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Advice to Mr. Speaker and Members of Parliament on Nomination Fees: HAS NEC THE POWER TO PRESCRIBE NOMINATION FEES FOR PRESIDENTIAL, PARLIAMENTARY AND LOCAL ELECTIONS CANDIDATES?
By Abu B. S. Sangarie Esq. of Edrina Chambers, 42 Siaka Stevens Street, Freetown: 076-585797 / 033-289511
Aug 27, 2012, 12:08
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HAS NEC THE POWER TO PRESCRIBE NOMINATION FEES FOR PRESIDENTIAL, PARLIAMENTARY AND LOCAL ELECTIONS CANDIDATES?

An opinion by Abu B. S. Sangarie Esq. of Edrina Chambers, 42 Siaka Stevens Street, Freetown: 076 58 57 97 / 033 28 95 11

Basis of prescription of nomination fees by NEC

On 8 August 2012 the National Electoral Commission under the Chairmanship of Dr. Christiana A. M. Thorpe relied upon Section 166 of the Public elections Act, 2012 and prescribed in Statutory Instrument No. 13 of 2012 nomination fees for Presidential Candidates, Members of Parliament, Members of Local Councils and Village Headmen. Section 166 of the Public Elections Act, 2012 states that:

The Electoral Commission may by Statutory Instrument make regulations for giving effect to this Act.

The Act referred to in Section 166 above is the Public Elections Act, 2012 (simply put the 2012 Act). But does this Act empower NEC to do so? In order to determine whether the 2012 Act empowers NEC to prescribe such fees it is pertinent to look at Sections 46(1) and 60(5) of the same Act which deals with payment of election fees for both Presidential and Parliamentary Candidates. Section 46(1) states that:

A presidential candidate shall not be entitled to take part in a presidential election unless he has paid to the Returning Officer a non-refundable fee of such amount as may be prescribed.

Section 60(5) of the same Act states as follows:

Every candidate shall pay to the Returning Officer a non-refundable nomination fee of the prescribed amount and the nomination shall not be valid until the nomination fee has been paid.

The validity questioned

The preliminary question emanating from these provisions is: whether they expressly or impliedly authorise NEC to prescribe the nomination fees as ordered in the Statutory Instrument of 8 August 2012? I think relying on the dominant literal rule of statutory interpretation will help us answer this question. Essentially, the words of both Sections 46(1) and 60(5) above in their literal meaning are so clear that no normal and right thinking human being will interpret them as bestowing powers on NEC to that effect. They cannot be implied to do either because the words as may be prescribed and nomination fees of the prescribed amount do not and will never be implied to have given NEC the power to prescribe or state nomination fees.

These are clear and unambiguous words which must be construed in their literal meaning regardless of whether they sound sensible or not. The House of Lords has succinctly put the proposition in many of its important cases. For example, Lord Simmonds, in reacting to Lord Dennings stigmatisation of ultra-legalistic interpretation of statute had this to say, that:

The duty of the Court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited. ( Magar and St.Mellons V Newport Corporation. (1951) 2 All. E. R. 839 (HL)). On the question of gap filling, the same learned Justice further underlined that for the courts to fill a gap will be tantamount to a naked usurpation of the legislative function under the disguise of interpretation and less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in the amending Act.   Again, it is the province of Parliament to even amend the Public Elections Act, 2012 and state the nomination fees of all public elections (should there be a gap)? So, if a competent court of jurisdiction like the Supreme Court of Sierra Leone cannot be at liberty to fill in gaps in statutes, would a statutory body like NEC be more powerful than the highest judicial authority to do that? The answer is an emphatic big NO.

As can be seen Section 166 of the 2012 Act merely empowers NEC to make regulations for putting into effect the Parent Act, which is the Public Elections Act, 2012. Sections 46(1) and 60(5) of the same Act only mention about fees as may be prescribed and nomination fee of the prescribed amount respectively. Does as may be prescribed mean NEC should prescribe the fees? This is totally a tendentious ploy to deprive parliament of its constitutional law-making role. More so where there is the trite common law presumption that CONSOLIDATING ACTS do not change the law. As may be prescribed and nomination fee of the prescribed amount are clear words of the Public Elections Act, 2012 referring to Parliaments role to prescribe such fees; which parliament had previously stated in the repealed Act: the Electoral Laws Act, 2002 but had not replaced that provision in the Public Elections Act, 2012. Section 31(1) of the Electoral Laws Act, 2002 deals with that, as follows:

Presidential Candidate shall not be entitled to take part in a presidential election unless he has paid to the Returning Officer an election fee of One Million Leones which shall not be refundable.

Section 5(45) of the same Act also deals with the prescription of nomination fee for parliamentary candidates, and states as follows:

Every candidate shall deposit or cause to be deposited with the returning Officer the sum of One Hundred Thousand Leones or a written receipt issued by or on behalf of the Accountant-General for the amount received from or an account of such candidate in respect of such sum and the nomination shall not be valid until such deposit has been made.

The significance of Sections 31(1) and 5(45) of the 2002 Act clearly demonstrate parliaments unshakable and unwavering stance to remain the sole authority having the power to prescribe nomination fees. Even the issue of any gap in the Public Elections Act, 2012 in respect of prescription of nomination fees in public elections does not arise. This is because the Consolidating Act (Public Elections Act, 2012) has the primary purpose of uniting all laws relating to public elections in Sierra Leone. Thus, any omission by parliament to state the precise fees in the 2012 Act, is automatically taken care of by Sections 31(1) and 5(45) of the 2002 Act: which had already prescribed for nomination fees. So, if by inadvertence parliament omits mentioning the amount to be paid; does that mean it has bestowed its constitutional law making role, especially in raising finance to NEC? Absolutely this is not the case.

NEC has to listen so as to courageously find an honourable exit by withdrawing the Statutory Instrument already before parliament. But if it chooses not to, then the argument may be further taken to the constitutional plane. Here, NEC may want to argue that it had acted under Section 33 of the Constitution of Sierra Leone, 1991- in line with its constitutional mandate. Section 33 of the Constitution reads as follows:

Subject to the provisions of this Constitution, the Electoral Commission shall be responsible for the conduct and supervision of the registration of voters for, and of, all public elections and referenda; and for that purpose shall have the power to make regulations by statutory instrument for the registration of voters, the conduct of Presidential, Parliamentary or Local Government elections and referenda, and other matters connected therewith, including registration for voting by proxy.

I think also a brief interpretation of the operative words and or clauses of Section 33 of the Constitution of Sierra Leone 1991 clearly reveal that NEC has no power to prescribe nomination fees. The operative words are:

(a)  Shall be responsible for the conduct and supervision of the registration of voters and all public elections and referenda.

(b)  And for that purpose shall have the power to make regulations by statutory instrument for registering voters and conducting all public elections.

(c)  And other matters connected therewith.

Paragraph (a) gives NEC the responsibility to conduct and supervise the registration of voters in all public elections. Paragraph (b) unambiguously says it is only for that purpose (as stated in Paragraph (a)) that NEC has the power to make statutory instrument to regulate the conduct of all public elections, including registration of voters. Paragraph (c): other matters connected therewith gives NEC the power to regulate on other matters connected with the conduct, registration of voters and supervision of all public elections. But again, would NEC argue that other matters connected therewith involves prescription of nomination fees?

This I totally disagree. For the words other matters connected therewith in the conduct and supervision of public elections is not only limited to the issue of nomination fees of candidates. Its ambit can also be extended (if for argument sake) to prescribing punishment for perpetrators of election violence in and around polling stations during elections. It may also involve determining the quantum of police officers required at every polling station on Election Day. But as we all know rules dealing with election violence are contained in the Public Order Act, 1965 and other related Acts enforced by the Executive, the Sierra Leone Police generally. So, why did NEC not also make statutory instrument prescribing punishment that should be meted out to those perpetrating election violence at polling stations? Instead it chose only to prescribe nomination fees in public elections, leaving out one of the most important area under its supervisory role: maintaining security and ensuring that the election is done correctly or legally. That is the meaning of to supervise. As a matter of fact does perpetrating election violence at polling stations not a matter connected with the conduct and supervision of presidential and parliamentary elections?  

Section 44 of the Constitution of Sierra Leone1991: the buster of NECs assumption of power

What does this provision say? It says that:

Parliament shall make laws for the purpose of regulating the election of the president and other matters connected therewith.

A fortiori, there is no way NEC can assume it has power to prescribe nomination fees in disregard of the above constitutional law. This Section 44 above expressly confers the power on Parliament to make laws relating to the election of the President and other matters connected with it. It is in discharge of this mandate that, Parliament in 2002 enacted the (repealed) Electoral Laws of 2002; which expressly prescribed nomination fees for presidential as well as Parliamentary Candidates. Also, it is a trite common law presumption that CONSOLIDATING ACTS do not change the law. This means that the Public Elections Act, 2012 does not change Sections 31(1) and 5(45) of the Electoral Laws Act, 2002. Now, the question is: If Parliament inadvertently omitted prescribing nomination fees in the current Public Elections Act, 2012, could that be interpreted by NEC to mean that there is a lacuna in the 2012 Act, to warrant the laying of a statutory instrument to that effect? With the greatest respect, the National Electoral Commission has missed the point. And again, whether NEC reduces the nomination fees to the most affordable level does not matter. NEC has no power to prescribe nomination fees. The Statutory Instrument before parliament has to be withdrawn to allow the democratic process to continue.

Advice to Mr. Speaker and Members of Parliament

Having critically examined the legality of NECs Statutory Instrument No. 13 of 2012, I humbly submit as follows:

1.    That the Honourable Members of Parliament pray for the annulment of the said instrument as NEC has no power to prescribe nomination fees. I refer Honourable Members to particularly Section 44 of the Constitution of Sierra Leone, 1991 to this effect.

2.    That Parliament has the inherent and constitutional power to amend any law; which it can still do (should the need arise).

3.    That allowing NECs Statutory Instrument become law will mean depriving the citizens guaranteed right to be elected; as the astronomical nomination fees will be the preserve of the few privileged.

4.    That it will be a new despotic practice to allow such an Instrument to become law as it will sacrifice the application of law for unchecked discretionary practice in Sierra Leone. More particularly, it will amount to a departure from the rule of law. Thus reminding Sierra Leoneans of the fundamental truth propounded by the great English philosopher John Locke that Wherever law ends, tyranny begins.

5.    That the said Statutory Instrument does interfere with existing fundamental rights; thereby creating injustice to citizens who cannot afford to pay One Hundred Million Leones, Ten Millions Leones,etc. as the case may be.

 

 

 


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