Following the threat Monday by the Head of State President Ahmad Tejan Kabbah about imposing a State of emergency should the spate of violence continue, Awoko was able to seek the views of two prominent lawyers about the legality of it and also what that means for the country.
First it was Lawyer Mustapha Turay, the Bar Association Secretary General who gave his views on the threat. Explaining the constitutional legality, he said if at all a state of emergency was declared the President has the power within the constitution under section 29(1) where in his opinion a state of public emergency is imminent or has commenced to declare one by proclamation that should be published in a gazette.
Also explaining the circumstance under which the President can declare that he said that is provided for under sub section 2 of section 29 of Act no 6 of the 1991 constitution which states that, the President may issue a proclamation of a State of emergency only when Sierra Leone is at war, imminent danger of invasion or involvement in a state of war, or there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extra ordinary measures to restore peace and security or there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extra ordinary measures to avert the same or an occurrence of imminent danger or the occurrence of any disaster of natural calamity affecting the community or sections of the community and or there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
About how the president shall do that he explained the declaration under sub section (3) of section 29 shall lapse in the case where parliament is sitting within seven days and under sub section (3) paragraph (p), twenty one days after the declaration unless in the main time that particular declaration has been approved by a two third majority of parliamentarians.
In the present situation where there is no parliament he said the President has powers under sub sec (16) of sec (29) for which he could summon parliament with the view to declaring a State of emergency to be supported by parliament. He has that power to reconvene parliament even though it has been dissolved.
Explaining further Lawyer Turay said the President even has powers under sub sec (6) to make provisions for the arrest of persons, or the restrictions of persons within a defined locality and so forth.
About whether the elections would be affected he said it will not in any way adversely affect the elections as section 42 sub section (1) paragraph (f) which says that once in a general elections an individual does not secure 55%, the two shall go in to a run-off within two weeks. That he went on could not be touched by the President even under his emergency powers.
Similarly in the same vein Lawyer Pa Momoh Fofanah also gave his views as of course the constitution is very clear in section 29 Act No 6 of 1991 as to the cases in which the President can declare a state of public emergency.
He added that section 29 in particular states that the President may issue a proclamation of a state of public emergency only when Sierra Leone is at war, Sierra Leone is in imminent danger of invasion or involvement in a state of war, or there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security, or there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring is the same, or there is an occurrence of imminent danger or the occurrence of any disaster or natural calamity affecting the community or section of the community or there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
These are the cases in which the President can declare a state of emergency he said, it has to be to such an extent that public order and safety is under threat and every measure which shall be applicable in such an instance described as an extraordinary measure which means that it is not just any skirmish or apparent curfew that will militate or lead to the declaration of a state of emergency.
Pa Momoh Fofanah went on to explain that the President cannot merely proclaim that there is a state of emergency and it comes into force without approval by Parliament.
The constitution he said is very clear, adding that of course that proclamation having received Parliamentary declaration ought to be gazetted. He explained further that the constitution says every declaration made under sub-section (1) of section 29 above in the case of declaration made when Parliament is in sitting at the expiration of a period of seven days or in any other case at the expiration of a period of 21 days says unless it has in the main time been approved or superseded by a resolution of Parliament supported by the votes of two-third of the members of Parliament.
So this clearly shows that a declaration of a state of emergency should be with Parliamentary approval and the emphasis is not on the simple majority but also on a two-third declaration.
He stated further that the President in his speech did indicate, if there is any imminent breach of the peace and if he thinks that it is sufficient enough for him to declare a state of emergency he would use the old Parliament and then so declare.
To every intent and purpose he said “I think that will be most unconstitutional because as we see it being displayed by the present National Electoral Commission (NEC), Parliamentarian have been declared duly elected. So the people have passed a vote of no confidence in the past Parliament, they now have Parliamentarians who ought to represent them, 59 parliamentarians from the All Peoples Congress (APC) 43 from Sierra Leone Peoples Party (SLPP) and 10 from the Peoples Movement for Democratic Change (PMDC).
If the president is to so declare any state of emergency in any part of Sierra Leone having duly considered same to be of such essence, we believe if the President so declares will have the mandate of the newly and present elected Parliament because they have been declared duly elected.
When asked the question that these duly elected have not been sworn, he answered that it is like an elected President who has not been sworn in he is President in waiting but he is elected.