E.B.K. Seeks Constitutional Interpretation

Lawyers representing the Former President of the Republic of Sierra Leone Dr Ernest Bai Koroma have filed a notice of application seeking reference to the Supreme Court, pursuant to section 124 (1)(a) & 124 (2) of the Constitution of Sierra Leone, 1991 for an interpretation of section 48(4); 147, 148(a)(b), and 149(4) of the Constitution of Sierra Leone, act no. 6 of 1991 and the Supreme Court Rules, 1982, statutory instrument no. 1 of 1982, rule 99.

“The former President, now Appellant in the matter of Dr Ernest Bai Koroma vs. Attorney-General and Minister of Justice, seeks a case reference to the Supreme Court by way of interpretation of Section 48(4), 147, 148(a)(b) and 149 of the Constitution, to determine scope, function and relationship; and on a true and proper construction, to determine the meaning and what constitutes the term ‘Proceedings’ under section 48(4).”

“More particularly, whether to subject a former President of the Republic of Sierra Leone, to Commission of Inquiry proceedings, for executive decisions taken while holding office, without the express waiver of Parliament is valid and efficacious in law. If answered in the negative, whether that renders a breach of section 48(4) and therefore null and void and ultra vires the constitution.”

This notice was filed by Joseph Fitzgerald Kamara (JFK) and partners whose address for service is at 42 Bathurst Street in Freetown. The notice further states that, “while there is judicial precedent showing that the provision of Section 48(4) is clear and unambiguous (See AHMED TEJAN KABBA vs. FIRETEX COMPANY (SL) LTD CIV.APP76/95), yet, the Presiding Judge, the Hon. Justice Gelaga-King, thought it fit for constitutional interpretation by way of a case reference to the Supreme Court. Being in the minority, the Case Reference was never pursued to the Supreme Court.”

It continues by clearly stating that, “The Hon. Justice A.B. Timbo, JA, (as he then was) in the same case above, opined that [“all that section 48(4) of the Constitution has done is to confer immunity on the Head of State, whilst he holds that office, against criminal or civil process in respect of anything done or omitted to be done by him whether in his official or private capacity”]. Regrettably, but with respect, the above statement is just a recital of the section, with no explanation as to the scope or true meaning of the terms as applied in the section.”

The notice also asks several questions including weather “on a true and proper construction of Section 48(4) of the Constitution, can it be said, that to subject a former President of the Republic of Sierra Leone, to Commission of Inquiry proceedings, for conduct during his tenure of office, without the express waiver by Resolution of Parliament, renders a breach of section 48(4) and therefore null and void and ultra vires the Constitution?”

It ends by calling for the matter between Dr. Ernest Bai Koroma vs. Attorney-General & Minister of Justice be stayed pending the reference to the Supreme Court by way of a Case Stated by this Honorable Court pursuant to the Supreme Court Rules, 1982, Statutory Instrument No. 1 of 1982, Rule 99.     

In 2019, three commissions of inquiry investigated the assets of vice presidents, ministers and heads of government agencies who served along with Koroma in the administration from 2007 to 2018.

The commission found Koroma wanting on several corruption allegations relating to his salaries, pension and income on investments which they claimed “far exceeds his total emoluments and legitimate earnings”.

The commission made several recommendations, among which were the forfeiture of properties to the state, the refund of monies allegedly misappropriated, while some issues were to be sent to the Anti-Corruption Commission for further investigation. The government accepted most of the recommendations from the commissions of inquiry, except the one to ban Persons of Interest from holding public office and political activities.