim before this court and for that issue to have been raised by a non-independent candidate was against the principle established in the Hinga Noman case on locus standi as the so-called Plaintiff lacked locus standi. He argued further that assuming that the court was inclined to consider the relief prayed for that the Statutory Instrument Nos. 13 & 14 have made adequate provisions for that in Regulation 10 thereof.


In their argument, Defence Counsel, Dr. Emmanuel Saffa Abdulai concentrated on the reason why the Electoral Commission was compelled to take the action of advising the President and the fact that the Plaintiffs’ Counsel had said that there was no reason or the reason being very weak.


Defence Counsel posited an 8-part test to determine whether the 2nd Defendant the Electoral Commission acted beyond its powers as follows:


  1. whether EC acted reasonably
  2. whether EC had followed due process
  3. whether it is within the remit of that institution to do what they did
  4. whether the decision is rational and evidenced based
  5. whether the decision was taken in good faith
  6. whether the decision was published after it was taken

vii. whether the decision served proper purpose

  1. whether the decision was published after it was taken

vii. whether the decision served proper purpose

viii. whether proper consultation was done.


Defence Counsel submitted that the decision of the Electoral Commission met all these requirements. On the issue of Local government, Defence Counsel, submitted that there has never been a law for Local Government Elections excepting the Public Elections Act and through Regulations which are made pursuant to Section 33 of the Constitution of Sierra Leone 1961.


Defence Counsel concluded that , with the new census results it was necessary to delimit boundaries of constituencies which EC was unable to do because of the ECOWAS PROTOCOL AND SECTION 18 of The Public Elections Act 2022 which meant that laws for election must be settled before 6 months to the elections; and to use the current constituencies would be most undemocratic as it would exclude a lot of people who have been captured by the recent census which was showing an increase in population of 57,000plus people spread across various districts and localities. He urged the court to refuse the reliefs prayed for.


Reading out the judgement, Supreme Court Chief Justice, His Lordship Justice Desmond Babatunde Edwards, stated that on a proper construction of section 38A (1) of Constitutional Amendment Act No 15 of 2001 all conditions precedent for the holding of or conducting of general elections of ordinary Members of Parliament through a District Block Representation system were met and/or fulfilled.


That the directive given by His Excellency the President to the Electoral Commission of Sierra Leone to hold the 2023 Public elections for ordinary Members of Parliament by the District Block Representation system instead of Constituencies was in tandem with the provisions of the Section 38A (1) of the 1991 Constitution as Amended and therefore not ultra vires.

That the current parliament will soon be dissolved and thereafter all constituencies currently existing will be extinguished for purposes of representation in Parliament in favour of representatives representing each of the 16 districts of Sierra Leone inclusive of independent candidates who secure the minimum threshold for the attainment or securing of seats in parliament.


That the revision of constituencies as provided in section 38 (4) does lead to alteration of the number and/or the establishment of constituencies subject to parliamentary approval.


That independent candidate can and are part of the electoral system and can stand and be voted for to be included in any of the seats representing the existing 16 districts in the Country.


That Statutory Instrument Nos 13 and 14 of 16 November 2022 are part of the Laws of Sierra Leone and are not ultra vires Sections 33 and 38 of the Constitution Act No 6 of 1991; section 38A of the Constitution as amended in 2001 and section 171 of the Public Elections Act No17 2001.

That pursuant to and subject to the current law in the country inclusive of the Constitution and Statutory Instrument Nos 13 & 14 of 16h November 2022, Local

Council elections will be expected to by the District Block Representation system approved as the mode for the 2023 elections

An order restraining the 2nd defendant, Electoral Commission, its agents, servants, privies or however called from taking steps aimed at conducting the June 2023 multitier public elections on the district block proportional representation system is refused

An order directing the 2 defendants to hold the June 2023 Elections for ordinary Members of Parliament and Councillors on a Constituency, or Wards basis is refused.

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