HOW THE JUDICIAL APPOINTMENT PROCESSES IN SIERRA LEONE AFFECT JUDICIAL INDEPENDENCE?
By: Karim Samura & Halimatu D. Sesay
The judicial appointment processes in Sierra Leone, like in many other countries, play a critical role in shaping Judicial independence and Good governance to the enhancement of a healthy Democracy. Judicial independence is a fundamental principle in any democracy, as it ensures that the judiciary can make impartial and fair decisions without undue influence from the other branches of government or external actors. In Sierra Leone, the judicial appointment processes can have both positive and negative effects on judicial independence, depending on various factors and how they are implemented. This article will elucidate or shed light on the Constitutional framework for Judicial appointment in Sierra Leone, the ways in which these processes can affect judicial independence, proffer solutions and conclude.
THE CONSTITUTIONAL FRAMEWORK FOR JUDICIAL Appointment IN SIERRA LEONE.
Section 135 of the 1991 Sierra Leone's Constitution establishes the framework for judicial appointments. It provides that:
"The president shall, acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament, appoint the Chief Justice by warrant under his hand from among persons qualified to hold office as Justice of the Supreme Court. " and pursuant to subsection 2 of the aforementioned provision, the president appoints all other Judges. Inasmuch as S. 135 makes provision for Judicial Legal Service Commission advise, from the wordings in S.53(3) of the Constitution , it's not mandatory for the president to act on the advice of anyone including the Judicial and Legal Service Commission and this has rendered that part of the wordings in S. 135 otiose.
Further, the parliamentary approval is considered a mere formality or a "rubber stamp" affair, as the ruling party, conventionally, is with the highest number of parliamentarians including the Speaker, deputy speaker and clerk who are more loyal to their party as they could lose their seat as a member of Parliament upon removal from the party, this is pursuant to S. 77(5) of the Constitution .
IMPACT OF THE PRESIDENTIAL APPOINTMENT OF JUDGES IN SIERRA LEONE.
It is crystal clear from the ipsissima verba wordings of the aforesaid provisions that the executive arm, through the president, has the power to make judicial appointments, and this was considered by many, including the Current Anti-Corruption Commissioner, Francis Ben Kaifala Esq, to be one of the normative structures in the constitution that facilitates lack of Judicial Independence .
This appointment process has led to concerns about executive influence over the Judiciary, as Judges may feel indebted to the president or the ruling party for their appointments and in turn rule on their favour as a consideration. It has raised suspicions of favouritism, political patronage, or corruption, which has brutally undermined the perception of judicial independence. For instances, the case of Sam Sumana v Attorney - General and Victor Foh was considered by the Community Court (ECOWAS COURT) to have been decided in favour of the government of the day by a pure and intentional misapplication of the law against the petitioner who was sacked by the president unlawfully. In addition, the same goes to Charles Francis Margai v Solomon Ekuma Berewa where the issue of the resignation of a public officer 12-months prior to the election was decided to favour a sitting vice president.
Due to lack of transparency and impartiality, the Judiciary has lost its shine and sheen to the point that the main opposition party, All people's Congress, after the June 2023 election, made a press release, vehemently refusing to approach the court for alleged electoral malpractices during the said election. They gave a heartily response stating that they have no faith or trust in the Judiciary since they have been filing election petition cases since 2018, but they were unduly delayed,some judgments were never delivered,and other cases were unassigned including the 2018 election petition filed by the party.
The appointment process in Sierra Leone is synonymous to that of many developed countries including the United State of America. However, unlike ours, they have strict guidelines and rules that are efficient checks and balances to counter-abuse. The United State of America demonstrated their independence from the landmark judgement in the case of Marburu v Madison in which the Supreme Court, through Lord Justice Marshall, emphasized the importance of the rule of law and the constitution as the supreme law of the land. It reinforced the idea that no one, not even the president, is above the law.
The Report from the Truth Reconciliation Commission (TRC) enunciated that one of the reasons for the 11 years civil war in Sierra Leone is the lack of Judicial Independence, which manifested great injustice. For history not to repeat itself, it's of essence we seek a change that will enhance or sanctify the independent of the Judiciary. One requested change is in the appointment process.
Just like England and Wales, we should have an independent Judicial Appointment Commission body which should be mandated to select candidates for Judicial office to the superior Courts and tribunals below. The Judicial Appointment Commission should be constitutionally mandated to select on merit, good character, and how apolitical the candidate is. With respect to the merit criterion, the best- qualified person should be selected based on their skill and experience. In practice, this requires that the knowledge, experience, abilities, and personal suitability of candidates is evaluated against the requirements of the position. Considerations must be given to their intellectual capacity, personal qualities, an ability to understand and deal fairly, authority and communication skills, leadership, and management skills. To ensure transparency, the JAC selection process should be on a website including an application form, references, shortlisting, interviews, role plays, statutory consultation, and character checks. After all the processes have been completed, a report should be made to the Chief Justice.
The JAC should comprise of experienced Judges who have demonstrated excellent legal skills and high standards on integrity in practice and as an independent body should not be directly appointed by any individual or government minister.
In conclusion,the current system, outlined in the 1991 Constitution, gives the executive branch, especially the President, considerable power in appointing judges, this has led to concerns about undue executive influence over the judiciary, potentially compromising the impartiality and fairness of judicial decisions. Reforming the judicial appointment process in Sierra Leone is crucial for enhancing judicial independence, which is essential for the proper functioning of a democratic society. By establishing an independent Judicial Appointment Commission and implementing transparent and merit-based selection processes, Sierra Leone can take significant steps toward building a judiciary that is impartial, credible, and trusted by the public. These reforms can contribute to the promotion of good governance, the rule of law, and the prevention of the recurrence of past injustices.