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Reading: Freedom of Movement on Election Day, Upholding Constitutional Rights: Will the Decision of the Supreme Court Be Upheld?
Reading: Freedom of Movement on Election Day, Upholding Constitutional Rights: Will the Decision of the Supreme Court Be Upheld?

Freedom of Movement on Election Day, Upholding Constitutional Rights: Will the Decision of the Supreme Court Be Upheld?

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election day in Sierra Leone
election day in Sierra Leone

 

Commentary By Francis Turay

Keywords

Human Rights, Sierra Leone, Constitution, Freedom of Movement, Elections, Democracy

1 Introduction

Elections are a fundamental aspect of any democratic society, enabling citizens to exercise their right to choose their representatives. In Sierra Leone, as the general election approaches, it is essential to emphasize the importance of preserving the citizens’ freedom of movement on election day. This article aims to draw the attention of the Government of Sierra Leone, particularly the Sierra Leone Police, to the inalienable right of freedom of movement that should not be inhibited on this crucial day.

2 Constitutional and International Guarantees:

The right to freedom of movement is a fundamental human right enshrined in the 1991 Constitution of Sierra Leone,1 as well as various international instruments to which Sierra Leone is a party. This right guarantees the freedom of individuals to move freely within the country and to travel abroad.

In the 1991 Constitution of Sierra Leone, Section 18 explicitly addresses the right to freedom of movement. It states that “every citizen of Sierra Leone shall have the right to move freely throughout Sierra Leone and to reside in any part thereof, and no citizen shall be deprived of his or her freedom of movement, except as may be authorized by law.”2 This constitutional provision reflects the importance placed on individual liberties and the recognition of the inherent right of every citizen to move freely within their own country. It establishes freedom

1 Section 18 of the 1991 Constitution Act No. 6 2 Ibid

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Freedom of Movement on Election Day, Upholding Constitutional Rights

of movement as a fundamental right that can only be limited by law and for justifiable reasons.

In addition to the constitutional guarantee, Sierra Leone is a party to several international human rights treaties that also protect the right to freedom of movement. These include:

1. Universal Declaration of Human Rights (UDHR): Article 13 of the UDHR recognizes the right of every person to freedom of movement and residence within the borders of each state.3

2. International Covenant on Civil and Political Rights (ICCPR): Article 12 of the ICCPR similarly protects the right of everyone to liberty of movement, including the right to leave any country and the right to return to one’s own country.4

3. African Charter on Human and Peoples’ Rights (ACHPR): Article 12 of the ACHPR guarantees the right to freedom of movement and residence within the borders of a state.5

These international instruments provide an additional layer of protection for the right to freedom of movement, reinforcing its significance as a universal human right. It is important to note that while the right to freedom of movement is a fundamental right, it may be subject to certain limitations imposed by law.6 Such limitations must be prescribed by law, necessary in a democratic society, and proportionate to achieve legitimate objectives, such as national security, public order, or public health.7

In summary, the 1991 Constitution of Sierra Leone, along with various international human rights instruments, recognizes and safeguards the right to freedom of movement. This right ensures that every citizen has the liberty to move freely within Sierra Leone and travel abroad, subject only to reasonable restrictions prescribed by law.

It is worth noting that despite the constitutional guarantee of the right to freedom of movement in Sierra Leone, there have been instances where this right has been inhibited, particularly on election days. The Sierra Leone Police, through a press release issued by the Inspector General of Police, in 2018, imposed restrictions on vehicular movement during elections day.8

While the intention behind such restrictions may be to maintain public order and security during the electoral process, it is important to ensure that any limitations on the right to freedom of movement are justified, necessary, and proportionate. The Constitution allows for

3 Universal Declaration of Human Rights (UDHR) 1948
4 International Covenant on Civil and Political Rights (ICCPR) 1966
5 African Charter on Human and Peoples’ Rights (ACHPR) 1979
6 General Limitations on Human Rights, Oscar M. Garibaldi (1976)
7 Section 15 of the 1991 Constitution Act No. 6
8 https://www.africanews.com/2018/03/01/sierra-leone-police-to-enforce-transport-restriction-on-election- day//

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Freedom of Movement on Election Day, Upholding Constitutional Rights

the limitation of constitutional rights, including freedom of movement, if it is authorized by law and serves a legitimate purpose.9

3 Precedent: Augustine Sorie-Sengbe Marrah v The Inspector General of Police:

The conduct of the Inspector General of Police in 2018, precipitated the filing of an original notice of motion to the Supreme Court of Sierra Leone, for the violation of the right to freedom of movement, and the interpretation of other sections in the 1991 Constitution; for which the Court has original jurisdiction, by virtue of section 28 and 127 of the 1991 Constitution Act No. 6, respectively.10

The landmark case of Augustine Sorie-Sengbe Marrah v Inspector General of Police is one the few cases where the Government has been held accountable for checking its despotic behavior on its citizens. The Supreme Court of Sierra Leone, in its judgment, reaffirmed the significance of freedom of movement; which is guaranteed by the 1991 Constitution;11 our grundnorm.12 The Supreme Court held, among many other things that:

The pronouncement made by the Inspector General of Police through a press release to restrict vehicular movement on election day does not in any sense falls within the scope of Statutory or Constitutional Instruments, as prescribed by the Constitutional and Statutory Instrument Act, 1999. Therefore, it has no force of law, and they lack the authority to enforce any sanction or punishment on any citizen for the breach of such notice.13

The Court went on further to explain why the Inspector General of Police had no authority to restrict vehicular movement on that day. It held that the notice made no reference to any delegation that was conferred upon it by the President, who, through the 1991 Constitution can delegate such to any person subject to the qualifications and conditions that he may set out;14 and in order for such delegation to take effect, it should be notified in the gazette.15

It’s trite, that apart from amendments or repeals, one of the ways such a fundamental human right, alongside the others could be inhibited by the Government is through the declaration of a state of public emergency,16 and it’s duly guided by both municipal and international law.17 Whereby, other than Parliament, the President can confer on another person the power to make regulations, but only during a period of a state of public emergency. Referenced

9 Section 15 of the 1991 Constitution Act No. 6
10 Section 28 & 27 of the 1991 Constitution Act No. 6
11 Section 18 of the 1991 Constitution Act No.6
12 Section 171(15) of the 1991 Constitution Act No. 6
13 Augustine Sorie-Sengbe Marrah v Inspector General of Police (SC APP 8 of 2018) [2022], Para 37 14 Section 53(1) of the 1991 Constitution Act No. 6
15 Augustine Sorie-Sengbe Marrah v Inspector General of Police (SC APP 8 of 2018) [2022], Para 40 16 Section 29 of the 1991 Constitution Act No. 6
17 Article 46, Vienna Convention on the Law of Treaties (1969)

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examples were The Imposition of Curfew Order, 2020 – C.I. No. 12 of 2020, which was done by Dr. Priscilla Schwartz, Attorney General and Minister of Justice at that time.18

Restricting the movement of citizens on Elections Day amounts to the suppression of voters,19 and violates a right that is guaranteed in the 1991 Constitution, which thus provides that every citizen of Sierra Leone being eighteen years and above and of sound mind shall have the right to vote at an election or any public referenda.20

The said public notice by the Inspector General of Police contravenes section 18 of the 1991 Constitution, which makes provision for Freedom of Movement. In that vein, it was seen that the Inspector General of Police was attempting to amend the said section, and as a result, he was thereby usurping the legislative function of Parliament;21 which in itself is a contravention of the Constitution and such an act carries a graver charge and accusation which is tantamount to treason, as Parliament is conferred with the supreme legislative authority.22

Summarily, the Court held that if the Police want to restrict the movement of citizens on Elections Day, it should be done through an Act of Parliament, a Statutory Instrument, or a Constitutional Instrument as the Constitution therein provides.

4 The State of Sierra Leone’s Obligation to uphold human rights at all times:

As Sierra Leone approaches its upcoming elections, it is crucial to emphasize the significance of upholding the right to freedom of movement and other fundamental human rights. The Government of Sierra Leone has an obligation to respect, protect, and fulfill these rights, as enshrined in numerous international human rights treaties and covenants to which the country is a party.23 The right to freedom of movement is a fundamental human right that grants individuals the freedom to travel and reside, and it is an integral part of democratic societies, enabling citizens to exercise their civil and political rights effectively. The Government of Sierra Leone must guarantee this right for all its citizens, including during the electoral process, as it is an obligation owed under international law. By ratifying those international human rights instruments, Sierra Leone has committed itself to uphold these rights during all circumstances,24 including elections; and by respecting and upholding freedom of movement, and other fundamental human rights, the Government and the Sierra Leone Police can contribute to a conducive environment for citizens to cast their votes without unnecessary restrictions.

18 Augustine Sorie-Sengbe Marrah v Inspector General of Police (SC APP 8 of 2018) [2022], Para 43 19 Ibid, Para 47
20 Section 31 of the 1991 Constitution Act No. 6
21 Section 105 of the 1991 Constitution Act No. 6

22 Section 108 of the 1991 Constitution Act No. 6
23 Article 26 Vienna Convention on the Law of Treaties (1969) 24 Section 40(4) of the 1991 Constitution Act No. 6

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Freedom of Movement on Election Day, Upholding Constitutional Rights

5 Conclusion:

Supreme Court decisions play a vital role in shaping the jurisprudence of a nation, providing legal clarity, consistency, and guidance. In Sierra Leone, it is crucial to emphasize the significance of upholding Supreme Court decisions as a legitimate source of law. Doing so contributes to the development of a robust legal framework, enhances the rule of law, and strengthens the country’s judicial system. The Supreme Court is the highest judicial authority in Sierra Leone. Its decisions carry significant weight and serve as binding precedents for lower courts and future cases.25 Upholding these decisions is essential for maintaining legal certainty, ensuring uniform application of the law, and fostering a just and predictable legal environment. The rule of law forms the cornerstone of a democratic society. By upholding Supreme Court decisions, Sierra Leone demonstrates its commitment to the rule of law, where legal decisions are respected and implemented. This will promote stability, fairness, and equality before the law, contributing to the overall development and progress of the nation. Also, upholding such a decision will help build a comprehensive body of jurisprudence in Sierra Leone. Over time, a robust jurisprudence enhances legal predictability, promotes consistency in judicial outcomes, and fosters a progressive legal system. These decisions allow legal practitioners, scholars, and citizens to rely on established legal principles when seeking justice or providing legal guidance.

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