LIMITING “ORDERS FROM ABOVE” AND CONTROLING THE USE OF “EXECUTIVE ORDERS”

By Francis Ben Kaifala, Esq.

Every society has those practices and expressions which with time become generally accepted and widely used. Some may be good and others may be bad. The good ones usually become conventions while society has to take positive steps, either by legislation or such other conscious limiting actions to counter the bad practices that have the tendency to become established and be used by ingenuous and callous men to benefit their aspirations and interests rather than serve much useful purpose for the wider society.

I am sure that anyone who has for any reason had dealings with Civil Servants, government officers but more so the Police may have been confronted with the expression “ORDERS FROM ABOVE”. This expression is so widely used for many unsavoury and most times unlawful justifications that “ABOVE” is to my mind now become a virtual Sierra Leonean institution on its own. Its use is becoming so widespread, systemic and endemic in the formal public sector that it is considered a complete defense against lawful requests or queries and it absolves officials from being required to do anything further or indeed being reminded to do what they are lawfully supposed to do. What is even more worrisome is the complacency with which they say it.

While the “ORDERS FROM ABOVE” is not a particular expression of art and those who say it merely convey the sense that they are under some form of superior instructions, what gives it a specific character is the uncertainty and usually dead end it presents an interested person - usually lawyers, but also journalists and indeed the members of the public. I would understand if the issues to which they refer were actually Public interest issues or the subject-matter of security or intelligence concern for the state. But they can be anything from the refusal of bail for a petty quarrel, incarceration of alleged offenders for misdemeanours, to civil servants refusing to do their lawful duties, and general disregard for the Rule of Law by those in authority.

Furthermore, this magical expression could lead the person it is addressed to into a labyrinth of uncertainty as to who to seek clarifications and redress from or where to look next. As a matter of fact, with all my respect, the “Above” could be any one between the Traffic officer in the Street and the Head of State of the Republic of Sierra Leone. Therefore, when the expression is used, like Harry Potter’s magical wand, it throws one into a whirlwind of oblivion he may spend the next several days, weeks or months trying to unravel who next to turn to while  the injustice, mischief, harm or omission in question may continue unabated. The CID and generally the police care very little when they send away lawyers, journalist and family members of those incarcerated with this simple expression.

While I am mindful of the need for discipline in certain sectors like the police, the civil service, the military and such other organized bureaucratic bodies, it is in the public interest that certain people have timely access to information that may help them do their work properly particularly lawyers, journalists, businessmen, certain consultants, etc. I also agree that certain offices may require keeping secret the identity of those who give instructions, but the level at which it has degenerated and the innumerable and unjustified reason for which they are now often used calls for some form of intervention. I welcome the Passing of the Freedom of Information Act 2013 but I do not believe it covers this kind of willful abuse which is not formal in nature. I therefore call on Civil Society and the public to raise a voice against such a bureaucratic malaise.

On another note, and to a lesser extent, but equally significant is the use of “executive orders” by State House. In recent years, not only with this Government, some strange actions have been taken by the authorities, which, to my mind had no actual basis in Law nor are they Constitutional by extension. Again like the mysterious “Orders from Above”, the Magical phrase “Executive Orders”, paves the way for, with respect, executive lawlessness. I perused the Constitution in order to identify if any of the provisions in Section 40 of the 1991 Constitution either confers or suggests any such authority on the President but could not find any. Also, I have not come across any legislation or indeed a Statutory Instrument which directly or obliquely confers authority on the President to issue executive orders, particularly those which go beyond his role as Head of State and Commander-In-Chief of the Armed forces but touch and concern the freedoms and rights of the ordinary man.

By way of examples, I was one of the Lawyers involved the trial of the case, The State V. George Aritzabel Archilla & Others (the Cocaine Case). On the Night sentencing was done by the Honourable Justice Nicholas Browne-Marke J.A, men believed to have been U.S Marines broke into Pademba Road Prisons and extracted some of those convicted and whisked them out of the country. I found this to be an unacceptable violation of the Sovereignty of Sierra Leone and was surprised that the following morning, everyone just went about business as usual. There was not even a Press Release from the Government to proffer explanations to the public or any attempt by anyone to question the manner in which it was done. What was even more appalling was that neither civil society, nor the Bar, or the Press made much of it – the reason being, I later learnt, they were taken pursuant to an executive order.

In a similar vein, the famous Mac-P was introduced in response to the wave of armed robberies that had become widespread in several communities around Freetown. While I commend the success it achieved, again, I have not been able to find any authority of Law under which State House could create such an informal institution or in deed make rules that impede the Freedom of movement of the ordinary Sierra Leonean in that manner. With the risk of sounding cynical, I am of the humble view that nothing gives State House the authority to create such an ad hoc institution outside the recognized forces set up under part II and Part XI of the Constitution. That unlawful ad hoc body continues to operate to date, and if nothing is done about it now, will become institutionalized.

There are several other examples of the use of authority that are not provided for by law, like the declaration of cleaning Saturdays, thereby limiting individual movement - an illegal practice rooted in junta lawlessness of the past and should have no place in the democratic dispensation of the present. While the intention behind these issues I have highlighted may be arguably justifiable, the lack of established legal mandate behind them, and when taken together with the virtual boundary of the inglorious “orders from above” and the uncertainty and the lack of transparency with which they are used may become negatively conventional and serve as an instrument of oppression and tyranny by the executive.

While in advanced countries like the United States of America there are established legal and regulatory frameworks within which the President exercises his authority, in Sierra Leone on the other hand, no simple recitation of governing law or prudential guidelines is possible. Therefore, while history and practice are useful tools in understanding the President's authority in this regard, I am not aware of any Legal framework or justification that exists to help determine issues of validity of their use. Beyond questions of legality, there are also many separate but important issues of policy. Two broad policy questions present themselves: (1) whether a given power the President possesses ought to be used to advance a particular policy objective, and (2) whether a particular directive issued effectively advances such a policy goal. While it is certainly debatable whether some use of the orders fall within the President’s Powers as Commander in Chief of the armed forces and indeed Head of State, unlike the US, the President of Sierra Leone is not mandated by our Constitution to “take care that the laws are faithfully executed” as in the U.S which in effect gives the President of the U.S wider discretion in taking steps that may border on Legislation and enforcement. In theory, our Constitution is built on the Pillars of Separation of powers and most of what the president does that have the effect of being laws unto themselves ought to be put before Parliament for their sanctioning in conformity with the correlated principle of checks and balances.

In the light of the above, with the recent amendment to Section 79 of the Constitution, Parliament has shown that it is capable of identifying and amending anomalies in the Constitution. If at all like the US such use of power has a place in our Laws, they should probably amend section 40 of the Constitution - which to my utter surprise is not entrenched – and provide clear ambits within which such an authority could be used so as to forestall abuse. This may dilute the perception of rubberstamps they are perceived by many to be and canvass some public support considering their recent unpopular move.

If that cannot be done, let those gentlemen who are charged with the responsibility of reviewing the present Constitution be aware that it will be a mistake and extremely dangerous if the parameters within which the President exercises Executive Orders are not prescribed by the Constitution or in deed some form of Legislation and left to Convention – particularly as most believe our judiciary is anything but independent and will not have the backbone to overturn those orders that are deemed illegal if at all anyone will have the courage to make the unprecedented move of challenge such an order in court. The present dispensation is a travesty of the Rule of Law, an infringement of Separation of powers and a reproach to democracy. As we all strive towards creating a just society based on Freedom, justice and equality, it is my humble recommendation that a positive action be taken by those who can to reverse this legal anomaly as we cannot leave such an important use of power to continue without setout boundaries. A proper understanding of a President's power to issue executive orders, proclamations, and other directives will enable the present and future Presidents  to use their power confidently in the exercise of their constitutional responsibilities and to implement important Administrative policies. We should bear in mind that a President who abuses his authority to issue executive orders may undermine the constitutional separation of powers and may even violate it.

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