By Ishmail Pamsm-Conteh, PhD (Law)
There is a legal principle that the law constrains even the highest political official, as a bedrock of democracy. According to David Dunlap, a retired US Judge, in authoritarian governments the persons in charge not only make the laws, they are the laws. But not so in constitutional democracies.
For several years now I have been teaching criminal law and international criminal law at undergraduate and postgraduate levels respectively, in Sierra Leone. Every year at the start of the course, I always ask my students their reason(s) for studying law. In many cases, their answers remain the same. They want to be lawyers so that they can be rich, and take care of themselves and their families.
Invariably, my response to them has been the same; you have chosen the wrong profession. That is because the law is predicated on justice and fairness, and if any student's motivation is anything other than that, then they are on the wrong course of study and have chosen the wrong profession.
For our laws to be credible, every individual must have equal treatment and it should be accessible to all. As citizens, we must believe that justice is fair and must be equally applied to every one of us. This bears on a legal principle on the rule of law that, “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”
But there lies one of our problems – our country’s judiciary. It has always been criticized for falling short of expectations, which means most people have very low confidence in it. There are a lot of pointers to that. But just to name a few; Sierra Leone’s TRC report, released in 2004 on the country’s judicial system expressly stated that “Lawyers and jurists in Sierra Leone have failed to stand up to the systematic violation of the rights of the people. There is little or no meaningful access to the courts for the majority of Sierra Leoneans. In effect, the commission found that the judiciary shared responsibility for the outbreak of war in Sierra Leone.”
More than a decade after that TRC report, Afro Barometer in its Dispatch No.171/16 November 2017, also found that “Almost half (47%) of Sierra Leoneans say that ‘most’ or ‘all’ judges and magistrates are corrupt”. That’s a significantly higher perception of corruption than on average across West Africa (40%) and across 36 countries (33%)
Another more recent report by the Open Government Partnership 2021, reported that: “According to the Government of Sierra Leone’s situation analysis of the justice sector, it has been ‘marred by poor service delivery, limited access to justice, limited allocation of resources, shortage of staffing, and limited capacity.” In my opinion, poor service delivery could mean that the justice is of poor quality and below the expected standard.
Since the end of the war in 2002, over twenty years ago, the international community has supported the country’s judiciary financially and logistically for it to be a viable institution, but it seems there is little to show for it, going by the cited reports.
Our constitution makes clear that our judiciary must be independent and impartial, but has it been? You only have to ask lawyers and Judges about the phrase “powers from above.” Loosely translated to mean that decisions are based on the instructions from the political elite. There have been arguments that judges have no security of tenure and that is why some capitulate to the above notion.
But there is hardly any evidence to support the above view, as there has been no Judge or magistrate who has been sacked for disobeying instructions, received from the so-called, “powers from above,” notion. An interesting fact is that anecdotal evidence seems to suggest that indeed, Judges or Magistrates hardly rule against cases that have a political undertone in our country.
In most countries, their society is shaped by values. For example, the Americans have theirs, the British too, as are the French, etc. They are based on strong moral principles which are expected to be followed by all, without exception. For example, the values of those countries teach that no one is above the law, and the law must be respected and supported by all. Closer to home, we have seen countries like Kenya, South Africa, and Senegal, to name but a few, in which their courts have taken decisions that run against the interest of their governments.
So why is it that in our country, Sierra Leone, our judges and magistrates continue to be seen as people who cannot dispense justice fairly and equitably? Why is it that we have little or no confidence in our judiciary? Why is it that our judges are seen as corrupt and ineffective in dispensing justice? They don’t get corrupt on the first day that they wear their robes, I have to say.
It also has to be said that in our country, our values have been eroded to be replaced by slogans which have now shaped our mindset. These slogans include “go police - nar buff case”, “wosie den tie cow nar dey ee dey eat”, “nar so de pa say”, “wait for u turn and u time”, etc. These shape us from being infants to grown-up adults, in our homes, in school, in the community, in the workplace, etc.
Whether our system is a government of men and not of laws is indicated in the answers my students continue to give as their motivation for wanting to become a lawyer. And a couple of years down the line, a handful of them could someday end up as magistrates and judges. Will their perspective change? I don’t believe so.
And this notion of, “order from above” and those other slogans will be rehashed again and again ultimately begging the question as to whether our system is a government of men and not of laws. I believe it’s time for us as a nation to ditch those slogans and adopt real values that would reset our philosophy and mentality. Let that be a civic responsibility for all Sierra Leoneans.
I end with a partial quote from Aristotle, the Greek philosopher, who succinctly sums up, in part, that, “For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all; since armed injustice is the more dangerous and he is equipped at birth with the arms, meant to be used by intelligence and virtue, which he may use for the worst ends.”
The author is a faculty member at the Ernest Bai Koroma University in Makeni, and at the University of Makeni (UNIMAK).
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