SLBA Responds to Dr. Blyden

Dear Dr. Blyden,

Response to Letter of 11 September 2009

This is to acknowledge receipt of your letter dated 11 September 2009 instant.  May I seize this opportunity to thank you and accept your best wishes, on behalf of the membership of the Sierra Leone Bar Association (“SLBA”), the executive, and on my own personal behalf.

There are three thorny, but yet, critical issues arising from your letter that needs attention and/or resolution.  I shall itemize these issues and attempt to address them individually for ease of reading.

Issue No. 1

That a letter issued from the office of the President, ‘flagrantly shows utter disrespect for the independence of the Sierra Leone Judiciary from the Executive arm of Government.”

Issue No. 2

Sierra Leone’s residents are “now living in a country whose presidency is assuming powers it does not legitimately possess; to the extent of even abrogating to itself the originating authority to announce when rulings are to be expected from the Supreme Court.”

Issue No. 3

The “re-arresting and detention of some illegal poachers who had been tried, convicted and penalized by the Judiciary but were re-arrested upon the desires of the Executive arm of Government and dragged again in front of the same judiciary.”

In response to both the first and second issues, it must be noted that a cornerstone principle or one of the fundamental pillars of democracy, is that the three arms of government should be kept separate.  To that extent, your comments receive our support and endorsement.  The SLBA will not sit silently by whilst any one arm of government usurps the role and functions of another arm.  The SLBA congratulates your vigilance on this matter.

The theory of Separation of Powers is vital but should not be interpreted as the complete insulation of the authorities who wield the powers.  I take the view that separation of powers includes cooperation and dialogue between and amongst the arms of government for the overall good of the nation.  The theory also implies the application of checks and balances.  This means that the organs of government monitor the behavior of each other, having the effect of keeping an even balance of power.

Upon careful reading of the impugn letter, and upon applying the plain and literal rule of interpretation, it is my considered opinion that the President has an overarching responsibility to the citizenry to allay their fears and provide answers to questions and situations that have been referred to him.  It seems to me therefore, that the announcement of a suggested judgment delivery date (“when the Supreme Court resumes sittings by mid-September”) is merely informational and does not constitute a mandatory stipulation.

In law, there’s a subtle distinction between mandatory and directory stipulations. Only mandatory manner and form requirements are binding.  Non-compliance with a directory requirement is intended to have no legal effect on validity, (BDA Private Limited v. Paul P. John & Others 2008 (37) PTC 41 (Del.)

Simply put, the Judiciary is not bound nor compelled by any stipulated date contained in the letter.  It should be noted also, that the Judiciary is not subject or answerable to neither the Executive nor the Legislature.  (Sec. 120 (3) Act. No. 6 of Sierra Leone 1991 Constitution)

Upon an objective analysis therefore, where the President shares with the people information he has on a question which has been specifically drawn to his attention, and which is clearly a concern for a given section of the citizenry, with all due respect, this cannot be characterized as interference nor to be interpreted as a compulsive order directed to the Judiciary.

Without gainsay, it cannot be denied that it would be best that the announcement of a judgment date should come from the Judiciary itself.  However, be that as it may, if the President on the other hand arbitrarily and on his own violation, imposed a date for the judgment on the judiciary, then my response would have been entirely different.

The above situation notwithstanding, please be assured that the SLBA denounces any act which has a tendency to extend executive power outside its prescribed boundaries.  Our interests (yours, and mine) and those of the entire nation coincide on the drive “to help (keep) Sierra Leone from sliding back into strife.”  In no mean way, the Separation of Powers will assist in this Endeavour.

On the third issue of the re-arresting and detention of some illegal poachers, I am unable to comment, as I am not privy to the entire background and therefore have no supporting evidence before me, to make an informed response.  Albeit, I have set up a three man investigative team, headed by no less a person that the Vice President of the Bar Association, Mr. Reginald Fynn, to inquire into the allegations of abuse of process.

Please be assured that the SLBA under my leadership will partner with the press and civil society to ensure the protection of fundamental human rights of the individual and the rule of law as enshrined under the Sierra Leone Constitution.  The SLBA will remain independent and free from undue political interference.

I thank you very much for raising these important issued and I look forward to continued collaboration between the press and the SLBA.  This in itself is a veritable exercise of democracy.

Yours faithfully

Joseph F. Kamara, Esq.

President Sierra Leone Bar Association

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