Sam-Sumana vs AG & Victor Foh: A Case Review.

By Francis Ben Kaifala Esq.

After having the opportunity to read the 126 page judgement of the Supreme Court in the Sam Sumana V. AG Matter, this is the summation of my humble opinion by way of review only:

The judgement of the Learned Justices of the Supreme Court is based on the legal faux pas that ‘if the Constitution does not say so, we (the SC Judges) think this is what should be done’. Basically, its ratio is that ‘what the law does not say you can not do, you can do’. That is in fact in most cases wrong as one can only do what the Constitution says you can do. In this case, the powers of the President ought to derive from the Constitution and not from metaphysics – it is limited by the Constitution, not beyond it. In other words, the SC judges made a new law rather than interpret what was before them – which, with respect, ought not be their business but that of Parliament.

To put this into perspective, since there are expressed procedures for the removal of the VP and the President or otherwise for the existence of a vacancy in either offices (Sections 50, 51, 49, 55) why import another means that does not exist and without precedent simply to fill a perceived void? That will be making new law (in the American Realist sense). If there is a deficiency in the law, to wit the absence of a stipulation as to what happens when the so-called “continuous requirement” is lost, judges ought not repose powers on someone (the president) who does not have such powers so as to remedy the anomaly. That will be outside their powers as interpreters of the law. They ought to declare it as such only, and leave parliament to do their job (i.e. rememdy the empass by a new law). The reasoning that the provision in Section 41 was continuous may be right but the conclusion that the President has powers to sack the VP is, with respect, incorrect. It is one thing for a vacancy to arise, it is another for who can effect the vacancy. In this case the Supreme court judges held that the President could effect the vacancy by sacking the elected VP rather than him having powers to take steps to fill the post as the constitution mandates. The best the SC judges could have said would be that by reason of the loss of the continuous requirement by the elected VP, a vacancy had arisen. Then, perhaps, the President would have been right to exercise his right to replace the VP as he is empowered to do under Section 54(5) of the Constitution in the light of that “vacancy”. It is erroneous to say he has powers to sack the VP as that would be ultra vires his powers – and in this case it is.

I must commend the Learned Justices of the supreme court for the clever analogy between “belonging to a party” and “citizenship” which stems from clever lawyering during the trial. I however respectfully contend that that particular provision relating to belonging to a political party is not a continuous requirement and equating it with citizenship is merely to exaggerate its use and create a bias in the minds of lawyers and citizens who feel strongly about citizenship (and many have been led to believe that they are right because of that rather emotional comparison). In deed, a sitting VP has to be a citizen but I do not believe that the framers of the Constitution intended that he has to remain a member of a particular political party so to remain in office. It is my humble view that once elected, the Vice president becomes a Sierra leonean and accountable to the entire Sierra Leonean Citizenry and not to any political party (be it the one which put him on the ticket to run or another). When the framers of the Constitution wanted Parliamentarians to remain members of political parties, they CLEARLY stated that a parliamentarian would lose his seat upon ceasing to be a Parliamentarian (See Section 77K of the Constitution). Even for citizenship, Section 77d Clearly makes a Parliamentarian lose his seat upon ceasing to be a citizen. NO SUCH CORRESPONDING PROVISION EXISTS FOR THE PRESIDENCY OR THE VICE PRESIDENCY. By the doctrine of Harmonious Construction, it would not be wrong to think that Parliament deliberately left it out so as to ensure security of tenure of those two offices.

In conclusion, the reasoning of the learned Justices (and they are all similar) that a vacancy had arisen may have merit (even if just for argument sake); but their conclusion that the President had “Supreme Executive Authority” (a rather vague expression in the constitution that confers no right or authority but merely entreats) to sack the VP is, with respect, demeritorious and unsupported by law. When that point was argued by the Learned counsel for the AG., I was expecting him to refer to some law that supports his point. I must say, with all due respect to him, that it sounded more logical than legal. Had the Learned Justices simply held that by the removal of the VP from a political party a vacancy had arisen (which I contend is also not the case), they would have been in stead justifying the appointment of a new VP rather than the “sacking” of the elected VP. What they ended up doing was to justify the sacking by the President of the elected Vice President which in my view did not back their reasoning but rather deviated from it.

I therefore recommend that this judgment be made to become a relic of history by our parliamentarians moving swiftly to amend the Constitution and override it or rather that the Constitutional Review Committee makes it a duty to close the door on it before it is too late. If that is not done, political parties and their executive will have more control over the executive than the citizenry – which will be unfortunate – and they can determine the tenure of a President and/or the Vice President who does not dance to their whims and caprices thereby making a mockery of the Supremacy of the People over party and undermine our already fragile democracy.