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To what extent was the new NEC boss a public officer?

14 August 2020 at 18:52 | 1376 views

Commentary

By Mohamed Kunowah Kiellow, The Netherlands

On the 20th of July 2020, State House announced that, ‘It has pleased His Excellency the President- Brig. Dr. Julius Maada Wonnie Bio to appoint Mohamed Kenewui Konneh (pictured) as Chairman and Chief Electoral Commissioner of National Electoral Commission (NEC), subject to the approval of Parliament”

This announcement gave rise to a heated debate as to whether the appointee has the constitutional qualification to bag this all-important position.

Before his appointment Mohamed Konneh was the Director of the government’s Financial Intelligence Unit where he had an A1 professional performance. Despite all the vast experience and professional performance at both national and international level, people are questioning the constitutionality of his appointment. Why?

Critics argue that the section 32 (4a and b) Act No 6 of the 1991 constitution in conjunction with Section 75(b) and 76(b) Act No 6 of the 1991 constitutions disqualifies Mohamed Konneh.

According to the critics, Mr Konneh ‘’is not qualified to be elected as a Member of Parliament because his name is not on the register of electors as required by section 75 (b) of the 1991 Constitution.’’ They further argue that ‘’he is disqualified under section 76(b) from being elected as a Member of Parliament as he is a “public officer” currently in the employ of the Financial Intelligence Unit (FIU) as its Director.’’

Therefore, he is disqualified to be a member of the Electoral Commission because he is not qualified to be a member of parliament and he was a public officer prior to his appointment

Is Mohamed Konneh a public officer?

In this article I will try to give an answer to this question. The other arguments put forward by the critics will not be treated in this article.

Section 76 Sub Section 1 (b) of the Constitution provides that no person shall be qualified for election as a Member of Parliament if he is a member of any Commission established under this Constitution or a member of the Armed Forces of the Republic, or a public officer, or an employee of a Public Corporation established by an Act of Parliament, or has been such a member, officer or employee within twelve months prior to the date on which he ceases to be elected to Parliament.
Sections 171 Sub Section 1, 3 and 4 of the Constitution gives clear picture as to who a Public Officer is referred to in Section 76 Sub Section 1(b) of the Constitution.
Section 171(1) defines Public Officer as a person holding or acting in a Public Office. A Public Office includes an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament.

A Public Officer works in the Public Service, and includes, according to Section 171(3) of the Constitution, unless expressly provided, service in the office of Chief Justice, a Justice of the Supreme Court, Justice of Appeal, Judge of the High Court or of the former Supreme Court or in the office of Judge of any other court established by Parliament being an office the emoluments attaching to which are paid out of the Consolidated Fund or any other public fund of Sierra Leone, and service in the office of a member of the Sierra Leone Police Force.

In the case between Abdul Sulaiman Marray Conteh and Osman Abdal Timbo, the High Court determined that ‘’In my view public service is not only limited to those referred to in Section 171 sub Section 3. It also includes those who receive ‘emoluments attaching to which are paid directly from the Consolidated Funds or directly out of money provided by Parliament.

For example, pursuant to Section 10(1) of the Public election Act 2012, the administrative and other expenses of the National Electoral Commission, including the salaries, allowances, gratuities and pensions of the members and staff of the Commission shall be a charge on the Consolidated Fund.

It follows from the above that all persons holding or acting in that public office (NEC) are public officers as stipulated in Section 76(1b) of The Constitution. If one strictly follows the definition given by Section 171(1) of the Constitution and the High Court, one will conclude that the re-appointment of Christiana Thorpe and the appointment of Nfa Alie Conteh as Chief Elections boss were unconstitutional. They were qualified to be the boss of NEC. The reason being that they were public officers holding public office at NEC, an office emoluments attaching to which are paid directly from the Consolidated Funds or directly out of money provided by Parliament.

However, Section 171 Sub Section 4 clearly excludes those who should not be affected by Section 76(1b) of the Constitution:

In this Constitution ‘’the public service’’ does not include service in the office of President, Vice-President, Speaker, Minister, Deputy Minister, Attorney-General and Minister of Justice, Deputy Speaker, Member of Parliament, or of any member of any Commission established by this Constitution, or any member of any council, board, panel, committee or other similar body (whether incorporated or not) established by or under any law, or in the office of any Paramount Chief, Chiefdom Councillor or member of a Local Court.

The National Electoral Commission was established by the 1991 Constitution of Sierra Leone; therefore, the members of the Commission are not affected by Section 76(1b) of the Constitution. Public service does not include service in the office of any member of any Commission established by the Constitution.

The Financial Intelligence Unit is not a Commission established by the Constitution. It was established by an Act of Parliament called The Anti-money Laundering and Combatting of Financing of Terrorism, 2012. It was established under Section 2 Sub Section 1 of the said Act. According to Section 2(2) of the Act, The Unit shall be a body corporate, having perpetual succession and capable of acquiring, holding and disposing of any property, whether movable or immovable, of suing and being sued in its corporate name and subject to this Act, of performing all such acts as bodies corporate may by law perform.

The President appoints the Director of FIU (Section 7 Sub Section 1, AML/CFT ACT 2012), subject to approval by Parliament (Section 1 Sub Section 2, AML/CFT ACT 2012).

Section 171(1) defines public officer as a person holding or acting in a public office. A public office includes an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament. Were the emoluments attached to the office of Mr Mohamed Konneh paid directly from the Consolidated fund of directly out of moneys provided by Parliament?

Section 9 of The Anti-money Laundering and Combating of Financing of Terrorism, 2012 provides that the activities of the Unit shall be financed by a fund consisting of–
(a) moneys appropriated by Parliament for the purposes of the Unit;
b) grants or gifts from any person or organization

There is nothing mentioned on the source of the Salaries of Director of FIU and other employees in the Act. This is different in the case of the Public Elections Act 2012, where in Section 10(1) is clearly provided that the administrative and other expenses of the National Electoral Commission, including the salaries, allowances, gratuities and pensions of the members and staff of the Commission shall be a charge on the Consolidated Fund. There is a great possibility that Mr Konneh was paid from the grants or gifts from any person or organisation, and not from moneys appropriated by Parliament for the purposes of the Unit.

Section 9 of The Anti-money Laundering and Combating of Financing of Terrorism, 2012 merely states that the activities of the Unit shall be financed by a fund consisting of moneys appropriated by Parliament for the purposes of the Unit and grants or gift from person or organisation.

Given that the emoluments attached to the office of Mr Mohamed Konneh was not paid directly from the Consolidated fund or directly out of moneys provided by Parliament, and possibly his emoluments were paid from the grants or gifts from any person or organisation, one can conclude that Mr Mohamed Konneh was not a public officer as defined in section 171(1). He is therefore not affected by Section 76(1b) of the Constitution.

Does Mr Konneh fall within the exemptions mentioned in Section 171(4) of the Constitution? Among those who are not affected by Section 76(1b) and mentioned in Section 171(4) are ‘any member of any council, board, panel, committee or other similar body (whether incorporated or not) established by or under any law.’
Section 3(1) of the Act provides that the governing body of the Unit shall be the Inter-Ministerial Committee to which the Director is the Secretary. This makes it evident that the Director is a member of the Committee. The Committee falls under the exemption listed in Section 171(4) because the Unit was established by an Act of Parliament, namely The Anti-money Laundering and Combating of Financing of Terrorism, 2012.

In conclusion, Mohamed Konneh is not a public officer. The emoluments attached to his post were not paid from the Consolidated funds or money paid from money provided by Parliament. Moreover, he is a member Committee of the Unit established by the Anti-money Laundering and Combating of Financing of Terrorism, 2012, and therefore falls under Section 171(4) of the Constitution.

Mohamed Kunowah Kiellow (photo) studied Law, specialising in Criminal Law and International Law at the Utrecht University School of Law. He also holds a post-graduate certificate in Law from University of East London. He wrote his master’s thesis on Immunities in International Criminal law. He works as a Human Rights and Policy consultant.

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