The Judiciary: Too important to be left to lawyers and Judges alone

Even in the midst of Ebola, the media over the past weeks has been dominated by discussion relating to the age of the Chief Justice and the interpretation of the 1991 constitution of Sierra Leone.  There are two principal views.  The view advanced by the Attorney-General and Minister of Justice is that the provisions of section 137 (2)(b) of the Constitution  states that a person holding office as a Judge of the Superior Court of Judicature shall vacate that office on attaining the age of sixty-five years does not apply to the Chief Justice. The contrary view is that the Chief Justice is like any other Judge of the Superior Court of Judicature and the provisions are applicable to the office as they are to any other judges.

There are many reasons why this issue is being pursued.  Genuinely some see it as a Constitutional matter; while few others see it as a way of settling scores and for others it is time to aspire for the position.  These considerations are however irrelevant.  What is important is that the views being expressed now including those of the Attorney-General and Minister of Justice are but mere opinions.  The Supreme Court remains the sole arbiter of all constitutional matters in Sierra Leone and unless the Supreme Court makes a determination on that we are all merely expressing our personal views.  Of course, the Chief Justice will not be on the panel of judges of the Supreme Court that will interpret this provision of the Constitution.

In 2002, when a similar Constitutional issue arose over the appointment of the Attorney-General and Minister of Justice without parliamentary approval even though the provisions of section 56 (2)(c) of the Constitution states that a person shall not be appointed a Minister or Deputy Minister unless his nomination is approved by Parliament, the Sierra Leone Bar Association went to court.  At the time, everybody thought that the Bar was right and the Attorney-General and Minister of Justice was wrong.  The Supreme Court held otherwise and concluded all arguments.  Today, the Attorney-General and Minister of Justice is the only minister who does not require parliamentary approval.  As the current Chief Justice is not the first Chief Justice to be in office after the age of 65, there is now a clear need for the Supreme Court to rule on the matter once and for all.

However, what is needed at present is not just a resolution on the issue of the age the Chief Justice to retire; but the Judiciary needs a wholesale reform.  Whilst the Supreme Court must remain the final arbiter of Constitutional matter in Sierra Leone, it must not be the sole arbiter.  If we are to develop a more vibrant Constitutional jurisprudence in Sierra Leone, other courts must be given jurisdiction to help interpret the Supreme Law of the land.

In its final report, the Truth and Reconciliation Commission stressed the importance of judicial independence.  It recommended that the ‘there is a need to broaden the representation on the Judicial and Legal Service Commission (JLSC), which appoints judges.  In addition to the existing representation, there ought to be representation from parliament and the law teaching profession.  At least a teacher of the law designated by Teachers of Law School from the University (ies) of Sierra Leonean; and at least three members from Parliament, one of whom must be a member of the official opposition, ought to be represented on the JLSC”.  The Commission further states that the way in which judges are appointed and subsequently promoted is essential to their independence.  It stated that ‘Judges must not be appointed for political reasons, but only for reasons of competence and political neutrality.  The public must have confidence that judges are chosen on merit and integrity, not as a reward for party service or as a tactic by the executive to ensure a friendly face on the bench.  The need for the judiciary to reflect broadly on the ethnic and gender composition of Sierra Leone must be considered when judicial officers are appointed.  Civil organizations should be brought into the appointment process.  Debates on appointments, outside of political and judicial circles, should be encouraged in the media and among academics.  The appointment process should consider experience and performance, vision and judicial philosophy of the nominees’.

None of these recommendations of the Truth and Reconciliation Commission have been implemented.  The Judicial and Legal Service Commission remains largely dominated by Judges.  There is a need to broaden this representation and bring more people into the Commission.  In addition, some countries the recruitment process of judges is public.  It is advertised, the public nominates and interviews are conducted publicly.  Our process remains largely secret.

The TRC called for the abolition of the practice of employing retired judges on contract and recommended that the retirement age of judges should be extended to seventy, without any possibility of extension.

These are all worthy recommendations which the government and the Constitutional Review Commission need to take into consideration.  The business of the law affects all like the other organs of governments, the general citizenry must be actively involved.  We must be active guardians of the Constitution.

I will argue and submit that the issue of the appointment of Chief Justice has been a controversial one since the mid 60’s when Sir Albert Margai appointed his close friend and Political colleague Grashon Collier as Chief Justice to replace Justice C.E.O Cole.

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