On January 27, 2023, the Supreme Court of Sierra Leone delivered a ruling in a case brought by two members of the main opposition, the All Peoples Congress party. The case concerned the use of the Proportional Representative Electoral System in the upcoming general elections on June 24, 2023. The petitioners, Honourable Abdul Kargbo and Harikatu Maxwell-Caulker, questioned the constitutionality of the PR voting system and asked the court to declare the use of the District Block PR system unconstitutional.
The respondents in the case were the Attorney General and Minister of Justice, and the Electoral Commission of Sierra Leone (ECSL). The respondents argued that the PR system was necessary because of significant changes in the country’s population, which had grown by 6.4% from 2015 to 2021, according to the 2021 controversial mid-term census. They also argued that conducting a boundary delimitation exercise was impossible due to the provisions of the ECOWAS Protocol and the Public Elections Act 2022.
The petitioners argued that the use of the PR system undermined democracy because it prevented independent candidates from participating and excluded a large number of people due to the significant change in the population. They also argued that the Constitution’s section 38(A) had conditions that warrant the use of PR, particularly where existing and current constituencies represent the current parliament, which were not met in this case.
The Petitioners also argued that the President’s directives to ECSL regarding the June 2024 general elections to be held using the PR system are unconstitutional and that he exceeded his constitutionally granted powers, especially since the current Parliament is still in existence. They contended that in a democratic state, it is wrong and impermissible to vest the President with the sole power to order or direct a change in the electoral system without the consent of Parliament and in the presence of existing constituencies. They claimed that the Constitution only gave the President the authority to direct the use of PR when the conditions outlined in Section 38A of the Constitution were met.
The Supreme Court ruled that the President’s directive to use the PR system for the upcoming election was in line with Section 38A (1) of the Constitution, as amended, and he did not act outside his powers.
The Court outlined the processes for conducting the election, which included conducting a census, boundary delimitation of constituencies, and approval by the ECSL. The Court held that the default position is to conduct the election on a constituency basis, but since the above factors in the setting-up process have not been done, the alternative is for the ECSL to advise the President to declare the upcoming election to be conducted on a PR basis.
The Court also ruled that the existing parliament represented by constituencies will be dissolved soon, making way for constituencies to be established, which will not be the case this time around. The Court further held that the statutory instruments No 13 and 14 of November 16, 2022, which were previously challenged as unconstitutional, were part of Sierra Leone law and did not violate Sections 33 and 38 of the Constitution, and Section 171 of the Public Election Act.
Furthermore, the Supreme Court ruled that the president’s directive to the Electoral Commissioner of Sierra Leone to hold the 2023 public elections for ordinary Members of Parliament by the PR system rather than constituency was in line with Section 38A (1) of the Constitution, as amended, and thus he did not act outside his powers.
The Court further ruled that independent candidates can participate in the electoral system, stand for election, and be included in any of the seats represented in the country’s sixteen districts. The court also stated that the statutory instruments No 13 and 14 of November 16, 2022, which were previously challenged as unconstitutional by Hon. Kargbo and Councillor Maxwell-Caulker, were part of Sierra Leone law and did not violate Sections 33 and 38 of the Constitution, and Section 171 of the Public Election Act.
The petitioners were represented by Dr Abdulai Conteh, while the Attorney General was represented by the Solicitor General R. B. Kowa ESQ and ECSL were represented by Dr Emmanuel S. Abdulai.
Mohamed Wurie Bah is a legal practitioner.