Legal arguments between State counsel Joseph Kobba and counsel Blyden Jenkins-Johnston representing Justice Desmond Edwards continued at the Tribunal sitting at the Law Courts in Freetown yesterday with lawyer Jenkins-Johnston cautioning that “all must be careful not to start on the wrong footing”.
He submitted that Section 179 of the 1991 Sierra Leone Constitution is being reactivated by His Excellency the President Dr. Ernest Bai Koroma for the very first time.
Three High Court Judges are facing the Tribunal: Justice Desmond Edwards is before the Tribunal for alleged insubordination to the Chief Justice Umu Hawa Tejan Jalloh while Justices Alan Halloway and Alusine Sesay are facing the Tribunal on allegations of corruption brought by the Anti- Corruption Commission.
Commissioners at the Tribunal are the Administrator and Registrar General Haja Mariama Serray Kallay and lawyer Wordsworth Filo- Jones.
Before the last adjournment on Monday 17th January 2011, lawyer JenkinsJohnston had objected to the Tribunal on the grounds that if it proceeds under Gazette 174 dated 17th June 2010 which states that the “Tribunal shall commence sittings on 29th June 2010” and end in six weeks, the proceedings will be null and void.
Lawyer Jenkins Johnston had argued that the word “shall” commence sittings is mandatory and only the President who made the order can change it.
Replying yesterday Tuesday 18th 2011 Principal State Counsel Joseph G. Kobba submitted that the word ‘shall’ could be used in a statutory provision and use of the word outside the statutory.
“It is my view that the statutory provision interpretation that the word Shall have a mandatory intent except otherwise stated.”
Making reference to a government notice published on a Gazette for the commencement of the Tribunal on the 29 June 2010 for six weeks, stated that use of the word Shall in the Gazette does not connote a mandatory intent because this is not a statute and therefore cannot apply the rules of statute.
Thefore in the case of the Gazette which is not a statute “we cannot apply the rules of statutory interpretation to it”. In other words, a Gazette has no legislative force, emphasizing that the Gazette is not a statutory instrument.
He submitted that proceedings of the Tribunal under Gazette 174 of 17th June, 2010 will not be null and void.
In response Jenkins-Johnston further submitted that when President Koroma made that order on the 10th June 2010 which was published on 17th June 2010 stated that “the Tribunal shall commence its proceedings on the 29 June 2010 it can have only one meaning that is the Tribunal shall commence its proceedings on 29th June 2010.”
Lawyer Jenkins Johnston said that is if the President puts a specific date that he had in mind for the commencement of the Tribunal.
The Chairman of the Tribunal Justice Cowan noted that it is important for the Tribunal not to start on wrong footing.
The matter was adjourned to 25th January 2011 at 2pm.
By Abibatu Kamara
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