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Christian Lawyers Centre known as LEGAL LINK has outlined 10 reasons why a ban on street rallies as campaign tools “may be wrong, unjust, illegal, exaggerated and misplaced.”
Legal Link made this stance in an Advisory Opinion issued on Tuesday 4 April 2023, after keenly following discussions around banning of street rallies and campaigns in the weeks leading to the June 2023 elections.
“Of particular note is the attempt by PPRC to partner with political party representatives and surreptitiously enter into illegal agreements that seek to erode away the enjoyment of certain fundamental human rights guaranteed under entrenched clauses in the 1991 Constitution of Sierra Leone,” Legal Link stated.
In this legal advisory opinion therefore, Legal Link has advanced 10 reasons as to why the proposed ban on street rallies and campaigns is wrong, illegal and misplaced.
The 10 reasons are stated below:
1) The ban violates key fundamental human rights guaranteed under the 1991 Constitution of Sierra Leone.
These rights include the right to freedom of movement ( section 18) and the right to freedom of assembly and association( section 26). Such rights serve as the life blood and engine for democratic participation in any electioneering process. Banning street rallies and campaigns will directly violate the right to freedom of movement, freedom of assembly and association, freedom of speech and the right to hold opinions.
Agreed that these rights can be limited in exceptional situations as provided under the constitution. However, for these exceptions to apply, it behoves a judicial process to determine the merit of those exceptional situations and not just state actors and political party representatives.
2) A ban on street rallies and campaigns might weaken political participation and enthusiasm in a country’s democratic process.
Where people are not allowed to freely move, interact and engage in democratic campaigns as designed by their parties, there’s the tendency to discourage them and ultimately hinder their effective participation in the electioneering process.
3) The ban conflicts with Sierra Leone’s human rights obligation on International law.
It is important to also note that Sierra Leone is a signatory to many international and regional treaties, conventions and protocols that puts obligation on the country to guarantee the rights to movement, assembly, association and the right to freedom of speech and to hold opinions in a democratic society. Such treaties and conventions include the *Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights and the African Charter on Democracy, Elections and Governance to name but a few.
A ban therefore of these fundamental human rights outside of a judicial process will hurt our international reputation as a democratic nation.
4) A ban will instill an atmosphere of fear and panic before, during and after the elections.
When unreasonable fear is injected into the minds of the voter population prior to an election, that election will not meet the threshold / standards of international best practice and hence cannot be said to be free and fair. This is the case because, elections must not only be free and fair but must also be free from fear.
5) A ban further makes room for laziness and complacency to fester within our security architecture.
Securitization of an electioneering process is a primary function of the security sector in a democratic society. Citizens pay their taxes to get such protection in such moments and not the other way round.The government should do all in their powers to provide the Security forces with the needed resources and gadgets to effectively police the electioneering process which also includes rallies and campaigns in a professional way.
6) Such bans are always void of due process.
It is no gainsaying to opinionate that such bans are often decided behind backyard kitchens by a few men leaving the courts and the majority of voters left out and without having a say. This is certainly an erroneous standpoint.
It is trite and settled law that limitations of fundamentally human rights enshrined under the Constitution should never be done without reference to a judicial or Parliamentary process.
This was the ratio held by the Supreme Court in the case of Augustine Sorie Sengbeh Marrah Vs the Inspector General of Police regarding the banning of vehicular movement on polling day. The court held that the IG was wrong to have curtailed such rights without the involvement of a parliamentary or judicial process.
7) Bans on political rallies also makes room for political apathy to fester amongst voters in the nation.
Voters are usually incentivize when campaign rallies take place before the general elections. Amongst other things, they are able to measure in detail the strength of their voter turnout as against opponents, success in their strategies of wooing the public on their side and can even make projections regarding voter turnout on polling day to vote for their prospective candidates in the elections. All of the above may be lost when street rallies and campaigns are banned in a democratic society.
8) The practice of calling representatives of political parties to agree to illegal measures that erodes away the fundamental human rights of citizens is inconsistent with the spirit and object of the 1991 constitution.
According to section 171(15) of the 1991 constitution, any law, order, agreement, policy etc that is inconsistent with the 1991 constitution is null and void to the extent of it’s inconsistency. It is irrelevant as to which institution or person was involved in that agreement, policy, MOU or order. If it conflicts with the 1991 constitution, then it is null and void.
9).It is vital to pinpoint that any ban that infringes on the fundamental human rights of citizens must pass the four tests under international human rights law:
The four tests are listed below.
1) The test of legality. This means that the person or institution limiting the right must show the express provision in the law that gives it or him the express right to so do.
2) The test of justifiability: This means that clear, convincing and acceptable reasons must be given by the person or institution limiting the right that justifies the limitation of such rights.
3) The test of reasonability: This means that the limitation must be reasonable and measured in the given circumstances.
4) The test of necessity: This means that the limitation of such rights must be truly and absolutely necessary to be rolled out within a democratic context.
The question therefore that comes to mind when assessing this test would be thus: is the baning of peaceful street rallies and campaigns necessary in a democratic society?
While the test of justifiability and reasonability are often achieved by the state, it is difficult if not impossible for state actors that limit rights to usually pass the tests of legality and necessity. This is currently true in the case of the PPRC.
10) The ban may still not erode the possibility of street rallies and campaigns taking place since supporters may need to ply the streets to access designated field centres or halls to do their campaign rallies.
Except if PPRC or the police can helicopter supporters to field campaign sites, the possibility will still exists for street rallies to take place despite the ban as people will still have to ply the streets to access field campaign centres.
