April 15, 2015

Four Tests for (Sierra Leone's) Judicial Independence


As weighty constitutional issues are argued in Supreme Courts around the world, including Sierra Leone's, involving the most powerful members of the executive arm of government, we thought we should examine how truly independent those justices really are. Four tests:

1) Who pays the judges? Yes, ultimately the people pay the judges through their taxes, but how does the money get to them? In Sierra Leone it's through the Consolidated Fund, the basket through which government employees are paid, controlled of course by the executive. The judiciary has long complained of insufficient funds being allocated them by the central government, particularly for their work in the provinces. Might there be a hidden, even unconscious, agenda by the executive to keep the judiciary weak and dependent by starving them of funds? As with all government departments, the yearly allocation is first proposed by the Finance Ministry in the annual budget, then approved by Parliament and then doled out in drips and drabs through the Treasury. Institutionally then, the judiciary is continuously dependent on a steady stream of funds from the executive.

Can an individual judge's salary be reduced or denied under executive direction? Well, no, it's not quite that blatant. But maybe...maybe someone who's not quite cooperating might find he/she is not quite getting his/her salary on time...Administrative difficulties, you know...problems at the Accountant-General's office or the Treasury or those pesky computers...we're working on it...

Related questions under this test deal with fringe benefits. How are these allocated? It's not unheard of for a judge to be absent from a Sierra Leone High Court session because of a lack of official transportation. Who controls how their Honours are allocated cars and houses and all the other little perks of office? How about maintenance of their offices and official cars and quarters? Furnishing of offices and quarters? Payment of their official staff? ...Could we perhaps transfer the troublesome judge to somewhere in Kailahun or Koinadugu?... In the Sierra Leone environment, the opportunities for pressure points are numerous.

2)Who appoints the judges? In Sierra Leone the President nominates judges for the High Court and they then have to be approved by Parliament. In recent years, Presidents have found a loophole in the Constitution that allows them to bypass Parliamentary approval, and appoint judges on contract. The contracts are subject to renewal by the President, so these judges effectively serve at the pleasure of the executive.

3) How do the judges finally leave office? Do they have life tenure? No, in Sierra Leone judges do not have life tenure. The retirement age is sixty-five. However, in recent years, some judges of retirement age have been awarded contract extensions, in some cases extending their service for years. Again, these retirement-age  judges effectively serve at the pleasure of the executive.      The case of recently retired Chief Justice Umu Hawa Tejan-Jalloh was a case in point. Considerable public pressure was mounted, unusually even from the office of the Anti Corruption Commissioner, before the decision for retirement was effected. On the other hand Sierra Leone Presidents in the recent past have been known to announce early retirement for Chief Justices with whom they are displeased, President Ahmed Tejan Kabba and Justice Samuel Beccles-Davies being a case in point.

4)When last did the Sierra Leone Judiciary rule against the government on any substantive matter? We're struggling with this one. We'll come back to Dear Reader when we get an answer.