Christian Lawyers Centre (a.k.a LEGAL LINK) has identified five constitutional issues and other scary things in the proposed Public Elections Bill of 2022 that must be carefully considered by Parliament of Sierra Leone.

Rashid Dumbuya Esq, the Executive Director of Legal Link explained these five constitutional issues and other scary things in an advisory opinion written on behalf of Legal Link.

The full piece is stated below:

“Introduction

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In June 2022, the government of Sierra Leone through the Office of the Attorney General and Minister of Justice tabled a Bill in Parliament aimed at introducing radical changes in the previous elections law of 2012 as well as the 1991 Constitution of Sierra Leone.

The proposed Bill entitled ” the Public Elections Act 2022″ seeks to repeal and replace the 2012 Public Elections Act, a ten year old law that has helped ensured the smooth conduct of public elections in Sierra Leone so far.

However, the proposed Bill has been widely criticized by not only opposition party members in Parliament but also CSOs and rights- based groups on the grounds that it contains several Constitutional issues and little or no public engagement, consultations and/or education was done on the Bill.These concerns have led to the delay in the passing of the Bill into law by Parliamentarians.

However, at the last sitting of Parliament on this Bill, the Speaker of the House pronounced that a vote will be taken at the next adjourned date ( which is today) on the Bill irrespective of the outcome.

It is against this backdrop that LEGAL LINK has decided to do critical Advisory opinion on the Bill bringing out some of the Constitutional issues and other concerning matters enshrined within the Bill in a bid to incentivise legislative actions and public debate on the proposed law.

But before delving into the crux of the matter, it is the view of LEGAL LINK that several good provisions also exist under the proposed Bill. *But this piece is largely concerned with the Constitutional issues raised as well as some controversial provisions inserted in the Bill that may have the proclivity of undermining the electioneering process in the country.

In terms of the methodology, the advisory opinion will first deal with the Constitutional issues within the Bill and then end with the other controversial matters enshrined in the Bill, citing their potential implications on democratic elections, good governance and accountability.

KEY CONSTITUTIONAL ISSUES RAISED UNDER THE PUBLIC ELECTIONS BILL OF 2022

1) PRESIDENT TO HAVE POWERS TO REMOVE NEC COMMISSIONERS FOR GROSS MISCONDUCT

Under section 5(1) of the proposed public elections bill 2022, a member of the Electoral Commission can be removed from office by the President for amongst other things an act of gross misconduct

This is a Constitutional issue as section 32 (8) lists out the grounds upon which a member of the Electoral Commission can be removed from office by the president. No ground of gross misconduct is mentioned under section 32 (8) of the 1991constitution.

Certainly, the Introduction of “Gross misconduct” is quite plausible a standard for removal of NEC Commissioners. However, if such a ground is intended to be introduced, all that is required is a Constitutional Amendment Bill to be passed to amend section 38(2) and not necessarily a legislative Bill purporting to amend a Constitutional provision.

2) PERMANENT DATE TO CONDUCT PRESIDENTIAL ELECTIONS

There’s also a proposal under section 42(4) of the Public Elections Bill seeking to insert a permanent date for the Conduct of Presidential elections after 2023. And the date proposed is the First Saturday of November.

This is certainly not a bad idea but the challenge however is that Section 43 (a) and (b) shows the time Presidential elections shall take place. It state thus:

43 “A presidential election shall take place
a) where the office of the president is to become vacant by effluxion of time and the president continues in office after the beginning of the period of four months ending with the date when his term of office would expire by effluxion of time, during the first three months of that period;

b) in any other case, during the period of three months beginning with the date when the office of the president becomes vacant..”

To fix a permanent date will certainly conflict with this provision under the 1991 constitution, hence the need for a Constitutional Amendment Bill.

3) NUMBER OF NEC COMMISSIONERS TO BE INCREASED

Under section 2(2)(a) and (b), the proposed Public Elections Bill 2022 seeks to increase the number of the commissioners of the Electoral Commission of Sierra Leone (ECSL).

This is certainly a Constitutional issue as well since section 32(2) of the 1991 constitution dictates that the members of the Electoral Commission shall be the Chief Electoral Commissioner, who shall be the Chairman, and four other members who shall known as Electoral Commissioners.

Any increase therefore will require a Constitutional Amendment Bill to be laid in Parliament amending section 32 (2) of the 1991 constitution.

The idea to increase the number of Commissioners to 5 may not necessarily be a bad idea especially so when it is judged against the backdrop of the 5 regions we now have in Sierra Leone. This will make it possible for each of the Commissioners to represent one region.

But the challenge however is that such cannot be done through a legislative Bill but rather a Constitutional Amendment Bill.

4) INTRODUCTION OF NIN AS A MANDATORY REQUIREMENT FOR NEC VOTER REGISTRATION

Under section 13 (1) (a) of the Public Elections Bill, a National Identification Number (NIN) is proposed to be a requirement in the Register of voters. By section 24, a Registration officer may request from a person coming to do voter registration to show his NIN and where such is not available, by section 25, the Registration officer may refused to register the person.

The above issue also touches on the 1991 Constitution particularly section 31 which sets the eligibility requirements for one to be able to vote in an election. It state thus:

“Every citizen of Sierra Leone being eighteen years of age and above and of sound mind shall have the right to vote, and accordingly shall be entitled to be register as a voter for the purposes of public elections and referenda.”

So for an additional requirement such as NIN to be brought into the voter registration process might certainly conflict with the requirements under the constitution. This therefore calls for the passing of a Constitutional Amendment Bill.

Of much more importance also is that fact that NEC ( now ECSL) should not mix up a Civil Registration process with that of a voter registration process particularly when it is still unclear as to the number of people that have been successfully captured under the NCRA Registration process.

It is vital to emphasize that the two processes are separate and distinct and one of them is defined under the constitution while the other is not.

The proposal suggested that individuals coming to register without a NIN will be captured by NCRA at the NEC registration boot will just lead to further delay and more confusion in the voter registration process. This issue needs to be looked into properly.

5) PROPORTIONAL REPRESENTATION SYSTEM TO BE INTRODUCED UNDER THE PROPOSED ELECTIONS BILL ALONGSIDE FIRST PAST THE POST

Under section 57 of the proposed Elections Bill, there’s a proposal, which has been confirmed by NEC to insert the Proportional Representation system as an alternative mandatory option in terms of conducting parliamentary elections.

This is also a Constitutional issue provided for under section 38(1) of the 1991 constitution and section 38 A (1) of the 2001 Constitutional Amendment Act.

Therefore to couch it in a legislative Bill seeking to amend the constitution is nothing but a travesty.

What is misleading also in the Public Elections Bill is that, under the Constitution, the First Past the Post system is made mandatory and the PR system is provided for as a default option only to be invoked where no constituencies exist in the country. But this is not how it is intended within the spirit of the Public Elections Bill.

The Bill merely puts the PR as an alternative alongside the First Past the Post system to be selected whether or not the conditions under section 38A of the 2001 Amendment Act exists or not.

In sum, from all of the above points raised, one may note that there are indeed crucial Constitutional issues embedded within the Public Elections Bill that the government wants to pass into law by way of legislation.

This is certainly a wrong strategy and procedural approach towards amending the 1991constituion.

LEGAL LINK therefore urges the government to take out all of the above Constitutional provisions within the Public Elections Bill and bring a separate Constitutional Amendment Bill to Parliament and amend the extant Constitutional provisions. This is the right thing to do and will prevent the laying down of wrong and dangerous precedents in the Amendment of our 1991 Constitution in Sierra Leone.

Where a Constitutional Amendment Bill is brought, Parliament must be humble enough to follow the provisions as stated under section 108 of the 1991 constitution with regards amending and /or alteration of the constitution in an open and transparent way.

OTHER CONTROVERSIAL MATTERS ENSHRINED IN THE PUBLIC ELECTIONS BILL

Below are some other controversial provisions enshrined within the proposed public elections bill 2022 that is worthy of debate and public conversation.

NEC COUNTING OFFICERS TO HAVE POWERS TO CANCEL ELECTIONS ON GROUNDS OF VIOLENCE

By section 86(1) of the proposed public elections bill 2022, a counting officer is empowered to cancel the votes in that polling station where violence occurs during the counting of votes which significantly disrupts the counting process..and the Electoral Commission shall conduct another election if the outcome of the votes in the affected polling station will affect the outcome of the entire result.

In our opinion, this is quite a controversial provision in the proposed Bill for the following reasons.

Firstly, the provision puts the power to cancel in the hands of the Counting officer, not the Electoral Commission. It would have made serious difference if such a decision was to be taken by the members of the Electoral Commission as is the case with over voting.

Secondly, the test for cancellation is subjective and not objective.

Also, there’s no second assessment needed to determine the threshold of the violence to warrant a cancellation. Only the counting officer can make that decision.

Moreover, how credible and non- partisan are these counting officers by the way to leave such a decision solely at their discretion?

Finally, with the passing of such law, there’s the unintended possibility of an increase in elections violence during counting process particularly in areas where one party feels dominated and defeated.

NEC TO HAVE POWERS TO EXTEND OR REDUCE TIME WHICH MIGHT INCLUDE TIME FOR VOTER REGISTRATION

Section 171 of the proposed public elections bill gives the Electoral Commission an open cheque to enlarge or reduce the time specified in this Act for giving notice or for doing of any act or thing.

This uncontrolled elastic power given to NEC to enlarge or reduce the time for anything might also mean NEC having powers to extend time for voter registration to a particular region or community even after the close of voter registration citing this section.

This blanket provision might create room for unwise discretion and abuse of powers by NEC if not restricted.

ACCREDITED ELECTIONS OBSERVERS TO SUBMIT WRITTEN REPORT TO THE ELECTORAL COMMISSION NOT LATER THAN 3 MONTHS AFTER DECLARATION OF RESULTS OR SUCH EARLIER DATE DETERMINED BY THE ELECTORAL COMMISSION

Section 166 (3) puts an obligation on accredited election observers to submit a written report to NEC after the declaration of results or at an earlier date determined by NEC.

As aspirational as such provision might be, the reality is that such a mandatory condition may serve as a disincentive to many civil society organizations and rights based groups to come forward and observe the elections.

Also, making the report mandatory without any consideration of the resource constraints faced by election observers groups may be quite unfair.

The question however is: why should right groups be mandated to submit observation reports to NEC when NEC does not in any way provide resources towards their observation venture?

International best practices demand that election observers voluntarily share their report findings with the Commission if they so desire. Forcing them to submit a report is undesirable and might scare many from the observer process. We are very sure that many right groups might either oppose this or submit sub- standard and conflicting reports.

CONCLUSION

Certainly, the above critique is by no means exhaustive and is also not suggesting that there are no good provisions under the proposed public elections bill. Rather, what this advisory opinion sets out to achieve is to expose the constitutional issues embedded within the Public Elections Bill and further highlight some of the key controversial provisions enshrined within the bill for public consumption and national conversation before it is either accepted or rejected by Parliament.

In the absence of wider public engagement and consultations on this proposal Public Elections Bill, it is hope that the intervention of LEGAL LINK may have helped out in some way.”

ABOUT LEGAL LINK

Christian Lawyers Centre (a.k.a LEGAL LINK) is a non-profit legal advocacy group comprising of lawyers, law students and human right activists that seeks to provide legal assistance to religious communities as well as vulnerable groups in Sierra Leone through legal advocacy, education and training, public interest litigations, state and private sector accountability, enforcement of the rule of law and ensuring respect for domestic and international laws that guarantee fundamental human rights and freedoms.