“THE CONSTITUTIONAL CONUNDRUM OF THE AGE OF RETIREMENT OF THE CHIEF JUSTICE”

By Francis Ben Kaifala

Age has the advantage of wisdom and the disadvantage of tiredness. Both the consideration of the wisdom that age brings and the tiredness that it can lead to are often in the minds of Lawmakers when drafting requirement for positions. Thomas Paine (1737-1809) wrote thus:

“When in countries that are called civilized, we see age going to the workhouse and youth to the gallows, something must be wrong in the system of government”.

Even though it is said in Biblical terms that the age of Methuselah has nothing to do with the Wisdom of Solomon, Constitutions around the World are permeated with age related criteria (sometimes based on experience in several occupations like Law and Accounting), age limitations for holding some offices, minimum age requirements, etc.

In a rather unprecedented move, by letter dated the 10th November 2014, age took the center stage in legal discourse when the Learned Commissioner of the Anti-corruption Commission particularly sought to clarify the interpretation of section 137(b) of the constitution in view of the age of the Honourable Chief Justice which states as follows:

“A person holding Office as a Judge of the Superior Court of Judicature –

1. May retire after attaining the age of 65
2. Shall vacate the office on attaining the age of 65”

It is firstly submitted that the Bar would have been a better independent body to proffer such an opinion considering the political fusion of the position of the Attorney-General and Minister of Justice. It is equally questionable that the ACC did not attach a copy of the birth certificate of the Chief Justice or such other proof of her age to their letter before making this unprecedented move which draws enormous attention to such a respectable office of the Chief Justice. Requesting such an important opinion in their role of investigating “integrity in public life”  needed more factual support, particularly when the raison d’être of the letter is the unequivocal claim that the sitting Chief Justice had attained the age of sixty-five since April 2014.

 The AG’S response rightly referred the ACC to the Supreme Court for interpretation under section 124 of the Constitution. His attempt however to proffer an opinion on the issue beyond this referral has left Lawyers asking more questions than having answers: The crux of the AG’S opinion is as follows:

“Following from the above, section 137 subsection (2) and (8) provide for the tenure of the judges of the superior courts of judicature and that does not expressly or necessarily include the Chief Justice’

In other words, because the Constitutional provision does not expressly provide for the age of retirement of the Chief Justice, the age requirement for judges does not apply to that office.

This position of the Attorney-General, with all due respect, leads to the following interpretational absurdities:

1. That the Chief Justice is not a judge of the Superior Courts of   Judicature of Sierra Leone even though she sits in all those courts.

1. That the Chief Justice, if a judge, can vacate as a judge at the age of 65 and still remain Chief Justice until otherwise removed from office.

1.  All other provisions which do not expressly mention the Chief Justice will not apply to the Chief Justice including remuneration of judges (section 138(1)), gratuities and pensions (section 138(2)), prohibition of holding of office of emolument (section 138(4)), the oath of office of Judges (section 139) and immunities of judges as they were not expressly stated to be applicable to the Chief Justice

1. That the Chief Justice can sit in the Superior Courts of Judicature on matters while at the same time not being “a judge”.

1. That a person can vacate office as a judge upon attaining the age of 65 and yet be eligible to be made Chief Justice.

Admitted that the office of the Chief Justice is Primus inter Pares, it is respectfully submitted that this cannot on the true construction of the Constitution mean that the above legal absurdities be factored into a constitutional interpretation. The effect will be ahistorical, contrary to the Principle of Harmonious Construction, and detrimental to the spirit and intent behind the Constitution. The Constitution being a concise document is usually interpreted based on the doctrine of harmonious Construction and where the specific provision would lead to reductio ad absurdium, the wider context should be looked at including the specific intent behind the provision.

To support my argument, section 135(1) of the Constitution which appears immediately above the two sections that were referred to the Learned Attorney-General for his opinion, states as follows:

“35(1) The president shall, acting on the advice of the Judicial and legal Service commission and subject to the approval of Parliament, appoint the Chief Justice by warrant under his hand. . .

35(2) The other Judges of the superior Court of Judicature shall be appointed by the president. . .”

The noun phrase “the other judges of the Superior Court of Judicature” in section 135(2), in respect of the appointment of judges other than the Chief Justice and immediately after the provision for the appointment of the Chief Justice clearly indicates that the Chief Justice is a judge of the Superior Court of Judicature. If that were not so, the Constitution’s drafters would not have used the phrase “other judges”.

By way of supporting authority, erudite Constitutional Lawyer, Former Attorney General and Minister of Justice, Former Vice President, and Former Chief Justice of Belize, Dr. Abdulai O. Conteh in his “Essays on the Sierra Leone’s Constitution, 1991” at chapter 11 reading from the Essay entitled “the Retirement, Sacking or Whatever of the Chief Justice and the Appointment of a new Chief Justice some Legal Conundrums” at page 116 to 117 had this to say:

“This of course, is not to say that judges, including the Chief Justice, once appointed shall never be removed from office. On the contrary, the constitution does contemplate and provide for the removal of judges, including the Chief Justice. Section 137 on the tenure of office of judges in its various provisions provides the reason, mechanisms and procedure for doing so”

Based on all the above, it is more plausible to hold that the intention of the drafters of the Constitution was that the Chief Justice, who in effect and law, is a judge for all intents and purposes, can vacate or be removed from office by reason of attaining the age of Sixty-Five.

Even history is not on the part of the Learned Attorney-General and Minister of Justice. Historically, several Chief Justices have been one way or the other sent on retirement based on age and that includes Justice C.O. E Cole, Hon. Livesey F. Luke, Hon Justice M.F Kutubu, and more recently Justice M.A Timbo. To hold that the Chief Justice is not a Judge of the Superior Court of Judicature is ahistorical, contrary to the doctrine of harmonious construction, an erosion of the spirit and intent behind the Constitution, and with respect, would  result in interpretational absurdities.

Francis Ben Kaifala Esq. is the Managing Partner in the Law Firm Kaifala, Kanneh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LL.M in Law & Economics from Queen Mary University of London. He is currently a Fulbright Scholar at the University of Texas at Austin pursuing the LL.M in Comparative Constitutional Law, Administrative Law & International Human Rights; He is also Human Rights Scholar with the Rapoport Center for Human Rights and Justice in Austin, Texas, United States of America.  Email: fkaifala@kaifalakannehandcolawsl.com