Recently, Constitutional Instruments No. 64 and 65 of 2018 were laid in the ‘Well’ of Parliament for debate. The instruments contain the legal dictates for the setting up of a Commission of Inquiry that would look into alleged corruption and mishaps in the All People’s Congress government led by Ernest Bai Koroma. A wide array of argument followed on the whole issue of procedure for such instruments.
For the enlightenment of the public, the Lex Specialis or the general interpretation of Constitutional Instrument is that it is the power conferred by the Constitution to be exercised by a way of an instrument enacted by the President and Parliament as assembled. Section 171 of the Constitution of Sierra Leone (Act No.6) of 1991 states:
“Constitutional Instrument means an instrument made under a power conferred in that behalf by the Constitution”. Thus from the layman’s standpoint, Constitutional Instrument is a tool used by the Constitution to perform some task or action or to amend or to give effect to certain provisions of the Constitution.
Procedurally, subsection 7 of Section 170 of the Constitution of Sierra Leone (Act No.6) of 1991 is very clear on the parliamentary procedure that relates to Constitutional Instruments and any motion in respect thereof.
Any orders, rules or regulations made by any person or authority pursuant to a power conferred in that behalf by this Constitution or any other law –
- Shall be laid before Parliament;
- Shall be published in the Gazette on or before the day they are so laid before Parliament;
- Shall come into force at the expiration of a period of twenty-one days of being laid unless Parliament, before the expiration of the said twenty-one days, annuls any such orders, rules or regulations by the votes of not less than two-thirds of Members of Parliament.
The Standing Orders of the Sierra Leone Parliament is dormant or procedurally anemic as to what concrete steps to take or hold once an instrument is laid on the Table of the House. The Standing Orders is also silent on when to begin the twenty –one days countdown as prescribed by law. Whether the countdown or time will begin to run or not when Parliament is in recess – is a procedural puzzle. These questions about the procedural gaps in the Standing Orders are fundamental and they need proper answers in our legislative process. Unlike the United Kingdom and other jurisdictions in the Commonwealth of Nations, Sierra Leone’s parliamentary practice and procedure has not been sufficiently tested on matters relating to the annulment or rejection of Constitutional and Statutory Instruments. This is so because Constitutional Instruments that are brought before Parliament are most often than not, not contentious; and even if they are contentious, there is no power given to Parliament to amend them.
Parliament, however, has two (2) options in dealing with Constitutional Instruments – 1) allow the laid instrument(s) to fulfill the twenty-one day statutory period of maturity or 2) annul the said instrument before the expiration of the maturity date with a two-thirds majority vote of Members of Parliament.
The United Kingdom Parliament for instance, subjects Instruments before the House to three (3) main procedural approaches;
- Negative Resolution Procedure: when the instrument is laid in draft and cannot be made or passed into law if the draft is not approved by the House ( House of Commons and House of Lords)
- Affirmative Resolution Procedure: Instrument laid but cannot be made unless the draft is approved or laid and made but cannot come into force until it is approved
- Other procedures, referred to as stringent parliamentary control: instrument laid before Parliament after being made but does not require any parliamentary scrutiny.
The procedural approach in Sierra Leone though dormant is akin to stringent control or a hybrid wherein instruments that are laid before the House automatically becomes a law after fulfilling twenty-one days statutory period of maturity as stated in subsection 7(c) of Section 170 of the Constitution. Conversely, prior to it coming into force, Parliament has the constitutional right to annul or withdraw any such instrument by not less than two-thirds majority of Members of Parliament. By its configuration, two-thirds majority of the present Parliament is ninety-eighty (98) out of 146 of the entire membership of the House.
Unlike the election of the Speaker of the House which requires simple majority if two-thirds majority is not obtained, the annulment or rejection of a Constitutional Instrument requires prima facie two- thirds majority of the House. Two-thirds majority of the present Parliament can better be understood thus: If for any reason the main opposition party (All Peoples Congress (APC)) with a total membership of 68 in Parliament wants to annul or reject a Constitutional Instrument, it has to have an additional 30 MPs to carry that motion. Meaning, the main opposition has to secure all the 14 votes of the Paramount Chief MPs, all the 8 votes of Coalition for Change MPs, all the 4 votes of National Grand Coalition MPs, all the 3 votes of the Independent MPs and 1 vote from a member of the ruling Sierra Leone People’s Party (SLPP). Tall Order! This analysis presents a case of near impossibility for the main opposition party to get two-thirds majority of MPs in a matter that the ruling party has an opposing view in the present Parliament.
Equally, if the ruling party with 49 MPs for any strange reason wants to annul or reject a Constitutional Instrument, it has to have 49 additional MPs across the divide to support that motion. However, it is politically unusual for a ruling party to move a motion against an instrument that is piloted by a Cabinet Minister of its own party and government.
On the other hand, each of the minor parties can only influence the legislative process by a resolution of the House (through majority – building) and such resolution has to be supported primarily by the dominant parties in the House.
Parliamentary practice and procedure evolve with time and such evolution is influenced by the political system, the legislative process and best practice. In the United Kingdom for instance, attempts to debate Instruments that are before the House have always been a procedural inconvenience on the demands of both Houses of Parliament and its members (Statutory Instruments House of Commons Information Office Fact-sheet L7 p7). From the nuance of legislative process, Constitutional and Statutory Instruments are carved with procedural bulletproof once laid on the Table of the House; and that bulletproof takes advantage of the absence of power by Parliament to amend or to debate it. Even if a Constitutional Instrument is debated, it does not however, stop or put in abeyance the statutory period of maturity; which in our procedural construct is twenty-one days including Saturdays and Sundays. However, Parliament has the power pursuant to subsection 7(c) of Section 170 to annul or reject Constitutional Instruments with a two-thirds majority vote of Members of Parliament – two-thirds majority is 98 members of the present Parliament.
Whilst the certificate of maturity is yet to be issued by the Clerk of Parliament upon the directive of the Speaker; and bearing in mind the silence of the Standing Orders on the issue, it is likely that under the caveat of subsection 1 of Section 94 of the 1991 Constitution, the Speaker might decide that the prescribed twenty-one days in subsection 7(c) of Section 170 of the said Constitution does not run during the period when Parliament is on recess or adjourned sine die. In such a case, the maturity period is not yet satisfied until Parliament resumes.
Sub section 1 of Section 94 of the Constitution reads:
“Subject to the provision of this Constitution, Parliament may regulate its own procedure, and may in particular make, amend and revoke Standing Orders for the orderly conduct of its own proceedings”
Under this procedural circumstance, any Member of Parliament is then at liberty to “pray” for an annulment motion of Constitutional Instruments No. 64 and 65 under subsection 7(c) of Section 170 of the 1991 Constitution. A motion calling for annulment is known as a prayer, couched in such terms as: “that an humble address be presented to the Speaker praying that Constitutional Instruments A and B be …annulled”
To conclude, a motion of annulment of a Constitutional Instrument must secure two- thirds majority vote of Members of Parliament – 98 out of 146 members of the House. Even if this is attainable, a resolution by the House to annul any Constitutional Instrument will not prejudice the drafting of another instrument(s) of similar effect by the Attorney General and Minister of Justice.
Author: ML DEEN ROGERS
Senior Legislative Officer
Parliament of Sierra Leone