By Cornelius Oguntola Melvin Deveaux
The de-facto leadership of the All-People’s Congress (APC) has hoodwinked some supporters and members of the public to presume true the nonparticipation of APC elected representatives in governance will provoke a constitutional crisis, create a picture of a one-party system and consequently invoke the wrath of development partners in the form of sanctions, withholding development support and ostracize Sierra Leone from the community of nations.
Interestingly, they reference some social media videos and audio, verified as fake and untrue, and the recent press release of Friday, July 21st, 2023, issued by the Carter Center that calls on the ECSL to release results at the polling station level to allow for cross-verification of records by party agents and observers and to publish the original Reconciliation & Result Forms, retained by the ECSL, as alluding to the misbelief.
For the umpteenth time, let me state that in the absence of any legal challenge to the results of the presidential election, as provided for in the Public Elections Act (PEA-2022) and the 1991 Constitution, the outcome could be said to have legally bagged a clean bill of health irrespective of the technical deficiencies highlighted in the Carter Center press release.
Also, there can be no constitutional crisis if the APC elected representatives fail to subscribe to the oath of office either as Members of Parliament or local council authorities.
First, the law provides that Parliament may act notwithstanding any vacancy in its membership (including any vacancy not filled when Parliament first meets after the entry into force of this Constitution or after any dissolution of Parliament).
Section 89 of the 1991 Constitution provides that one-fourth of all the Members of Parliament shall constitute a quorum. Given the number of SLPP MPs and Paramount Chief MPs, the current Parliament has the number required to constitute a quorum and to carry on with the business of Parliament.
Section 94 gives Parliament powers to regulate its procedure and make, amend, and revoke Standing Orders for the orderly conduct of its proceedings. The elasticity given to Parliament by this provision is unimaginable.
And this elasticity is protected by law. The law provides that notwithstanding anything to the contrary in the 1991 Constitution or any other law, no decision, order, or direction of Parliament or any of its committees or the Speaker relating to the rules of procedure or its application or interpretation, or any act done or purported to have been done by Parliament or by the Speaker under any of its rules of procedure, shall be inquired into by any court.
Also, political parties are not the representatives of the people. The actual representatives of the people are the elected candidates, nominated on the ticket of the party.
Again, 74(1), which spells out who is a Member of Parliament, is not an entrenched clause, and because Parliament has the powers to amend the Constitution, make laws, and regulate its procedures, the Constitution makes provisions to prevent a constitutional crisis if the elected APC MPs decide to adhere to the party directive.
By the provisions of the 1991 Constitution, Parliament has the power to regulate itself to ensure the representation of the people.
For example, Parliament can regulate itself to require trade unions and other interest groups to sit on the other side of the aisle to ensure representation of the people.
The aforementioned is also protected by law as the law provides that the presence or participation of any person not entitled to be present at or to participate in the proceedings of Parliament shall not invalidate those proceedings.
If, on the other hand, our elected local council chairpersons, mayors, and local councilors decide not to take up office, the law empowers the President to appoint a committee to manage the business of local councils.
According to the Local Government Act, the President may, with the approval of two-thirds of all the members of Parliament, assume the powers of any local council– (a) where the local council so requests and if it is in the public interest to do so; (b) where there is a state of emergency in that locality; or (c ) where it has become extremely difficult or impossible for a local council to function. (d) where the council persistently acts beyond its powers.
Wherein elected representatives do not subscribe to the oath of office, C becomes applicable.
The law provides that except otherwise approved by Parliament, the committee appointed by the President to superintend the affairs of a local council shall do so for ninety days.
At the expiration of the ninety days, the law provides that where the unexpired term of the council is longer than twelve months, the President shall cause elections for a new local council within sixty days; where the unexpired term of the local council is less than twelve months, the President shall continue to administer the locality until the next elections.
In this case, it is but certain that Parliament will approve the management of local councils by a committee appointed by the President for a period longer than ninety days.
I have to explain this to let supporters of the APC and the public understand that the directive issued by the de-facto leadership to elected representatives to boycott governance is of no essence.
Again, let me reiterate that boycotting governance is not the legal and logical way to challenge an election result.
Now to the issues raised in the Carter Center press release.
To begin with, I had long questioned the integrity of the Carter Center regarding its election observer mission to Sierra Leone following the video on social media in which Dr. Samura Kamara revealed how he influenced the release of US government funds to the Carter Center to observe the elections in Sierra Leone.
Notwithstanding this frailty, the demands of the Carter Center, in its latest press release, are reasonable and consistent with international best practices.
However, only a political party, a candidate in an election, or a Sierra Leonean who voted in the past election and is unsatisfied with the election result can make such demands through a competent court.
The Carter Center, as an observer mission, does not have the locus to challenge the validity of the election results and to make demands such as to direct the ECSL to take action relating to the publication of election results.
Albeit, the demands equally point to the fact that it is a significant miscalculation on the part of the APC not to have petitioned the result of the presidential election at the Supreme Court on the flimsy excuse that the party does not have faith in the administration of justice.
Only a competent court of jurisdiction can instruct the ECSL to respond to these calls.
To begin with, Section 45(2) of the 1991 Constitution provides that any question which may arise as to whether any provision of the Constitution or any law relating to the election of a President has been complied with; or any person has been validly elected as President under the Constitution or any other law, shall be referred to and determined by the Supreme Court.
Also, Section 51(1) of the PEA (2022) provides that a person who is a citizen of Sierra Leone and has lawfully voted in a presidential election may challenge the validity of that election by petition to the Supreme Court within seven days after the declaration of the result of a presidential election.
Section 86 of the PEA (2022) also provides that the decision of a Counting Officer on a question arising in respect of a ballot paper shall be final and subject to review only on an election petition questioning the election.
Regarding the publication of results, Section 52(2) of the PEA provides for the results of a presidential election to be published by notice in the Gazette. The law gives the ECSL the latitude to determine any other manner it may deem fit.
The previously mentioned is reinforced by Section 93, which states the ECSL shall publish election results in the manner declared in Section 52(2) for a presidential election, and as the ECSL deems fit for the election of MPs.
No provision in the law mandates the ECSL to publish results by polling stations. No institution or person or persons have the power to issue such a directive to the ECSL, except the courts.
The APC, as a political party, knows this. Some members of the de-facto executive, who I presume to be among the most experienced political brains in the country, know this.
Regrettably, they choose not to go to court on the excuse that the party does have faith in the administration of justice.
Perhaps, the APC is aware that its candidate did not win the presidential election but has disingenuously decided to leave its supporters in the dark to grope with fake analysis and propaganda insinuating an election theft as a means to cover the ineptitude of the de-facto executive.
In the past week, we saw the APC de-facto leader, Dr. Samura Kamara, showing absolute respect for the administration of justice by responding to a summon from the court concerning his corruption trial. It raises eyebrows.
When it is about protecting the votes, the de-facto leadership has no faith in the administration of justice; when it comes to his ongoing corruption trial, the de-facto leader shows absolute respect for the courts.
Could he be speaking from the two sides of his mouth? Or is he tacitly distancing himself from the party’s claim of not having trust in the judiciary? This irony is a subject for another day.
In conclusion, let me allay fears of a constitutional crisis though I see a direct threat to democracy.
Indeed, there is a threat to democracy, but not in the form of the forceful eviction of elected MPs from Parliament as was the case some four years ago, or the complicit of the opposition in aiding and abetting the enactment of bad laws as was the case of the Public Elections law 2022.
Democracy is under threat because elected representatives have allowed themselves to be controlled remotely by self-seeking individuals. And it is on this note that the APC de-facto leadership should stop misleading supporters.