The Attorney General and Minister of Justice who failed to represent the state in an all important ECOWAS matter causing the state of Sierra Leone millions of dollars has again failed to pay attention.
Joseph Fitzgerald Kamara commonly called JFK has written an unsolicited advise to the country’s National Electoral Commission compelling them to obey “ an irregular high court order.”
The National Electoral Commission has said that they will work according to the Constitution of Sierra Leone and the Public Elections Act of 2012.
*Meanwhile one of the brilliant Legal brains in the country, Francis Ben Kelfala who is presently a Fulbright Scholar has called the Attorney General and Minister of Justice to order.*
This is not the first time JFK has been embarrassing the state and the legal profession in Sierra Leone knowing fully-well his advise is not needed in such situation.
Below is the advice of the Fulbright Scholar to Sierra Leone’s Attorney General and Minister of Justice:
My attention has been drawn to a letter dated the 29th March 2018 addressed by the Attorney-general and Minister of Justice of Sierra Leone to the National Electoral Commission (NEC) which in many ways contains abysmal misrepresentations of the positions of the law; and I would like to add my own view in THE INTEREST OF THE PUBLIC.
1. Firstly, it is correct that the Attorney General and Minister of Justice is adviser to the government of Sierra Leone by virtue of Section 64 (1) of the Constitution.
BUT he is HOWEVER not legal adviser to the National Electoral Commission, who have their own legal advisers as an INDEPENDENT institution.
His assertion that it is within his “purview” to write to NEC on the issue is, with respect, WHOLLY INCORRECT and MISPLACED. His advise is unsolicited and misdirected
2. Section 32 (11) of the Constitution states as follows of the NEC: “In the exercise of any functions vested in it by this Constitution, the Electoral Commission shall not be subject to the direction or control of any person or authority.”
By this express provision of the Constitution, the NEC is not subject to the control of any person of body whatsoever.
What part of “not subject to the direction or control of any person or authority” does the Attorney-General not understand?
3. Like the Judiciary, who by section 120(3) is made INDEPENDENT, the NEC by section 32(11) of the CONSTITUTION is made COMPLETELY independent.
While by the express words of those two respective provisions the Judiciary is made subject to the CONSTITUTION in fact, the NEC is not subjected to anything other than what the Constitution directs.
It is therefore simply INCORRECT for either the ATTORNEY-GENERAL or EVEN THE COURTS to assume that they can give directives to the NEC in the performance of its independent duties.
What is being done collectively by the court through athe order by Justice Mansaray, the government, and, most unfortunately the ATTORNEY-General is a LEGALLY FLAWED HARASSMENT OF AN INSTITUTION THAT IS BY LAW INDEPENDENT when they collectively ought to ensure that it remains so independent. Yes, the Court is an authority and the Constitution excluded it in controlling NEC! It can resolve disputes in terms of electoral petirions as directed by law but not direct HOW NEC should conduct elections.
That letter from the AG is neither supported by law nor rooted in even elementary political theory on Judicial independence.
4. Lastly, but most importantly, by Section 7(2) of the Public Elections Act 2012, the NEC is given ABSOLUTE DISCRETION by LAW to utilize “appropriate technology” in the exercise of its independent functions.
It states as follows “The Commission may utilize appropriate technology and adopt appropriate approaches in the performance of its functions.”
Subjecting the institution to directives as to how it carries out its work in terms of the transport of data and tallying of same is IGNORANT and illegal whether or not it comes from the courts or any political party.
Sierra Leone should refuse to be taken back into the 20th Century of MANUL Tallying when we are now in the 21st Century! Be reminded of how ignorant the order is because counting in all election in Sierra Leone have always been manual. NEVER has counting been Mechanical!
While we all would like the NEC to maintain the integrity of the Electoral process and it is most IMPORTANT for them to follow what the law says to the letter, I view the letter from the AG as adding to the barrage of harassment that the NEC has been WRONGLY subjected to by the institutions and persons that ought to protect it.
I add to the view that the NEC should ONLY follow what the CONSTITUTION and the PUBLIC ELECTION ACT mandate for the CONDUCT of all public elections and should ignore any thing to the Contrary. All WELL MEANING Sierra Leoneans should resist such preposterous interferances.
Francis Ben Kaifala Esq.