The Ecowas Court’s Sumana Verdict by L. Gberie

The verdict of the Ecowas Court of Justice on 27 November ordering Bai Koroma’s government to pay his illegally sacked vice president, Samuel Sam Sumana, all remuneration and entitlements of office, “from the date of his removal till the date his tenure of office is expected to end”, is so important for human rights, justice and good governance in West Africa that it must be properly analysed, to be understood. The court also ordered Koroma to refund Sumana’s travel and sustenance cost, as well as legal bills, amounting to $10 million.

In response to this extraordinarily humiliating verdict – the first time the Ecowas court has rebuked a sitting head of state in such explicit terms – president Koroma’s attorney general promptly issued a statement saying that his government will not honour the court’s verdict because Sierra Leone’s Supreme Court “did rule on the above matter and therefore no other court is competent to overrule it except by [sic] itself. Therefore [sic], the Government of Sierra Leone refused to participate in the proceedings and does not accept nor recognize the ECOWAS court in respect of the said judgment.”

Koroma’s government did indeed, when served with the writ from the court over a year ago, file a notice of preliminary objection to the lawsuit on those grounds.

The Ecowas court concurred on this point, and in both the proceedings and the judgement it declined to review the Sierra Leone Supreme Court’s judgement, even though Sumana’s application contented that the court condoned the various violations of his rights.

But the very diverse judges of the Ecowas court – Justice Hamèye Founé Mahalmadane (Mali), the Dean of the Ecowas court, who presided; Justice Friday C. Nwoke (Nigeria); and Justice Alioune Sall (Senegal) – implicitly rebuked the Sierra Leone court by digging to the roots of the illegal ousting of Sumana.

This was president Koroma’s, and his All Peoples’ Congress party’s, refusal to grant Sumana, a member of the party at the time, a fair hearing over a rambling list of bogus allegations, summarily expelling him as party member to allow Koroma dubious legal cover to sack and replace him with Foh.

This extraordinarily invidious action, the Ecowas judges decided, violated Mr. Sumana’s rights to a fair hearing, to security, to participate in government, and to due process. The Sierra Leone Supreme Court, on the other hand, had focused on whether president Koroma enjoys ‘supreme executive power’ to fire an elected vice president, which – against the evidence of the country’s constitution – the court said he does.

The Ecowas court did not re-litigate that matter, and in several iterations it acknowledges the finality of the Supreme Court judgment without considering its merit or lack thereof.

“There is a thin divide,” its judgement said, “between reviewing the decision of national courts and hearing matters that flow from the decisions which allegedly pose questions of human rights violation.”

The Ecowas court instead drew upon a charter granted it in 2005 by Ecowas member states giving it the jurisdiction to take up cases brought by individuals, including those based on alleged violations of the African Charter on Human and Peoples Rights and other international human rights instruments.

It was on this, rather than on the chief premise of Sumana’s case in the Supreme Court of Sierra Leone, that it based its decision. The issue is not simply a matter of awkward detail. The five judges in Sierra Leone had based their decision on Koroma’s claim to enjoy “supreme executive authority” to fire Sumana, and they inflicted considerable contortions on themselves to make this spurious claim.

They never considered the fundamental human rights of Sumana with respect to their various breaches, which were all part of his application for relief in 2015.

Clearly the Ecowas court accepts Sumana’s core contention about the illegality of president Koroma’s decision to sack him and appoint his replacement.

In its judgment, the Ecowas court referred to Sumana as “Hon. Vice President”, to his sacking by Koroma as “alleged”, and to the illegal vice president Victor Foh as “one Mr. Victor Foh” the “purported replacement” of the elected vice president.

However, it did not grant Sumana several reliefs he had sought, and which cannot reasonably be granted by normal human beings operating in a geopolitical institution.

He had wanted the fraudulently imposed Foh removed and himself to be reinstated so as to resume his lawful duties until March 2018. The court decided an order from them in this respect would be destabilising or cause chaos.

Sumana had also wanted Koroma’s government to pay him “special, general and exemplary damages” to the tune of $130 million, as well as damages relating to acute physical suffering and embarrassment caused by withholding salary and emoluments to the tune of $70 million “or any other amount in the sound discretion of the court.”

The judges used that discretion wisely, and the relief they agreed for Mr. Sumana is reasonable, and must be provided.

Koroma’s government has, after all, made itself a champion of carrying out orders of the Ecowas court. In 2008 it honoured a default judgment by the court in a case brought by a slimy Lebanese businessman named Mohamed Wanza, paying him $25 million in compensation for late president Tejan Kabbah’s reasonable rejection of his fraudulent claim over a useless gunboat the rogue military regime Kabbah replaced had contracted. (One heard that 25% of that amount went back to Koroma and some key ministers.)

It also honoured another order for relief in favour of former police officer El Tayid Bah. Sumana’s case is far more important, and far more clear-cut.

Sadly, Joseph Fitzgerald Kamara, the hapless attorney general who owns his career growth to his service in the internationally mandated Special Court for Sierra Leone as prosecutor, has now taken upon himself the dishonourable task of insulting a very important human rights institution in West Africa at the behest of a failed and venal administration.

That he would be so cavalier about the proceedings and judgement of this potentially powerful safeguard of the rights and freedoms of 360 million people is a disgrace….

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