Supreme Law Without Rules

By Allieu S. Tunkara

“The law is supreme; persons and entities affected by the recommendation are guaranteed a peaceful and transparent judicial appeals process through which they can seek relief,” Says President Julius Maada Bio.

The President made the statement in an address to the nation in respect of a ‘White Paper’ that emanated from findings and recommendations of the defunct Commissions Of Inquiry (COI).

The Presidential proclamation appears to have been a solace for officials of the past government who have been seriously indicted by the ‘White Paper.’

The solace hoped for came as a result of a complete misunderstanding of how the ‘White Paper’ will be implemented in the not-too-distant future.

A temporal stay on the implementation of the ‘White Paper’ until Supreme Court hands down a ruling on the legality of the commission   was the initial understanding of a greater number of the people of Sierra Leone.

The misconception has been laid to rest by government.

It is now clear that he ‘White Paper’ will be implemented in the absence of a ruling from the highest court of the land.

The supreme law does not wait for the judiciary to determine whether a commission that was not regulated by rules of evidence is legal.

Section 150 Act No 6 of the Constitution of Sierra Leone, 1991 is authoritative and compelling.

It says: “Subject to the provisions of this chapter, the Rules of Court Committee shall, by constitutional instrument, make rules regulating the practice and procedure of all commissions of inquiry.”

This provision is solid, unambiguous and specific. It places onus directly on the Rules of Court Committee to simply formulate rules of evidence that should show how a commission of inquiry should function in a democratic state like Sierra Leone.

The ‘shall’ and ‘all’ vocabularies in the provision go a long way to make the onus on the Rules of Court Committee weighty.

The word ‘shall’ in grammatical terms means a modal or helping verb to assist main verbs, but it denotes compulsion or a mandatory task legal context.

Academics with a firm grasp of Logic or Critical Thinking subjects would subscribe to the view that the vocabulary ‘all’ is a universal claim meaning an inclusion of all elements in the category.

The logic established above, to a large extent, resonates with the constitutional provision which makes it mandatory for the promulgation of rules for ‘all’ commissions including the three COI’s.

The rules-of-evidence principle has been thorny and controversial since the formative period of the COI.

The controversy which began in the well of parliament was dragged to COI room, but was never settled.

At the well, a member of parliament of the main opposition, All People’s Congress (APC), Daniel Koroma had it hot with parliamentarians on the other side.

Considering his legal background, Mr Koroma was quite critical of a commission without comprehensive rules of evidence.

The opposition MP’s argument hit the walls of parliament.

The majority vote secured by the APC after the debate was a reflection of the cogency and soundness of the argument.

The APC however failed to mobilise the two-third majority votes needed to turn down the COI.

It went ahead as planned, but the result today borders on the security of the state as affected parties have taken the greatest exception to the White Paper.

A controversy, no doubt, has ensued between government and APC as well as other organisations affected by the findings and recommendations.

The highest temple of justice, the Supreme Court takes a fair share of the failure to settle the controversy.

The question of legality of the COI has been issue inter alia referred to the Supreme Court for determination by one of the defence counsels, Ady Macauley.

Counsel Macauley represents most of the Persons of Interest, and has been constantly drawing the attention of the lead commissioner, Justice Biobele to the awaited ruling of the Supreme   Court.

A press release dated 7th September, 2020 is no difference to counsel Macauley’s arguments.

The document does not countenance the findings and recommendations of the COI owing to what they referred to as a “flawed” COI.

“A COI process that is unaccountable to the constitution of Sierra Leone, and deliberately refused to be scrutinised cannot, by the same stretch, scrutinise and hold persons of interest accountable,” the documents reads.

In what appears a tightening of argument on the rules of evidence, Counsel Macauley had previously intimated this medium that it would be difficult for the APC to accept the COI result without rules of evidence.

In his response to the argument during COI hearings, lead state counsel, Robin Mason never opposed the formulation of rules of evidence to regulate the commission.

Mr Mason’s contention however was based on the legal principle of ‘condition precedent.’

Under this principle, the legal luminary argued that the COI should be set up before the rules are formulated to guide the COI.

The most embarrassing factor in the drama, the rules which was supposed to guide the COI never came.

Suffice it to say the COI went without the rules from start to finish.

Commissions of Inquiry play an important role in ensuring transparency, probity and accountability in the governance of the state.

They create a viable platform where former government officials render accounts of their stewardship to the nation they once governed.

In his distinction between a statutory and non-statutory commission of inquiry, Lord Howe identified six cardinal functions that is expected of a commission of inquiry.

Establishing facts, learning from those facts, catharsis or therapeutic exposure (a platform for reconciliation), reassurance by restoring confidence in governance; accountability, blame and retribution (holding people to account) and political consideration are functions COI’s must meet.

Lord Howe posits that a statutory Public inquiry has an element of compulsion guided by rules of evidence.

In Britain, the rules to regulate the procedures of statutory inquiries have been codified in one legal document known as the Inquiries Act of 2005.

It goes without saying that all public inquiries are regulated by the law of Inquiries.

The non-statutory inquiry inquiries are flexible as they are not subject to rules owing to some other considerations.

They rely on the voluntary compliance of witnesses and do not take evidence on oath.

Non-statutory inquiries include ad hoc inquiries in Britain, committees of privy counselors and Royal Commissions.

The Prufumo Inquiry, 1963, the Maze Prison Escape Inquiry (1983-1984) were typical examples of non-statutory inquiries.

The most recent examples of non-statutory inquiries include: The Deep Cut Review (2004-2006), the Harris Review (2014-2015), the Committee of the Privy Council Inquiries of Butler (2004) and Chilcot (2009-2016).

However, commissions of inquiry in advanced democracies are guided by rules of evidence.

If Sierra Leone were Britain, the three COI’s are statutory inquiries. Section 150 further confirms their public inquiry nature.

The concept of democratic accountability, a notable lawyer says is an evolving concept in Africa where tyranny and cavalier disposition of state resources by rulers is deep-rooted.

The proceedings of the commission, she says, would have had considerable impact on state governance project had it been rules-oriented.

“The whole proceeding is riddled with utmost hypocrisy, vendetta and reprisals. It is a COI whose intention is to shut down the APC,” she says.

The call for a public inquiry into matters of state or public concern or into a controversial public policy is a common and recurrent phenomenon in old and contemporary societies.

However, COI’s must be guided by rules so that they their findings could be credible and acceptable.

The most fundamental question is: if government complies with section 147(2) of the Constitution why does it fail to comply with section 150.

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