John Baimba Sesay & Basita Michael
Are we a democracy? We know what you are thinking. How can we even ask such a question when we no longer have coups, we have enjoyed a multi-party democracy for over two decades, held successive elections, have a functioning Media, Judiciary and Parliament? If you are thinking that way, you are not alone. Many of us continue to believe that because our soldiers are not on the streets with guns, and there is no suspension of the constitution, because our newspapers are publishing regularly and our Judiciary and Parliament are sitting, we live in a democracy. However, recent developments suggest that there are other less dramatic but equally destructive ways of dismantling our democracy.
A lot has happened since the publication of the last edition of SierraEye which catalogued various violations of the 1991 constitution and the rule of law. Institutions and norms essential to the health of our democracy have further been undermined in various ways. We have watched our politicians, judges and lawyers say and do things that are unprecedented further endangering our budding democracy.
Judicial Assault on Democracy
Section 120 (3) of the Sierra Leone Constitution, Act No. 6 of 1991, reads “In the exercise of its judicial functions, the Judiciary shall be subject to only this Constitution or any other law, and shall not be subject to the control or direction of any other person or authority”. This singular provision guarantees that the Judiciary shall at all times be independent and dispense justice without fear or favor. The courts have become the new ground for the proxy fight between and amongst political parties. This is a nerve-wracking development that undermines our democracy and weakens the foundation on which a peaceful and tranquil society is built.
The rulings delivered on the 31st May 2019 in the election petition cases involving 16 APC Parliamentarians are clear examples. The outcome of these petitions, leading to the All People’s Congress (APC) losing ten Parliamentary seats, drew extensive criticism not just from the affected party, but from other opposition parties, including the National Grand Coalition (NGC), Coalition for Change (C4C) and the Alliance Democratic Party (ADP). The outcome, delivered a few days after the Peace and National Cohesion Conference, had an adverse impact on the process. Sadly, the verdict saw people who were not elected by majority votes going to Parliament as representatives of the people contrary to the provisions of Section 146 of the Public Elections Act 2012. The section states as follows- “if the election is declared void, another election shall be held.” Despite the said provision, the rulings of the High Court delivered in the said petition cases did not order a new election, in the vast majority of cases; instead they awarded the seats to the Petitioners, who finished second in the election. The orders of the courts run counter to the aforesaid provisions of the Elections Act and deprive the majority of the constituents in the constituencies affected of their democratic right to be represented by members of their choice in a new election. The Courts were condemned by many for vesting in itself the power of the people to elect their representatives.
Many legal practitioners are also concerned with the manner in which the Judiciary currently pick and choose which cases are to be heard and those that are not to be assigned. All Citizens have a right to have their cases heard. Article 7 of the African Charter on Human and Peoples’ Rights, which Sierra Leone has ratified, stipulates that “Every individual shall have the right to have his cause heard.” A glaring example is the refusal of the Honourable Chief Justice to assign the case filed by the Sierra Leone Bar Association with regards to the three Commissions of Inquiry currently sitting. Men and women wearing wigs and gowns are waging a vicious assault on our hard won democracy rather than safeguarding it.
Electoral Stab on Democracy
The National Electoral Commission (NEC) is an essential institution in building our democracy by ensuring the conduct of free, fair and transparent elections. However, NEC’s independence remains debatable. Public trust is diminishing following its recent actions and decisions. For instance, its decision to cancel the results of the re-run elections in constituency 110 in Freetown was roundly condemned by opposition parties and civil society groups including the National Elections Watch (NEW) which argued that “93% of polling station results are already out in public, and this could compromise the secrecy of the voting pattern in the re-run election.”
The cancellation came after NEC had tallied votes cast at all polling centres, counted and results collated except for one centre where political thugs destroyed all ballot papers and equipment in the presence of police personnel and government officials. NEC had no legal basis to cancel the results. The only legal action that it should have taken was a re-run of the election in the single polling centre affected, as was done within Kono.
Many have issues with the current NEC. It is worrying to have a Commission that fails to follow the dictates of the law. The decision to cancel the entire results of the re-run elections in constituency 110 has undermined public confidence in the Commission; when citizens do not trust the electoral process, they often lose faith in democracy.
Putting Loyalists in Charge
The need for an impartial Political Parties Registration Commission is essential for democracy and good governance. Where consultation should be made, it is crucial for it to be done. The appointment of a new Chairman of the Political Parties Registration Commission was done without consultation with political parties as required by law. The main opposition complained of not being consulted on his appointment. A former Deputy Justice Minister was appointed to fill the position.
A cabinet reshuffle in mid-May 2019 saw the appointment of the ruling Sierra Leone People’s Party’s Secretary-General as the new Deputy Justice Minister. Although a positive appointment as it is seen as a pointer to empowering young people, it raises potential conflict of interest issues. His current position as the ruling party’s secretary-general greatly increases the possibility of legal advice to government being influenced by partisan political considerations. These examples show how the government captures our democracy by placing loyalists in institutions that are supposed to be neutral.
Closing Civil Society Spaces
Civil society groups form the vanguard of democracy, serving as a critical component in the quest for participatory democracy and in holding government officials accountable. They have always been major players in the country’s peace building processes and in nurturing cohesion, often providing a critical voice on national issues.
President Bio, during the State Opening of Parliament in December 2018 referred to the media and civil society as having “become the bedrock of modern governance” and that in Sierra Leone, both media and civil society groups “are at the forefront in holding state actors accountable.” However, since the 2018 presidential elections there has been an ostensible demise of the voices of critical civil right groups on national issues.
In a May 2019 press statement, civil society groups condemned what they described as “repeated attack on activists and human rights defenders.” The human right groups were concerned “at the shrinking space for inclusive political participation and dialogue” whilst also “unequivocally” condemning “attacks and intimidation on civil society leaders including the Executive Director of Campaign for Good Governance (CGG) who has always publicly expressed critical views on governance challenges. The attacks are aimed at hushing critical civic voices on national issues; and this has the chance of reducing the space for political participation. Thus, this serves a threat to our democracy.
Efforts to mute critical views have been ongoing for a while. In December 2018, the government approved a new regulatory policy guideline aimed at tightening operations of Non-Governmental Organizations, known as the Development Cooperation Framework (DCF). The document provides for mandatory membership of all NGOs with the Sierra Leone Association of Non-Governmental Organizations (SLANGO). It also provides for a mandatory administrative structure, which stipulates that 70% of all donor funds to an NGO must be directed to targeted beneficiaries and 30% towards administrative costs.
An extremely contentious provision is that all NGOs and CSOs should bring their work or development programs in line with the government’s growth program. Implicitly, priorities identified by the government must be the priorities of NGOs. Representatives of Civil Society Organizations saw the Development Cooperation Framework as having great potential to undermine the work of civil society. The Development Cooperation Framework (DCF) has severe restrictions that tend to impinge on the rights to freedom of expression and association.
Calling for a more robust action by civil society groups, Abdul M. Fatoma of Campaign for Human Rights and Development International (CHRDI) said, “Civil society must regain the higher moral ground by direct citizen action and questioning the political causes of poverty, rather than play the game of accommodation with those maintaining the status quo and denying those causes.”
Unequal Enforcement of the Law
Respect for due process is the backbone of every democracy. Our police and security personnel think otherwise. Take, for example, the beatings of University students by the Police and two female Journalists by Presidential Guards. Individuals from the main opposition party were also detained without due process and procedural guarantees laid out in the 1991 constitution were not observed. Violence by the Sierra Leone Police and other security operatives was manifested by the handling of the situation around the environs of the opposition headquarters at Brookfields following the Election petitions rulings by the High Court. This resulted in injury to ordinary Sierra Leoneans and the arrest and detention of minors at the Central Investigations Department.
The selective enforcement of the law by the police can also be seen in punishing opponents while tolerating acts of violence by pro-government. A recent example is the failure to arrest a so-called “arata” for his alleged role during the election re-run in constituency 110 and the alleged Presidential guards that beat up two female journalists. The announcement by the Ministry of Information of an investigation is a step in the right direction but many are skeptical about its eventual outcome.
The legal principle of presumption of innocence, another prerequisite of the rule of law, was also been under direct assault. The issue arose when a decision was taken by the country’s Anti-Corruption Commission to publicly parade suspects, who were yet to face the court of law to determine their guilt, along the city centre. Though some citizens supported the ACC’s actions, many raised eyebrows and there was overwhelming condemnation of the ACC’s action. The most interesting was that of a respected Lawyer Yada Williams who called it ‘jungle justice.” The Human Rights Commission condemned “such public display which suggests guilt without due process” and considered “such acts as inhuman and degrading and contrary to law.”
The Politics of Revenge
Parliament has the responsibility to ensure that our democratic institutions function effectively through its powers of oversight. It is the duty of Parliament to scrutinize the actions of the executive. The very idea that so many public officials including ministers make bad decisions unchecked by Parliament is a serious dereliction of their duty and an offence against the constitution and our Democracy.
In a brilliant piece written by Andrew Keilii in his PONDER MY THOUGHTS column titled “SINNER” MEMBERS OF PARLIAMENT CONFESS IN BO” he mentioned that Hon Sidiki of SLPP said the following:
“Well they did a lot of bad things to us when we were in opposition. I myself was a victim in many circumstances. So, when we came to power we decided to revenge. But we have probably gone overboard. We therefore entreated our brothers on the other side that we should all wipe the slate clean and start afresh.”
It is this kind of rhetoric that encourages the cycle of revenge. Mr. Sidiki’s bold confession suggests that our current problems are deliberate. The challenges roiling our country are the product of a flawed “legal” and political thinking engineered and supported not only by leading politicians only but by members of Parliament, members of the Judiciary, and members of the bar association. Justifying present legal wrongs with past legal wrongs goes to the root of our problems as a nation; and we dare say it is the straight road to the breakdown of law and order, the cornerstone of every democracy. The cycle of revenge has prevented the bar association, the Judiciary and other institutions from realizing their full potentials. In the process of democracy, the rule of law and the national interest have increasingly been shred to pieces as we dive deeper into the cycle of revenge.
Against this backdrop of settling scores, as Mr. Sidiki himself admitted, Sierra Leoneans continue to witness a rise in poverty, unemployment, socio-economic inequalities, high cost of living, high incidence of rape and the Private sector, foreign investors and the masses are becoming disillusioned and disengaged from the system.
What do all of these mean?
Four things stand out clearly.
Firstly it means that the efforts to undermine democracy are “legal” given that they are sanctioned by Parliament and by the courts. Our leading Politicians are using the very institutions of democracy to gradually and even legally kill our democracy. In their efforts to do so they ensure that the courts and other institutions that are supposed to be neutral are packed with party loyalists, whiles the media and civil society are either bought off or bullied into silence, all geared towards eliminating a level playing field for opponents. This is not to say that such a strategy is novel to the current regime. On the contrary, it started under the former administration, but it has continued under President Bio’s regime even though he did not cause it and it is very likely to continue after his tenure ends. Perhaps what stands out is that the flouting of many democratic rules so quickly has happened in so short a period of time.
Secondly, since independence to date, all governments have produced self-serving establishments consisting of greedy individuals who are self-congratulatory and devote much of their energies to keeping themselves in power rather than serve the Public interest. To quote from the Truth and Reconciliation Commission (TRC) report, “Instead of implementing positive and progressive policies, each regime perpetuated the ills and self-serving machinations left behind by its predecessor.”
Thirdly, we often take comfort in our constitution, which was designed to put in place checks and balances, but in reality, neither the constitution nor our democratic institutions can immunize us from democratic decline. True, the constitution is not suspended but it is being violated with impunity. Parliament and Judiciary are functioning but they do virtually nothing to check the government’s transgressions. Newspapers still publish but are either bought off or bullied into self-censorship. People continue to vote but elections are cancelled by NEC. Citizens continue to criticize the government but find themselves facing victimization. Without the rule of law, peace and democracy will remain under threat.
Fourthly, the division between the SLPP and the APC has become deeper than at any time since the end of the civil war and has triggered the epidemic of norm-breaking that now threatens our democracy. This extreme partisan division fueled not by policy differences but by greed and self-interest remains the fundamental problem facing our democracy.
Down the road, whether our democracy will be celebrated or mourned is not at all clear. Nevertheless, it is not an attractive prospect if present transgressions persist. Therefore there are legitimate reasons for alarm. What we do about it or refrain from doing will determine the future.
In an unprecedented and bold admission, President Bio said in a somber tone at the opening of the B3 conference, governance processes have been characterized by “discriminatory and divisive practices that have unfairly and unjustly excluded sections of our population.” Like the President, SierraEye and many Sierra Leoneans are justifiably worried by that acknowledgement even as we tell ourselves that things are going to be better but protecting our democracy requires more than just the sadness and outrage. We must learn from other countries experiences and see how they overcome their challenges.
In the face of such extreme partisan division, prospects for sustainable peace, democracy and economic development are very low. We need a significant change of course. One such change of course could be for our leaders to go beyond the handshakes and retreats to accept one another as legitimate and resist the temptation to use their temporary control of institutions to maximum partisan advantage.