By Hawk Eyes
On the 25th of March 2020, the President of Sierra Leone His excellency Brig (rtd.) Julius Maada Bio declared a state of emergency in response to the spread of COVID-19 in the country. The declaration of a state of emergency was subsequently ratified by parliamentputting to bed all talk of illegality. Given the foregoing, it is surprising that some lawyers are still calling certain actions taken by government authorities as arbitrary and/or illegal. One such lawyer who made such unfortunate argument is by former Attorney General and Minister of Justice Joseph Fitzgerald Kamara aka JFK. To quote JFK, “the point I am [going to make] here is not about what Dr. Blyden, may or may not have done, but rather” …to expose to the reading public the misinterpretation either deliberately or unknowingly of the constitution by my learned friend JFK and to show that what has happened to Sylvia Blyden is neither arbitrary nor a violation of any right as far as the constitutional provision of a State of Emergency is concerned.
JFK’S ARGUMENT
JFK makes the following erroneous arguments in so many words:
- The arrest and detention of Sylvia Blyden is arbitrary and illegal
- The government has impugned the constitution and due process
- The government has illegally infringed upon the freedoms of Sylvia Blyden
- That denying Sylvia Blyden bail is discriminatory application of the law
- That “denying” Sylvia Blyden’s right endangers the peace and security of the state
The former Attorney General and Minister of Justice attempted to back up the foregoing by selectively quoting certain parts of the constitution. He quoted Section 17 (3) (a) which states “Any person who is arrested and detained for the purpose of bringing that person before a court or tribunal and who is not released, shall be brought before a court of law within ten days from the date of arrest. ” He further quoted sub-section 3(b) which states that “the person to be charged to court within seventy-two hours of his or her arrest in case of other offences.” Based on these two provisions, JFK accused the government in so many words of unconstitutionality and violation of due process of law.
JFK’s cardinal mistake is to use the constitutional provisions in isolation of the whole document and selectively reading/interpreting of the constitution. Those sections quoted could have been a serious indictment of the government if these were normal times. JFK knows very well that we are in a state of emergency and that those provisions he quoted cannot be successfully used to indict the government of unconstitutionality and violation of due process. It is pertinent now to discuss what a state of emergency is, when it can be declared and what powers the constitution gives to the executive in terms of arrest and detention during a state of emergency.
UNDERSTANDING STATE OF EMERGENCY
The Geneva Center for the Democratic Control of Armed Forces in one of their “Backgrounder” publications defines state of emergency as “a governmental declaration made in response to an extraordinary situation posing a fundamental threat to the country.” The declaration of a state of emergency in any state suspends “certain normal functions of government…alert citizens to alter their normal behavior… authorize government agencies to … limit or suspend civil liberties and human rights (Backgrounder). The Backgrounder further states, “the implementation of emergency law invariably leads to restrictions on normal economic, civil or political activity and rights in order to address the extraordinary circumstances that have given rise to the emergency situation.”
There are however certain rights that a state of emergency cannot violate. These rights include:
- the right to life
- prohibition of torture
- freedom from slavery
- the right to recognition before the law
- freedom of thought, conscience and religion
A state of emergency also gives certain special powers to the state and these include:
- the restriction of press freedom and the prohibition of public meetings
- domestic deployment of the armed forces
- searches of homes and other private places without a warrant;
- arrests without charges
- regulation of the operations of private enterprise;
- interference with financial transactions and export regulations
- special legislation to punish non-compliance with emergency regulations.
SYLVIA BLYDEN’S ARREST AND DETENTION
The arrest and detention of Sylvia Blyden is neither arbitrary nor unlawful under the emergency powers given to the President in the constitution. Section 29 (1) of the constitution gives the power to the president to declare a state of emergency if, according to 29 (2)(f), “there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone”. Given that COVID-19 is clearly a threat to the existence of the state of Sierra Leone, we can agree that the state of emergency declaration was appropriate. Section 29 (5) states that…” the President…may take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government…” Furthermore, section 29 (6)(a) “makes provision for the detention of persons, the restriction of the movement of persons within defined localities, and the deportation and exclusion of persons other than the citizens…”
Four days after Sylvia Blyden was arrested, the police released a statement saying she was arrested and detained on suspicion of incitement and subversion. According to the police release Sylvia Blyden will be helping them with the investigation while in detention. The release from the police suggests a likelihood or evidence that a crime has been committed against a legal statute. An arbitrary arrest or detention of an individual occurs only where there is no likelihood or evidence of a crime. If the police have given reasons for the arrest, then JFK has little or no grounds to call the arrest arbitrary especially when he did not make any case pointing to a lack of evidence of Sylvia Blyden committing a crime. To date, no one has made that case against the government.
This article has laid out few things to critique JFK’s submission: 1) JFK left out key sections of the constitution in his accusation of the government 2) The action of the government to detain Sylvia Blyden is constitutional and lawful under the public emergency law as stated in the Sierra Leone Constitution and therefore 3) her arrest, detention and investigation of possible crimes can neither be arbitrary nor unlawful as there is likelihood that a crime may have been committed. This makes JFK’s premise of arbitrariness and illegality and other arguments untenable. The onus therefore is on JFK and his ilk to show that there is no likelihood that Dr. Sylvia Blyden may have committed a crime during a state of emergency. Until then the state seems to be within the ambits of the law in the detention of Dr. Sylvia Blyden.