By Cornelius Oguntola Melvin Deveaux
I write to be at the table of the public discourse on the pronouncement from the ECSL that the ECSL will conduct 2023 elections on the district block proportional representation system and to say I find the reasons, not just weird and unacceptable but also a deliberate distortion of provisions of the 1991 constitution.
The public discourse converges on the factualism of the palpability that the condition necessary for the President to give such a directive does not exist and on a palliative trajectory that seeks to address the disadvantages of the district block proportional system and some procedural information gaps.
It is further evident in the sharp contrast in the position of the parliamentary leadership of two major opposition political parties (The All Peoples Congress and the National Grand Coalition).
A press release from the APC parliamentary leadership states the conditions for the PR system do not exist as per the Sierra Leone constitution. Reinforcing this position is another press release from the Interim Transitional Governing Council of the APC indicating the party “is aware of the legal remedies available … not precluding the stating of a case to the Supreme Court of Sierra Leone and regional competent jurisdictions.”
On the other hand, the NGC parliamentary leadership redirected its position via a national officers meeting convened by the party chairman and leader. The outcome is not absolute as that of the APC. It did not say the conditions for the PR system do not exist as per the Sierra Leone constitution or judicial remedies. The NGC press release notes, “… as the NGC tries to make sense of these developments”, the party craves clarification on perceived disadvantages of the district block proportional system and some procedural lapses.
This show of a divided opposition is worrying in the advent of what many have termed a constitutional brouhaha.
It further compounds the disappointment that notwithstanding assurances from certain MPs to extirpate references to the National Identification Number (NIN) and PR election in the then public elections bill, there is now an elections law providing for the conduct of district block elections.
A formula to allocate parliamentary seats in a district block PR system is clearly explained in one of the attached schedules to the Public Elections Act 2022.
Notwithstanding, Parliament failed to do the needful by not amending Sections 38 and 38A of the 1991 constitution to provide for district block PR election without an existing condition.
The ECSL’s blatant distortion of the law in defense of feigning the condition necessary for a district block representation has left me thinking otherwise.
The ECSL must act under the dictates of the law in executing its constitutional duties, obligations, and responsibilities.
Regrettably, the discourse from the ECSL is a deliberate distortion of the law to satisfy an objective of a President who has, publicly and policy-wise, expressed a preference for a PR system of representation.
By constitutional provisions, the conduct of PR elections under Section 38A, even though now provided for in the Public Elections Act 2022, is contingent on a condition and the law is unambiguous as to the condition necessary that would cause the President to direct the ECSL to conduct parliamentary elections on the district block PR system after consultations between the President and ECSL.
The condition, as stipulated in Section 38A, constitutes two aspects that are not isolated. These aspects include a date for a general election of Members of Parliament and constituency delimitation under subsection (3) of Section 38 of the 1991 constitution.
As the case may be, the 24th of July, 2023 is the date for the next general elections. But this aspect alone does not fulfill the condition.
The other aspect concerns whether constituencies have been established or not. It begs the question, do we have constituencies in existence or not? Or do the existing constituencies meet the constitutional requirement for alteration?
The answers are ensconced within the protection of Section 38 of the 1991 constitution. It is where I want to believe the ECSL is deliberately distorting the law.
According to the ECSL, the existing constituencies have met the five-year minimum requirement for alteration in February 2022. It is a deliberate distortion of the law.
According to Section 38 of the 1991 constitution, the law is unambiguous regarding the life span of a constituency. In this regard, I am obliged to look at the law as it appertains the alteration of Constituencies. Section 38 (4) and (5) is understandable.
Section 38(4) mandates the Electoral Commission to review the division of Sierra Leone into constituencies at intervals of not less than five and not more than seven years …, and 38(5) instructs that The alteration of constituencies comes into effect at the dissolution of Parliament after the alteration has been approved by Parliament.
My argument against claims by ECSL that the existing constituencies are due for alteration finds its legs in the above provisions. They define the life span of a constituency, to begin with, the coming into effect at the dissolution of the Parliament that approved the alteration and reviewed at intervals of not less than five and not more than seven years.
This is absolutely different from the life span of Parliament in Section 85(1) and 85(2) of the 1991 constitution. It does not legally sum up to say the current constituencies come to an end at the dissolution of the current Parliament.
The law is without ambiguity that any alteration to existing constituencies comes into effect at the dissolution of the Parliament that approved the alterations. Consequently, the current constituencies came into effect in December 2017 at the dissolution of the last Parliament that approved the alteration in February 2017.
Legally speaking, the life span of the current constituencies started in December 2017 and not February 2017, as is wrongly claimed by the ECSL.
If the life span of the current constituencies came into effect in December 2017, a review of constituencies provided in Section 38(4) is not yet due. It is because the minimum five years provision comes to maturity in December 2022. The maximum seven years will efflux in 2024.
Consequently, Section 38(4) of the 1991 constitution becomes mandatory after December 2022 and between December 2022 and December 2024.
It is a deliberate distortion of the law for ECSL to state that the current constituencies are ready for review and that they ‘cease to exist’ in February.
There is no reason of good faith for the ECSL to have informed the President that it cannot do boundary delimitation following Section 38(1) when constituencies are not due for alteration.
There would therefore have been no reason for the President to have issued a directive per Section 38A.
If the ECSL had briefed the President on its inability to do boundary delimitation after December 2022, it would have certainly been a different discussion.
But this move is an ill-timed political miscalculation that speaks volumes of the ability of the ECSL to conduct free, fair, credible, and acceptable elections.
Notwithstanding its independence, the ECSL should be accountable for such a deliberate distortion of the law. What the public expects from ECSL goes beyond a public explanation of why it abandoned its August 2022 boundary delimitation scheme. It is about a deliberate distortion of the law and borders on the ability of ECSL to conduct free, fair, credible, and acceptable elections.
In conclusion, if there was ever a time that the All Peoples Congress party should put its hearts together, it is now. We have failed to make right so many wrongs in the past, including allowing ECSL purportedly start a boundary delimitation exercise when constituencies are not yet due for a review.
The APC must not let this wrong go unchecked.
The party should muster its strength within and outside Parliament to checkmate the abuse of authority by the ECSL.
The Parliamentary leadership and the IGTC must intensify and consolidate their collaboration beyond the similarities in their press releases, especially as the party gears toward lower-level elections.
But the unhealthy divide and acrimony and the lack of good faith among the 21-man committee continues to be an obstacle to our collective resolve against the odds of the SLPP.
If the APC is to explore all legal remedies available within Sierra Leone and regional competent jurisdictions and if the APC is to call on Sierra Leoneans to stage a nationwide protest to force a reversal of the directive given by the President, a united leadership and party is crucial to the success.