Sierra Leone Telegraph: 01 July 2023:
After calls by a small section of the main opposition APC party to take the country’s elections body – ECSL to court, following ECSL’s rigging of the presidential, general, and local elections results, former Attorney General of Sierra Leone in the Ernest Bai Koroma government – Joseph Franklyn Kamara has broken silence.
Writing on Twitter, Kamara who is a highly experienced Barrister is calling on the legal minds within his APC party to seek redress in the courts. He said: “As lawyers we owe an ethical duty to represent the best interests of the Client. Elections are challenged by petitioning the results before the Courts. Any decision by the APC to abandon legal redress is regrettable. Implicitly, the APC have acquiesced and accepted the outcome.”
But most members of the APC executive, including many of their lawyers disagree with Kamara, expressing lack of faith in the country’s judiciary that is controlled by President Julius Maada Bio, whom the ECSL has declared winner of the presidential election.
One senior members of the APC (name withheld) wrote the following analysis, putting forward cogent reasons as to why the APC should not resort to the courts:
A senior friend mentioned to me why he thinks that the APC should go to court after reading an initial piece on the subject THE 2023 RIGGED ELECTIONS: SHOULD THE APC GO TO COURT OR NOT? My friend said, “To file is to primarily complain against the outcome of the elections. If you don’t, it is a form of acquiescence.”
With all honesty, I do not subscribe to my friend’s view on this and my arguments against this view is equally legal.
To start with, it is a Judicial Notice that General Rules have exception(s). And silence doesn’t necessarily mean consent; and therefore when (or if) the APC does not go to make complaints or petition on the ECSL results in the courts, that doesn’t mean that the APC has in anyway acquiesced to the ECSL-Konneh’s results/announcement.
The APC has good reasons for not going to the courts on these elections. And besides there are other ways, bodies, institutions etc to make complaints to besides the courts. Notwithstanding all these options, the leadership of the APC has publicly made its position known that the Party does not accept nor recognizes the results announced by ECSL.
Secondly, my senior learned friend also asserted that ‘litigants go to Court to assert rights’. And my friend continued that, ‘a good case is based on the evidence and not on the expectation to lose’. And my friend further climaxed the second point/argument that, ‘if that were so, the Kenyan and Malawian elections would never have been overturned. No success without an attempt.’ I really wouldn’t want my friend to take it that I want to methodically debunk the assertions that has been brought forth.
But I am compelled to review my friend’s views and possibly state mine as well. In this regard, different litigants may have different reasons for going to Court. Some go to court when they have expectations of winning notwithstanding the evidence they have! But I certainly will not want to comment on the Kenyan and Malawian elections cases because I need to research on certain things like their judiciary history and even the full facts of the cases and their judgments.
But certainly, in the Sierra Leonean context, I have seen a landmark constitutional provision i.e. Section 171(15) of the 1991 Constitution thrown into the dungeon in the judgment that ushered in the Proportional District Block Representation System in Sierra Leone.
The said 1991 Constitution becomes subject to a statute and common law as per the Supreme Court judgement that changed our constituencies-based elections to this current proportional district block representation system.
It must be noted that section 170(1) listed the laws of Sierra Leone and I am convinced that the drafters did so in an hierarchical manner and it is against that backdrop that section 171(15) provides: “This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”
This very 1991 Constitution mandatorily states that political parties are to contest in a Proportional District Block Representation System (PR System). The Constitution is clear, and it does not state that in a Proportional District Block Representation System independent candidate(s) must contest.
My authority for the flaw of the Supreme Court’s decision to allow the PR System to be contested by independent candidates is provided for in section 38 A (2) of the aforesaid Constitution. The heading of the section reads “Election by district block representation system,” and it states: “In the district block representation system, the election shall be contested in each specified district by political parties for the block or number of seats in Parliament allocated to the district by or under an Act of Parliament and the political parties shall be allocated seats in Parliament by the Electoral Commission on the basis of their proportional share of the total district vote”.
With all these authorities the current electoral laws of Sierra Leone make the common law (i.e., the judge made law superior to the Constitution). And this singular reason, outside of others, is enough for the APC to put on hold electoral complaints to the courts.
At this point, I want to invite the public to investigate the academic credentials of Emmanuel Saffa Abdulai who was named as Dr Emmanuel Saffa Abdulai, the legal representative of ECSL in the said matter. His PhD is now publicly challenged, and the University of Sierra Leone was curious to know because the University does not have that Doctoral credential attributed to him on public records by the Highest Court of the land, The Supreme Court. The Supreme Court may have misguidedly attributed to a PhD that Emmanuel Saffa Abdulai is yet to attain.
Thirdly, my learned friend’s luring arsenal to craftily persuade anyone to get the APC to go to court was stated thus: “Filing does not preclude the exercise of political options as suggested.” To this, I am left with no option but to remind my learned friend that filing to the Court simply means that the APC is subjecting itself to the jurisdiction of the Court. Therefore, it’ll be bound by the decision of the Court.
Furthermore, once the matter is filed and heard in court, protocol automatically makes it ‘subjudice’ for the public to discuss and make statements or suggestions on the matter that is before the Court.
My stance is APC should not go to court this time. APC should explore the many political options available to its disposal. And one good and positive step in the right direction is the position that the APC leadership took in denouncing the ECSL results announcement and that the APC does not accept it.
It pleases me to state that the position statement made by the APC leadership resonated with resounding approval of the APC membership in the gallop poll I conducted within the APC membership.
Fourthly, my friend inquired and said, “On a simple matrix, what do we lose if we file? To legitimize is a smokescreen argument. With or without Petition, Governments will deal with them on the basis of diplomatic relations.” To this, I must let my learned friend know that there is so much that the APC will lose if the APC dares to file.
First and foremost, no sooner the APC files in Court it has automatically surrendered to the jurisdiction of the Court and it is bound by the decision of the Court. Secondly, protocol only allows the lawyers to agitate on the matter in court and thus reducing the general participation and understanding of the ramifications and the issues involved. Once the matter is in Court, the general public will not have a say until the court gives its judgment.
Thirdly, the momentum and support to delve into the matter will be constrained and that is another way to kill the matter. I guess these three reasons are enough for now even though I am tempted to highlight more.
On the issue of LEGITIMIZE, the outcome of the court in favour of ECSL if the APC goes to the court will mean that the ECSL conduct has been approved by the court as legal. And because the decision of the Court is binding on its litigants, that automatically legitimizes the ECSL results. And by extension, the APC would have given legitimacy to the said ECSL results through its Court action.
And my friend’s last sentence is very agreeable. With or without Petition, the Government will deal with them on the basis of diplomatic relations. I’m sure my friend was referring to the APC as them. Taking it so, I honestly will prefer the APC not to go by petition or otherwise to the court on the said matter. Let the APC explore other options other than the court and my friend’s suggestion of a diplomatic relation option could not be farfetched and this would usher room for a possibility of a clean slate solution to the impasse.
Fifthly, my learned friend had this to say, “On the other hand, there is reputational risk if we don’t, particularly suspicion of compromise from our support base”. Anyone that is following my arguments on this issue would easily say that my friend’s fifth point was dead on arrival. So, it is needless to comment as my gallop poll already shows that the general APC membership does not support the idea for the Party to go to court for a plethora of reasons with cited cases that are already known to the public and particularly the APC membership.
For the same reason for example, the APC went to the Supreme Court in 2018 and it took the Court almost 3 years to adjudicate on the matter.
Sixthly, my learned friend stated, “Further, we miss the opportunity to expose the rogue system of tabulation and make e case of mismanaged elections. Bringing to the fore and public knowledge all the irregularities/inadequacies of the system.” To this end, I thought my learned friend really has lost the point/argument. The court is not the place to expose the ECSL. What if the ECSL comfortably gives the Court whatever story that they want and then the Court simply justify their story.
In fact, on the alternative the exposure of rogue system of tabulation that can make a case of the mismanaged elections will be more effective by bringing other stakeholders particularly those who contributed to the conduct of the elections to look into the concerns and then assess whether ECSL met its objectives, or and, whether ECSL followed the set procedures. This way I believe is far better than using the courts to expose ECSL.
Seventhly, my learned friend said, “If we don’t win, we will still have successfully adjudicated the evidence and the public will decide.” At this point, I am beginning to run low on patience with my learned friend who now seems to be oblivious of the fact that the public understands the issues.
The evidence are so glaring that the ECSL rigged the elections in favour the SLPP and Bio. And that ECSL manifested blatant abuses in the conduct of the elections that was climaxed in rigged announcement of the Presidential elections in particular.
So, this is not about a matter of if we do not win, we would have made our points known to the public. If it is about making points known to the public on the said subject, then why go to court and then make the court limit the APC to engage with the public for the public to know better? The public will understand the issues better outside of the Courts.
Eighthly, my very learned friend said, “Like the PR, we lost in the court but won the public opinion.” I was almost tempted to think that my learned friend if he or she were a lawyer he/she would be like those who enjoy talking to the gallery for want of winning public opinion than focusing on winning the Bench and winning the case. Please forgive my ink and ignore because my ink will be unfriendly if I continue to comment on this point.
Ninethly, my learned friend suggested and said, “Additionally, to take the case to the international tribunal status, by law, we need to exhaust local remedies. Meaning we have to utilize legal avenues provided in our courts.” What is good about this statement of my friend is captured in “we need to exhaust local remedies.” Local remedies are not limited to just the courts. The local remedies may also include out of court settlements which are also not limited to arbitration but may also involve diplomatic relations among others as my friend earlier suggested.
Tenthly, my learned friend commented on an extract of an earlier piece: “On the issue of ‘showcasing prowess and elegance in rhetoric and legal jargons’ is unfortunate and does not deserve a comment”. I think I have to follow the queue of my learned friend and do not comment too.
But when my learned friend does not comment, I hope my learned friend does not presuppose that I should assume that my friend has consented. At this point, I want to tie this to my learned friend’s eleventh point which states before ending with wishing me a sombre time of reflection: “Grateful for other inputs on the subject, as time is of the essence.”
Honestly, I am grateful having the pointers of this piece from my learned friend and I believe it has immensely contributed to mapping out a way forward for the APC and with salient reasons for the APC NOT TO GO TO COURT TO SEEK REDRESS ON THE JUNE 24 PRESIDENTIAL, GENERAL AND LOCAL COUNCILS ELECTIONS.