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ABA/UNDP International Legal Resource Center - 0 - UNDP/Sierra Leone Constitutional Review
INTERNATIONAL LEGAL RESOURCE CENTER
LEGAL ANALYSIS OF THE SIERRA LEONE 1991 CONSTITUTION
PREPARED FOR UNDP
MARCH 11, 2015
Review of Sierra Leone’s 1991 Constitution
ABA/UNDP International Legal Resource Center - 1 - UNDP/Sierra Leone Constitutional Review
LEGAL ANALYSIS OF SIERRA LEONE’S 1991 CONSTITUTION
PREPARED FOR UNDP
INTERNATIONAL LEGAL RESOURCE CENTER
American Bar Association
Section of International Law
1050 Connecticut Ave, NW Ste 400
Washington, DC 20036
Christina Heid, International Projects Director
[email protected]; + 1 (202) 662-1034
Khalil Ali, International Program Associate
[email protected]; + 1 (202) 662-1662
Fax: + 1 (202) 662-1669
http://ambar.org/ilrc
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The statements and analysis contained herein are the work of the ABA-UNDP International Legal Resource Center
(ILRC) which is solely responsible for its content. The views expressed herein have not been approved by the House
of Delegates or the Board of Governors of the American Bar Association (ABA) or the United Nations Development
Programme (UNDP) and, accordingly, should not be construed as representing the policy of the ABA or UNDP.
Furthermore, nothing contained in this report is to be considered rendering legal advice for specific cases, and
readers are responsible for obtaining such advice from their own legal counsel. The opinions expressed herein are
those of the author(s) and do not necessarily reflect the views of the ABA or UNDP.
©2015 American Bar Association. All rights reserved.
Available only in electronic form.
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Table of Contents
I. COMMENTS AND RECOMMENDATIONS ......................................................................... 4 A. CHAPTER I – REPUBLIC OF SIERRA LEONE .........................................................................................4
1. Declaration of Republic (Section 1) ............................................................................................ 4 2. Public Seal (Section 2) ................................................................................................................. 6 3. National Flag and National Anthem (Section 3) ........................................................................ 6
B. CHAPTER II – FUNDAMENTAL PRINCIPALS OF STATE POLICY ..................................................................6 1. Fundamental Obligations of Government (Section 4) ............................................................... 6 2. Government and the People (Section 5) .................................................................................... 6 3. Political Objectives (Section 6) ................................................................................................... 7 4. Economic Objectives (Section 7) ................................................................................................ 9 5. Social Objectives (Section 8) ..................................................................................................... 10 6. Educational Objectives (Section 9) ........................................................................................... 11 7. Foreign Policy Objectives (Section 10) ..................................................................................... 11 8. Obligations of the mass media (Section 11) ............................................................................ 12 9. Enhancement of national culture (Section 12) ........................................................................ 12 10. Duties of the Citizen (Section 13) ............................................................................................. 12 11. Fundamental Principles Not Justiciable (Section 14) ............................................................... 13
C. CHAPTER III – THE RECOGNITION AND PROTECTIONS OF FUNDAMENTAL HUMAN RIGHTS AND PROTECTION OF
FREEDOMS OF THE INDIVIDUAL ........................................................................................................ 13 1. New Section Recommended to Chapter IV .............................................................................. 13 2. Additional New Section Recommended: ................................................................................. 14 3. Fundamental Human Rights and Freedoms of the Individual (Section 15) ............................ 15 4. Protection of Right to Life (Section 16) .................................................................................... 18 5. Protection from Arbitrary Arrest or Detention (Section 17) ................................................... 19 6. Protection of Freedom of Movement (Section 18) .................................................................. 20 7. Protection from Slavery and Forced Labor (Section 19) .......................................................... 22 8. Protection from Inhuman Treatment (Section 20) .................................................................. 23 9. Protection from Deprivation of Property (Section 21) ............................................................ 23 10. Protection for Privacy of Home and other Property (Section 22) ....................................... 25 11. Provision to Secure Protection of Law (Section 23) ............................................................ 26 12. Protection of Freedom of Conscience (Section 24) ............................................................. 29 13. Protection of Freedom of Expression and the Press (Section 25) ....................................... 30 14. Protection of Freedom of Assembly and Association (Section 26) ..................................... 32 15. Protection from Discrimination (Section 27) ....................................................................... 33 16. Enforcement of Protective Provisions (Section 28) ............................................................. 35 17. New Section Recommended: Authority of courts to uphold and enforce fundamental freedoms and rights .......................................................................................................................... 38 18. Public Emergency (Section 29) ............................................................................................. 39 19. Interpretation of Chapter III (Section 30) ............................................................................ 43 20. New Section Recommended: Right to Dignity .................................................................... 44 21. New Section Recommended: Equality in Marriage ............................................................. 44 22. New Section Recommended: Children’s Rights .................................................................. 45 23. New Section Recommended: Rights of Persons with Disabilities ...................................... 46 24. New Section Recommended: Protection of Socio-Economic Rights .................................. 46
D. CHAPTER IV – THE REPRESENTATION OF THE PEOPLE ........................................................................ 47 1. Registration of Voters (Section 31) .......................................................................................... 47
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2. Electoral Commission (Section 32) ........................................................................................... 47 3. Functions of the Electoral Commission (Section 33) ............................................................... 48 4. Political Parties Registration Commission (Section 34) ........................................................... 48 5. Registration and Conduct of Political Parties (Section 35) ...................................................... 48 6. Secret Ballot (Section 36) .......................................................................................................... 49 7. Referendum (Section 37) .......................................................................................................... 49 8. Constituencies and Elections (Section 38) ............................................................................... 49 9. Filling of Vacancies (Section 39) ............................................................................................... 49
E. CHAPTER V – THE EXECUTIVE ...................................................................................................... 49 PART I – THE PRESIDENT .................................................................................................................... 49 The experts provided several comments and recommendations regarding the specific sections within Part I, regarding the Office of the President. ...................................................................... 49
1. The Office of the President (Section 40) .................................................................................. 49 2. Qualifications for Office of President (Section 41) .................................................................. 50 3. Election of President (Section 42) ............................................................................................ 50 4. Period During Which Presidential Elections Shall Take Place (Section 43) ............................. 50 5. Parliament to Make Laws for Election of President (Section 44) ............................................ 50 6. Presidential Returning Officer (Section 45) ............................................................................. 50 7. Tenure of Office of President, etc… (Section 46) ..................................................................... 50 9. Incidents of Office, etc… (Section 48)....................................................................................... 50 10. Vacancy in Office of President (Section 49) ......................................................................... 50 11. Mental or Physical Incapacity (Section 50) .......................................................................... 50 12. Misconduct by President (Section 51) ................................................................................. 51 13. Temporary Filling of Vacancy (Section 52) .......................................................................... 51 PART II – THE EXECUTIVE ........................................................................................................................ 51 14. Exercise of Executive Authority in Sierra Leone (Section 53) ............................................. 51 15. Vice President (Section 54) .................................................................................................. 51 16. Vacancy in the Office of Vice President (Section 55) .......................................................... 51 17. Ministers and Deputy Ministers of Government (Section 56) ............................................ 51 18. Oaths to be Taken by Ministers, etc… (Section 57) ............................................................. 52 19. Ministerial Vacancies (Section 58) ....................................................................................... 52 20. Establishment of Cabinet (Section 59) ................................................................................. 52 21. Collective Responsibility (Section 60) .................................................................................. 52 22. Constitution of Offices (Section 61) ..................................................................................... 52 23. Administration of Ministries (Section 62)............................................................................ 52 24. Prerogative of Mercy (Section 63) ....................................................................................... 52 25. Establishment of the Office of Attorney-General and Minister of Justice (Section 64) ..... 52 26. Solicitor General (Section 65) ............................................................................................... 54 27. Director of Public Prosecutions (Section 66) ....................................................................... 54 28. Secretary to the President (Section 67) ............................................................................... 54 29. Secretary to the Cabinet (Section 68) .................................................................................. 55 30. Secretary to the Vice President (Section 69) ....................................................................... 55 31. Power of Appointment Vested in the President (Section 70) ............................................. 55 32. Other Statutory Appointments (Section 71) ....................................................................... 56 33. Office of Paramount Chief (Section 72) ............................................................................... 56
F. CHAPTER VI – THE LEGISLATURE .................................................................................................. 58 PART I – COMPOSITION OF PARLIAMENT ............................................................................................... 58
1. Establishment of Parliament (Section 73) ................................................................................ 58
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2. Members of Parliament (Section 74) ....................................................................................... 58 3. Qualifications for Members of Parliament (Section 75) .......................................................... 58 4. Disqualifications for Members of Parliament (Section 76) ..................................................... 58 5. Tenure of Seats of Members of Parliament (Section 77) ........................................................ 59 6. Determination of Question as to Membership of Parliament (Section 78) ............................ 59 7. The Speaker (Section 79) .......................................................................................................... 59 8. Deputy Speaker (Section 80) .................................................................................................... 60 9. Election of Speaker and Deputy Speaker (Section 81) ............................................................ 60 10. Clerk of Parliament (Section 82) .......................................................................................... 60 11. Oath to be Taken by Members of Parliament (Section 83) ................................................ 60 Part II – SUMMONING, PROROGATION AND DISSOLUTION ......................................................................... 60 12. Sessions of Parliament (Section 84) ..................................................................................... 60 13. Life of Parliament (Section 85) ............................................................................................. 60 14. Sittings of Parliament (Section 86)....................................................................................... 60 15. General Election (Section 87) ............................................................................................... 60 PART III – PROCEDURE IN PARLIAMENT ..................................................................................................... 61 16. Presiding in Parliament (Section 88) .................................................................................... 61 17. Quorum in Parliament (Section 89) ..................................................................................... 61 18. Use of English in Parliament (Section 90) ............................................................................ 61 19. Voting in Parliament (Section 91) ........................................................................................ 61 20. Unqualified Persons Sitting and Voting (Section 92) .......................................................... 61 21. Committees in Parliament (Section 93) ............................................................................... 61 22. Regulation of Procedures in Parliament (Section 94) ......................................................... 61 23. Contempt of Parliament (Section 95) .................................................................................. 61 24. Criminal Proceedings (Section 96) ....................................................................................... 61 PART IV – RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES ......................................................................... 62 25. Responsibilities of Members of Parliament (Section 97) .................................................... 62 26. Freedom of Speech and Debate (Section 98) ...................................................................... 62 27. Parliamentary Privileges (Section 99) .................................................................................. 62 28. Immunity from Service of Process and Arrest (Section 100) .............................................. 62 29. Immunity from Witness Summons (Section 101) ................................................................ 62 30. Immunity from Serving as Juryman (Section 102) ............................................................... 62 31. Immunity from Publication of Proceedings (Section 103) .................................................. 63 32. Privileges of Witnesses (Section 104) .................................................................................. 63 PART V – EXERCISE OF LEGISLATIVE POWER ............................................................................................... 63 33. Power to Make Laws (Section 105) ...................................................................................... 63 34. Mode of Exercising Legislative Power (Section 106) ........................................................... 63 35. Minister May Introduce Bill and Be Summoned to Parliament (Section 107) ................... 64 36. Alteration of Constitution (Section 108) .............................................................................. 64 37. Residual Authority of Parliament (Section 109) .................................................................. 64 PART VI - FINANCE ................................................................................................................................. 64 38. Authorisation for Imposition of Taxation (Section 110) ..................................................... 64 39. Consolidated Fund (Section 111) ......................................................................................... 64 40. Authorisation of Expenditure from Consolidated Fund (Section 112) ............................... 64 41. Authorisation of Expenditure in Advance of Appropriation (Section 113) ........................ 64 42. Withdrawals of Monies for General Revenues (Section 114) ............................................. 64 43. Remuneration of President and Certain Other Officers (Section 115) ............................... 65 44. Contingencies Fund (Section 116) ........................................................................................ 65
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45. Public Debt (Section 117) ..................................................................................................... 65 46. Loans (Section 118) ............................................................................................................... 65 47. Establishment of the Office of Auditor-General (Section 119) ........................................... 65
G. CHAPTER VII – THE JUDICIARY .................................................................................................... 66 PART I – THE SUPERIOR COURT OF JUDICATURE....................................................................................... 66
1. Establishment of the Judiciary (Section 120) ........................................................................... 66 PART II – THE SUPREME COURT ............................................................................................................... 69 2. Composition of the Supreme Court (Section 121) ................................................................... 69 3. Jurisdiction of the Supreme Court (Section 122) ..................................................................... 69 4. Appeals to the Supreme Court (Section 123) ........................................................................... 70 5. Interpretation of the Constitution (Section 124) ..................................................................... 70 6. Supervisory Jurisdiction (Section 125) ..................................................................................... 70 7. Power of Justices of the Supreme Court in Interlocutory Matters (Section 126) ................... 71 8. Enforcement of the Constitution (Section 127) ....................................................................... 71 PART III – THE COURT OF APPEAL ............................................................................................................. 71 9. Composition of the Court of Appeal (Section 128) .................................................................. 71 10. Jurisdiction of the Court of Appeal (Section 129) ................................................................ 71 11. Power of Single Justice of Appeal (Section 130) .................................................................. 71 PART IV – THE HIGH COURT .................................................................................................................... 72 12. Composition of the High Court (Section 131) ...................................................................... 72 13. Jurisdiction of the High Court (Section 132) ........................................................................ 72 14. Claims Against the Government (Section 133) .................................................................... 73 15. Supervisory Jurisdiction of the High Court (Section 134) .................................................... 73 PART V – APPOINTMENT OF JUDGES, ETC.. ................................................................................................ 73 16. Appointment of Judges, etc… (Section 135) ........................................................................ 73 17. Judicial Vacancies (Section 136) ........................................................................................... 73 18. Tenure of Office of Judges, etc… (Section 137) ................................................................... 74 19. Remuneration of Judges, etc… (Section 138) ...................................................................... 75 20. Oath of Office of Judges (Section 139) ................................................................................. 75 PART VI – JUDICIAL AND LEGAL SERVICE COMMISSION ................................................................................ 75 21. Establishment of the Judicial and Legal Service Commission (Section 140) ...................... 75 22. Appointment of Judicial and Legal Service Officers, etc… (Section 141) ............................ 76 23. Appointment of Court Officers (Section 142) ...................................................................... 76 24. Fees of Court, etc… (Section 143) ........................................................................................ 76 25. Official Document (Section 144) .......................................................................................... 76 26. Rules of Court Committee (Section 145) ............................................................................. 76
H. CHAPTER VIII – OMBUDSMAN .................................................................................................... 76 1. Parliament to Establish Office of Ombudsman (Section 146) ................................................. 76
I. CHAPTER IX – COMMISSIONS OF INQUIRY ...................................................................................... 77 1. Appointment of Commissions of Inquiry (Section 147) .......................................................... 77 2. Powers, Rights and Privileges of Commissions of Inquiry (Section 148) ................................ 78 3. Report of Inquiry (Section 149) ................................................................................................ 78 4. Rules Regulating Commissions of Inquiry (Section 150) ......................................................... 78
J. CHAPTER X – THE PUBLIC SERVICE ............................................................................................... 78 1. Establishment of the Public Service Commission (Section 151) .............................................. 78 2. Appointments, etc… of Public Officers (Section 152) .............................................................. 79 3. Appointment of the Principal Representative of Sierra Leone (Section 153) ......................... 79 4. Appointment of Permanent Secretaries and Certain Other Officers (Section 154) ............... 79
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PART II – POLICE FORCE .......................................................................................................................... 79 5. Establishment of the Sierra Leone Police Force (Section 155) ................................................ 79 6. Establishment of the Police Council (Section 156) .................................................................. 79 7. Appointments in the Police Force (Section 157) ...................................................................... 79 8. Functions of the Police Council (Section 158) .......................................................................... 79 PART III – RESIGNATIONS, RE-APPOINTMENTS AND PROTECTION OF PENSION RIGHTS OF PUBLIC OFFICERS
HOLDING ESTABLISHED OFFICES ............................................................................................................... 79 9. Resignation and Effect of New Appointment of a Person Holding Established Office (Section 159) 10. Reappointments, etc… (Section 160) ................................................................................... 79 11. Protection of Pension Rights (Section 161) ......................................................................... 79 PART IV – POWER AND PROCEDURES OF COMMISSIONS AND COUNCILS, AND LEGAL PROCEEDINGS .................. 80 12. Power of Commissions in Relation to the Grant of Pension (Section 162) ........................ 80 13. Power and Procedure of Commissions (Section 163) ......................................................... 80 14. Protection of Commissions from Legal Proceedings (Section 164) .................................... 80
K. CHAPTER XI – THE ARMED FORCES .............................................................................................. 80 1. Establishment of the Armed Forces (Section 165) ................................................................... 80 2. Prohibition of Private Armed Forces (Section 166) ................................................................. 80 3. Establishment of Defense Council (Section 167) ..................................................................... 80 4. Appointments in the Armed Forces (Section 168) ................................................................... 81 5. Functions of the Defence Council (Section 169) ...................................................................... 81
L. CHAPTER XII – THE LAWS OF SIERRA LEONE ................................................................................... 81 1. The Laws of Sierra Leone (Section 170).................................................................................... 81
M. CHAPTER XVII – MISCELLANEOUS ................................................................................................ 81 1. Interpretation (Section 171) ..................................................................................................... 81 2. Legislation (Section 172) ........................................................................................................... 81 3. Consequential Provisions (Section 173) ................................................................................... 81
N. CHAPTER XIV – TRANSITIONAL PROVISIONS ................................................................................... 81 1. Existing Constitution — Act No. 12 of 1978 (Section 174)....................................................... 81 2. Effect of Transitional Provisions (Section 175) ........................................................................ 81 3. Existing Law (Section 176) ........................................................................................................ 82 4. Application of Existing Law (Section 177) ................................................................................ 82 5. Preservation of Existing Offices (Section 178) ......................................................................... 82 6. Existing Parliament (Section 179) ............................................................................................. 82
7. Delegated Powers (Section 180)………………………………………………………………………………………… 82 8. Continuation of Matters (Section 181) .................................................................................... 82 9. Legal Proceedings (Section 183) ............................................................................................... 82 10. Appeals (Section 184) ........................................................................................................... 82 11. Jurisdiction of the Courts (Section 185) ............................................................................... 82 12. Finance (Section 186) ........................................................................................................... 82 13. Financial Authorisation (Section 187) .................................................................................. 82 14. Official Seals, etc… (Section 188) ......................................................................................... 82 15. Continuation of the Police Force (Section 189) ................................................................... 83 16. Continuation of the Military Forces (Section 190) .............................................................. 83 17. Repeal of Act No. 12 of 1978 and Savings (Section 191) ..................................................... 83 18. Reprint (Section 192) ............................................................................................................ 83 19. Commencement (Section 193) ............................................................................................. 83
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INTRODUCTION AND GENERAL ASSESSMENT1
This report compiles the comments, questions, and recommendations of legal experts to the 1991
Sierra Leone Constitution (hereinafter referred to as “the 1991 Constitution” or “the
Constitution”). This report summarizes the experts’ observations and recommendations
regarding the 1991 Constitution. The report is divided into the Chapters and subsections
currently present the Constitution.
I. Introduction
The purpose of this review is twofold: a) provide final recommendations for constitutional
reform; and b) to raise questions and possible options in the dialectic process of amendment
through the lens of a third party experienced in constitutional theory and practice.
Given the time constraints for submission, we recognize the realistic limits of our understanding
of the lives of the people of Sierra Leone. Thus, our external experience and advice must
continuously interact with the public consensus in Sierra Leone to form a sort of tapestry in
which external advice and the public consensus weave together to eliminate legal loopholes.
Background to the Constitutional Review Process:
Following his re-election for a second term in November 2012, Sierra Leone’s President Koroma
pledged to undertake the long awaited review of the country’s 1991 Constitution, as envisaged
under the Lome Peace Agreement and recommended by the Sierra Leone Truth and
Reconciliation Commission (TRC). The President also assured the wider public and the
international community, including the United Nations, that the review process would be
inclusive and transparent. If properly undertaken, this review process will provide Sierra Leone
with a unique opportunity to ensure its own transformation into a fully-fledged democracy, based
on the rule of law and international human rights standards. A reformed Constitution, based on
public input and participation, should also help Sierra Leone on the road to enduring peace and
prosperity.
Since its launch in July 2013, the CRC has carried out a series of activities, including civic
education, public consultations and workshops on thematic issues, with the support of the United
Nations Integrated Peacebuilding Office in Sierra Leone (UNIPSIL) and the United Nations
Development Programme (UNDP). To complement the efforts of the CRC, UNIPSIL with
support from the Peace Building Fund, also organized a series of dialogues to facilitate
discussion of the process with political parties, women and youth groups and religious and
traditional leaders.
1 For nearly 15 years, the ILRC has assisted UNDP as well as several other United Nations (UN) entities and multinational organizations that work in developing countries with legal issues beyond democratic governance. The ILRC, which is housed within the ABA Section of
International Law, identifies experts for requests relating to technical legal assistance projects, knowledge management and advisory services
worldwide. The ILRC also conducts assessments of draft and current legislation, gauging their compliance with international standards where appropriate, and provides legal research and substantive advice to governments on policy formulation. The ILRC has engaged twelve (12) legal
experts as well as three (3) junior expert to conduct complimentary research. This report was compiled by Suzanne Lachelier and Kwangsup
Kim. All the experts’ biographies can be found in Annex A of this report. To date, the team of experts have provided over 500 pro bono hours of service valued at nearly $111,000. For more information, please contact [email protected].
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UNDP's support to the Constitutional Review Process will continue after UNIPSIL leaves. The
process aims to consolidate National Peace-Building and State-Building efforts through a
consultative, transparent and widely inclusive course of action.
Since December 2013, there has been significant progress and CRC sub-committees have
finalized their outreach and nation-wide consultation strategy with technical assistance from
UNDP. Sierra Leonean media practitioners have been trained on mediation, dialogue and conflict
sensitive reporting on constitutional issues.
In order to ensure that issues of gender and non-discrimination are prioritized in the process,
UNDP, with collaboration from the Ministry of Gender, Social Welfare and Children organized a
nation-wide Women’s Voices Conference on gender-mainstreaming in the Constitutional
Review Process in Bo in March 2014. Various women’s groups and leaders participated in the
conference and developed plans to promote gender equality issues throughout the constitutional
review process.
Throughout 2014 the UNDP-led constitutional review project will assist the CRC to implement
country-wide stakeholder consultations with women, youth, local government bodies, paramount
chiefs, civil society organizations and consultations trickling down to district and community
level.
In general, the Constitution is quite lengthy and detailed. In most of the proposed amendments
below, superfluous or other matters best provided for by statute are recommended for repeal
under the theory that enactment of specific legislation is the best response to evolving matters
rather than frequent amendment of the Constitution—a (rightly) laborious and time-intensive
process. Amendments were drafted in order to achieve a number of aims: Maintain as much of
the spirit and structure of the 1991 Constitution as well as analyze and reinforce as many of the
Constitutional Review Commission’s recommendations as set forth in its January 2008 report as
possible; Bring the Constitution into line with Sierra Leone’s international legal obligations;
Satisfy the recommendations of the Truth and Reconciliation Commission in its exhaustive 2004
report; and align with current constitutional experience, particularly those constitutions that have
been amended and enacted in Africa since 1991. In this regard, the 1996 Constitution of South
Africa and the 2010 Constitution of Kenya were most useful, not only because they are widely
regarded strong and effective instruments, but because they were both drafted in the wake of
internal conflict. The amendments below also change gendered pronouns to gender-neutral
pronoun (i.e., “their” instead of “his”) or restructure text so as to avoid the use of pronouns
altogether.
Most of the last third of the 1991 Constitution consists of provisions establishing constitutional
authorities, which are designedly independent of the President and Parliament. This review has
been trying to establish whether this respect exists mainly on paper, or whether it is also reflected
in reality; though without obtaining much information on this point. However, we believe that,
either way, it is valuable to set a good standard in the Constitution. At worst, this sets a standard
to which the authorities should aspire and, as resources become available, gradually achieve.
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It is, of course, true that the question of the independence of these institutions depends as much
on that elusive thing, tradition or ‘culture’, as on the law or Constitution. But the Constitution is
a significant factor in shaping culture and so, if the Constitution tends to promote independence,
it will have, certainly in the medium term, a significant effect on the culture. They are intended
to ensure that the President and Parliament remain within the Constitution and the Rule of Law.
The most important of these authorities are the Courts. But they also include: Electoral
Commission; Political Parties Registration Commission; Directors of Public Prosecutions;
Ombudsman; Commissions of Inquiry; Public Service Commission; and Police and Defense
Councils.
In addition, it forms a strong policy in the Report of the Commission to Review the 2008
Constitution of Sierra Leone proposes several further examples of these constitutional
authorities, namely Parliamentary Service Commission; Human Rights Commission; NGOs
Regulatory Board; Forces Complaints Commission; Extractive Industries Transparency
Commission (paras. 105, 129, 140 and 138). If these proposals in the Report were adopted, it
would naturally require some adjustment to the Constitution, including the amendments
proposed later, in the matrix. This review not pursuing this further, since we are concentrating
here on the 1991 Constitution. But it would note that probably there should be some limit to the
number of these constitutional authorities, because the greater the number the less chance that
they will be taken seriously.
The independence and effectiveness of these constitutional authorities seems (and, it appears, the
2008 Report) to be of the first importance. After all, principles and values, however excellent,
cannot enforce themselves. Institutional machinery is needed to ensure respect for laws
promoting gender equality and non-discrimination; or respect for Human Rights. It remains as
true as ever that ‘power corrupts; and absolute power corrupts absolutely’. The inference from
this is that independent officers, so as to prevent it from being all-powerful, should at critical
points control the executive-legislative organ of state.
The importance of constitutional authorities of this type, in making good government work, has
been recognized internationally. For instance, see Uganda (1995); South Africa (1996); Kenya
(2010); Egypt (2014); Tunisia (2014). As noted, this idea of independent, specialized
Constitutional Bodies already exists in the Sierra Leone Constitution. Accordingly, the
remainder of this advice consists of a review of the existing divisions in this field, in order to see
how they can be improved.
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I. COMMENTS AND RECOMMENDATIONS
Within each Part, the experts' comments and recommendations generally fell within three
categories: (a) substantive comments regarding specific provisions and their legal implications
(b) substantive and lengthy recommendations as to additional language that should be included
in the Bill; and (c) editorial comments and recommendations focusing on grammatical issues and
clarity. Because of the high number of comments and the specific and in-depth nature of these
comments, this report has organized them on a per-section basis.
A. CHAPTER I – REPUBLIC OF SIERRA LEONE
1. Declaration of Republic (Section 1)
All the experts noted that it would be important for the Constitution’s supremacy to be
emphasized in this Section.
One expert recommended adopting language that would specify the power to enforce provisions
of the Constitution. To that end, this expert proposed the following:
If any other laws are found to be inconsistent with
any provision of this Constitution, they shall be
rendered void.
Another expert pointed to the recommendation from the 2008 Review of the Sierra Leone
Constitution, which sought to establish the supremacy of the Constitution and the sovereignty of
the people. The 2008 Review proposed the following language for addition to Section 1:
1. The Constitution shall be the Supreme law of
Sierra Leone, and
2. Sovereignty belongs to the people of Sierra Leone
from whom Government through this Constitution
derives all its power, authority and legitimacy.
A third expert also suggested emphasizing the supremacy of the Constitution, with the following
additional language:
The Constitution shall be the Supreme law of Sierra
Leone. This Constitution binds all persons and all
State organs at all levels of government. Any law,
including customary or religious law, that is
inconsistent with this Constitution is void to the
extent of the inconsistency, and any act or omission
in contravention of this Constitution is invalid.
This expert referenced a number of international treaties, agreements other national constitutions,
as examples supporting the inclusion of the above language in Sierra Leone’s Constitution:
International Covenant on Civil and Political Rights (hereinafter “ICCPR,”) art. 18(a); Human
Rights Committee, General Comment No. 22(48) (art. 18), U.N. Doc. CCPR/C/21/Rev.1/Add.4,
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¶2 (Sept. 27, 1993); Committee on the Elimination of Discrimination Against Women, General
Recommendation No. 28: On the Core Obligations of States Parties under Article 2 of the
Convention on the Elimination of All Forms of Discrimination against Women, ¶33, U.N. Doc,
CEDAW/C/GC/28 (Dec. 16, 2010); Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, art. 5; S. AFR. CONST., 1996 § 2; KENYA CONST., 2010
art. 2; GHANA CONST., 1992 art. 1(2); UGANDA CONST., 1995 art. 2; U.S. CONST. art. IV, cl. 2;
WITNESS TO TRUTH: REPORT OF THE SIERRA LEONE TRUTH & RECONCILIATION COMMISSION,
Vol. II, Ch. 3, ¶108 (2004) [hereinafter TRC REPORT].
This same expert further recommended that the Sierra Leone Constitution include a new
provision, acknowledging the place of international law in Sierra Leone’s domestic legal
structure. Citing a number of treaties, agreements and state constitutions, this expert proposed
the following addition:
Any treaty or convention ratified by Sierra Leone
shall form part of the law of Sierra Leone.
ICCPR, art. 2; Human Rights Committee, General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. No.
CCPR/C/21/Rev.1/Add. 13, ¶13 (May 26, 2004); CEDAW, art. 2(a); Committee on the
Elimination of Discrimination Against Women, General Recommendation No. 28: On the Core
Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms
of Discrimination against Women, ¶31, U.N. Doc, CEDAW/C/GC/28 (Dec. 16, 2010);
Convention on the Rights of the Child, art. 4; Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, art. 2(1)(a); S. AFR. CONST., 1996 § 2;
KENYA CONST., 2010 art. 2(5), (6); RWANDA CONST., 2003 prmbl., §9, arts. 25, 28; S. AFR.
CONST., 1996 § 39(1)(b).
Another expert suggested writing a preamble in Section 1 that would not limit the Section to
defining the territory of Sierra Leone. Rather, this expert recommended that a preamble
underscore
the sovereignty of Sierra Leone through its elected
representatives or by referendum in this adoption of
the Constitution as the Supreme Law of the Land
regulating their affairs for the purposes stated in
Chapters II and III of the Constitution.
This expert further recommended that the preamble contain language which acknowledges
popular consciousness of the history of the nation,
its diversity and the resolve of the people to live
together as one nation, in peace, progress and
posterity, hereby make this solemn declaration
contained in this constitution.
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The same expert referenced the preamble in South Africa’s Constitution (1996), which provides
that “We therefore, through our freely elected representatives, adopt this Constitution as the
Supreme law of the Republic so as to heal the divisions of the past and establish a society based
on democratic values, social justice and fundamental human rights; improve the quality of life of
all citizens and free the potential of each person. These ideals are expressed in Sections Chapters
II and III of this draft Constitution.”
The expert also noted that Section 171(15)’s affirmation of the primacy of the Constitution
should be placed in the recommended preamble to the Constitution.
2. Public Seal (Section 2)
There were no comments regarding the Public Seal.
3. National Flag and National Anthem (Section 3)
One expert commented that the Constitution should stipulate that Freetown is the capital of the
Sierra Leone. He pointed to Germany’s laws as an example where, in Article 22 (Federal capital
– Federal flag) of the Basic Law for the Federal Republic of Germany, which declares Berlin as
the capital, and further provides that “[t]he Federation shall be responsible for representing the
nation as a whole in the capital. Details shall be regulated by federal law.”
In contrast, another expert recommended that the legislature determine the appearance of Sierra
Leone’s flag, since the Constitution currently provides that the flag shall contain the Public Seal,
and the design of the Public Seal is already prescribed by the legislature under Section 2 of the
Constitution. He therefore proposes the following conforming language for Section 3 of the
Constitution:
The flag of the Republic shall be as Parliament
shall prescribe.
B. CHAPTER II – FUNDAMENTAL PRINCIPALS OF STATE POLICY
1. Fundamental Obligations of Government (Section 4)
There were no comments on this Section.
2. Government and the People (Section 5)
Several experts highlighted that this Section should address the role of Government in protecting
the rights and freedoms of the people, in representing and serving them. With that goal in mind,
an expert proposed the amendments (italicized) to the existing language in Section 5(2)(b):
and to this end it shall be the duty of the Armed
Forces, the Police, Public Officers and all security
and other public agents and representatives to
protect and safeguard the people of Sierra Leone
and all their rights and freedoms.
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With a similar desire to focus this Section on Government representing the people and deriving
its power from them, another expert proposed re-lettering Subsections 5(2)(a), (b) and (c) as
5(2)(b), (c) and (d), respectively. He then recommended including the following language in a
new Section 5(2)(a):
Sovereignty belongs to the people of Sierra Leone.
It shall be exercised by the people through elected
representatives elected among the people or by
referendum following the procedure and conditions
specified in this Constitution.
An renumbered Subsection 5(2)(b), therefore, would delete the phrase
addressing sovereignty currently contained in it, but still contain the
existing language as modified below:
Through this Constitution the Government derives
all its powers, authority and legitimacy.
Another expert suggested the following amendment (italicized) to Section 5(1):
The Republic of Sierra Leone shall be a State based
on the principles of Human Dignity, Equality,
Freedom, Democracy and Justice.
3. Political Objectives (Section 6)
All of the experts expressed similar wishes with different language seeking to assure the
independence and integrity of public servants. One of these experts emphasized that this Section
should explicitly prescribe the impartiality of public servants, their independence from the
Executive and from political interests groups. To that end, the expert proposed creation of a new
subsection 6(6), which would contain the following language:
The status and political impartiality of public
officials shall be guaranteed as prescribed by
legislation. All public officials shall be servants of
the people and shall be responsible for and
accountable to the people.
The second expert proposed the following language for a constitutional assurance of public
servants’ integrity:
All organs of Government and all authorities and
persons employed in the service of the State shall
act ethically. No person employed in the service of
the State may act in any way inconsistent with their
office or this Constitution.
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Two experts proposed specific language amendments to Subsection 6(2). These proposed
amendments were similar in that they seek to promote the widespread and non-discriminatory
protection of the rights assured under the Constitution. One of these expert’s proposed
amendments to Subsection 6(2) are:
1. to delete the word “discourage” and replace it
with “prohibit,” to make clear that discrimination is
not to be tolerated;
2. to delete “on the grounds” because the grounds
for which discrimination is prohibited are currently
specified in Section 27(3) (“Enforcement of
Protective Provisions”);
3. to change “citizen” to “persons,” so that the
Constitution protects all persons within the territory
of Sierra Leone as those rights are broadly
articulated in Section 15 (“Fundamental Human
Rights and Freedoms of the Individual”).
Also regarding Subsection 6(2), the other of these experts expressed concern that “integration”
could be contradictory to the goal of protecting diversity and the rights of minority groups of all
types. With this concern in mind, this expert proposed that the phrase “promoting national
integration” be removed, and the following sentence be added:
The state shall promote the ideals and principles
stated in section 5(1) as well as the pursuit of
happiness, social justice, promotion and protection
of fundamental human rights without discrimination
on the basis of race, ethnicity, religion, status or
gender.
Regarding Subsection 6(3), an expert recommended continuing the promotion of egalitarianism
by adding the following language, after 6(3)(a):
(b) Promote gender balance, the interest of disabled
and disadvantaged people in the procurement of
government services, appointments and promotions.
It was further recommended to add a sentence (in italics below) to the existing Subsection 6(5):
The state shall take all steps to eradicate all corrupt
practices and abuse of power. For this purpose,
prior to taking and leaving office, all persons who
by the provisions of this constitution shall be
mandated to take an oath of office prior to taking
office and shall, in addition to the oath, declare
their affirmation under the conditions and
procedures to be specified by an act of parliament.
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4. Economic Objectives (Section 7)
Experts’ responses on Section 7 diverged significantly. One expert recommended deleting it
entirely, and stated that the language currently in Section 7 involves more government policies,
and not principles typically articulated in a constitution; the policies contained in Section 7, he
advised, could conflict with rights in the constitution, including any environmental rights that
may be adopted.
Another expert recommended substantial changes to the language, designed to promote an
accountable government and transparent legal institutions, in the hopes of minimizing
government officials acting to the detriment of the people’s economic opportunities. This expert
therefore proposed the following new language for Section 7(1):
The State shall establish and implement a plan to
comprehensively develop and support farm and
fishing communities in order to protect and foster
agriculture and fisheries.
In order to protect the interests of farmers and
fishermen, the State shall endeavor to stabilize the
prices of agricultural and fishery products by
maintaining an equilibrium between demand and
supply of such products and improving their
marketing and distribution systems.
The State shall protect and foster small and medium
enterprises.
The State shall foster organizations founded on the
spirit of self-help among farmers, fishermen and
businessmen engaged in small and medium industry
and shall guarantee their independent activities and
development.
A third expert suggested adding, to Subsection 7(1)(c), the word “promote,” before “protect.”
He further recommended adding a new subsection to Section 7, with the following statement:
All other economic objectives promoted and
protected by international conventions to which
Sierra Leone is a state party.
This expert provided commentary to explain the basis for the above additional language, and to
expound on the purposes of Sections 6(5), 7, 8 and 9. Specifically, he noted that the distinction
between rights purportedly non-justiciable (i.e., economic, social and cultural rights described in
the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) (1966)), and
justiciable political and civil rights, is falling out of favor. He further noted that the ICESCR, at
Section 2 commits signatory nations to taking reasonable legislative measures that would make
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these “second generation human rights” justiciable. He pointed to the efforts of many African
nations to stamp out corruption, correct injustices and minimize societal economic disparities,
including the fact that South Africa addressed these problems in its preamble, and Sections 11,
26 and 27 of its Constitution. He then recommended that the Sierra Leone Constitution do
similarly. To that end, and although the second generation rights themselves may not be
justiciable, this expert suggested that the Constitution could declare that policies, acts or
omissions of the Government which infringe on these rights could be made justiciable.
5. Social Objectives (Section 8)
There is a recommendation to add a requirement that
The government will to the greatest extent possible
promote and facilitate universal public access to
modern information and communications
technologies and to a diverse range of information.
The expert making this recommendation emphasized the crucial value of access to information in
promotion and advancement of Social Order. He suggested that the government should, through
language such as the above, facilitate access to important information, and the information
technologies and communications systems necessary to access such information.
Another expert made specific language change recommendations to Section 8. These are:
1. In Subsection 8(2)(a), delete “based on merit,”
because there may be other grounds for benefits
inuring to citizens, and limiting these to benefits
“based on merit” could conflict with any affirmative
action principles that may be adopted.
2. In Subsection 8(2)(c), delete “by reason of
economic….” There could be many other unlawful
reasons for denying access to courts, and thus the
wording in this section should not limit itself to
economic reasons.
3. In Subsections 8(3)(c) and (d), delete the phrase
“having due regard to the resources of the State.”
This phrase could provide a pretext, often used by
States, to deny access to the benefits afforded in
these Subsections.
A third expert commented on Subsection8 (2)(c), recommending deletion of the phrase “and that
opportunities for securing justice are not denied any citizen by reason of economic or other
disability,” to replace it with:
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and that access to justice is not denied any citizen
by virtue of his economic status, social cultural
factors, disability or on religious, ethnic, gender or
any other discriminatory factors.
6. Educational Objectives (Section 9)
Two experts recommended gender neutral terms, or using “his or her,” in the language of this
Section, so as to promote women’s rights.
Another expert noted that this Section should include access to information technologies and
telecommunications systems. He emphasized that the State should commit itself to provide
necessary finance and structures that lead to universal access to modern computing and
communications technologies, as these are necessary to provide effective education and equal
educational opportunities for the public.
Two expert suggested deleting from Subsection 9(1)(c) the phrase “as and when practicable,” so
that the responsibility of the State to provide senior education is not be open-ended or free too
free to be ignored. One of these experts further recommended deleting Subsections 9(1)(a)
though (c), and replacing them with the phrase “free education for all at all levels,” so that the
description of free education levels to be afforded under the Constitution is more comprehensive,
and specific levels are not inadvertently omitted, as they could be through an itemized list.
7. Foreign Policy Objectives (Section 10)
An expert recommended the addition of the following language, so that the Constitution would
specify that treaties to which Sierra Leone are a party become part of domestic law:
Treaties duly concluded and promulgated under the
Constitution and generally recognized rules of
international law shall have the same effect as the
domestic laws of the Sierra Leone.
This expert further recommended that the Constitution specify the State would guarantee the
status of foreigners, such as travelers, investors, etc…, with the addition of the following
language:
The status of foreigners shall be guaranteed as
prescribed by international law and treaties.
Another expert shared a recommendation focused on assuring international rights and
obligations, proposing to delete in Section 10(a) the phrase “the protection of National interest,”
and adding the following:
promotion and protection of the national and
international policies of Sierra Leone and its sub-
regional, regional and global strategic interest.
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A third expert suggested that the language in Section 10(d) could be modified to encourage the
adoption of complaint procedures in human rights treaties. To this end, he recommended
changing the phrase “or adjudication” to “adjudication, or complaint mechanisms,” in paragraph
10(d).
8. Obligations of the mass media (Section 11)
One expert suggested adding the following sentence to this Section, so as to safeguard the
freedom of expression this Section assures:
All means of mass communication including the
press, radio and television shall operate within the
principles and objectives set out in this constitution
regarding the responsibility and accountability of
the government of Sierra Leone
Another expert recommended adding social media, blogs and all other electronic media should
be included in this section, to ensure that the freedom guaranteed in this Section covers more
than traditional mass media.
9. Enhancement of national culture (Section 12)
Only one change was recommended for this Section, namely to delete, as unnecessary
restrictions, in Subsections 12(a) and (b) the phrases “which is compatible with national
development” and “compatible with national development,”
10. Duties of the Citizen (Section 13)
An expert endorsed the 2008 Constitution reports suggestion that the duty to protect the
environment should be added to Section 13, and for that purpose, he recommended adding the
following language:
Mindful also of its responsibility toward future
generations, the state shall protect the natural
foundations of life and animals by legislation and,
in accordance with law and justice, by executive
and judicial action, all within the framework of the
constitutional order.
The following specific language changes were recommended to Section 13:
1. In Subsection 13(b), delete “the National Flag,
the National Anthem,” because “ideals and
institutions” can be respected without requiring
respect to the flag or national anthem.
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2. Also in Subsection 13(b), delete “so that
loyalty…” as unnecessarily restrictive to the reasons
for cultivating nationalism and patriotism.
3. In Subsection 13(g), delete “work conscientiously
in a lawful and chosen occupation,” because this
phrase is too vague as to the obligations it purports
to create.
4. Delete Subsection 13(j) (which imposes a duty on
citizens to render assistance to State agencies)
entirely because it places too great a burden on
citizens and might result in the State or government
officials undue interference with citizens and their
freedoms.
Another expert suggested that this phrase, “help enhance the power, prestige and good name of
the state,” be deleted from Subsection 13(d); he noted that the duty of patriotism is encompassed
already in Subsection 13(d), through the phrase “defend the state and render national service.”
He further recommended that the meaning of “citizen” be defined in this Section.
11. Fundamental Principles Not Justiciable (Section 14)
An expert recommended adding the following phrase to Section 14:
and courts shall be guided by the provisions in this
Chapter when interpreting this Constitution.
Another expert recommended deleting this Section altogether, noting that the principles created
in this Chapter becomes merely hortatory claims if they are non-justiciable.
C. CHAPTER III – THE RECOGNITION AND PROTECTIONS OF FUNDAMENTAL
HUMAN RIGHTS AND PROTECTION OF FREEDOMS OF THE INDIVIDUAL
1. New Section Recommended to Chapter IV
Noting the examples of Kenya’s Constitution (2010), at art. 20, and the South African
Constitution (1996), at §8, an expert proposed the following new two new Sections to this
Chapter:
(1) This Chapter applies to all laws and binds all
State organs and all persons.
(2) Every person shall enjoy the rights and
fundamental freedoms in this Chapter to the
greatest extent consistent with the nature of the
right or fundamental freedom.
(3) In applying a provision of this Chapter, a court
shall—
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(a) develop the law to the extent that it does
not give effect to a right or fundamental
freedom; and
(b) adopt the interpretation that most
favours the enforcement of a right or
fundamental freedom.
(4) In interpreting this Chapter, a court, tribunal or
other authority shall promote––
(a) the values that underlie an open and
democratic society based on human dignity,
equality, equity and freedom; and
(b) the spirit, purport and objects of this
Chapter.
(5) In applying any right under Sections [insert
Section number for new proposed provision on
socio-economic rights] if the State claims that it
does not have the resources to implement the right,
a court, tribunal or other authority shall be guided
by the following principles––
(a) it is the responsibility of the State to
show that the resources are not available;
(b) in allocating resources, the State shall
give priority to ensuring the widest possible
enjoyment of the right or fundamental
freedom having regard to prevailing
circumstances, including the vulnerability of
particular groups or individuals; and
(c) the court, tribunal or other authority may
not interfere with a decision by a State
organ concerning the allocation of available
resources, solely on the basis that it would
have reached a different conclusion.
2. Additional New Section Recommended:
An expert pointed to Constitutions from two other African nations, specifically, §7(2) of South
Africa’s Constitution (1996) and art. 21 of Kenya’s Constitution (2010), and proposed the
following additional section to this Chapter of the Sierra Leone Constitution:
(1) It is a fundamental duty of the State and every
State organ to observe, respect, protect, promote
and fulfill the human rights and fundamental
freedoms in this Chapter
(2) The State shall take legislative, policy and other
measures, including the setting of standards, to
achieve the progressive realization of the rights
guaranteed under Sections [insert Section number
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for new proposed Section on socio-economic rights
discussed below]
(3) All State organs and all public officers have the
duty to address the needs of vulnerable groups
within society, including women, older members of
society, persons with disabilities, children, youth,
members of minority or marginalised communities,
and members of particular ethnic, religious or
cultural communities.
(4) The State shall enact and implement legislation
to fulfill its international obligations in respect of
human rights and fundamental freedoms.
3. Fundamental Human Rights and Freedoms of the Individual (Section
15)
One expert suggested adding language that would assure that, even in public emergencies or
other emergent conditions, the State could not infringe on the essential aspects of the freedoms
articulated in Section 15. He proposed the following language:
Even when restrictions (for example, public safety
and order, etc.) are imposed, no essential aspect of
an affected freedom or right shall be violated.
An expert wrote that Section 15 should be streamlined in its language to make it consistent with
the human rights provisions of the International Covenant on Civil and Political Rights
(“ICCPR”), in particular, articles 1, 2 (a), (b), (c), and 3. He proposed the following introductory
language, to precede Subsections 15(a), (b), and (c). He also recommended deleting the
concluding paragraph to Section 15 that follows 15(c), commenting that what constitutes “public
interest” can be the subject to controversy, and thus such language should not be in a
constitution.
Pursuant to international conventions ratified or
acceded to by Sierra Leone for the promotion and
protection of the human rights, the people of Sierra
Leone recognize that citizens of Sierra Leone and
persons present within the national territory are
entitled to the following inherent and inalienable
rights without distinction on the basis of, tribe,
race, colour, sex, language, religion, ethnicity,
political, or other opinion, national or social origin,
economic or, birth or social status, subject to the
respect of the individual and collective rights of
others:
A few experts recommended adopting the rights articulated in the Constitution report, so that
Section 15 would expand protected rights and include, for example, the right to passport; the
right of protection of environment; the right to education; and the right to dignity of the person.
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Along these lines, one of these experts proposed, below, specific amendments to Section 15,
relying on the constitutional and international treaty provisions of other nations (cited after the
proposed language below):
(1) Whereas every person in Sierra Leone is entitled
to the fundamental human rights and freedoms of
the individual, that is to say, has the right, whatever
his regardless of race, tribe, place of origin,
political opinion, colour, creed or sex, but subject to
respect for the rights and freedoms of others and for
the public interest, to each and all of the
following—
(a) life, liberty, security of person, the
enjoyment of property, and the protection of
law;
(b) freedom of conscience, of expression
and of assembly and association;
(c) respect for private and family life, and
(d) protection from deprivation of property
without compensation; and
(e) passport;
(f) protection of the environment; and
(g) education, health and dignity.
(2) The subsequent provisions of this Chapter shall
have effect for the purpose of affording protection
to the aforesaid rights and freedoms, subject to such
limitations of that protection as are contained in
those provisions, being limitations designed to
ensure that the enjoyment of the said rights and
freedoms by any individual does not prejudice the
rights and freedoms of others, or the public interest
and shall not be limited except by law, and then
only to the extent that the limitation is reasonable
and justifiable in an open and democratic society
based on human dignity, equality and freedom,
taking into account all relevant factors, including––
(a) the nature of the right or fundamental
freedom;
(b) the importance of the purpose of the
limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of
rights and fundamental freedoms by any
individual does not prejudice the rights and
fundamental freedoms of others; and
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(e) the relation between the limitation and
its purpose and whether there are less
restrictive means to achieve the purpose.
(3) The State or a person seeking to justify a
particular limitation shall demonstrate to the court,
tribunal or other authority that the requirements of
this Article have been satisfied.
(4) Despite any other provision in this Constitution,
the following rights and fundamental freedoms shall
not be limited––
(a) freedom from torture and cruel, inhuman
or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial; and
(d) the right to an order of habeas corpus.
S. Afr. Const., 1996 §§7(2), 27(1), 36; Kenya Const., 2010 arts. 21, 24, 25, 43(1)(a);
International Covenant on Economic, Social and Cultural Rights, art. 12(1) (“ICESCR”);
Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”),
art. 12; CRC, art. 24; Banjul Charter, art. 16; Rwanda Const., 2003 art. 41; Uganda Const., 1995
arts. 43(1) and 44.
Another expert emphasized that the right to access all public information is vital in order to
permit individuals to exercise their full economic, social, and political potential, and thus
constitutes today a fundamental human right. He therefore recommended that this section
include the liberty to access all public information. He further noted that the many forms of
electronic surveillance now available interfere with basic human rights, including the freedoms
of expression and association. Accordingly, he also recommended that this Section include a
specific right to be free from unreasonable electronic surveillance.
An expert proposed the following specific language changes, for the reasons explained below:
1. In the preamble paragraph, insert “including”
between “right,” and “whatever.” This amendment
would allow for expansion of the bases for
protecting against discrimination, for example to
include sexual orientation and class.
2. Also in the preamble, delete “and for the public
interest,” as this phrase imposes an unnecessary
limitation on the exercise of the freedoms created in
Section 15.
3. Delete 15(c), as this language does not articulate
a right, but rather an obligation.
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4. Delete the final concluding paragraph, as it
repeats the preamble paragraph of Section 15.
4. Protection of Right to Life (Section 16)
The majority of experts recommended changes that either would eliminate or reflect disfavor for
the death penalty. One expert noted that Subsections 16 (2) (a)(b)(c)(d) are inconsistent with
section 8(a) of the current Sierra Leone Constitution, which protects the sanctity of life, that they
promote violence, and that contravene the rule of law and Part III, articles 6(1)(2)(3)(4)(5)(6), 7
of the ICCPR.
Two experts recommended deletion of Subsection 16(2) in its entirety. One of these experts
noted that Subsection 16(2) actually lists specific defenses, and such detailed provisions do not
constitute fundamental human rights that should are ordinarily contained in a constitution. He
recommended that the Constitution not articulate pro and anti-death penalty positions, and to that
end, suggested the following language changes to Subsection 16(1):
1. Insert “unlawfully” between “shall be” and
“deprived”.
2. Delete “intentionally except….”
The other of the two experts who recommended complete deletion of Subsection 16(2) cited
other constitutions and treaties (listed below), and proposed the following new Subsection 16(2),
and changes to Subsection 16(1):
(1) Every person has the right to life.
(2) No person shall be deprived of his life
intentionally except in execution of the sentence of
a court in respect of a criminal offence under the
laws of Sierra Leone, of which he has been
convicted to the extent authorized by this
Constitution or other written law.
See ICCPR, arts. 6(1), 7, Banjul Charter, arts. 4, 5; U.N. Special Rapporteur on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report, General
Assembly, ¶53, U.N. Doc. A/67/279 (Aug. 9, 2012); Kenya Const., 2010 art. 26(1) and (3), S.
Afr. Const., 1996 §11, Tanz. Const., 1977 (as amended to 2005), art. 14.
One expert modified the proposed language in the 2008 Constitution Report (see ¶41 of that
Report), similarly adding a new Subsection (3), to Section 16. The Constitution report language
is reflected below, with the experts proposed changes (in italics) and deletions (strikeouts)
(b) the death penalty should be abolished and
replaced by life imprisonment for all crimes but for
the temporary exception of acts in all cases of
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treason or other crimes of a political nature which
does not directly cause the death of another
person(s), and replaced by life imprisonment.
(c) that Parliament shall review the death penalty
every two (2) years with a view to its total
abolition.
5. Protection from Arbitrary Arrest or Detention (Section 17)
An expert focused on the need for the Constitution to provide the right counsel for indigent
accused, as well as the provision of a victims’ assistance fund for victims of violent crimes. He
suggested the latter would be separate from any compensation such victims obtained in court,
and could be funded through fines imposed on offenders. To these ends, this expert proposed the
following additional language to Section 17:
If a criminal defendant is unable to secure counsel
by her or his own efforts, the government shall
assign counsel for the defendant as prescribed by
law.
Persons who have suffered bodily injury or death
due to criminal acts of others may receive aid from
the government under conditions as prescribed by
law.
Noting that the period of detention of 10 days currently authorized in Subsection 17(3) violates
article 14(3)(a)(c) of the International Covenant on Civil and Political Rights. He therefore
recommended reducing this time period to 48 hours “or such justifiable period not exceeding 7
days as the circumstances of the case may require.” This expert further recommended also
shortening, from 72 to 24 hours, the time period for bringing before the court someone accused
of a non-capital crimes, non-environmental offences, or offences involving less than a life
sentence.
Another expert proposed repealing Subsection 17(1) entirely, and replacing it with the following:
(1) Every person has the right to freedom and
security of the person, which includes the right:
(a) not to be deprived of freedom arbitrarily
or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from
either public or private sources;
(d) not to be tortured in any way;
(e) not to be subject to corporal punishment;
and
(f) not to be treated or punished in a cruel,
inhuman or degrading way.
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This same expert then recommended moving Subsections 17(2)-(4), which protect the rights of
arrested and detained persons, to a new version of Section 23 she proposes (further below, in
discussion of Constitution Section 23). Similarly, another expert recommended moving all of
Section 17 to Section 23, and modifying the language as follows:
1. To Subsection 17(1), insert “unlawfully”
between “shall be” and “deprived.”
2. 17(1), delete “except as…,” because the
language otherwise gives unfettered powers to the
state.
3. Delete Subsections 17(1)(a-j). Change
recommended for same reason as immediately
preceding recommended amendment.
4. A new Subsection 17 (2), “No person can be
detained without reasonable suspicion of his having
committed or of being about to commit a criminal
offence,” to retain language in current Subsection
17(1)(f), aimed establishing a legal standard that
would trigger detention powers.
5. Similarly to recommendation from expert
mentioned above, this expert suggested reducing the
number of days specified in 17(3)(a), from “ten”
with “seven,” and in 17(3)(b) from “seventy-two” to
“forty-eight.” This expert commented that these
changes would be consistent with the proposal in
the 2008 Constitution.
7. As to the final paragraph after 17(3), replace
with “Any person who is unlawfully arrested or
detained shall be entitled to compensation.” This
change would avoid implying that there is only a
private cause of action as a remedy for violating the
provisions of protecting against unlawful arrest or
detention.
6. Protection of Freedom of Movement (Section 18)
An expert suggested that Sierra Leone may wish to include biodiversity as a “natural resource.”
Two experts recommended deleting Subsection 18(2), with one of these commenting that it is
superfluous. The other expert proposed a streamlined change to Section 18’s language, making it
broader and more encompassing. Referencing other constitutions and treaties, this expert
suggested deleting Subsections 18(2)-(7) in their entirety, and making the following language
changes (in italics) and deletions (strikeouts) to what is now Section 18(1):
(1) Every person has the right to freedom of
movement.
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(2) No person shall be deprived of freedom of
movement, and for the purpose of this section the
said freedom means the right to move freely
throughout Sierra Leone, the right to reside in any
part of Sierra Leone, the right to enter or the right to
leave Sierra Leone, and immunity from expulsion
form Sierra Leone.
(3) No citizen shall be deprived to the right to
enter, remain in, or reside anywhere in Sierra
Leone.
See ICCPR, art. 12(3); Ghana Const., 1992 art. 21(g); Kenya Const., 2010 art. 39; S. Afr. Const.,
1996 §21; Rwanda Const., 2003 art. 23; Tanz. Const., 1977 art. 17.
Several experts expressed concerns about Subsection 18(3), with one of these recommending
deleting it entirely on the grounds that this Chapter conveying human rights should not address
granting any State rights. Two suggested deleting Subsection 18(3)(g), noting that it is
inconsistent with section 18(1), and articles 12(1), (2), (3), (4) of the ICCPR. One expert
recommended replacing 18(3)(a)’s current use of “interest of national defence” with “national
security”, public order, public health or morals or the rights and freedoms of others, and are
consistent with other rights recognized, promoted and protected by this Constitution.” He
commented that the term “national security” better captures the spirit behind this Section, and
that subjecting civilians to military activities violates the intent behind the ICCPR.
Another of the experts expressing concern about the impact of Subsection 18(3) wrote that this
provision could significantly undermine one or more individual rights assured in the
Constitution. He proposed that, to minimize the chances of this occurring, the Subsection could
instruct the courts to interpret it consistently with other sections of the Constitution, and include
specific cross-reference to sections that address individual freedoms. In the alternative, he
proposed the following limiting language, directed at the courts, could be added to 18(3):
This provision should be construed narrowly by the
courts in order to provide the widest possible
protection for individual rights consistent with this
section.
As to Subsection 18(4), one expert recommended adopting the proposed language from the 2008
Constitution Report (text below), and he added (in italics) some language to clarify how the
commission created under this proposal would be structured:
18(a) if any person whose freedom of movement
has been restricted by virtue only of such a
provision as is referred to in paragraph (a) of
subsection (3) so requests at any time during the
period of that restriction not earlier than thirty days
after he last made such a request during that period,
his case shall be reviewed by an independent and
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impartial tribunal, established by law, comprising
not more than three persons from amongst persons
of not less than fifteen years’ standing entitled to
practice in Sierra Leone as legal practitioners;
18(b) Any tribunal has been set up established
under paragraph (a), the Chairman of that tribunal
consist of three members:
i. The Human Rights Commission shall
appoint the Chairman of that tribunal, who
shall be a lawyer.
ii. The Human Rights Commission shall
appoint the second member of that tribunal,
who shall not be a lawyer.
iii. The Sierra Leone Bar Association shall
appoint the third member of that tribunal,
who shall be a lawyer.
Commenting on the above changes, the expert said that the intent appeared to be to create a panel
(Human Rights Commission, “HRC”) comprised of two lawyers and one non-lawyer. Note that
the clarification this expert proposes also goes with language proposed elsewhere; seeking to
assure the HRC has the powers to investigate and adjudicate, in order to fulfill its mission. The
expert comments that officials reviewing the Constitution should consider and decide if this
specific structure meant to cover all HRC hearings or is unique here, to Section 18 of the
Constitution. Drafters may wish either to (a) move this structural provision down to the section
dealing specifically with the HRC, or (b) include an express statement in the HRC section that
other tribunal structures are permissible in other circumstances.
Similarly relying on the proposed changes reflect in the 2008 Constitution report, an expert
recommended replacing the current Subsection 18(4)(a) with
If any person whose freedom of movement has been
unlawfully restricted by any public official so
requests at any time during the period of that
restriction not earlier than thirty days after he last
made such a request, his case shall be reviewed by
an independent and impartial tribunal set up by the
Human Rights Commission.
7. Protection from Slavery and Forced Labor (Section 19)
Both experts commenting on this Section recommended deletion of Subsection 19(2). One
expert noted that (2) is over-expansive, and seems to allow forced labor in times of emergencies.
The other expert noted that 19(2) is inconsistent with the non-derogable nature of the right to
protection from slavery and forced labor.
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It was recommended that Subparagraph 19(1) be retained as is, as the sole paragraph in this
Section.
8. Protection from Inhuman Treatment (Section 20)
An expert recommended deletion of this entire Section, indicating that it is already encompassed
in the proposed Subsection 17(1)(f), above, which would guarantee the freedom “not to be
treated or punished in a cruel, inhuman or degrading way.”
Three experts recommended deletion of Subsection 20(2). Two experts of these expressed
similar concerns that Subsection 20(2) is so broad that it effectively creates a blanket exception
which allows the continuation of laws that permit inhuman treatment. He advised that, if
Subsection 20(2) is intended simply to articulate an exception for events that occurred prior to
acceptance of the Constitution then, at a minimum, this intent should be stated explicitly with,
for example, the following language:
no law or action that violates this right is permitted
from 1991 forward.
This same expert notes that perhaps Sierra Leonese courts have interpretations of Subsection
20(2) that would make the proposed language above unnecessary.
The second expert recommending deletion of Subsection 20(2) noted that Section 20 generally
should be read to be consistent with art. 15 of the ICCPR, which precludes retroactive
application of a law to punish individuals for conduct preceding enactment of that law.
Another expert recommended language changes to Section 20 so that its wording conforms to the
wording used in the Convention Against Torture.
9. Protection from Deprivation of Property (Section 21)
Two experts proposed deleting Subsections 21(2) through (5), with one stating these are
overbroad exceptions to the protection of property rights. The other of these experts, citing
Article 14 of the Banjul Charter, which generally protects the right to property, and the
constitutions of several African nations (referenced below), proposed that Subsections 21(2)
through (5) replaced with the following additions (italics) and deletions (strikeouts) to the
existing language of Section 21(1):
Every person has the right, either individually or in
association with others, to acquire and own
property:
(a) of any description; and
(b) in any part of Sierra Leone.
(2) No person may be deprived of property of any
description or of any interest in, or right over, any
property of any description except in terms of law of
general application, and no law may:
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(a) permit arbitrary deprivation of property,
or
(b) limit, or in any way restrict the
enjoyment of any right under this Section on
the basis of any of the grounds specified or
contemplated in Section 27(4)
(1) (3) No property of any description shall be
compulsorily taken possession of, and no interest in
or right over property of any description shall be
compulsorily acquired, except where the following
conditions are satisfied, that is to say—
(a) the taking of possession or acquisition is
necessary is for a public purpose or in the
public interest and is carried out in
accordance with this Constitution and any
Act of Parliament in the interests of defence,
public safety, public order, public morality,
public health, town and country planning,
the development or utilization of any
property in such a manner as to promote the
public benefit or the public welfare of
citizens of Sierra Leone; and
(b) the necessity therefor is such as to afford
reasonable justification for the causing of
any hardship that may result to any person
having any interest in or right over the
property; and
(c) (b) provision is made by law applicable
to that taking of possession or acquisition—
i. for the prompt payment of
adequate compensation; and
ii. securing to any person having an
interest in or right over the property,
a right of access to the court or other
impartial and independent authority
for the determination of his such
interest or right, the legality of the
taking of possession or acquisition of
the property, interest or right, and the
amount of any compensation to
which he or she is entitled and for
the purpose of obtaining prompt
payment of that compensation.
(c) Provision may be made for compensation
to be paid to occupants in good faith of land
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acquired under clause (b) who may not hold
title to the land.
(4) Parliament shall enact legislation to support,
promote and protect the intellectual property rights
of the people of Sierra Leone.
(5) The rights under this Section do not extend to
any property that has been found to have been
unlawfully acquired.
Banjul Charter, art. 14; Kenya Const., 2010 art. 40(1)-(6); Rwanda Const., 2003 art. 29; Tanz.
Const., 1977 art. 24(1)-(2); S. Afr. Const., 1996 §25.
An expert suggested inserting, in Subsection 21(1)(c)(i), the words “just and” between “of” and
“adequate,” so that the elements of justness/fairness are included in the adjudication of
compensation for the deprivations of property lawfully authorized under this Section.
Another expert proposed adding to Subsection 21(5) a right to appeal from the proposed Lands
Tribunal, to some competent authority above it.
10. Protection for Privacy of Home and other Property (Section 22)
One expert recommended that this Section should articulate specific protections against
unreasonable searches and seizures for internet searches, searches of electronic computing and
communications devices, and of stored electronic communications. Such protections would
recognize that much personal property today includes electronic devices that store sensitive
personal information. This expert further suggested that this Section of the Constitution should
extend to protecting the privacy of information in electronic communications and activities (such
as e-mail addresses, website URLs). This expert commented that beyond the content of e-mails
themselves, e-mail addresses and websites an individual may access convey personal information
about that individual; the Constitution should contain protection this sort of data, “metadata,” as
well. Finally, the expert also recommended that this Section contain a prohibition on
unreasonably invasive surveillance and monitoring technologies, such as thermal imaging
devices, without appropriate authorization. The expert suggested that the Constitution create a
privacy interest that guards against modern tracking technologies that enable surveillance beyond
the expectations of individual citizens (e.g., “keystroke monitoring” software which tracks
keystrokes, and wireless communications “sniffers” which can identify phone numbers and
Internet addresses accessed).
Two experts suggested deleting Subsection 22(2) as an overbroad exception to the right sought to
be protected here. One of these also recommended deleting 22(1), and that the following
language substituted:
Every person has the right to privacy, which
includes the right not to have—
(1) their person, home or property searched;
(2) their possessions seized;
(3) information relating to their family or private
affairs unnecessarily required or revealed; or
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(4) the privacy of their communications infringed.
See S. Afr. Const., 1996 §14; Kenya Const., 2010 art. 31. See also Uganda Const., 1995 art. 27;
U.S. Const. amend. IV.
An expert recommended deleting the phrase “reasonably justifiable in a democratic society” at
the end of Section 22, as it may be the subjection of controversial interpretations. He further
suggested that to clarify this Section, the following additions (italics) and deletions (strikeouts)
should be made to Section 22(1) and 22(2)(a):
Section 22(1): Add “Unless required by law or
with his express consent”…
Section 22(2)(a): Replace “defence” with “national
security”
Finally, one expert advised that Subsections 22(2)(a) through (d) should be deleted, but 22(a)(e)
should be kept as it offers child and spousal protection.
11. Provision to Secure Protection of Law (Section 23)
One expert recommended that the age of 21 referred to in Subsection 23(3) should be changed to
18, to be consistent with the right to vote that is set out in Section 31 of the Constitution.
Regarding Subsection 23(4), an expert advised deletion of the phrase “to the extent that the law
in question imposes on any person charged as aforesaid the burden of proving particular facts,”
commenting that this provision is inconsistent with the presumption of innocence and right to
remain silent, which are reflected in art. 14 of the ICCPR.
One expert recommended adding to Subsection 23(5) a right to free legal counsel upon
demonstration of lack of ability to afford one. Another expert commented that the proviso in
Subsection 23(5), which limits the right to legal representation created in this Subsection to those
persons charged with a criminal offense, should be deleted; this expert commented that the right
to legal representation should not be prohibited at any level.
As to 23(9), another expert recommended deleting the second proviso of in that subsection
(regarding the trial of members of the defence forces), noting that it violates the principles of
equality before the law and against double jeopardy, contained in art. 14(7) of the ICCPR.
It was further proposed that Subsections 23(10) and 23(11) be deleted, on the basis that the
former deletion is consistent with the 2008 Constitution report’s recommendation, and the latter
contains a definition of “legal representation” that could need to change over time and that
therefore should not be contained in the more static document that is a constitution.
Finally, one expert suggested comprehensive changes to the whole of Section 23, through the
language below. The expert cited examples and support for these changes, which are footnoted.
(1) An arrested person has the right—
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(a) to be informed at the time of arrest2 in
language that the person understands, of—
(i) the reason for the arrest;
(ii) the right to remain silent;
(iii) the consequences of not
remaining silent; and
(iv) the right of access to a legal
practitioner or any person of their
choice.
(b) to remain silent;
(c) to communicate confidentially with a
legal practitioner of their own choice, and
other persons whose assistance is
necessary;3
(d) not to be compelled to make any
confession or admission that could be used
in evidence against the person;
(e) to be held separately from persons who
are serving a sentence;
(f) to be brought before a court as soon as
reasonably possible, but not later than––
(i) forty-eight hours after being
arrested; or
(ii) if the forty-eight hours ends
outside ordinary court hours, or on a
day that is not an ordinary court day,
the end of the next court day;4
(g) at the first court appearance, to be
charged or informed of the reason for the
detention continuing, or to be released; and
(h) to be released on bond or bail, on
reasonable conditions, pending a charge or
trial, unless there are compelling reasons.
2 Report of the Commission to Review the Constitution of Sierra Leone, 1991 at 22, ¶44 (2008) [hereinafter
Commission Report] (deleting “and in any event not later than twenty-four hours, of the facts” from Section
17(2)(a)). 3 Commission Report at 23, ¶45 (deleting “at his own expense” from Section 17(2)(b)).
4 ICCPR, art. 9(3) requires that arrested persons “be brought promptly before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” Under the
Kenyan and South African Constitutions, 48 hours is the outside limit on pre-hearing detention. KENYA CONST.,
2010 art. 49(1)(f) (24 hours); S. AFR. CONST., 1996 §35(1)(d). The Commission has determined that 48 hours shall
be the standard for non-capital offenses in Sierra Leone. Commission Report at 23, §46 (changing seventy-two to
forty-eight in Section 17(3)(b) of the 1991 Constitution). Neither international nor comparative law provides a
different time standard for capital offenses which is why the 10-day time frame provided for in the 1991
Constitution, Section 17(3)(a) (amended to seven days by the Commission Report at 23, §46) is removed.
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(2) Everyone who is detained, including every
sentenced prisoner, has the right—
(a) to be informed promptly of the reason for
being detained;
(b) to choose, and to consult with, a legal
practitioner, and to be informed of this right
promptly;
(c) to have a legal practitioner assigned to
the detained person by the state and at state
expense, if substantial injustice would
otherwise result, and to be informed of this
right promptly;
(d) to challenge the lawfulness of the
detention in person before a court and, if the
detention is unlawful, to be released;
(e) to conditions of detention that are
consistent with human dignity, including at
least exercise and the provision, at state
expense, of adequate accommodation,
nutrition, reading material and medical
treatment; and
(f) to communicate with, and be visited by,
that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial,
which includes the right—
(a) to be informed of the charge with
sufficient detail to answer it;
(b) to have adequate time and facilities to
prepare a defence;
(c) to a public trial before an ordinary
court;
(d) to have their trial begin and conclude
without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal
practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to
the accused person by the state and at state
expense, if substantial injustice would
otherwise result, and to be informed of this
right promptly;
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(h) to be presumed innocent, to remain
silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-
incriminating evidence;
(k) to be tried in a language that the accused
person understands or, if that is not
practicable, to have the proceedings
interpreted in that language without cost;5
(l) not to be convicted for an act or omission
that was not an offence under either
national or international law at the time it
was committed or omitted;
(m) not to be tried for an offence in respect
of an act or omission for which that person
has previously been either acquitted or
convicted;
(n) to the benefit of the least severe of the
prescribed punishments if the prescribed
punishment for the offence has been
changed between the time that the offence
was committed and the time of sentencing;
and
(o) of appeal to, or review by, a higher
court.
(4) Whenever this section requires information to be
given to a person, that information must be given in
a language that the person understands.
(5) Evidence obtained in a manner that violates any
fundamental human right or freedom in Chapter IV
must be excluded if the admission of that evidence
would render the trial unfair or otherwise be
detrimental to the administration of justice.6
12. Protection of Freedom of Conscience (Section 24)
Two experts suggested deleting from Subsection 24(1) the phrase “except with his own consent,”
as this language raises unnecessary questions regarding voluntariness of consent to waive the
right to freedom of conscience. One of these experts also advised to delete the word “propagate”
from this Subsection, commenting that states may justifiably need to restrict proselytizing of
religion by a person or group.
5 1991 Constitution, §23(5)(e) (providing accused interpretation assistance “without payment”).
6 S. AFR. CONST., 1996 §35; KENYA CONST., 2010 arts. 49 and 50.
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Also regarding 24(1), one of these experts, citing the Convention on the Rights of the Child
(CRC), art. 14, the African Charter on the Rights and Welfare of the Child (African Children’s
Charter), art. 9, proposed the following changes:
(1) Except with his own consent, no person shall be
hindered in the enjoyment of his freedom of
conscience and for the purpose of this section the
said freedom includes Every person shall have the
right to freedom of thought of conscience, and of
religion, freedom to change his religion or belief,
and freedom either alone or in community with
others and both in public and in private to manifest
and propagate his religion or belief in worship,
teaching, practice and observance.
As to 24(2), an expert further suggested deleting the phrase “Except with his own consent (or if
he is a minor the consent of his parent or guardian).”
Another expert supported the idea of adding to Section 24(1) some affirmative obligation on the
part of the State to refrain from promoting religion. This expert commented that, although the
Constitution provides for freedom of religion and discourages political parties from becoming
exclusive organs of particular religions (see art. 35(5)), it would be desirable to further separate
the State and religion and insulate the State from religious takeover. Among other things,
prohibitions could be added that bar the State from becoming a propagator of religion, from
favoring religion over non-religion, or favoring some religions over others, and from supporting
religions financially or otherwise or taxing to support religion or religious group, as well as bars
on the State from establishing any religion, and from participating in the affairs of any religious
organization or group.
Three experts recommended that Subsection 24(5) should be deleted, commenting that it is
unnecessary, or overbroad. One of these experts commenting that such an exception --
particularly in a constitution, which is designed to resist change -- could be interpreted in ways
that could make the rights themselves chimerical. Another expert, concerned about avoiding
words that could be the subject of disputes of interpretation, suggested replacing “democratic
society” with the words “democratic values,” in the second proviso of Subsection 24(5)(b).
13. Protection of Freedom of Expression and the Press (Section 25)
A majority of the experts recommended deleting the proviso in Subsection 25(1) that limits to
the Government only any ownership of television and other broadcasting media. This proviso
was deemed inconsistent with the principle of freedom of the press, and violative of the ICCPR.
One of the experts cited several other African nations’ constitutions as models for the
construction of this Section. See S. Afr. Const., 1996 §16(1); Kenya Const., 2010 arts. 33(1)(b),
(c) and 34(1); Uganda Const., 1995 art. 29(a) and (b). She proposed the following substitutions
and deletions to the current Subsection 25(1); this proposal echoes some of the changes proposed
by other experts, including the deletion of the existing exception that allows that a person can
consent to hindering their freedom of expression:
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(1) Except with his own consent, no person shall be
hindered in the enjoyment of his freedom of
expression, and for the purpose of this section the
said Every person shall have the right to freedom of
expression, which includes the freedom to hold
opinions and to receive and impart ideas and
information without interference,; freedom from
interference with his correspondence,; freedom to
own, establish and operate any medium for the
dissemination of information, ideas and opinions,;
freedom of artistic creativity;7 freedom of the press
and other media;8 and academic freedom in
institutions of learning and scientific research.9
Provided that no person other than the Government
or any person or body authorised by the President
shall own, establish or operate a television or
wireless broadcasting station for any purpose
whatsoever.
(2) Everyone person has the right to access to:
(a) any information held by the State; and
(b) any information that is held by another person
and that is required for the exercise or protection of
any rights.
Another expert commenting on Subsection 25(1) did not propose deleting the proviso which
allows only the Government to own television and broadcast media, but he did recommend that
the Constitution should permit the private ownership and operation of the full range of Internet-
enabled and wireless systems and platforms, including websites, social media networks, and
streaming media systems.
One expert suggested adding that the procedures for regulating broadcast media should be
spelled out by Parliament or regulated by a Commission set up by the Parliament. A second
expert also mentioned the creation of a Commission, but preferred that it be established and
structure under the Constitution, so as to ensure the political neutrality of any such Commission.
This second expert also recommended that, to promote women’s rights, the Commission
members should include at least one woman, nominated by civil society organizations. The
following broad language was offered, to begin structuring a commission to regulate
broadcasting media:
7 S. AFR. CONST., 1996 §16(1)(c); KENYA CONST., 2010 art. 33(1)(b).
8 S. AFR. CONST., 1996 §16(1)(a); KENYA CONST., 2010 art. 34(1).
9 S. AFR. CONST., 1996 §16(a)(d); KENYA CONST., 2010 art. 33(1)(c). See also UGANDA CONST., 1995 art. 29(a) and
(b).
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(1)The political neutrality of the Media Commission
shall be maintained.
As to Subsection 25(2), there were several varying comments about how to modify this provision
which currently establishes exceptions to the freedom of expression and the Press.
Two experts proposed deleting Subsection 25(2) entirely, because it gives too much control to
the government over the freedoms of expression and of the press. Citing several other
constitutions as examples, one of these experts further suggested omitting the proposed
Subsection 25(3) in the 2008 Constitution Report. See S. Afr. Const., 1996 §16(1); Kenya
Const., 2010 arts. 33(1)(b), (c) and 34(1); Uganda Const., 1995 art. 29(a) and (b). The other
expert recommended adopting the following language from the 2008 Report:
Everyone has right to access to (a) any information
held by the State; (b) any information that is held by
another person and that is required for the exercise
or protection of any rights.
Also as to Subsection 25(2), another expert proposed adding language that would specify that the
courts should narrowly construe any exception to the freedom of expression created in that
Subsection.
Finally, one expert recommended changing the use of the term “democratic society” in
Subsection 25(2) with “democratic values.”
14. Protection of Freedom of Assembly and Association (Section 26)
Relying on rights assured in article 21 (right of peaceful assembly) and 22 (right of freedom of
association) of the ICCPR, and on the constitutions of a number of African nations, an expert
proposed the following new language (italics), and deletions (strikeouts) to existing language:
(1) Except with his own consent, no person shall be
hindered in the enjoyment of his freedom of
assembly and association, that is to say, his Every
person shall have the right to assemble,
demonstrate, picket, and to present petitions to
public authorities10
freely and associate with other
persons and in particular to form, or belong to, or
participate in the activities of11
any political party,
trade unions or other economic, social or
professional associations, national or international,
for the protection of his their interests.
10
KENYA CONST., 2010 art. 37; S. AFR. CONST., 1996 §17. 11
KENYA CONST., 2010 art. 36(1).
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(2) A person shall not be compelled to join a
political party, trade union or other economic,
social or professional association of any kind.
See ICCPR, arts. 21 and 22; Kenya Const., 2010 arts. 36(1)-(2), 37; S. Afr. Const., 1996 §17;
Uganda Const., 1995 art. 29(1)(d) and (e); Ghana Const., 1992 art. 21(1)(d) and (e).
This same expert, as well as another, recommended deleting the current Subsection 25(2)
entirely; it was noted that this Subsection is unnecessary in light of the limitations proposed
(above) for Subsection 15(2). Relying on the 2008 Constitution Report, one of these experts
suggested substituting the following, in Subsection 25(2):
Every trade union, employers’ organization and
employers have the right to engage in collective
bargaining.
A different expert recommended replacing the term “national defence” with “national security,”
in Subsection 25(2)(a).
15. Protection from Discrimination (Section 27)
Most experts proposed substantial changes to the existing Section 27, including deletion of it
entirely. One of the experts recommending deletion suggested that the prohibitions on
discrimination contained in Section 27 should be included in legislation, and not in the
Constitution. Another expert recommending deletion proposed the following new language,
based on the international treaties and constitutions cited below:
(1) Every person is equal before the law and has the
right to equal protection and equal benefit of the
law.
(2) Equality includes the full and equal enjoyment
of all rights and fundamental freedoms.
(3) Every person shall have the right to equal
treatment, including the right to equal opportunities
in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or
indirectly against any person on any ground,
including race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age,
disability, religion, conscience, belief, culture,
dress, language or birth.
(5) A person shall not discriminate directly or
indirectly against another person on any of the
grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights
guaranteed under this Article, the State shall take
legislative and other measures, including
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affirmative action programmes and policies
designed to redress any disadvantage suffered by
individuals or groups because of past
discrimination.
(7) Any measure taken under clause (6) shall
adequately provide for any benefits to be on the
basis of genuine need.
See ICCPR, art. 26 (recognizing equality of all before the law, equal protection of the law, and
prohibiting discrimination); CEDAW, arts. 1 (prohibition on discrimination against women), 2(a)
(establishing obligation of State Parties to eliminate discrimination against women), 15(1) (State
Parties must accord women equality before the law); HRC Gen. Cmt. 31, ¶8; CEDAW Gen. Rec.
28, ¶16; S. Afr. Const., 1996 §9(1); Tanz. Const., 1977 art. 13(1) and (5); Rwanda Const., 2003
art. 16; Ghana Const., 1992 art. 17(1) and (4); S. Afr. Const., 1996 §9(2); Uganda Const., 1995
arts. 21(1), 32(1), 33(5); Kenya Const., 2010 art. 27.
Two experts recommended adoption of the Subsection 27(5), proposed in the 2008 Constitution
Report, which sets up a Human Rights Commission. One of these experts commented that it
should be clarified whether the HRC is meant to be the only forum for complaint, or if
individuals may also bring an action before the courts. He also suggested considering whether
an appeal from the HRC should go to the High Court, given that the HRC process is likely to be
less formal, and thus to offer less procedural protections. Including the Court of Appeals in the
process, this expert commented, would allow full hearings, with a formal record, assuring the
right to fair trial that may not be included in HRC proceedings as presently contemplated. If the
purpose of this proposed 27(5) Subsection is to assure expeditious resolution of claims before the
HRC, this expert suggested the following language, which would still include the procedural
protections of the High Court, while emphasizing speedy process:
any appeal from, or any case brought by, the
Human Rights Commission must be heard by the
High Court and a determination reached in an
expedited manner consistent with justice.
There were several more “surgical” suggested language changes to section 27, including the
following:
1. 27(1), delete as unnecessary the phrase “Subject
to the provisions of subsection (4), (5), and (7)”.
2. 27(2), delete as unnecessary the phrase “Subject
to the provisions of subsections (6), (7), and (8)”
3. 27(3), insert “by such attributes as” between
“by” and “race.” This change would assure that the
list in (3) is not exclusive, and other grounds for
protecting against discrimination can be included.
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4. 27(4-8), delete each of these paragraphs as
unnecessary, and add the following new language to
(4):
Subsections (1) and (2) shall not apply to any law
so far as that law makes provisions for the taking by
the Government of affirmative action to remedy or
ameliorate the effects of past discrimination against
any group listed in section (3).
Relying on Articles 12, 13, and 14(1) of the ICCPR, another expert proposed deletion of
27(4)(b), which currently excepts from protections persons who are not citizens of Sierra Leone.
Similarly, and like two other experts, this expert recommended deleting 27(8). He commented
that both these provisions are inconsistent with international Sierra Leone’s international treaty
obligations affording equality before the law for friendly aliens and their businesses that are
lawfully within the territory of Sierra Leone or persons who acquired citizenship by lawful
means other than birth. He also noted that the many refugees residing in the territory of Sierra
Leone are protected by the 1951 Refugee Convention. Sierra Leone will be in violation of its
international treaty obligations is its Constitution permitted the enactment of laws that
specifically discriminate these category of persons by virtue of their status. This expert further
noted that Subsection 27(8) is a jurisdictional ouster clause that violates the access to judicial
process and rule of law provisions of this Constitution.
16. Enforcement of Protective Provisions (Section 28)
Two experts proposed completely deleting Section 28. One of these recommended adopting the
proposed language in the 2008 Constitution Report, which reads as follows12
:
1. If in any proceedings in any court other than the
Supreme Court, any question arises as to the
contravention of any of the provisions of Sections
16 – 27 inclusive, that court may, and shall if any
party to the proceedings so request, refer the
question to the Supreme Court.
(a) The Rules of Court Committee may make
rules with respect to the practice and
procedure of the Supreme Court for the
purposes of this section;
(b) Parliament may confer upon the
Supreme Court such powers in addition to
those conferred by this section as may
appear to Parliament to be necessary and
desirable for the purpose of enabling the
court more effectively to exercise the
12
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, pp. 34-35 (2008).
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jurisdiction conferred upon it by this
section.
2. Parliament shall make provisions –
(a) for the rendering of financial assistance
to an indigent citizen of Sierra Leone where
his right under this Chapter has been
infringed, or with a view to enabling him to
engage the services of a legal practitioner to
prosecute his claims;
(b) for ensuring that allegation of
infringements of such rights are substantial
and the requirement or need for financial or
legal aid is real.
3. The Supreme Court –
(a) consisting of not less than five Justices of the
Supreme Court shall consider every question
referred to it under this Chapter for decisions, and,
having heard arguments by or on behalf of the
parties by Counsel, shall pronounce its decision on
such question in open court as soon as may be and
in any case not later than thirty days after the date
of such reference.
The second of the experts proposing deletion of Section 28 also referenced the 2008 Constitution
Report, but proposed different language, relying as well on provisions of the South African and
Kenyan constitutions (footnoted):
(1) Every person has the right to institute court
proceedings claiming that a right or fundamental
freedom in Chapter IV has been denied, violated or
infringed, or is threatened.
(2) In addition to a person acting in their own
interest, court proceedings under clause (1) may be
instituted by––
(a) a person acting on behalf of another
person who cannot act in their own name;
(b) a person acting as a member of, or in the
interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of
one or more of its members.13
(3) The Chief Justice shall make rules providing for
the court proceedings referred to in this Section,
which shall satisfy the criteria that––
13
S. AFR. CONST., 1996 §38.
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(a) the rights of standing provided for in
clause (2) are fully facilitated;
(b) formalities relating to the proceedings,
including commencement of the proceedings
are kept to the minimum and in particular
that courts shall, if necessary, entertain
proceedings on the basis of informal
documentation;
(c) no fee may be charged for commencing
the proceedings;
(d) financial assistance is provided to
indigent citizens of Sierra Leone where their
rights under Chapter IV have been
infringed, or with a view to enabling them to
engage the services of a legal practitioner to
prosecute their claims, provided that that
allegation of infringements of such rights
are substantial and the requirement or need
for financial or legal aid is real;
(e) courts, while observing the rules of
natural justice, shall not be unreasonably
restricted by procedural technicalities; and
(f) an organisation or individual with
particular expertise may, with the leave of
the court, appear as a friend of the court.
(4) The absence of rules contemplated in sub-
section (3) does not limit the right of any person to
commence court proceedings under this Section,
and to have the matter heard and determined by a
court.
Another expert proposed adding the following to Subsection 28(6), which creates the Supreme
Court, increasing the number of justices to assure speedier trial rights, and creation of a post for
“preliminary” judges who would substitute if regular judges are absent:
The Supreme Court shall be composed of nine
Justices and one preliminary judge. The Supreme
Court shall establish lower courts as necessary to
ensure that all people have access to the justice
system. The Supreme Court and other courts of
Sierra Leone shall guarantee and uphold the right
to a speedy and fair trial, and guarantee and uphold
the rights and freedoms of the people.
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This expert also suggested the following new language, aimed at giving the government the
ability to sue political parties that act against the democratic order, so as to preserve and further
democracy:
Parties that, by reason of their aims or the behavior
of their adherents, seek to undermine or abolish the
free democratic basic order or to endanger the
existence of the Sierra Leone shall be
unconstitutional. The Supreme Court shall rule on
the question of unconstitutionality.
Finally, an expert expressed concern regarding the grant of original jurisdiction being limited to
the Supreme Court. He commented that consideration could be given to expanding original
jurisdiction in constitutional cases to other courts, subject to review by the Supreme Court. In
this way, important constitutional issues could be fully explored by lower courts before they
reached the Supreme Court, giving the Supreme Court the benefit of more extensive arguments
and judicial consideration. This expert further recommended adding to the list of rights in
Section 28(1) the mention of Section 15, in addition to Sections 16-27 presently included.
17. New Section Recommended: Authority of courts to uphold and
enforce fundamental freedoms and rights
Citing the 2008 Constitution Report (¶106), as well as several African nations’ constitutions and
certain international agreements, documents and recommendations (referenced below), an expert
suggested adding a section granting to the judiciary the authority to uphold and protect the
human rights articulated in this Chapter, through the following new language:
(1) The High Court has jurisdiction, in accordance
with Section 132, to hear and determine
applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental
freedom in Chapter IV.
(2) In any proceedings brought under this Section,
a court may grant appropriate relief, including––
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law
that denies, violates, infringes, or threatens
a right or fundamental freedom in the Bill of
Rights and is not justified under Section 15;
(e) an order for compensation; and
(f) an order of judicial review.
Kenya Const., 2010 art. 23(1) and (3); Ghana Const., 1992 art. 33(1); S. Afr. Const., 1996
§169(1); ICCPR, art. 2(3); HRC Gen. Cmt. 31, ¶15 (May 26, 2004); CEDAW, art. 2(b); CEDAW
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Gen. Rec. 28, ¶32; Committee on the Rights of the Child, General Comment No. 16: On State
Obligations Regarding the Impact of the Business Sector on Children’s Rights, ¶24, U.N. Doc.
CRC/C/GC/16 (Apr. 17, 2013).
18. Public Emergency (Section 29)
One expert recommended that Section 29 define what constitutes a “State of Emergency,” and
that this definition conform with ICCPR articles 4(1)(2)(3) (setting out obligations of State
Parties in instances of public emergencies, and what rights are non-derogable), and 5(1)(2)
(stipulating that violation of one group’s rights by another is not authorized, and that
fundamental rights specified in the ICCPR are non-derogable). He further recommended that
members of commissions mentioned in Section 29 should take an oath of office.
An expert proposed deletion of Subsections 29(4)-(18), and the following deletions (strikeouts)
and additions (italics) to this Section:
(1) Whenever in the opinion of the President a state
of public emergency is imminent or has
commenced, the President may, at any time, by
Proclamation which shall be published in the
Gazette, declare that—
(a) a state of public emergency exists either
in any part, or in the whole of Sierra Leone;
or
(b) a situation exists which, if it is allowed
to continue, may lead to a state of public
emergency in any part of or the whole of
Sierra Leone.
(2) The President may issue a Proclamation of a
state of public emergency only when—
(a) Sierra Leone is experiencing at or in
imminent danger of war, an invasion, a
natural disaster, an actual breakdown of
public order and public safety, or other
public emergency; or
(b) Sierra Leone is in imminent danger of
invasion or involvement in a state of war; or
(c) there is actual breakdown of public order
and public safety in the whole of Sierra
Leone or any part thereof to such an extent
as to require extraordinary measures to
restore peace and security; or
(d) there is a clear and present danger of an
actual breakdown of public order and public
safety in the whole of Sierra Leone or any
part thereof requiring extraordinary
measures to avert the same; or
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(e) there is an occurrence of imminent
danger, or the occurrence of any disaster or
natural calamity affecting the community or
a section of the community in Sierra Leone;
or
(f) there is any other public danger which
clearly constitutes a threat to the existence
of Sierra Leone.
(b) the declaration is necessary to meet the
circumstances for which the emergency is
declared.
(3) Every Proclamation made under subsection (1)
shall lapse—
(a) be prospective;14
and
(a) (b) in the case of a Proclamation made
when Parliament is sitting at the expiration
of a period of seven days beginning with the
date of publication of the declaration; and
(b c) in any other case, at the expiration of a
period of twenty-one fourteen15
days
beginning with the date of the Proclamation,
unless it has in the meantime been approved
by or superseded by a Resolution of
Parliament supported by the votes of two-
thirds of the Members of Parliament.
(4) Parliament may extend a Proclamation of a
state of emergency—
(a) by resolution adopted—
(i) following a public debate in the
Parliament; and
(ii) by two-thirds of the Members of
Parliament and
(b) for not longer than three months at a
time.
(5) The Supreme Court may decide on the validity
of—
(a) a Proclamation of a state of emergency;
(b) any extension of a Proclamation of a
state of emergency; and
(c) any legislation enacted, or other action
taken, in consequence of a declaration of a
state of emergency.
14
Per recommendation of the The Constitution Report, ¶69. 15
TANZ. CONST., 1977 art. 32(3).
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(6) Any legislation enacted in consequence of a
Proclamation of a state of emergency––
(a) may limit a right or fundamental
freedom in Chapter IV only to the extent
that—
(i) the limitation is strictly required by the
emergency; and
(ii) the legislation is consistent with the
Government’s obligations under
international law applicable to a state of
emergency; and
(b) shall not take effect until it is published
in the Gazette.16
(7) No Proclamation of a state of emergency, or
legislation enacted or other action taken in
consequence of any Proclamation, may permit or
authorise:
(a) the indemnification of the State, or of any
person, in respect of any unlawful act or omission;
(b) any derogation from this Section; or
(c) any derogation from a section mentioned in
column 1 of the Table of Non-Derogable Rights, to
the extent indicated opposite that section in column
3 of the Table following this Section.
[insert here the Non-Derogable Rights under
Section 29(7)(c) specified in memorandum from
expert Amy Senier]
(8) Whenever any person is detained without trial in
consequence of a derogation of rights resulting
from a Proclamation of a state of emergency, the
following conditions must be observed:
(a) An adult family member or friend of the
detainee must be contacted as soon as
reasonably possible, and informed that the
person has been detained.
(b) A notice must be published in the Gazette
within five days of the person being
detained, stating the detainee’s name and
place of detention and referring to the
emergency measure in terms of which that
person has been detained.
16
KENYA CONST., 2010 art. 58(6); S. AFR. CONST., 1996 §37(4); TRC REPORT, ¶72.
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(c) The detainee must be allowed to choose,
and be visited at any reasonable time by, a
medical practitioner.
(d) The detainee must be allowed to choose,
and be visited at any reasonable time by, a
legal practitioner.
(e) A court must review the detention as
soon as reasonably possible, but no later
than ten days after the date the person was
detained, and the court must release the
detainee unless it is necessary to continue
the detention to restore peace and order.
(f) A detainee who is not released in terms of
a review under paragraph (e), or who is not
released in terms of a review under this
paragraph, may apply to a court for a
further review of the detention at any time
after ten days have passed since the
previous review, and the court must release
the detainee unless it is still necessary to
continue the detention to restore peace and
order.
(g) The detainee must be allowed to appear
in person before any court considering the
detention, to be represented by a legal
practitioner at those hearings, and to make
representations against continued detention.
(h) The state must present written reasons to
the court to justify the continued detention of
the detainee, and must give a copy of those
reasons to the detainee at least two days
before the court reviews the detention.
(9) If a court releases a detainee, that person may
not be detained again on the same grounds unless
the state first shows a court good cause for re-
detaining that person.
(10) Subsections (8) and (9) do not apply to persons
who are not Sierra Leonean citizens or residents
and who are detained in consequence of an
international armed conflict. Instead, the state must
comply with the standards binding on the
Government under international humanitarian law
in respect of the detention of such persons.
See 2008 Constitution Report, ¶¶64-74 and pp. 129-130; ICCPR, art. 4(2) (protecting certain
specified rights as non-derogable); Tanz. Const., 1977 art. 32(3); S. Afr. Const., 1996 §37;
Kenya Const., 2010 art. 58(5)-(7).
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An expert proposed the specific language changes below, for the reasons indicated:
1. 29(2)(c,d), reverse the order of these
subparagraphs so that the threat to public order
comes as the first condition;
2. 29(3)(b), replace “two-thirds” with “three-
quarters,” so that broader parliamentary support is
required before a President is afforded the powers
created under this Section.
3. 29(5), delete “or expedient,” because this section
would otherwise allow the invocation emergency
powers out of mere usefulness, rather than only in
instances when such powers are actually necessary.
4. 29(6) (a-d), delete a-d, and the language
recommended in the 2008 Constitution Report
(below, italics), with the suggested changes
(underlined):
Where a state of emergency exists, the President
will not derogate from the recognized international
requirements pertaining, but not limited to, to
certain human rights which have been identified in
Article 4 (2) of the United Nations International
Covenant on Civil and Political Rights as non-
derogate under any circumstances, such as the right
to life, the prohibition of torture, the principles of
legality in the field of criminal law, and the freedom
of thought, conscience and religion.
5. 29(13), replace “twelve months” with “three
months, renewable by Parliament for up to twelve
months,” so that emergency powers are more
temporally limited.
Another expert emphasized the importance of ensuring that any mandatory public of statements
of “public emergencies” or other government notices should be published through electronic
media in addition to the traditional print platforms. He commented that all government
information and communications intended for public access should be made accessible, to the
greatest extent feasible, through electronic new media in addition to traditional systems.
19. Interpretation of Chapter III (Section 30)
One expert commented on this Section, suggesting that it should be moved to the end of the
entire Constitution, and its definitions applied throughout the instrument.
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20. New Section Recommended: Right to Dignity
Relying on provisions of the constitutions of other African countries, as well as international
charter and the Universal Declaration of Human Rights, an expert recommended adding an
explicit Right to Dignity in the Constitution:
Every person has inherent dignity and the right to
have that dignity respected and protected.
See Banjul Charter, art. 5; Universal Declaration of Human Rights, art. 1; Kenya Const., 2010
art. 28; Tanz. Const., 1977 art. 12(2); S. Afr. Const., 1996 §10.
21. New Section Recommended: Equality in Marriage
An expert recommended this new section, based on rights articulated in certain other African
nations’ constitutions, and assured as well in CEDAW:
(1) A child’s best interests are of paramount
importance in every matter concerning the child.
(2) Every child has the right––
(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health care;
(d) to be protected from abuse, neglect, harmful
cultural practices, all forms of violence, and
inhuman treatment and punishment;
(e) to parental care and protection, which includes
equal responsibility of the mother and father to
provide for the child, whether they are married to
each other or not; and
(f) not to be detained, except as a measure of last
resort, and when detained, to be held –
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take
account of the child’s sex and age.
(h) to have a legal practitioner assigned to the child
by the state, and at state
expense, in civil proceedings affecting the child, if
substantial injustice would
otherwise result; and
(i) not to be used directly in armed conflict, and to
be protected in times of armed conflict.
(3) In this section “child” means a person under the
age of 18 years.
(4) Children are entitled to be protected from social
or economic exploitation and shall not be employed
in or required to perform work that is likely to be
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hazardous or to interfere with their education or to
be harmful to their health or physical, mental,
spiritual, moral or social development.
(5) For the purposes of clause (4) of this article,
children shall be persons under the age of sixteen
years.
See CEDAW, art. 16; ICCPR, art. 23; TRC Report, ¶¶ 369, 394; Rwanda Const., 2003 art 26;
Uganda Const., 1995 art. 31(1); S. Afr. Const., 1996 §15 (3)(a)-(b); Kenya Const., 2010 art. 45.
22. New Section Recommended: Children’s Rights
A recommendation was made to adopt a provision that would explicitly protect the rights of
children. A similar provision is contained in certain African nations’ constitutions, and is
generally endorsed in international law (citations below):
1) A child’s best interests are of paramount
importance in every matter concerning the child.
(2) Every child has the right––
(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health
care;
(d) to be protected from abuse, neglect,
harmful cultural practices, all forms of
violence, and inhuman treatment and
punishment;
(e) to parental care and protection, which
includes equal responsibility of the mother
and father to provide for the child, whether
they are married to each other or not; and
(f) not to be detained, except as a measure of
last resort, and when detained, to be held –
(i) for the shortest appropriate period of
time; and
(ii) separate from adults and in conditions
that take account of the child’s sex and age.
(h) to have a legal practitioner assigned to
the child by the state, and at state
expense, in civil proceedings affecting the
child, if substantial injustice would
otherwise result; and
(i) not to be used directly in armed conflict,
and to be protected in times of armed
conflict.
(3) In this section “child” means a person under the
age of 18 years.
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(4) Children are entitled to be protected from social
or economic exploitation and shall not be employed
in or required to perform work that is likely to be
hazardous or to interfere with their education or to
be harmful to their health or physical, mental,
spiritual, moral or social development.
(5) For the purposes of clause (4) of this article,
children shall be persons under the age of sixteen
years.
See generally, CRC, passim; African Children’s Charter, art. 1(1); Banjul Charter, art. 18(3);
Kenya Const., 2010 art. 53; S. Afr. Const., 1996 §28; Uganda Const., 1995 art. 34; Uganda
Const., 1995 art. 34(4)-(5).
23. New Section Recommended: Rights of Persons with Disabilities
Citing Kenya’s Constitution (2010), art. 54, an expert recommended adopting the following
provision to protect the rights of persons with disabilities:
A person with any disability is entitled––
(1) to be treated with dignity and respect and to be
addressed and referred to in a manner that is not
demeaning;
(2) to access educational institutions and facilities
for persons with disabilities that are integrated into
society to the extent compatible with the interests of
the person;
(3) to reasonable access to all places, public
transport and information;
(4) to use Sign language, Braille or other
appropriate means of communication; and
(5) to access materials and devices to overcome
constraints arising from the person’s disability.
24. New Section Recommended: Protection of Socio-Economic Rights
Noting that the ICESCR, of which Sierra Leone is a signatory, protects socio-economic rights,
and that provisions of certain African nations’ constitutions contain this protection (citations
below), an expert recommend adoption of the following language in a new provision to this
Chapter of the Sierra Leone Constitution:
1) Every person has the right—
(a) to the highest attainable standard of
health, which includes the right to health
care services, including reproductive health
care;
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(b) to accessible and adequate housing, and
to reasonable standards of sanitation;
(c) to be free from hunger, and to have
adequate food of acceptable quality;
(d) to clean and safe water in adequate
quantities;
(e) to social security; and
(f) to education.
(2) A person shall not be denied emergency
medical treatment.
(3) The State shall provide appropriate social
security to persons who are unable to support
themselves and their dependents.
See Kenya Const., 2010 art. 43; S. Afr. Const., 1996 §§26, 27, and 29.
D. CHAPTER IV – THE REPRESENTATION OF THE PEOPLE
1. Registration of Voters (Section 31)
There were no comments regarding this Section.
2. Electoral Commission (Section 32)
An expert recommended moving Section 33 (Functions of the Electoral Commission),
immediately after Subsection 32(1), which establishes the commission, commenting that
defining the functions of the Commission should precede the composition of the Commission.
He added that an oath of office should be required of Commission members, just as it is currently
required of members of the Judicial Commission, under Constitution Section 104(5). This expert
further recommended adding to Subsection 32(7), the following language, in a new subsection
(d):
Has lost his civic rights by conviction in a criminal
trial, or serious ethical breaches after due process.
The commissioners must take the oath of office and
declare their asserts before after their mandates.
Another expert suggested the following additions and deletions to the subsections indicated
below:
1. 32(3), replace “President” with “Parliamentary
Service Committee.” Substituting legislative
oversight would ensure greater independence of the
Electoral Commission.
2. 32(4)(b), delete “or if….” This change would
eliminate age restriction, as recommended in the
2008 Constitution Report.
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3. 32(7)(b), delete entire. This change would
eliminate age restriction, as recommended in the
2008 Constitution Report.
4. 32(8), delete “or for misbehavior,” because this
language is too broad, non-descript.
5. 32(12), insert “and Parliament” after “President”
and before “and a copy,” for the same reasons as
above, regarding 32(3).
3. Functions of the Electoral Commission (Section 33)
See comment in previous section, where expert recommended moving Section 33, and placing it
just after Subsection 32(1).
4. Political Parties Registration Commission (Section 34)
One expert commenting on this Section suggested merging the current Subsection 34(4) with
34(1), so that the membership of the Commission and responsibilities of the members are
delineated together. This expert further proposed that an oath of office should be required, to
promote the integrity, authority and independence of the members. He also recommended
parliamentary vetting of Commission members.
Somewhat similarly to the above expert’s recommendation, another expert proposed that
references to the “President” be replaced with “Parliamentary Service Commission,” so that the
Commission is assured greater independence through being overseen by the legislature, rather
than the president. He suggested deleting 34(2), such that the President would have not official
role in structuring the Commission.
It was also recommended that a new subsection be added, 34(1)(e), to bring this Section in line
with the 2008 Constitution Report’s general policy to increase the participation of women in the
government:
and a member nominated by women’s civil society
organizations.
Further noting the 2008 Constitution proposal, it was suggested that the provision in Subsection
34(4) be deleted.
5. Registration and Conduct of Political Parties (Section 35)
To prevent conflicts of interest and to depoliticize security forces, national defence and the
public service, it was recommended that the following language, disqualifying certain persons
from leading a political party, be added to Subsection 35(4):
has lost his civic rights or is a serving member of
the defence forces, security forces and a civil
servant.
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6. Secret Ballot (Section 36)
An expert recommended that the definition of “secret ballot” should specify it includes all
private and secure electronic voting systems. He commented that there is a strong likelihood in
the future that electronic voting systems will be employed and appropriate for some elections;
accordingly, rules governing electoral processes and systems should be crafted to permit future
use of electronic voting platforms, where they are found appropriate.
7. Referendum (Section 37)
One expert comment was received for this Section. It suggested that section 37 include an
introductory statement (before Subsection 37(1)) asserting the right of Sierra Leoneans to
conduct referenda, and the circumstances under which such referenda may arise. The expert
recommended this addition to add clarity and consistency to this chapter of the Constitution.
8. Constituencies and Elections (Section 38)
An expert recommended that the Constitution specify here the circumstances and the procedure
for dissolution of parliament, loss of parliamentary seats and procedure for filing vacant seats,
etc…He commented that such issues are critical matters pertaining to the exercise of popular
sovereignty that should be addressed in a constitution.
9. Filling of Vacancies (Section 39)
As to Section 39(1), one expert recommended changing the earliest time for replacement of a
vacant seat in Parliament from six months to two months. He commented that six months is too
long to wait to replace a vacant seat.
E. CHAPTER V – THE EXECUTIVE
PART I – THE PRESIDENT
The experts provided several comments and recommendations regarding the specific
sections within Part I, regarding the Office of the President.
1. The Office of the President (Section 40)
One expert offered a recommendation for changes to this Section, relying on the 2008
Constitution Report proposals on this Section, which give more power to the legislature. He
suggested the following language changes:
1. In Subsection 40(4)(the Proviso), delete, “within
the legislative competence of Parliament”.
2. In Subsection 40(4)(iii), add: “or by referendum
where the Agreement alters or seeks to alter an
entrenched provision of the Constitution.”
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2. Qualifications for Office of President (Section 41)
An expert recommended deleting 41(b)’s requirement that a person running for president be
affiliated with a party. He commented that elimination of this requirement would open up the
office to other persons, who are not necessarily affiliated with an official party.
3. Election of President (Section 42)
Similarly to the recommendation for the immediately preceding Section, an expert recommended
deleting 42(1), so that the office of president is opened to persons not affiliated with a party.
4. Period During Which Presidential Elections Shall Take Place
(Section 43)
There were no comments offered for this Section.
5. Parliament to Make Laws for Election of President (Section 44)
An expert recommended adding an additional paragraph to this Section, specifying the grounds
on which the mandate of a president can be terminated, such as resignation, incapacity due to ill
health clinically ascertained, expiration of mandate, death or impeachment. He recommended
this addition to preclude legitimacy for terminations taking place by any means not spelled out in
this Constitution, such as military coups.
6. Presidential Returning Officer (Section 45)
There were no comments offered for this Section.
7. Tenure of Office of President, etc… (Section 46)
An expert recommended that the President take an oath upon entering the Office of President,
and upon leaving it. The expert commented that the taking of such a formal oath and make
assertions of compliance with the provisions of Subsection 46(3) (which bars a President from
holding other offices or remunerated position, and prohibits the President from taking any
unapproved emoluments in the service of Sierra Leone).
8. President in Parliament (Section 47)
There were no comments offered for this Section.
9. Incidents of Office, etc… (Section 48)
There were no comments offered for this Section.
10. Vacancy in Office of President (Section 49)
There were no comments offered for this Section.
11. Mental or Physical Incapacity (Section 50)
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There were no comments offered for this Section.
12. Misconduct by President (Section 51)
As to Subsection 51(1), an expert suggested the following additional language, to assure the
President due process of law:
The President shall be notified of the motion
alleging misconduct and shall be provided an
opportunity to be heard in person or by counsel.
Another expert recommended deleting the phrase in Subsection 51(2) “it shall meet in secret
session and shall not debate the motion, but.” He noted that the Constitution should not mandate
secrecy; he further pointed out that Subsection 51(5) allows the use of secrecy in certain
circumstances.
13. Temporary Filling of Vacancy (Section 52)
There were not comments offered for this Section.
PART II – THE EXECUTIVE
14. Exercise of Executive Authority in Sierra Leone (Section 53)
There were no comments offered for this Section.
15. Vice President (Section 54)
There were no comments offered for this Section.
16. Vacancy in the Office of Vice President (Section 55)
There were no comments offered for this Section.
17. Ministers and Deputy Ministers of Government (Section 56)
An expert recommended changing in Subsection 56(1) to read “nominated to be,” rather than
“appointed.” He noted that this change would make the language consistent with the proposed
language for Subsection 56(2), contained in the 2008 Constitution Report.
This same expert also suggested deleting 56(2)(b) entirely; he commented that this prohibition
on officials being appointed to an Executive office when they have lost an election in the
immediately preceding election cycle is an unnecessary restriction on nominees.
Another expert proposed an additional new Subsection that would come before the existing ones,
and would state as follows:
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(1) Parliament shall have the power to confirm the
appointment of all ministers and major public
officials or deny confirmation to potential
appointee as required by parliamentary
legislation.
This expert commented that the addition of the above language would allow for a balance of
power, offering a check on the personnel the President appoints through a confirmation process
and public hearings.
18. Oaths to be Taken by Ministers, etc… (Section 57)
There were no comments offered for this Section.
19. Ministerial Vacancies (Section 58)
There were no comments offered for this Section.
20. Establishment of Cabinet (Section 59)
An expert recommended, regarding Subsection 59(3), that the word “Government” be replaced
with “Executive,” and commented that the Cabinet does not determine policies for the entire
Government.
21. Collective Responsibility (Section 60)
There were no comments offered for this Section.
22. Constitution of Offices (Section 61)
There were no comments offered for this Section.
23. Administration of Ministries (Section 62)
There were no comments offered for this Section.
24. Prerogative of Mercy (Section 63)
There were no comments offered for this Section.
25. Establishment of the Office of Attorney-General and Minister of
Justice (Section 64)
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Two experts recommended adopting the proposal in the 2008 Constitution Report, which
promotes transparency, and the independence of the Judiciary from the Executive. The Report’s
proposed language is as follows:17
(1) delete the words “Attorney-General & Minister
of Justice” and replace with the word “Attorney-
General,”
(2) the Office of Attorney-General shall be a public
office which shall be filled in the same way as that
of the Solicitor-General, i.e. he shall be appointed
by the President on the advice of the Judicial and
Legal Service Commission, with approval of
Parliament, and he shall, before assuming the
functions of his Office, take and subscribe the oath
as set out in the Third Schedule of the Constitution,
(3) the holder of the Office of the Attorney-General
must be a Sierra Leonean, and
(4) if a President so desires, he can appoint a
Minister of Justice, whose portfolio shall
include the courts, the Prisons and the Probation
service for administrative and political
purposes.
Another expert recommended deleting Subsection 64(3). Generally, he commented that, as a
Member of the Cabinet appointed by the President, and the Principal Legal Adviser to the
Government, the Attorney General is associated with the Executive. The expert suggested that
this posture favors separating the Attorney General from prosecutorial decision-making, in the
interest of promoting transparency and to promote confidence in the impartiality of prosecutorial
decision-making. Based on his experience, this expert underscored the importance of
prosecutorial authority being independent of the Executive with demonstrable impartiality
through the structure of the prosecutorial decision-making process. He noted that although under
the language of Subsection 66(8) the Attorney General is not subject to the direction or control of
anyone else, this mere assertion is mitigated by the fact that the Attorney General is a member of
the Cabinet and exercises ministerial responsibilities. The expert suggested that if there are some
prosecutorial matters over which the Attorney General may need to have some oversight (e.g.,
matters with international or serious national ramifications), that any such situations may be
specifically provided for, and addressed, in the Constitution.18
17
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, pp. 39-40 (2008).
18
This expert noted that, in a separate memorandum submitted with his comments, he provided
examples of the approach he proposes, adopted in other jurisdictions. This memorandum is
available in the Appendix.
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26. Solicitor General (Section 65)
One comment was provided for this Section, suggesting that in Subsection 65(2), the phrase “and
subject to the approval of Parliament” be inserted between “Commission” and “and.” It was
suggested this change promotes the transparency and independence of the Judiciary from the
Executive which is recommended in the 2008 Constitution Report.
27. Director of Public Prosecutions (Section 66)
An expert proposed deleting Subsections 66(6) through (8) entirely, then adding new
Subsections (6) and (7), containing the following suggested language:
(6) The powers conferred upon the Director of
Public Prosecutions by paragraphs (b) and (c) of
subsection (4) shall be vested in him to the
exclusion of any other person or authority:
provided that where any other person or authority
has instituted criminal proceedings, nothing in this
subsection shall prevent the withdrawal of those
proceedings by, or at the instance of, that person or
authority and with the leave of the court.
(7) In the exercise of the powers conferred upon
him by this section the Director of Public
Prosecutions shall not be subject to the direction or
control of any person or authority”. The remaining
sub-sections of that section shall then be
renumbered accordingly.
This expert further proposed that in Subsection 66(4), the words “Subject to subsection (3) of
section 64” are deleted, leaving this Subsection to commence with the existing words: “(4) The
Director of Public Prosecutions shall have power in every case, etc…”
Another expert recommended replacing throughout this Section the use of term “Attorney-
General and Minister of Justice” with “Attorney-General,” to make this Section consistent with
the recommendation of the 2008 Constitution Report which seeks to promoted transparency and
independence of the Judiciary and of prosecutorial functions.
28. Secretary to the President (Section 67)
An expert recommended replacing, in Subsection 67(2)(a) the term “Executive” with “Public
Service.” He commented that the Secretary to the Cabinet, as Head of Civil Service according to
Subsection 68(1), should advise President on Public Service matters.
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29. Secretary to the Cabinet (Section 68)
As to Subsection 68(3), an expert recommended adopting the proposal in the 2008 Constitution
Report, which suggested the following new language:19
The functions of the Secretary to the Cabinet shall
include:
(a) acting as the Principal Adviser to the
President on Public Service matters;
(b) having charge of the Cabinet
Secretariat;
(c) responsibility for arranging the business
for, and keeping the minutes of, the Cabinet,
and for conveying the decisions of the
Cabinet to the appropriate person or
authority, in accordance with such
instructions as may be given to him by the
President;
(d) coordinating and supervising the work of
all administrative head of ministries and
departments in the Public Service;
(e) such other functions as the President
may from time to time determine.
30. Secretary to the Vice President (Section 69)
There were no comments offered for this Section.
31. Power of Appointment Vested in the President (Section 70)
An expert suggested the following language changes to Section 70:
1. Add insert “subject to the approval of
Parliament” between “appoint” and “in.” This
change would ensure legislative input in the
appointment process for members of the judiciary.
2. Add to Subsection 70(b), “(for life tenure)” after
“the Supreme Court” and “(for a 20 year renewable
term)” after “Court of Appeal” and “(for a ten year
renewable term)” after “High Court.” He noted that
this would provide term limits to judicial
appointments, which now appear to be lifetime
appointments at all court levels.
19
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, pp. 41 (2008).
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32. Other Statutory Appointments (Section 71)
There were no comments offered for this Section.
33. Office of Paramount Chief (Section 72)
An expert recommended deleting Subsections 72(4) and (5), as suggested in the 2008
Constitution Report, and adding the proposed language from that Report, which follows here:
(a) Election of Paramount Chiefs
The Chiefdom Councilors [sic] shall, whenever the
office becomes vacant by death or otherwise elect a
Paramount Chief, having regard to native law and
customs to be in charge of the chiefdom. The
Ministry of Local Government or the supervising
Ministry shall be responsible for the conduct and
supervision of the elections of all Paramount
Chiefs.
Qualifications
All Aspirants who are direct descendants of
recognized and established Paramount
Chieftaincy Ruling Houses in existence at the time
of Independence in 1961.
Disqualifications
No person shall be qualified for election as a
Paramount Chief if:
(a) He is or was a ward of a Paramount Chief
(b) If he is a Regent Chief
(c) He has been convicted and sentenced for an
offence which involves fraud, dishonesty, or rape
unless has been granted the presidential pardon or
five years after he serves the sentence.
Duties
a) Every Paramount Chief shall supervise the
collection of local and other taxes within the area
over which he or she has jurisdiction.
b) Every Paramount Chief shall maintain order and
good government in the area over which he or she
exercises jurisdiction.
c) Every Paramount Chief shall use his best ability
to prevent the Commission of offences within the
area over which he or she exercises jurisdiction.
d) Every Paramount Chiefs is the guardian of the
tradition and culture of his chiefdom.
Powers of Paramount Chiefs
Every Paramount Chief in Council may make by-
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laws as may be deemed expedient for promoting the
peace, good order and welfare of the people within
his chiefdom.
Removal/Deposition of Paramount Chiefs
A Paramount Chief may be removed from office by
the President for any gross misconduct in the
performance of the functions of his office if after a
public inquiry conducted under the Chairmanship
of a Judge of the High Court or a justice of the
Appeal Court or a Justice of the Supreme Court, the
Commission of inquiry makes an a adverse finding
against the Paramount Chief, and the President is
of the opinion that it is in the public interest that the
Paramount Chief should be removed.
The report of the Commission of Enquiry shall, for
the purposes of this Constitution, be deemed to be a
judgment of the High Court of Justice and
accordingly an appeal shall lie as of right from the
Commission to the Court of Appeal, and if
thereafter the President is of the opinion that it is in
the public interest that the Paramount Chief should
be removed, it should be done accordingly.
Another expert recommended adopting a new Subsection 72(4), and renumbering 72(4) and (5)
sequentially thereafter. He suggested the new subsection, so that the grounds for replacing can
be clarified and streamlined to minimize the abuse of power:
(4) The Paramount Chief, at the time of her or his
inauguration, shall take the following oath: “I do
solemnly swear before the people that I will
faithfully execute the duties of the Paramount Chief
as established under the laws of Sierra Leone,
follow and defend the Constitution, pursue the
peaceful unification of the homeland, promote the
freedom and welfare of the people and endeavor to
develop and preserve the culture of our people.
Parliament should hold the power of impeachment,
not the presidency. In this case, any person against
whom a motion for impeachment has been passed
shall be suspended from exercising her or his power
until the impeachment has been adjudicated.
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F. CHAPTER VI – THE LEGISLATURE
PART I – COMPOSITION OF PARLIAMENT
1. Establishment of Parliament (Section 73)
One expert commented on this section, suggesting that to make Parliament more autonomous,
the proposed new language for Subsection 73(1) contained in the 2008 Constitution Report
should be adopted. That proposed language is as follows:
There shall be a Parliament consisting of:
The Senate, The House of Representatives (whose
members shall be referred to as Members of
Parliament), and The Speaker.
2. Members of Parliament (Section 74)
So that the Parliament can ascertain the integrity of its members and compliance with the
provisions of this Constitution, an expert recommended the addition of a Subsection 74(1)(c). IN
this Subsection, a Commission set up to validate parliamentary mandates would be established,
and would conduct this validation process before any members can take an oath of office.
Another expert recommended deletion of 74(1)(a) and (b), and adoption of the terms in the 2008
Constitution Report:
Members of the House of Representatives shall
consist entirely of members
elected by popular ballot.
3. Qualifications for Members of Parliament (Section 75)
Two experts recommended changing the age for holding a seat in Parliament, in Subsection
75(1)(b), from 21 to 18, so as to comply with international law, and to be consistent with the
change for the age for eligibility to conscript in the Sierra Leone armed forces, which is now also
18.
Two experts suggested that the phrase “otherwise than by naturalization,” be deleted as an
unnecessary discrimination against naturalized citizens, and the basis for such discrimination
appears unfounded. An expert also proposed to deleted 75(1)(c) and the proviso in 75(1), which
place conditions and restrict the pool of persons who could run for Parliament.
4. Disqualifications for Members of Parliament (Section 76)
An expert suggested changing the word “adjudged” in Subsection 76(1)(c), to “clinically
certified,” commenting that since lunacy is a medical condition, the assessment for that condition
should be conducted by a medical doctor.
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Two experts proposed deleting Subsection 76(1)(a) as an unjustified discrimination on the ability
of naturalized citizens to serve in Parliament. One of these experts further recommended
deleting 76(1)(d), (e), (f), (g), and (h). He also suggested shortening the period during which a
person who has served on any commission created under the Constitution cannot run for
Parliament, from 12 months following departure from such a commission, to six months. This
change would allow someone to run for Parliament sooner than permitted under the current
Constitution.
5. Tenure of Seats of Members of Parliament (Section 77)
Two experts recommended deleting from Subsection 77(i). One of these experts opined that
financial woes should not serve as a bar to holding a seat in Parliament, and the other noted that
such a restriction on a Member of Parliament would compromise their independence.
An expert also proposed to delete Subsections 77(k), (l) and (m), commenting that matters of
party affiliation should not be used to determine whether a member continues to hold his seat.
Similarly to the preceding Section 76, an expert recommended changing the word “adjudged” to
“clinically certified,” in Subsection 77(2), with respect to determining the mental state of a
Member of Parliament, so that the assessment of such a medical condition is made by a medical
doctor. Also as to 77(2), this expert further proposes to delete the phrase, “sentenced to death or
imprisonment” and to replace it with “convicted of a capital offence.” He noted that this
amendment would make Section 77 consistent with Sierra Leone’s commitment under Article 6
of the ICCPR, which protects the right to life and bars deprivation of life without due process of
law.
6. Determination of Question as to Membership of Parliament (Section
78)
To clarify the grounds for appealing to determine the question of membership in Parliament, as
set out Subsection 78(2), an expert recommended inserting in Subsection 78(1)(a) the words “or
disqualified,” between, “elected” and “as.” This additional language therefore would provide an
appeal to review of the legitimacy membership in the Parliament, as currently allowed, as well as
the review of the basis for disqualification from such membership.
7. The Speaker (Section 79)
An expert suggested deleting from Subsection 79(1) the phrase “and who are qualified…” This
deletion would eliminate unnecessary language, while making no substantive change to the
requirements contained in this Subsection. He further recommended inserting in Subsection
79(2) and (4)(d) the word “all,” between “Two-thirds” and “the Members.” This change would
clarify the majority votes needed to elect the Speaker.
Another expert recommended adding to Subsection 79(3) a subsection providing that no one can
hold the post of Speaker if she or he is clinically certified to be of unsound mind. This expert
also recommended adding to Subsection 79(6) a requirement that a person taking the oath as
Speaker assert his qualifications and compliance with any applicable regulations for the position.
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8. Deputy Speaker (Section 80)
There were no comments offered for this Section.
9. Election of Speaker and Deputy Speaker (Section 81)
There were no comments offered for this Section.
10. Clerk of Parliament (Section 82)
There were no comments offered for this Section.
11. Oath to be Taken by Members of Parliament (Section 83)
To guard against corruption, to encourage transparency, and to help assure the integrity of the
Members of Parliament, and expert recommended adding to that Members should assert his or
her qualifications and attest he or she will comply with any applicable regulations to taking that
office.
Part II – SUMMONING, PROROGATION AND DISSOLUTION
12. Sessions of Parliament (Section 84)
An expert recommended deleting from Section 84(1) the phrase “President may by Proclamation
appoint,” and replacing it with “President may request and Parliament by a 2/3 majority
approve…” The expert noted that as currently written, Section 84 gives the President too great a
power to interfere with Parliament by controlling when sessions of Parliament may commence.
He opined that adding a requirement for the approval of two-thirds of the Members of Parliament
would assure Parliament’s role in commencing sessions of its own body.
13. Life of Parliament (Section 85)
There were no comments offered for this Section.
14. Sittings of Parliament (Section 86)
To define the circumstances under which the President may convene the Parliament, and limit
the arbitrary use of the power to convene Parliament, an expert proposed the following new
language for Subsection 86(1):
The President may at any time request the meeting
of Parliament to address any matter of national
significance.
15. General Election (Section 87)
There were no comments offered for this Section.
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PART III – PROCEDURE IN PARLIAMENT
16. Presiding in Parliament (Section 88)
There were no comments offered for this Section.
17. Quorum in Parliament (Section 89)
There were no comments offered for this Section.
18. Use of English in Parliament (Section 90)
There were no comments offered for this Section.
19. Voting in Parliament (Section 91)
There were no comments offered for this Section.
20. Unqualified Persons Sitting and Voting (Section 92)
An expert recommended adding a requirement for a process validating the mandate of Members
of Parliament (see comments in Section 74 in this regard). He also suggested that the fine
specified here for any Member who violates the rules by voting when not permitted to do so,
underscoring that this kind of breach of the responsibilities of members of Parliament should be
punished with a greater fine.
21. Committees in Parliament (Section 93)
An expert recommended adding here the creation of a Committee or Commission to validate
parliamentary mandates (see reference to such Commission in comments regarding Section 74).
22. Regulation of Procedures in Parliament (Section 94)
There were no comments offered for this Section.
23. Contempt of Parliament (Section 95)
There were no comments offered for this Section.
24. Criminal Proceedings (Section 96)
One expert commented on this Section, noting that Parliament should be made to elect whether
to institute contempt proceedings, or forward for criminal prosecution in the courts. He noted
that to avoid infringing on Article 14 of the ICCPR, which prohibits double jeopardy, contempt
proceedings and criminal prosecution should not both be available for the same offense.
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PART IV – RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES
25. Responsibilities of Members of Parliament (Section 97)
One expert noted that a requirement should be added requiring Members to declare their duty to
comply with regulations and avoid conflicts of interest. He commented that since Parliament
exercises oversight over government services, Members should not be able to derive benefits
from the very services they oversee in their service to the Government. Therefore, a declaration
of compliance with regulations would help guard against corruption and conflicts of interests.
26. Freedom of Speech and Debate (Section 98)
There were no comments offered for this Section.
27. Parliamentary Privileges (Section 99)
An expert recommended deleting Subsections 99(2), (3), (4), and (5) because they refer to
defamation claims against Members of Parliament, when the Parliamentary Privilege is designed
to ensure immunity against defamation claims.
28. Immunity from Service of Process and Arrest (Section 100)
An expert recommended adopting the proposal for this Section in the 2008 Constitution Report,
which suggested the amendments below (in italics) to the existing language:20
No civil or criminal process issuing from any court
or place out of Parliament shall be
served on or executed in relation to the Speaker or a
Member or the Clerk of Parliament
or Minister of Government or Deputy Minister
while he is at work or on his way to attending or
returning from any proceedings of Parliament or
Ministerial Office.
29. Immunity from Witness Summons (Section 101)
There were no comments offered for this Section.
30. Immunity from Serving as Juryman (Section 102)
There were no comments offered for this Section.
20
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, p. 51 (2008).
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31. Immunity from Publication of Proceedings (Section 103)
It was suggested that the phrase at the end of this Section, “or otherwise in want of good faith”
be deleted. This expert commented that perhaps an exception to the immunity created in Section
103 could be accepted upon a showing of “malice,” but that the above phrase extends too broad
an exception to this immunity. The expert cited to the case of Reynolds v. Times Newspaper
(1999), from the British House of Lords, as an example for the use of the “malice” exception.
32. Privileges of Witnesses (Section 104)
An expert commented that witnesses should elect whether to testify under oath, so as to promote
integrity of testimony given before the Parliament.
PART V – EXERCISE OF LEGISLATIVE POWER
33. Power to Make Laws (Section 105)
There were no comments offered for this Section.
34. Mode of Exercising Legislative Power (Section 106)
To make the Constitution consistent with Articles 9(1), 15(1) of the ICCPRs, which prohibit
retroactive application of laws, an expert recommended deletion of the part of Subsection 106(5)
that allows Parliament to make retroactive laws.
This same expert also recommended changing the first phrase in Subsection 106(8), so that it
begins as follows:
Where a bill is returned to Parliament or deemed
returned at the expiration of the period stated in
subsection 7. . .
He further noted that the delegation of authority in Subsection 106(9), which would allow
Parliament to delegate to other entities or individuals the power “to make statutory instruments,”
should be delineated and clearly defined.
As to Subsection 106(4), an expert suggested replacing the word “President” with “the Clerk of
Parliament.” This change better reflects the practical operation of Parliament. He also
recommended deleting all words in Subsection 106(5) after “but Parliament may….” This
deletion would avoid giving Parliament the power to delay implementation of laws properly
passed and publicly noticed. Also, to make clear in Subsection 106(8) the number of votes
required to overcome a Presidential veto of legislation, it was recommended to insert “all”
between “two-thirds” and “the Members.”
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35. Minister May Introduce Bill and Be Summoned to Parliament
(Section 107)
There were no comments offered for this Section.
36. Alteration of Constitution (Section 108)
One expert commented that some constitutional provisions are more important than others in
preserving constitutional freedoms and rule of law principles and thus, such provisions may
warrant requiring a greater majority of Members voting to amend them, such as three-quarters of
all the Members of Parliament, rather than two-thirds. He therefore recommended amending this
Section to provide for different procedural requirements before amending specified sections of
the Constitution. Such an amendment could be accomplished, he suggests, by deleting the
current Subsection (3) and replacing it with (3) and (4) that would set out the different
requirements for amendment specified aspects of the Constitution currently listed under
Subsection (3). This expert further recommended that Subsection 108(5) be amended, so that in
addition to supervision of any referendum by an Electoral Commission, as currently provided, a
referendum should also be clearly presented to the public by ensuring that there is sufficient time
for the public’s review of it.
To make clear in Subsection 108(2) the number of votes from Members required to approve a
referendum, one expert recommended inserting “all” between “two-thirds” and “the Members.”
37. Residual Authority of Parliament (Section 109)
There were no comments offered for this Section.
PART VI - FINANCE
38. Authorisation for Imposition of Taxation (Section 110)
There were no comments offered for this Section.
39. Consolidated Fund (Section 111)
There were no comments offered for this Section.
40. Authorisation of Expenditure from Consolidated Fund (Section 112)
There were no comments offered for this Section.
41. Authorisation of Expenditure in Advance of Appropriation (Section
113)
There were no comments offered for this Section.
42. Withdrawals of Monies for General Revenues (Section 114)
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There were no comments offered for this Section.
43. Remuneration of President and Certain Other Officers (Section 115)
To guard against corruption help promote the integrity of government officers, an expert
recommended adding the requirement of a declaration, to be given prior to and after assuming
office, in which the officers would assert their qualifications and attest they will comply with any
applicable regulations.
44. Contingencies Fund (Section 116)
There were no comments offered for this Section.
45. Public Debt (Section 117)
There were no comments offered for this Section.
46. Loans (Section 118)
There were no comments offered for this Section.
47. Establishment of the Office of Auditor-General (Section 119)
An expert recommended adding two new Subsections, 119(a) and (b), with the following
proposed language:
119(a) The Independent Constitutional Offices shall
seek to support democracy and the Rule of Law. All
institutions of the state must facilitate their work.
These offices shall enjoy political, administrative
and financial independence and autonomy. They
shall be endowed, by law, with legal personality.
They shall submit an annual report to the
Parliament, with each report being discussed in a
special Plenary Session. Further, matters shall be
regulated by law, in the case of each Independent
Constitutional Office.
The Independent Constitutional Offices comprise:
the Electoral Commission; the Political Parties
Registration Commission; Auditor-General of
Sierra Leone; Director of Public Prosecutions;
Judicial and Legal Service Commission;
Ombudsman; (any) Commissions of Inquiry; Police
Council; Defence Council … [Add additional
bodies, if new Offices are created]
119(b)
1. The provisions of this section apply to the
members of the Independent Constitutional
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Offices who have been directly appointed as
member.
2. A member may be removed from office
only by way of the procedures specified in
Section 137 of this Constitution.
3. (i) The term of office of a members shall
be seven years; (ii) A member may be re-
appointed once.
Another expert suggested word changes to Subsections 119(1) and 119(14), replacing “Public
Service Commission” with “the Civil Service Commission and the Audit Service Commission.”
Finally, one expert recommended adding the requirement of a declaration, to be given prior to
and after assuming office, swearing compliance with any applicable regulations, so as to promote
integrity and transparency of the office undertaken.
G. CHAPTER VII – THE JUDICIARY
PART I – THE SUPERIOR COURT OF JUDICATURE
1. Establishment of the Judiciary (Section 120)
As to Subsection 120(1), an expert recommended adoption of the 2008 Constitution Report’s
proposal to add here the elements of administration and supervision of the Judiciary, so as to
promote the independent operation of the Judiciary. The Report’s proposal is as follows (in
italics):21
The Judicial power of Sierra Leone shall be vested
in the Judiciary of which the Chief Justice shall be
the Head and shall be responsible for the
administration and supervision thereof.
As to Subsection 120(3), an expert opined that the phrase “or any other law…” is ambiguous,
and could suggest that the legislature can enact statutes that supersede the Constitution. To
remove this ambiguity, the expert recommended adding a clause or sentence to this subsection
stating as follows:
In the event of conflict between this Constitution
and any other law, the Constitution shall prevail.
One expert suggested adding “national security” to Subsection 120(6), which lists the grounds
for closing judicial proceedings.
The following changes to specific subsections were also recommended, for the reasons articulate
below:
1. As to Subsection 120(1), add “and shall be
responsible for the administration and supervision
21
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, p. 59 (2008).
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thereof.” This will ensure that the supervisory
functions over the courts are controlled by the
Judiciary.
2. As to Subsection 120(3), delete “or any other
law,” to make clear that the Judiciary is subject to
the Constitution, and that other laws enacted would
not control the Judiciary.
3. As to Subsection 120(6), delete “Save as may
be….order,” because all court decisions should be
public.
4. Regarding Subsection 120(14), add “Any
member of the Judicature should recuse himself
from any judicial proceeding of which he has or has
had an interest.” This addition would promote the
impartiality and independence of the Judiciary.
Another expert recommended deleting Subsections 120(5), (7), (10)-(14), (16). The expert
further suggested the following additions (italics) and deletions (strikeouts) to the existing
language of Section 120 (citations and comments supporting these amendments are footnoted):
(1) The Judicial power of Sierra Leone shall be
vested in the Judiciary of which the Chief Justice
shall be the Head and shall be responsible for the
administration and supervision thereof.
(2) The Judiciary shall have jurisdiction in all
matters civil and criminal including matters relating
to this Constitution, and such other matters in
respect of which Parliament may by or under an Act
of Parliament confer jurisdiction on the Judiciary.
(2) In the exercise of its judicial functions, the
Judiciary shall be:
(a) 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;22
(b) guided by the following principles:
(i) justice shall be done to all, irrespective of status;
(ii) justice shall not be delayed;23
(iii) justice shall be administered without undue
regard to procedural technicalities; and
22
This captures the spirit of Section 23(2) of the 1991 Constitution (“Any court or other authority prescribed by law
for the determination of the existence or extent of civil rights or obligations shall be independent and impartial”). 23
This expands upon Section 23(2) of the 1991 Constitution (“where proceedings for such determination are
instituted by or against any person or authority or the Government before such court or authority, the case shall be
given fair hearing within a reasonable time.”).
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(iv.) the purpose and principles of this Constitution
shall be protected and promoted.24
(3) (a) The Judicature shall consist of the Supreme
Court of Sierra Leone, the Court of Appeal and the
High Court of Justice which shall be the superior
courts of record of Sierra Leone and which shall
constitute one Superior Court of Judicature, and
such other inferior coordinate, subordinate, and
traditional courts as Parliament may by law
establish.25
(b) Parliament shall determine the jurisdiction and
functions of the courts contemplated in clause (a).26
(6) (5) (a) Save as may be otherwise ordered by a
Court in the interests of public morality, public
safety or public order, all proceedings of every
Court, including the announcement of the decision
of the court, shall be held in public.
(b) The Chief Justice shall promulgate Rules to give
effect to the publicity of proceedings contemplated
in subsection (a).
(6) A Judge of the Superior Court of Judicature
shall not be liable to any action or suit for any
matter or thing done by him in good faith in the
lawful performance of his judicial functions.27
(15) (7) No office of Judge of the High Court,
Justice of Appeal or Justice of the Supreme Court
shall be abolished while there is a substantive
holder thereof.
24
KENYA CONST., 2010 art. 159 (same as proposed amendment); S. AFR. CONST., 1996 §165 (“(1) The judicial
authority of the Republic is vested in the courts. (2) The courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear, favour or prejudice. (3) No person or organ of state
may interfere with the functioning of the courts. . . (6) The Chief Justice is the head of the judiciary and exercises
responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial
functions of all courts.”). 25
S. AFR. CONST., 1996 §166 (courts include: “(c) . . . any high court of appeal that may be established by an Act of
Parliament to hear appeals from any court of a status similar to the High Court of South Africa . . . and (e) any other
court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the
High Court of South Africa or the Magistrates’ Courts.”); KENYA CONST., 2010 art. 162(2) (permitting Parliament to
establish labour and environment courts). 26
KENYA CONST., 2010 art. 162(3) (same as proposed). 27
KENYA CONST., 2010 art. 160(5) (same as proposed).
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PART II – THE SUPREME COURT
2. Composition of the Supreme Court (Section 121)
As to Subsection 121(1)(b), an expert recommended against adopting the proposal in the 2008
Constitution Report, which requires between four and seven Justices on the Supreme Court. He
noted that the precise number of judges is not as relevant as is avoiding the current language in
Section 121(1)(b), which states “not less than,” providing only for a minimum number of justices
on the Court. He commented that this wording would allow a court-packing scheme, in which
simply adding more sympathetic judges to the Court could enable the appointing power to alter
an anticipated ruling of law by directly manipulating who and how many sit on the Court. He
therefore suggested adding instead the words “not more than [a given number],” so that the
maximum number of justices is set by the Constitution.
This same expert also recommended deleting Subsection 121(c), as it currently allows the Chief
Justice to pack the court. In order to make sure that whatever upper limit on the number of
judicial seats provided for in (1)(b) is capable of being consistently and regularly enforced,
subsection 121(c) should be deleted.
Two other experts also opined regarding Subsection 121(1)(b) and the number of justices
required for a quorum. One of these, relying on Article 161(2) of the Kenya Constitution (2010),
recommended that five judges, rather than three, be required for a quorum. The other proposed
changing it from four in the current Subsection 121(1)(b) to eight.
3. Jurisdiction of the Supreme Court (Section 122)
Relying on the Constitution Report’s proposal that a mechanism be added for the Speaker of
Parliament to refer matters to the Supreme Court,28
an expert suggested the following changes
(italics) to Section 122:
(1) The Supreme Court shall be the final court of
appeal in and for Sierra Leone and shall have such
appellate and other jurisdiction as may be conferred
upon it by this Constitution or any other law:
Provided that notwithstanding any law to the
contrary, the President or Speaker of Parliament
may refer any Petition in which he has to give a
final decision to the Supreme Court for a judicial
opinion that the Court may render under original
jurisdiction.
(2) All courts are bound by the decisions of the
Supreme Court.
(3) The Supreme Court shall make rules for the
exercise of its jurisdiction.
28
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, p. 59 (2008).
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(4) An Act of Parliament may make further
provision for the operation of the Supreme Court.
Another expert suggested inserting in the proviso to Subsection 122(1)(Proviso) “or any Member
of Parliament” between “President” and “may refer,” so that Members of Parliament, as well as
the President, can refer matters to the Court. In addition, this expert also recommended
replacing, in Subsection 122(2), the phrase “when it appears right to do so” with “when
necessary.” The expert noted that the current phrase is too vague, and would allow overturning
precedent of the Court too easily.
4. Appeals to the Supreme Court (Section 123)
An expert recommended adding to Subsection 123(1)(a), which sets out civil cases that can be
taken on appeal as of right to the Supreme Court, the following language “including causes or
matters arising under Chapter IV of this Constitution.”29
As to 123(1)(b), two experts recommended adoption of the 2008 Constitution Reports proposal
to remove the requirement that a case taken on appeal must arise under the High Court’s original
jurisdiction. This change supports appeals being taken from any case. One of these two experts
also recommended adding to subsection (1)(b) the words “or Court-Martial,” to allow the Court
of Appeals to hear cases from military courts.
Regarding Subsection 123(1)(c), an expert suggested also following the Constitution Report’s
proposal to delete the requirement of obtaining leave of the Appeals Court before a case can be
heard on appeal to the Supreme Court. The Supreme Court should be able to determine on its
own what cases it will hear.
Also as to Subsection 123(1)(c), an expert suggested adding that the Appeals Court itself can
refer matters to the Supreme Court that involve the public interest or which may significantly
impact of the interpretation or application of the Constitution to the Supreme Court. He noted
that such an amendment would enhance development of the law, and the public interest
objectives of the law.
5. Interpretation of the Constitution (Section 124)
To make this Section consistent with changes recommended regarding Sections 28(1) and 127,
an expert proposed adding to Subsection 124(1): “otherwise provided in sections 29 and 122.”
6. Supervisory Jurisdiction (Section 125)
An expert proposed adding language that would preclude the Appeals Court from having
jurisdiction over the Human Rights Commission (HRC), as follows (italics): “over any
adjudicating authority except the Human Rights Commission.” This expert opined that this
change would assure the full independence of the HRC, in accordance with the Paris Principals.
Only the Supreme Court would have supervisory jurisdiction over the HRC.
29
The expert referred to comments provided regarding Sections 28(1) and 127.
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7. Power of Justices of the Supreme Court in Interlocutory Matters
(Section 126)
An expert recommended increasing from one to three the number of judges required for
reviewing applications regarding interlocutory matters in criminal cases.
8. Enforcement of the Constitution (Section 127)
An expert proposed changing the use of “person” in 127(1) to “citizen or resident person.” In
connection with such a change, however, he also cautioned that a policy decision should be made
as to whether “person” will include or exclude corporations or any form of business. The expert
noted that disagreement over this issue is currently causing great controversy and disruption in
the United States, and many people believe that defining corporations as persons for all purposes
(including freedom of speech and religion) is enabling corporations to abuse their power.
To harmonize the language in Subsection 127(1) with the amendment proposed to Subsection
28(1), an expert proposed adding “Save as otherwise provided in Section 28, any.”
Two experts suggested deleting Subsection 127(4), as proposed in the 2008 Constitution Report.
He noted that a “failure to obey” is vague wording, and carries with it an unnecessary penalty
since the contempt powers already given to the Court can handle such concerns. Another expert
expressed concern about the criminalization under this Subsection, suggesting that the crime be
specified more clearly.
PART III – THE COURT OF APPEAL
9. Composition of the Court of Appeal (Section 128)
Regarding 128(1)(b) and (c), an expert referred to the comments made and changes proposed
with respect to Subsection 121(b) and (c), with respect to specifying a maximum number of
judges, rather than a minimum. Having a maximum number would avoid the possibility of the
President or Chief Justice trying to stack the court.
Another expert also addressed the composition of the court, proposing to adopt the
recommendation of the Constitution Report, and change the number of judges from seven to
nine. He commented that this change in numbers would leave a total of ten judges, and therefore
allow for split decisions.
To make Subsection 128(3) consistent with changes proposed for Subsection 122(2), an expert
suggested adding the phrase “and those of the Supreme Court.”
10. Jurisdiction of the Court of Appeal (Section 129)
There were no comments offered for this Section.
11. Power of Single Justice of Appeal (Section 130)
There were no comments offered for this Section.
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PART IV – THE HIGH COURT
12. Composition of the High Court (Section 131)
The expert who noted above, regarding Section 121 (Composition of the Supreme Court) and
128 (Composition of the Court of Appeals), concerns about court packing and the need to specify
a maximum number of judges, commented that the same concerns are not present here, with
respect to the High Court. This expert opined that because High Court judges sit alone, and
additional High Court judges may be needed in additional courts along with the growth in
population and growth in the economy, there is no danger of court packing on any given issue
that might be presented to any given High Court.
Another expert suggested that Parliament should be able to adapt to changing needs as to the
number of sitting High Court judges, referencing as an example Article 165(1)(a) of the Kenya
Constitution (2010). The expert proposed the following language (italics) could be added to
Subsection 131(1)(b):
not less than nine High Court Judges the number of
judges prescribed by an Act of Parliament;
Also addressing the composition of the High Court, another expert recommended changing the
number of judges on the Court from nine to ten.
13. Jurisdiction of the High Court (Section 132)
An expert recommended that the High Court have “unlimited and original” jurisdiction in the
matters specified under Subsection 132(1). The expert commented that this would increase the
access to justice under Chapter IV of the Constitution.30
Regarding Subsection 132(2), an expert offered the following additions (italics) and deletions
(strikeouts):
(2) The High Court of Justice shall have jurisdiction
to determine (c) any matter relating to industrial and
labour disputes and administrative complaints; and
(d) jurisdiction to determine the question whether a
human right or fundamental freedom in Chapter IV
has been denied, violated, infringed or threatened.
(2) The High Court of Justice shall not have
jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the
Supreme Court under this Constitution; or
30
This expert also suggested looking at the discussion regarding the proposed new section “Authority of courts to
uphold and enforce fundamental freedoms and rights above for basis of proposed change.”
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(b) falling within the jurisdiction of the courts
contemplated in Section 120(4)(b).
14. Claims Against the Government (Section 133)
There were no comments offered for this Section.
15. Supervisory Jurisdiction of the High Court (Section 134)
An expert recommended adding language that would remove the Human Rights Commission
from the supervisory authority of the High Court.
PART V – APPOINTMENT OF JUDGES, ETC..
16. Appointment of Judges, etc… (Section 135)
Citing the Kenya Constitution (2010), Article 166(2)(c), one expert recommended adding the
following language, in a new Subsection 135(6):
(6) Any person appointment a Judge of the Superior
Court of Judicature must have a high moral
character, integrity and impartiality.
Another expert opined that Subsection 135(3) as currently written contains too many restrictions
on serving in the Judiciary. This expert recommended deleting Subsections 135(3)(a) through
(c). He further recommended deleting a provision in 135(3) that allows a person to serve as a
judge when licensed in another state, as follows:
or any other country having a system of law
analogous to that of Sierra Leone and approved by
the Judicial and Legal Service Commission, and has
been entitled as such Counsel in the case of
appointment to—
17. Judicial Vacancies (Section 136)
As to Subsection 136(2), two experts recommended adoption of the proposal in the 2008
Constitution Report,31
which provides for Parliamentary input on the appointment of judges to
vacancies and removes the age limitation on judges taking over such vacancies, which would
make Section 136 consistent with Section 137 in this regard. One of these experts suggested a
slightly modified proposal on the 2008 Report, still deleting the current final phrase in this
Subsection, and adding the requirement of parliamentary input in this final place:
[…]notwithstanding the fact that he has already
attained the retiring age prescribed by section 137. ,
subject to the approval of Parliament.
31
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, p. 61 (2008).
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Both experts recommended the same change for Subsection 136(4).
As to Subsection 136(6), two experts commented on the 2008 Constitution Report’s
recommendation to change the three-month limitation on actions by an outgoing judge to three
months. One of these experts recommended adoption of the change from three to six months.
The other expert did not recommend adoption. This latter commented that maintaining a three-
month limitation on continued actions by an outgoing judge would keep Section 136 consistent
with the requirement in Subsection 120(16), which currently sets a three-month deadline for
rendering decisions. He suggested that, if there should be concerns about the ability to enforce
decisions post-issuance where a seat is vacant, a new judicial appointee could take over duties of
the outgoing judge, to obviate the need for extensions of time and limit unreasonable delays in
issuing important decisions.
18. Tenure of Office of Judges, etc… (Section 137)
As to Subsection 137(1), an expert recommended adding the phrase “for the period specified by
law,” after “shall hold office,” to make clear there is a limitation on the period a judge may hold
office.
Regarding Subsection 137(2), an expert commented that it is appropriate for the Constitution to
contain an age limitation for judges, as recommended in the 2008 Report, and he, along with
another expert, suggested that the current limit at age 65 should be changed to 70. A third
expert also commented on the age restriction, and favored removing it and replacing it with a
ten-year term limit on service as a judge.
An expert expressed similar concerns here as articulated with respect to Subsection 136(6),
regarding maintaining a three-month maximum on the amount of time a retiring judge may stay
on the bench once reaching the age limit. Another expert, however, favored adopting the 2008
Report’s proposal to raise the maximum time period from three months to six months.
As to Subsection 137(4), one expert expressed concern that “statement misconduct” is too broad
and unspecific a ground for removal of a judge. He noted that the ambiguity in this term could
lead to removal of a judge for political or ideological reasons, thereby undermining the
independence of the judiciary.
Also commenting on Subsection 137(4) regarding the grounds for removing judges, and citing
the Kenya Constitution, Article 168(1), an expert proposed the following changes to this
Subsection, breaking up the current grounds for removing a judge into subsections, and adding
further grounds (italics):
(a) inability to perform the functions of his office,
whether arising from infirmity of body or mind; or
(b) for statement misconduct a breach of a code of
conduct prescribed for Judges of the Superior Court
of Judicature by an Act of Parliament; or
(c) incompetence;
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(d) gross misconduct or misbehavior; and
(e) shall not be so removed save in accordance with
the provisions of this section.
Also regarding 136(4), another expert recommended removing the word “statement” and adding
the word “gross” before “misconduct,” to specify the nature of the misconduct that can result in
disqualifying a judge.
Another expert commented on Subsection 135(5), suggesting the addition of a provision that
would allow a judge who is subject to removal from office to be heard in person or through
counsel, would institute an in camera procedure for such removal hearings, and require that any
resulting decision be made public.
As to Subsections 137(8) through (10), an expert noted that the grounds on which the Chief
Justice, may be "investigated" or removed from office are very broad, and not the same as those
for Superior Court judges. He recommended making the grounds for removal of judges the same
and narrowing those presently existing for the Chief Justice, which currently could open that
Justice to removal on political or other grounds not related to his ability to function in the office.
19. Remuneration of Judges, etc… (Section 138)
Two experts commented on this Section, and recommended against any authorization for the
receipt of remuneration or emoluments from outside sources (such authorization is contained in
the proposal of the 2008 Constitution Report). One of these experts opined that any such
provision could be abused. He cautioned that if any such provision is retained in the
Constitution, then a process for appealing should be added for citizens/persons to raise concerns
of corruption or conflicts of interests stemming from any additional pay that is authorized. The
expert further suggested that the best approach may be to have such issues addressed by the
Judicial and Legal Service Commission, which could review claims of corruption or breach of
judicial ethics while remaining immune from executive or legislative interference.32
20. Oath of Office of Judges (Section 139)
There were no comments offered for this Section.
PART VI – JUDICIAL AND LEGAL SERVICE COMMISSION
21. Establishment of the Judicial and Legal Service Commission (Section
140)
32
Note: this expert attached to his written commentary, four examples relevant to Section 138. These include the
existing constitutional provision in operation in the State of Washington, United States, along with enabling
legislation, rules of judicial ethics and procedure established thereunder, which carefully govern the manner of
handling complaints of corruption or unethical conduct.
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Two experts endorsed the 2008 Constitution Report’s proposal to add a judge from the High
Court Justice to the Legal Service Commission, in order to give the Commission a broader
composition of members.
An expert approved of the 2008 Reports recommendation for the creation of a Local Courts
Service Commission that would oversee the competence and conduct of judges.33
The expert
recommended that, rather than creating a Commission for local courts and having the other
commission currently created under Subsection 140(1), there should be only one Commission,
overseeing the conduct of all judges at all levels of the courts. This expert suggested that if in
fact a Local Courts Commission is created under Section 140, then whatever language used to
create it and describe its responsibilities should match whatever language is used to describe the
Commission currently created in Subsection 140(1). Consistency in language will ensure there is
no legal question that the Commissions have a consistent purpose in overseeing the conduct of
judges. Finally, the expert cautioned that any Commission designed to oversee the judiciary
must be structured so as to avoid executive and legislative interference, and assure any such
judicial conduct commissions the maximum of independence.
22. Appointment of Judicial and Legal Service Officers, etc… (Section
141)
In the comment received for this Section, an expert recommended that the phrase “approval of
the President” currently in the Proviso to Subsection 141(1) but changed to “in consultation with
the President.”
23. Appointment of Court Officers (Section 142)
There were no comments offered for this Section.
24. Fees of Court, etc… (Section 143)
Two experts supported adopting the 2008 Constitution Report’s proposal which changes the
current use of “fines, fees or other moneys” and replaces it with “fines.”34
25. Official Document (Section 144)
There were no comments offered for this Section.
26. Rules of Court Committee (Section 145)
There were no comments offered for this Section.
H. CHAPTER VIII – OMBUDSMAN
1. Parliament to Establish Office of Ombudsman (Section 146)
33
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, pp. 64-65 (2008). 34
See Report of the Commission to Review the 1991 Constitution of Sierra Leone, p. 65 (2008).
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An expert proposed modifying the language of Subsection 146(1) to specify how the
Ombudsman is appointed, with the following proposed language:
The Ombudsman shall be appointed by the
President, after consultation with the Public Service
Commission and subject to the approval of
Parliament.
In addition to recommending that the Ombudsman be required to take an oath of office, declare
qualifications and agree to compliance with applicable regulations, one of the experts also
recommended that Subsection 142(2) provide an avenue for public and non-governmental
organizations and aggrieved citizens to ensure action can be taken to promote, protect and
implement of second generation of human rights, including those assured in Articles 2, 4, 5, 7, 8,
9, 11, 12, 13, 15 of the ICCPR. To this end, the expert proposed that the following new
subparagraphs be added to Subsection 146(2):
(d)The office of the Ombudsman should comprise
an Ombudsman and a Deputy, one of which must be
female.
(e)The office should receive complaints from victims
concerning the discriminatory promotion,
protection and/ or implementation of secondary
rights of an economic, social and cultural nature or
government policies which are inconsistent with the
Constitution.
(f) The Ombudsman shall receive complaints from
affected members of the public, non-governmental
organizations or group of persons.
(g) The Ombudsman shall conduct hearings and
where there is merit, prepare a report and take up
the matter with the concerned government
institution.
(h) Copies of the report shall be served on the
competent Parliamentary Commission, the Office of
the President and the government department
concerned.
I. CHAPTER IX – COMMISSIONS OF INQUIRY
1. Appointment of Commissions of Inquiry (Section 147)
To assure the integrity of any commission created under this Section, an expert recommended
that commissioners always be required to take an oath of office and declare their qualifications
and agreement to comply with applicable regulations.
Another expert proposed the following amendments to the specified subsections:
(1) Delete “appoint” and replace with “set up”
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(2) Delete ‘A’, and replace with “Subject to the
approval of Parliament, a …”
(3) Add new sub. (2)(a), as follows: “The
Commissioner or Commissioners shall be
appointed by the President, subject to the
approval of Parliament.”
2. Powers, Rights and Privileges of Commissions of Inquiry (Section
148)
There were no comments offered for this Section.
3. Report of Inquiry (Section 149)
There were no comments offered for this Section.
4. Rules Regulating Commissions of Inquiry (Section 150)
There were no comments offered for this Section.
J. CHAPTER X – THE PUBLIC SERVICE
1. Establishment of the Public Service Commission (Section 151)
As to Subsections 151(5)(a) and (b), and expert recommended adoption of the proposal in the
2008 Constitution Report, which suggested the following amendments (italics) to those
Subsections:
The office of a member of the Civil Service
Commission, unless he sooner resigns or dies, shall
become vacant –
a) at the expiration of four years, renewable only
once, and
b) the Chairman, at the expiration of five years,
renewable only once.
Another expert recommended adding a requirement that Parliament be notified when a
commissioner is removed under Subsection 151(6), given that Parliament is involved in the
initial appointment of commissioners, such an amendment would bring this Subsection in line
with other provisions in Section 151. He proposed the following additional language (italics):
Upon notifying Parliament, a member of the
commission may be removed by the President…
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2. Appointments, etc… of Public Officers (Section 152)
There were no comments offered for this Section.
3. Appointment of the Principal Representative of Sierra Leone (Section
153)
There were no comments offered for this Section.
4. Appointment of Permanent Secretaries and Certain Other Officers
(Section 154)
There were no comments offered for this Section.
PART II – POLICE FORCE
5. Establishment of the Sierra Leone Police Force (Section 155)
There were no comments offered for this Section.
6. Establishment of the Police Council (Section 156)
There were no comments offered for this Section.
7. Appointments in the Police Force (Section 157)
There were no comments offered for this Section.
8. Functions of the Police Council (Section 158)
There were no comments offered for this Section.
PART III – RESIGNATIONS, RE-APPOINTMENTS AND PROTECTION OF PENSION
RIGHTS OF PUBLIC OFFICERS HOLDING ESTABLISHED OFFICES
9. Resignation and Effect of New Appointment of a Person Holding
Established Office (Section 159)
There were no comments offered for this Section.
10. Reappointments, etc… (Section 160)
There were no comments offered for this Section.
11. Protection of Pension Rights (Section 161)
An expert noted that the word “personal” in Subsection 161(7) should be changed to “person.”
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PART IV – POWER AND PROCEDURES OF COMMISSIONS AND COUNCILS, AND
LEGAL PROCEEDINGS
12. Power of Commissions in Relation to the Grant of Pension (Section
162)
There were no comments offered for this Section.
13. Power and Procedure of Commissions (Section 163)
There were no comments offered for this Section.
14. Protection of Commissions from Legal Proceedings (Section 164)
To ensure the integrity of judicial proceedings, an expert recommended adoption of the
following amendment to the second proviso in Subsection 164(c):
Unless the proceedings for any reason what so ever
are tendered in judicial proceedings in a court of
law duly constituted.
K. CHAPTER XI – THE ARMED FORCES
1. Establishment of the Armed Forces (Section 165)
As to 165(1), an expert recommended adding the following sentence, to make this Section
consistent with Section 172(3)(b), which provides that any reference to the functions of the
President in the Constitution includes the function of Commander-in-Chief:
The President of Sierra Leone is the Commander–
in–Chief of the Armed Forces of Sierra Leone.
Regarding Subsection 165(2), one expert recommended deleting the phrase “to participate in its
development,” from that subsection’s description of the duties of the Armed Forces.
As to Subsection 165(3), an expert suggested adding the following caveat to the prohibition of
certain executive and legislative officials serving in the Armed Forces:
Save the President in the exercise of his
constitutional duties as the Commander–in–Chief of
the Armed Forces of Sierra Leone, no member of
the Armed Forces shall hold office as President,
Vice President…
2. Prohibition of Private Armed Forces (Section 166)
There were no comments offered for this Section.
3. Establishment of Defense Council (Section 167)
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4. Appointments in the Armed Forces (Section 168)
As to Subsection 168(1), and expert proposed adding “subject to the approval of Parliament.”
after “Forces.”
5. Functions of the Defence Council (Section 169)
Regarding Subsection 169(2), an expert suggested replacing “may” with “shall” so that the
Defence Council is required to make regulations governing its functions.
L. CHAPTER XII – THE LAWS OF SIERRA LEONE
1. The Laws of Sierra Leone (Section 170)
An expert commented that this Section is not necessary or applicable if the Supremacy Clause
recommended earlier in the Constitution is adopted.
Another expert suggested Subsection 170(1) should include a subparagraph (f), containing the
following language, commenting that this additional language would complete the laws of Sierra
Leone as recommended in the draft Constitution (2008 Report):
(f) native laws and customs that are not repugnant,
contrary to equity, good conscience or inconsistent
the laws specified in this section.
M. CHAPTER XVII – MISCELLANEOUS
1. Interpretation (Section 171)
An expert recommended deleting from Subsection 171(2)(a) the reference to “and corporations,”
with respect to the meaning of “persons” under the Constitution.
2. Legislation (Section 172)
There were no comments offered for this Section.
3. Consequential Provisions (Section 173)
There were no comments offered for this Section.
N. CHAPTER XIV – TRANSITIONAL PROVISIONS
1. Existing Constitution — Act No. 12 of 1978 (Section 174)
There were no comments offered for this Section.
2. Effect of Transitional Provisions (Section 175)
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There were no comments offered for this Section.
3. Existing Law (Section 176)
There were no comments offered for this Section.
4. Application of Existing Law (Section 177)
There were no comments offered for this Section.
5. Preservation of Existing Offices (Section 178)
There were no comments offered for this Section.
6. Existing Parliament (Section 179)
There were no comments offered for this Section.
7. Delegated Powers (Section 180)
There were no comments offered for this Section.
8. Continuation of Matters (Section 181)
There were no comments offered for this Section.
9. Legal Proceedings (Section 183)
There were no comments offered for this Section.
10. Appeals (Section 184)
There were no comments offered for this Section.
11. Jurisdiction of the Courts (Section 185)
There were no comments offered for this Section.
12. Finance (Section 186)
There were no comments offered for this Section.
13. Financial Authorisation (Section 187)
There were no comments offered for this Section.
14. Official Seals, etc… (Section 188)
There were no comments offered for this Section.
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15. Continuation of the Police Force (Section 189)
There were no comments offered for this Section.
16. Continuation of the Military Forces (Section 190)
There were no comments offered for this Section.
17. Repeal of Act No. 12 of 1978 and Savings (Section 191)
There were no comments offered for this Section.
18. Reprint (Section 192)
There were no comments offered for this Section.
19. Commencement (Section 193)
There were no comments offered for this Section.
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ANNEX A: BIOGRAPHIES OF LEGAL EXPERTS
Robert H. Alsdorf
Robert H. Alsdorf is the principal of Alsdorf Dispute Resolution. Since 2008, he has engaged in
arbitration and mediation involving issues of admiralty, antitrust, non-competition agreements,
national and international professional partnerships and business organizations, professional
malpractice, intellectual property including international software disputes and training methods,
environmental disputes, hazardous waste clean-up, insurance and reinsurance, hospitality
industry, product liability, real estate and development, valued up to nine figures, and has also
served as Special Master for pretrial proceedings. From 1990 to 2005 he served as a Trial Judge
in the Superior Court for the State of Washington, the state trial court of general civil and
criminal jurisdiction. As a trial judge he received recognition: Outstanding Judge Award, King
County Bar Association, 2002; Judge of the Year, Washington State Trial Lawyers Association,
2001; Judge of the Year, American Board of Trial Advocates, Washington Chapter, 2000;
Vanguard Award, Washington Women Lawyers, 2000. Since retiring from the bench, he has
received recognition as an attorney-at-law: he was named to “Best Lawyers in America” by
Woodward/White for Alternative Dispute Resolution; voted one of Washington’s “Super
Lawyers” and listed in “Top 100 Attorneys” and “Top 10 Alternative Dispute Resolution
Attorneys” by Washington Law & Politics; “AV Preeminent” Martindale-Hubbell Ranking. A
graduate of Yale Law School, he is a member of the bar of the United States Supreme Court and
numerous lower courts, and since the mid-1980’s has engaged in judicial education, legal
education, and rule of law projects in many different jurisdictions in the United States, Latin
America, Asia, Africa, and the former Soviet Union.
Scott Carlson I am an international rule of law attorney with over twenty years of experience. Please allow me
to elaborate upon some of my specific experience and knowledge relevant to this position.
Throughout my legal career, comparative constitutional work has been a distinct passion and
pursuit. During 1997-8, I planned, initiated, directed, and coordinated a project for the
Organization for Security and Cooperation in Europe on participatory constitution-making
following internal armed conflict in the Republic of Albania. The project engaged the population
in the rebuilding of the legal state and resolution of issues that led to the breakdown of civil
order. The Albania process has been recognized by the United Nations Office of the High
Commissioner for Human Rights (UNOHCHR) as a good governance best practice. In the years
since, I have continued to work on constitutional advice and support issues. As an advisor with
the U.S. Institute of Peace’s Project on Constitution-Making, Peace-building, and National
Reconciliation, I worked on constitutional processes in Democratic Republic of Congo and Iraq,
as well as authoring a chapter in their book concerning the same. While serving as Fellow at the
U.S. Supreme Court, I was called upon to analyze separation of powers issues that arose under
select legislative initiatives. Presently, I serve as a constitutional expert for the International
Institute for Democracy and Electoral Assistance (IDEA) via ConstitutionNet, and I am an active
member with access to their full set of constitutional resources.
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Kurt De Freitas
An internationally experienced legal advisor with a superb track record of public law including:
anti-money laundering regulation, international loan deals, governmental contracts, negotiating
and drafting agreements, as well as human rights/constitutional issues, prosecutions, legislative
drafting and much more. He is an accomplished professional having held posts as the Attorney
General of Anguilla, St Helena, Ascension Island and Tristan da Cunha as well as the Turks and
Caicos Islands. He also served as Solicitor General of the Cayman Islands. He has acted as
Governor on many occasions in several British Overseas Territories and also sat as acting judge
of the Supreme Court. He is a secure and dependable advisor with considerable skills in advising
governments and governmental agencies on a comprehensive range of legal, business
management and policy development matters. He has worked closely with the UK government
on matters of good governance and international affairs in the British Overseas Territories; An
expert on issues facing developing economies, he has unrivalled experience in navigating
governmental processes, having served Cabinet Member and Member of Parliament in three
countries during his tenure as Attorney General.
Barry Fisher
Mr. Fisher served on the multinational negotiation teams and counsel in the German and
Austrian Holocaust settlements, as well as class counsel on the Swiss Banks Holocaust cases. He
is a signatory to the resulting treaty with Germany and Austria. He serves as counsel on behalf
of Chinese, Korean and other Asian victims of the sexual slavery (“comfort women”) and slave
labor systems of wartime Japan. Counsel to Roma(“Gypsies”) and many racial, ethnic, religious
and other minorities, including Kurds he has spoken for at the European Parliament. Mr. Fisher
assisted the drafting of constitutions and legislation for Romania, Moldova, Albania, Bosnia, and
Belarus, and has consulted on legal matters in many countries, including Russia, Mexico, Spain,
Argentina, Canada, Germany, and England. Mr. Fisher is Recipient, NogunRi Peace Prize(Seoul
ROK 2008); Recipient Amicus Poloniae Award (Gov. of Poland 1997). Speaker at law
conferences throughout the world and frequent author, including Notes From The WWII Redress
Trenches: The Disparate Treatment of Victims East and West(32 Loy.L.A.
Int.&Comp.L.Rev.93(2010); Author, Comfort Women and the Courts: Coordinating Legal
Strategies, in Erzwungene Prostitution in Kriegs- und Friedenszeiten: Sexuelle Gewalt gegen
Frauen und Mädchen(Barbara Drinck & Chung-Noh Gross eds., Kleine Verlag, Bielefeld
(Germany), 2007)(Wissenschaftlicher Reihe, Band 160).
Kwangsup Kim
Kwangsup Kim is a PhD fellow at Indiana University’s Maurer School of Law’s Center for
Constitutional Democracy (CCD). Now he is studying at Australia National University
sponsored by the Pan Asia Institute funding. Also, he is a research director for the Asian team at
the CCD. By request of the UNWTO ST-EP Foundation, he is conducting a research on the
educational right for girls in sub-Saharan. He worked as a Senior Counselor for the Korean
National Assembly after retiring from the Korean Navy Officer in 2000. In January 2011, he
won the Grand Prize from the Speaker of the National Assembly. He has worked in the FKCC
(Future Korea Constitution Committee) preparing constitutional law of unification, and in the
UN-MDG FORUM, a group which advocates food security and works to eradicate poverty. Over
time he has also gained political campaign experience, most notably during the Korean
presidential election of 2007 where he participated in making a presidential election pledge as a
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member of policy room. Since 2007 he has been an academic director and vice chairperson of
the Committee of Women’s Rights at the Human Rights and Welfare Institution of Korea. He
also became a member of the Board of Directors at The Correction Welfare Society of Korea in
2012.
Suzanne Lachelier
Ms. Lachelier is a criminal defense attorney, having served as a federal public defender at both
the trial and appellate levels. She is also a Commander in the Judge Advocate General’s Corps
of the U.S. Navy Reserves. She served on active duty for four years, handling court-martial
trials. Prior to practicing criminal law, Ms. Lachelier worked as counsel to the House
Subcommittee on Energy and Power, under the Energy and Commerce Committee, where she
helped draft and implement legislation. As a reserve JAG, she served for five years as defense
counsel in the military commission at Guantanamo, representing several detainees, including two
charged as principals in the events of 9/11. She was the chief author of countless motions
seeking to incorporate international humanitarian law, human rights treaties and customary
international law principles in military commissions practice. She also negotiated a legislative
amendment in the U.S. Congress that resulted in the release of one of her detainee clients to his
home country of Sudan. Ms. Lachelier also has taught humanitarian and human rights law to
military lawyers and soldiers in the Democratic Republic of Congo. She is fluent in French, has a
Bachelor of Union College, Schenectady, NY, and a J.D. from Boston University School of Law,
Boston, MA.
Jeffrey Matsuura
Jeffrey Matsuura is a lawyer in the Washington, D.C. area specializing in the legal, regulatory,
and public policy issues associated with development, distribution, and use of technology,
particularly communications, digital media, and information technologies. He has more than
thirty years of experience advising commercial companies (including MCI Communications
Corporation, Communications Satellite Corporation, and The Discovery Channel), non-profit
organizations, and governments in many nations including China, Jordan, Lebanon, Palestine,
Canada, and New Zealand). Mr. Matsuura has taught law and technology topics in the United
States and in other countries, and he previously served as assistant professor of law and Director
of the Program in Law and Technology at the University of Dayton. He is currently an
International Research Affiliate of the Faculty of Law at the University of Otago in Dunedin,
New Zealand. He is also a member of the visiting faculty at Taras Shevchenko National
University in Kiev, Ukraine. Mr. Matsuura is a former J. William Fulbright Scholar. He is the
author or co-author of seven published books on law and technology topics, including the legal
treatises, LAW OF THE INTERNET and GLOBAL INFORMATION TECHNOLOGY LAW.
David Morgan
David Gwynn Morgan has had more than 40 years’ experience in the fields of constitutional law;
general law reform; and drafting. He has worked in a number of jurisdictions, including several
African states. He is a Distinguished Professor at University College Cork, Ireland, where he
spent the majority of his career, including acting as Head of Department and Dean of Law for a
number of years. At present, he is a Distinguished Professor at the Kuwait International Law
School. Each year, he acts as Chairperson of the Judicial Conferences on ‘Constitutional
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Government’, at Trinity College, Dublin, attended by 20 African Judges. He has published a
number of books, which were ‘firsts in the field’ in Irish public law.
Tom Santoro
Mr. Santoro opened, developed, and lead the Nairobi office of the Public International Law and
Policy Group (PILPG), focusing on strengthening domestic accountability mechanisms in Kenya
including the judiciary, the Kenya National Commission on Human Rights, and public interest
litigators. He provides trainings, legal consultation, and strategic support for local attorneys,
constitutional advocates, government officials, and civil society organizations. Mr. Santoro has
also supported programs training local level Syrian leaders in mediation strategy, ceasefire
negotiation simulations, and strategic litigation initiatives in Kosovo. Prior to PILPG, he worked
as a private sector attorney specializing in complex litigation and investigations at the
international law firm Milbank, Tweed, Hadley & McCloy. His clients included major financial
institutions facing large-scale, international criminal investigations and civil liability. Mr.
Santoro has been a guest lecturer at the Strathmore University Law School and at United States
International University, and also lived and worked in China in television and media.
Amy Senier
Amy Senier is a human rights attorney with over ten years of experience in international and
domestic non-governmental, government, private, and academic settings. Most recently, she was
the Supervising Attorney and Teaching Fellow in the International Women’s Human Rights
Clinic (IWHRC) at Georgetown University Law Center where she supervised law students
working on test case litigation, human rights investigations, and legislative reform—all of which
aimed to prevent and redress discrimination against women in Africa. Prior to the IWHRC, Amy
practiced international dispute resolution and complex commercial litigation at Foley Hoag,
LLP. There, she represented sovereign states in disputes arising from ethnic cleansing and
transboundary environmental harm and individuals seeking protection from domestic violence,
persecution, and torture. In 2012, Amy was honored for her pro bono work by both the Lawyers’
Committee for Civil Rights and Economic Justice as well as the Political Asylum/Immigration
Representation (PAIR) Project. Amy has interned and consulted for a number of international
and domestic human rights and civil rights entities including: the International Criminal Court,
the International Criminal Tribunal for the former Yugoslavia, the U.S. Court of Appeals for the
First Circuit, the Constitutional Litigation Unit of the Legal Resources Centre (Johannesburg),
the Brennan Center for Justice, and Physicians for Human Rights. Amy holds a J.D. from
Northeastern University School of Law and a M.A.L.D. from the Fletcher School of Law and
Diplomacy.
Thomas W. Simon
Thomas W. Simon (JD, PhD), professor of international and comparative law at the Johns
Hopkins University’s Hopkins-Nanjing Center in China, has written over sixty scholarly articles
and published many books, including The Laws of Genocide, Law & Philosophy, and Ethnic
Identity and Minority Protection as well as forthcoming books on Comparing Injustices and
Inside China’s Legal System. He has submitted numerous reports for the Central and Eastern
European Law Initiative of the American Bar Association and helped in the drafting stages of the
constitutions of Albania and the Slovak Republic. He served as a consultant for the Working
Group on Minorities for the United Nations. He has taught law at the University of Ljubljana
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(Slovenia), the University of Malaya, and the American University of Sharjah (UAE) and
received a Liberal Arts Fellowship at Harvard Law School.
Charles Taku Chief Charles A. Taku is an International lawyer with thirty years’ of trial and appellate
experience. He specializes in International Criminal, Humanitarian and Human Rights Law and
Practice. For the past fifteen years, as lead counsel, Chief Taku has represented clients at the
UNICTR, The Special Court for Sierra Leone, the ICC, and the United Nations Human Rights
Committee in Geneva and the African Court on Human and Peoples’ Rights in Arusha Tanzania.
With Co-counsel Beth Lyons, Chief Taku successfully obtained an acquittal of their client on
appeal in the so-called Military II case at the ICTR. Chief Taku is publisher of four books and
several scholarly articles. He has attended and made compelling contributions at several
conferences on International Law in many parts of the world.