S v Osman and Others (SC MISC APP 1/88) [1988] SLSC 1 (13 April 1988);

SC MISC APP 1/88

IN THE SUPREME COURT OF SIERRA LEONE BETWEEN:

THE STATE

ADEL OSMAN SHAMSU MUSTAPKA TAMBA DUNBAR MATTURI GEORGE SAFFA AMARA RICHARD EDWARD BARLAY STEVENS MASSAQUOI CORAM:

Hon Mr Justice S M F Kutubu, C J - Presiding

Hon Mr Justice S Beccles Davies - . J S C

Hon Mr Justice S C E Warne - J S C

Hon Mr Justice M S Turay - Justice of Appeal

Hon Mr Justice M O Adophy - Justice of Appeal Mr Terrence Terry for Shamsu Mustapha Mr Eke Halloway for Richard Edward Barlay Hon Attorney General and Director if Public Prosecutions for The State.

RULING DELIVERED THIS 1 3TH DAY OF APRIL 1988 KUTUBU, C J; This is a reference to the Supreme Court by v/ay of case stated by Wright J under the provisions of Section 104(2) of the Constitution of Sierra Leone 1978 Act No 12 of 1978 (which I shall hereafter refer to as the Constitution) and Rule 99 of the Supreme Court Rules 1982 Public Notice No 1 of 1982.

This Section of the Constitution empowering lower courts to refer matters or questions to the Supreme Court for determination reads as follows :-

"104(1) The Supreme Court shall save as otherwise provided in Sections 18 and 101 of this Constitution have original jurisdiction to the exclusion of all other courts

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution and

(b) where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law or under this Constitution.

(2) Where any question relating to any matter or question as is referred to in the preceding sub-section arises in any proceedings in court, other than the Supreme Court, that court, shall stay the proceedings and refer

the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court,"

Rule 99(1) of the Rules of the Supreme Court states:-

"A reference to the court for the determination of any question, cause or matter pursuant to any provision of the Constitution or any other law shall be by way of case stated by the Court below making the reference."

At the Criminal Sessions of the High Court holden at Freetown on the 6th January, 1988 pursuant to Section 136 of the Criminal Procedure Act 1965, Act No 32 of 1965 her Ladyship gave her consent in writing for the preferment of a two' count indictment against all the applicants named above, under the Public Economic Emergency Regulations 1987, Public Notice No 25 of 1987 (as amended).

On the 10th February, 1988 Mr Terry for 2nd applicant, Shamsu Mustapha, formulated several questions for the determination of the Supreme Court pursuant to Section 104 of the Constitution. Mr Eke Halloway Counsel for 5th applicant, Richard Barlay, followed suit. The Director of Public Prosecutions Mr Tejan-Cole for the State supported the proposed reference to the Supreme Court for determination.

The question of law referred by Wright J to the Supreme Court for determination are as follows:-

"1. In the light of the express mandatory provisions of Section 13(7) of the Constitution of Sierra Leone Act No 12 of 1987 can an accused person or persons inclusive of the 2nd accused person in this matter be tried and held guilty by our courts for an alleged offence or offences under the Public Economic Emergency Regulations Public Notice 25 of 1987 (as amended) in circumstances where the alleged offence or offences were not in existence at the time of the alleged act or acts which constitute the alleged offence or offences against the , accused person or persons?

2. Do the provisions of Regulation 59 of the Public Economic Emergency Regulations Public Notice No 25 of 1987 (as amended) expressly or by necessary implication conflict with the express provisions of Section 13(7) and Section 13(9) of the Constitution? If the answer to that question is in the affirmative does that fact render the entire Public Economic Emergency Regulations null and void and ULTRA VIRES the Constitution?

3. On the true and proper construction of Section 125(6) of the Constitution Act No 12 of 1978 can it be said that the procedure followed by the Parliament of Sierra Leone in laying, publishing and bringing the Public Economic Emergency Regulations into full force was in total compliance with the express provisions of Section 125(6) of the Constitution of Sierra Leone?

4. Does Section 19 of the Constitution of Sierra Leone Act No 12 of 1978 expressly contemplate or provide for a declaration by His Excellency the President of a State of Public Economic Emergency or for a state of Public Emergency on a true and proper construction of the said Section 19 of the Constitution?

5. Does Section 19 of the Constitution of Sierra Leone contemplate or provide for the passing of resolution by Parliament for the purpose of declaring a State of Public Economic Emergency or a resolution declaring a State of public Emergency?

6. In the light of Section 19 of the Constitution Act No 12 of 1978 can Parliament pass a resolution which has the effect of approving the proclamation of the State of Public Emergency declared by the President on the 2nd day of November, 1987?

7. In the light of questions 1, 2, 3, 4,5 and 6 posed supra can a provision in a regulation to wit regulation 59 of the Public Economic Emergency Regulations Public Notice 25 of 1987 render express constitutional provisions to wit Section. 13(7) and Section 13(9) of the Constitution of Sierra Leone Act No 12 of 1978 inoperative notwithstanding

the fact that the said regulations ex post facto create crimes and punishments an,d destroy fair safeguards to the 2nd accused person and other accused persons as guaranteed under the Constitution?

8. In the light of questions 1, 2, 3, 4, 5, 6 and 7 supra can our courts and in particular this court be said to be vested with jurisdiction to try and pronounce the 2nd accused person guilty of offence or offences contrary to the

express provisions of Sections 13(7) and 13(9) of the Constitution having regard to the peculiar circumstances of this case?

9. Whether the 5th accused in particular could be convicted of offences against the Public Economic Emergency Regulations 1987 (as amended)in respect of things done by him before the regulations aforesaid came into force and in particular offences against Regulation 40(a) of the Public Economic Emergency Regulations (as amended) and Regulation 44 of the Public Economic Emergency (as amended)

10. Whether the Public Economic Emergency (as amended) is not ultra vires the Constitution and therefore rendered a nullity/nugatory for non-compliance with Section 125(6) and particularly (c) of sub-section 6 of Section 125.

11. Whether Section 125(6) is mandatory or directive. If mandatory whether the exercise of the powers conferred on the President and Minister of Defence under Section 19 sub-section 4 of the Constitution of Sierra Leone exercised

in non-compliance of Section 125 subsection 6(c) of the Constitution of Sierra Leone render the exercise of that power valid or of any legality under the laws of the Republic.

Mr Terry submitted eight of the eleven questions, namely, questions 1-8 inclusive, while Mr Halloway submitted three questions, namely, questions 9-11 inclusive. Wright J thought it necessary to refer the aforesaid questions to the Supreme Court for determination as she considered their answers necessary for the continuation of the proceedings before her.

Mr Terry made several submissions in the course of his arguments before this court, based among others, on excess of jurisdiction, infringement- of the fundamental rights and freedoms of the applicants, in particular, the 2nd applicant, under the Constitution, and also forcefully impugned the constitutional validity of the Proclamation dated 2nd November, 1987 declaring a state of Public Economic Emergency in the Republic by the President, and the Public Economic Emergency Regulations, 1987 Public Notice No 2'5 of 1987, made pursuant to the Proclamation. Mr Terry maintained that they did not conform with the manner, language and express provisions of the Constitution which rendered them ultra vires and void.

Mr Terry referred to the provisions of Section 19 of the Constitution and submitted that both the Proclamation and the Regulations made thereunder, were invalid and ultra vires the Constitution by reason of the introduction or importation, as he put it, of the word, "Economic", in both the Proclamation and the Regulations. In his view both the Proclamation and the Regulations would have been within the intendment and spirit of the Constitution if they had been titled "Public Emergency" and "Public Emergency Regulations" simpliciter, and no further. Such addition or importation proved fatal, he maintained. The Proclamation referred to was in the following terms:-

PUBLIC NOTICE

PUBLIC NOTICE NO 24 OF 1987

Published 2nd November, 1937

PROCLAMATION

UNDER SECTION 19 OF THE CONSTITUTION OF SIERRA LEONE 1978

(Act No 12 of 1978)

By His Excellency Major General Dr Joseph Saidu Momoh, President of the Republic of Sierra Leone, Supreme Head of State, Grand Commander-in-Chief of the Armed Forces, Fountain Head of Unity, Honour, Freedom and Justice.

JOSEPH SAIDU MOMOH

PRESIDENT

WHEREAS paragraph (b) of Sub-Section (1) of Section 19 of the Constitution of Sierra Leone, 1978, provides that whenever a period of public emergency shall commence, the President may, at any time, by Proclamation declare that a situation exists which, if it is allowed to continue, may lead to a state of public emergency in any part of or in the whole of Sierra Leone:

AND WHEREAS it appears to the President that a situation of economic crisis exists which, if it is allowed to continue may lead to a state of public emergency throughout Sierra Leone:

NOW THEREFORE, I JOSEPH SaIDU MOMOH, President of the Republic, Supreme Head of State, Grand Commander of the Order of the Republic, Commander-in-Chief of the Armed Forces, Fountain Head of Unity, Honour, Freedom and Justice, DO. HEREBY by this Proclamation declare a State of Public Economic Emergency in the Republic, as from the publication hereof.

Given under my hand and the Public Seal of the State of Sierra Leone at the State House Freetown, this 2nd day of November, in the Year of Our Lord One Thousand Nine Hundred and Eighty Seven.

LONG LIVE THE STATE OF SIERRA LEONE.

The Proclamation itself embraces Section 19(1)(a) and (b) of the Constitution which reads as follows:-

"Section 19(1) Whenever a period of public emergency shall commence, the President may at any time, by

Proclamation which shall be published in the Gazette, declare that

(a) a state of public emergency exists either in any part or in the whole of Sierra Leone;

(b) a situation exists which, if it is allowed to continue may lead to a state of public emergency in any part of or the whole of Sierra Leone."

As I see it, the thrust and pivot of the arguments of Counsel on the respective questions submitted to this court rest with the following main questions:-

(1) Whether the use of the word "Economic", used in the Proclamation and the Regulations is outside the scope of Section 19 of the Constitution;

(2.) On the assumption that the Public Economic Emergency Regulations are regular and therefore valid, whether they did not lapse after a period of ninety days thereby nullifying their effect by virtue of Section 19 of the Constitution;

(3) Whether the Public Economic Emergency Regulations do not conflict with the provisions of Section 13(7) and 13(9) of the Constitution, and in particular, the effect of Regulation 59 of the Public Economic Emergency Regulations on the fundamental Human Rights provisions of the Constitution having regard to its ex post facto or retroactive nature;

(4) Whether the way and manner of bringing the Public Economic Emergency Regulations, Public Notice No 25 of 1987 (as amended) into operations, was not in conformity with Section 125(6) of the Constitution and therefore rendered void and ultra vires the Constitution.

In answering these questions while it may well be useful to look for guidance and inspiration elsewhere, in particular, from the practice of other Commwealth jurisdictions, it is in the end the wording of the Constitution itself, that is to be interpreted and applied. In short, the answers to these questions are to be gathered from the four corners of the Constitution.

The far-reaching source of Emergency Declaration for the determination of the questions before us, is the Constitution. Section 19, empowers the President by proclamation to declare a state of public emergency.

It provides as follows:-

"Section 19(1) Whenever a period of public emergency shall commence, the President may at any time, by Proclamation which shall be published in the Gazette, declare that -

(a) a state of public emergency exists either in any part, or in the whole of Sierra Leone; or

(b) a situation exists which if it is allowed to continue may lead to a state of public emergency in any part of or the whole of Sierra Leone.

(2) Every declaration made under sub-section (1) of this Section shall lapse -

(a) in the case of a declaration made when Parliament is sitting at the expiration of a period of fourteen days beginning with the date of publication of the declaration, and

(b) in any other case, at the expiration of a period of ninety days beginning with the date of publication of the declaration.

Unless it has in the meantime been approved by or superseded by a Resolution of Parliament supported by the votes of two-thirds of the Members of Parliament.

Section 19(4) of the Constitution empowers the President to make Regulations pursuant to a proclamation of a state of public emergency and it reads:-

"During a period of public emergency the President nay make such Regulations and take such measures as appear to him to be necessary or expedient for the' purposes of maintaining and securing peace, order and good government in Sierra Leone or any part thereof."

Section 19(5)(d) states:

Without prejudice to the generality of the powers conferred by sub-section (4) of this Section and notwithstanding the provisions of this Chapter the Regulations or measures may, so far as appears to the President to be necessary or expedient for any of the purposes mentioned in that sub-section -

(d) amend any law, suspend the operation of any law and apply any law with or without modification; Provided that such amendment, suspension or modification shall . not apply to this Constitution.

: Section 19(1) does not state what is "public emergency". I therefore look for assistance in Section 156 of the Constitution which defines public emergency as follows:-

"Public Emergency" means any period during which -

(a) Sierra Leone is at war, or

(b) there is in force a proclamation issued by the President under sub-section (1) of Section 19, or

The present state of public emergency came into being by Presidential Proclamation under Section 19(1)(b) of the Constitution, that is the position referred to under Section 156(b) of the Constitution. Under the Constitution, the power of the President to declare by proclamation that a state of public emergency exists or "a situation" exists which may lead to a state of public emergency is in his absolute and unfettered discretion subject only to the provisions of sub-section (2) of Section 19 supra.

Section 19(1 )(b) also does not define "a situation". This could be wide-ranging and encompasses a multiplicity of situations ad infinitum. It lies in the sole power and discretion of the President to determine a situation, which at any given time in his estimation, deserves a declaration by Proclamation of a state of public emergency. The exercise of this power is unquestionable and unchallengeable. The situation could be described as "Economic" "Political" -"National Disaster", and like situations, too numerous to mention here. Indeed, they are many and varied.

The President, in his Proclamation of 2nd November, 1987 Public Notice No 24 of 1987, expressly referred to the existence of a situation of "economic crisis" in the country, which if allowed to continue may lead to a state of public emergency in part or in the whole of Sierra Leone. Once the decision to declare a state of public emergency vests in the President in relation to a situation of which he is the sole determinant, his characterisation of any such situation, which I regard as purely descriptive, cannot derogate from the force and authority of Section 19 of the Constitution which is the "fons et origo" of the President's emergency powers.

It was therefore proper and. correct, legitimate and constitutional for the President to characterise both the Proclamation, Public No 24 of 1987 and the Regulations, Public Notice No 25 of 1987 (as amended) in the manner and style he did, namely, "Public Economic Emergency" and

"Public Economic Emergency Regulations". Alternatively, it would have also been proper for the President to entitle both the Proclamation and the Regulations as "Public Emergency" (Economic) and "Public Emergency Regulations" (Economic). Both the Proclamation and the Public Economic Emergency Regulations are accordingly within the scope of Section 19 of the Constitution.

The question which follows this finding is, - on the assumption that the Public Economic Emergency Regulations are regular and therefore valid, whether they did not lapse after a period of ninety days thereby nullifying their effect by virtue of Section 19 of the Constitution.

The answer to this question is, no. The position is saved by the provisions of Section 18 (1)(e) of the Interpretation Act, 1971 Act No 8 of 1971 which reads as follows :-

Section 18(1)

(e) The repeal or revocation of an Act, unless a contrary intention appears, shall not -

(e) affect any investigation legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty forfeiture or punishment may be imposed as if the Act had not been repealed.

Also Section 18(2) When an Act expires, lapses or otherwise ceases to have effect this section shall apply as if the Act had been repealed or revoked.

The next question for consideration is whether the Public Economic Emergency Regulations 1987 Public Notice No 25, 1987 (as amended) do not conflict with the provisions of Section 13(7) and 13(9) of the Constitution, and in particular the effect of Regulation 59 of the Public Economic Regulations on the fundamental Human Rights provisions of the Constitution having regard to its ex post facto or retro-active nature.

Before embarking on an answer to this question, I consider it pertinent to state in brief, the constitutional provisions in this country in regard to the fundamental rights and freedoms of the individual as by law established. Suffice it to say that the Constitution provides adequate guarantees for the fundamental rights and freedoms of the individual subject to certain safeguards. In this regard, Section 5 of Chapter II of the Constitution provides as follows:-

"Whereas every person in Sierra Leone is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, tribe, place of origin, colour, creed or sex but subject to respect for the rights and freedoms of others and of the

Recognised Party, and for the public interest, to each and all of the following:-

(a) life, liberty, security of the person, the enjoyment of property and the protection of the law;

(b) freedom of conscience, of expression, of assembly and association; and

(c) respect for his private and family life the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others, or of the public or of the national well-being".

In short, our enjoyment of or rights to the enjoyment of such rights and freedoms as are guaranteed by the Constitution, are neither absolute nor unlimited in scope, but relative and restrictive in all its aspects. In protecting fundamental rights, the court as the guardian of the Constitution has been described as being "in the role of a sentinel on the qui vive". It protects the individual against violations of his constitutional or legal rights or misuse or abuse of power by the State of its officers.

In the same vein, it is the duty of the court to seek to protect the State against anti-social, disruptive conduct, by individuals or groups of persons whose purpose is to disturb the peace and good order of society or threaten the economic life of the nation. From this vantage point, the court holds the balance between the ordinary citizens inter se and the citizens on the one hand and the State on the other.

To that extent, our fundamental rights and freedoms are not only limited in scope, but circumscribed and controlled, in the interest of an orderly society under the sovereignty of the law.

Emergency situations connote abnormality, and curtailment of our rights and freedoms. This is an emergency, which empowers the President to take measures as he sees fit or necessary to control and contain a crisis situation.

In the words of Rodrigo J. in Visuvalingam &, Ors v Liyanage & Ors, Supreme Court of Sri Lanka, Law Reports of the Commonwealth, 1985 Pp. 919-922 (which I adopt), "Emergency Regulations are laws to which the fundamental rights constitutionally have to give way. They take a back seat to the extent the Emergency Regulations take the front seat. There is no room for both in the front seat. An emergency is what the word means".

Coming back to the question which was posed, I find it necessary and appropriate to look at the provisions of Section 13(7) and 13(9) which falls under the Fundamental

Human Rights provisions of the Constitution. I shall in turn consider the provisions of Regulation 59 of the Public Economic Emergency Regulations, Public Notice No 25 of 1987 (as amended).

Section 13(7) provides as follows:-

"No person shall be held to be guilty of a criminal offence on account of any act or omission which did not at the time it took place, constitute such an offence and no penalty shall be imposed for any. criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time it was committed."

Section 13(9) states:-

"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this Section other than (7) to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency."

Regulation 59 of the Public Economic Emergency Regulations provides as follows:-

"Where on the coming into force of the regulations, any investigation or case relating to the subject matter of the offences specified in these regulations is pending all the provisions of these regulations shall apply in the determination of that investigation or case."

The applicants are charged with the offence of obtaining by false pretences, and also conspiracy under Regulations 40(a) and 44 of the Public Economic Emergency Regulations. It is trite law to mention that in our criminal procedure, an accused person is deemed to-be innocent until his guilt is proved beyond reasonable doubt. Be that as it may, Section 13(4) of the Constitution provides that -

"Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty:.

Provided that nothing contained in or done under the authority.of any law shall be held to be inconsistent with or in contravention of this sub-section, to the extent that the law in question imposes on any person charged as aforesaid the burden of proving particular facts."

Mr Tejan-Cole, Director of Prosecutions, for the State, urged on us, that contrary to the submissions of Counsel for . applicants, the offences complained of were not new to the criminal law of this country, and submitted with force, that they were in existence at the time the consent order was sought and obtained on 6th January, 1988 for the preferment of an indictment against applicants in the High Court.

I have looked at the charges preferred under Regulations 40(a) and 44 of the Public Economic Emergency Regulations. On reflection, I cannot but agree with the submission of the Learned Director of Public Prosecutions that these offences existed at the time the consent order was sought and obtained, and that they are still part and parcel of the criminal law of this country. I can find no legal justification in support of the submissions of Counsel for applicants on this question. I hold that the charges are correct, valid and "properly laid.

Looking at the provisions of Section 13(7) of the Constitution it is apparent from the wording of Section 13(9) that it was intended to save Section 13(7). Regrettably, it fails in this, in the light of Section 19(11) of the Constitution which provides as follows:-

"Every Regulation made under this Section and every Order or Rule made in pursuance of such a Regulation shall have effect notwithstanding anything inconsistent therewith contained in any law; and any provisions of a law which is inconsistent

with any such Regulation, Order or Rule shall, whether that provision has or has not been amended, modified or suspended in its operation under any Act, cease to have effect to the extent that such Regulation, Order or Rule remains in force."

The Constitution tells us what comprises the laws of Sierra Leone. Section 125 of the Constitution provides as follows :.-

Section 125(1) The laws of Sierra Leone shall comprise -

(a) this Constitution;

(b) enactments made by or under the authority of the Parliament -established by this Constitution;

(c) any Orders, Rules and Regulations made by any person or authority pursuant to a power conferred in that behalf by this Constitution or any other law;

(d) the existing law; and

(e) the common law.

Section 3(1) of the Interpretation Act No 8 of 1971 refers to an Act, and states inter alia, that "Act" or "Act of Parliament" includes any Act, and any order, proclamation, rule, regulation or bye-law duly made under the authority of an Act.

The second part of Section 19(11) of the Constitution after the semi-colon, speaks of "any provision of a law which is inconsistent with any such Regulation, Order or Rule"(Emphasis mine).

In my view, to all intents and purposes, reference to "a law" in this context includes the Constitution in addition to other laws;

A fortiori, having regard to the existence of a state of public emergency, the provisions of Section 13(7), 13(9) and 19(5) are suspended during the currency of the emergency.

These provisions in my view are not sacrosanct and inviolate, but must give way in an emergency, a crisis situation, in the interest, among others, of the public and of the national well-being.

Now, as regards the question whether or not Regulation 59 of the Public Economic Emergency Regulations can operate retroactively, Counsel for applicants submitted that it cannot, on the ground that the language is not clear and precise enough to convey that intention. I disagree.

It is a cardinal rule of construction that a statute should be prospective and not retrospective, unless its language is such as plainly to require such a construction.

The question in each case, is whether the legislature has sufficiently expressed that intention, and this can be discovered by looking to the general scope and purview of the statute and at the remedy sought to be applied. If a statute is passed for the purpose of protecting the public and also individuals it may be allowed to operate retrospectively even though it causes hardship and injustice.

When I look at the language of Regulation 59, I come to the conclusion that it is perfectly clear and unambiguous, to convey the intention of retroactive operation, and I so hold. The provisions of Sections 18(1)(e) and 18(2) of the Interpretation Act No 8 of 1971 referred to supra apply accordingly.

The last question in my resume of questions for consideration is whether or not the way and manner of bringing the Public Economic Emergency Regulations, Public Notice No.25. of 1987 (as amended) into force was in conformity with Section 125(6) of the Constitution.

Counsel for applicants with much persuation urged on us that the provisions of Section 125(6) are mandatory and that the President has no powers to abridge time, that is to say, to act contrary to the provisions of Section 125(6)(c), requiring any Orders, Rules or Regulations to be laid before Parliament for twenty-one days before they become operational. That the non-compliance of the provisions of Section 125(6) rendered the Public Economic Emergency Regulations void and ultra vires the Constitution.

Section 125(6) of the Constitution referred to supra provides as follows:-

"Any Orders, Rules or Regulations made by any person or authority pursuant to a power conferred in that behalf by this Constitution or any other law -

(a) shall be laid before Parliamentj

(b) shall be published in the Gazette on or before the day they are so laid before Parliament;

(c) shall come into force at the expiration of a period of twenty-one days of being so laid unless Parliament before the expiration of twenty-one days annuls any such Orders, Rules, Regulations by the votes of not less than two-thirds of the members of Parliament.

Section 19(4) empowers the President to make Regulations pursuant to the declaration of a state of public emergency.. The state of public emergency was declared on 2nd November, 1987 and the Emergency Regulations came into operation on 5th November, 1937, far short of the twenty-one days contemplated by Section 125(6)(c) of the Constitution.

Indeed, there is a conflict between the provisions of Section 19(4) and Section 125(6) of the Constitution, but it does not end there. While Section 125(6) is a general

provision Section 19(4) is a specific provision. Where a Section of an Act dealing with general provisions conflicts with another Section dealing with specific provisions, as in the instant case, the specific provisions shall prevail over the general provisions. Even though Section 125(6) is a later provision, it makes no difference where the earlier provisions, that is,section 19(4) are specific in their application.

Suffice it to say that while Section 19 of the Constitution contemplates an emergency, Section 125(6) envisages a situation calling for the due observance of the doctrine of Parliamentary sovereignty; that is to say, all Orders, Rules or Regulations made by any person pursuant to the Constitution shall without more be subject to Parliamentary control by being required to lay before Parliament, publish in the Gazette on or before laying, and shall become operational on the expiration of twenty-one days of being so laid unless Parliament sooner annuls by two-thirds votes of the Members.

I would answer the eleven questions submitted to this court as follows:-

Questions - 1. The offences complained of were in existence.

2. The answer to this question is in the negative. No conflict. The subsidiary question is unnecessary.

3. There is no material before us to answer question No.3

4. Section 19 provides for a declaration of a state of public emergency which expression embraces a multitude of situations which can be descriptive of the type of public emergency.

5. No material having been furnished about a Resolution by Parliament under the proviso to Section 19(2) of the Constitution, the question becomes hypothetical and an answer therefore becomes unnecessary.

6. No material,having been furnished to this court, the question becomes unnecessary.

7. Regulation 59 does not create an offence. Assuming that the . reference to the said regulation was intended to mean the entire" body of regulations, the answer is yes.

8. The courts have jurisdiction. The offences set out in Regulations 40(a) and 44 are not contrary to the provisions of Sections 13(7)

and 13(9) of the Constitution having regard to the peculiar circumstances of this case.

9. The answer to question 9 is yes.

10. The answer to question 10 is no.

11. The question posed under 11 is . academic. Decision accordingly.

(Sgd) Hon Mr Justice S M F Kutubu

Chief Justice

I agree ...........(Sgd) Hon Mr Justice S D Davies, J S C

I agree ...........(Sgd) Hon Mr Justice S C E Warne, J S C

I agree ...........(Sgd) Hon Mr Justice M S Turay, JA

I agree...........(Sgd) Hon Mr Justice M O Adophy, JA

S v Osman and Others (SC MISC APP 1/88) [1988] SLSC 1 (13 April 1988);

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S v Osman and Others (SC MISC APP 1/88) [1988] SLSC 1 (13 April 1988);

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Other African Law

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