The Solicitor-General of the republic of Sierra Leone Robert Baoma Kowa has in the matter between the Electoral Commission of Sierra Leone (ECSL) and the office of the Attorney General and Minister of Justice, emphasized that the Deputy should fill the vacancy after the death of the Kenema District Council (KDC) Chairman Mohamed Amadu Sesay.

Honourable Justice Momoh Jah Stevens of the Freetown High Court No.1 is to determine whether the deputy of the KDC should fill in the vacancy following the death of the substantive chairman which is the position of the Solicitor-General, or whether a bye-election should be conducted to occupy the vacuum which is the position of the legal team of ECSL.

Especially when there is absence of an expressed provision in law as to how the vacancy can be filled, the learned solicitor-general invoked the rule “Casus Omissus”, which speaks to the effect of an omission in a legal instrument i.e. the Local Government Act (LGA) of 2022.

Even though the legal opinion of the solicitor-general is not a law but a respective authority, he submitted that whether on a true and proper absence of any provisions, the deputy should occupy the position of the chairman of the Kenema district council pursuant to section 13 and 15 of the LGA 2022.

Robert Kowa esq. stated that whether the absence of the substantive Chairman is temporary or permanent, it is crystal clear that the office has become vacant through death which constitutes both silence and absence.
The solicitor-general underscored the fact that both the chairman and his deputy were elected by the residents of Kenema district through universal adult suffrage which must be taken into consideration.

“Having ravaged the entire LGA 2022, the only provision that talks about vacancy and how it can be filled in the absence of the district council chairman can be found in section 15 sub-sec 1 which is so instructive,” he noted.

Lawyer Robert Baoma Kowa argued that both the chairman and his deputy were elected on a joint ticket which means they are Siamese twins and therefore inseparable when it comes to elections, and went further to indicate that the only thing that can separate them is death.

In an event when the inevitable occurs, the solicitor-general pointed out that section 15 sub-sec 3 of the LGA 2022 which is the only expressed provision of the Act and in the wisdom of parliament to fill in the vacancy is for the deputy to assume the position of district council chairman.

According to the learned counsel Robert Kowa, the aforementioned provision is clear, simple, straight forward and unambiguous, because the plaintiff has reduced the principle of interpretation to the literal and purported reading of section 15 sub-sec 3 which is popularly understood. This is so because, when the head is absent the deputy must take charge.

He said the intention of parliament was to give the provision a meaning that may not result to absurdity or inconsistency because the fact has stated that the deputy must act in the absence of the substantive which is a simple way of averting a bye election.
“If the intention of parliament was to allow for the conduct of a bye election, parliament should have expressly provided for it,” he pointed out.

In the 2004 local government act which was repealed and replaced by the LGA of 2022, it was clearly stated that a bye-election must be conducted to fill a vacancy of the district council chairman, therefore the solicitor-general contended that, to omit the same in the new act should not be used to redraft the legislation.
Robert Kowa esq. went on to urge that as lawyers they must not fill a gap under the guise of interpretation, as according to him, the court must give effect to what the Act says or permits and not to what it thought it ought to be.

“The court should not supply a legal omission which could lead to undesirable consequences, for doing so is a legislative and not a judicial function, because the court has no power to fill such an omission,” he clarified.

Solicitor-General, Robert Baoma Kowa dismissed section 9 and 10 of the LGA which are the provisions relied on by the legal team of ECSL, which he carefully contended, cannot be imported to fill a vacancy that occurred under section 13 and 9 which talks about a vacancy in the seat of councilors.

Upon the death of a councilor, he maintained that section 9 and 10 is very clear and specific because it mention the conduct of a bye-election to fill a vacancy when there is demise of a councilor, however he went on to note that the same doesn’t apply with the death of the district council chairman.
“With the insertion of section 13, parliament is deliberate not to conduct a bye election at the expense of filling the vacancy through replacement by the deputy which is the best practice both national and internationally,” he affirmed.

The legal luminary draws parallel to section 49 sub-sec 4 of the 1991 constitution which out rightly states that the vice president must assume the duties and function of the President in the event there is a vacancy in the seat of the Presidency. In that regard, he warns that the importation of non-applicable laws will lead to crisis.

Before making his final submission, lawyer Robert Kowa clarified a statement provided as evidence in the affidavit of the defense that Justice M.A.J Stevens did not grant an interim injunction on the conduct of a bye-election but a stay which should not be interpreted as an argument.

“We are of the view that if the questions are answered in the affirmative, then the deputy must be allowed to occupy the seat of the former Kenema district council chairman,” Solicitor-General Robert Boama Kowa concluded.

In his submission, the lead defense counsel of ECSL Emmanuel Saffa Abdulai argued that a councilor is a member of the local council, and the composition of the council begins with the chairman, and thereafter a deputy and the councilors.

Therefore, he reasoned that if section 9 and 10 of the LGA 2022 makes it mandatory for a councilor to be replaced through a bye-election in the event of the death of a councilor, the same could apply when the head of the district local council dies. The matter has been adjourned by Justice M.A.J Stevens to Friday 4th September 2024, at 3:0clock for the continuation of the submission of the lead defense counsel Emmanuel Saffa Abdulai esq.