Position Paper On “REPORT ON THE REVIEW OF THE 2017 GOVERNMENT WHITE PAPER ON THE CONSTITUTION OF SIERRA LEONE, 1991 (ACT NO.6 OF 1991)”


  1. On Thursday, January 13, 2022, the Government of Sierra Leone published its review of the
    2017 White Paper issued by the previous Government on the recommendations of the Justice
    Cowan-led Constitutional Review Committee (CRC).
  2. ILRAJ welcomes the Government White Paper and notes that it is a significant improvement
    from the one issued by the previous Government.
  3. The Government’s Report reviewed the White Paper examined by the previous Government
    and reviewed the recommendations of the Constitutional Review Committee.
  4. In this position paper, we will review the position in the Report and make suggestions and
    recommendations on how they can be improved. Our review is by no means exhaustive. It will
    be supplemented with other advocacy tools we will publish in the future.

    B. FUNDAMENTAL PRINCIPLES OF STATE POLICY
  5. We note that under this heading, the Government accepted the following CRC’s
    recommendations to wit: to incorporate principles of human dignity and equality into the
    fundamental principles of state policy in Chapter 2 of the 1991 constitution, to direct its policy
    towards ensuring adequate medical and health facilities for all persons without qualifying it to
    “regard to the resources of the state,” to prohibit discrimination, to provide free quality
    education, to include civic education and entrepreneurship among the state’s educational
    objectives, to promote national culture, citizens to respect the national currency and national
    pledge.
  6. We welcome the acceptance of these recommendations by the Government.
    Non-Justiciability
  7. We are disappointed that the Government decided to retain section 14 of the 1991
    Constitution, which ensures that the rights conferred in Chapter 2 of the Constitution, such as
    the right to health, education, etc. are not legal rights, and citizens cannot take legal action if
    Government fails to provide them. This seriously limits citizens’ rights to seek redress and
    make these rights merely aspirational. Where there is a violation of the economic, social and
    cultural rights, there is no mechanism for redress.
  8. ILRAJ is of the humble view that rights stated in Chapter 2 of the 1991 Constitution should be
    enforceable. The CRC mentioned that these rights are enforceable in other African countries
    such as Kenya, South Africa and Uganda. Making them enforceable will ensure that we comply
    with our international obligations. In some instances, in its report Government states that it
    will follow best practices in other countries. We must not be selective and cite international
    best practices only when it suits our decision.
  9. It is important to rehash the rationale given by the CRC regarding justiciability –”
    The lack of justiciability in the rights and freedoms outlined in the
    Constitution is a grave problem because it prevents the people from
    holding the Government accountable for unjust violations. All public
    Offices and leaders must be answerable to its people. If one’s freedoms
    and rights have been or is likely to be contravened, they should have
    the right to apply to an appropriate court and order compensation, legal
    remedy or any other redress. There should be an independent and
    impartial tribunal to judge such as cases to avoid any bias and unjust
    decisions. If there are no checks and balances on the Government, the

    Government would have free rein to violate anyone’s rights and
    freedoms without fear of consequences. There must be a medium
    through which the rules can be justifiable in order to make them
    enforceable, and an independent, impartial tribunal that is easily
    accessible by the people is one route by which that can happen.
    Furthermore, if a party is aggrieved by any decision of the court,
    he/she should be able to appeal to the next court. Parliament should
    make laws for the enforcement of the rights and freedoms under the
    Constitution. During this, the people should be able to hold them
    accountable by requesting that they report on the measures they’ve
    adopted to give effect to the rights and progress on the enforcement of
    rights. According to the African Charter, countries have to submit
    reports on the measures they’ve adopted and progress they’ve made in
    the enjoyment of these rights within two years of entry and afterwards,
    every three years. This type of transparency allows the people and
    other countries to hold the Sierra Leonean government accountable for
    their promises and duties as protectors of citizens’ rights and
    freedoms.”
  10. It is also essential to note that the CRC stated that during the consultation process when the
    question was asked: “should there be a provision that would help citizens to enforce these
    rights against the Government through the formal legal system?” The results revealed that the
    majority (90%) of the respondents agreed that there should be a provision to help citizens
    enforce their rights through the formal legal system.
  11. ILRAJ strongly urges the Government to reconsider its position on the issue of justiciability of
    the rights under chapter 2 of the 1991 Constitution of Sierra Leone.
    Acting Inconsistent with the Constitution
  12. The Government rejected the recommendation of the CRC to expand the provisions of section
    6(5) of the 1991 Constitution by making provision “prohibiting all organs of Government and
    Public Officers from acting in any way that is inconsistent with the Constitution or their office
    and exposing themselves to situations of conflict of interest between their official
    responsibilities and private interests.”
  13. The reason for the Government’s rejection of this recommendation is that it believes the
    current anti-Corruption law is fully expansive and has been highly effective in combatting
    corruption.
  14. While the latter part of the rationale remains debatable, what is not is that the recommendation
    of the CRC goes beyond the anti-corruption law. It reiterates the duty and responsibility of all
    Government and public officers to ensure they do not act in a manner that is inconsistent with
    the Constitution. The Constitution deals with a host of other matters, including but not limited
    to anti-corruption.
    Universal Healthcare
  15. We are delighted that Government accepted the recommendation of the CRC so that sections
    8 (3) (c) and (d) of the 1991 Constitution will now read as follows:
    (c) the health, safety and welfare of all persons in employment are
    safeguarded and not endangered or abused, and in particular that
    special provisions be made for working women with children;
    (d) there are adequate medical and health facilities for all persons;
  16. If this provision is made justiciable and resources are allocated to health care service delivery,
    it will go a long way to ensuring that we improve our infant and maternal mortality ratio, Sierra
    Leone moves up in the UN Human Development Index and achieve goal 3 of the Sustainable
    Development Goal.
    Human Right Education
  17. Government proposes to amend section 9(3) of the 1991 Constitution as follows “the
    Government shall promote the learning of indigenous languages and the study and application
    of modern sciences, foreign languages, technology, civic education, conflict management,
    commerce and entrepreneurship.”
  18. The Government specifically deleted the phrase “human rights” as recommended by the CRC.
  19. The CRC specifically included the promotion of human rights because it said it ‘was mindful
    of the TRC recommendations on human rights protection which state: “Under this heading,
    the Commission seeks to promote the creation of a human rights culture in Sierra Leone. A
    rights culture is one in which there is knowledge and recognition of the basic rights to which
    all human beings are entitled. A rights culture demands that we respect each other’s human
    rights, without exception.” The CRC, therefore, recommends that the Government should
    introduce courses in schools, colleges other learning institutions on developments in the field
    of human rights and conflict prevention and management.”
  20. ILRAJ welcomes the Government’s inclusion of civic education but is disappointed by the
    deletion of the phrase “human rights.” We believe that civic education and human rights
    complement each other and will go well together.
    Information, Communication and the Media
  21. The Government decided not to amend section 11 of the 1991 Constitution and not to include
    a new chapter titled “Information, Communication and the Media” with detailed provisions on
    freedom of the press, media freedom and independence, no State interference, and
    establishment, composition and functions of the Independent Media Commission be included
    in the Constitution.
  22. The Government notes in its Report that the Freedom of Information Act, 2013 and the
    Independent Media Commission Act, 2020 cumulatively address these issues and should
    therefore not be addressed in the Constitution.
  23. With the greatest respect to the Government, the Constitution is the supreme authority and
    law of our country, and it takes precedence over all other laws and legislation. Because there
    is detailed legislation dealing with the media does not mean freedom of the press and its
    independence cannot be dealt with in the Constitution. It is important to guarantee and secure
    these rights in the grundnorm of the Republic. A breach of these rights in the Constitution
    could be taken directly to the highest court of the land, i.e., the Supreme Court.
  24. ILRAJ urges the Government to reconsider its position on this issue and include this new
    chapter in the Constitution.
    National Culture
  25. We wholeheartedly welcome the amendment of Section 12(a) of the Constitution to include
    ‘dresses’ that promote Sierra Leonean culture and commend the President for regularly
    promoting Sierra Leonean attire.
    C. THE RECOGNITION AND PROTECTION OF THE FUNDAMENTAL HUMAN RIGHTS
    AND FREEDOMS OF THE INDIVIDUAL
  26. We note that under this heading, the following recommendations were accepted: To rename
    Chapter 3 The Recognition, Protection and Promotion of Human Rights and Freedoms of the
    individual, to abolish the Death Penalty, to reduce detention periods from ten days to seven
    days in cases of capital offences and from seventy-two hours to forty-eight hours in the case
    of other offences, to compensate and/or apologize to persons unlawfully arrested and
    detained, to subject the protection of fundamental rights to National Security, Protection from
    6
    torture and inhuman treatment to be absolutely guaranteed, to draft a New Section 27, Not to
    derogate from fundamental human rights to life, the prohibition of torture, the principles of
    legality, freedom of thought conscience and religion during a state of emergency, to have a
    dedicated chapter in the Constitution dealing with citizenship.
    Death Penalty
  27. We strongly commend Government for accepting the CRC’s recommendation to abolish the
    death penalty.
    Arrest without Charge
  28. We welcome Government’s decision to reduce the detention period prior to “being brought to
    court to seven days from ten days for heinous offences and forty-eight hours from seventy￾
    two for other offences, respectively.”
  29. We are concerned that the term “heinous offences” was not defined. To prevent abuse, we
    urge Government to define this term so that it is clear and unambiguous that it is restricted in
    scope and limited only to offences such as treason and armed robbery.
    Protection from Inhuman Treatment
  30. We are delighted that the Government accepted the CRC’s recommendation to delete the
    provision in the provisio, which legitimised a law or any law authorising the infliction of any
    kind of punishment that was lawful immediately before the entry into force of the Constitution
    be abolished.
    What is National Security?
  31. ILRAJ notes that “national security” is used to clawback many of the rights granted under this
    chapter of the Constitution, including protection of freedom of movement and protection from
    deprivation of property.
  32. ILRAJ notes the importance of national security. It is and should not be absolute. Government
    must clearly define the scope of “national security” so that it is not relied upon to curtail human
    rights. The right balance between human rights and national security should always be struck.
    “A government’s over-invocation of national security concerns can seriously undermine the
    main institutional safeguards against government abuse: independence of the courts, the rule
    of law, legislative oversight, media freedom, and open government.”
  33. ILRAJ is disappointed that Government was equivocal in its Report about including a new
    chapter in the Constitution. It stated that “National security is crucial for the survival and
    sustenance of the State of Sierra Leone like for any other country. There is a need to ensure

    that National security issues are clearly defined in the new Constitution. A new chapter
    dedicated to defining the structure, principles, coordination, financing, coordination and
    safeguarding shall be provided in the new Constitution.”
  34. It failed to say whether the new chapter in the Constitution will be the same as proposed by
    the CRC.
  35. ILRAJ urges the Government to adopt the recommendation of the CRC to inter alia state that
    the “national security” of Sierra Leone should be promoted and guaranteed in accordance with
    the following principles – a. national security shall be subject to the authority of this
    Constitution and Parliament; b. national security shall be pursued in compliance with the law
    and with the utmost respect for the rule of law, democracy, human rights and fundamental
    freedoms;
  36. ILRAJ further urges the Government to ensure that the new chapter is in tandem with
    international standards and complies with inter alia the Global Principles on National Security
    and the Right to Information (Tshwane Principles).
    Public Emergency
  37. ILRAJ welcomes that clear and categorical statement that there will be “no derogation of the
    fundamental human rights to life, the prohibition of torture, the principles of legality in the
    fields of criminal law, and the freedom of thought, conscience and religion during a State of
    emergency.”
    Gender Discriminatory Provision
  38. ILRAJ welcomes the Government’s acceptance of the recommendation to draft a new section
    27 of the 1991 Constitution to provide for gender inclusivity, protection from discrimination
    and promotion of the rights and empowerment of women in line with the Government’s policy.
  39. ILRAJ urges the Government to accept the draft new section submitted by the CRC, which
    includes the following provisions:
    “(1) Every person is equal before the law and has the right to equal
    protection and benefit of the law.
    (2) Equality includes full and equal enjoyment of all rights and
    fundamental freedoms.
    Women and men have the right to equal treatment, including the right
    to equal opportunities in political, economic, cultural and social
    spheres.

    (3) A person may not be discriminated against on the grounds of race,
    colour, ethnic origin, religion, creed, social or economic status.
    (4) For the purposes of this section discriminates means to give
    different treatment to different persons attributable or mainly to their
    respective description by race, sex, pregnancy, marital status, health
    status, ethnic or social origin, colour, age, disability, religion,
    conscience, belief, culture, dress, language or birth.
    (5) Neither the state nor any person shall discriminate against any other
    on any of the grounds specified in section 5.
    (6) The state shall take legislative and other measures to implement the
    principle that not more than two thirds of the members of elective or
    appointive bodies shall be of the same gender.
    (7) Nothing in this section shall prevent Parliament from enacting laws
    that are necessary to provide for the implementation of policies and
    programmes aimed at addressing social, economic, and educational
    imbalances in the Sierra Leonean society.”
    New Chapters
  40. We urge the Government to review its decision not to add new chapters relating to the right
    to the environment, the right of the aged, persons with disability and the rights of the child in
    the Constitution. We reiterate our view that the Constitution is the supreme of land and these
    rights are very important to be included in the Constitution.
    D. CITIZENSHIP
  41. We are delighted that Government accepted the recommendation to draft a new chapter on
    citizenship in the Constitution “as citizenship is very vital in the government structure of the
    State and therefore needs to be clearly defined in the most important legislation – the
    Constitution.”
  42. In its submission to the CRC, the then opposition Sierra Leone Peoples’ Party (SLPP)
    emphasized that “we further believe that a new chapter on citizenship should now form part
    of a reviewed 1991 Constitution as international best practice dictates that modern
    Constitutions should give a clear and authoritative provision which would determine who the
    citizens of a country are and how to acquire citizenship without reference to racial or
    gender criteria.” (emphasis ours).
  43. Now in Government, we urge them to ensure that the new chapter adopts the
    recommendations of the CRC, which included removing all references to race concerning the
    criteria of acquisition of citizenship.
  44. In addition, we also call for sections 75 & 76 of the Constitution to be replaced “to enable
    citizens by naturalization to hold Public Office and Elected offices, except that of the
    presidency,” for Citizenship by birth to be enlarged to include every person born in or outside
    Sierra Leone before April 27th, 1991, one of whose parents was born in Sierra Leone and for
    citizenship by marriage to be granted if a person has been married to a citizen for at least five
    years.”
    E. THE EXECUTIVE
  45. We note that the CRC recommendations accepted under this heading are: to hold presidential,
    parliamentary and local government elections on the same day, to have a fixed date for the
    inauguration of an elected president, loss of party membership is not an automatic cause for
    the removal from office of a sitting President or Vice President, That the board constituted to
    enquire into the mental and physical capacity of the President to discharge his constitutional
    duties should report to the Speaker within 90 days, separation of the office of the AG from the
    Minister of Justice.
    Supreme Executive Authority
  46. ILRAJ is disappointed that the Government believes that replacing the phrase “supreme
    executive authority” with “chief executive” is a puerile attempt at undermining the President’s
    constitutional authority.
  47. In its manifesto, the SLPP stated, “A presidency that is powerful beyond the limits of
    democratic governance is dangerous for any democracy. Sierra Leone can ill afford an elected
    autocrat in our presidency…The last 10 years of APC rule has left Sierra Leoneans stunned by
    the unlimited and unbridled use of “Executive Power.” State governance has been treated by
    President Ernest Bai Koroma as if there are no constitutional injunctions or limitations under
    the 1991 Constitution.” The SLPP committed to avoiding the reckless use of supreme
    executive authority and so-called orders from above.
  48. The interpretation given to the phrase by the Supreme Court in Alhaji Samuel Sam Sumana vs.
    Attorney-General and Minister of Justice and Victor Bockarie Foh has created chaos and given the
    impression that the President can override any law, including the Constitution using supreme
    executive authority. The phrase is vague and has been cited in instances of excessive abuse,
    and if this is not addressed, it will be abused in the future. Therefore, we think that the
    recommendations to use “chief executive” instead of supreme executive authority are not
    puerile. In a country where democracy and the rule of law prevail, the people and the
    Constitution should be supreme.
    1
    Qualification of the Attorney General, Solicitor General and Director of Public Prosecutions
  49. When referring to the minimum number of years of entitlement to practice for these offices,
    the Report talks about the age for qualification. We consider this a minor omission.
  50. The Government in its Report is proposing that the minimum number of years of entitlement
    to practice for qualification for appointment as DPP and Solicitor General be reduced from
    fifteen years to twelve years, respectively. They similarly recommended that to be appointed
    Attorney-General, the minimum number of years should be reduced from twenty years to
    fifteen years.
  51. These recommendations were not included in the CRC report. While Government has a right
    to introduce and make new recommendations, we are concerned that no clear rationale was
    provided in the Report.
  52. We welcome the separation of the office of Attorney-General from that of Minister of Justice
    and the recommendation that appointment of the Attorney-General be subjected to
    parliamentary approval.
    F. THE LEGISLATURE
  53. We note that the recommendations accepted under this heading are: that members of
    parliament shall be elected in accordance with a system of proportional representation, public
    officers to resign from office six months before vying for Parliamentary seats, Speaker shall be
    qualified to be appointed as a Judge, Parliamentary Committees to have additional powers to
    investigate and enquire into the activities or administration of agencies of Government.
    The President is a Parliamentarian
  54. We note with utmost disappointment that the recommendation that the President should cease
    to be part of the composition of Parliament was rejected by the Government. It is worth
    reminding that this was not just a mere recommendation in the CRC. It emanated from the
    TRC, the Peter Tucker Commission report, expert opinion and the overwhelming views of the
    people of Sierra Leone.
  55. We agree with the CRC that section 73(1) of the Constitution of Sierra Leone should be
    amended to read as follows: “There shall be a legislature of Sierra Leone which shall be known
    as Parliament, and shall consist of the Speaker and Members of Parliament.”
    Women’s Political Representation
  56. The Government accepted the recommendation that thirty percent of the participants in public
    elections, i.e., Presidential, Parliamentary and Local Council elections, should be women. The
    Government further proposes amending section 38 of the 1991 Constitution to provide for
    proportional representation to achieve women’s participation in public elections.
  57. This is inconsistent with the provisions of the draft Gender Equality and Women’s
    Empowerment (GEWE) Bill, which speaks to a 30 percent minimum representation of women
    rather than participation which is clearly different.
  58. We note with concern the Government’s response to the recommendation “that not less than
    30 percent of parliament shall be women details of which should be prescribed by an Act of
    Parliament.” Unfortunately, the Government believes that “this issue should be addressed in
    another legislation and not in the constitution.”
  59. Moreover, in its position paper to the CRC, the SLPP “went on to state that the Constitution
    should guarantee a 30 percent quota of women in leadership positions, including in customary
    and traditional structures stating let the constitution confirm that affirmative actions should
    also be used to address women’s economic backwardness and poverty.”
  60. ILRAJ urges the Government to include strong provisions about a minimum of thirty percent
    women’s representation to prevent any further legal challenge to the GEWE law and policy.
    Section 77(1)
  61. In its Report, the Government rejected the CRC’s proposed recommendations for
    amendments to sub-sections (k), (l) and (n) and also dismissed the proposed new subsection
    (o) of section 77(1).
  62. We consider this a missed opportunity by the Government to strengthen our democracy and
    accountability of members of Parliament to their constituents.
  63. We urge the Government to reconsider its stance and amend the said sub-sections by adding
    the phrases indicated in bold and by adding the new sub-section (o).
    (k) if she/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
    (l) if by his conduct in Parliament by persistently sitting and voting
    with members of a different party, the Speaker is satisfied after
    consultation with the Leader of that Member’s party and upon

    sufficient evidence that the Member is no longer a member of the
    political party under whose symbol she/he was elected to Parliament;
    or
    (m) if, being elected to Parliament as an independent candidate, he
    joins a political party in Parliament; or
    (n) if she/he accepts office as Ambassador or High Commissioner for
    Sierra Leone or any employment with an International or Regional
    Organization.
    (o) The constituents shall have the right to recall a respective
    Member of Parliament of the same constituency before the end
    of their term.
    Provided that Parliament shall enact legislation and procedure
    for the grounds on which a member may be recalled.
    Proportional Representation
  64. The Government accepted the recommendation of the CRC for members of parliament to be
    elected by proportional representation.
  65. ILRAJ notes that all types of voting systems have advantages and limitations. No matter which
    method is selected, there will be shortcomings.
  66. Although there was public disaffection after the proportional representation system was used
    in the 1996 elections, what is often lost in the debate is that there are many types of
    proportional representation. The party list system is not the only version.
  67. We must be willing to consider other options and not just limit ourselves to one type of
    proportional representation.
    G. THE JUDICIARY
  68. We note that under this heading, the recommendations accepted are: to increase the number
    of Supreme Court Judges, Court of Appeal and High court, the power of the Chief Justice by
    statutory instrument to create divisions of the court of appeal as he may consider necessary,
    the addition of court-martial to section 129 (2), to expand the composition of the JLSC albeit
    to include only the Financial Secretary, to change references to court as “inferior” and
    “traditional” to “subordinate” and “local.”
    Appointment of Judges
  69. We note that Government rejected the proposed amendment to section 135(4) of the
    Constitution of Sierra Leone.
  70. ILRAJ strongly believes that the procedure for the appointment of judges must be open and
    transparent. Vacancies must be advertised to provide equal access to all, there must be an
    open interview process which includes public participation and appointment by the President
    and approval by Parliament must be only the candidates that have gone through this process.
    The procedure is currently being used in Kenya and we believe we should adopt the same.
    Judicial Vacancies
  71. The Government’s rejection of the CRC proposal to amend section 136 (4) by including the
    words “…subject to the approval of Parliament” is disappointing.
  72. By rejecting this recommendation, a back door has been provided for Judges to be appointed
    without the approval of Parliament. We do not believe this was the intention of the original
    drafters of the 1991 Constitution and Government should not miss this opportunity to close
    that back door.
    Composition of the JLSC
  73. We note the Government’s acceptance to expand the scope of the JLSC by the addition only
    of the Financial Secretary. We are disappointed that Government did not adhere to the
    concerns and recommendations to make the Commission more independent by increasing its
    membership.
  74. At the CRC, the Human Rights Commission of Sierra Leone advocated that access to justice
    for the public would be enhanced if the composition of the Judicial and Legal Services
    Commission was expanded to include representatives of civil society and members of the
    public. Similarly, the Law Reform Commission “recommended that the JLSC should be
    restructured and expanded to include representation from other law-related institutions and
    that its the functions should be broadened to include performance management, disciplinary
    control over judges, investigation of complaints against judicial officers, and advising the
    Government on ways of improving the administration of justice.” We associate ourselves with
    these statements.
    H. CONCLUSION
  75. We urge Government to ensure that the chapters relating to Local Government &
    Decentralization and the Public Service should be in line with the recommendations as drafted
    by the CRC in its Report. We are worried that the holistic recommendations made by the CRC
    in respect of these additional chapters were not thoroughly reviewed.
  76. We further observe that the White Paper is silent on the other chapters recommended by the
    CRC. The recommended chapters relating to the National Development Planning Commission
    and Commissions and Independent Offices were not addressed by the Government in the
    white paper.
  77. It is also unfortunate that there was only one woman in the 12 members technical committee
    that worked on the Government’s Report. We urge the Government to do better to ensure
    gender equality and that women are empowered in all bodies it sets up.
  78. In framing a new Constitution, we urge Government to think about posterity as constitution
    building is long-term and is not confined to the period when a constitution is written.
  79. Government must do its utmost to ensure that the outcomes and recommendations are
    legitimate and broadly accepted.
  80. We trust Government will take our comments in good faith. We look forward to the public
    consultations and deliberations and the roadmap for implementing these recommendations as
    some of the amendments are entrenched provisions in the Constitution.
    Signed on behalf of ILRAJ by Basita Michael (Mrs).
    January 27, 2022.
    The Institute for Legal Research and Advocacy for Justice (ILRAJ) is an independent non￾
    partisan public policy research and educational think tank established to explain, monitor and
    contribute to the protection of human rights and the rule of law; preserve, study, and enhance
    accountability and access to justice; increase awareness and understanding of and promote,
    women’s and children’s rights, youth justice and respect for human rights; promote capacity
    Building amongst women, the youth, disadvantaged communities and groups. Fosters
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    law reform sensitization, litigation and advocacy to enforce the rights of individuals
    communities and disadvantaged groups; offer expertise to train human rights leaders and
    provide legal advice and expertise to support governments, quasi government bodies, civil
    society organizations and other institutions. https://www.ilraj.org
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