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COMMENTS & OPINIONS  

Parliament Surely Can Extend its Life
By Dr. Sylvia Olayinka Blyden
Feb 4, 2011, 17:08
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Since the successful SLPP Bo Convention last weekend, some agents who had thought the learned Constitutional Luminary, Dr. Bu-Buakei Jabbie, will be their stooge, have been sleepless. Some of them have even been planting anonymous legal opinions in tabloids. One such opinion in Standard Times erroneously cites that Parliamentarians do not have the power to extend their sitted tenure by resolution. I direct that anonymous writer to read Sections 85(1) and 85(2) of the Sierra Leone Constitution after which the anonymous writer can also read Section 87(2)(c) of same.

 

Extending the life of Parliament does not mean the Sierra Leone Constitution has been amended. In the same vein also, extending the life of elected SLPP Executives does not mean the SLPP Constitution has been amended. So, there was no need for the two-thirds counted votes theory. Clause 10 of the SLPP Constitution was not utilised in Bo last weekend. Only the second limb of Clause 4(B)(5)(e) was exercised in order to submit to the special Party Conference, a Resolution which in the view of NEC, was necessitated by political circumstances.


Finally, there is the undue emphasis on the word shall being mandatory when used in the SLPP Constitution published as Government Notice No. 240 in Vol. CXLI of Sierra Leone Gazette (Extraordinary). I could spend several pages citing legal authorities on the non-mandatory, permissive and/or directive use of the word shall but I will simply refer my dear readers to a recent Tribunal Ruling in Freetown. It is educative. It is below of todays edition. Thank you very much.


When SHALL is not mandatory
A Landmark Tribunal Ruling in
Contemporary Sierra Leone
Delivered in January 2011 by Hon. Justice E.K. Cowan, Mr. Filo Jones and Madam Seray Kallay

RULING


J.B. Jenkins-Johnston Esq. Counsel for Justice Desmond Edwards raised a preliminary objection to the Jurisdiction of the Tribunal. In support of his claim, he said the mandate of the Tribunal had expired and therefore if the Tribunal proceeded under the existing Government Notice No. 174 published on 17th June 2010, such proceedings will be null and void. Counsel argued that the commencement date is 29th June 2010 and the report to be submitted within six weeks of commencement date which Counsel says is mandatory having regard to the fact that the end of the six weeks period fell on the 10th August 2010.


Counsel in support referred to the cases of Fornah & 14 others v the State 1974-1982 ISLB Reports 48 at Pg 79 and Macauley V Ag (2) 1968-69 ALR (SL) 365, 367 & 368. Counsel also referred to the Oxford Dictionary where the word Mandate is defined as (i) order from superior & (ii) Command given with Authority. Mandatory also means conveying a command. Counsel therefore submitted that the words used in Paragraph 3 of the said Government Notice setting up the Tribunal are mandatory and therefore the only person to vary the command is the person who gave the command i.e. Dr. Ernest Bai Koroma, the President.

The Gazette is marked Exh. A.


Mr. Kobba, Counsel for the State in his response said Shall can be used as permissive depending on the circumstances of the case. Certain things should have been done before commencement of the proceedings and since there was going to be a cutoff date of six weeks, Counsel advised  themselves to put everything in order before starting. Counsel made two distinctions viz: The meaning of Shall under statutory conditions and the meaning thereof outside statutory conditions.

 

Counsel further argued that it was a general rule of Statutory Interpretation that the word Shall, shall have a mandatory intent unless otherwise a contrary intention appears. Shall, used in Statutory Provisions or Acts connotes mandatory intent. The use of the phrase shall commence in Exh A does not connote a mandatory intent because this is not a statute and therefore one cannot apply the rules of Statutory Interpretation thereto i.e. to the contents of Exh A which is not a Statute.
 

Counsel continued that the relevance of the interpretation of the word shall is only applicable to a Statute or a Statutory Provision. A Gazette (Exh A.), Counsel says, has no Legislative Force and he referred to Interpretation Act No. 8 of 1971 S4(1) where A Gazette means a Gazette published by order of the Government of Sierra Leone and includes any supplement thereto; a Gazette extraordinary so published and in respect of any publication before 27th April 1961 as the Sierra Leone Royal Gazette. Counsel submits that the word shall in Exh. A does not hold a mandatory intention in this case since the Phrase shall commence was used in a Gazette and not in a Statute and so was not Mandatory thus the Tribunal will not be null and void if it commences after 29th June 2010.

Mr. Jenkins-Johnston, Counsel for Justice Edwards, in his reply said that in any document whether it be a Gazette or not, when read must make sense and so when H.E. The President made the order contained in Government Notice No. 174 and stated therein The tribunal shall commence its proceedings on 29th day of June 2010 it could only have one meaning, i.e. That the Tribunal has to commence on that day appointed by the President unless it said otherwise. Counsel referred to SS 137(5)(a) and 170(1)(c) of the Constitution Act No. 6 of 1991. Counsel concluded by saying that it was not correct to say that shall used in the Gazette did not have the force of law.


In the Interpretation Act of 1971 i.e. Act No. 8 of 1971 is set down the various interpretations given to words or phrases which have been used during the course of this objection, such as commencement date, Gazette and Acts of Parliament. S.3(1) states: - In every Act in Force at the commencement of this Act, unless the contrary intention appears -;


Act or Act of Parliament includes any Act, and any Order, Proclamation, Orders in Council, Rule, Regulation or Bye-Law duly made under the Authority of an Act, order of her majesty in Council or any other Legislative enactment, applicable to and in force in Sierra Leone.


Commencement is described under S4(1) as when used with reference to an enactment means the time at which the enactment comes into operation.

 

Under the same S4(1) Interpretation of Particular terms, Gazette is defined as: -Gazette means the Gazette published by order of the Government of Sierra Leone and includes any supplement thereto, Gazette Extraordinary so published and in respect of any publication before the 27th April 1961, the Sierra Leone Royal Gazette;

A Government Notice is described under the same heading as follows: - Government Notice means a public announcement of a Non-Legislative character made by a Minister or a Public officer in the Gazette;

This definition of a Government Notice shows that what is contained in Government Notice No. 174 is not a piece of Legislation bearing in mind the definition given in SS3(1) and 4(1) supra. It could also be said that The Sierra Leone Gazette by definition cannot be held to be an Act of Parliament or to fall under any of the definitions as is given under S.3(1) of the Interpretation Act of 1971.


It is therefore the Tribunals considered opinion that the Rules of Interpretation governing Legislation or Statutes etc. cannot be employed in interpreting the phrase commencement date as is contained in Government Notice 174 published in the Sierra Leone Gazette No 44 of Thursday 17th June 2010.


It is also pertinent to note that both Counsels are agreed that what is contained therein is Government Notice as opposed to Legislation and therefore cannot be governed by the Rules of the Interpretation of Statutes.


It has also become quite clear that all the authorities cited and other materials tend to make reference to Legislation and Statutes. It is therefore our view that since this is a Government Notice, it is an Executive Act performed by the President as a result of Powers Conferred upon him by the Constitution of 1991. It is in this context that one would have to examine the words used and the possible effect they might have in the event of a breach.


Before doing this, we shall set down the events that led to the publication of the Government Notice, the infringement of which has led Counsel to take this action.


By the Powers conferred on the President by S.137 of the Constitution of Sierra Leone 1991 (Act No. 6 of 1991) he set up the Tribunal in question and appointed three people to enquire into the question of the removal of Justice D.B. Edwards, a Judge of the Superior Court of Judicature.


The said tribunal is mandated to report to the President the facts thereof and the findings thereon

The President ordered that the Tribunal is to commence its sittings on 29th June 2010 and to submit its report within six weeks of the commencement of the proceedings.


It is the failure of the Tribunal to commence sittings on the prescribed date and to present its report within the stated time frame that is the cause of this Motion.

The Commissioners of the tribunal were appointed on the 17th of June 2010; the same date as the publication of the Gazette.

 

This was followed by the swearing in of the Commissioners of the Tribunal on the 5th July 2010; i.e. Eighteen days after the Publication of the Gazette and seven days after the commencement date viz 29th June 2010.

There is mention in the Interpretation Act of 1971 of orders in Council by Her Majesty the Queen. This should according to the Adaptation Act read The President. We must also point out that Government Notice No. 174 is published in the Gazette and there is no evidence that the contents therein were as a result of either Legislation or Constitutional Instrument, or Statutory declaration. Such an Executive command can attract the Rules of Statutory Interpretation when they are Legislative or Statutory as the name implies.

Craies on Statute Law 7th Edition says:-

When a Statute creates a duty, one of the first questions for judicial considerations is what is its sanction for breach, or the mode for compelling the performance of the duty?

 

The question usually revolves itself into the inquiry whether the Act is mandatory or directory i.e. absolute or discretionary. If it is directory, the courts cannot interfere to compel performance or punish breach of the duty and disobedience to the Act does not entail any invalidity.


If the act is mandatory, disobedience entails Legal consequences, which may take the shape of a public or private remedy obtainable in a court of Justice, or the avoidance of some contract, instrument, or document without the intervention of the court.

 

From the foregoing, it is evident that Government Notice No 174 has no sanctions attached to it, should there be a breach of its contents. Since it is not legislative or a Statute, the words contained therein must be given their ordinary meaning in which case, the words complained of therein could only have been meant to be Directory and not Mandatory


Mr. Jenkins-Johnston for Justice Edwards in his argument submitted that- The words used in paragraph 3 of the said Government Notice setting up the Tribunal are mandatory and therefore the only person to vary the command is the person who gave the command i.e Dr. Ernest Bai Koroma, President.


To this, we would say that the President by conduct had varied the command as is contained in the document by his subsequent act of swearing in the members of the Tribunal on the 5th July 2010 i.e. seven days after the commencement date had elapsed. It is generally the case that such variation or approval could be in writing or implied from the conduct of the person except expressly provided for to the contrary.

In light of the above, we would overrule the objection taken and hold that the Tribunal is valid.

Signed..............

Justice E.K. Cowan          -   Chairman

Mr. Filo Jones                    -   Member

Madam Seray Kallay            - Member


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