For the first time since the 1991 Constitution was enacted, the Chief Justice has decided to put into practice the provisions of section 136 of the constitution which allows him to appoint Judges (under contract) to fill in vacancies in the courts.
Though concerns are being raised in some quarters about this action – principally the fact that the Judges so appointed did not go through parliamentary approval – we believe the action was carried out in good faith.
Despite all of this however the question of whether the spirit of the constitution has not been violated has emerged as a serious concern.
This is because the Judges so appointed by the Chief Justice with the advice of the Judicial Service Commission are more likely to look on the Chief Justice as their boss and give him their unstinting loyalty, given the added fact that it is the Chief Justice who has sourced funds to pay them (DFID funded JSDP will pay and not from consolidated revenue fund).
We must make ourselves abundantly clear here that we do not in any way doubt the integrity of the three judges just appointed nor do we in any way intend to cast aspersions on their persons or their job – they are people of honour. We are merely complying with the dictates of our duty to question certain issues which in our opinion may affect the best interests of our beloved Sierra Leone.
Given the above however, though we are not lawyers and do not pretend to be, yet in our layman’s view we believe that the constitution insists on parliamentary scrutiny of public officials in a bid to establish the independence of the different arms of government – in this case the judiciary from the total control of the executive. This is what we believe is the spirit or intention or call it whatever of the constitution.
This freedom or spirit of independence or constitutional checks are carried further by provisions which govern those who are paid from the consolidated revenue fund, like for example insisting that some group of people paid from the Consolidated Revenue Fund must not receive monies from other engagements.
Therefore, when the Chief Justice hires and pays Judges who are not subjected to all these controls, it is fitting to speculate on whether the situation of “he who pays the piper calls the tune” does not come into play.
In other words, the question is asked whether the Chief Justice will not exercise undue influence over the judges to the extent of interfering with the outcome of their cases?
The conspiracy theory stretches further when we consider that this is an election year, noting that this provision has not been used all these years except in an election year when we will surely have election petition cases – so what if the Chief Justice decides to panel his specially appointed judges to sit on the election petition cases are we likely to be 100% clear in our minds that the judgments delivered will be fair, given that the Chief Justice was appointed by the SLPP and he in turn has hired and pays the Judges who have not been subjected to parliamentary and constitutional checks?
Though we commend the Chief Justice for choosing local practitioners instead of importing Commonwealth nationals, nevertheless these are no doubt critical issues which beg the question – has our esteemed Chief Justice not violated the spirit of the constitution?
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