Nov. 26, 2014

Some Argue Chief Justice is a Political Appointee


Sierra Leone Chief Justice, Umu Hawa Tejan Jalloh
Chief Justice of Sierra Leone, Umu Hawa Tejan-Jalloh has apparently reached the retirement age for judges in Sierra Leone, 65 years. The news was first made known to the public when the contents were revealed of a letter written by the Anti-Corruption Commission to the Attorney-General requesting clarification on the issue of her retirement. An unusually public exchange followed between the two law enforcement branches of government (see ACC BOSS RUBBISHES AG ON CJ’S TENURE). The matter was then taken up by the public, with several media discussions and interviews. The Sierra Leone Bar Association met to consider the issue and after a reportedly vigorous discussion, came out with a statement on the issue (see Bar Association resolves Chief Justice must go).

Conflicting views have been expressed by the public as to whether or not the Chief Justice should immediately retire from office. Those  for retirement argue that the Chief Justice is a judge of the Superior Court of Judicature, and the Constitution unequivocally states that the retirement age for judges is 65 years. On the other side, the boldest argument is that the Chief Justice is a special case among the judges and is in fact a political appointee. Proponents buttress this argument by pointing out that when there is a vacancy the President nominates a candidate for the office who then goes through parliamentary approval. They further point out that the President is not bound to pick the most senior judge on the Supreme Court or in fact any judge. They point to the cases of Desmond Luke and Ade Renner-Thomas, who were selected in 1998 and 2002 respectively for the position of Chief Justice by the late President Tejan Kabbah without previously ever having served as judge. They also point to circumstances, detailed below, in which Presidents have brought about the removal from office of Chief Justices, who have relinquished office without  protest or comment. These proponents thus argue that the Chief Justice de facto can be dismissed by the President and under the constitution is appointed by the President subject to parliamentary approval; the Chief Justiceship is thus a political appointment like any other and he/she serves at the pleasure of the President.

In an age where the existence of three separate arms of government with separation of powers and independence of the judiciary is taken for granted, this is a novel argument that flies against conventional wisdom worldwide. Perhaps there are good reasons not to have an independent judiciary, good reasons to make the Chief Justice a political appointee, but we are yet to hear them. However, a brief scan of the Constitution yields little to support the argument for the independence of the judiciary. The best that was found was in Section 120, subsection 3: "In the exercise of its judicial functions, the Judiciary shall be subject to only this Constitution or any other law, and shall not be subject to the control or direction of any other person or authority." This does not preclude a judge with unfavorable opinions being sent on leave or retired.

True, the Constitution does provide tenure for judges upon good behaviour until age sixty five, but this is substantially weakened by section 136, which allows contract judges to be appointed for terms as directed by the President upon the advice of the Judicial and Legal Services Commission (chaired by the Chief Justice), without parliamentary scrutiny. Thus, the practice in recent years of having two types of judges: those approved by Parliament with tenure until age 65, and contract judges with terms ultimately as directed by the President. Additionally, the Constitution provides a mechanism in Section 137, paragraphs 8,9 and 10 for the President to appoint a highly partisan tribunal to investigate the Chief Justice for alleged wrongdoing and to suspend him/her during such investigation. Clearly, in light of this section, a wise Chief Justice would need to be wary of falling foul of the President.

In a recent radio interview the attorney-general, the government's chief legal advisor did not characterize the Chief Justice as a political appointee, as others sympathetic to his party have done. No doubt, the attorney-general realizes this argument would generate a storm of controversy if raised by a senior politician. Rather, the attorney-general relied on the thoroughly dishonourable argument that the Chief Justice need not retire simply because the office is not singled out by name in the section on retirement age. As others have pointed out there are other sections in the Constitution where judges are identified as a group, without naming specifically the office of Chief  Justice because the latter is included within the wider group. The attorney-general also suggested, equally mischievously, that those who wanted an interpretation on the issue could take the matter to the Supreme Court for a ruling. There have been media reports that all or most of the judges on the current Supreme Court have reached the retirement age. If true, all these judges are effectively serving at the pleasure of the executive.

Perhaps the most important argument in all this is that the Constitution is badly flawed in this area, because it does not provide sufficient protection for the judiciary. The American system, in which the Chief Justice is nominated by the President and approved by Congress, is followed wholesale in the Sierra Leone Constitution. This gives the semblance that the Chief Justice is in some way answerable to the other two arms of government rather than being head of a separate and equal arm. A better method some argue, more suited to the African political landscape, is the Nigerian one, where the Chief Justiceship automatically falls to the most senior judge on the Supreme Court.

In Sierra Leone, manipulation of the judiciary has a long and ignoble history. During the notorious APC one-party rule, the judiciary was emasculated. There were great hopes that the introduction of the 1991 Constitution had ushered in a period of true democracy and respect for the rule of law. These hopes quickly diminished with the NPRC coup of 1992 and the AFRC coup of 1997. When democracy was restored, civilian politicians quickly began to eat away at the authority of the judiciary. First to have a bite was President Ahmad Tejan Kabbah, who quickly engineered the removal of Chief Justice Samuel Beccles-Davies. Beccles-Davies crime? He had publicly sworn in Johnny Paul Koroma, leader of the murderous band of army and RUF rebels shortly after they had overthrown Tejan Kabbah in 1997. Beccles-Davies had perhaps transgressed, albeit under the kind of duress under which most of us would crumple. The Constitution provides a mechanism for setting up a tribunal to judge any transgressions of the Chief Justice, but President Kabbah chose instead to put out a statement that he had gone on leave prior to retirement.

After Beccles-Davies came Desmond Luke, who himself has complained of interference from

politicians (see Desmond Luke: A Profile in Courage), followed by Ade Renner-Thomas, whose relinquishing of office not long after the installation of the new APC government was itself murky, and reportedly at the behest of President Ernest Bai Koroma. Reportedly, one of Renner-Thomas' "crimes": he did not appear in full gown and wig to swear in President Ernest Bai Koroma in 2007 following the tense second-round election victory over the SLPP's Solomon Berewa. Now, in 2014, we have the opposite scenario, where a Chief Justice who should relinquish office, having reached retirement age, is being shielded by the political authorities. The high hopes of 1991 have been completely dashed. We have returned virtually full-circle to the one-party situation where judges answer to their political masters.

The stage is now set for the APC, past masters in political manipulation (see APC, a decade of progress and development, 1968 to 1978) to play the situation to their advantage. If the Chief Justice does not resign of her own volition, the politicians have one more lever with which to control the judiciary. When she eventually does go, the precedents mentioned earlier allow the President to select a Chief Justice from outside the judiciary who might be completely sympathetic to the views of the ruling party. The goal in all of this, many believe, is victory in the Presidential elections scheduled for 2017. The issue of a third term for President Ernest Bai Koroma has still not been conclusively ruled out. Rumors swirled around Freetown last week of abortive attempts to impeach Vice President Sam Sumana, who is seen as a contender for the Presidency in 2017. The APC has secured a Speaker of the House to its liking (see APC Tampers with Sierra Leone Constitution) and probably could command a two thirds majority in Parliament, enabling it to change the Constitution. Thus, control of the judiciary would place all arms of government firmly within the grasp of the ruling APC and its leader.