Wednesday, March 25, 2015

Legal Opinion on Sierra Leone Vice President Expulsion-Ansu B. Lansana Esq.

CAN A PRESIDENT DISMISS HIS VICE PRESIDENT? – A LEGAL OPINION

The furore within the All Peoples’ Congress Party (APC) stemming from the allegations of Vice President Alhaji Samuel Sam Sumana misrepresenting his academic credentials, his eve-of-running mate-nomination switch from Christianity to Islam and his anti-APC activities have, over the past two weeks, overshadowed the nation’s preoccupation with the fight against the Ebola disease and the Auditor-general’s Report on the use of Ebola funds.

As the nation grappled with the implications of such allegations, the National Advisory Committee of the APC announced that the Vice President had been expelled from the party.

Much as the rationale for expulsion of the Vice President from the APC party rests with the APC to determine, the nation has been following the unfolding events with concern and anxiety; justifiably so because of the constitutional ramifications such an expulsion would have on the Office of the Vice President.

The nation’s concern and anxiety have now been heightened by the State House Press Release of 17th March 2015. The said press release informed the nation that Vice President Alhaji Sam Sumana had been dismissed from the Office of Vice President for the following reasons:

1. That by seeking asylum from a foreign embassy, he had evinced a willingness to abandon his duties and office as Vice President;
2. That having been expelled from the APC party, the Vice President was no longer a member of a political party in Sierra Leone and did not have the continuous requirement to hold office as Vice President.

Each of the aforementioned reasons has constitutional implications that make it imperative for the President to have invoked the interpretative jurisdiction of the Supreme Court as stipulated in Section 124 (1) (a) of the 1991 Constitution which states:

124. (1) The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all other Courts— 

a. in all matters relating to the enforcement or interpretation of any provision of this Constitution;

 

A detailed analysis of the reasons stated in the Press Release reveals illogicalities that render them untenable by average human comprehension, let alone legal scrutiny. 

 

Firstly, if it is argued that the Vice President demonstrated a willingness to abandon his duties and office as Vice President when he sought asylum, the legitimate question that comes to mind is: can demonstration of a willingness to abandon ones duties be equated to actually abandoning those duties?

 

Secondly, was the asylum the Vice President sought granted?

 

Thirdly, assuming, for the sake of argument, that the asylum the Vice President sought was granted. Can the President dismiss him on that score by merely invoking        Section 40 (1) of the 1991 Constitution which designates him the chief executive in governance? Can he dismiss the Vice President under any provision of the 1991 Constitution?

 

The legal import of treating the Vice President’s application for asylum as an abdication of his office is equating the application to constructive resignation. However, there is no provision in the 1991 Constitution for constructive resignation. The provision in the constitution is for real and actual resignation. Section 55 of the 1991 Constitution provides situations which render the Office of Vice President vacant:

55. The office of the Vice-President shall become vacant— 

a. on the expiration of the term of office of the President; or 

b. if the Vice-President resigns or retires from office or dies; or 

c. if the Vice-President is removed from office in accordance with the provisions of section 50 or 51 of this Constitution; or 

d. upon the assumption by the Vice-President to the office of President under subsection (4) of section 49. 

 

 

From the above Section, it is evidently manifest from (a) that the Vice President’s term of office expires upon the expiry of the President’s term of office. This is because in the eyes of the Law, the Presidency and Vice Presidency are indivisible. Their mandates are derived from the one single ticket on which the electorate voted for them. Therefore barring resignation, retirement or death, the only other modus operandi for creating a vacancy in the Office of the Vice President is by dismissal under Section 50 (for mental or physical incapacity) or 51 (for misconduct). Section 51 is more relevant to the issue under review:

51. (1) If notice in writing is given to the Speaker signed by not less than one-half of all the Members of Parliament of a motion alleging that the President/Vice President has committed any violation of the Constitution or any gross misconduct in the performance of the functions of his office and specifying the particulars of the allegations and proposing that a tribunal be appointed under this section to investigate those allegations, the Speaker shall— 

a. if Parliament is then sitting or has been summoned to meet within five days, cause the motion to be considered by Parliament within seven days of the receipt of the notice; or 

b. if Parliament is not then sitting (and notwithstanding that it may be prorogued), summon Parliament to meet within twenty-one days of the receipt of the notice, and cause the motion to be considered by Parliament. 

 

For the above procedure, a 2/3 majority in Parliament passes a motion for a Tribunal to be set up to investigate the allegations. The Tribunal submits its report within 3 months and if the report shows that the allegations have been substantiated, Parliament would then pass a resolution on a 2/3 majority that the Vice President ceases to hold office.

It is my settled legal opinion that barring the aforementioned procedures, any other means by which the Vice President is dismissed from office is unconstitutional and of no legal effect.

The second reason given in the Press Release is that the expulsion of the Vice President from the APC party renders him ‘partyless’ and therefore divests him of the qualification to hold the office of Vice President.

A number of issues emanate from such reasoning. Firstly, the decision to dismiss the Vice President on this ground is premature as a final party decision could only be taken after the expiry of the 30-day period limited for the Vice President to appeal the decision of the National Advisory Committee of the APC. To dismiss him even before he appeals the NAC decision is not only unfair to him but smacks of a flagrant disregard of the APC party constitution, structures and functionaries.

Secondly, assuming the Vice President appeals and loses the appeal, there is no provision in the 1991 Constitution stating that he can be dismissed from office if he ceases to belong to a political party. The only provision therein is Section 77 (k) which relates to Members of Parliament who lose their seats if they cease to be members of the political party of which they were members at the time of their election to Parliament. This provision cannot, in extenso, be implied as applicable to the Vice President unless there is a specific constitutional provision there for. In the absence of a specific provision to that effect, I consider it unsafe and downright unconstitutional for the Vice President to be dismissed on that score.

 

The appropriate step State House should have taken was to approach the Supreme Court for an interpretation of Section 41 (b) in the light of the Vice President’s expulsion from his party. 

 

Section41 (b) states:

41. No person shall be qualified for election as President unless he— 

b. is a member of a political party; 

 

The issue for determination by the Supreme Court would then be whether the qualification requiring membership of a political party for election as a President/Vice President is a continuing qualification, the loss of which divests the President/Vice President of his mandate to function as such.

 

The second issue the Supreme Court would have had to determine is the full extent of the expression found in Section 40 (1) of the Constitution under which the President purportedly dismissed the Vice President: ‘SUPREME EXECUTIVE AUTHORITY’.

 

The reason why it is imperative that the Supreme Court educates the nation about this constitutional phraseology is that within it lurks a time bomb for dictatorship. Today, the President can invoke it to dismiss the Vice President; tomorrow he may invoke it to ban the SLPP, the PMDC and all other parties and declare a one-party state.

 

I am raising these issues because Sierra Leone is supposed to be a democracy which recognizes the people as sovereign from whom Government, through the Constitution,derives all its powers, authority and legitimacy.

 

The foundations of our national development should be rooted in democratic best practices and adherence to the Rule of Law. It behoves us as good citizens of Sierra Leone to urge our Leaders to exercise their powers within the confines of constitutional provisions; if only to avert the attendant consequences of unconstitutional governance.

 

Political philosophers and historians have over the years appreciated the beauty of keeping political power within constitutional confines. In the words of Lord Acton:

 

“Power tends to corrupt, and absolute power corrupts absolutely.”

 

Ansu Baatillo Lansana Esq.

20th March 2015.

 

 

 


1 comment:

Anonymous said...

This entire mess is a complete waste of time and energy. The people were already suffering before Ebola and now this. EBK is further displaying his incompetence. He had opportunities to check the VP's background before 2007 and 2012. What kind of leader fails to properly research the person he presents before his people two times then tries to abuse his so-called executive authority to remedy the problem he created as a leader. I hope the supreme court of SL will not allow EBK to side step their authority.

A leader is not good because of his ability to sack people. A good leader should have discernment that allows him to select the best candidates for the job. This fiasco further illustrates EBK's complete incompetence. Sierra Leone continues to make the headlines for all the wrong reasons. With EBK as president this pattern will unfortunately continue.