18th March, 2015.
Please permit me to write on a matter of grave national constitutional, legal and political concern that has come to engage the attention of our compatriots both at home and abroad. I have accordingly taken the liberty to make the format of this letter an open one, as its contents address matters of public national interest.
This relates to the position of the Vice President of the country.
Your Excellency, up until 1991 when the current national Constitution was, after a nation-wide consultation and referendum, adopted as the Supreme Law of the land, the position of the vice president was an appointed one. This was the position after the inauguration of the republican form of government in 1971, and the introduction of a one-party form of government in 1978.
The record shows that we even had the positions of First and Second Vice Presidents. But both offices were appointive and in the gift of the President as it were.
The then national Constitutions (1971 and 1978) designated the Vice President to be the successor to the presidency in the event of a vacancy in the latter office.
The record will also show that in 1985, just prior to the then President, the late President Siaka Stevens, demitting office, there were moves to change the constitutional and legal position regarding the succession to the presidency by the vice President.
But these moves were debated and adopted in Parliament and the necessary legislation enacted. Mercifully, the country was spared any political rumpus that could have resulted from these changes so late in the day and the ill-fated Presidential Council literally proved still-born.
Therefore, in order to put matters beyond conjecture, surmise and any chicanery and to make the whole process regarding the position of the vice presidency transparent, the 1991 national Constitution, for the first time, clearly made the office of the Vice Presidency, not appointive any more, but rather, an elective one.
Thus, after 1st October, 1991, when the national Constitution became operational, the people of Sierra Leone stipulated and granted to themselves the right to have a say as to who shall be their vice president.
The position is now covered in clear provisions of the national Constitution, namely, section 54(1), (2) and (3) of the Constitution.
These provisions require that a candidate for the office of president must have a running mate designated as vice president. Together, if the slate containing the candidate for the presidency and his running mate are successful in the presidential elections; they are declared elected President and Vice President respectively.
Thus, gone are the days when a President can appoint a vice President. The two offices are now conjointly elected at the same time by the will of the people at the time of electing the presidential candidate with his running mate as the vice presidential candidate.
Furthermore, by the constitutional provisions, either the President or the Vice President is removable from office, but not at the will or instance or fiat of one or the other, but rather, by a Parliamentary process colloquially referred to as impeachment
The constitutional provisions on removal from office of either office holder, are, I dare say, clearly stated in section 51 of the national Constitution.
It is no doubt instructive to note that there are no separate and particular provisions for the removal of the vice President, but rather, in the event there is a need to remove, the same provisions applicable in the case of the President himself will come into play.
Your Excellency, I note with particular care the reasons given in a Release from your office dated 17th March, 2015, for removing the current holder of the office of Vice President.
I hope I fairly summarize these as: i) the expulsion of the vice President from the All Peoples Congress (APC) by a decision dated 6th March, 2015, of the National Advisory Committee of the APC; and ii) your taking note of the fact that on Saturday, March 14, 2015, the vice President sought asylum from a foreign embassy, which the Release states is indicative of “a willingness to abandon his duties and office as Vice President…”
These are matters now in the public domain and it is not intended to debate them here.
But the simple and irrefutable fact is that they do not and cannot, in the face of the clear constitutional provisions, provide, with the utmost respect, the warrant or legal basis “for relieving with immediate effect” the Vice President from office.
Your Excellency, with the utmost respect, as the guardian of the Constitution, as stipulated in sub-section (3) of section 40 of the Constitution, you have not been properly advised or served in terms of the provisions of the Constitution you have invoked for taking this most extraordinary measure.
Your Excellency refers to sections 40 (1) and 41 (b) of the national Constitution, as warrant for the measure you have taken.
A simple, plain and teleological reading of these provisions would readily show that they vests or grant no such power in you or anyone else for that matter for the following reasons.
First, section 40 (1) proclaims you as the President of the Republic to be the Head of State, the supreme executive authority of the Republic and Commander-in Chief of the Armed Forces.
It may be noted that this section vests or grants no power, it is merely declaratory of the attributes or incidence of the office of the President.
However, Part II of the Constitution on Executive Powers, in section 56(1) vests executive power in the country in you as the President. This power may be exercised by you directly or through members of the Cabinet, Ministers, Deputy Ministers or public officers subordinate to you.
But importantly, the exercise of executive power is expressly subject to the provisions of the Constitution. In plain terms, this means that executive power, whatever it may mean or import cannot lawfully be exercised in disregard of the provisions of the Constitution.
Executive power is nowhere defined in the Constitution. But the Constitution does clearly provide for the removal of the vice President from office and how this should be done. This clearly puts the issue of the removal from office of the Vice President beyond the exercise of executive power, and cannot, on any view, be subsumed under it.
Section 54 of the Constitution establishes the office of Vice President. Sub –section (8) provides for the removal from office of the Vice President in terms as follows: “(8) The provisions of sections 50 and 51 of this Constitution, relating to the removal from office of the President, shall apply to the removal from office of the Vice President.”
In short, Your Excellency, neither you nor the Vice President can lawfully be removed from office except as provided for in sections 50 and 51 of the Constitution.
Permit me therefore, to say, and please believe me when I say that it pains me to say so, that the removal from office of the Vice President, as stated in the Release from your office, is nothing short of an exercise of power that can find no validation in the text of our national Constitution.
The second justification provided in the Release for removing the Vice President from office is a reference to section 41(b)of the Constitution.
Your Excellency, again a plain reading of this provision will readily show that it is most inapposite to the situation. This section addresses the qualification for election to the office of the President. Paragraph (b) of section 41 clearly states: “41(1) No person shall be qualified for election as President unless he- (a)… (b) is a member of a political party” (c )… (d) …”
It is when section 54 of the Constitution on the Vice Presidency is read along with section 41 (b) that membership of a political party becomes an important qualification for an election to (a) the office of the President and (b) to be a candidate for the office of Vice President.
Needless to say since 2007 and certainly since 2012, neither you nor the Vice President is running for election or is a candidate for election to your respective offices. Your successive election to your respective offices is now a matter of history.
Both sections 41 and 54 address the situation of candidates for the respective offices of President and vice President. Neither section requires continuing membership of a political party as a qualification for continuing or remaining in either the office of the President or that of Vice President.
Therefore, reliance on the expulsion of the Vice President from the APC as a warrant for his removal from office can find no justification in the textual provisions of the Constitution. Membership of a political party is a qualification for election to the office, but nowhere is it stated in the Constitution that membership or continuing membership is a necessary qualification for or coterminous with continuing or remaining in office.
For the avoidance of doubt, Your Excellency, I should make it clear that what is alleged against the Vice President, may or may not be impeachable offences amounting, in the words of section 51 of the Constitution, to “gross misconduct.”
If the latter is the case, then, with respect, it is a matter for Parliament to put in train the impeachment process contemplated and provided for in the national Constitution.
Please allow me to close by stating that the use of executive power to remove the Vice President from office is irreconcilable with the provisions of the Constitution; and in my humble view, sets to naught the sovereign will of the electorate and people of Sierra Leone so eloquently expressed when in 2007, and again in 2012, you and the Vice President were elected to your respective offices.
I therefore respectfully urge that nothing should be done, least of all, in the guise of executive power, to defeat, disappoint and render nugatory the people’s will and choice.
This is the essence of democracy, which I want to hope and believe Your Excellency handsomely subscribes to. It is also an affirmation of the rule of law.
I end by saying that this is not the time for political diversions or brinkmanship. In the midst of fighting the devastating scourge of the Ebola virus which is set to bring our dear country and our neighbours to ruination, we should all strive as Team Sierra Leone, to beat back this scourge and not dissipate scarce human and other resources and goodwill on avoidable and needless diversions.
I remain in faith and with highest esteem, Your dear compatriot, Sgd. Abdulai Conteh.
Justice of Appeal of the Court of Appeal of the Commonwealth of The Bahamas.
18th March, 2015.