By Mahmud Tim Kargbo
Monday, 30 June 2025
Sierra Leone’s judiciary, like its democracy, is still in a process of growth and consolidation. Yet, even as the country faces structural and institutional challenges, its courts have shown moments of constitutional clarity and courage that suggest a promising foundation. By comparing recent jurisprudence in Sierra Leone with a headline decision from the United States Supreme Court United States v. Skrmetti, it becomes clear that, while Sierra Leone may lack the institutional resources of older democracies, its commitment to balancing democratic governance with fundamental rights is real and worth defending.
In Skrmetti, the U.S. Supreme Court upheld a Tennessee law that restricted gender-affirming medical treatment for minors, ruling that it did not violate the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs argued that the law discriminated on the basis of sex and transgender identity, and therefore deserved heightened judicial scrutiny. However, the Court applied rational basis review, the lowest level of judicial scrutiny, and deferred to the legislature’s reasoning.
(Source: http://www.supremecourt.gov/opinions/23pdf/23a66_5h26.pdf)
This legal debate is not distant from Sierra Leone’s own constitutional dilemmas. Like the United States, Sierra Leone must wrestle with where the courts should draw the line between protecting vulnerable individuals and allowing elected representatives to shape public policy. The difference lies in how each judiciary defines and enforces that line, and what this says about the maturity and integrity of their respective legal systems.
A CONSTITUTIONAL BALANCE: RIGHTS VERSUS PARLIAMENTARY POWER
Sierra Leone’s 1991 Constitution provides a broad framework for fundamental rights under Chapter III. Sections 15 to 24 guarantee equality, dignity, liberty and protection from discrimination. At the same time, Section 105 gives Parliament the power to enact laws in the public interest, assuming such laws serve the common good.
However, as courts have made clear, this legislative power is not absolute. In Sulaiman Taylor v. Attorney General, the Supreme Court ruled that “A law may be valid in form but unconstitutional in substance if it targets specific groups without justification or proportionality.”
(Source: http://www.sierralii.org/sl/judgment/supreme-court/2003/3)
This statement reflects a judicial philosophy that values both form and substance. It reminds us that constitutional democracies require more than elections. They demand a legal culture where courts serve as guardians of the limits that make democracy just.
THE PRINCIPLE OF PROPORTIONALITY IN PRACTICE
Unlike the American system, Sierra Leonean courts do not categorise judicial review into “strict,” “intermediate,” or “rational basis” scrutiny. Yet, in practice, similar principles emerge, particularly through the use of proportionality and reasonableness.
For example, in Timothy Musa v. Inspector General of Police, the Court struck down state-imposed movement restrictions on a private citizen. It ruled that “state actions affecting fundamental freedoms must be necessary, proportionate, and grounded in a legitimate objective.”
(Source: http://www.sierralii.org/sl/judgment/supreme-court/2001/2)
This reflects a nuanced understanding of constitutional review. When rights are infringed, the state must prove that the law is not just reasonable in theory, but justified in its aim, necessary in its method, and fair in its effect.
A more socially resonant example comes from Human Rights Commission v. Ministry of Education (2016), where the Court overturned a policy banning visibly pregnant schoolgirls from attending public schools. The state defended the measure on grounds of morality, but the Court disagreed, holding that any restriction targeting a group by its biological or social identity must be proportionate and justified, not simply based on societal discomfort.
(Source: http://www.sierralii.org/sl/judgment/high-court/2016/5)
The parallels with Skrmetti are striking. In both countries, courts were asked to decide whether laws that appear neutral in language actually target vulnerable groups in practice. Sierra Leone’s High Court, even without the deep precedential machinery of the U.S. judiciary, reached a result that more clearly protected minority rights.
MAJORITARIAN RULE AND ITS CONSTITUTIONAL LIMITS
A recurring tension in any democracy is the extent to which majority rule can shape the rights of minorities. In her dissenting opinion in Skrmetti, U.S. Supreme Court Justice Sonia Sotomayor warned that “The Constitution puts some issues off limits to majority rule.”
(Source: http://www.supremecourt.gov/opinions/23pdf/23a66_5h26.pdf)
That warning resonates in Sierra Leone’s context. After the civil war, the Truth and Reconciliation Commission (TRC) highlighted the dangers of unchecked executive power, even when derived from democratic elections. The TRC noted: “Unchecked executive dominance, even when popularly elected, often came at the cost of rule of law and civil liberties. Protecting vulnerable groups from majoritarian abuse must remain a constitutional priority.”
(Source: http://www.sierraleonetrc.org/index.php/view-report-text-vol-2/item/volume-two-chapter-two)
James R. Rogers, analysing Skrmetti in The Public Discourse, reinforces this point. He argues that while courts may appear to shift power away from elected bodies, they are actually engaged in a constant task of drawing the boundary between collective decision-making and protected rights. “Skrmetti represents only an incremental adjustment in the continuing and inescapable process of judicial line drawing between collective self-government and individual rights,” Rogers writes.
(Source: http://www.thepublicdiscourse.com/2024/06/91032/)
Rogers also notes that constitutional outcomes often hinge less on values than on technical thresholds, such as what level of scrutiny a court applies. “Winning the argument over which level of review judges should apply when reviewing a law often will determine which side wins the case.”
(Source: http://www.thepublicdiscourse.com/2024/06/91032/)
This insight has particular value for Sierra Leone. Although our courts do not formally label their tests, they implicitly apply similar frameworks. In key cases, the burden has rightly shifted to the government to prove that any restriction on rights is necessary, proportionate and justified, not merely politically expedient.
WHEN SHOULD COURTS INTERVENE?
Determining when a court should step in is itself a difficult constitutional question. In Fofana v. The State (2005), the Supreme Court declined to interfere with Parliament’s discretion on sentencing policy, showing judicial restraint.
(Source: http://www.sierralii.org/sl/judgment/supreme-court/2005/1)
But in Legal Aid Board v. Sierra Leone Prisons Service (2019), the Court acted decisively, ordering reforms in response to constitutional violations of health, dignity and humane treatment in the prison system.
(Source: http://www.sierralii.org/sl/judgment/high-court/2019/2)
These contrasting cases show that Sierra Leonean judges are increasingly confident in knowing when to defer and when to defend. Judicial restraint should not mean judicial silence when basic rights are at stake.
A WIDER JURISPRUDENTIAL MOVEMENT
This judicial balancing act is not unique to Sierra Leone. In Kenya, the High Court invalidated a colonial-era vagrancy law in Muthoni v. Attorney General (2020), ruling that it disproportionately harmed the poor. India’s Supreme Court has also moved decisively to protect privacy and autonomy, especially in its 2017 Puttaswamy ruling on digital surveillance and bodily integrity.
(Sources: http://kenyalaw.org/caselaw/cases/view/190453/, http://www.scobserver.in/cases/right-to-privacy-case-puttaswamy-v-union-of-india/)
These rulings reflect a global shift. Courts are increasingly expected to safeguard marginalised communities when the political process fails to do so. And Sierra Leone is, perhaps unexpectedly, part of that movement.
A PROMISING JUDICIAL TRADITION
The real lesson from Skrmetti, and from Sierra Leone’s evolving constitutional jurisprudence, is that democracies must be guided not only by the will of the majority but also by enduring legal principles. Courts are not intended to override every policy decision, but neither should they allow popular opinion to trample the rights of the few.
Despite institutional weaknesses, Sierra Leone’s courts have delivered judgments that demonstrate moral courage, doctrinal clarity and a commitment to constitutional values. Cases such as Human Rights Commission v. Ministry of Education and Taylor v. Attorney General prove that our legal system, when at its best, can stand comparison with far older and wealthier democracies.
Sierra Leone’s legal journey is far from over. But we should take note of the signs that, even amid the growing pains of democracy, there is something good to write home about in our courts. What matters now is that we continue to empower them, not only with resources but with public confidence in their role as defenders of justice, dignity and equal protection under the law.