The Courts on Trial: The Case against the Existence of Judicial Independence in Sierra Leone

By: Francis Ben Kaifala Esq.
What generally constitutes Judicial independence has often generated scholarly debate among political Scientists and lawyers. Many argue that it does not exist in the sense that lawyers believe it – i.e. an independent judge that fairly and justly applies laws between litigants without external control. Others argue that judicial independence can exist to a certain degree. That qualification in the latter’s argument – degree of independence - defeats their point. The existence of judicial Independence in in Sierra Leone, when properly examined, is a figment of lawyers’ imagination. 

Often times, people conflate lack of independence to judges being bribed or influenced through bribery or some direct interferences – those are merely functions of lack of integrity by the judges and do not merit legal analysis. While, unfortunately, that too exists, it is not the focus of this article. 

Judicial independence can be divided into de jure and de facto independence.  De jure judicial independence refers to situations where the laws expressly make stipulation for the guarantee of judicial independence. De facto judicial independence refers to the phenomenon whereby judges are insulated from external controls and interferences, and they are able to decide cases independent of anyone’s direction. Where there is judicial independence in the true sense, judges decide cases based on what they believe, relying on their personal preferences, understanding of the facts, and the applicable laws; not on some extrinsic control or direction.

Section 120(4) of the 1991 Constitution of Sierra Leone guarantees an independent judiciary in the following words:
“In the exercise of its judicial functions, the Judiciary shall be subject to only this Constitution or any other law and shall not be subject to the control or direction of any other person or authority.”
For reasons below, this de jure guarantee of Judicial independence is useless. With such express provisions of the Constitution, one would expect that the judiciary would be independent and carry out its functions without fear or favor or deference to any other person or authority. However, it is surprising that since attaining independence in 1961, there is hardly any case that concerns the political interest of a sitting government that has ever been adjudged against the government’s known position, particularly by the Supreme Court. 

The courts balance this glaring evidence of lack of independence by ensuring that it takes care to pronounce popular decisions in some other cases that do not concern any of the core political interests of the regime in power. An example was the All People's Congress v Nasmos and Another (SC. MISC. APP .4/96) [1999] SLSC 3 (26 October 1999) where merely notifying the government before taking action against the state was decided against the state -  this led to the enactment of the State Proceedings Act in 2000.  Similarly, a few non-political civil cases have also been decided against the sitting government’s interest.

To prevent them from being determined on the merits, most “political” cases against the government are dismissed from the very beginning by the Supreme Court using an ever-shifting application of locus standi (the right to bring the case) doctrine and other objections as cover. Some cases never get assigned to a panel for hearing while others are indefinitely adjourned for judgement, even though, by the express provision of Sect 126 of the Constitution, cases ought to be decided within three (3) months after final submissions by counsel. 

Without them knowing or accepting it, and sometimes due to no fault of theirs, the Supreme Court judges are tacit allies of the government-of-the-day and are used as instruments of social control. This is why they cannot, by their decisions, go against the known position of the sitting government. They have helped successive regimes solidify actions they are unsure of. They carefully dismantle normative structures, like constitutional limitations, for the regime of the day by using illusive tools like the “purposive interpretation” (popularized in the Sam Sumana V. AG case) – an interpretative tool that allows judges to move away from the express words of a statute and rather focus on the law’s purpose - and other techniques to give clearance to often unlawful actions of the executive. Interpretative tools are not legally unacceptable but they have to be used fairly and justifiably within canonical limitations. 

This sad state of affairs has led successive regimes to disrespect the Constitution they swore to protect and confidently look to the Supreme Court for approval and not be let down. Many believe, and the ECOWAS Court has rightly confirmed, that the decision in Sam Sumana V. Attorney-General and Victor Foh (2015) was decided to favour the regime of the day by the law being clearly misapplied against the elected Vice president who was unlawfully sacked by the President. The same goes for the decision in Charles Francis Margai v. Solomon Ekuma Berewa (2005) where the issue of the resignation of a public officer 12-months prior to elections was decided to favour the sitting Vice President. To cover this glaring anomaly and help them maintain their relevance, they compensate society by seeming to be fair in some other spheres of decision-making in which the regime has no interest at all and the judge is not otherwise influenced by bribery or personal interest. 

Many normative structures in the Constitution itself facilitate the lack of judicial independence. These may include structures like power of appointment of judges, insecure tenures of judges, and control over their salaries, emoluments, budget, promotion, etc. In Sierra Leone, all these factors are controlled by the executive branch of government. For instance, Section 135 gives power to the president, acting on the advice of the Judicial and Legal Service Commission, to appoint the Chief Justice and all other judges. This provision leaves the appointment of judges squarely in the hands of the president - because by Section 53(3) of the Constitution, the President does not have to act on the advice of anyone. The President has a free hand in the appointment of judges (since approvals in Parliament are almost invariably a “rubber stamp” affair). While Presidents in other parts of the world may have appointment powers, they do so within set guidelines and rules and there are sufficient checks and balances to counter-abuse. That does not seem to be the case with Sierra Leone.

This de jure control by the President, unfortunately, makes the judges to owe their appointment to him. With that being the situation, there is a tacit agency relationship between the judges and the President who appoints them. By this, a president does not necessarily need to call or instruct the judge to gain favour from him. That ex-ante (before appointment) constraint makes the judge to feel obligated to the president and would want to satisfy or protect his interest whenever necessary. Sierra Leone’s constitutional framework for the appointment of judges is therefore a good example of a system that facilitates ex ante control, which betrays judicial independence.

Further, despite the guarantee of tenure by Section 137(1) of the Constitution, the practice in recent times has been for the President to order a sitting Chief Justice on “leave to retirement”, and in his place, appoints another. The president, in effect, unlawfully “dismisses” a sitting Chief Justices and no one challenges it – not even the judges themselves dare. This is what happened with Justice Ade Renner-Thomas (A brilliant Chief Justice who was doing a lot to reform the legal landscape at the time) after the assumption of President Ernest Bai Koroma in 2007. This situation has made the office of Chief Justice, though the most important, be the most insecure of all justices – because, regrettably, the entry and exit of the Chief Justice is controlled by the President. It would only make sense that Chief Justices ensure strict discipline among the ranks of judges so as not to embarrass the regime in order to protect their job – which makes them instruments of the regime in effect. 

Similarly, ex ante (after appointment) factors like the allocation of budgets of the judiciary, the salaries and emoluments of judges, their conditions of service and other benefits, and their promotion to higher bench are all controlled by the Executive branch. These collectively create latent controls on the judiciary. 

These systems of ex ante and ex post facto control mechanisms in the hands of the executive has made judges not to be willing to take the risk of attracting the anger of the sitting government. In fact, in the last 20 years, immediately after elections and a change of government, the new President sends the Chief Justice appointed by the previous regime on leave and in his place, appoints “his own” Chief Justice. It is now a way of cementing control on the Judiciary. 

As unconventional this may sound, Sierra Leone’s judiciary over the years has typified the positivist maxim, “Quod principi placuit, legis habet vigorem” - translated to mean, “that which pleases the ruler has the force of law”.  Our courts, particularly the Supreme Court (with all due respect to its past and present Learned Benchers among whom many command my respect), have been mostly instruments of social control at the hands of the regime in power. They are only as independent as the regime would want them to be. They have a limited sphere within which they can exercise independence, which lawyers and their clients sometimes benefit from; but such is not as broad and unfettered as conventional legal tutelage dictates. Until lawyers and judges collectively take conscientious steps to reverse this anomaly that threatens their occupations by constitutional amendment and work conscientiously to insulate judicial integrity, what is believed to be “judicial independence” will remain the figment of judges’ and lawyers’ imagination. 

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