By Francis Ben Kaifala Esq.
As a scholar, I have always been fascinated by a prominent inscription on the entrance to the Georgetown University Library in Washington DC, USA which reads “Law is but the means, justice is but the end”. This saying which succinctly captures the symbiotic relationship between law and justice came to mind when I saw the Executive Order of the 9th April 2018 issued by the recently elected President of Sierra Leone and the legal controversy it has attracted.
I became even more interested after I listened to an audio message purported to have been made by my Learned Friend, Abubakarr Kalokoh Esq., who spent a considerable length of time banally quoting sections of the law but largely failing to draw their correlation and effect on governance or executive powers. Firstly, it is welcoming that Lawyer Kalokoh, a former aspirant for Presidential candidacy nomination by the APC, who for ten (10) years was silent on the many assaults and violations of the Constitution by President Ernest Bai Koroma has now been able to find his voice to speak out (including pointing out in the audio that President Koroma passed an unconstitutional legislation in 2017) – even if it is legally misleading to so conclude. Secondly, it was strange that Lawyer Kalokoh was saying that the executive order that is meant to restore and inculcate fiscal discipline and integrity in governance should be withdrawn and reversed which begs the question, to what end? So that indiscipline can continue?
I have also heard, read and seen more generally, lawyers state that the President’s executive order in respect of suspending onerous taxing regimes, tax waivers duty exemptions in fiscally abominable agreements signed by previous governments and wrongly ratified by our Parliament, is ILLEGAL. They say the President was acting ultra vires his powers as President. While I fully support calls that the president be at all times cautious to act within the boundaries of the law, particularly our sacred Constitution, it is simply incorrect to say that the President’s executive orders affect legislative competence and is therefore illegal. That claim exhibits a palpable lack of understanding between LAW-MAKING by the Legislature and LAW ENFORCEMENT by the Executive.
Sierra Leone is a country that has suffered at the hands of very bad governments who, by their actions show they love all else but their own country. They unreservedly signed various agreements that give exemptions to companies and corporations at the detriment of Sierra Leone. An example is cause 16 of the Koidu Kimberlite Project Mining Lease Agreement(Ratification) Act, 2010 which exempts Koidu Holdings from paying practically all imaginable taxes – major, minor, national or local or whatever. For example, here is what the Koidu Holdings Tax exemption states:
“For the duration of this Agreement, no taxes (including, but without limitation, income tax, additional profits tax, surtax, minor Taxes, profits tax, turnover sales tax, export tax, import tax, value added, withholding tax and employment related tax), royalties, duties, excise, levies, charges, fees, dues, contributions, payments or impositions of any kind whatsoever payable to the central, regional or local governments authorities of agents or to any chiefdom or tribal authority or to any other agency of the lessor (Sierra Leone) shall apply to the lessee or any affiliate company or agent of the lessee or the employees of the lessee or any affiliate company of the lessee”.
These and many exemptions,including exemption from taxing their foreign employees and other onerous provisions are found in several other agreements, some of which can be found here https://slminerals.org/contracts/. Such wicked provisions against the interest of Sierra Leone permeated dozens of agreements signed by the previous administration. I disagree that any law has been violated in respect of suspending those taxes. But even if they were, as Gloria Steimen once said “Law and justice are not always the same. When they aren’t, destroying the law may be the first step toward changing it”. It is the appropriate time to correct the law; and the beginning is suspending its enforcement – which the executive can rightly do.
Those agreements are injustices committed against Sierra Leoneans – a people who have one of the most terrible living conditions on Earth and the country lies at the worse part of all development indices; including the worse child mortality rate, hungriest people in the world, highest illiteracy rate, and most dangerous place to live for young people etc. Those taxes waived could have been applied to better the lives of Sierra Leoneans; but our own government chose to rather hemorrhage money to those multinational corporations against our collective interest. Nothing can be more just than an executive order that suspends such unjust agreements signed by our own government and shamelessly ratified by our Parliament.
Even apart from the fact that President Bio’s Executive Order is just and a step in the right direction, let us examine the validity of the claim that they are in violation of the Constitution. On what grounds is it wrong for an executive to suspend the application of the law? In the United States, the Immigration and Nationalities 1952, 1965 and 1990 all leave enforcement of Immigration laws to the Executive Branch of Government under the auspices of the President, who by Article II of the US Constitution, is the chief enforcer of the Law. Based on Executive Policy through an executive Order in November, 2014, President Barrack Obama announced his intention to expand the Deferred Action for Childhood Arrivals (DACA) to cover additional illegal immigrants, without having to go through Congress. The idea of such actions by executives is simply to suspend enforcing a particular law, particularly where according to the policy of a new administration, the enforcement of such laws would lead to injustice. They may be controversial, but not unconstitutional. Similarly, Section 40 of Sierra Leone’s Constitution gives the President Powers to negotiate agreements. To my mind, “negotiation includes “renegotiation”. In furthering that, the president will be perfectly within his rights to suspend the applicability of part or all of an agreement as a temporary measure.
The very unpatriotic and onerous tax exemptions and waivers given to those companies, which rob Sierra Leone and its children of their right to the proceeds of those taxes so as to enable them lead descent lives, go to good schools equipped with sufficient learning materials and be taught by well-paid teachers, hospitals with quality equipment and drugs, have good roads, expanded infrastructure, its workers be paid well and where necessary, be provided with subsidized living; are what was illegal. Suspending them is not to usurp legislative competence but to fulfill it so that when the new legislature returns, it can reconsider them and where necessary make proper readjustments on the recommendations of the new president in the interest of Sierra Leone.
Let those who have been crying down the executive order dated 9th April 2018, which seeks to right several wrongs against Sierra Leone within the confines of the law, choose the side on which they stand wisely; because that order is on the side of Sierra Leone and its children who have suffered from the effects of mal-administration for five decades and President Bio now seeks to liberate them. As John Stuart Mills once said, “As long as justice and injustice have not terminated their ever-renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other”. In this fight, the president is on the side of Justice – and some of us stand with him.
© Francis Ben Kaifala Esq. is the Managing Partner in the Law Firm Kaifala, Kanneh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LL.M in Law & Economics from Queen Mary University of London, He is a Fulbright Scholar at the University of Texas at Austin and a Candidate for the LL.M in Comparative Constitutional Law, Administrative Law & Human Rights; He is also Human Rights Scholar with the Rapoport Center for Human Rights and Justice in Austin, Texas, United States of America.