BY: Francis Ben Kaifala Esq.

The matter of unfairly balancing the privileges of citizens and the marginalization of those who are otherwise not entitled to certain benefits that flow from citizenship are a matter of common sense, not just law. The privileges that flow from citizenship have always made it a protected sovereign reserve both under municipal and international laws. In addition to providing a welcome “home”, it defines “political belonging” and the right to enfranchisement.  It creates the perfect union between political community, political identity and political practices. This is why section 27(4)(c), 27(5), and 27(1)(h) of the 1991 Constitution make it expressly clear that laws can be made that discriminate against persons that acquire citizenship by naturalization, can limit citizenship, and be discriminatory with regard to limiting persons from holding public office.

I have been carefully following the “debate” on the ability of dual citizens to hold certain elective positions ignited by a very short essay by Francis Gabiddon Esq. entitled “Sierra Leoneans with Dual Citizenship cannot be Members of Parliament”. The contentious part of that essay was as follows:

“Sierra Leoneans who hold dual citizenship are not allowed to contest in the election for membership of Parliament; either as a candidate for political party or as an independent candidate. . . dual citizens who take the risk of contesting for membership of Parliament and wins can have their victory invalidated by a successful petition by their opponents in the courts”

Mr. Gabiddon based this comment on the provisions of Section 76(1) of the Constitution which states as follows:

“No person shall be qualified for election as a Member of Parliament— if he is a naturalized citizen of Sierra Leone or is a citizen of a country other than Sierra Leone having become such a citizen voluntarily or is under a declaration of allegiance to such a country”

This provision, when read with Section 75 of the Constitution, limits eligibility for election as member of Parliament to only citizens that are (i) not naturalized citizens and (ii) do not hold citizenship of another country if the held that other citizenship “voluntarily or is under a declaration of allegiance to such a country”. In effect, it disqualifies any one holding dual citizenship from occupying any position that has eligibility-for-election-to-Parliament as one of its requirements. That includes Ministers, Speaker, Vice President and President.

However, Adrian Fisher Esq., in another essay entitled “Sierra Leoneans with Dual Citizenship Cannot be Members of Parliament: A Response” sought to rely on the Provision in Section 5 of the Sierra Leone Citizenship Amendment Act 2006 – which made holding dual citizenship unqualifiedly legal – to say that a progressive interpretation of Section 75 and 76 of the Constitution, in light of the said amendment, meant that Gabiddon was wrong in his conclusion. He contended very strongly that persons holding dual citizens can indeed be members of parliament even without renouncing one or all of the other citizenship held.

Mr. Fisher initially appeared to agree with Gabiddon but then went on to take a very wrong position as a foundation that made his article both misleading and legally unsound. He built his foundational premise as follows:

“it is safe to conclude as a matter of fact that at the time the 1991 Constitution was drafted and enacted, the concept of dual nationality or dual citizenship was not part of the laws of Sierra Leone and the concept had no basis in Sierra Leone Law.”

Nothing could be more ahistorical and factually preposterous than such an assertion. He makes the very ordinary English phrase “dual citizenship” to sound as though it has a specific character in law and has to “exist” before it could be contemplated. “Dual” simply means “two” and the phrase “dual citizenship” means “two citizenships”. How can anyone rightly opine that at the time the 1991 Constitution was drafted, no one contemplated the possibility of Sierra Leoneans holding two citizenships? Section 75 and 76 of the Constitution in actual fact go to expressly show that Parliament was aware that Sierra Leoneans in deed held dual citizenship and sought to exclude them from being able to be elected to Parliament. That the word “dual citizen” was not used cannot mean it did not have legal basis in Sierra Leone.

Adrian Fisher, from this ahistorical and legally unsupported premise, then went on to assert that the Sierra Leone Citizenship Amendment Act 2006 – a mere statute enacted by parliament, overrode the express provisions of Section 76 of the Constitution. Following a rather legally bizarre and incongruent analysis, Fisher concluded as follows:

“The enactment of Section 5 of the 2006 Amendment Act now places such citizens squarely within the provisions of Section 75 whilst removing them from Section 76”

How can a statutory amendment “remove” from a Constitutional provision in part or in whole without that amendment expressly being a Constitutional amendment? Similarly, Section 75 which Fisher relies on to draw such a conclusion is made expressly “subject to the provision in Section 76 of the Constitution”. They are therefore symbiotic and cannot be separated.

The rest turned on the purposive approach to statutory interpretation and wrongly sought to use the rationale of the Citizenship Amendment Act 2006 to determine the purpose of Section 76 of a Constitution that was drafted in 1991. This legal formula led him to conclude that dual citizens can hold citizenship in Sierra Leone – a position that is, with respect, as legally unsound as it is misleading.

That said, even Mr. Gabiddon’s conclusion that a person with dual citizenship cannot be elected to parliament or be minister is partly incorrect in so far as section 76 (1)(a) is limited to persons holding other citizenships “voluntarily” and who are otherwise under an “oath of allegiance to such a country”. A dual citizen can in fact be elected to parliament if he is a citizen of another country by birth or otherwise became such involuntarily without swearing to an oath of allegiance to that foreign country.

Apart from that little oversight by the Learned Francis Gabiddon Esq., Adrian Fisher Esq.’s response and position are with respect, incorrect, as he failed to recognise and apply a very elementary position of the law – that Section 171 (15) of the Constitution expressly states:

“The Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”

Assuming without conceding that there is an inconsistency between the 1991 Constitution and the Amendment of 2006, the Constitution prevails. But there is in fact no inconsistency as both under the constitution and the 2006 amendment, dual citizenship is allowed and a dual citizen can be elected to Parliament, provided:

1. His citizenship was not voluntary (in other words, by naturalization in that country)
2. Is not under an oath of allegiance to that other country

By Section 108(7) of the Constitution, any bill that amends the Constitution has to be tabled, debated, and expressly stated to be a Constitutional amendment. At no time was the Sierra Leone Citizenship Amendment Act 2006 tabled as a Constitutional Amendment.  That then means that whatever was done did not affect the generality and effect of Section 75 and 76 of the Constitution.

The correct position, therefore, is that; DUAL CITIZENSHIP IS GENERALLY ALLOWED BY LAW AND NOT ILLEGAL. HOWEVER, CERTAIN POSITIONS ARE, BY CONSTITUTIONAL MANDATE UNDER SECTION 75 AND 76 OF THE CONSTITUTION RESERVED TO BE HELD BY PERSONS WHO DO NOT HOLD VOLUNTARY DUAL CITIZENSHIP OR ARE UNDER AN OATH OF ALLEGIANCE TO ANOTHER COUNTRY AT THE TIME OF THEIR NOMINATION AND ELECTION TO PARLIAMENT, THE VICE PRESIDENCY, THE PRESIDENCY OR OTHERWISE APPOINTED MINISTERS OR DEPUTY MINISTERS.

Moreover, there is no conflict of intention of Parliament or the drafters of the Constitution. That law rightly protects certain key positions from being held by persons with divided loyalties. It would be simply unacceptable to hold that the drafters of the constitution did not see this anomaly when they embedded section 76 in the Constitution to forestall it.

If anyone disagrees with the law as it is, the answer lies in law reform by CONSTITUTIONAL AMENDMENT and not otherwise. There is in fact nothing for judicial interpretation as the provisions are clear and there is no ambiguity, incongruence or contradiction whatsoever.

In a similar vein, the attempt by the Learned Pa-Momo Fofana to weigh-in on the debate on radio D was, with all due respect to him, even more atrocious. He rather wholly focused on the textual meaning of the phrase “other than” in the clause “or is a citizen of a country other than Sierra Leone having become such a citizen voluntarily or is under a declaration of allegiance to such a country” in Section 76 to opine that “other than” meant section 76, or indeed the Constitution, did not exclude dual citizens. To him, it simply meant a citizen of another country. It was cringe worthy for Dr. Julius Spencer to rightly draw his attention to Section 75 and to point out to him that 76 has to be read together with Section 75 to make sense. Perhaps the only person he succeeded in convincing in that regard was himself.

As it stands, several ministers of government equally hold dual citizenship but they continue to occupy their offices in clear violation of the Constitution. One thing that President Koroma will be remembered for is his disrespect for the very Constitution he swore to protect and the many times he has deliberately disregarded its clear stipulations to satisfy his political agenda. That these ministers continue to serve in government while his party chose to exclude others; and is very vocal in seeking to have other parties’ Presidential candidates disqualified on the basis of being under “oath of allegiance” to a foreign country, means that the law is being selectively applied under his watch. This, which is characteristic of his presidency, undermines the Rule of Law and is a recipe for chaos. The law on the exclusion of certain class of dual citizens should be either wholly properly applied to all affected without a hidden motive or rather be totally abandoned into desuetude or disuse. I prefer the former.

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 and Candidate for 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