By Janet A. Sesay
The Office of the Attorney General and Minister of Justice has dragged the Electoral Commission of Sierra Leone to court over the vacancy position of Chairman in the Kenema District Council following the death of the substantive holder, Mohamed Amadu Sesay. The matter was up on Thursday, 3rd October, 2024 before Justice Alhaji Momoh Jah Stevens.
In his submission, the Solicitor General, Robert Kowa said they have just received the affidavit in opposition filed by the defendant (ECSL).
Kowa furthered in his submission that Exhibit SK-1 of his affidavit is a letter notifying the Minister of the Ministry of Local Government and Community Affairs about the death of Mohamed Amadu Sesay the then Chairman of the Kenema District Council on the 6th August 2024.
He said Exhibit SK-2 indicates that being that the Minister is not a lawyer he had therefore solicited a legal opinion from the Attorney General and Minister of Justice by a letter dated 15th August 2024 with respect to the position of the law as to how to fill the said vacancy.
Kowa furthered that on the 19 August 2024 the Attorney General responded to the said letter, proffering his legal opinion on how vacancies can be filled especially so when there is a lack of absence of any provision or expressed provisions in the Local Government Act of 2022.
He submitted before the court that the lack of such provisions definitely will bring out the indefinite invocation of the rule of causea.
The Solicitor General further submitted that Exhibit SK-3 is a letter dated 18th September 2024 that was forwarded from the Permanent Secretary in the Ministry of Local Government to the Chairman of the Electoral Commission for Sierra Leone asking about the legal opinion from the Attorney General.
He continued that Exhibit SK-4 is a gazette notice announcing dates for nominations and election with respect to filling the vacancy by a bye election.
Kowa furthered that these exhibits have other appendices dealing in gazette and other documents to be published.
He continued that Exhibit SK-5 is a response from the Electoral Commission for Sierra Leone directed to the Ministry of Local Government indicating the preparations for the election and subsequently stating that the Commission is cognizant of Section 15 of the Local Government Act of 2022 but it does not provide the filling of vacancy, and when the seat of the District Chairperson become vacant the Commission is relying on Sections 7 & 105 and Sections 9 & 10 of the Local Government Act of 2022 to fill the vacancy by conducting a bye election.
He maintained that even though the legal opinion of the Attorney General is not a law, it is a respected authority, adding that whether on a true and proper absence of any provisions, the Deputy should occupy the position of the Chairman pursuant to Section 13 and 15 of the Local Government Act of 2022. Robert Kowa asserted that whether the absence of the substantive Chairman is temporary or permanent, it is crystal clear that the office has become vacant, adding that death constitutes both silence and absence.
He underscored the fact that both the chairman and his deputy were elected by the residents through universal adult suffrage which must be taken into consideration.
Solicitor Kowa further submitted that ravaging the entire Local Government Act, the only provision that talks about vacancy and how it can be filled in the absence of the District Council Chairman can be found in Section 15 (1) of the said Act which is so instructive. He continued that both the chairman and his deputy were elected on a joint ticket and therefore inseparable when it comes to elections, and noting that the only thing that can separate them is death.
Kowa pointed out that Section 15 (3) of the said Act is the only expressed provision of the Act and Parliament in its wisdom had stated that to fill in the vacancy position is for the deputy to assume the position.
Kowa therefore asserted that Section 15 (3) of the said Act is clear, simple, straight-forward and unambiguous, pointing out that when the head is absent the deputy must be in control.
He explained that the intention of Parliament was to give the provision a meaning that may not result to absurdity or inconsistency because the fact is stated that the deputy must act in the absence of the substantive which is a simple way of averting a bye election. Kowa asserted that if the intention of Parliament was to allow the conduct of a bye election, Parliament should have expressly provided for it.
He pointed out that in the 2004 Local Government Act which was repealed and replaced by the Local Government Act of 2022, it was clearly stated that a bye-election must be conducted to fill a vacancy of the District Council Chairman but that this was omitted in the new Act of 2022.
Robert Kowa went on to argue that as lawyers, they must not fill a gap under the guise of interpretation and the court must give effect to what the Act says or permits and not to what it thought it ought to be. He furthered that the court should not supply a legal omission which could lead to undesirable consequences, adding that for doing so is a legislative and not a judicial function because the court has no power to fill such an omission.
He therefore dismissed Section 9 and 10 of the Local Government Act which are the provisions relied on by the legal team of ECSL, which he carefully contended, cannot be imported to fill a vacancy that occurred under Section 13 and 9 which talk about a vacancy in the seat of councilors.
He expatiated that upon the death of a Councilor, Section 9 and 10 of the said Act is very clear and specific because it mentions the conduct of a bye-election to fill such a vacancy when there is demise of a Councilor. Kowa however maintained that the same does not apply with the death of the District Council Chairman.
He said with the insertion of Section 13 of the Act, Parliament is deliberate not to conduct a bye-election at the expense of filling the vacancy through replacement of the deputy which is the best practice both national and internationally.
He mentioned Section 49 (4) of the 1991 Constitution which out rightly states that the Vice President must assume the duties and functions of the President in the event when there is a vacancy in the seat of the Presidency. He therefore warned that the importation of a non-applicable law will lead to crisis.
He ended his submission by clarifying a statement provided as evidence in the affidavit of the defense that Justice Stevens did not grant an interim injunction on the conduct of a bye-election but a stay which should not be interpreted as an argument.
He said they are of the view that if the questions are answered in the affirmative, then the deputy must be allowed to occupy the seat of the former District Council Chairman.
In his reply, Lead Defense Counsel for the ECSL Emmanuel Saffa Abdulai argued that a Councilor is a member of the local council, and the composition of the council begins with the Chairman, and thereafter a Deputy and the Councilors.
He argued therefore that if Section 9 and 10 of the Local Government Act of 2022 make it mandatory for a Councilor to be replaced through a bye-election in the event of the death of a Councilor, the same could apply when the head of the District Local Council dies.
He furthered that in their affidavit in opposition, Exhibit ESA-1 is the expert originating summon dated 27th September 2024 and has two stays by the court.
He said EAS-3 is a legal opinion from the Attorney General’s office to the Ministry of Local Government and that ESA-4 is notice from the Defendant ECSL for the conduction of an election for the Kenema District Council. ESA-5, he said, is the gazette of notice published by the Government Printing Press on the instructions of the Defendant. He said there are several other paragraphs they relied on with the exhibit submitted in their affidavit.
Counsel Saffa Abdulai also argued that a sitting chairman of the Kenema District Council died in office and that triggered two possibilities namely: the temporary filling of the office after the person has vacated the office by reason of death and the to conduct an election to fill the vacancy.
He said provisions in the Local Government Act of 2022 are what have triggered the ECSL to initiate the process for conducting an election within 90 days as provided by law. He said it is that process that has led them to court as to whether election should be conducted or the deputy takes up office.
He therefore questioned: who is the council? He argued that the office of Councilor is no different from that of the Chairman. He described Councilors as members of a local council and therefore that a District Council Chairman is also a member of the Council. He said Section 9 of the Local Government Act applies to everyone in the council and went on to reference Section 9 of the Local Government Act that the vacancy seat of councilors and Section 10 of the said Act talks about how to fill the vacancy which is conducting an election by the Electoral Commission. He said there is no omission in the Act as claimed by the State Counsel, pointing out that the circumstance in the Kenema District Council as it is can only be fixed by a by-election. He said this will be first in history for a vacancy for a chairman position is determined and treated as a special case by a by-election.
Lawyer Abdulai maintained that the most important issue before the court is not just the conduction of an election, but the right of citizens to vote for their chairman referencing Section 31 of the 1991 Constitution of Sierra Leone.
At this juncture, Justice Stevens adjourned the matter for Defense Counsel Emmanuel Saffa Abdulai to continue his submission. The matter was adjourned to a later date