By Joseph Abass Sannoh (Senior Citizen)
Disclaimer
This article represents my personal opinion as an ordinary citizen seeking to understand and discuss the constitutional and legal issues arising from current public discourse. It is not intended to constitute legal advice, nor should it be interpreted as expressing the final position or a legal opinion of the law, because I am not the court / Judiciary, nor am I carrying Esq at the end of my name.
The authoritative interpretation of the Constitution and the laws of Sierra Leone rests exclusively with the courts of competent jurisdiction, particularly the Supreme Court of Sierra Leone. Readers are therefore encouraged to rely on judicial decisions and opinions of qualified legal persons with true and certified ESQ behind their names.
Introduction
The recent public debate surrounding the possible return of former President Ernest Bai Koroma to Sierra Leone, coupled with parliamentary discussions concerning the pending criminal proceedings against him, has generated important constitutional and legal questions.
These developments raise issues concerning:
- the supremacy of the Constitution;
- the Rule of Law;
- the doctrine of separation of powers;
- the independence of the Judiciary;
- the constitutional powers of Parliament;
- the prosecutorial authority of the Attorney-General and the Director of Public Prosecutions;
- the powers of the President; and
- the proper administration of criminal justice under the Constitution and the Criminal Procedure Act, 2024.
This article does not seek to determine the guilt or innocence of former President Ernest Bai Koroma or any other accused person. Rather, it examines the constitutional and statutory framework governing criminal proceedings in Sierra Leone and identifies the institutions constitutionally empowered to make decisions regarding such proceedings.
- Constitutional Supremacy
The Constitution of Sierra Leone, 1991 (Act No. 6 of 1991), is the supreme law of the Republic.
By virtue of Section 171(15) of the Constitution, every law, governmental action, executive decision, parliamentary resolution, and judicial act must conform to the Constitution.
Accordingly, no organ of government may exercise powers beyond those expressly or impliedly conferred upon it by the Constitution.
The supremacy of the Constitution therefore requires every institution of State, including the Executive, Parliament and the Judiciary to operate strictly within its constitutional mandate.
- The Rule of Law
The Rule of Law remains one of the cardinal principles of constitutional democracy.
Professor A. V. Dicey, in his celebrated work: Introduction to the Study of the Law of the Constitution (1885), identified three essential elements of the Rule of Law:
- the supremacy of the law over arbitrary power;
- equality of all persons before the law; and
- constitutional government through ordinary courts administering ordinary law.
These principles are reflected throughout the Constitution of Sierra Leone and require that every person, whether an ordinary citizen or a former President, be subject to the same legal process.
No individual enjoys immunity from the due process of law unless expressly provided by the Constitution.
- Separation of Powers
The Constitution establishes three independent organs of State:
- the Executive;
- the Legislature; and
- the Judiciary.
This constitutional arrangement embodies the doctrine of separation of powers, which ensures that governmental authority is distributed among separate institutions to prevent abuse of power and preserve democratic governance.
Under Section 120 of the Constitution, judicial power is vested exclusively in the Judiciary.
More significantly, Section 120(3) provides that, in exercising judicial authority, the Judiciary shall be subject only to the Constitution and other laws and shall not be subject to the control or direction of any other person or authority.
Consequently, no Executive authority, parliamentary resolution, political party, or public institution may lawfully direct the courts on how pending criminal proceedings should be determined.
- The Constitutional Right to a Fair Trial
The Constitution guarantees every accused person fundamental rights.
Section 23 of the Constitution provides that every person charged with a criminal offence is entitled to a fair hearing before an independent and impartial court established by law.
The Constitution further guarantees the presumption of innocence until guilt has been established according to law.
Accordingly, former President Ernest Bai Koroma, like every other citizen, remains constitutionally entitled to due process and a fair trial.
- Can Parliament Determine or Terminate Criminal Proceedings?
The constitutional answer is No.
Parliament derives its authority from the Constitution and exercises legislative powers.
Its constitutional responsibilities include:
- enacting legislation;
- approving national expenditure;
- exercising oversight over the Executive; and
- representing the people.
However, neither the Constitution nor the Criminal Procedure Act, 2024, confers judicial authority upon Parliament.
Parliament may debate issues affecting national peace, reconciliation and governance.
Nevertheless, parliamentary resolutions cannot lawfully:
- acquit an accused person;
- terminate pending criminal proceedings;
- compel the Judiciary to dismiss criminal charges; or
- direct the Attorney-General or Director of Public Prosecutions to discontinue criminal proceedings.
To hold otherwise would violate the constitutional doctrine of separation of powers and undermine judicial independence.
- Constitutional Powers of the Attorney-General and Director of Public Prosecutions
The Constitution establishes the Office of the Director of Public Prosecutions under Section 66.
The Director of Public Prosecutions possesses constitutional authority to:
- institute criminal proceedings;
- takeover criminal proceedings instituted by another person or authority; and
- discontinue criminal proceedings before judgment (commonly through a nolle prosequi).
These powers are exercised subject to the constitutional supervisory authority of the Attorney-General and Minister of Justice.
Consequently, where criminal proceedings are to be lawfully discontinued, such decision must originate from the constitutionally authorized prosecutorial authorities not Parliament.
- The Criminal Procedure Act, 2024
The Criminal Procedure Act, 2024, governs criminal procedure before the courts of Sierra Leone.
The Act regulates:
- criminal investigations;
- arrest and bail;
- commencement of criminal proceedings;
- criminal trials;
- appeals;
- sentencing; and
- other procedural safeguards necessary for the fair administration of criminal justice.
The Act complements the Constitution but does not diminish the constitutional powers vested in the Judiciary, the Attorney-General or the Director of Public Prosecutions (commonly through a nolle prosequi).
Equally, the Act contains no provision empowering Parliament to terminate or interfere with pending criminal proceedings before a competent court.
- Constitutional Powers of the President
The Constitution confers upon the President prerogative powers of mercy, including the granting of pardons, reprieves and commutations in appropriate circumstances.
These constitutional powers are distinct from judicial proceedings and should not ordinarily be regarded as a substitute for criminal trials pending before the courts.
The President does not normally interfere with ongoing court proceedings. After a conviction, however, the Constitution gives the President the prerogative of mercy (such as a pardon or commutation), exercised in accordance with constitutional procedures. This power generally applies after conviction rather than while a criminal trial is still pending.
- Can Public Opinion Determine Criminal Liability?
The answer is equally No.
In every constitutional democracy governed by the Rule of Law, criminal liability is determined by:
- evidence;
- applicable law;
- constitutional safeguards; and
- judicial determination.
Public opinion, parliamentary debates, political negotiations, demonstrations or social media campaigns cannot lawfully determine whether an accused person should be convicted, acquitted or discharged.
Such matters remain exclusively within the constitutional competence of the Judiciary and, where applicable, the prosecutorial authorities acting according to law.
- Comparative Commonwealth Jurisprudence
The constitutional principles discussed above are reinforced by Commonwealth jurisprudence.
In Adegbenro v. Akintola [1963] AC 614, the Judicial Committee of the Privy Council affirmed that constitutional powers must be exercised strictly in accordance with the Constitution and that political convenience cannot override constitutional requirements.
Similarly, in Madzimbamuto v. Lardner-Burke [1969] 1 AC 645, the Privy Council reaffirmed that constitutional legality must prevail even during periods of political uncertainty, and that every public authority remains bound by the Constitution.
These authorities reinforce the principle that governmental institutions must act only within the powers constitutionally assigned to them.
Likewise, the Supreme Court of Sierra Leone has consistently affirmed that the Constitution is the supreme law of the Republic and that constitutional powers must be exercised strictly within the limits prescribed by the Constitution.
Conclusion
The Constitution of Sierra Leone provides a clear constitutional framework governing criminal justice.
Where criminal proceedings have been instituted against any person, including a former President, the Constitution requires that those proceedings be determined by the Judiciary or lawfully discontinued by the Attorney-General or Director of Public Prosecutions (commonly through a nolle prosequi) in accordance with the Constitution and the Criminal Procedure Act, 2024.
Neither Parliament, political negotiations, nor public opinion possesses constitutional authority to determine the guilt, innocence, discharge or release of an accused person.
Ultimately, the strength of Sierra Leone’s constitutional democracy lies not in political popularity or public sentiment, but in unwavering adherence to the Rule of Law, constitutional supremacy, due process, judicial independence and the separation of powers.
As citizens committed to democracy and constitutional governance, our collective duty is to respect and uphold these principles, irrespective of the identity, office or political affiliation of the status of the person before the courts.