By- Aruna Rashed Toma Bangura (Deputy Editor)

The Lead Counsel for the plaintiffs in the ongoing constitutional interpretation matter at the Supreme Court, Dr. Abdulai Osman Conteh has asked the court “why is it that the President wants to take us back?” to revert the June 24th 2023 multitier election to the Proportional Representation system when there are already established constituencies represented by Members of Parliament.

Submitting his application for the Plaintiffs at the Supreme Court on Monday 9th January 2023 at the Law court buildings on Siaka Stevens street, Dr. A.O told the court that the announcement made by the Electoral Commissioner to conduct the June 24th multitier election using the PR system will vindicate the principal of the rule of law which he stated is not in accordance with the law under section 38(a) of the constitution.

Dr. A.O Conteh said the court will be performing its judicial function by directing the President not to hold the forthcoming election on the PR system as there are already constituencies, adding that using the PR system will thrash the country’s constitution and rule of law.

He submitted that there are two criteria that must be satisfied for the PR system to hold which are if the date for Parliamentary election has not been announced and if no constituencies have been established then and only then can the President direct or have recourse for the PR system.

Dr. Conteh stated that a date has been announced for Members of Parliament election and the 1st Plaintiff Hon. Abdul Kargbo is representing a current and existing constituency and the 2nd Plaintiff Akiyatu Conteh is a Councilor representing a Ward and that the current Parliament is constituted by elected Members of Parliament.

He submitted that any decision to use the PR system will be unlawful on the face of the evidence. He said the PR system is unusual and unexceptional.

Dr. Abdulai O. Conteh pointed out that there has been no reason or explanation by the 2nd Respondent the Electoral Commissioner to change the format of the election just because of the directive of the President to the ECSL Boss, adding that it is now five months to election as the general public must be confused why the PR system.

The erudite Lawyer Dr. Conteh told the court that the proposals for the re-introduction of the PR system do not satisfy the provision of section 38(a), adding that the PR system is provided for as a form of election due to the absence of constituencies.

Dr. A.O Conteh said the constituencies are not broken and why do the ruling government want to fix it?

Dr. Conteh referenced Rule 92 of the Supreme Court rules stating that the Defendant does not have to file an Affidavit and therefore submitted that the PR system to be used in the forthcoming multitier elections in the present circumstance cannot avail, adding that the court cannot validate the PR system which he said was given a thumbs down in the well of Parliament.

He said the 2nd Defendant rely on section 33 of the constitution which makes it unconstitutional while he addressed the court that to change the mode or format of election for Members of Parliament is a deliberate matter for primary legislature.

Dr. Conteh submitted that the primary role of the Electoral Commission of Sierra Leone is conduct and supervise elections and not to determine the format of the election.

He added that there is nowhere in the 1991 Constitution that ECSL on its volition to change the format of election not even the President, adding that the powers purportedly exercise is in excess of the powers of section 68(a).

In his final submission, Dr. A.O Conteh said section 38 imposes conditions and precedent to warrant holding PR election and therefore urged the court to proudly relief the notice of motion of Proportional Representation election.

In their response the Lead Counsel for the Respondent Robert B. Kowa submitted that they maintained and upheld submission in their case filed on 8th December 2022.

Lawyer R.B Kowa cited paragraph 18, 19, 20 and drew the attention of the court that it is a pre-emptive strike, adding that as at the time of filing the purported instrument was no law in Sierra Leone.

He stated that PR system as instrument was tabled before Parliament as there were Parliamentary procedures and these procedures the Supreme Court cannot rely into Parliamentary proceedings citing section 94 of the constitution, adding that a document was laid in Parliament and in the interim application was filed and the document became a Statutory document.

Lawyer R.B Kowa told the court that in the application filed no certificate of maturity in that document was filed and asked the court to take judicial notice that the certificate of the document issued on 19th December 2022.

He submitted that the application that got matured was not what Lawyers for the Plaintiffs were speaking on as he stated that statutory instrument No.83 does not exist.

He said statutory instruments No 13 and 14 got matured on 16th November 2022 and said what was exhibited was Statutory Instrument No.13 which proffered on Statutory Instrument No.83.

Lawyer R.B Kowa submitted that they heavily rely on their case filed and in all their arguments with respect to interpretation sort the trust of the issue is whether there are existing constituencies which obviously could not trigger a direction leading to the PR system.

He said Counsels for the Plaintiffs did not analyze the proper and complete reading of section 38(a).

He submitted to the court that it is clear a date has been announced for all elections which is June 24TH 2023 for Parliamentary elections, adding that the general citizenry find themselves in a position where there has been a Mid-term census and issue of Mid-term census is dealt with in section 38 and that the census result published has automatically alters the figure in the population density as it is very clear reading section 38 (3) and (7).

Lawyer R.B Kowa told the court that he will fortify the Counsel for the Plaintiffs argument by relying on Rule 92, adding that with respect to 38 (a) the date announced for election is 24th June 2023.

He said the application filed by the Plaintiff is limited and was not the intention of Parliament as it does not specifically stated any circumstance in which he noted the situations were not clearly itemized.

He drew the court’s attention that Parliament cannot amend legislation six month prior to election and that the public election act (PEA 2022) and ECOWAS protocol limit Legislative amendment with respect to electoral law six month to election, adding that it is in fairness and good governance not to have attempted review of constituencies and possible delimitation of those reviewed constituencies based on the latest census result and the appointed date for such election.

In his final submission, Lawyer R.B Kowa addressed the court that the issues raised by the Plaintiffs have not been complain of by anybody and that the Statutory Instrument that matured on the 19th December makes provision for independent candidates for Parliamentary election.

The Solicitor General of the State, Lawyer Osman Kanu in his submission said in line with case filed raised jurisdictional objection.

He said jurisdictional objection is in relation to order two prayed for by the Plaintiffs.

Lawyer Osman Kanu submitted that the Supreme court lacks the jurisdiction to grant the 2nd relief as it deals with excess of powers of powers of decision making body, adding that the President acted arbitrarily in this case.

He submitted further that the court grant 2nd relief prayed for in the originating notice of motion while he asked the court to interpret section 38 (a) to determine the scope and regulation of power and to determine the delegated power in action.

He furthered that the underlying effect of the 2nd relief is seeking that the President acted outside constitutional amendment in an irregular manner, adding that the 1991 constitution has not conferred the jurisdiction to the Supreme Court.

Lawyer Osman Kanu said the constitution has stated clear with unambiguous words and that the only jurisdiction left is for the 2nd relief to be struck out of court.

He said the 7th relief is a consequential relief and submitted that the 7th relief be struck out of court in the event that it lacks jurisdiction to look into the 2nd relief.

According to Lawyer Kanu Rule 89 Sub Rule 2 of the Supreme Court ruled that Notice of Motion shall be supported by an Affidavit, adding that the Affidavit and Notice of Motion submitted that the Plaintiffs did not comply with the provision of 89 (2) with regards to Affidavit.

Chief Justice Desmond Babatunde Edwards commended both Counsels for the Plaintiff and Respondent as they have end hearing of first part of the proceedings and now left with the Bench to react to their submissions.

Chief Justice Desmond Babatunde Edwards reserved judgment and notice to be sent for judgment.