The PMDC Versus Solomon Berewa & the SLPP

By John Lansana Musa, USA

Introduction

An important constitutional issue concerning the status of Solomon Ekuma Berewa(photo) as Party Leader of the SLPP was recently mooted before the Political Parties Registration Commission on tenuous grounds. A similar matter with kindred issues awaits judgment in the Supreme Court brought there at the behest of Chief Hinga Norman. The issue is whether or not Parliament intended to disqualify the office of Vice President under Section 76 from membership of Parliament as expressly written in the 1991 Constitution. Section 76 is the cornerstone provision which contains disqualifications and disabilities which would likely prohibit a putative candidate from sitting in Parliament based on enumerated disabilities under that provision.

More specifically, it is the touchstone that disqualifies bankrupts, convicts, criminals and certain public offices from membership of Parliament. The disqualification section as we shall show below formally entered the Constitution of Sierra Leone in the Independence Order in Council (Constitution of Sierra Leone 1961).

In the 1961 Constitution, the seminal disqualification section disqualified criminals and bankrupts and certain public offices but created an exception to include the Prime Minister, and State Ministers. More than this brief history of the qualification section, when the framers of constitutions or statutes write a list of exclusions, they specifically intend to exclude persons on that list. In doing so, they invariably create an exception in a separate clause or proviso to protect those persons or offices falling outside the exclusion. Thus, when Parliament expressly and clearly said at Section 76(1) of the Constitution of Sierra Leone, Act No.6 of 1991,

No person shall be qualified for election as a Member of Parliament
if he is for the time being the president, the vice-president, a Minister or a Deputy Minister under the provisions of this Constitution,

she intended to exclude the office of Vice President. The central question to be resolved is this: If the office of Vice President is disqualified without exception for membership of Parliament as stated in Section 76, then, Section 35(4) of the Constitution of Sierra Leone, prohibits Solomon Berewa from leading the SLPP because the latter section says,

A Political Party shall not have as a founding member or as a leader of the party or a member of its executive body whether national or otherwise, a person who is not qualified to be elected as a member of Parliament under the Constitution.

The prohibition is marked and is underscored again under the Political Parties Act when it solemnly declares too without exception that

No Political Party shall have as a Leader a person who is not qualified to be elected as a Member of Parliament.

In his rebuttal to the PMDC Petitioner, Mr. Berewa glossed over the notion that he is qualified to be Party Leader. But his constitutional disability compounded with Parliament extending the eligibility requirement to candidacy for President in the Electoral Laws Act 2002:

"No person shall stand as a candidate in a presidential election if he is not a candidate nominated by a political party. (2) A person is not qualified to be nominated as a candidate in a presidential election unless he is otherwise qualified to be elected as a Member of Parliament (Section 29. (1) and (2)).

This additional requirement vitiates the ill-considered judgment of the Political Parties Registration Commission because the pith of this recent law emphasizes the eligibility for membership to Parliament in conjunction with presidential candidacy while the PMDC Petitioner’s inquiry petition sought to question Party Leadership related with such eligibility. In that vein a cloud still hangs over Mr. Berewa’s eligibility to be accredited by the National Electoral Commission as it is the final umpire of the bona fides of presidential eligibility while the Political Parties Registration Commission has jurisdiction over eligibility for Party Leadership. The spectre will become ominous if the PMDC goes farther to the Supreme Court and raises the issue anew on candidate eligibility instead of Party Leadership grounds.

The thrust of the following debate is centered on the PMDC Petition and Mr. Berewa’s rebuttal.In light of the fact that the existing Constitution clearly prohibits the office of Vice President from membership of Parliament and not falling under the stated exception to the general disqualification clauses, the question now before the Supreme Court is whether Solomon Ekuma Berewa, having been elected Party Leader of the SLPP, is improperly holding that status because the Constitution prohibits persons not eligible to enter Parliament from being Party Leaders.

Seeking to oust Mr. Berewa from that status, Chief Hinga Norman and more recently the PMDC, have raised these germane issues as part of the democratic process in the campaign election. Mr. Berewa has demurred and claims in an adventitious rebuttal that while Parliament has written that the office of Vice President is disqualified, it did not intend to do so because it will make nonsense of the Constitution. His rebuttal to the PMDC, and perhaps to the Norman law suit is the basis of the following colloquium.

Following the constitutional path paved by Chief Norman, the perspicuous PMDC Petitioner interposed his petition on the strength of the notion that the SLPP nominated Solomon Ekuma Berewa to her party leadership in contravention of certain sections of the 1991 Constitution and its kindred statute on political parties. The learned Mr. Berewa counter-argued that the Constitution and its kindred statutes have disqualified the office of the Vice President by inadvertence and inconsistency from eligibility to sit in Parliament, but Parliament intended otherwise.

The larger point upon which these issues proceed is a method of interpretation of the Constitution which trumps meaning where the plain text of the 1991 Constitution is unclear or ambiguous. Solomon Berewa has wagered his position that he is qualified as Party Leader under the Constitution based on his own interpretational method of looking at the four corners of the Constitution, or reading the constitution Ex Visceribus Actus.

This canon of interpretation at first blush is reasonable until we look at the nub of sections Mr. Berewa suggests the PMDC Petitioner omitted to look at. In doing so, Mr. Berewa took after the PMDC petition with sword of vengeance uncharacteristic of any interpretation one encounters in legal journals. An interpreter cannot absolutely contend that his cannon of construction will meaning context without any want of restraint. His interpretation must be guarded by the penumbra of perspectives in case law or where legal scholars draw the line.

As Mr. Berewa broods over the contention of the PMDC Petitioner with a countenance of contempt, he strikes him with a cudgel and patronizingly lectures him for want of knowledge on constitutional interpretation.

Mr. Berewa’s choice of interpretation being Ex Visceribus Actus exposition, he takes the advice of the editor of Craies on Statute Law to look at the whole constitution (four corner rule), to get the meaning of Parliament. But Mr. Berewa narrowly used Ex Visceribus Actus exposition to reach his own desirable meaning from the Section 76 disqualification instead of what Parliament intended.

Had Mr. Berewa used the Ex Visceribus Actus rule apart from its metaphysical construction, by first undertaking the plain meaning rule, he might have understood the thrust of the PMDC petition. Nowhere in Mr. Berewa’s rebuttal does he tell us that he exhausted the plain meaning interpretation and was hence actuated to go deeper than the surface of the constitution to a profound evisceration or a construction from the guts.

That approach is what is required from the principle and practice from the Latin phrase Ex Visceribus Actus, instead of merely gathering a bundle of clauses to suit an interpreter’s meaning. In gathering a heap of sections in his rebuttal to the PMDC petitioner, Mr. Berewa ephemerally suggests to the Political Parties Registration Commission he had exhausted his search for meaning. But did he look DEEPER or in the innermost parts of the 1991 Constitution and related instruments within the Latin meaning of the term Ex Visceribus Actus? Hence, this exposition means more than merely looking at the four corners of the constitution. Lord Coke required that an interpreter do more than look at the four corners. Case law and hornbooks prove are at variance with Mr. Berewa’ use of the term.

Constitutional experts would not have gathered clauses in search of meaning. They would have first read the plain text of the Constitution to appreciate what Parliament intended. Looking at the whole constitution to trump meaning where there is ambiguity is a reasonable method of exposition. But one does not dash inside the constitution with a spade to dig up sections and clauses to find meaning in the first instance of interpretation of a constitution or statute. Failing to comprehend the plain text, a clear-minded interpreter would then have to broaden his search for meaning by looking beyond Section 76 on disqualification.

In doing so, one does not merely gather kindred clauses in the existing constitution especially where the plain meaning confounds you. You have to further widen the search by examining past constitutions of Sierra Leone to see how and why Parliament allowed offices equal to the Vice Presidency to sit in Parliament and why the existing constitution now frowns on the eligibility as a disqualification which prohibits a person such as Mr. Berewa from being a Party Leader.

A greater problem for Mr. Berewa is when did he know that Section 76 brooks interpretation problems which would require his long rebuttal? Did he gather the idea from the PMDC petition, the Norman law suit or earlier than the controversy born in the Norman motion and PMDC petition? These questions are material to the public and the voters because there is ample evidence that Mr. Berewa knew that Section 76 was indeed a disability even before it ripened into law suit and petition.

A retrospective of the ascendancy of the parvenu regime of the NPRC illuminates these inquiries. Mr. Berewa was employed by the NPRC to change the constitution of Sierra Leone under the aegis of the National Advisory Council superintended by one Ahmad Tejan Kabbah. By Decree No. 7, 1992, under the Administration of Sierra Leone, the NPRC established the Council of 20 people dovetailing into many professions with at least five lawyers, two Paramount Chiefs and a retired Justice of the High Court. Their terms of reference included working out the modalities for return to multi-party democracy with a view to ensuring a broader and equitable participation of the citizenry in the democratization process and reflecting the views and aspirations of the people.

On November 26, 1993, the NPRC issued to the nation a timetable on return to civilian rule. The lofty goal of writing a constitution to overcome the objections of the 1991 Constitution was made plain by Captain Valentine E.M. Strasser:

"Fellow citizens, on the anniversary of our glorious revolution this year, my Government gave a commitment on the imperative to constitutional rule. The fulfilment of this promise, we set up a National Advisory Council... Since then, the Advisory Council has prepared a Working Document setting out the basis on which our new National Constitution could be formulated... After collecting the views of the public throughout the length and breadth of the country, the Council will then prepare a Draft Constitution in collaboration with a Committee of Legal Experts."

The resulting draft Working Document and its accompanying draft constitution were a frame of Government akin to a revolutionary instrument attempting to amend, repeal and alter parts of the 1991 Constitution as hitherto desired by the coupmakers of 29 April 1996.

One such constitutional amendment was the disqualification clause now under the frown of the PMDC Petitioner and Chief Hinga Norman. In framing the NPRC revolutionary constitution, Mr. Berewa left his footprints on the Constitution of Sierra Leone. The National Advisory Council in fact realized that the office of Vice President was disqualified for fitness to Parliament and in conjunction with a probable disability to be eligible for party leadership. Attempting to alter the bane of the disqualification for the office of Vice President in Section 76 of the 1991 Constitution, the Council disagreed with Parliament.

It is axiomatic in constitutional drafting that it results from deliberate judgment to oust an old legal order or to amend or annul an obnoxious clause in an existing one. Using such deliberate judgment, Mr. Berewa and his colleagues on the National Advisory Council carefully reached a decision to remove the office of Vice President from the disqualification section in the 1991 Constitution and carved out an exception to inveigh the framers of the 1991 Constitution that a person seeking the Presidency might be unable to be a party leader or candidate under the constitution the jejune soldiers had overthrown. To that end, the National Advisory Council made this amendment to the 1991 Constitution:

"A person shall not be disqualified for election as a Member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of VICE PRESIDENT, Deputy Minister, member of a Chiefdom Council, member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws" (NPRC Constitution, Section 104 (6), 1995 Draft) (emphasis supplied).

Notice how the 1978 disqualification exception corresponds with the NPRC draft constitution disqualification exception. The pair of uniform exceptions contain the same language and text from the 1961 Independence Constitution save the fact that the Prime Minister was the subject of the exception. It is also peculiar to know that the exception the National Advisory Council sought to amend in the 1991 Constitution which did not safeguard the disqualification in Section 76, for the office of Vice President contained this original language:

"A person shall not be disqualified for election as a Member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of member of a Chiefdom Council, member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws" (1991 Constitution, Section 76 (4).

In comparing the 1961, 1978 and the NPRC constitutions, there is remarkable congruency in the text of the exception grant the Prime Minister and the Vice President protection from the bane of the disqualification clause. But when we return to the 1991 Constitution, we notice that Parliament took the protection away from the Vice President.

With this retrospective in mind, it is hard to believe Mr. Berewa’s cavorting into the 1991 Constitution for meaning after the PMDC broached the subject under debate. The perceptible handwork of Mr. Berewa as a constitutional drafter for the NPRC regime now haunts him like a ghost of the past casting a shroud over his present bid for State House. Hence, the Supreme Court in reaching any judgment must compare all the disqualification provisions of past constitutions of Sierra Leone as is required in the cannon of interpretation called - In Pari Materia, to see what Parliament was doing when it placed the office of Vice President among criminals as persons and offices disqualified from the eligibility for membership of Parliament.

The thing to keep in mind is that the National Advisory Council was chaired by Mr. Tejan Kabbah and his deputy was a Banda Thomas who has twice been Minister in the present SLPP administration. Solomon Berewa was General Counsel to the Council. All three gentlemen are lawyers of some note and would have had reason to know what they were altering in the 1991 Constitution. With five lawyers and a judge among the men and women of the Council, the NPRC constitution was undertaken by a diverse group of Sierra Leoneans committed to their lofty purpose. It is for these reasons that the notion of amending the disqualifications clause in the 1991 Constitution arrays Mr. Berewa in the dock of public opinion. The Advisory Council was not tempered by revolutionary zeal often customary to framers of military constitutions pretending a metaphorical cleansing of stables by Herculean fortitude.

This purpose and intention of Parliament in the 1991 disqualification was averted by the Advisory Council and the office of Vice President was again safeguarded as it were in the 1978 constitution of Sierra Leone. But this Promethean élan one gathers from the framers of the NPRC draft constitution seems to have eluded Mr. Berewa, as he glowered over the objections to his eligibility for Party Leadership by the PMDC Petitioner. Above all, Mr. Berewa forgot that in the ardour of the NPRC Advisory Council in amending the exception, was not merely an epiphany of a callow military regime, but the desire of reasonable men and women of that Council who had become imbued with the fervor of safeguarding the conjunction of Party Leadership and the eligibility for election to Parliament.

What is more, the Advisory Council’s task connoted a quest to alter the objectionable parts of the 1991 Constitution as was then commonplace knowledge in the country. The draft constitution contained 214 sections and 17 schedules much larger in scope than the 1991 Constitution. Clearly, Mr. Berewa cannot be now so absent-minded that the amendment of Section 76 to fix the objection to the disqualification of the office of Vice President cannot have been forgotten altogether in the efflux of time and the expiry of the NPRC regime. In sum, Mr. Berewa’s rebuttal to the PMDC Petitioner is a feigned attempt to ascertain his bona fides as party leader, given his role in the aborted amendment to the disqualification clause.

Besides the allusion to Mr. Berewa’s knowledge on the obnoxious nature of Section 76 and how he joined a concert of the National Advisory Council to change it, is also the tradition of constitution-making in Sierra Leone to carry over most sections and clauses. When a new section appears in a new constitution in Sierra Leone, Parliament so intended to make the change as she did in the 1991 Constitution. The practice of repeating certain section of the Sierra Leonean Constitution is what the constitutional scholar Daniel Elazer has justly referred to as the maintenance of the "classic constitution," by facsimile or copycat fashion from one constitution to another. The practice is quite settled in the 1978 Constitution which repeats the disqualification clause and its safeguarded exception from the 1961 Constitution:

"A person shall not be disqualified for election or appointment as a member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of Vice-President, Minister, Deputy Minister, Special Parliamentary Assistant, Paramount Chief, Member of a Chiefdom Council, Member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws@ (Section 45 (6, 1978 Constitution)."

But Parliament broke the practice when she excluded the office of Vice President in the 1991 Constitution:

"No person shall be qualified for election as a Member of Parliament Section 76(1)(h) if he is for the time being the president, the vice-president, a Minister or a Deputy Minister under the provisions of this Constitution."

The rub of the argument we have been making is this: That when the PMDC Petitioner confounded Mr. Berewa that he is impermissibly holding the title of Party Leader in contravention of the disqualification clause of 1991 Constitution, Mr. Berewa replied he is indeed qualified to sit in Parliament and consequently fit to be party leader. His conclusion he argued was reached after looking at the "four corners" of the 1991 constitution.

Mr. Berewa never mentioned his role in amending the 1991 Constitution to fix the disqualification exception which excluded the office of Vice President. Mr. Berewa should have had reason to know too that the office of Vice President was not always disqualified because the 1978 Constitution placed it in its exception to the disqualification clause.

Hence, when Parliament disqualified the office of Vice President, it so intended because she had previously safeguarded that office but saw fit to disqualify it in the1991 Constitution. The intention of Parliament is plain to the average reader of the 1991 Constitution when its disqualification clause and exception is compared to previous constitutions.

Consequently, had the NPRC constitution survived, the PMDC Petition would have been unnecessary because the office of Vice President would have been otherwise in the exception to vitiate any challenge from a putative PMDC petitioner. A fortiori, the swift sword Mr. Berewa took to slay the dragon in the PMDC Petition is an apparently dull implement against a political antagonist who merely requested inquiry into an important constitutional issue. At the end of the examination of Berewa’s much touted rebuttal in newspapers, a pall descends on his credibility as an interpreter of the constitution and the PMDC Petition stands on its original grounds in spite of Mr. Berewa’s enfeebled rebuttal. It is easy to conclude that Mr. Berewa fell on his own sword when he failed to look at the history of the infamous disqualification clause, although he saw fit to adorn it with a montage of sections from the 1991 Constitution as the terra firma of his argument. We regret to say that it was for nought or should we say an interpretation of the 1991 constitution teeming with pitfalls.

Let us proceed to the debate now underway by SIERRA and LEONE.

Sierra & Leone Debate The Merits Of The Issues.

In the following colloquium, the two issues are mooted. The pair of debaters are taking a walk by the shoreline in the shadow of the Bintumani Hotel, the environs of Lighthouse Hotel and across the brow of Man-of-War- Bay in Aberdeen, Freetown. It is evening and it has been threatening to rain. The sky is overcast with clouds but appears to have given up on its seeming downpour on the Bay.

They walk in silence but a helicopter disturbs their serenity and rattles along into the helipad at Mammy Yoko Hotel. The evening was such as to give them delight on the white sands they were walking. The sky now turned a rich blue and streaked with veins of disappearing clouds. They could hear an echo across the Bay from Lagoonda, the sound of music and entertainment. The night life in the cluster of hotels and restaurants was now in its early stride. The pair of debaters halted their delightful walk and sat on a picnic blanket on the lap of the Atlantic yonder. It was palpably evident they were savouring an exciting evening by the seaside talking politics.

Sierra: (Sierra is a civic-minded compatriot who abhors the manner in which the Judiciary invariably fails to rise to its lofty position as umpire of constitutional issues which assures its place in a tripartite branch of Government. She is a languid and sultry woman. In the gathering storm of the approaching 2007 elections, she believes democratic ideas ought to be discussed in a manner that illuminates the national issues of the day. In the wake of Dr. Peter Tucker saying the 1991 Constitution requires a review, a thorny issue such as the PMDC Petition to the Political Parties Registration Commission might be an aspect requiring examination.

She is of slender frame, yet her buxom aspect gives her the impression of sturdiness. She wore an alabaster camisole over inverted pleat crop pants). The elections are in the offing and this will be a watershed election with a new ascendant political party bound to harvest votes in the southeast of the nation with repercussions for the ruling party.

Leone: (Leone is a man of parts with discernment for the Constitution. He is aghast at the summary manner the Political Parties Registration Commission addressed a grave issue of constitutional immensity. ) Are you implicitly foreseeing the PMDC-SLPP contest in the southeast? Did I say "contest" or a war of nerves?

Sierra: Your assertion presages a war of nerves. What feeds your passion at this hour for politics?

LEONE: The PMDC has shot the first volley in the struggle for State House with its Petition to the Political Parties Registration Commission (PPRC), questioning the status of Solomon Berewa as Leader of the SLPP on constitutional grounds. Have you seen the Petition Sierra?

SIERRA: How serious is the Petition? Would it likely ruffle feathers of Solomon Berewa and throw open the SLPP nomination again, if the Petition is sustained on grounds that the Constitution excludes his status as Leader of the SLPP?

Leone: The Petition, as framed is a grave constitutional matter requiring the Supreme Court to interpret. The PMDC Petitioner should have placed it on a sound foundation with legal authorities which would call into question Solomon Berewa’s status a Leader of the SLPP.

Sierra: But if the PMDC petitioner gives no legal basis for his proposition besides the citations of two constitutional references, the Petition subsists without a cogent argument. A legal proposition has to be grounded on legal authority framed on persuasive argument. If the PMDC petition stands on a dry reed why should the Commission have taken it seriously? The PMDC should have deftly challenged Berewa’s leadership of the SLPP at the touchstone of argument below which it would be intolerable to be vitiated by Mr. Berewa.

LEONE: Let me quote in extenso what the PMDC petition averred. The PMDC prefaced its petition with a jurisdictional statement saying that the PPRC has authority to adjudicate such a petition in accordance with Section 6(1) and (2) of Act No. 3 of the Political Parties Act of 2002, having stated the bedrock of the petition thus:

"On the behalf of the People’s Movement for Democratic Change, I hereby petition the eligibility of Mr. Solomon Ekuma Berewa as Leader of the Sierra Leone People’s Party whilst holding the office of Vice-President of the Republic of Sierra Leone."

Sierra: The petition was poorly framed because Mr. Berewa is already the Leader of the SLPP and cannot be challenged on eligibility grounds. The PMDC petitioner should be challenging his STATUS as leader instead of his ELIGIBILITY. Before the SLPP convention, a putative petitioner would have correctly challenged Berewa’s eligibility that as Vice President, he is ineligible to stand in the nomination convention to be elected leader of the SLPP. After the convention, the putative petitioner should be challenging his status and seek his removal on the grounds that the SLPP delegates extra-constitutionally chose a person who was hitherto ineligible before he was elected. In a word, a challenge on eligibility would be based on whether or not, he is entitled and on status, the petitioner seeks to remove him from the status.

Leone: I take it, you are frowning on the MANNER not the MATTER of the Petition? The MATTER is cogent, but the MANNER appalling. The petitioner averred that in accordance with Section 14(1) of the Political Parties Act No.3 of 2002,

"A Political Party shall not have as a founding member or as a leader of the party or a member of its executive body whether national or otherwise, a person who is not qualified to be elected as a member of Parliament under the Constitution.

and in consonance with Section 35(4) of the Constitution of Sierra Leone Act No.6 of 1991, "No Political Party shall have as a Leader a person who is not qualified to be elected as a Member of Parliament.

Then the PMDC petitioner asserts that in accordance with the proviso lodged in Section 76(1) of the Constitution of Sierra Leone, Act No.6 of 1991,

"No person shall be qualified for election as a Member of Parliament Section 76(1)(h) if he is for the time being the president, the vice-president, a Minister or a Deputy Minister under the provisions of this Constitution."

These uniform citations form the constitutional bases of the PMDC challenge to Mr. Berewa’s leadership of the SLPP. Are these not solid grounds to jettison Berewa as leader of the SLPP?

Sierra: Not quite! These are naked citations of the LETTER of the Law. Where is the SPIRIT of the law itself which unites these citations into a coherent proposition to persuade the Supreme Court, that Berewa should never have been among the aspirants seeking the SLPP nomination for its leadership? This was an indolent constitutional attempt to kick Berewa out of the SLPP leadership?

Leone: Indeed, the PMDC Petitioner should have beheld the Petition in a vessel of legal authorities to fashion a cogent argument.

Sierra: Absolutely. One desiring to unseat a presidential candidate on constitutional grounds should do so beyond bald citations.

Leone: I concede the point you are making that the PMDC petitioner should have made a corresponding argument to hold his citations to the constitution and the Political Parties Act. While conceding that point, I want to draw your attention to the rebuttal made by Berewa to the petition under review. Much remains to be desired by any arbiter looking at Berewa’s generalizations and ephemeral rejoinder.

Sierra: Mr. Solomon Berewa introduced his rebuttal to the PMDC petition with a Philippic against the PMDC Petitioner for contriving to discountenance the democratic process. In doing so, Mr. Berewa hectored the PMDC petitioner with this harangue on democracy:

"It is most unfortunate that notwithstanding Sierra Leone’s proud march into sustainable democratic governance, there are still those who are so afraid of equal, fair and transparent competition for the votes of the electorate, that they would resort to optimistic and gratuitous misinterpretation and constructions of our constitutional and statutory provisions, under a self-serving ploy to eliminate potential competition before facing the electorate, even to the point of distorting the constitutional and statutory provisions. "

Leone: But the PMDC Petitioner is doing what is required of all citizens. The Constitution beckons citizens to protect the democratic principles and practice by variously saying citizens and political parties can "participate in and defend all democratic processes," (Section 13 (i)); and "political parties may be established to participate in shaping the political will of the people, to disseminate information on political ideas, and social and economic programmes of a national character, and to sponsor candidates for Presidential, Parliamentary or Local Government elections" (Section 35 (1).

In that regard, the PMDC Petitioner or an ordinary citizen has legal standing to challenge or question the constitutional status of putative candidates for State House, Parliament or Local Government.

Sierra: In looking at the Berewa rebuttal, he had another material statement to make against the PMDC Petition which undermines the essential ferment of his rebuttal. In hectoring the PMDC Petitioner, the learned Mr. Berewa placed his rebuttal into controversy by gravely asserting that:

"As all Lawyers know or ought to know, a written law, the Constitution, must be read and construed in accordance with the rules governing the interpretation or construction of statutes, so that any interpretation or meaning accorded it which is contrary to those rules can be rejected as being legally incorrect and therefore unacceptable."

Leone: Now, I am bemused to hear the learned Mr. Berewa make this adroit proposition which after reading his rebuttal I squint at his own sweeping conclusions about statutory or constitutional interpretation. Did the learned Mr. Berewa follow the governing rules of statutory interpretation for which he now inveighs the PMDC Petitioner?

(Sierra and Leone get up from their picnic blanket to stretch their feet. They are about to embark on the pitfalls of the Berewa rebuttal. In earnest of their debate on the interpretation of the disqualification clause of the 1991 Constitution).

Sierra: We have looked at the PMDC Petition and the slender reed it rests on. But there are remarkable pitfalls in the Berewa rebuttal which require amplification.

Leone: I suppose you are right about gathering these pitfalls together to place before the public how the learned Mr.Berewa slovenly replied to the PMDC Petition. The pitfalls are too numerous to outline here.

Sierra: I noticed quite a number of them especially the following: Mr. Berewa omitted to tell us the history of the disqualification clause, he failed to start his argument with the fact that constitutional interpretation begins with the plain meaning of the TEXT; he rushed to CONTEXT exposition using EX VISCERIBUS ACTUS rule without the benefit of saying his was confounded by ambiguity or another difficulty or even observed that Ex visceribus Actus exposition has serious limitations as courts have reached such judgments; he failed to employ the classical canons of interpretation such as reading statutes in PARI MATERIA and Expressio Unius; he employed fallacious arguments to hold his collapsing argument; his argument on separation of powers is wanting in validity because it is unsound and wrong; he did not closely look at the notion of Party Leadership as intended by Parliament among the many assumptions he made in his platitudinous conclusions.

Leone: It is about time we expose the Berewa rebuttal to a post-mortem examination. I suppose the history of the disqualification clause starts this post-mortem analysis.

History Of The Disqualification Clauses

Leone: In his hasty generalizations about the PMDC Petitioner, the learned Mr. Berewa ignored the standard steps one uses to trump meaning in a statute. He instead engaged in hypothesizing about what Parliament intended by gaping at the law as it was framed and contended that if the Commission were to concede what the PMDC Petitioner has alleged, undesirable consequences will ensue. We must thus turn to the history of the Disqualification clause which has been missing in the Berewa rebuttal.It illuminates the dark recesses of the issues he has raised.

Sierra: In that aspect, Mr. Berewa should have looked beyond the clause by clause exposition to the history of the disqualification clause. The disqualification for Parliament was inspired by the British House of Commons Disqualification Act. It was provided in the Independence Constitution in 1961 with certain exceptions. In the present constitution as in 1961, the disqualification clause disqualifies naturalised citizens, members of the Armed Forces, employees of Public Corporations, lunatics, convicted criminals, criminals under sentence of death, those convicted for fraud, persons suffering from disabilities such as professional misconduct, and then, the President, Vice President, Ministers and Deputy Ministers.

It excepted the Prime Minister and State Ministers owing to the Westminster Parliamentary democracy where the Party Leader was called by the Governor or Governor-General to form the Ministry and that Party Leader became Prime Minister and sat in Parliament with the Cabinet. When we became a Republic on April 19, 1971, the notion of separation of powers was born in our democracy. As opposed to the Parliamentary democracy we were weaned on in the colonial period where the Executive was an embodiment of Parliament with his Cabinet, a Presidential system separated the Executive from the legislative and the judiciary. In that regard, the President no longer sat in Parliament as a Member of Parliament.

Interpretation By Plain Meaning

Sierra: The learned Solomon Berewa in approaching the Petition of the PMDC Petitioner committed a classic fallacy, " the Fallacy of the Lonely Fact " generalisation from a single case citation. Laboring under the weight of fallacious reasoning he rushed to context exposition of the disqualification clause without first closely looking at the plain text of what Parliament said or intended.

Leone: Are you saying the learned Mr. Berewa jumped into the interpretation of the constitution incautiously by failing to follow the basic principles of statutory interpretation?

Sierra: Absolutely. The learned Mr. Berewa did not start his interpretation of the Constitution with the first step of regarding the plain meaning of the TEXT of the Constitution. Instead, rushed to the CONTEXT after he was confounded by the assertions of the PMDC Petitioner that the office of the Vice Presidency is not a sui generis qualified office considered within the meaning of those the Constitution would countenance for election to Parliament. As Professor Ruth Sullivan writes in the Legal Drafting journal,

"The plain meaning says that if the meaning of a legislative text is plain, the court may not interpret it but must simply apply it as written. The court may resort to the rules and techniques of interpretation only if the text is ambiguous. This rule presupposes that there is an important difference between the first-impression meaning of a text and post-interpretation meaning. First impression meaning is meaning that spontaneously comes to mind when a person reads a text relying on nothing but the text and her own linguistic competence. Post-interpretation meaning is meaning constructed by a person through interpretation, by relying on factors other than the text itself — factors like the imagined purpose of a text, or its possible consequences, or extrinsic aids like legislative history. According to the plain meaning rule, when a person sets out to resolve a dispute about the correct interpretation of a legal text, the first thing she must do is read the text and form an impression of its meaning based on reading alone. She must then judge whether this meaning is plain. A text has a plain meaning if a competent reader would judge, on the basis of reading alone, that her first impression meaning is the only meaning the text can plausibly bear. A text is ambiguous if a competent reader could plausibly read it in more than one way."

Leone: I take it from your explanation that the learned Mr. Berewa hastily concluded without the benefit of pre-interpretation impression of the text of the Constitution that he was confounded by ambiguity, thereby impelling his consideration of an intra-textual canon of construction? Would you concede the point that the PMDC petitioner, without saying so wholly relied on the Plain Meaning approach to statutory construction and hopes the Commission invoked the legislative intent of Parliament by applying the plain words of the constitution rather than relying on collating all the various sections as suggested by the learned Mr. Berewa to ascertain the meaning of the constitution?

Sierra: The Constitution provides a guide to interpretation by beginning with the plain meaning of the text in two different places. In a catchall provision on interpretation of the 1991 Constitution, Parliament purposefully says at 171 (2) " where a word is defined, other parts of speech and tenses of that word shall have corresponding meanings;" and in Section 171 (9) In the same place in that Constitution, it says, "reference to a subsection, paragraph, sub-paragraph or item shall be construed as reference to a subsection, paragraph, sub-paragraph or item of the section, subsection, paragraph or sub-paragraph as the case may be in which the reference is made. "

Leone: In other words, the learned Mr. Berewa’s reproach of the PMDC Petitioner was unwarranted because the latter wholly relied on the plain meaning rule although he failed to so emphasize. The compelling point of departure which eluded the learned Mr. Berewa has been made in a report to the United States Congress - Statutory Interpretation: General Principles and Recent Trends (March 30 2006). The Report underscores the point we have been making thus:

"[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete."

Sierra: Having established the notion that statutory or constitutional interpretation begins with the plain meaning reading of the text, I now beseech you to consider the next step. We are assuming in our next discussion that the learned Mr. Berewa while failing to tell us that he was confounded by ambiguity or another difficulty in reading or interpreting the constitution as averred by the inquiry petition of the PMDC, he beheld a method of exposition, relying a great deal on Lord Edward Coke’s embrace of interpreting of statutes - EX VISCERIBUS ACTUS.

Leone: While I share your contention that the learned Mr. Berewa embraced Lord Coke’s exposition regime, I was hoping that the PMDC Petitioner would scold Mr. Berewa on modern constitutional interpretation by stating that Mr. Berewa failed to take into consideration the major canons of statutory interpretation which would have assisted him to understand why Parliament disqualified the office of the Vice President as fit for election to Parliament and thus ultimately denying him the opportunity to be a party Leader.

The Ex Visceribus Actus Exposition

Sierra: We have said until now that one undertaking constitutional interpretation must start with the plain meaning rule. That when he encounters ambiguity, he must turn to other canons of construction to trump meaning. Since the learned Mr. Berewa rushed to exposition of the constitution we have to give him the benefit of doubt and examine his argument in full.

Leone: That is the question the learned Mr. Berewa avoided and sallied forth with excuses and assumptions by looking at every nook and cranny to say Ex Visceribus Actus is willy-nilly the panacea canon of construction when he evaded this proper inquiry you have raised?

Sierra: Thus the learned Mr. Berewa assumed that by sweeping all the cobwebs of the 1991 Constitution without looking at the history of Section 76 and its exceptions, he sailed into a safe harbour of interpretation?

Leone: No. He sailed into turbulent waters where his canon of choice of interpretation flounders under the weight of fallacy and misapplication of the exposition of the Constitution using Ex Visceribus Actus. What is more, the Berewa rebuttal cites one case decided by Lord Coke on the Queen’s Bench in 1595. Berewa basically relies on a canon of construction and constitutional interpretation that says a statute should be read as a Whole instead of in parts:

" one of the most durable and time-honoured canons or rules of statutory construction is the rule or exposition Ex Visceribus Actus or "construction within the four corners of the Act."

In marshalling his argument, he cites Lord Coke’s rule in the judgment of a 400-year old case as follows:

"The office of a good expositor of an Act of Parliament is to make construction on all parts together and not of one part only by itself (See the Lincoln College’s Case (1595) 3 Co. Rep. 58b; cited in Craies on Statute Law, P. 98)."

The rest of his rebuttal is an angry Philippic against the PMDC petitioner for his alleged lack of understanding of how to interpret a constitution.

Sierra: What do you mean when you say the Berewa rebuttal, is a Philippic? His rebuttal sounded like the death knell of the PMDC Petition with its grandiloquent assumptions on separation of powers doctrine and that quaint reference to reading the four corners of a statute.

Leone: A Philippic is a speech akin to a series of speeches delivered by Demosthenes to warn the Greeks of the danger of Philip II of Macedon in the 4th Century B.C. In 351, Demosthenes delivered his first of three Philippics against Philip II of Macedon because he had been steadily building power, and Demosthenes saw clearly the danger to Greek liberty in the great Macedonian state. Demosthenes urged in these eloquent appeals for his countrymen to unite and preserve their freedom against an impeding advent of a conqueror. Today, a Philippic is a fiery, damning speech or an impassioned denunciation delivered to condemn a particular political actor.

Sierra: So the learned Mr. Berewa, used his rebuttal to deliver a Philippic to score points? His Philippic failed as the weight of his rebuttal was neither eloquent as a Demosthenes oration. But let us return to his rebuttal. I am afraid to add that Philip of Macedon triumphed over the Greeks and Demosthenes’ Philippics were a lost cause. Does that prospect await the learned Mr. Berewa around the corner as the PMDC attempts to triumph? Let us first address the case he is relying on and the canon of construction which forms the basis of his rebuttal.

Leone: The learned Mr. Berewa may have furtively attempted to warn us against losing our democratic liberties because the PMDC Petitioner sought to imperil his nomination on the SLPP platform, but we are otherwise informed that holding elections is not wholly the equivalent of practising democracy. Derailing on the nomination of any prospective candidate on constitutional grounds is actually practising democracy and the PMDC Petitioner was within his constitutional rights to do so.

Sierra: Do you think the Lincoln College’s Case decided in 1595 is the controlling legal authority on this petition?

Leone: Perhaps in the narrow province of their reasoning a single case can support their proposition. But there are thousands of cases in controlling and persuasive authorities on this grave matter both sides have laconically addressed.

Sierra: Very well, Leone, I agree with you that the learned Mr. Berewa’s Lincoln case when read in conjunction with thousands of other kindred cases or even a couple of hundred such cases, makes his rebuttal a terribly weak reply to the PMDC petitioner. Let us look at the rules in the Lincoln College’s case and the one arising from the interpretive approach called EX VISCERIBUS ACTUS. While I share the learned Mr. Berewa’s citations as foundation to the construction of the sections the PMDC petitioner cited he failed to approach the exercise in a step by step manner which would fell the PMDC petitioner’s claims.

Leone: Are you saying that the Lincoln College’s Case is a different from the exposition regime called Ex Visceribus Actus?

Sierra: The rule framed by Lord Coke in the Lincoln College Case is kindred to the Ex Visceribus Actus regime but they are different. The Lincoln College’s case proceeds from the Latin maxim cited by Lord Coke: "Nemo enim aliquam partem recte intelligere potest antequam totum atque iterum perlegerit - For no one can rightly understand any part without perusing the whole again and again." Hence, the exposition of every aspect of the act.

Leone: And what about the other rule? Does it arise from the Lincoln College’s Case as the learned Mr. Berewa’s citation implies?

Sierra: No.The regime of construction - EX VISCERIBUS ACTUS while included in the topic on the discussion by Craies on Statute Law, actually comes from Lord Coke’s other writings not related to the Lincoln College’s Case. Ex Visceribus Actus construction was mentioned in a conclusion to Lord Coke’s discussion on the construction of statutes in the first Part of Coke’s Institutes on the Laws of England. What Lord Coke said in that discussion may imperil the learned Mr. Berewa’s assertions in his rebuttal to the PMDC petitioner.

Leone: But Mr. Berewa gives us the impression that exposition of statutes using Ex Visceribus Actus emanates from that case. So, what did Lord Coke say in his other writings unrelated to that case that may contradict the learned Mr. Berewa’s contention about interpretation of statutes or constitutions?

Sierra: I’ll let Lord Coke say it himself:

"There are three things worthy of observation concerning the construction of Statutes. First, that it is the most naturall and genuine exposition of a Statute to construe one part of the Statute by another part of the same Statute, for that best expresseth the meaning of the makers. As here the question upon the generall words of the Statute is, whether a fine levied onely by a husband seised in the right of his wife with Warranty shall bar the heire without Assets. And it is well expounded by the former part of the act, whereby it is enacted, that alienation made by Tenant by the curtesie with warranty shall not bar the heire, unlesse assets descend. And therefore it should be inconvenient to intend the statute in such manner, as that he that hath nothing but in the right of his wife should by his fine levied with warrantie barre the heire without assets. And this exposition is ex visceribus actus."

Thus, you can see from the context that it stands for more than reading a statute from any four corners. The Latin phrase which forms the major contention of Mr. Berewa’s argument against the PMDC Petitioner more literally means an exposition from the GUTS or the deep innermost parts of the Act, hence relating to the VISCERA, guts, bowels.

Leone: But what imperils the learned Mr. Berewa’s contention about this construction of statutes?

Sierra: Well, Lord Coke was not merely asking that one desirous of interpreting a statute must do so from the "four corners" of the statute. He was relying on another legal authority; "It was Henry de Bracton, leading medieval English jurist who said that "to construe one part of the Statute by another part of the same Statute, for that best expresseth the meaning of the makers."

This requirement means that in reading a statute as a whole or from the four corners or from its guts, we must keep in mind to be faithful to the meaning intended by Parliament. The question that then arises from this construction is whether or not Section 76 which disqualifies the Vice President from being elected to Parliament when read together with any kindred sections in the same constitution expresses the meaning Parliament intended.

Leone: In other words, what Coke was referring to is that "to construe one part of the Statute by another part of the same Statute, for that best expresseth the meaning of the makers"?

Sierra: The emphasis in the quotation is the verb in the phrase "expresseth the meaning of the makers." Thus, the express meaning of Section 76 is not one conjured by Mr. Berewa, but the one expressly written without an exception in the Constitution.

Leone: Thus, when one reads Section 76 and it is clear from the words Parliament used, it would be unnecessary to associate other sections with Section 76 to ascertain the meaning of "disqualification" of the Vice President from among those who are not entitled to be elected to Parliament.

Sierra: Certainly. In the context where we find the phrase Ex Visceribus Actus used, Lord Coke drives home the point which learned Mr. Berewa must remember: "Secondly, the words of an act of Parliament must be taken in a lawfull and rightfull sense, as here the words being (whereof no fine is levied in the Kings Court) are to be understood, whereof no fine is lawfully or rightfully levied in the Kings Court. And therefore (b) a fine levied by the husband alone is not within the meaning of the Statute, for that fine should worke a wrong to the wife, but a fine levied by the husband and wife is intended by the Statute, for that fine is lawfull and worketh no wrong."

Leone: Thus, in the other context you cited, if the statute did not warrant paying a fine, an interpreter must reach the conclusion that the legislature did not intend to impose one?

Sierra: You are correct. Accordingly, if Parliament clearly says the office of Vice President is among those disqualified from being elected to Parliament, that is what it intended. There is no ambiguity in such an expression of intention. Were the language unclear from a plain reading, the learned Mr. Berewa would then seek license to go fishing into the Constitution using bait on the hook called Ex Vsceribus Actus.

Leone: So, the learned Mr. Berewa should have caught the fish in the plain water without difficulty instead of sinking deeply into the bed of the ocean of the constitution to look for meaning. I conclude he came to his argument hands akimbo, that is, he approached the interpretation of the Constitution of Sierra Leone by imposing a meaning without following the normative rules of constitutional interpretation?

Sierra: When the PMDC petitioner asserted that Mr. Berewa was ineligible for the status of Party Leader, Mr. Berewa should have contended that he found ambiguity in the various sections cited by the PMDC petitioner and was thus motivated to use the textual canon of interpretation - EX VISCERIBUS ACTUS.

Leone: What other such mistakes did Mr. Berewa commit in statutory interpretation?

Sierra: First, the learned Mr. Berewa relied too much on Lord Coke’s 1595 case - the Lincoln College’s case as the standard expositor of the constitution or statute. The learned Mr. Berewa should have told the Commission that in citing the Lincoln College’s case, he was proposing that he found Sections 75 and 76 ambiguous when read in conjunction with Section 35 (4) of the Constitution or with the Political Parties Act. That this ambiguity led him to seek another approach to the construction (EX VISCERIBUS ACTUS), to better understand what Parliament said when she included the Vice President among persons disqualified to be members of Parliament.

Leone: In other words, EX VISCERIBUS ACTUS exposition is a last resort canon of construction?

Sierra: Yes. I’ll cite Craies on Statute Law (Seventh edition, the ONLY legal authority, Mr. Berewa relied upon). There, Craies says what the learned Berewa omitted to tell us after citing the rule of construction in the Lincoln College’s Case: "But this rule of construction (EX VISCERIBUS ACTUS)", is never allowed to alter the meaning of what is of itself clear."

Leone: Thus, had the learned Berewa regarded the text of the sections in controversy as obscure, he should have then dredged up - Ex Visceribus Actus rule?

Sierra: Indeed. The learned Mr. Berewa, did not tell the Commission that he exhausted his search for the plain meaning of the constitution or the Political Parties Act, before employing Coke’s rule in the Lincoln College’s case. More than this grave mistake by the learned Berewa, he forgot to tell the Commission about another pertinent case Craies cited: - Palmer’s case where the learned judge adroitly said what eluded Mr. Berewa. That if "any part of an Act of Parliament is penned obscurely and when other passages can elucidate that obscurity, that recourse ought to be had to such context for that purpose."

Leone; In short, the learned Mr. Berewa rushed into the rule of Ex Visceribus Actus by giving us the impression that the standard exposition of a statute has to be accomplished by that time worn rule. He should have known that the rule applies to contextual reading of statutes. The clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of Ex Visceribus Actus should be resorted to in a situation of this nature.

Limitations Of Ex Visceribus Actus In Exposition

Leone: We have exhausted the learned Mr. Berewa’s allusion to the Ex Visceribus Actus exposition. Now let us go to another pitfall in the Berewa rebuttal to the PMDC Petitioner. The learned Mr. Berewa took after the PMDC Petitioner for failing to heed elementary rules of statutory interpretation. But did he adhere to these rules himself especially regarding the exposition of statutes using Ex Visceribus Actus rules of construction?

Sierra: I trust that he knows the rules but the saw the trees for the forest in his excessive entanglement with the Ex Visceribus Actus construction. The ancient rule is hardly mentioned in many major Apex courts around the world and where it is used, caution abounds in its employment as one such court has done in the interpretation of a Tax statute:

"The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely, "unless the context otherwise requires". In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section.

But where there is no obscurity in the language of the section, there is no scope for the application of the rule ex visceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit." (COMMISSIONER OF SALES TAX, GUJARAT v. UNION MEDICAL AGENCY [1980] INSC 194; [1981] 1 SCR 870; [1981] 1 SCC 51; AIR 1981 SC 1 (8 October 1980; Bywater v. Brandling, (1828) 7 B. & C. 645; Rein v. Lane, (1867) L.R. 2 Q.B. 144 and Jobbins v. Middlesex County Council, Craies, (1949) 1 K.B. 142, held inapplicable).

Leone: I am familiar with that case and others relating to the limitation of the rule in Ex Visceribus Actus hugged by the learned Mr. Berewa as an absolute rule. The case you cited further said in declining to apply Ex Visceribus Actus, "There is no dispute with the proposition that the meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely ’unless the context otherwise requires’. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section, there is no scope for the application of the rule ex visceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit. The authorities relied upon by the High Court are, therefore, not applicable."

Sierra: In overlooking the standard methods of interpreting statutes or constitutions, Mr. Berewa subscribed to contextual evisceration he has called EX VISCERIBUS ACTUS. Perhaps he should have focused on the etymology of DE VISCERIBUS or the evisceration of a statute, thereby he would have clearly understood that exposition of a statute using Ex Visceribus Actus goes beyond an evisceration of provision by provision or clause by clause. It requires certain cases such as we are examining to do an exposition EX VISCERIBUS SUIS instead of EX VISCERIBUS ACTUS.

Leone: I see the distinction because the Supreme Court of the United States has once interpreted a statute Ex Visceribus Suis, by looking at more than mere clauses. In that vein, the Court said:

"I admit that this, like every other statute, must be interpreted ex visceribus suis, with the aid of such lights as may be shed upon it by known historical and geographical facts, together with the authority of those officers whose duty it has been to interpret it heretofore. Where Congress has said one thing plainly and distinctly in a law passed and enrolled, it cannot be modified or in any manner changed by proof, however clear, that the committee which reported the bill, or any other member of the body, or even all of them together, meant to say a different thing. But when an obscurely worded law has received a construction at the hands of those who passed it, that construction will not be lightly set aside by any court.

So, when an officer, whose duty it is to administer and execute the law, gives an official construction of it, his opinion is entitled to equal respect; and when the persons interested in a different construction have acquiesced in that which the law received from the officers, the conclusion is still more strong and clear against any opposing view (The Dubuque and Pacific Railroad Company, Plaintiffs in Error, 64 U.S. 66, 1859).

Sierra: So, the learned Mr. Berewa’s reproach of the PMDC Petition now stands on quick sands, not so?

Leone: That sums up the learned Mr. Berewa=s adventitious wandering into the constitution for meaning.

Interpretation Using A Cluster Of Provisos

Sierra: The learned Mr. Berewa has erred more than once. We must turn to his other errors especially those relating to his assertions on PROVISOS. The learned Mr. Berewa patronizingly scolded the PMDC Petitioner on how to interpret the constitution by recognizing the proximity and location of provisos. In a manner that begs the question whether his assertions are in fact right. To that end, Mr. Berewa writes"

"Quite apart from the ex visceribus or the "four corners" rule, common sense would also demand that provisions of a statute that are so closely connected with each other, as sections 75 and 76 of the Constitution are, must be read and interpreted together in the light of such connection. But strangely enough, not a single word is said by the petitioner about section 75 of the Constitution which, even more importantly, also contains the very definition of a person "qualified for election as such a Member of Parliament" which is at the bottom of his petition."

Leone: I take exception to the learned Mr. Berewa’s bald assertions that the proximity of a proviso trumps meaning in a statute or constitution as he has argued his rebuttal. As we earlier agreed, the plain meaning governs in these situations of interpretation and we only resort to intra-textual aids such as provisos after failing to do so. Thus one court has stated the general principles which the learned Mr. Berewa ignores:

"The meaning of every statute, including such provisos as it may contain, must first be sought in the language employed and if language is plain courts must enforce the statute as written, if it is within the constitutional authority of the legislative body that passed it." ( U.S. v. Fraidin, 63 F.Supp. 271 D.Md.,1945.).

Sierra: To illuminate the point, Maxwell on the Interpretation of Statutes has stated the general rule that "The meaning of a section may be controlled by other individual sections of the same Act," but Maxwell draws the line when he cautions one desperately seeking meaning of a statute such as the learned Mr. Berewa has done:

"The use of other provisions for the purposes of construction must not, however be carried too far. Even where a word is repeated in a same section, there is no more than presumption that it bears the same meaning in both places." (Maxwell on Statutory Interpretation, p.6112th Edition 1969).

To that logical end one court has warned interpreters such as the learned Mr. Berewa:

"A proviso following a clause in a statute is not always limited in its effect to the part of the enactment with which it is immediately associated; it may apply generally to all cases within the meaning of the language used." (Alaska v. U.S., 125 S.Ct. 2137 U.S.,2005).

Leone: What is more, the learned Mr. Berewa wholly relies on cherry-picking sections of the 1991 constitution and takes the collage to wed it to Section 76 as related in such a manner as trumping meaning as to who is disqualified to sit in Parliament. Thus, the immediacy or proximity of provisos in the manner section 75 and 76 are near each other is irrelevant in ascertaining meaning as one court has told us:

The general rule that a proviso to a particular section does not apply to other sections, but is to be construed with reference to the immediately preceding parts of the clause to which it is attached, is not controlling, especially in such composite structures as tariff and appropriation acts. The true rule seems to be that while the position of a proviso in a statute has a great and sometimes controlling influence upon the question of its application, yet the inference from its position cannot overrule its plain general intent." (U S v. R F Downing & Co, 146 F. 56 C.A.2.N.Y, 1906). Accordingly, it is not an obligation interpretation of statutes to employ provisos near or far from the provision you are seeking meaning from.

Sierra: But the learned Mr. Berewa has done just that by relying on the absolute notion that provisos govern the determination of statutes as he has sought to do.He forgets that courts have long ago perished such generalizations when it was laid down that

"While the ordinary office of a proviso is to except that which would otherwise be included in the act, the rule that it should be so construed is not of universal obligation, as the proviso may be used from excessive caution to prevent a possible misinterpretation of the act by including therein that which was not intended, and a court is required to give effect to the general intent of the act if it can be discovered from the act itself."(Baggaley v. Pittsburg & Lake Superior Iron Co., 90 F. 636 C.A.6.Mich.,1898).

Leone: The learned Mr. Berewa’s meanderings all over into the 1991 Constitution, together with his basic reliance on the Lincoln College’s case are shots in the dark.The learned Mr. Berewa has correctly stated the general rule that in reading a statute as a whole using Ex Visceribus Actus rule, we have to consider all parts of the constitution but he goes too far beyond this rule with sophistry that does not help him achieve the intent of Parliament. The enlargement of the intent in these sections is unwarranted in accordance with the prevailing common law in most courts:

"While purpose of "proviso" is to modify enacting clause and not to enlarge it or confer a power, rule has no application when language of proviso plainly implies a specific legislative intent, since it must then be construed in accordance with the language, although it may enlarge the scope of the act, or assume the force of an independent enactment." (Royal Mfg. Co. v. Spradlin, 6 F.Supp. 98 M.D.N.C,1934).

Sierra: More than his reliance on provisos, Mr. Berewa continued to call attention to the gathering of other provisions as his mantra for meaning in the disqualification clause. On that score, he writes with reproach of the PMDC Petitioner again:

"He has, for instance, ignored or failed to consider other relevant and material provisions which he needed to consider in order to arrive at the correct meaning of the expression "qualified to be elected as a Member of Parliament" as used in the case of a Leader of a Political Party in sections 35 (4) of the Constitution and section 14 (1) of the Political Parties Act 2002."

Leone: The Berewa rebuttal is all form and no substance. It is time to take leave of what appears to be a smoke and mirrors exposition.

Sierra: We have to conclude that the learned Mr. Berewa was skating on thin ice when he browbeats the PMDC Petitioner that he should know the meaning of Section 76 from its ordinary words disqualifying the office of the Vice Presidency from eligibility for Parliament but to go fishing into the whole constitution for other sections to ascertain his presumption to see the law not as it is but what it ought to be. In excoriating the PMDC Petitioner, the learned Mr. Berewa relied on Craies on Statute Law, but he seemed to have only regarded what that legal expert said about Ex Visceribus Actus and ignored the more important admonitions on reading statutes and constitutions. There, Craies reminds us what Lord Herschell ruled in Mullins v. Treasurer of Surrey:

"I decline to read into any enactment words which are not to be found there and which would alter its operative effect because of provisions to be found in any proviso." (5 Q.B.D. 170, 170, 173 (1880)

Leone: The thing to really keep in mind is the case cited by Craies in the same Hornbook relied upon by the learned Mr. Berewa. In R. v. Dibdin, Lord Justice Moulton, said it all for us when he admonished interpreters of constitutions and statutes on how to read provisos:

The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. It treats it as if it were an independent enactment clause instead of being dependent on the main enactment" (Craies on Statute Law, pp. 218-219).

Sierra: To conclude this aspect of the Berewa rebuttal, we have said that we agree with him that a statute must be read in every part as a whole. But we decline like every court has done to regard provisos as dependent clauses with the sections seemingly connected to them. Thus, the learned Mr. Berewa did not lay a glove on the PMDC Petitioner who continues to loom over him like a cuculus cloud awaiting a down pour in the raining season.

Sierra: Ironically, the learned Mr. Berewa has not understood the PMDC Petitioner at all when he excoriates him for lack of understanding of reading statutes as a whole using EX VISCERIBUS exposition, thereby considering all the sections , provisions and every thing else required to perceive the intent of Parliament. In fact by reading the various sections of the Constitution and the Political Parties Act together or should I say, in PARI MATERIA, the PMDC Petitioner followed Lord Coke’s notion of exposition. Won’t you agree?

Interpretation Of Statutes In Pari Materia

Leone: I am in concord with this conclusion you have interposed on behalf of the PMDC Petitioner. By relying mostly on the quaint EX VISCERIBUS ACTUS method, the learned Mr. Berewa forgot to employ two canons of construction which would have better positioned him in understanding what the PMDC Petitioner was alleging. Let me be clear, the learned Mr. Berewa should have considered the history of Section 76 in conjunction with prior enactments. Section 76 was born the 1961 Constitution - Independence Order in Council. In that seminal constitution, it was called Section 32. Then in 1978, it evolved to Section 45. Section 76 was almost still- born or aborted by the NPRC after it ousted the legal order and formed the National Advisory Council to write a new constitution. The parvenu military regime asked one Ahmad Tejan Kabbah, Solomon Ekuma Berewa and others to draft their constitution. The resulting document crafted a new section 104 akin to sections 32 in the Independence constitution and the 1978 constitution,

Leone: But why are you talking about old, expired and repealed constitutions in this controversy? Aren’t you missing the point the learned Mr. Berewa has enjoined in his rebuttal to the PMDC Petitioner?

Sierra: Au contraire. My references to earlier Sierra Leonean constitutions is quite relevant in this discussion. For example, various courts have ruled that

"The legislature is presumed to have adopted a new statute in light of, and with reference to, earlier acts on the same subject. Therefore, in the construction of a statute; reference may be made to earlier statutes; on the subject;; which are regarded as in pari materia; with the later statute. Thus, for example, when a legislature amends a statute; by omitting words, it is to be presumed that the legislature intended the statute to have a different meaning than that accorded it before the amendment. Even an earlier statute on the same subject which has expired or been repealed may be considered in construing an act of doubtful meaning" (St. Louis, I.M. & S. Ry. Co. v. U.S., 251 U.S. 198, 40 S. Ct. 120, 64 L. Ed. 225 (1920); Dresser v. Recreation and Park Com’n of Parish of East Baton Rouge, 213 La. 85, 34 So. 2d 384 (1948); Strickland v. Franklin County, 248 N.C. 668, 104 S.E.2d 852 (1958); Lapland v. Stearns, 79 N.D. 62, 54 N.W.2d 748 (1952). Lewis Pub. Co. v. Morgan, 229 U.S. 288, 33 S. Ct. 867, 57 L. Ed. 1190 (1913); SAIF Corporation v. Walker, 330 Or. 102, 996 P.2d 979 (2000) Dresser v. Recreation and Park Com’n of Parish of East Baton Rouge, 213 La. 85, 34 So. 2d 384 (1948); Haveman v. Board of County Road Com’rs for Kent County, 356 Mich. 11, 96 N.W.2d 153, 77 A.L.R.2d 935 (1959. Capella v. City of Gainesville, 377 So. 2d 658 (Fla. 1979) Nampa Lodge No. 1389, Benev. and P. O. of E. of U. S. v. Smylie, 71 Idaho 212, 229 P.2d 991 (1951); W.H. Dreves, Inc. v. Osolo School Tp. of Elkhart County, 217 Ind. 388, 28 N.E.2d 252, 128 A.L.R. 1405 (1940).

Leone: In that case we can compare and contrast earlier enactments with Section 76 to ascertain the correct meaning of the exclusion of the Vice Presidency from election to Parliament?

Sierra: I can show you where the Sierra Leone Parliament once included the President and Vice President as qualified to be members of Parliament?

Leone: Go ahead. First, in the 1961 Constitution (Order in Council 1961), in a Section 32 which is in fact the precursor of Section 76 of the 1991 Constitution with the same heading - Disqualification for membership of House of Representatives, it granted at subsection 6, the Prime Minister and other persons who are now disqualified under the present constitution as follows:

1961 CONSTITUTION: "A person shall not be disqualified for election as a member of the House of Representatives under paragraph (b) of subsection (1) of this section by reason only that he holds the office of Prime Minister or Minister, Member of Cabinet, Parliamentary Secretary, Tribal authority, etc."

1978 CONSTITUTION (ACT NO. 12): "Section 45 (6) A person shall not be disqualified for election or appointment as a member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of Vice-President, Minister, Deputy Minister, Special Parliamentary Assistant, Paramount Chief, Member of a Chiefdom Council, Member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws."

1991 CONSTITUTION (ACT NO. 6):76. (1) (h) "No person shall be qualified for election as a Member of ParliamentC h. if he is for the time being the President, the Vice-President, a Minister or a Deputy Minister under the provisions of this Constitution." and (4) A person shall not be disqualified for election as a Member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of member of a Chiefdom Council, member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws. "

1995 NPRC CONSTITUTION: Section 104 (6): A person shall not be disqualified for election or appointment as a member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of Vice-President, Minister, Deputy Minister, Special Parliamentary Assistant, Paramount Chief, Member of a Chiefdom Council, Member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws."

Leone: Had the learned Mr. Berewa employed the canon of Expressio unius est exclusio alterius, he would have appreciated why Parliament in 1961 and 1978, included the Prime Minister and the President and Vice President respective in those antecedent constitutions but now excludes them. The Expressio unius est exclusio alterius canon says, the express mention of thing excludes what is not mentioned. Thus, if Parliament wanted the Vice President included among those qualified to be members of Parliament, then she would have so provided as it did in 1961 And in 1978. In the 1978 constitution at Section 45, a similar language was employed saying that

A person shall not be disqualified for election or appointment as a member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of Vice-President, Minister, Deputy Minister, Special Parliamentary Assistant, Paramount Chief, Member of a Chiefdom Council,

Sierra: What is more, the learned Mr. Berewa has been less than candid or should I say that had he used another statutory canon of constitutional interpretation he might have told the Commission that the NPRC constitution which he and one Ahmad Tejan Kabbah, drafted followed the style of the 1961 constitution by granting at Section 104 :

"A person shall not be disqualified for election as a member of the House of Representatives under paragraph (b) of subsection (1) of this section by reason only that he holds the office of President, Vice President, Minister, Deputy Minister, Member of Chiefdom Council, etc."

Thus, it is anomalous that the learned Mr. Berewa would have so written in the NPRC constitution, yet quibbles now that the PMDC petitioner should have been learned enough to use an ancient exposition canon of interpretation such as Ex Visceribus Actus or even the 1595 case to interpret a 1991 constitution. The proper inquiry now is whether or nor the learned Mr. Berewa has had an On-the-Way-to-Damascus Epiphany about the Disqualification Clause as he has straddled the fence between the 1991 Constitution and the NPRC constitution. You are on point in this matter when you consider another canon of construction ignored by the learned Mr. Berewa. Had he relied on the canon In Pari Materia, he might have compared the 1961, the 1978 and the NPRC constitutions to ascertain the meaning of disqualification to be member of Parliament as granted in Section 76 of the 1991 constitution. The learned Mr. Berewa also overlooks the purport of Section 76 as an amendatory clause which is the section indicating Parliament’s intent to disqualify the Vice Presidency from election to Parliament. All in all, in 1961, the Prime Minister and Ministers of State were included. In 1978, the Vice President was included but in 1991, Parliament changed its intention to disqualify the office of Vice President.

Leone: I agree with your interpretation using the canon of statutes In Pari Materia because section 32 of 1961, section 45 of 1978 and section 104 of the NPRC constitutions are congruent in scheme, subject and language and thus are statutes or sections in pari materia to be read together to trump meaning in the 1991 section 76 which is the bane of the PMDC Petitioner. But apart from that, the intention of Parliament is clearly indicated in Section 76 (4), in the language Parliament has used since 1961 to include the Prime Minister, President, Vice President and Ministers, for eligibility.

Sierra: What Mr. Berewa has clearly stayed clear of is the pivot of the disqualification clause’s exception at Section 76 (4):

"A person shall not be disqualified for election as a Member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of member of a Chiefdom Council, member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws. "

I take it, this is the language you have mentioned which Parliament has used over a generation of enactments to INCLUDE but now uses it as a separate sub-section right after a new sub-section 76 (h) EXCLUDING or DISQUALIFYING the Vice Presidency.

Leone: To recapitulate our discussion on statutes in PARI MATERIA, from 1961 to 1995, I comprehend the argument you are interposing. Thus, the learned Mr. Berewa failed to trump meaning in Section 76 by failing to avail himself of the canon of reading statutes in pari materia. The purport of our discussion dovetails with what Chancellor James Kent has said in his Lecture Number 20 on the sentiments relating to statutes in pari materia:

"Several acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule was declared in the cases of Rex v. Loxdale, and The Earl of Ailesbury v. Pattison; (d) and the rule applies, though some of the statutes may have expired, or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. Upon the same principle, whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied."

Interpretation By The Canon Of Expressio Unius

Sierra: We have gone over statutory interpretation canons of the plain meaning and statutes in pari materia. We have to persuade our compatriots that the learned Mr. Berewa, while scolding the PMDC Petitioner fell down in the exposition of the constitution. We must now turn to another canon to further discuss the Berewa rebuttal. I can no longer delay you on the next canon of construction called expressio unius est exclusio alterius. Case law is writ large on the use of the canon. A plethora of courts have stated that

"Enumeration weakens the force of the general law as to things not expressed ; In this regard, the canon of construction expressio unius est; exclusio alterius or inclusio unius est; exclusio alterius; holds that to express or include one thing implies the exclusion of another, or of the alternative.; The maxim "expressio unius est exclusio alterius,";that the mention of one thing in a statute impliedly excludes another thing, is used to determine legislative intent.; Under the general rule of statutory construction expressio unius est; exclusio alterius; the expression of one or more items of a class implies that those not identified are to be excluded;

However, under the inclusio unius est; exclusio alterius doctrine, when a law expressly describes a particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded" (Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000).; Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000); Patterson v. Beall, 2000 OK 92, 19 P.3d 839 (Okla. 2000).State v. Droste, 83 Ohio St. 3d 36, 697 N.E.2d 620 (1998), cert. denied, 526 U.S. 1145, 119 S. Ct. 2021, 143 L. Ed. 2d 1032 (1999).; Gay v. Singletary, 700 So. 2d 1220 (Fla. 1997)

Leone: Employing Exprio Unius in the Petition of the PMDC clearly illustrates the point looming over the interpretation of Section 76 on whether or not the exclusion of the office of Vice President is to be taken literally because Parliament so enacted at her deliberate intention.

Sierra: The point may be further illustrated with a variation of the maxim you just posited. Case law judgments in issues touching and concerning matters such as we are discussing have said: "One variation of the rule is the principle that what is expressed puts an end to that which is implied - Expressium facit cessare tacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. The rule of expressio unius est exclusio alterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon one’s own voluntary act and not upon that of others.

They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned." Santiago v. Guingona, G.R. No. 134577, 298 SCRA 756 [1998]. Reuben E. Agpalo, Statutory Construction, (1990), pp. 160-161, citing the cases of Canlas vs. Republic, 103 Phil. 712 (1958); Lao Oh Kim vs. Reyes, 103 Phil. 1139 (1958); People vs. Aquino, 83 Phil. 614 (1949); Escribano vs. Avila, 85 SCRA 245 (1978); People vs. Lantin, 30 SCRA 81 (1969); Manila Lodge No. 761 vs. Court of Appeals, 73 SCRA 162 (1976); Santos vs. Court of Appeals, 96 SCRA 448 (1980); Lerum vs. Cruz, 87 Phil. 652 (1950); Velasco vs. Blas, 115 SCRA 540 (1982).

Leone: I agree with you that Parliament expressly and clearly disqualified the office of Vice President from being a member of Parliament. But if the learned Mr. Berewa ignores that plain meaning, the courts or the Supreme Court should introduce him to case law which forbids them from speculating on whether or not the Vice President or any person so disqualified should engage in a wild goose chase.

Sierra: Indeed, more than one court has declared that when a statute or a constitution has so expressly excluded a group of individuals without stating an exception, the intent of the legislature must be carried out. Thus, one such court has said,

"Where words of a statute create a general or inclusionary category there is greater reason to accept a literal meaning in absence of any particular purpose which contradicts it; however, when the statute is couched in terms of an exception the task is somewhat different for in the case of an exception it cannot be assumed that excluding a particular category from a general class was ultimately without purpose." (Israel-British Bank (London) Ltd. v. Federal Deposit Ins. Corp., 536 F.2d 509 C.A.2 (N.Y.),1976).

Leone: I concur in your conclusion. I must add that the Sierra Leonean Parliament has twice prior to the enactment of the 1991 Constitution included the President and Vice President among those who are qualified to be members of Parliament. Thus, when it now excludes them, there was a legislative purpose behind the exclusion which eludes the learned Mr. Berewa.

Fallacy Of Undesirable Consequencies:

Sierra: To outdo himself, the learned Mr. Berewa committed yet another fallacy in his interpretation of the Constitution. This time he picked up the fallacy of ARGUMENTUM AD CONSEQUENTIANM. This is the argument where one attempts to prove or disprove a reasoned argument by reference to the consequences which flow from its acceptance or rejection. But in the hands of Mr. Berewa, the fallacy collapses under its weight of irrelevance:

Finally, it is submitted that, if the interpretation put on section 76 (1) (h) by the petitioner is correct, then the most undesirable and unacceptable consequences will follow. It will make nonsense of sections 43 (a) and 46 (1) both of the Constitution under which an incumbent President can seek re-election as a person qualified to be elected as a member of Parliament by virtue of section 41 (d) as read with section 75, also of the Constitution. In other words, if we were to accept the petitioner’s interpretation that a President, Vice-President, Minister or Deputy Minster are each no longer qualified for election as a Member of Parliament while holding office as such, then, for instance, the president who is by virtue of section 46 (1) and section 43 entitled to seek re-election within the last 4 months of his first term, will no longer be able to do so.

But the learned Mr. Berewa has not regarded his conclusions in the context of prevailing common law on the consequences in the interpretation of Section 75 as the intention of Parliament to disqualify the office of the Vice Presidency. The courts have declared thus:

It is generally regarded as permissible to consider the consequences; of a proposed interpretation of a statute, where the act is ambiguous in terms and fairly susceptible of two constructions.; Under such circumstances, it is presumed that undesirable consequences were not intended instead, it is presumed that the statute was intended to have the most beneficial operation that the language permits.; A construction of which the statute is fairly susceptible is favored which will avoid all objectionable,; mischievous,; indefensible; wrongful,; evil, ;and injurious consequences;

On the other hand, where a statute is so plain and unambiguous that it is not susceptible of more than one construction, courts construing the same should not be concerned with the consequences resulting therefrom; The undesirable consequences do not justify a departure from the terms of the act as written.;

In such case, the consequences, if objectionable, can only be avoided by a change of the law itself, to be effected by the legislature, and not by judicial action in the guise of interpretation; Commissioner of Immigration of Port of New York v. Gottlieb, 265 U.S. 310, 44 S. Ct. 528, 68 L. Ed. 1031 (1924); Naum v. Naum, 101 N.H. 367, 143 A.2d 424, 65 A.L.R.2d 1130 (1958); Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918) C.I.R. v. Asphalt Products Co., Inc., 482 U.S. 117, 107 S. Ct. 2275, 96 L. Ed. 2d 97 (1987); In re Jessup, 81 Cal. 408, 22 P. 1028 (1889).Walsh v. State, 33 Del. 514, 139 A. 257, 56 A.L.R. 810 (1927); Cameron v. State Highway Commission, 188 N.C. 84, 123 S.E. 465 (1924).

Leone: The learned Mr. Berewa continues to ignore the common law rules on interpreting statutes. He wants to adapt the courts to himself instead of the other way around. But what else remains of this rebuttal coming down like Humty Dumpty from the wall?

Sierra: The learned Mr. Berewa says with resignation after much labour after the PMDC Petitioner,

"The Constitution certainly could not have intended or contemplated this situation which will be inconsistent and directly negating section 46 (1). Accordingly, the petition must for this additional reason be rejected as being founded upon a wrong interpretation of section 76 (1) (h) of the Constitution."

Leone: I see a lament in that conclusion which proves the unabated quest by the learned Mr. Berewa to continue relying on sections, clauses and provisos to regard the Section 76 disqualification to be read in his likeness instead of in the manner clearly intended by Parliament. Accordingly, the argument between the PMDC Petitioner and Solomon Berewa is the common tension in constitutional interpretation. It is a proposition concerning the choice of interpretation in the context of DE LEGE LATA - what the law is as opposed to what the law ought to be, DE LEGE FERENDA

Sierra: That is still true of his argument. But the courts have been quite lucid on this point on inconsistencies in reading statutes or constitutions:

Whenever language is not explicit, or admits of doubt, it is presumed that it is intended to be in accordance with the acknowledged principles of justice and liberty, even though, according to some views, this would require a deviation from the strict letter. A constitutional provision should receive a fair and liberal construction, not only according to its letter, but also to its true spirit and the general purpose of its enactment, and the interpretation of constitutional principles must not be too literal. In interpreting constitutional provisions, the courts should consider the substance of things, rather than mere matters of form or of technical procedure. In the interpretation of constitutional provisions, it is also true that words are often limited and restrained to a scope and effect somewhat narrower than their literal import on a presumption against an intent to interfere with or innovate upon well-established and generally recognized rules and principles of public policy not expressly abolished.

On the other hand, although the spirit and true meaning of a constitution will govern in its construction, they must be very apparent to overrule words actually used therein. Thus, a case falling within the words of a constitutional provision must also be within its operation, unless there is something in the literal construction so obviously absurd, mischievous, or repugnant to the general spirit of the constitutional instrument as to justify an exception. The spirit of a constitution cannot consist of mere sophistry or fanciful or conjectural theory, but must be found in those implications and intendments which clearly flow from the express mandates of the constitution as considered in the light of circumstances and historical events leading up to its adoption. (State v. Linares, 232 Conn. 345, 655 A.2d 737 (1995). Cohens v. State of Virginia, 19 U.S. 264, 5 L. Ed. 257 (1821). Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 4 L. Ed. 629 (1819); Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400 (1955). Sullivan v. City of Tampa, 101 Fla. 298, 134 So. 211 (1931).

Leone: The learned Mr. Berewa introduced various discordant readings of Section 76 so much so that he saw repugnance, inconsistence and undesirable consequences were the Commission to give a plain meaning reading to the section in controversy. Mr. Berewa has forgotten that the 1991 Constitutional provisions hammered on the anvil of intrigue, pragmatism and compromise and sometimes on the lack of ability to write coherently. Parliamentarians are not grammarians who write felicitous sentences as many courts have observed. As Chancellor James Kent reminds us on the frame of mind of lawgivers in the circumstances which educed the 1991 constitution:

"The true meaning of the statute is generally and properly to be sought from the body of the act itself. But such is the imperfection of human language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms as to secure it from ambiguous expressions, and from all doubt and criticism upon its meaning. It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute, taken and compared together. (a) The real intention, when accurately ascertained, will always prevail over the literal sense of terms." (b) and (a) Co. Litt. 381, a; Marshall, C. J., 12 Wheaton, 332; Mason v. Finch, 2 Scam. 224. (b) Thompson, C. J., in The People v. Utica Ins. Co., 15 Johns.380; Whitney v.Whitney, 14 Mass. 92.

Sierra: Indeed the perplexity the learned Mr. Berewa encountered in reading various sections often accompanied by contradictions and inconsistencies are natural to the circumstances described by Chancellor James Kent. It is clear from comparing the constitutions since 1961 to the present, that Parliament when it intended to disqualify a class, a person or an office from eligibility for membership of Parliament, it so stated. Chancellor James Kent in regarding statutes of the nature of the 1991 Constitution framed after a long history of being faithful to disqualification which did not include officials such as the Vice President, it would be inevitable that a hullabaloo will arise someday about meaning:

"Various and discordant readings, glosses, and commentaries will inevitably arise in the progress of time, and, perhaps, as often from the want of skill and talent in those who comment, as in those who make the law. Though the French codes digested under the revolutionary authority are distinguished for sententious brevity, there are numerous volumes of French reports already extant, upon doubtful and difficult questions arising within a few years after those codes were promulgated."

Party Leadership And Eligibility To Sit In Parliament

Sierra: The history of the now infamous Section 76 seems to elude those in the controversy on the pivot of the question whether the Vice Presidency is an archetypical office disqualified by the 1991 Constitution. The question presented by the PMDC Petitioner is lucid. It proceeds from the plain meaning of the constitution and based on the legislative history of exceptions. Party Leaders were invariably members of Parliament in the Parliamentary democracy we acquired from our colonial administrations. The Party Leader was Prime Minister and thus, the Constitution did not disqualify him to sit in Parliament. His Ministers were equally qualified unless they suffered disabilities enumerated under the Disqualification provision in the Constitution.

Leone: Your analysis is compelling concerning the disqualification of the office of Vice President. I must indulge you now in a matter concerning the disqualification of any party leader not eligible for election to Parliament. Both the PMDC Petitioner and the learned Mr. Berewa forgot to mention that besides the two provisions they cited about the seeming disqualification of putative party leaders who are not otherwise qualified to be elected to Parliament, in both the 1991 Constitution and the Political Parties Act, a third legal authority exists in the Electoral Laws Act 2002 as may be seen in the enumeration below:

1991 CONSTITUTION (Act No. 6 of 1991:): Section 35(4) of the Constitution of Sierra Leone Act No.6 of 1991, "No Political Party shall have as a Leader a person who is not qualified to be elected as a Member of Parliament.

POLITICAL PARTIES ACT No. 3 of 2002 - 14(1) - "A Political Party shall not have as a founding member or as a leader of the party or a member of its executive body whether national or otherwise, a person who is not qualified to be elected as a member of Parliament under the Constitution."

ELECTORAL LAWS ACT 2002 - Section 29. (1) and (2): "No person shall stand as a candidate in a presidential election if he is not a candidate nominated by a political party. (2) A person is not qualified to be nominated as a candidate in a presidential election unless he is otherwise qualified to be elected as a Member of Parliament."

In looking at the above listed requirements, there is compelling reason to believe that Parliament intended to ensure the eligibility of leaders of political parties TO QUALIFY. President was an exception to the burden of disqualification in Section 76, it would have so provided in the exception clause as she has done for more than a generation of constitutionalism. The history of the disqualification clause beginning in the 1961 constitution at Section 32 gives us a clue to the intention of Parliament. The seminal section 32 in 1961 and subsequent sections of disqualification in the 1978 constitution and even in the aborted NPRC constitution, the intent of Parliament is clear because the disqualification clauses invariably provided exceptions in sub-sections.

Mr.Berewa has nary an idea that in democracies, controversies invariably loom over interpretation of every section of the constitution. Democracies improve their constitutions in changing societies as the people are free to question the law that governs them. For example, Section 76 like Section 44 of the Australian Constitution has been an object of controversy over disqualification of certain members of society and government officials.

Sierra: But while we became a republican government in 1971, we remained tethered to the relic of colonial constitutionalism by importing into every new constitution most of the provisions of the old ones. This method of constitution-making is at the heart of the present controversy. On the one hand, the Vice President is disqualified to be a member of Parliament. But in other sections of the constitution a Party Leader must otherwise be qualified to be qualified to be member of Parliament. It presents a Gordian Knot confounding the learned Mr. Berewa but an easy proposition to loosen the knot by plain meaning. The inconsistency was deliberate. Those desiring to lead political parties are not all sitting vice presidents and the law does not affect them.

Leone: A sitting Vice President, who hastens, to an early nominating convention falls into the snare of the tensions between Sections 76 and 34. It would be have been untenable on the eve of an election for opponents of Mr. Berewa to petition his eligibility to hold party leadership while President Kabbah was still the nominal Leader of the SLPP. In the offing of the Makeni Convention, the SLPP should have thought of the exigencies of electing a new Party Leader who is the Vice President while the existing President psychologically remained the Head of the SLPP for all practical purposes.

Let us consider the following hypothetical to elucidate the point we are making. What if Dr. Joe Demby, aspired to the Presidency and challenged President Kabbah for party leadership while President Kabbah also entertained a re-election bid? If the convention were held two years before the election, would the national delegates of the SLPP have chosen Dr. Demby as party leader and stripped President Kabbah of SLPP party leadership had Dr. Demby won the nomination? Thus, the tensions between Sections 76 and 34 come into play when certain political variables come into play. In this fashion, the framers of the 1991 Constitution did not foresee a Vice President taking over party leadership too early in the electoral process and thereby, running into questions of disqualification for membership for Parliament. The choreographers of the Makeni Convention assumed, did not look more closely, at what lurked at the conjunction of an early convention and constitutional eligibility. They were too much in haste to practice the quintessential politics of Sierra Leone and extra-constitutionally.

Sierra: More than this, no Vice President in the history of Sierra Leonean politics has ever contested the presidency. There being no precedent to guide those in the present controversy, the plain meaning interpretation looms like a nimbus cloud. What is more in this controversy is that Parliament has been consistent since 1991 in requiring that the Party Leader be eligible for membership of Parliament. In two paramount sections, the Constitution glaringly and stoutly requires that a Party Leader be eligible for membership of Parliament. In a third place Parliament emphasizes what it has intended since 1991 by requiring that an aspirant for the nomination to be elected President be otherwise eligible to be a member of Parliament.

Leone: We must repair to the imprudent and tenuous judgment of the Political Parties Registration Commission, summarily reached in a cavalier manner which betrays the commitment of that Commission to the difficult task they recently shirked.

THE Wayward Separation Of Powers Argument

Sierra: Before analysing the Commission’s judgment, let us review Mr. Berewa’s interposition that the doctrine of separation of powers as the rationale behind Parliament’s disqualification of the office of Vice President. The doctrine appears as the pivot around which revolves Mr. Berewa’s central argument. To that end, he sallies forth:

"in the case of the President, Vice-President, a Minister or a Deputy Minister, far from section 76 (1) (h) saying that they are each generally disqualified from election as a Member of Parliament, which will be inconsistent with section 75 of the Constitution, as well as a number of other provisions of the Constitution, such as section 41 (d) as read with section 46, what that paragraph is saying is to state only the particular occasion or situation in which they will each be so disqualified, namely only when they actually seek to be elected to Parliament, while remaining President, Vice-President, Minister or Deputy Minister. They are in that case excluded or disqualified from the membership of Parliament because of the principle or doctrine of the separation of powers upon which the Constitution is based and which operates to prohibit the executive and legislative powers of the State from being vested in the same authority or arm of the Government. In other words section 76 (1) (h) only operates to disqualify the President and Vice-President among other members of the Executive, from seeking membership of Parliament while in office as such, and not otherwise."

Leone: The doctrine’s place in Mr. Berewa’s rebuttal is curious. It is axiomatic in the 1991 Constitution that the President is a Member of Parliament in accordance with the Doctrine of Collegiality. The doctrine is inapplicable to the President because some of its functions are fused with those of the legislators. But why did Parliament include the office of Vice President among people such as criminals and bankrupts?

Sierra: Parliament hitherto excepted State Ministers and the Vice President in a separate clause so that it is clearly understood that they were eligible. Why did Parliament fail to place the office of the Vice President in the exception proviso?

Sierra: The Commission misrepresented its role in the election process when it arrogated this serious matter to its inferior domain. The Commission’s judgment proves it least understands constitutional interpretation or even the doctrine of separation of powers:

"As an ordinary citizen, Solomon Ekuma Berewa is qualified to become a member of parliament. But while serving as Vice President of the Republic of Sierra Leone, he cannot become a member of parliament at the same time, this is so because of the existence of the separation of powers; as no one individual citizen can become a member of any two or all three arms of government simultaneously, that is the Legislature which comprises the Speaker of Parliament and Members of Parliament, the Executive comprising the President, Vice President and Cabinet, the judiciary comprising the Chief Justice and members of the Superior Court of Judicature... Because of the aforementioned, the PPRC is of the view that Berewa is qualified to contest for the office of the presidency of the republic of Sierra Leone."

Leone: It is an ignorant usurpation of the authority from the Supreme Court of Sierra Leone. The constitution glaringly states in Section 124(1)(a) that the Supreme Court has exclusive original jurisdiction "in all matters relating to the enforcement or interpretation of any provision of this Constitution." Small whether the Commission extent and limitation of the doctrine.

The principle of separation of powers has been developed by writers as far back as Aristotle, who, writing in the 4th century B.C., recognized that the "rule of a master is not a constitutional rule," and that government has three functions. The classic formulation of the theory of separation of powers comes from the writings of the 18th-century philosopher the Baron de Montesquieu. In his 1752 work L’Esprit des Lois -The Spirit of the Laws, he explained that there are three functions of government and three main organs of government.

Sierra: Let me elucidate the point you are making. The separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. This same principle is applied in non-political realms under the term separation of duties. Montesquieu proposed division of political power between an executive, a legislature, and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch is also able to place limits on the power exerted by the other branches. The doctrine of Separation of Powers as derived from the Westminster Systems which Sierra Leone acquired from the English colonial government tradition needs to be explained to the learned Mr. Berewa.

Leone: The Westminster System of parliamentary representation can be traced back to 13th Century England. In 1295 King Edward I summoned the Model Parliament, generally regarded as the first representative assembly, to Westminster. Blackstone established the doctrine in his Commentaries in the English legal system in a much limited manner which has drawn much criticism from legal scholars to say that the British Separation of Powers doctrine and the variation practised in Sierra Leone is unlike the standard doctrine seen in most democracies. This very important point eluded the sorry rebuttal of the learned Mr. Berewa and to a greater extent by the incompetent Judgment of the Political Parties Registration Commission:

"Your sentiments are writ large in the Commonwealth courts and in legal commentaries of legal scholars. As the great British constitutional theorist Dr Geoffrey Marshall, remarked on the principle of the separation of powers,

[it] is infected with so much imprecision and inconsistency that it may be counted as little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds."

G. Marshall, Constitutional Theory (1971), 124 2 de Smith and Brazier., Constitutional and Administrative Law, 6th ed, (London, Penguin Books, 1989), p.19

Sierra: The learned Mr. Berewa strenuously argues with sophistry that the doctrine of separation of powers belies the disqualification of Ministers from being elected members of Parliament. But he forgets that the constitution of Sierra Leone did not frame a classical separation of powers system. Rather, the Executive branch in Sierra Leone is fused to Parliament in a similar manner that inheres in Parliamentary systems where the Executive - the Prime Minister or President is a colleague of Parliament. The Doctrine of Collegiality is stated thus:

"There shall be a legislature of Sierra Leone which shall be known as Parliament, and shall consist of the President, the Speaker and Members of Parliament" (Section 73 (1).

Leone: But does not the learned Mr. Berewa understand that the Doctrine of Collegiality is underscored when every law enacted by Parliament is subscribed to as being "enacted by the President and Members of Parliament in this present Parliament assembled." This indication signals the collegiality between Parliament and the President although Parliament enjoys the legislative competence to make the laws of Sierra Leone. The doctrine of collegiality also proceeds from the Cabinet presenting Bills in Parliament on behalf of the President in the same manner Parliament conducts business under a Parliamentary democracy where Ministers serve as Members of Parliament and on the Cabinet such as we once practised under the West Minster system engendered by the British system in Sierra Leone from the colonial epoch.

Sierra: That is to say, while Sierra Leone became a Republican system of government and there appeared a seeming separation of the President from Parliament with different functions and elections, a relic of the Westminster system remained in place with the President and his Cabinet being colleagues of Parliament in a manner unlike seen in pure republican systems such as the United States. This notion of collegiality has also been underscored by making the President and State Ministers eligible for election to Parliament in the 1961 and the 1978 constitutions although the 1961 constitution warrants a Parliamentary democracy while the 1978 constitution fashions a Presidential system.

Leone: Your sentiments are in accord with the fact that in seeking to separate the President and Vice President from eligibility from being members of Parliament, the 1991 Constitution amended Section 45 of the 1978 constitution and excluded the President, Vice President and State Ministers from the eligibility they hitherto enjoyed since 1961.

Sierra: That the Judicial branch of government should be independent has been a bane of our system and when the Political Parties Commission incompetently discussed the PMDC Petition and grounds its Judgment on Separation of Powers in a shallow ruling, a want knowledge in the doctrine becomes self-evident. As Chancellor Kent made the point in his Commentaries on the Constitution of the United States,

"An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the statute upon the same subject when it latter."

Leone: Small wonder, whether the Political Parties Registration Commission when it arrogated the wholesome task of interpreting the Constitution of Sierra Leone in place of the Supreme Court whether it heeded Chancellor Kent at all?

Final Deliberations

Leone: Mr. Berewa after wandering in the Constitution for meaning concludes that frolic with self-congratulation that he has done a greater job at interpreting the disqualification clause more than the PMDC Petitioner thus:

"It will be noticed that I have given exhaustive response to the referred petition. I have even repeated and restated elementary legal and constitutional principles which every lawyer should know.I have done so in order to explode the error manifest in that petition and to put an end to the much trumpeted issue of my not being qualified to hold the office of Leader of the SLPP, a Political Party."
Do you agree with this tendentious conclusion?

Leone: But did Mr. Berewa give an "exhaustive response to the referred petition"? The pitfalls in Mr. Berewa’s rebuttal make his grave errors incandescent to see his enfeebled argument. No interpretation of Section 76 on disqualification will suffice without the consideration of the clause bearing the paramount exception. Thus when Section 76 (1) (h) declares the disqualification which forms the PMDC Petition, :

"No person shall be qualified for election as a Member of Parliament if he is for the time being the President, the Vice-President, a Minister or a Deputy Minister under the provisions of this Constitution.."

The exception to Section 76 (1) (h), overlooked by the learned Mr. Berewa is this:

A person shall not be disqualified for election as a Member of Parliament under paragraph (b) of subsection (1) by reason only that he holds the office of member of a Chiefdom Council, member of a Local Court or member of any body corporate established by or under any of the following laws, that is to say, the Freetown Municipality Act, the Chiefdom Councils Act, the Rural Area Act, the District Councils Act, the Sherbro Urban District Council Act, the Bo Town Council Act, and the Townships Act or any law amending or replacing any of those laws@ (Section 76 (4).

This exception is what every court or the Political Parties Commission will look for after reading Section 76. The exception is notable because it is the same in language and scheme from Section 32 of the 1961 Constitution and Section 45 of the 1978 Constitution.The exception is curious also for the fact that the NPRC Constitution carries the same qualification as its major exception.

It is axiomatic that when Parliament repeats a clause from one constitution or statute to another, its meaning remains the same. This contention is based on settled case law on statutory or constitutional interpretation in all editions of Maxwell, Craies and Sutherland the noted authorities on statutory interpretation.

The bane of the 1991 Constitution disqualification clause at Section 76 is that unlike all previous constitutions making the Prime Minister, the Vice President and State Ministers eligible for membership of Parliament, Section 76 (1) (h), expressly disqualified the Vice President. When we look at the exception clause at Section 76 (4), the office of Vice President is not included. Accordingly, Parliament intended to disqualify the office of Vice President.

Sierra: I take it from our deliberations here on this seaside that while the PMDC Petitioner was not quite deft at the manner of his Petition, his Matter has legal basis. The Political Parties Commission failed to moot this seminal issue as a guiding doctrine for the political parties to ensure that they select qualified men and women who meet the constitutional and statutory requirements. It is left with the Supreme Court to properly dispose of the issue.

Leone: I have heard that this same issue is before the Supreme Court for judicial review actuated by Chief Hinga Norman. The Court might pre-empt the Commission and rule on the matter. In doing so, one hopes the Court upholds the rule of law and does so with the governing precedents in other apex courts, perhaps with a direction to Parliament to clean up Section 76 for plain meaning sceptics like the learned Mr. Berewa.

Sierra: May I say the last word?

Leone: By all means with your grace.

Sierra: I am delighted you conjoined me in this discussion to calm the tension between the PMDC proposition of de lege lata - what the law is as opposed to Mr. Berewa’s interposition of what the law ought to be - de lege ferenda. The learned Mr. Berewa’s panache with the Lincoln College’s Case to read the whole constitution for meaning, together with Lord Coke’s reference to the Ex Visceribus Actus rule designed to enter the guts or the innermost parts of a statute to trump meaning pale in the shadow of your analysis. The evening is still lovely, we must take advantage of its alluring charm and yield to the temptation it holds for us tonight. Shall we? They depart as they leave the inexorable ebbing of the Atlantic ocean behind them.