Constitutional Review: don’t throw the baby out with the bath water
As Sierra Leone grapples with the review of the 1991 constitution, it is pertinent that we seize the opportunity to bring our laws up to meet with the challenges and realities of the 21st century. While we do that, however, we must make sure that the new document does not jettison age-attested customs and traditions that make us the unique, cultured, proud and historical people that we are. (Photo: Zainab Tunkara Clarkson, author)
The Constitutional Review Committee has been set up and the process that some have described as ‘making the 1991Constitution fit for purpose’ has already started. The Ombudsman, Justice Cowan, who is also a former Speaker of Parliament, was appointed to Chair the eighty-member Committee and it was launched with much fan fare on July 31 by no less a person than President Koroma himself.
Those Sierra Leoneans who were born in the 1960s or earlier are used to the idea of changing the entire constitution whatever the occasion (Independence, The Republic, One Party etc) but for the majority of us Act No. 6 of 1991, with all its flaws, has been the only ‘Supreme Law’ we have known. I therefore thank (and congratulate) the Government for giving my generation a limited but very rare opportunity to contribute to the Constitution.
Generally, in ‘stable’ democracies, once a constitution is enacted there can hardly be a chance to make wholesale changes to the extent that we are attempting now. After the Committee completes its task and the amended document is passed in the mandatory referendum we are back at the mercy of the powers that be at the Law Courts Building, with their sense of superiority which is as false as the awkward wig on their heads, to tell us what we MEANT to say….
I have been astonished by some of the recommendations I have heard so far. They range from localizing the “Swiss Model” which is being promoted by Dr. Omodele Jones and his Inclusive National Conversation (TINC-SL), to abolishing the Constitution which will make us a ‘Constitutionless’ state (as I have been led to believe exists in the UK) or as some stranger suggested in a taxi ‘why not just adopt the Holy Quran and apply Sharia Law – after all we are a Muslim State and it will save us the cost of the entire process of reviewing this one’. All with good intentions I suppose.
At this point I will suggest that, in our zealousness to get to ‘The Promise Land’, let us consider the good advice that says “do not throw out the baby with the bath water”. I am no constitutional expert and cannot argue the merit or demerit of whatever models others would recommend for us. Besides, it is simply their right to do so. However, in my view, our problems emanate not from the model of government or constitutional framework de jure. Things have not always been this bad yet the current Constitution is not quite dissimilar to, say, the 1961 Constitution save for the fact that the former is for a Republic (with an Executive President) and its authors had incorporated into it some of the undesirable vestiges of its precursor – the One Party State.
If you replace Governor-General/Prime Minister with President in the 1961 Constitution and then hide the title of the two documents, I will bet you that most people would not be able to point out the 1991 Constitution. Also, if our economic and social indicators are a reflection of how well the legal framework works for us, as some would have us believe, then the Constitution of the 1960s served unreasonably well. So I do not think we need a new experiment; we tried that twice in the 1970s – it failed both times, with disastrous consequences in the case of the latter. As those who are keenly interested in the issue would tell you the One Party has worked for others (Botswana and Singapore are both effectively one party States) but not us.
What guarantee do we have now that any other Constitutional Model, be it Swiss, Saudi, or South African will be more successful? Ours, as it is, may not be entirely suitable to meet our current and future needs but, in my humble opinion, what we need now in the constitution is broadly:
- To ensure internal consistency;
- To reduce the room for discretion and abuse by clearly defining roles, relationships, authority, privileges and standards;
- To make constitutional some of the recent legislative and institutional changes (e.g. the Anti-corruption Act 2008, Local Government Act 2004, and various economic and financial management legislations/institutions) that were effected as a necessary response to our immediate post-war situation and short to medium-term developmental aspirations;
- To create additional institutions, or provide for such, for the future base on the challenges anticipated ahead;
- To broaden the space for participation in governance and the economy;
- To set a minimum standard for the delivery of public services especially at the sub-national level;
- And to promote a sense of unity, equality, and fairness in all aspects of life among Sierra Leoneans of all backgrounds.
Without further ado let me make the following specific suggestions (some of them, for example part of 3, 5, 6 and 10, should be familiar to a lot of Sierra Leoneans).
(1) I will like the Constitution to define Sierra Leone’s geographic and administrative boundaries, in addition to defining its international boundaries as in the First Schedule, in the context of decentralization, to mean the13 Districts and 6 Municipalities/cities. Preferably, I will like us to have 14 Districts Councils if we can agree to divide Koinadugu into two administrative districts to give it the priority its huge size and difficult terrain deserves.
(2) Let it be stated in the Constitution that Freetown is the country’s ONLY Capital City – to avoid the Cold War-like rivalry between North (Makeni) and South (Bo Municipality) for the status of second Capital.
(3) Have two Chambers in Parliament; an Upper Chamber and a Lower Chamber. Let two-thirds of the members of the Upper Chamber be elected and the remaining one-third selected through a Quota System for qualified persons from smaller tribes like Kroos and Vais, for women so as to meet a desirable gender quota, the physically challenged, retired senior civil servants, and retired military and police officers with exemplary service records. The Lower Chamber should have more members than the Upper but less than that in the current Parliament and they must all be elected. We can adopt the present Parliament as the Lower Chamber by making the following changes:
(i) Move the 12 Paramount Chief Members to the Upper Chamber;
(ii) Take away the seats from the 6 Municipalities Bo, Bonthe, Freetown, Kenema, Koidu, and Makeni – e.g. the 16 MPs from Freetown;
(iii) Following from (ii) above, convert the Municipal Councils into purely Legislative Bodies, with representatives elected from each Ward in the Municipality, for their respective Municipalities. For that purpose, Freetown, for example, would have a Municipal Legislature with members elected from its49 Wards.
Currently, the Councils do not have full legislative powers. To enact Bye Laws they have to go through the Minister of Local Government and Parliament (as in section 170(7) (a) of the Constitution and section 92(2), (3), and (4) of the LGA 2004. That arrangement is inefficient. To give them total legislative powers we would have to amend section 170 of the Constitution.
There are significant disparities between the Urban and Rural councils. With the exception of Bonthe Town-York Island Municipality which has a population of fewer than 12,000 people the six municipalities have the largest population clusters. A conservative estimate of their population put it at about 1.5 million people (about 25% of the national).For instance, the population living in the area covered from Allentown to Portee (formerly East III) is about 70% of that of the entire Port Loko District. The average population growth rate of the municipalities’ is also higher than the national average. Their challenges in service delivery and regulations are therefore quite different from those of the rest of the country, sometimes requiring legislative instruments that should be drafted to their specific needs.
(iv) Following from (iii) above give the six Mayors Executive Powers; assisted by the Chief Administrator of the Municipality (section 20(1) of the LGA has already given councils executive powers);
(v) Also Following from (iii) above, any law passed by the Municipal Legislature must be subject to interpretation by the High Court and may be repealed by the Upper Chamber if it is deemed, liable to interpretation to the effect that it is, against any provision of the Constitution or contrary to the other Legislations of Sierra Leone.
(4)
Section 47 of the Local Government Act 2004, which sets a minimum standard of delivery of devolved services, should be adopted into the entrenched Chapter III of the Constitution. Chapter III of the Constitution protects the Fundamental Rights and Freedoms of the individual whereas Section 47(1) of the LGA states thus:
“Until and including the financial year ending in 2008, Parliament shall appropriate to local councils as a tied grant for each devolved service, at least that amount necessary to continue the operation and maintenance of that service at the standard to which it was provided in the year prior to its devolution.”
It was assumed that, based on the timelines set out in The Local Government (Assumption of Functions) Regulations 2004, by the end of 2008 all the functions outlined in the Third Schedule of the LGA would have been devolved both by law and in practice. Of relevance here is the latter part of section 47(1).Section 47(2) of the LGA however looks beyond 2008 as it states that:
“For the period thereafter, [meaning after 2008] Parliament shall appropriate to local councils the amount that enables the councils to provide those devolved services at an appropriate standard.”
It will be stating the obvious for me to say here that that baseline (2003 which is the year before the councils were created to the stipulated 2008 FY) no longer suffices. In my view, however, in addition to the practical demands of the national polity in present day Sierra Leone, section47 of the LGA, even if arbitrary and impractical in its choice of baseline standard, makes it obligatory on the Government to spread public investment across the country.
The insertion of ‘appropriate standard’ at the end of section 47(2) spoils the broth. Removing the specificity, even though no longer adequate for the purpose it was meant to serve, in section 47(1) for years post-2008 introduces a wide room for discretion on the part of the Central Government.
I would suggest that, to co-opt it into the Constitution, Section 47 of the LGA is rewritten to something to this effect:
Every year the Government must ensure that, except for the occurrence of an emergency situation such as a natural disaster, each of the 13 District Councils and 6 Municipalities must have access to public services, at least, to the level of coverage and quality of service it received in the fiscal year before the Government received its current five year mandate and parliament shall appropriate to the respective councils the amount needed to do so.
The reason for this recommendation is that since 2010 the predominantly World Bank funded Decentralized Service Delivery Programme (DSDP I and II) have been the largest single source of funding to Councils for devolved functions. One day the programme will fold up and it is looking likely that when that day come the Councils will still be dependent on transfers from the Central Government to sustain public service delivery at a reasonable standard at the sub-national level hence we need to depoliticize the issue by making it a Constitutional matter.
5. The right to access public information must be seen as a Human Right and must be protected as a Fundamental Right and with a subsection that provides for the creation of an Agency whose sole function will be to facilitate the individual’s access to such information.
(6) Every citizen must have the right to a Freehold on land anywhere in Sierra Leone and that right should be protected in the Constitution.
(7) The Anti-Corruption Commission, the National Assets Commission, and the Local Government Service Commission must all be made Constitutional Bodies, as is the case currently for the National Electoral Commission, Public Service Commission, Judicial and Legal Service Commission, and Political Party Registration Commission. Also, the funding and independence of the ACC in particular should be given the same level of protection accorded to the Audit Service (e.g. 119 (6) and
(8)Also, sections 152(1), 153(1) and 154(1) of the Constitution should be amended to give the ACC the powers to suspend (the operative term is ‘remove’) from office public officials it is investigating without having to go through the PSC or the President. Currently, the power to discipline or suspend certain public officers is reposed by the Constitution on the PSC and, for those not covered in sec. 152(1) or delegated to the PSC, State House.
(9) Do not take away the President’s executive powers to appoint Cabinet as the UDM leader Mohamed Bangura is suggesting but reduce the room for discretion and its abuse. We can do that by setting a minimum qualification to become a minister order than the broad reference to the qualification to be an MP. We may say to be a minister, for example, one must have served in the public service up to the level of Permanent Secretary (vote controller), or Chief Administrator in a Municipal Council, or retired from the RSLAF at the rank of Major/Colonel with an honorable record of service or managed a parastatal/private company that employs ‘X’number of persons and with an annual turnover of ‘Y%’ of the most recent budgetary allocation to the ministry he is being appointed to head etc. This will ease the pressure on the President to appoint people to cabinet positions just because they may have backed her party, financially or otherwise, during elections or that they are family friends or her life-long friends even though they may not have the necessary professional and managerial competence that the job requires.
Further, to identify the most glaring case of conflict of interest, it would be helpful if the Constitution is clearer on exactly what it means by ‘indirectly’ in section 56(3).Also, the powers of the President under Section 61 can be easily abused and there is evidence to that effect, a very recent occurrence too, at high financial cost and adverse consequences for our national unity so its application must be guided by the addition of a provision for appointment to such an office to be, at least, approved by Parliament even if the creation of the office itself need no such approval.
(10) The 55% threshold required in the Presidential election should be replaced with the more widely used 50%+1 votes, with the condition that the winner should have obtained at least 10% of the votes in each of the four regions.
(11) Overhaul Part VI (Finance). Section 110 – 119 (which covers ‘Finance’) is currently entrenched, that is none of these sections can be changed unless in a referendum. The changes should provide for (this is not an exhaustive list):
(i) the provision for the creation of a National Sovereign Wealth (NSW) Fund, in addition to the Consolidated Revenue Fund, wherein all revenues payable to the Central Government from natural resources should be deposited. The board of the Agency that manages this new Fund should include the Minority Leader in the Lower House, the Governor of BSL, and the Minister of Finance as members. Subsidiary legislation should be enacted, in addition to executive powers, to protect the operations of this Fund from adverse exposure either through bad media coverage, reckless risk-taken by the managers of the fund or any other means;
(ii) establish strict rules governing the withdrawal of funds or borrowing from the NSW Fund by Government or Municipalities/Councils – e.g. the Government or a Council may borrow from the Fund but must pay back the amount borrowed with interestbefore the end of its current mandate as a safeguard against fiscal irresponsibility and moral hazard;
(iii) (iii)in support of (4) above prescribe the basic elements to be considered for budgetary allocations to the respective councils (e.g. sec. 46(3), and 50(1)-(3) of the LGA can be easily abused) and the timing of intergovernmental transfers in respect of devolved functions – undisbursed funds should be regarded as debt owed to the councils (the central government may issue bonds in lieu of disbursement) and should be treated as part of the public debt (sec. 117);
(iv) (iv) who shall take the budget to parliament (currently, inset 112(1) it says the Minister of Finance shall “cause to be prepared and laid before Parliament” rather than simply say something like the Minister or her Deputy ‘shall present the budget to Parliament’
(v) give the ministry of finance incontestable control over fiscal policy – effective policy control over the National Revenue Authority (beyond merely setting revenue targets for the NRA and having the Authority report to the Ministry periodically how much is collected) and on all taxation issues, as much as it has over the Treasury Department and public expenditure.
Governance revolves around money and the Minister of Finance as ‘custodian’ of the budget and chief adviser to the President of fiscal matters must exclusively bear responsibility for all fiscal decisions (including loans and debts) by the Cabinet. So section 60(2) should also be amended by adding ‘d.’ which should give the Minister of Finance sufficient authority and responsibility over fiscal issues in cabinet as much as ‘c’ did for the Minister of Justice over legal matters.
Like any other developing nation, the main focus of our constitution has got to be to accelerate our socio-economic development. As we seek to industrialize, expand out productive capacity and bring our laws in line with what prevails in the developed world, we must not lose sight of the fact that making Sierra Leone an industrialized and developed OECD nation in content and spirit and a nation at ease with itself, is the ultimate goal
By Zainab Tunkara Clarkson-United Kingdom
About the author: Zainab is the CEO of Community Health Initiative Empowerment Foundation- CHIEF and a Founding partner of VOSL. She has a BA degree in Business and Marketing and a postgraduate MSc in International Development Management. Zainab has worked extensively in private, public and voluntary sector areas across UK in Senior Management position (non-profit sector). Zainab currently serves as a Chairlady and Trustee on the Board of the Greenwich Inclusion Project, as well as AFRUCA – Africans Unite against Child Abuse (UK) she is also a Board Member of Teach For Sierra Leone and Greenwich Black and Minority Ethnic Forum. Furthermore Zainab is the Director of Marketing and Gender/ Children Editor for Voices from the Diasporan Radio Show.
Stay with Sierra Express Media, for your trusted place in news!
© 2013, https:. All rights reserved.
