By Mohamed Foday Conteh
The Court of Appeal in Freetown has adjourned the matter involving former President Ernest Bai Koroma in his appeal for interpretation of section 48(4) of the 1991 Constitution for ruling.
The court made the decision on Wednesday 21st July 2021 having heard submissions from both representatives for the appellant and the State.
On Monday 19th July 2021, Joseph Fitzgerald Kamara representing former President Koroma had submitted in court that Section 48(4) which deals with immunity for the Office of the President during the discharge of executive duties be interpreted by the Supreme Court. Kamara said that they are seeking to ascertain the scope of the Commissions of Inquiry which investigated the former President on issues bordering on corruption.
Counsel for the State, Robert Kowa made clarifications he had presented in his synopsis, and his argument on ground of appeal that a request by the appellant for a referral of the matter to the Supreme Court for interpretation of Section 48(4) of the 1991 Constitution. He said that his argument was that the appeal should fail because the forum for which the matter was being heard was improper.
Kowa submitted that the Supreme Court has the jurisdiction to interpret the constitution but however stated that if the Appeal Court realizes the said interpretation is simple and straight forward, then an interpretation by the Supreme Court is not necessary.
The Bench sought the opinion of the State on interpretation to which Kowa responded that although there are various types of interpretations, purposive interpretation supersedes the other forms.
Representative for the State said that the decision as to whether the constitution needs interpretation by the State or not, lies with the opinion of the Bench. He defended his stance by drawing reference to the case law of late former President Ahmad Tejan Kabbah and Firetex. In the said case law, one of the judges at that sitting gave his opinion with regards the matter before referencing legal provisions.
Kowa added that he was aware that the sitting was for an appeal by the appellant from adverse findings of the Commissions of Inquiry and that part of the appeal raised the issue of interpretation of section 48(4) of the 1991 Constitution. He said that previous case laws have ruled that the said section is unambiguous and straight forward.
He noted that the section is an unaccountability section that can be interpreted by academic writers. He added that there are similar sections in constitutions of other countries in Sub-Saharan Africa. He said that issues bordering on that section have not been raised in other countries.
He argued that the James Alie case law in which judgment was made in 1982 was done in cognizance of the 1978 Constitution and said case law is inappropriate in this matter. He also agreed that the Adrian Fisher case law does not fit into this one because the documents were not the same.
Counsel for the State, Kamara, argued that the Court should not disregard the 1982 judgment on the James Alie matter because the section 48(4) in the 1991 Constitution and 1978 Constitution are the same. He said, while responding to a question put to him by Justice Ivan Sesay, it would be a shame if the Appeal’s Court fail to rule in their favour.
Justice Ivan Sesay, Justice Momoh-Jah Stevens and Adrian Fisher adjourned the matter for ruling next week.
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