Editor’s Note:There had been a tumultuous debate in Sierra Leone’s parliament recently as to who is qualified to be Speaker of Parliament. The problem seems to be confusion over the correct interpretation of what the current 1991 Constitution has to say on the matter. The wrangling and noisy vituperation finally led to a very controversial amendment to the Constitution regarding that matter.
Well, legal luminary and former Vice-President, former Attorney-General and Minister of Justice and former Foreign Minister Dr. Abdulai Osman Conteh, pictured, has stepped into the debate to offer his opinion. It is pertinent to also point out that Dr. Conteh was one of the framers of the 1991 constitution. Dr. Conteh’s submission now begins:
Re: The Speaker of Parliament
It is with consternation that I read the recent Constitutional amendment passed by Parliament concerning the qualification for election to the Speakership of Parliament.
With all the goodwill, respect and esteem I hold for Parliament, this amendment is unnecessary, uncalled for and a recipe for a constitutional debacle ahead in our country’s efforts to achieve a stable and fairer political process in its governance.
If it was the intention to elect in the future someone who does not need to have the qualifications to be appointed a judge of the Superior Court of Judicature, there is provision already in the extant section 79(1) of the 1991 Constitution, provided the person is a Member of Parliament.
This is the meaning and effect of the opening sentence or clause of section 79(1) which in plain English states:
“79 (1) The Speaker of Parliament shall be elected by the Members of Parliament from among persons who are Members of Parliament…”
It is the other half of section 79 (1) that is I believe, misunderstood. This simply goes on to state, after the first sentence or clause of the same section (which clearly provides for the election of the Speaker from among Members of Parliament) by continuing; “The Speaker of Parliament shall be elected from persons “…or who are qualified to be elected as such and who are qualified to be appointed Judges of the Superior Court of Judicature or have held such office.”
No need to mention the provis to section 79(1), which deals with the situation if a member of the public service, including a judge, is elected as Speaker. Such person will have to resign from the public service on the day s/he is elected.
The country has had since just before independence to the present ten eminent Sierra Leoneans who served as Speakers of Parliament: from the late Sir Henry Light—Foot-Boston, who served from 1957 to 1962, when he was translated to the office of Governor-General. He was succeeded as Speaker by the late Sir BanjaTejan-Sie, who was Speaker from 1962 to 1967. He in turn was succeeded by the late Sir Emile Fashole-Luke in1968. Sir Emile was succeeded by the late Justice Percy Davies in1973; he in turn was succeeded by the late Justice Singer William Beoku-Betts in 1977, who on retirement was succeeded by the late Hon. William N.S. Conteh who served until 1992 with the military coup d’etat of that year. After the restoration of constitutional civilian government in 1996, the late Justice Mohamed F.K. Kutubu was elected Speaker. He had been a former Chief Justice; and served as Speaker until 2000, when the Hon. Justice Edmund Cowan was elected Speaker, and he served from 2000 to 2007; and was succeeded in 2007 by the current Speaker, the Hon. Justice Abel N. Strong.
From this it can be seen that the only person to have held the office of Speaker without judicial qualifications was the late Hon. William N. S Conteh. He was elected on the retirement of the late Hon. Singer Beoku-Betts. William Conteh was elected because he was at the time a Member of Parliament and it was thought there was no need to go outside of Parliament to get a Speaker. Singer-Betts was on his election a retired judge.
So there was and there is ample provision in our national Constitutions (including the present 1991 Constitution) provisions for the election of someone who does not hold judicial qualifications, provided only that that person is a Member of Parliament.
It is therefore with grave concern that I read the recent amendment of the Constitution on the election of the Speaker.
Again, with all deference, affection and goodwill, the utility, practicality and rationale of the amendment begs many questions, but at the same yields no clear answers to its intent and necessity at this juncture in the country’s life.
This is more so in the face of an on-going Constitutional Review Commission (now one of several in the nation’s life). Prudence, openness in constitutional consultations and processes would dictate that if amendments are thought necessary and desirable, then the Attorney-General could make the case for same by representation to the Review Commission.
There is no need to give hostages to fortune by by-passing the recently established Review Commission: this can only lead to unhelpful and unhealthy speculation about hidden agendas. We have, as a country, been down that road before. We should try to avoid seemingly alluring and facile but in the end problematic and treacherous turns in our constitutional progress.
Ad hominem legislation, especially in constitutional texts is universally frowned upon, and should, at all cost, be avoided. One had hoped that salutary lessons would have been learnt from the near crisis wrought in the changes to the then 1978 Constitution regarding the succession to the presidency in 1985/6.
A practical problem implicit in the amendment is that, if enacted, it may lead to pure and plain confusion and potential constitutional debacle, when at any given time, there would be no Member of Parliament who would have served “ five to ten years” apprenticeship in Parliament, as it were, to be eligible for election to the Speakership, as the amendment now requires.
Needless to say this is a recipe for confusion and paralysis waiting to happen. We don’t need this in so important an institution as Parliament.
The alternative provision for the eligibility of someone with judicial qualifications to be elected as Speaker, is plainly to insulate that office from the cut and thrust of partisan political proclivities inherent in a multi-party form of government that the country now enjoys and which was its legacy before the unfortunate advent of one-party politics in 1978. The record shows that for a very long time Speakers had been retired judges, who, it is reasonable to suppose, by training, career and temperament, would have inculcated the thought processes of impartiality, fairness and balance. It is undoubted that these are eminently desirable qualities in any Speaker, who in hurly-burly of parliamentary debate, is expected to be above the fray and not descend into the arena.
This certainly is not to say that a non-judicially qualified Member of Parliament would necessarily be lacking in these qualities.
But it is apprehended, if it is not already manifest, that there is some lurking but inarticulate misunderstanding about the present section 79(1) of the Constitution and the office of Speaker in our constitutional arrangement. This section does not and was not intended to give a monopoly or a head- lock hold on election to the Speakership to only persons with judicial qualifications.
It simply provides that the Speaker shall be elected from among Members of Parliament or from persons who are qualified to be elected as such and are qualified to be appointed as judges of the Superior Court of Judicature.
The section plainly does not say that a Member of Parliament is ineligible or that only persons with judicial qualifications shall be eligible for election to the Speakership.
The section only provides an alternative (or) for the election of persons to be the Speaker. A Member of Parliament need not have judicial qualifications to be elected Speaker; it is only if a non-Member of Parliament is to be elected that that person should hold judicial qualifications.
It would have been thought that a plain reading and interpretation of the section’s clear and express words would make this clear.
Perhaps, it is this misunderstanding that actuated the amendment, or is there more to it than meets the eye?
Also, the provisions regarding the Speaker acting in place of the president when both the president and his vice-president are unavailable was intended to avoid a lacuna in these important offices. There is no age requirement in the Speaker for this purpose as is found for eligibility for election to the presidency. And the Speaker, who assumes the office of the presidency in those circumstances, is constitutionally instructed to arrange or call for elections to the substantive office of the presidency within ninety days.
Please, let us not distort and deform needlessly, our national Constitution!
A.O. Conteh,
Justice of Appeal.
The Court of Appeal of
The Commonwealth of The
Bahamas.
22nd November, 2013.
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