1) The make-up of Bio’s technical committee that reviewed the Justice Cowan CRC report and the 2017 white paper lacks inclusivity and was dominated by politicians

Notable in the make up of the Technical Committee is the absence of representatives from civil society organizations, right groups, political parties, women groups, youth groups, journalists, disability groups, constitutional law experts, the donor community, international human rights groups, independent consultants etc

Almost all of the technical committee members in the review process were either ministers or government appointees selected mainly to advance government’s interest throughout the process. It is risky to allow politicians dominate the constitutional review process.

This is the case because the making of a constitution is a socio-legal affair that requires a whole – of – society – approach if acceptance and legitimacy is to given to the review process. This is perhaps the biggest setback to the Bio led review process. The process denied the presence of key experts and rights groups that would have ensured a progressive constitution.

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2) The standard of the Technical Committee appears to be the 2017 Ernest Koroma White Paper on the CRC process

A cursory look at the findings of the Technical Committee will reveal that the blueprint or standard that influenced their report and subsequently the white paper appears to be the 2017 white paper of the past government.

Little wonder the repeated mentioning and unnecessary comparison between the 2017 white paper and the Bio government white paper during the launching ceremony by the president Bio in January 2022.

LEGAL LINK asserts that it is the Justice Cowan CRC report that should have been the benchmark and standard and not necessarily the 2017 white paper of the former government. This is the case because the Justice Cowan CRC review report was comprehensive, people driven, all encompassing and all- inclusive in outlook while the 2017 white only accept 34 of the 134 recommendations.

 

3) There’s confusion and unclarity as to the number of recommendations rejected or accepted by the BIO- led government

It is not clear as to how many of Justice Cowan’s led CRC recommendations were accepted or rejected by the Bio – led government in its white paper. In some instances, there is even a complete silence on some of the recommendations mentioned in the Justice Cowan Report by the Bio government.

This style of adoption or review makes it difficult to ascertain statistically the amount of recommendations accepted or rejected and also whether the BIO- led government white paper is progressive or not.

In the 2017 government white paper for example, it is clear that over 100 recommendations were rejected out of the 134 that were recommended by the Justice Cowan CRC report. Hence, the reason why it was characterized as a big failure. In the given circumstance however, it may be difficult to characterized the Bio review accordingly.

4) The 50% plus 1 recommendation to win presidential elections will create complacency, entrench regionalism and ethnic divide in the country

The 50% plus 1 recommendation adopted by the government in it’s white paper to win presidential election is quite concerning especially so when it tends to hinder and/ or waterdown the requisite 55% threshold needed to win a presidential election as enshrined in the current 1991 constitution.

While the argument of cost reduction and delay is appreciated, LEGAL LINK is of the opinion that it is for good reasons why the framers of the 1991 Constitution and the people of Sierra Leone through a referendum agreed to a 55% percent threshold.
Amongst other things, it was to principally ensure that presidential candidates are forced to rally around all the regions and districts of Sierra Leone and also cut across ethnic and regional divide to canvas support for election into political office and not just concentrate on their political strongholds and regions.

Furthermore, the 55% threshold gives legitimacy to whoever may emerge as winner of the presidential election as such an individual would have secured the popular and highest votes in the election.This is key for the smooth governance, legitimacy and acceptance of such a leader by the society.

 

 

5) Non- acceptance by the Bio government’s white paper to guarantee socio- economic and cultural rights under the reviewed constitution

Apart from agreeing to ensure free, quality education to primary and secondary pupils, the Bio white paper rejected the idea of guaranteeing socio-economic rights such as the right to health, food, water housing etc in the country.

In a country that is rich in natural endowments and mineral deposits, this rejection is most unfortunate.

It is vital to pinpoint that the guaranteeing of socio-economic and cultural rights was a key recommendation under the Justice Cowan Led CRC Review process.
Socio-economic and cultural rights are extremely vital for human survival and existence. Not guaranteeing them therefore amounts to a blatant disregard for the survival and livelihood of the citizens within the state.

LEGAL LINK therefore considers this neglect as a missed opportunity to advance the wellbeing of the citizens in the nation by the Bio government.

6) Refusal to amend section 14 of the constitution to make social economic rights justiciable and enforceable in the courts of Sierra Leone.

Worst still, the recommendation by the Justice Cowan CRC Report to amend section 14 of the 1991 Constitution and make socio-economic rights justiciable and enforceable in the courts was outrightly rejected by the Bio technical committee.

In the estimation of LEGAL LINK, this rejection is worrying especially so when it is considered that Sierra Leone is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), an international treaty that guarantees socio – economic and cultural rights at the International level.

Furthermore, since bulk of the population in the country are living in abject poverty and economic misery, making socio – economic rights enforceable would have incentivise government’s intervention in these areas thereby leading to growth and development of the citizens.

7) Failure to expunged or amend the term “Supreme Executive Authority” in the 1991 constitution

This is perhaps the biggest weakness in the Bio led constitutional review process.

The failure of Bio’s white paper to accept the recommendation of the Justice Cowan CRC report to expunge the term “Supreme Executive Authority”in the1991 Constitution is a missed opportunity to effectively limit the powers of the president in a more measured way.

It could be recalled that it was in fact such description of the president in the constitution that led to the former president believing that he has unfettered powers under the constitution to unilaterally sack his vice president without recourse to parliament. Unfortunately, this view was even validated by the Supreme court of the country.

While the Bio led government may not have ventured going down that path, the president has however been notorious for sacking public officials with secured tenures at will without reference to due process, legislative or constitutional injunctions. The case of the Auditor General, the Human Rights Commissioners and the Ombudsman are apt examples.

It is the view of many that the president may have done all of these sackings with the mistaken belief that he wields supreme executive authority under the constitution to so do.

LEGAL LINK therefore believes that It would have been a great success if the recommendation “Chief Executive Officer” was accepted by the Bio led government in place of ” Supreme Executive Authority” as was recommended by the Justice Cowan CRC report.

8) BIO’s constitutional review committee was kept in the dark and their report rushed without public scrutiny

Apart from the fact that members of the Bio Technical Committee on the constitutional review were unknown until the time of publication of the government white paper, the review process and the subsequent report of the committee was also rushed in fundamental terms. There was little or no time for the Technical Committee to publish its report and get reactions from the public before tabling it to the president through cabinet for adoption of a government white paper.

If such a procedure was followed and an inclusive and open process ensured from day one by this committe, perhaps the weaknesses and gaps currently identified in the white paper could have been picked up and addressed before the passing of a government white paper.

9) Reviewing a constitution in piecemeal phases is time waisting and uneconomical

The piecemeal approach to be adopted by the Bio led government in relation to the passing of key recommendations in the white paper begs the question as to when would the other important recommendations be passed in Parliament.

LEGAL LINK is of the opinion that it is vital that such constitutional reviews are carried out in an holistic form rather than in a piecemeal fashion so that all the changes can be effected at a go and parliament and the people allowed to have their say on the recommendations through a referendum.

10) Government’s failure to guarantee the 30% women quota for election to Parliament under the constitution is a missed opportunity

Even though the government in its white paper accepted the 30% quota of women to be elected as parliamentarians, it refused however to guarantee such a laudable recommendation under the constitution. Rather, it agreed to implement same by way of legislation.This choice is quite worrying to say the least as a legislation is usually easier to amend than a constitution.

Further still, it would have been more prudent to place such plausible recommendation under the constitution by making it an entrenched clause that can only be amended by way of two thirds majority and a referendum.

11). NEC determining of the percentage threshold in the proportional representation system and not the constitution could be dangerous.

Even though good argument exists for the adoption of the PR system, it is however problematic and suspecting to leave the determination of the percentage threshold in each district or election area to the discretion of NEC and not factored in the constitution.

This is the case because, there’s likelihood for NEC to be compromised to fix the threshold at a percentage that may favour one party as against the other. But with a permanent fixing of the threshold percentage in the constitution, such corrupt acts may be circumvented.

In lieu of the above critical analysis raised, LEGAL LINK hereby makes the following recommendations:

1). That the Government, prior to its publishing of the white paper, should always endeavour to engage and dialogue with key players / bodies like CSO’s, political party representatives, donor community, international human rights groups, women’s groups., Youth groups, Disable groups etc to get a buying – in of the Technical Committee’s report on the constitutional review process before adoption of a white paper.

2). That the Justice Cowan CRC report should have been the cornerstone for any further deliberations or review rather than the 2017 white paper of the former government which was an outright rejection in fundamental terms.

3) That it is important for the Bio led government to give a statistical analysis of their white paper to the public showcasing clearly the number of recommendations that were accepted and / or rejected by the Bio-led Technical Committee.

4). That the 55% threshold for winning presidential elections be maintained as this is key for governance and acceptance of the president by the society.

5). That the government should have guaranteed socio-economic rights under the 1991 Constitution as espoused by the Justice Cowan CRC report. Such rights include the right to health, food, water, housing etc.

6) That the government should have also made socio-economic rights justiciable and enforceable in the courts of law for the well-being and advancement of the socio- economic conditions of majority of Sierra Leoneans and also to put the country in compliance to her obligations under the International Convention on Economic, Social and Cultural Rights (ICESCR).

7) That the implementation of the white paper should be holistic rather than piecemeal so that all the changes can be effected at a go and the people allowed to have their say on the recommendations through a referendum..

8) That prior to the report being delivered for adoption by the Cabinet, the Technical Committee should have published the report and solicit public reactions to help address ambiguities and further enhance public participation in the process.

9). That in order to guarantee a better protection of the 30% quota of women to be represented in Parliament, LEGAL LINK urges that such provision is also provided with the constitution in addition to whatever legislative measure that may be taken later.

10). That the percentage threshold in a PR system must be insulated in the constitution and not left to the determination of NEC. With a permanent fixing of the threshold percentage in the constitution, manipulation and corrupt acts by election officers may be circumvented.

11) That the compensation agreed to be provided to suspects where they are unlawfully arrested or detained must include monetary compensation and or dismissals of detainers in the police force.

CONCLUSION

Notwithstanding the weaknesses embedded in the Bio government white paper, it is vital to pinpoint that there are a good number of plausible recommendations in the white paper that are crucial to the democracy, peace and governance architecture of the country. In that regard therefore, LEGAL LINK applauds the Bio government for accepting these plausible recommendations and for also ensuring continuity of the review process at the very least since its stalling in 2017.

LEGAL LINK ends by appealing that due consideration be given to this Legal Advisory Opinion and that practical steps be taken by the Bio government towards addressing the WEAKNESSES as espoused in this piece; in the interest of justice, democratic good governance, rule of law, respect for human rights and a progressive constitution in Sierra Leone.