Sierra Leone's Judges, Mainly Krio, Continue a Long, Dishonourable Tradition

The Sierra Leone Supreme Court on September 9 handed down its long-anticipated ruling in the case brought by former Vice-President Sam Sumana over his sacking from his position by the President, Ernest Koroma. Sumana and his lawyers had argued that under the Sierra Leone Constitution the President did not have the power to sack his Vice. The five presiding judges of the Supreme Court ruled unanimously that under the circumstances then existing the President did have the constitutional authority to sack the Vice-President.

The ruling aroused surprise and disbelief in some quarters. Sumana's case had appeared strong. Prior to the dramatic public announcement of his removal by President Koroma on March 17, all public speculation had centered on the possibility of his removal by the lengthy process of impeachment, which is the method specifically outlined in the Constitution for removal of the Vice-President and which requires among other things the approval of a two thirds majority in Parliament. There is no precedent for sacking of the Vice in this republic. When former President Tejan Kabbah fell out with his Vice in the previous regime, he waited until the next national elections to quietly remove him as candidate of the then ruling party. The Sierra Leone Constitution is quite explicit in laying out the methods by which the Vice-President can leave office, and sacking by the President is not one of those methods. Nevertheless, by a contorted argument, the five learned justices unanimously found justification for President Koroma's decision.

This is by no means the first time Sierra Leone judges have issued controversial rulings in favour of the political leadership. Going all the way back to shortly after Independence, Sierra Leone leaders have undermined the supposed independence of the judiciary and used the institution to achieve political ends. The Sierra Leone judiciary for its part, right from these early days, has shown spineless character and overwhelming lack of principle. Thoroughly emasculated, the judiciary has been unable to offer even the mildest of protests as one political shove after another has pushed it hither and thither over the decades.

In 1971, when APC President Siaka Stevens made Sierra Leone a1971, President Siaka Stevens, Chief Justice C.O.E. Cole republic, the transition mechanism adopted was to make then Chief Justice, C.O.E. Cole first (and only) ceremonial President of the new republic. Within barely a day of this appointment the top judge was removed from his new appointment and asked to swear in Siaka Stevens as executive President. The head of the judiciary was thus shown to be, at the very least, a willing assistant of the executive in matters of huge constitutional significance. Would any prudent man have bothered to challenge the process?

In elections after 1971 but before the infamous "one-party state" was introduced, electoral malpractices were the order of the day as the APC fought to submerge its archrival, the SLPP. According to the TRC report (Volume 3, Chapter 2, paragraph 25), "Court cases involving elections under the APC were decided in favour of the APC by a compliant judiciciary. Violent by-elections conducted..." Candidate nominations were physically prevented resulting in numerous constituencies where the APC was the unopposed candidate. Ballot boxes were stuffed or their contents miscounted. APC election candidates in these days invariably won with 90+% of votes cast, and votes cast often surpassed registered voters. This was all common knowledge in Sierra Leone at the time, and yet,
in all the election petitions that went before the Sierra Leone courts, learned judges found little wrong with the conduct of the various elections.

As the country was forced into a one-party state in 1978, the Supreme Court was unable to find any fault with the new state of affairs and would doubtless have continued to pronounce learned judgments on one-party laws had not political pressures forced a return to multi-party politics in 1991.

In 1992, a military coup brought the NPRC to State House, and Chief Justice S.M.F Kutubu obediently swore in Captain Valentine Strasser, the new leader who had just trampled all over the  Constitution. The NPRC, which went on to trample all over the laws of Sierra Leone, then went ahead to set up three commissions of enquiry (Marcus-Jones, Lytton Nylander, Beccles-Davies) at which the learned senior judges selected presided, as far as we know without qualms, for many months. Again, the return to democracy, in 1996, was not achieved through or with the assistance of some landmark court ruling but through courageous political action by civil society.

In 1997, another military coup brought the soldiers back to State House, this time the AFRC. Chief Justice Samuel Beccles-Davies, by now accustomed to serving military masters, swore in rebel leader Johnny Paul Koroma without public complaint or comment, then or thereafter. In fairness, Johnny Paul's rebels included butchers who would have gladly eliminated Beccles-Davies if he had opposed them.

When democracy was eventually restored (again partly through the efforts of a courageous civil society) then President Tejan Kabbah wasted little time in sending Beccles-Davies on leave to retirement. The point has been well made (Retirement, Sacking and the Appointment of a New Chief Justice) that there is no provision in the Sierra Leone Constitution for a President to summarily send a Chief Justice, however errant, on leave to retirement, especially when he/she has not reached the official retirement age, and that this seriously compromises the independence of the judiciary. Beccles-Davies, even if he had decided not to resist the wishes of the President, could later have made this point in a quiet, calm public forum so as to bolster the defence of one of the fundamental tenets of democracy in Sierra Leone. Until his death, however, whatever his private views, Beccles-Davies remained silent in public on the matter.

A few years later, another Chief Justice, this time Ade Renner-Thomas, was again sent on leave to retirement by the President, this time Ernest Bai Koroma, well before reaching the official retirement age. Again, even if he had decided not to create a Constitutional crisis by resisting the President's wish, Renner-Thomas could have later, in a public forum, in order to defend the crucial principle of the independence of the judiciary, discussed the irregularity of the manner in which he was removed. He has not yet done so.

In the two most recent national elections, won by the APC, a pattern has been set of hasty swearing-ins, bizarrely similar to the manner in which the NPRC and AFRC sought to legitimize their authority after performing the most illegitimate of acts. In 2007, amidst a fiercely disputed election outcome following cancellation of some election results, President Ernest Bai Koroma was sworn into office immediately after the final results were announced by the Chief Electoral Officer. Interestingly, then Chief Justice Ade Renner-Thomas, looking ill-at-ease, appeared at the ceremony in a suit rather than robes and this has been rumoured to be one of the causes behind his later sacking. In 2012, President Ernest Bai Koroma was again hastily sworn in, by then Chief Justice Umu Hawa Tejan-Jalloh, on the day of the announcement of the final results. Using the Chief Justice to immediately legitimize the announcement of presidential election results compromises the independence of the judiciary and compromises the prospects of any appeal of those announced results to the Supreme Court, such appeal being provided for in the Sierra Leone Constitution. However, none of our learned judges has seen fit to make this point in a public forum in defence of their institution and the country's democracy.

Now we have this latest, shocking decision by the Sierra Leone Supreme Court, in which not a single one of the five justices, Thomas, Browne-Marke, Solomon, Roberts and Hamilton, found any fault with a Presidential decision that so many others, including one of the original framers of the Constitution, have questioned. Did they all genuinely see something that so many of us missed, were they moved by their conscience, or were their opinions conditioned by decades of Sierra Leone judicial subservience to the executive? In all these decades no serving Sierra Leonean judge has ever come out publicly to discuss, if even in the mildest of terms, the independence of the Sierra Leonean judiciary.

The ethnic origin of so many of the judges involved over the decades cannot escape notice. Perhaps more than any other tribe, Krios are conscious of the deterioration of Sierra Leone; they have after all been witness to Sierra Leone in its heyday.  It is sobering to note that at every misstep along this 54-year-long slide, Krio judges have been unable to find fault with the politicians; unable to offer that crucial dissenting opinion.