REPORT OF THE COMMISSION SET UP TO REVIEW THE CONSTITUTION OF SIERRA LEONE, 1991

TABLE OF CONTENTS
    
    Introduction
1. Fundamental Principles of State Policy
2. Citizenship
3. The Recognition and Protection of Human Rights and Freedoms of the Individual
4. The Representation of the People
5. The Executive
6. The Legislature
7. The Judiciary
8. The Ombudsman
 
I N T R O D U C T I O N

Government Notice No.6, vol. CXXXVIII of the Sierra Leone Gazette No. 2 of Thursday, 11th January 2007, published the establishment and membership of a Commission for the review of the 1991 Constitution with the following Terms of Reference:

“to review the Sierra Leone Constitution of 1991 with a view to recommending amendments that might bring it up to date with the economic, social and political developments that have taken place nationally and internationally since 1991”.

2. The Commission was also asked to take into consideration the following among others:-

• “The experience gained since 1996 in the implementation of the 1991 Constitution;
• omissions and lacuna in the 1991 Constitution which affect its operation as a democratic Constitution;
• improvement on certain provisions of the Constitution that may enhance democratic governance; and
• whether the fundamental principles of State Policy should be justiciable.”

3. The Review Commission was composed of forty-four members, forty one of whom  represented the following organisations and institutions:

 The Sierra Leone Bar Association
 Coalition of Civil Society and Human Rights Activists
 Sierra Leone Association of Journalists
 Sierra Leone Labour Congress
 Sierra Leone Market Women’s Association
 Sierra Leone Teachers Union
 Campaign for Good  Governance
 Njala University
 Fifty/fifty Group of Sierra Leone
 Sierra Leone Association of Non-Governmental Organisations
 Inter-Religious Council of Sierra Leone
 Law Reform Commission
 The University of Sierra Leone
 Sierra Leone People’s Party
 Civil Society Movement – Sierra Leone
 National Commission for Democracy
 Law Officers’ Department
 Council of Paramount Chiefs
 Local Council
 Office of the Ombudsman
 Sierra Leone Chamber of Commerce, Industry and Agriculture
 All Peoples Congress Party
 All Political Parties Association
 The Government Printer
 President’s Nominees
 The Judiciary
 The Sierra Leone Armed Forces and
 The Sierra Leone Police.

4. The Commission was chaired by Dr. Peter L. Tucker and the Secretariat was manned by a Permanent Secretary, who was assisted by two Research Assistants of the Law Reform Commission and a Legal Counsel of the National Public Procurement Authority.  It was housed at the Law Reform Commission’s Office, 3A Wellington Street, by the kind permission of the Law Reform Commission.

5. The Commission was formally launched on the 27th of January 2007.  Meetings were held on Tuesdays and Thursdays 2 p.m. – 5 p.m. and on Saturdays, 10 a.m. – 1 p.m.   The meetings were held in private which encouraged Commissioners to express their views freely.  The quorum for the meetings was fixed at twelve which allowed the Commission to commence its work without any delay.  However, actual attendance at meetings was always far above that number. Every member of the Commission was encouraged to speak on any topic and was given as much time as was possible to do so.  Decisions were taken by consensus rather than by voting.

6. At the beginning of its deliberations, the Commission received a submission from Dr. Abdulai O. Conteh, Chief Justice of Belize on the justiciability of the Principles of State Policy, the position of Paramount Chiefs in the Constitution, Members of Parliament as Ministers, the need for parliamentary approval of all Ministers and the qualifications and Membership of Parliament.  The Office of the President also submitted a Paper written by Mr. O.B. Walker on Protection from Discrimination, Registration of Voters, Ministers and Deputy Ministers of Government, Establishment of the Office of Attorney-General and Minister of Justice, the need for a Second Chamber, Qualifications for Membership of Parliament, Disqualifications for Membership of Parliament, The Speaker, the Ombudsman and the Interpretation of the Constitution.  The Sierra Leone Bar Association also submitted a Paper entitled “A Position Statement on Media Law Reform.”  Mr. Benedict Sannoh, Chief, Human Rights and Rule of Law Section, United Nations Integrated Office in Sierra Leone delivered a Paper entitled “The Human Rights Provisions of the 1991 Constitution and the Way Forward”.  There was also a letter from the Sierra Leone Court Monitoring Programme, mainly about the age of retirement of judges of the superior courts.

7. The Commission thoroughly discussed the Constitution, section by section and made references to several Constitutions in Africa and the developed world.  Frequent references were made to the Constitutions of the United Kingdom and the United States of America; as well as the Constitutions of Ghana, South Africa and Nigeria.

8. The recommendations of the Commission, as well as the reasons for them are produced in the pages that follow.  Other important matters of state which are not included in the Constitution, including the need for a Second Chamber of Parliament; the need for Government to take affirmative action to remedy or ameliorate the effects of past discrimination against people based on race, tribe, sex, place of origin, political opinions, colour or creed; the Prisons Service Council; Independent Forces Complaints Commission; Parliamentary Service Commission; Extractive Industries Transparency Commission and citizenship were adopted by the Commission.

9. This is a Preliminary Report, which will form the basis of the nation-wide consultations we plan to hold in April, 2007.

CHAPTER 1 THE REPUBLIC OF SIERRA LEONE

10.  Sierra Leone is a Sovereign Republic, the boundaries of which are delimited in the First Schedule hereto.
11.  The Constitution shall be the supreme law of Sierra Leone
12. Sovereignty belongs to the people of Sierra Leone from whom Government, through this constitution, derives all its powers, authority and legitimacy.
13. The Public Seal of the Republic shall be such a device as Parliament shall prescribe.
14. (1)(a) The Flag of which the design is described in paragraph (b) hereof is hereby declared to be the National Flag of Sierra Leone.

(b) The design of the Flag shall be from the top of the Flag to the bottom thereof, three horizontal stripes of green, white and blue.

(c) The normal size of the Flag for official use shall be in the proportion of nine units across to six units down.

 (2) The National Anthem of the Republic shall be such as Parliament shall prescribe.

CHAPTER II
FUNDAMENTAL PRINCIPLES OF STATE POLICY

15.  We regard these principles as important codes of conduct to be followed by both the Rulers and Ruled alike, in a modern democracy.  However, in view of the rapidly growing desire of Sierra Leoneans for good governance, we agreed to upgrade these principles by adding the following amendments.

16.  DETAILS OF THE PROPOSED AMENDMENTS

16.1 In Sections 8 (3) (d) , 9 (1) (c) and 9 (2) (c) respectively, we recognised the absolute and imperative necessity for the state to provide adequate medical and health facilities for all its people, provide necessary logistics for education as well as free senior secondary education.  This is to be an uncompromising commitment and therefore, the phrases,
“having due regard to the resources of the state” in Section 8 (3) (d) and
“as and when practicable”, in Sections 9 (1) (c) and 9 (2) (c) respectively,  were deleted from these sections.

Section 8 (3) (d) now reads:
there are adequate medical and health facilities for all person;

Section 9(1) (c)
providing the necessary structures, finance and supportive facilities for education.

Section 9(2) (c)
free senior secondary education.

16.2 Section 12 (a) is to include “dress” after the item “dance” as one of the symbols of national culture that Government should promote.
Section 12 (a) has been amended to read:

The Government shall –
Promote Sierra Leonean culture such as music, art, dance, dress, science, philosophy, education and traditional medicine which is compatible with national development.

16.3 Section 13 (a) was amended by including the national pledge and national currency as those which every citizen shall respect.  The section now reads:
abide by this Constitution, respect its ideals and its institutions, the National
Flag, the National Anthem, the National Pledge, the National currency and authorities and offices established or constituted under this Constitution or any other law.

16.4 Section 13 was also amended by way of adding paragraphs K and L to mean that every citizen owes some duty to the state.  Paragraphs K and L now read:
K   - satisfy all tax obligations;
L - Protect and safeguard the environment.
 

CHAPTER III
     CITIZENSHIP

17. There is no provision in the current Constitution for Citizenship of Sierra Leone and we decided that as in most Constitutions, our Constitution should give a clear and authoritative provision which would determine who the citizens of Sierra Leone are and how to acquire citizenship.

18. Section 1
Every person who, on the coming into force of this Constitution, is a citizen of Sierra Leone shall continue to be a citizen of Sierra Leone.

19. Section 2
The following persons shall be citizens of Sierra Leone:
(1) Every person born in Sierra Leone before the coming into force of this Constitution whose father or mother was a Sierra Leonean shall be a citizen of Sierra Leone.
(2) Every person born in Sierra Leone after the commencement of this Constitution shall be a citizen of Sierra Leone if at the time of his birth, his father or mother is settled in Sierra Leone after being ordinarily resident for 15 years.

20. Section 3
A person born in Sierra Leone after the commencement of this Constitution who is not a citizen of Sierra Leone by virtue of S. 2 (1) and S. 2 (2) of this Act, shall be entitled to be registered as a Sierra Leonean citizen, if while he is a minor, his father or mother becomes a citizen of Sierra Leone or is settled in Sierra Leone and an application is made for his registration as a citizen of Sierra Leone.

Provided that a person is not ordinarily resident in Sierra Leone if:
a) enjoying diplomatic immunity in Sierra Leone under any law relating to diplomatic privileges; or
b) who were career representatives of another country; or
c) who were members of any police, military or security unit seconded for service within Sierra Leone by the Government of another country.

21. Section 4 – CITIZENSHIP BY DESCENT
A person born outside Sierra Leone after the commencement of this Constitution shall become a citizen of Sierra Leone at birth if at that date, his father or mother is a citizen of Sierra Leone otherwise than by descent or is a Sierra Leonean citizen serving outside the Sierra Leone in the service of the Government of Sierra Leone or any other country approved by the Government of Sierra Leone.

Provided that the birth is registered within twelve (12) months at the nearest Sierra Leonean diplomatic mission.

22. Section 5 - CITIZENSHIP BY MARRIAGE
(1)  A woman married to a man who is a citizen of Sierra Leone or a man
married to a woman who is a citizen of Sierra Leone may, upon application made to that effect in the manner prescribed by Parliament, be registered as a citizen of Sierra Leone.

(2)  Subsection (1) of this section shall also apply to a person who was married to a person whom but for his or her death, would have been a citizen of Sierra Leone.

(3)  Where the marriage of a woman is annulled after she has been registered as a citizen of Sierra Leone under subsection (1) of this section, such woman shall, unless she renounces that citizenship, continue to be a citizen of Sierra Leone.

(4)  Any child of a marriage of a woman registered as a citizen of Sierra Leone under subsection (1) of this section which subsection (3) hereof applies shall continue to be a citizen of Sierra Leone unless he renounces that citizenship.

(5)  Where upon an application by a man for registration under subsection (1), it appears to the authority responsible for the registration that marriage has been entered into primarily with a view to obtaining the registration, the authority may request the applicant to satisfy him that the marriage was entered into in good faith; and the authority may only affect the registration upon being so satisfied.

(6)  In the case of a man seeking registration, subsection (1) hereof shall apply only if the applicant normally resides in Sierra Leone.

23. Section 6
A new born infant, who after the commencement of this Constitution is found abandoned in Sierra Leone, shall, unless the contrary is shown, be deemed to be a citizen of Sierra Leone at birth.

24. Section 7
A person born in Sierra Leone after the commencement of this Constitution, who is not a Sierra Leonean citizen by virtue of the earlier sections, shall be entitled on application for registration as a citizen of Sierra Leone, made at any time after he has attained ten (10) years to be registered as a citizen, if as regards the first ten (10) years of that person’s life, the number of days on which he was absent from Sierra Leone in that year, does not exceed 90.

25. Section 8 - CITIZENSHIP BY ADOPTION
Where after commencement of this Constitution an order is made authorising the adoption of a minor who is not a Sierra Leonean citizen is made, by order of the Superior Court of Sierra Leone, he shall be a Sierra Leonean citizen as from the date in which the order is made, if the adopter or one of them, in the case of joint adoption, is a Sierra Leonean citizen on that date.

26. Section 9
Where an order in consequence of which a person became a citizen of Sierra Leone, ceases to have effect, whether on annulment or otherwise, the cessar on the ceasing of the order, shall not affect the status of that person as a citizen of Sierra Leone.

27. Section 10 – CITIZENSHIP BY NATURALISATION
Citizenship by naturalisation may be applied for by persons who are non-citizens of Sierra Leone but who, immediately preceding the date of the application for such citizenship -
a) have either been ordinarily resident in Sierra Leone for a continuous period of 10 years; or
b) have resided in Sierra Leone continuously for a period of twelve (12) months and during the period of twenty (20) years immediately preceding the said period of twelve (12) months;
I. have resided in Sierra Leone for periods amounting in the aggregate to not less than ten (10) years; and
II. are of good character; and
III. are persons who have made or are capable of making useful and substantial contribution to the advancement, progress and well-being of Sierra Leone; and
IV. satisfy any other  criteria pertaining to health, morality, security or legality of residence as may be prescribed by law.

Provided that no person shall be regarded as ordinarily resident in Sierra Leone unless his stay in Sierra Leone during the qualifying period was not subject to any conditions regarding employment, business, or length of stay.

28. Section 11 – APPLICATIONS FOR CITIZENSHIP BY NATURALISATION
28.1 Applications for citizenship by naturalisation shall be submitted to a Naturalisation Committee consisting of :
 
(i).      the co-ordinator, Office of  National Security;
(ii).      the Chief Immigration Officer;
(iii).      the Inspector General of Police;
(iv).     one Paramount Chief;
(v).      the Attorney-General or his representative and;
(vi).     a nominee of the Sierra Leone Bar Association.
 
The Committee, upon careful consideration of the applications, shall make recommendations to the President. Members of the committee shall be appointed by the President. 

28.2. Section 12
Parliament may enact legislations from time to time, regarding the acquisition, loss or resumption of citizenship by naturalisation:

Provided that no provision of such legislation shall be inconsistent with any  provision of this Constitution; and no citizen shall loose his Sierra Leonean citizenship by virtue of the fact that he has acquired citizenship of another country.
 
CHAPTER IV

THE RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL

29. In the Commission’s Terms of Reference, emphasis was laid on Chapter III of the Constitution which provides for the protection of Human Rights and Rule of Law.  We were specifically required to strengthen these in the process of reviewing the Constitution.

30. The Title of the Chapter
It was proposed that the word “fundamental” be deleted from the title as superfluous, since all human rights are now globally fundamental.

31. Section 15 (a)
To bring up to date the various rights to be protected, we decided to add the following to the rights listed in Section 15 (a):

• Right to passport
• Right of  protection of  environment
• Right to education and dignity
• Right to collective bargaining

32. Section 16 – PROTECTION OF RIGHT TO LIFE
We found the provisions in the current Chapter 3 of the Constitution consistent with similar provisions in other democratic states. However, presentations were made to us by various correspondents and by Mr. Benedict Sannoh, Chief, Human Rights and Rule of law Section, United Nations Integrated Office in Sierra Leone (UNIOSIL), referring to the report of The Truth and Reconciliation Commission  for the abolition of the Death Penalty. After serious considerations of these proposals and taking into account the Government White Paper on the TRC Report, we decided that in the present circumstances, the death penalty should be retained, provided that:-
(a)  the death penalty should be abolished in all cases of treason or    other  crimes of a political nature which does not directly cause the    death of another person(s)
(b)  that Parliament shall review the death penalty every five (5) years with a view to its abolition.
33. Section 17
33.1 We decided to amend Section 17 (1) (g) which provides that a person under the age of 21 may be detained for the purpose of his education by reducing the age to 18 years.

 33.2 We also fine-tuned the provision of Section17 (2) (a) so that it now reads:
Any person who is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, the grounds for his arrest or detention.

33.3 We recognised that the provision according the right to instruct a legal practitioner “at his own expense” is prohibitive in the majority of the cases of persons arrested or detained.  We have therefore amended Section 17 (2) (b) to read:
 
A person who is arrested or detained shall be informed immediately at the time of his arrest of his right of access to a legal practitioner or any person of his choice, and shall be permitted to instruct without delay a legal practitioner of his own choice and to communicate with him confidentially.

The intention here is that the State will in due course provide legal aid for deserving cases.
33.4 We have also reduced the number of days when a suspect may be held in custody without charge under Section 17 (3), which shall now read:
(a) within seven (7) days from the date of arrest in cases of capital offences, offences carrying life imprisonment, economic and environmental offences, unless where a court  order is obtained for an extension of time by the arresting authority.

(b) within 48 hours of his arrest in case of other offences, unless a court order is obtained for an extension of time by the arresting authority.

33.5    We have further proposed in an amended Section 17 (4) that:
any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; in this subsection “the appropriate authority or person” means appropriate authority or person specified by law.

34. Section 18 (1)
34.1 The proposed addition to the rights in this Section is “every citizen has the right to a passport.”

35. Subsections (4) and (5) of Section 18 provide for the right to request a review of restriction of freedom of movement imposed only on grounds stated in subsection 3 (a) which reads:

3(a) which is reasonably required in the interests of defence, public safety, public order, public morality, public health or the conservation of natural resources, such as mineral, marine, forest and other resources of Sierra Leone, except in so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;

35.1 In the amendment proposed to this subsection, the request for a review will be made to the Human Rights Commission, which shall thereafter request the Chief Justice to set up an independent and impartial tribunal to sit on the matter.
As in the existing arrangement, the Chairman of the tribunal will be appointed by the Chief Justice.  The proposed changes state that only one of the two other members will be nominated by the Sierra Leone Bar Association; the other will be the nominee of the Human Rights Commission.  And the recommendations of the tribunal will be binding, provided they are not in breach of any law.

35.2 Amendments proposed are;
Subsection (4) (a) of Section 18
(a) if any person whose freedom of movement has been restricted by virtue only of such a provision as is referred to in paragraph (a) of subsection (3) so requests at any time during the period of that restriction not earlier than thirty (30) days after he last made such a request to the Commission of Human Rights, who shall ask the Chief Justice to set up an independent and impartial tribunal.
(b) any tribunal has been set up under paragraph (a), the Chairman of that tribunal shall be appointed by the Chief Justice and the two other members, one of whom shall be appointed by the Sierra Leone Bar Association and the other, who shall be a non-Lawyer, shall be appointed by the Human Rights Commission.

35.3 Subsection (5):
on any review by a tribunal in pursuance of subsection (40) of the case of any person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered, but unless it is otherwise provided by law, that authority shall be obliged to act in accordance with such recommendations.

36. Section 21 (1) – PROTECTION FROM DEPRIVATION OF PROPERTY
In addition to any remedy provided in this section, we proposed that legislation should be enacted to establish a PROPERTY COMPENSATION TRIBUNAL to ensure the prompt payment of adequate compensation for loss of property.  The new Section 21 (1) (c) (iii) provides that after the passing of this revised Constitution into law –

 Parliament shall legislate for the establishment of a Lands Compensation Tribunal charged with the responsibility of adjudicating and determining adequate compensation to persons whose property has been compulsorily acquired by the Government.

36.1 The Property Compensation Tribunal established in the new Section 21 (1) (c) (iii) stated above,  will also adjudicate on the amount the previous owner should pay for the recovery of property compulsorily acquired in the public interest but not used as such.  This amendment to Section 21 (5) reads:
where any such property as is referred to in subsection (4) is not used in the public interest or for the public purposes for which it was taken or acquired, the person who was the owner immediately before the compulsory taking or acquisition, as the case may be, shall be given the first option of acquiring that property, in which event he shall be required to refund the whole or such part of the compensation as may be agreed upon between the parties thereto; and in the absence of any such agreement such amount as shall be determined by the Property Compensation Tribunal.

37. Section 22 (2) (d) is amended by the addition after “or” of the words “search warrants” which now reads:
for the purpose of executing search warrants or any judgement or order of a court.

38. On the environment, we adopted Section 24 of the South African Constitution which states:
 Everyone has the right:
 (a) to an environment that is not harmful to his  health or well-being; and
(b) to have the environment protected, for the benefit and future generations through reasonable legislative and other measures that:-
 
i)   prevent pollution and ecological degradation;
 ii)  promote conservation; and
iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

39. Section 23 (3) & (10)
We have amended this section by reducing the age of 21 to 18 years in the proviso to subsection 3, and repealing without replacement subsection 10

40. Section 25 (1)
In this section, we have amended the proviso to subsection (1) by replacing the “President” with “Independent Media Commission” as the authorising agency. It now reads:
Provided that no person other than the Government or any person/body authorised by the Independent Media Commission or its successor-in-office, created by Act of Parliament, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
In subsection 2 (a) (i), we have added after “or” the words “detection of crimes” so it now reads:
in the interests of defence, public safety, public order, public morality or public health; or the detection  of crimes;

40.1 New Section 25 (2) (3) – PROTECTION OF FREEDOM OF EXPRESSION AND THE PRESS.

We have now added the following new subsections:
 25 (2) Everyone has the right to access to
  (a) any information held by the State
(b) any information that is held by another person and that is required for the exercise or protection of any rights;

25 (3) National legislation must be enacted to give effect to his right, with the necessary safeguards and may provide for reasonable measures to alleviate the administrative and financial burden on the State.

41. Section 26 (a) (b)
The rights to collective bargaining by Trade Union members, employers’ organisations and employers, adopted from Sections 25 (5) (6) of the South African Constitution is recommended for inclusion as new Section 26 (a) and (b) of our Constitution.

41.1 The proposed new Section 26 (a) shall read:
Every Trade Union, employers’ organisations and employers has the right to engage in collective bargaining.  National legislation may be enacted to regulate collective bargaining.

41.2 Section 26 (b) shall read:
National legislation may recognise union security of tenure contained in collective agreements.

42. SECTION 27 - PROTECTION FROM DISCRIMINATION
This section has been widely criticised both for its restricted definition of discrimination and for the facts that the exemptions to the anti-discrimination subsections seem to take away from the individual, the protection from discrimination conferred by Section 27, subsections 1 & 2.

After exhaustive discussions on the current trend in the protection from discrimination, we decided that Section 27 should be repealed and replaced by the following new Section 27:

42.1 Section 27 (1) shall now read:
Subject to the provisions of subsections 4, 6 & 7, no law
shall make any provision which limits or derogates from
any of the human rights provision in chapter three (III) or discriminates against any person in the use and enjoyment of those rights.

42.2 Section 27 (2):
Subject to the provisions of subsections 4, 6 & 7, no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any office or authority in the public or private sector.

42.3 Section 27 (3):
(a) a person discriminates against another in any circumstances relevant for the purposes of the rights recognized and protected in Chapter 4 if:- 
on grounds of race, tribe, sex, religion, place of birth,  opinion, colour and disability he treats him less favourably than he treats or would treat another;
(b) as soon as practicable after this Constitution comes into effect, Parliament shall enact legislation to eliminate discrimination and promote equality of opportunity in employment, education, housing and social services;

42.4 Section 27 (4): subsections 1 & 2 shall not apply to any law so far as that law makes provisions:
(a) for the appropriation of revenues or other funds of Sierra Leone or for the imposition of taxation (including the levying of fees for the grant of licenses); or
(b) with respect to persons who are not citizens of Sierra Leone; or
(c) whereby persons of any such description as mentioned in subsection 
(3) may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to  its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society; or
(d) for the limitation of citizenship or relating to national registration or to the collection of demographic statistics; or
(e) with respect to members only social organisations; or
(f) for the taking by the Government of affirmative action to remedy or ameliorate the effects of past discrimination against any of the groups listed in Section 27 (3); or

42.5 Section 27 (5)
(a) Anyone of the following persons has a right to complain that his right under Chapter 3 of this Constitution has been, is being or is about to be violated:
a) anyone acting in his own interest;
b) anyone acting on behalf of another person who cannot act in his own name;
c) anyone acting as a member of, or in the interest of, a group or class of persons;
d) anyone acting in the public interest; and
e) an association acting in the interest of its members.

(b)  Subject to the provisions of subsections (4), (6) & (7), if any
person alleges that any of the provisions of Sections 16 to 27
(inclusive) has been, is being or is likely to be contravened in
relation to him by any person (or, in the case of a person who is
detained if any other person alleges such a contravention in
relation to the detained person), then, without prejudice to any
other action with respect to the same matter which is lawfully
available, that person, (or that other person), may apply to the
Human Rights Commission for redress.

Provided that any aggrieved party may appeal to the Court of Appeal and ultimately to the Supreme Court from the decision of the Human Rights Commission.

42.6 Section 27 (6)
Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to qualifications for service as a public officer or as a member of a defence force or for the service of a local government authority or a body corporate established directly by any law or of membership of Parliament;

42.7 Section 27 (7)
The exercise of any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person under or by this Constitution or any other law shall not be enquired into by any Court on the grounds that it contravenes the provisions of subsection (2).

43. New Section 28 (1)
If in any proceedings in any court other than the Supreme Court, any question arises as to the contravention of any of the provisions of Section 16 – 27 inclusive, that court may, and shall if any party to the proceedings so request, refer the question to the Supreme Court.
(a) The Rules of Court Committee may make rules with respect to the practice and procedure of the Supreme Court for the purposes of this section;
(b) Parliament may confer upon the Supreme Court such powers in addition to those conferred by this section as may appear to Parliament to be necessary and desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section.

43.1 28 (2) Parliament shall make provisions –
(a) for the rendering of financial assistance to an indigent citizen of Sierra Leone where his right under this Chapter has been infringed, or with a view to enabling him to engage the services of a legal practitioner to prosecute his claims;
(b) for ensuring that allegations of infringements of such rights are substantial and the requirement or need for financial or legal aid is real.

43.2 28 (3)  The Supreme Court -
(a) consisting of not less than five Justices of the Supreme Court shall consider every question referred to it under this Chapter for  decisions, and, having heard arguments by or on behalf of the parties by Counsel, shall pronounce its decision on such question in open court as soon as may be and in any case not later than thirty days after the date of such reference.

 
CHAPTER V
THE REPRESENTATION OF THE PEOPLE

44. The Commission, after extensive discussions relating to Section 33 of the Constitution, rejected the argument that the conducting of Chieftaincy elections is the responsibility of the National Electoral Commission. This is because, according to Section 72 (5)  of the 1991 Constitution, “Parliament shall make laws for the qualifications, election powers, functions, removal and other matters connected with chieftaincy”.  Parliament has not yet enacted such legislation and the position remains as it was before the 1991 Constitution came into effect. 

45. To ensure women’s participation in the Political Parties Registration Commission (PPRC), we propose to increase the membership to five (5), and Section 34 (1) shall now read:
 There shall be a Political Parties Registration Commission
which shall consist of five (5) members appointed by the President namely:

a) the Chairman of the Commission, who shall be a person who has held Judicial office or is qualified to be appointed a Judge of the Superior Court of Judicature nominated by the Judicial and Legal Service Commission;

b) the Chief Electoral Commissioner;

c) a legal practitioner nominated by the Sierra Leone Bar Association;

d) a member nominated by the Sierra Leone Labour Congress; and

e) a member nominated by a women’s civil society organisation.

46. The proviso in Section 34 (4) was deleted as the Political Parties Registration Commission has now been constituted.

47. Section 38 - This Section of the Constitution that was amended by the Constitution of Sierra Leone (Amendment Act 2001 Act No. 15 of 2001)has been repealed because we are of the view that the circumstances which  may have existed to give rise to the amendment no longer exist.
 
 
CHAPTER VI  - THE  EXECUTIVE

48. We reviewed this chapter which relates to the Office and Powers of the President and agreed the following amendments:

48.1 Section 40 (4) The proviso to section 40 (4) was amended by deleting the words “which relates to any matter within the legislative competence of Parliament” as we considered this subsection to be too ambiguous and open to misuse.  The proviso to Section 40 (4) shall now read:
 
Provided that any Treaty, Agreement or Convention executed by or under the authority of the President which in any way alters the law of Sierra Leone or imposes any charge on, or authorizes any expenditure out of the Consolidated Fund or any fund of Sierra Leone, and any declaration of war made by the President of Sierra Leone shall be subject to ratification by Parliament:

(i) by an enactment of Parliament or
(ii) by a resolution supported by the votes of not less than one-half of all the members of Parliament

49. It is worthwhile to point out that even though the Commission has proposed that naturalised citizens be accepted as qualified to be Members of Parliament, this qualification, irrespective of Section 41 (d), precludes naturalised citizens from contesting for presidency.

50. We considered Sections 49 (1) and 55 which deal with vacancies in the Office of the President and Vice President, and decided to add new subsections to Section 49 and 55 as 49 (d) and 55 (e).

50.1. Section 49 (d) reads:
 The Office of President shall become vacant -

(d) if voluntarily he ceases to be a member of the political party of which he was  a member at the time of his election to office.

50.2 Section 55 (e) shall now read:

The Office of the Vice President shall become vacant –
(e)  if he voluntarily ceases to be a member of the political party of which he was a member at the time of his election to office.

51. Section 56 - Ministers and Deputy Ministers of Government.

The proviso to Section 56 (1) was amended by replacing the word ‘appointed’ with the word ‘nominated’ to express the Commission’s view that a Member of Parliament should not be nominated to a ministerial post.  Thus, Section 56 (1) shall now read:

Provided that no Member of Parliament shall be nominated to be Minister or Deputy Minister.
52. Section 64 -  Establishment of the Office of the Attorney-General and , Minister of Justice

52.1 The Commission considered this issue in Section 64 (1), under two headings - (a) whether the Office of the Attorney-General and Minister of Justice shall continue to be vested in one person and;
(b) whether his nomination shall be approved by Parliament.

In the discussions, the Commission was guided by the principle of separation of powers, more particularly, that between the Executive and the Judiciary.  In this regard, it was concluded that:
 
(i) the Office of the Attorney-General should be completely separated from that of Minister of Justice

(ii) the Office of Attorney-General shall be a public office which should be filled in the same way as that of the Solicitor-General, i.e. he shall be appointed by the President on the advice of the Judicial and Legal Service Commission, and he shall before assuming the functions of his Office, take and subscribe the oath as set out in the Third Schedule of the Constitution

(iii) the prospective holder of the Office of the Attorney-General must be a Sierra Leonean, and

(iv) if a President so desires, he can appoint a Minister of Justice.

53. Section 65 -  The Solicitor-General
The Commission concluded that the position of Solicitor-General was of such importance that it should warrant the approval of Parliament, as is done in the case of the Director of Public Prosecutions.  Thus, Section 65 (2) shall now read:

The Solicitor-General shall be appointed by the President on the advice of the Judicial and Legal Service Commission and, subject to the approval of Parliament, and he shall, before assuming the functions of his office, take and subscribe the oath as set out in the Third Schedule to this Constitution.

54. Section 67  -  Secretary to the President
Section 67 (2) was amended by deleting wholesale subsection (a), i.e. “The functions of the Secretary to the President shall include acting as the principal adviser to the President on public service matters.”  The Commission believed that the Secretary to the President is a political appointee and that the Secretary to the Cabinet, rather than the former should advise the President on public service matters.  Thus Section 67 (2) shall now read:

 The functions of the Secretary to the President shall include –
(a) the administration and Management of the Office of the President,  of which he shall also be vote controller;
(b) the performance of all other functions assigned to him from time to time by the President.

55. Section 68 - Secretary to the Cabinet
In view of the amendment made in Section 67, the Commission introduced a new Section 68 (3) (a) to convey the Commission’s opinion that the former function of the Secretary to the President as the Principal Adviser to the President on public service matters was no more, and that the function was now that of the Secretary to the Cabinet.  Thus, the new Section 68 (3) (a) shall now read:
 
a) acting as the Principal Adviser to the President on Public Service matters.

56. Section 70 – Power of appointment vested in the President
The Commission was of the view that the drafting of Section 70 did not convey the intended meaning of the Section, i.e – that all provisions of Section 70 from (a) to (e) were to be subject to the approval of Parliament.  Thus, Section 70 has been amended to read as follows:

The President may appoint, subject to the approval of
Parliament, in accordance with the provisions of this Constitution or any other law the following persons -
 
  (a) the Chief Justice;
(b) any Justice of the Supreme Court, Court of Appeal, or Judge of the High Court;
(c ) the Auditor-General;
(d) the sole Commissioner or the Chairman and other members of any Commission established by this Constitution;
(e) the Chairman and other Members of the governing body of any corporation established by an Act of Parliament, a statutory instrument, or out of public funds.

CHAPTER VII – THE LEGISLATURE

57. GENERAL PRINCIPLES OF THE COMMISSION’S PROPOSED AMENDMENTS

57.1 The purpose of the Commission in its appraisal of the provisions of Chapter VI – Legislature- for possible changes is to frame a blueprint of its vision of an efficient and effective institution which possesses a strong sense of mission. 

57.2 In this vision, Parliament, served by a Parliamentary Service Commission, will be autonomous.  The Members of Parliament shall not be Ministers.  They shall also not be delegates, but representatives of the people free to serve as their abilities and consciences direct.

58.      Section 73(1) now reads:
There shall be a Parliament consisting of:
i. The Senate
ii. The House of Representatives (whose members shall be
referred to as Members of Parliament) and
iii. The Speaker.

58.1 The inclusion of the President in the composition of Parliament in Section 73(1)  has no historical antecedent and no practical meaning; it distorts the concept of separation of powers.  The Commission therefore decided to exclude the President from the composition of Parliament.

59.     SECTION 74-MEMBERS OF THE HOUSE OF REPRESENTATIVES

The Commission proposed the repeal of Section 74(1) (a), so that the House of Representatives can consist entirely of members elected by popular ballot.

60. SECTION 75- QUALIFICATIONS FOR MEMBERSHIP OF PARLIAMENT

Section 75 is to be amended by:
(i) deleting the phrase in parenthesis in Section 75(a) “(otherwise than by naturalization)” so that naturalized citizens can vote and be voted for;

(ii) reducing the age in Section 75(b) from twenty-one years to eighteen, so that youths, who vote, can be voted for;

(iii) deleting the outdated proviso to this Section, which speaks of citizenship by registration.

61. SECTION 76 DISQUALIFICATIONS FOR MEMBERSHIP OF PARLIAMENT

61.1 Section 76(1) is to be amended by:
(i) deleting (1)(a) on the disqualification of naturalized and dual citizens as inapplicable, in view of the Citizenship (Amendment) Act 2006 and the proposed Citizenship provision of the amended Constitution;

(ii) in (1)(b) reducing from twelve to three months the duration of time that Government officers such as military men, public officers and employees in statutory Public Corporation, should have left office to be qualified to contest;

(iii) deleting (1)(d) and replacing it with Section 47(e) of the South
African Constitution;

(iv) deleting (1)(f) in line with the proposal that Paramount Chiefs serve
in the Senate;

(v) deleting (1)(g) since it could be abused vindictively; and

(vi) deleting (1) (h) since preceding provisions already exclude the
President, Vice-President, Ministers and Deputy Ministers from Membership of Parliament.

Section 76(1), as amended, now reads:
No person shall be qualified for election as a Member of Parliament :

(a)   if he is a member of any Commission established under this Constitution, or a member of the Armed Forces of the Republic, or a public officer, or an employee of a Public Corporation established by an Act of Parliament, or has been such a member, officer or employee within three months prior to the date on which he seeks to be elected to Parliament; or

(b) if under any law in force in Sierra Leone he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or 

(c) anyone who, after this section took effect, is convicted of an offence and sentenced to more than twelve months imprisonment, without the option of a fine, either in Sierra Leone, or outside Sierra Leone, if the conduct consisting the offence would have been an offence in Sierra Leone, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.  A disqualification under this paragraph ends five years after the sentence has been completed.

(d) if he is under a sentence of death imposed on him by any court.

62. We recommended the redrafting of Section 76(4) in line with the provisions of the Local Government Act.

63. SECTION 77- TENURE OF SEATS OF MEMBERS OF PARLIAMENT

64. SECTION 77 (1) (k) is to be amended by placing the adverb “voluntarily” before “ceases” to prevent abuse of this provision.  The Commission holds the view that expulsion of a Member of Parliament from a political party should not in itself terminate the tenure of his seat.  Beyond his party he is responsible to his constituents and the nation.  Section 77(1)(k) shall now read:

If he voluntarily ceases to be a member of the political party of which he was a member at the time of his election to Parliament and he so informs the Speaker, or the Speaker is so informed by the Leader of that political party; or…
  
64.1 Section 77(1)(L) is to be repealed to afford a Member free rein to serve as a
representative in accordance with his deepest convictions and his conscience.

64.2 Section 77(1)(n) is amended by replacing the word “position” with the word “employment” to read:

If he accepts office as Ambassador or High Commissioner for Sierra Leone or any employment with an International or Regional Organisation.

64.3 Section 77(2) is amended by extending to an adjudged bankrupt the suspension of the loss of his parliamentary seat which the adjudged lunatic and member on sentence of death is afforded on appeal.   The amended Section 77(2) now addresses both 77(1)(h) and (l). This shall now read:

Any member of the House of Representatives/ Senate who has been adjudged to be a lunatic, declared to be of unsound mind, or sentenced to death or imprisonment, or declared a bankrupt under any law and has not been discharged, may appeal against the decision in accordance with any law provided that the decision shall not have effect until the matter has been finally determined.

65. SECTION 79 - THE SPEAKER

65.1 SECTION 79(1) The Speaker of parliament shall be elected by the members of Parliament form among:
 a. persons who are members of parliament or who are qualified to be elected as such or;
 b. persons who are qualified to be  appointed judges of the Superior courts of Judicature or have held such office.

65.2 In Section 79(2) and 79 (4)(d), drafting should clarify the point regarding the votes required both to elect a Speaker and remove a Speaker from office by placing the word “all” before the phrase, “ the Members of Parliament” to read “two-thirds of all the Members of Parliament.”

66. SECTION 93- COMMITTEES OF PARLIAMENT

66.1 SECTION 93(1)(c) was amended by placing the word “Joint” before “committee” to make the Committee on Appointments and Civil Service a Joint Committee of both the Senate and the House of Representatives.

67. SECTION 97- RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES OF MEMBERS OF
PARLIAMENT

67.1 A new Section 97 (c) is to be formulated by the draftsperson, restricting sitting Members of Parliament, as well as companies run for their benefit, from bidding for award of Government contracts.

68.     SECTION 100- IMMUNITY FROM SERVICE OF PROCESS AND ARREST

SECTION 100 was amended by placing “or Minister of Government” after “Clerk of Parliament”, “at work or” before “on his way” and “or ministerial office” after “proceedings of Parliament” so as to extend the facility of immunity to Ministers. Section 100 shall now read:

No civil or criminal process issuing from any court or place out of Parliament shall be served on or executed in relation to the Speaker or a Member or the Clerk of Parliament or Minister of Government while he is at work or on his way to or returning from any proceedings of Parliament or Ministerial Office.
 
69. SECTION 106(4) (7) AND (8)-  MODE OF EXERCISING LEGISLATIVE POWER

69.1  Subsection 4 of Section 106 is amended such as to signify that
Presidential signature of a bill passed in Parliament further authorizes the Clerk of Parliament to publish it in the Gazette. Thus, Section 106(4) shall now read:

When a Bill which has been duly passed and is signed by the President in accordance with the provisions of this Constitution it shall become law and the Clerk of Parliament shall thereupon cause it to be published in the Gazette as law.

69.2  Subsections (7) and (8) of Section 106 are amended by replacing in (7) the words “fourteen days’ with the words “twenty-eight days”, to ensure that the President has sufficient time to consider the Bill passed by Parliament and give his reasons for refusing to sign; and by adding in (8) the phrase “or not returned” after “is returned” and the word “all” before “the Members of Parliament”.  So that Section 106 (7) reads:
Where a Bill has been passed by Parliament but the President refuses to sign it, the President shall within twenty-eight days of the presentation of the Bill for his signature cause the unsigned Bill to be returned to Parliament giving reasons for his refusal.

 Section 106 (8) reads:
Where a Bill is returned or not returned to Parliament pursuant to subsection (7) and that Bill is thereafter passed by the votes of not less than two-thirds of all the Members of Parliament, it shall immediately become law and the Speaker shall thereupon cause it to be published in the Gazette.

70. THE SENATE
In this review of the Constitution, we have again considered the position of Paramount Chiefs in Parliament and we have come to the conclusion that it is undesirable and unusual in a modern democracy to have a group of members who are elected by a narrowly based electoral college. Therefore, in our view, the Paramount Chief block in Parliament should be removed and however, Paramount Chiefs play a vital role in the administration of Sierra Leone and generally represent the people.
It would be both unwise and undesirable to deprive them of political participation in the national political system.  A Senate, is in our view, the place where they should be.

70.1 It is not Paramount Chiefs alone whose participation in national politics would be beneficial to Sierra Leone. There are large number of people who are not in Parliament or the Public Service and whose knowledge and experience we believe, would contribute immensely in the process of good governance in this country.  Such people are included in the list of potential members of the Senate that were provided above.

70.2 Another consideration is that Sierra Leone is a small country but by no means homogenous.  This is manifested in the cultural and structural diversity of the state and the duality of political and administrative structures.  For example, traditional courts function side by side with modern courts, traditional forms of marriage operate side by side with western forms of marriage, different systems of land tenure, etc.  There is also the fact that there are vocal and quite important minority groups in this country who may not be demographically important to win representation in the legislature at popular elections but important enough to warrant some form of participation in the governance of this country.

70.3. There are other arguments in support of a Second Chamber, however, we shall await the comments of the public and analyse any suggestions from them on the matter, before stating our definitive position on the subject which will be done in our final report.

71. COMPOSITION AND FUNCTIONS OF THE SENATE

71.1 The Senate shall be mainly a body with limited involvement in the legislative process and in the vetting of executive appointees in so far as this is provided for in the Constitution.

71.2 The Senate shall consist of forty-four members and shall comprise the
following:

(a) twelve Paramount Chiefs, each to be elected by the Paramount Chiefs of his District;
(b) the Mayor of the Municipality of the City of Freetown;
(c) six persons to be appointed by the President in consultation with the House of Representatives from among persons elected by recognised Professional Associations and four to be nominated by Civil Society Organisations, appointed by the President, in consultation with the House of Representatives;
(d) the following persons shall be appointed by the President in consultation with the House of Representatives:

(i) one of the persons who have held the office of President of the Republic of Sierra Leone;
(ii) one of the persons who have held the office of Vice President of the Republic of Sierra Leone;
(iii) one of the persons who have held the office of Chief Justice;
(iv) one of the persons who have held the office of Speaker of Parliament/House of Representatives;
(v) one of the persons who have held the office of Vice Chancellor;
(vi) one of the persons who have held the office of Governor of the Bank of Sierra Leone;
(vii) one of the persons who have held the office of Commander of the Armed Forces;
(viii) one of the persons who have held the office of Inspector-General of Police;
(ix) one of the persons who have held a high ranking public office;
(x) two persons who are high ranking clerics in the Inter-religious Council of Sierra Leone, the Catholic Church, and the Islamic Religious Groups.

(e) Ten persons appointed by the President , in consultation with the House of Representatives, from among prominent citizens of proven eminence and merit, who have distinguished themselves in business or politics or in their professions, and have made significant contributions to the development of the nation, and;
(f) the Senate shall elect a Chairman from among its members.

72. The Senate shall have the power to:
(a) review all Bills passed by the House of Representatives within a month and forward them to the House of Representatives with their comments;
(b) consider and approve or otherwise matters referred to it by the House of Representatives;
(c) consider and approve or otherwise, in a joint committee of both houses, in respect of any appointment which is required by this Constitution or any other law relating to the same to be made with their approval or on their advice, which decision shall be given not later than thirty days after the receipt of the request from the President or other authority.

73. SECTION 108 (2) (b) -ALTERATION OF THIS CONSTITUTION
In Section 108(2)(b) the draftsperson, by adding “all” after “of” and before “the” is to clarify that the votes required for this important act of altering the Constitution is “not less than two-thirds of all the Members of Parliament.”

74. SECTION 119 - ESTABLISHMENT OF OFFICE AND FUNCTIONS OF
AUDITOR-GENERAL

Section 119(1) and (14) were amended by adding “and the Audit Service Commission” after “Civil Service Commission” in both subsections to introduce the newly-formed Audit Service Commission into the process of Presidential consultation for substantive and acting appointments of an Auditor-General.  Subsection (1) of the entrenched Section 119 reads:

 There shall be an Auditor-General for Sierra Leone whose office shall be a public office, and who shall be appointed by the President after consultation with the Civil Service Commission and the Audit Service Commission, and subject to the approval of Parliament.
 
CHAPTER VIII - THE JUDICIARY

75. Chapter VII of the Constitution, which provides for the Judiciary, is also affected by the process of review of the Commission. According to the 1991 Constitution, the Chief Justice is the Head of the Judiciary.  This provision was however, amended by including expressly that he shall be responsible for the administration and supervision of the Judiciary. 

Section 120 (1), which is affected by this amendment, shall now read:

The Judicial power of Sierra Leone shall be vested in the Judiciary of which the Chief Justice shall be the Head and shall be responsible for the administration and supervision thereof.

75.1 In the course of discussions on the provision of the Constitution which relates to the President referring any petition in which he has to give a final decision to the Supreme Court for a judicial opinion, the Commission agreed that there should also be a mechanism in place which will enable the Speaker of Parliament to refer matters or petitions to the Supreme Court for judicial opinion or ruling as the case may be.  It was suggested that this proposal should be fused into Section 122, which deals with the jurisdiction of the Supreme Court and that the formulation should be done later by the draftsperson. 

75.2 In dealing with appeals from the Court of Appeal which are by leave of the Court of Appeal in any criminal cause or matter, the Commission decided to amend this procedure. Hence, appeals from the Court of Appeal to the Supreme Court in any criminal cause or matter were made to lie as of right, by deleting the requirement for such appeals to be with leave of the Court of Appeal.  To this end, Section 123 (1) (c) was deleted in its entirety.

75.3 Touching on the aspect of locus standi for the taking of an action to the Supreme Court for declaration, in the event where an enactment or anything done by an authority under an enactment is seen to be inconsistent with, or in contravention of any provision of this Constitution, the right was limited only to a citizen of Sierra Leone. The related provision in the Constitution only states that such an action can be taken by a “person”, which implies that anybody could institute such an action. 

Section 127, altered by this amendment, shall now read:

Any citizen of Sierra Leone who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of a provision of this Constitution, may at any time bring an action in the Supreme Court to that effect.

75.4  Section 127 (4) which states that: “failure to obey or to carry out the terms of an order or direction made or given under subsection (1) shall constitute a crime under this Constitution” was deleted in its entirety as it is superfluous. 

76. Taking into account the shortages of substantive Judges in both the Supreme Court and the Court of Appeal, and the crucial legal effect of their presence in proceedings, the Commission decided to increase the minimum number of substantive Judges of both the Supreme Court and the  Court of Appeal from 4 – 7 and from 7  - 9 respectively.  Related provisions to these changes are Sections 121 (b) and 128 (b).  The amended versions shall now read:
 
121 (b) Not less than seven other Justices of the Supreme Court;
    and

128 (b) Not less than nine Justices of the Court of Appeal.

77. With respect to expanding the right of appeal further, the Commission went ahead to extend this to Court Martials, and consequently stretching the right of appeal to the Court of Appeal not only on judgement or order of a High Court of Justice but also of the Court Martial.

Section 123 (1) (b) was amended by the aforementioned inclusion and shall now read:

as of right, in any criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgement, decree or order of the High Court of Justice or Court Martial.

78. It was agreed in principle that the President should be given the authority to appoint Chairmen of Local Courts in consultation with the Judicial and
Legal Service Commission.  Formulation of this as a subsection to 135 will be done by the draftsman.

79. Provisions relating to the appointment of Judges on a temporary basis were amended also by the insertion of the criterion which demands that they should go for Parliamentary approval before they take up office.  The phrase “notwithstanding the fact that he has already attained the retiring age prescribed by Section 137,” was also deleted.  Section 136 (2) and (4) shall now read:

136 (2)     Where the office of a Judge of the High Court is vacant or
for any reason a Judge thereof is unable to perform the functions of his office or if the Chief Justice advises the President that the state or business in the High Court of Justice so requires, the President may, acting in accordance with the advice of the Judicial and Legal Service Commission, appoint a person, subject to the approval of Parliament, who has held office as, or a person qualified for appointment as, a Judge of the Superior Court of Judicature to act as a Judge of the High Court of Justice. 
136 (4)        Where the office of a Justice of the Supreme Court or of
the Court of Appeal is vacant or for any reason a Justice thereof is unable to perform the functions of his office or if the Chief Justice advises the President that the state or business in the Supreme Court or in the Court of Appeal, as the case may be, so requires, the President may, acting in accordance with the advice of the Judicial and Legal Service Commission, appoint a person, subject to the approval of Parliament, who has held office as, or a person qualified for appointment as, a Judge of the Superior Court of Judicature to act as a Justice of the Supreme Court or of the Court of Appeal, as the case may be.

80. The time frame within which a Judge appointed on contract shall take to deliver his judgment after the expiration of his contract, for those matters which were before him during the course of his contract, as stated in Section 136 (6) was extended from “not exceeding three months” to “not exceeding six months”.  This was done in order to provide a reasonable time for the efficient conclusion of their matters.  A similar extension by amendment was also made for a substantive holder of the Office of Judge of the Superior Court of Judicature in Section 137 (3).  Thus, Sections 136 (6) and 137 (3), as amended, shall now read:

         Notwithstanding the expiration of the period of his
appointment, or the revocation of his appointment, a Judge appointed pursuant to the provisions of subsection (2) or (4) of this section, may thereafter continue to act, for a period not exceeding six months to enable him to deliver judgement or do any other thing in relation to proceedings that were commenced before him previously thereto.

  137 (3)       Notwithstanding that he has attained the age at which
he is required by the provisions of this Section to vacate his office, a person holding the office of a Judge of the Superior Court of Judicature may continue in office after attaining that age, for a period not exceeding six months, to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him previously thereto.

81. The Commission went further to increase the retirement age for Judges by adding five years to the existing age at which he may retire and five years also for compulsory retirement.  Consequently, he shall now vacate his office at seventy years or may retire at sixty-five years.  This decision was made on the basis that the office of Judges is generally one that requires a lot of experience and the practical reality is that generally the more experience one has the more efficient one becomes. Another reason is that most of the Judges in this country are seen to be effectively active in the Judiciary even after their retiring age of sixty-five, and are most times employed on contract basis.  Hence, the Commission saw the necessity to utilize their wealth of knowledge and experience while they still have the ability to perform their duty effectively.  Hence, Section 137 (1) (b), shall now read:

      shall vacate that office on attaining the age of seventy years.

82. Provisions which carry words that are considered superfluous and   unreasonable in their effect by the Commission were amended by deletion.  In this direction, the Commission deleted prohibition of Judges of the Superior Court of Judicature from holding any other office of profit or emolument whether by allowances or otherwise, private or public, and either directly or indirectly.  This provision was considered superfluous and did nothing to elucidate on the intent underpinning the provision; which was that judges shall hold no other office or derive profit from any other source except that of a judge. Thus, Section 138 (4) shall now read:

A Judge of the Superior Court of Judicature shall not while he continues in office, hold any other office of profit.

83. On a different subject matter, it was decided that on the basis that the Supreme Court and the Court of Appeal have representation in the Judicial and Legal Service Commission, the High Court should also be represented.  To achieve this, the Commission included the representation of the High Court in the Judicial and Legal Service Commission.  Section 140 (1), which makes provision for this was amended by the inclusion of a new paragraph (g).  Hence, Section 140 (g) shall read:

 One Judge of the High Court of Justice.

84. The Commission, after critical evaluation of the mechanism that goes to foster effective operation of the whole judicial arm of Government, saw the need for the establishment of a Local Court Service Committee in each province, with the responsibility of being the Principal Adviser to the Chief Justice on issues relating to appointments, transfers, promotions, dismissals and general discipline of members, officers and servants of the Local Court.  The proposed draft now reads:

1. (1) There shall be established in each Province, a Local Courts Service Committee, which shall advise the Chief Justice on appointments, transfers, promotions, dismissals and general discipline of members, officers and servants of Local Courts.

(2) A Local Courts Service Committee shall consist of-
(a) the resident Judge of the Province who shall be the Chairman;

(b) a Paramount Chief representing the Council of Chiefs of the Province;

(c) a representative of the Attorney-General;

(d) a representative of the Ministry responsible for local  Government;

(e) the Provincial Secretary; and

(f) a person having experience in the administration of Local Courts.

(3) The members of each Local Court Service Committee shall be appointed by the President, after due regard to the need for the participation of women.

(4) A member of a Local Courts Service Committee appointed pursuant to paragraphs (b), (c), (d) and (f) of subsection (2)-

(a) shall hold office for a period of three years and thereafter shall be eligible for re-appointment for not more that one more term;

(b) may be removed from office by the President for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct; and;

(c) shall not be removed from office except in accordance with the provisions of this subsection.

(5) A member of a Local Courts Service Committee shall, before assuming the functions of his office, take and subscribe before the President the oath as set out in the  ……………. Schedule to this Constitution.

2. (1) The appointments of Chairmen, Vice-Chairmen and other members of Local Courts, Clerks, Bailiffs and other officers and servants of Local Courts shall be made by the Chief Justice, acting on the advice of the relevant Local Courts Service Committee.
 (2) Every candidate for appointment for any of the positions in subsection (2)1 shall be required to produce a reference from the Paramount Chief or Chiefdom Council of the Chiefdom where he is seeking the appointment.

(3)  The Chief Justice may by statutory instrument prescribe the terms and conditions of service of members, officers and servants, of Local Courts and of every Local Court Service Committee established by this Constitution.

85. According to Section 143 of the 1991 Constitution “any fees, fines or other moneys taken by the Courts shall form part of the Consolidated Fund”.

The Commission decided to delete the words “fees” and ‘ or other moneys” so that courts would have means of raising funds to augment the insufficient subventions disbursed by Government.

CHAPTER IX-  THE OMBUDSMAN

85.   The Commission observed that Section 146, dealing with the Office of the Ombudsman, should be redrafted to convey the fact that the office has already been established and the necessary Act has been enacted by Parliament.

Chapter X

86.   Local Government

  The Commission also recommended the addition of a new Section 73 which shall now read:
           Local Government, through democratically elected Local Councils is hereby recognised and established. Its composition, functions and administration shall be determined from time to time by Parliament.

CHAPTER XI     -    COMMISSIONS OF INQUIRY

87. The Commission observed, with great concern, that functions given to institutions by the Constitution are not carried out. Even though Section 150 of the Constitution empowers the Rules of Court Committee to make rules regulating the practice and procedure of Commissions of Inquiry, it has failed to do so. Similarly, Parliament has also failed “to make laws for the qualifications, elections, powers, functions, removal and other matters connected with Chieftaincy.” (Reference: (Section 72(5)). 

 
88.  CHAPTER  XII    -   THE PUBLIC SERVICE COMMISSION
Since the Public Service Commission currently exclusively deals with Civil Service matters, the Commission deemed it fit to change the title of this Chapter to “The Civil Service Commission”.  The necessary changes will be effected accordingly.

Section 151 (5) (a) of the current Constitution states that “The office of a member of the Public Service Commission, unless he sooner resigns or dies, shall become vacant –
(a) at the expiration of a period of five (5) years from the date of his appointment or such shorter period, not being less than three (3) years as may be specified at the time of his appointment.

The Commission felt that the period of five (5) years should be reduced to four (4) years, but subject to renewal only once, in the interest of continuity.  The proposed amendment also takes the discretion away from the President to appoint a member of the Commission for a lesser period of three (3) years.  Thus, the proposed amendment shall now read:
The office of a member of the Civil Service Commission, unless he sooner resigns or dies, shall become vacant -

a) at the expiration of four years, renewable only once, and
b) the Chairman, at the expiration of five years, renewable only once.

89.       CHAPTER XIII    -   THE ARMED FORCES
89.1 According to Section 165 (2) of the 1991 Constitution “The principal function of the Armed Forces shall be to guard and secure the Republic of Sierra Leone and preserve the safety and territorial integrity of the State, to safeguard the people’s achievements and to protect this Constitution.”  The Commission felt that it is not the business of the Armed Forces to protect the Constitution. Thus, the phrase “and to protect this Constitution” was deleted from this Section.  Section 165 (2) shall now read:

The principal function of the Armed Forces shall be to guard and secure the Republic of Sierra Leone and preserve the safety and territorial integrity of the state and to safeguard the people’s achievements.

89.2 Section 168 (1) of the 1991 Constitution states that” the President, acting on the advice of the Defence Council, shall appoint the Chief of Defence Staff of the Armed Forces.”
The Commission felt that the position of Chief of Defence Staff is so important that it should warrant the approval of Parliament.  Thus, Section 168 (1) shall now read:

The President, acting on the advice of the Defence Council, shall appoint the Chief of Defence Staff of the Armed Forces, subject to the approval of Parliament.

89.3 Similarly, the Commission agreed that the Commanders of the Armed Forces, appointed by the President, who seat in the Defence Council, shall be approved by Parliament, as Section 153(2) directs.

89.4 Section 169(2) of the 1991 Constitution states that,
The Defence Council may, with the prior approval of the President, make regulations for the performance of its functions under the Constitution or any other law and for the effective and efficient administration of the Armed Forces.
The Commission decided to delete “may” in the first line and replaced it with “shall” so as to make it mandatory for the Defence Council to make regulations or any other law, when once approved by the President, for the efficient and effective management of the Armed Forces.

 90. Independent Forces Complaints Commission
The Commission saw the need for Government to create an Independent Forces Complaints Commission comprising mostly of civilians, who would look into all complaints against the Police and the Army.  The Commission believed that such an institution would encourage affected persons to lodge complaints against the Police and the Army.

 
CHAPTER XIV  

91. THE PRISONS SERVICE COUNCIL
A Paper submitted by a member of the Commission on the need to establish ‘The Prisons Service Council’ was extensively discussed.  The Commission edited and adopted the Paper on the grounds that such a Council will act as a regulatory body of the Prisons Department and will facilitate improvement in the quality of service and personnel of the Prisons Department.  The Paper is presented here below:

 The Prisons Service Council
01.        (a)    There shall be a Prisons Service of Sierra Leone
    (b)    The Prisons Service shall be equipped and maintained to perform its traditional role efficiently.

02. There shall be established a Prisons Service Council which shall consist of:-
(a) the Vice President, who shall be Chairman;
(b) the Minister responsible for Internal Affairs;
(c) the Director-General of the Prisons Service;
(d) a Medical Practitioner nominated by the Sierra Leone Medical and Dental Association;
(e) a Lawyer nominated by the Sierra Leone Bar Association;
(f) the Attorney-General or his representative;
(g) the Minister or a representative of the Ministry of Social Welfare, Gender and Children’s Affairs;
(h) two representatives from the Inter-Religious Council;
(i) the Government Psychiatrist;
(j) one member appointed by the President;
(k) the Chairman of the Civil Service Commission;
(l) a representative of the National Human Rights Commission; and
(m) a person with adequate background in counselling and social work.

03. (a) The Director-General of the Prisons Service shall, subject to the provisions of this article and to the control and direction of the Prisons Service Council, be responsible for the operational control and the administration of the Prisons Service.

04.   (a)   Subject to the provisions of this Constitution, the power to
appoint  persons to  hold or to act in an office in the Prisons Service shall vest in the President, acting in accordance with the advice of the Prisons Service Council.

    (b)The President may, subject to such conditions as he thinks fit,
delegate some of his functions under this article by directions in writing
to the Prisons Service Council or to a Committee or a Member of the
Council.

05.  (a)   The Prisons Service Council shall advise the President on matters of policy relating to the organisation and maintenance of the Prisons Service, prisons budgeting and finance, administration and the promotion of officers above the rank of Assistant Director of Prisons.
       
(b)     The Prisons Service Council may, with the prior approval of the President, by Constitutional Instrument, make regulations for the performance of its functions under this Constitution or any other law and for the effective and efficient administration of Prisons and Prisons service.
 
(c) Regulations made under clause (2) of this article shall include provisions relating to-

(i) the control and administration of Prisons and Prisons Service;

(ii) the rank of officers and men of the Prisons Service, the members of each rank and the use of uniforms by the members;

(iii) the conditions of service including those relating to enrolment, salaries, pensions, gratuities and other allowances of officers and men;

(iv) the authority and powers of command of the officers and men of the Prisons Service;

(v) the delegation to other persons of powers to discipline persons and the conditions subject to which delegations may be made;

(vi) the payroll system and the periodic review of the conditions of prisoners and all other persons in legal custody at intervals of not more than one year;

(vii) the conditions under which persons may be admitted into prisons;

(viii) the making of reports of unjustified treatment of, and cruelty to, prisoners and persons in legal custody and the manner in which the reports should be dealt with;

(ix) the appointment and composition of welfare committees for prisons and discharged prisoners and other persons released from legal custody;

(x) ready access by lawyers to prisoners and other persons in legal custody; and

(xi) such measures, generally, to ensure humane treatment and welfare of prisoners and other persons in legal custody, including the provision of literature and writing materials.

06. There shall be established for each region a Regional Prisons Committee which shall consist of :

(a) the Resident Minister appointed for the region,  who shall be Chairman;
(b) the most senior member of the Prisons Service in the region;
(c) a representative of the Attorney-General
(d) a lawyer practising in the region nominated by the Sierra Leone Bar Association;
(e) the Regional Director of Health Services;
(f) a medical practitioner in the region nominated by the Sierra Leone Medical and Dental Association;
(g) the Regional Director of Social Welfare;
(h) two representatives of such religious bodies as the Regional Minister may deem fit to appoint;
(i) one Paramount Chief appointed from the region; and
(j) the Regional Police Commander.

07. (2) A Regional Prisons Committee shall advise the Prisons Service Council and the Director-General of the Prisons Service on any matter relating to the administration of prisons and of the Prisons Service in the region.

92.        EXTRACTIVE INDUSTRIES TRANSPARENCY COMMISSION (EITC)
The Commission recommended the establishment of an Extractive Industries Transparency Commission aimed at ensuring that the country derives maximum benefit from its extractive industries and similar entities.  The text of the Commission reads:

Subject to the provisions of this Constitution, Parliament shall, not later than twelve (12) months from the commencement of this Constitution, enact legislation to establish the Extractive Industries Transparency Commission (EITC).

The Act shall determine the composition and functions of the Commission, which shall include the following:
(a) to ensure due process and transparency in the payments made by extractive industries and other entities to the Sierra Leone Government and its agencies;
(b) to ensure accountability in the revenue receipts of the Sierra Leone Government from extractive industries and other entities;
(c) to eliminate all forms of corrupt practices in the determination, payments, receipts and posting of revenue accruing to the Sierra Leone Government from extractive industries and other entities; and
(d) to ensure the provision of adequate funds for the regeneration and restoration of the environment.

Chapter XVI

93.   PARLIAMENTARY SERVICE COMMISSION
1. A Commission which shall be known as the Parliamentary Service Commission shall be established under this constitution.
2. The commission shall consist of-
a) the Speaker, who shall be the Chairman; and
b) fourteen other members of the House of representatives and the Senate.
3. The Clerk of Parliament shall be secretary to the Commission.
4. The Chairman and other members of the Commission shall hold office for the duration of the Parliament in which they are elected.
5. Parliament shall enact legislation to determine the functions of the Commission, the appointment and conditions of service of the Commission and any other matter necessary for the smooth operation of the Commission.

__________________________                                          ______________________________
      Dr. Peter L. Tucker                                                                    S. A. T. Tamu
        Chairman                                                                                  Secretary

APPENDIX

MEMBERSHIP OF THE COMMISSION

Dr. Peter  L. Tucker                                -                                             Chairman

SIERRA LEONE BAR ASSOCIATION
Mr.   Nasiru D. Tejan-Cole
Mr. Yada Williams

COALITION OF CIVIL SOCIETY AND HUMAN RIGHTS ACTIVISTS
Mr. Charles  Mambu

SIERRA LEONE ASSOCIATION OF JOURNALISTS  (SLAJ)
Alhaji  Ibrahim Ben Kargbo

SIERRA LEONE LABOUR CONGRESS
Mr. Mohamed A. Deen

SIERRA LEONE MARKET WOMEN ASSOCIATION
Mrs. Marie Bangura

SIERRA LEONE TEACHERS UNION
Mr. Abdulai B. Koroma
Mr. Davidson A. Kuyateh

CAMPAIGN FOR GOOD GOVERNANCE
Ms Valnora  Edwin

NJALA UNIVERSITY
Professor A. M. Alghali

FIFTY/FIFTY GROUP OF SIERRA LEONE
Mrs. Harriett Turay

SIERRA LEONE ASSOCIATION OF NON-GOVERNMENTAL ORGANISATIONS
Aiah Foday-Khabenje

INTER-RELIGIOUS COUNCIL OF SIERRA LEONE
Alhaji Dr. A. B. karim
Rev. L. B. Rogers-Wright

LAW REFORM COMMISSION
E. E. C. Shears-Moses  Esq.
N. C. Browne-Marke  Esq.

THE UNIVERSITY OF SIERRA LEONE
Eke Halloway Esq.

SIERRA LEONE PEOPLE’S PARTY
Mr. Anthony Y. Brewa
Hon. Dr. Bernadette Lahai

CIVIL SOCIETY MOVEMENT-SIERRA LEONE (CSMSL)
Mr. Festus Ewaaka  Minah

NATIONAL COMMISSION FOR DEMOCRACY
Mr. George Coleridge-Taylor

LAW OFFICERS’ DEPARTMENT
Mr. Tunde Cole
Mr. O. Robbin-Mason

COUNCIL OF PARAMOUNT CHIEFS
Alhaji P. C. I. B. Kamara-Koroma
Dr. P. C. Jeremiah Sienna-Kangova II
P.C Alimamy Yembeh Mansaray

LOCAL COUNCIL
Dr. Wusu Sannoh
Mr. David Woobay

OFFICE OF THE OMBUDSMAN
Mr. Francis Gabbidon

SIERRA LEONE CHAMBER OF COMMERCE, INDUSTRY AND AGRICULTURE
Alhaji  Musa King

ALL PEOPLES’ CONGRESS PARTY
Mr. William J. Smith
Mr. Osman F. Yansaneh

ALL POLITICAL PARTIES ASSOCIATION  (APPA)
Madam Isata Bangura                                     -                                 PMDC
Mr. Mahmoud Ahmed Koroma                       -                                 PDP
Mr. Sulaiman Lionel Thomas                            -                                 NDA
Mr. Samuel Gbessay Kanu                               -                                RUFP
Mr. Osman B. Conteh                                       -                                 UNPP

 THE GOVERNMENT PRINTER
Mr. B.J. Temple

PRESIDENT’S NOMINEES
Mr. Onesimus Babatunde Walker
Mr. Josef O. Carpenter

THE JUDICIARY
Hon. Justice M. E.  Tolla Thompson
Hon. Justice Salimatu Koroma

REPUBLIC OF SIERRA LEONE ARMED FORCES
LT. COL. I. M. Koroma

SIERRA LEONE POLICE
M. B Kamara.

SECRETARY
Mr. S. A. T. Tamu

SUPPORT STAFF
Ms. Viola Johnson
Mr. Drucil Taylor
Mr Farid Alghali
Mr Sahr James
Mrs. Cecilia Paton-Cole
Mrs. Georgiana Johnson

PRELIMINARY REPORT
OF
THE CONSTITUTION REVIEW COMMISSION

APPOINTED BY

HIS EXCELLENCY THE PRESIDENT
ALHAJI DR. AHMAD TEJAN KABBAH

TO REVIEW THE CONSTITUTION OF

SIERRA LEONE, 1991

MARCH 2007

TABLE OF CONTENTS
           Pages
Introduction         - 1
Chapter 1  - The Republic of Sierra Leone  - 5
Chapter II  - Fundamental Principles of State Policy- 6
Chapter III  - Citizenship     - 8
Chapter IV - The Recognition of Protection of  
Human Rights and Freedoms
of the Individual    - 13

Chapter V  - The Representation of the People - 23

Chapter VI - The Executive      - 25

Chapter- VII - The Legislature     - 30

Chapter VIII - The Judiciary     - 40

Chapter IX - The Ombudsman    - 48

Chapter X  - Local Government    - 49

Chapter XI - Commissions of Inquiry   - 50

Chapter XII - The Public Service Commission  - 51

Chapter XIII - The Armed Forces    - 52

Chapter XIV - Prisons Service Council   - 54

Chapter XV - Extractive Industries Transparency
    Commission     - 59

Chapter XVI - Parliamentary Service Commission - 60