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Legal System of Sierra Leone -musa m kamara 110i

Musa M. Kamara, 110i, RYTE

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Legal System of Sierra Leone -musa m kamara 110i

  2. 2. Introduction  Sierra Leone is situated on the West Coast of Africa and covers an area of 72,000 square kilometers. The country is bounded on the north and north-east by the Republic of Guinea, on the West by the Atlantic Ocean and on the east by the Republic of Liberia.  Sierra Leone a former British Colony gained independence on the 27th April 1961. The country is divided into three provincial areas: Southern province, Eastern province and Northern Province and the Western Area. There are twelve (12) districts and one hundred and forty nine (149) chiefdoms and three hundred and ninety four (394) wards in Sierra Leone. Freetown is the capital of Sierra Leone. There are about 13 ethnic tribes in the country but the lingua franca widely spoken is Krio. The official language of the country is English.  Sierra Leone’s recent past has been marred by conflict. In 1991, an armed conflict erupted in the country that claimed thousands of lives, maimed, displaced and left a trail of sexually abused women and children. This war lasted for over a decade coming to an end in 2001. Two transitional justice mechanisms have been put into place to ensure accountability for human rights abuses. These are the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone .
  3. 3. Historical Note  Sierra Leone’s historical legal development can be divided into two phases. Earlier, there was the protectorate, but before the establishment of this, it was an area ruled by the natives themselves. Part of this territory was ceded for settlers and with time, the original area as distinct from the protectorate became known as the provinces and at other times as regions. Prior to the advent of colonialism, the chiefs governed with a set of rules. The Paramount Chief was the senior chief followed by the Town Chief and the Section Chief. In 1963, a new Act, the Local Courts Act was enacted. This Act guaranteed amongst other things that Local Courts will have the jurisdiction to administer the estates of deceased persons (Section 13(1)). It is further provided that Letters of Administration should be taken out to administer the property of deceased persons. The criteria for this are that one should be a native and must be subject to customary law.  With the arrival of settlers in the colony area, a new system brought over from Britain was introduced. The advent of the Magistrate’s Court, the High Court and the West African Court of Appeals led to the Privy Council. Foreign officers were sent to various provinces as District Officers. They were administrative officers not lawyers, but because they had studied law they could sit as Magistrates and hold court.
  4. 4. The Government  The current system of government in Sierra Leone, established under the 1991 Constitution, is modeled largely on the presidential system with the following structure of government:  The Legislature  The Executive  The Judiciary Each organ or arm of government is distinctly provided for without reference to the other. However, the Constitution provides for checks and functional overlaps in the mechanism of government. Within the confines of the 1991 Constitution of Sierra Leone, supreme legislative powers are vested in Parliament, which is the law making body of the land. Supreme executive authority rests in the President and members of his cabinet and judicial power with the judiciary of which the Chief Justice is head.
  5. 5. The Legislature  Section 105 of the 1991 Constitution provides that the Sierra Leone Parliament is the supreme law making body vested with legislative power. Parliament consists of the President, the Speaker and members of Parliament. The Sierra Leone Parliament is unicameral. Section 74(1) of the 1991 Constitution that Members of Parliament shall comprise the following:  a) One Member of Parliament for each District who shall, subject to the provisions of this Constitution, be elected in such a manner as may be prescribed by or under any law from among the persons who, under any law, are for the time being Paramount Chiefs’  b) Such number of Members of Parliament as Parliament may prescribe and elected in such manner prescribed by law. To be qualified as Member of Parliament, the person should possess the following:  a) Should be a citizen of Sierra Leone  b) Have attained the age of 21  c) Able to speak or read the English language with a degree of proficiency to enable him to actively take part in proceedings in Parliament.  d) Should be an elector registered in the Register of electors.
  6. 6. The Executive  Section 40 of the 1991 Constitution of Sierra Leone states that the supreme executive authority shall be vested in the President of the Republic of Sierra Leone, who shall also be the Head of State and the Commander-in-Chief of the armed forces. The President is described as the Fountain of Honour and Justice and the symbol of national unity and sovereignty- Section 40(3). Section 40(4) outlines the responsibility of the President for certain key issues:  All constitutional matters concerning legislation  Relations with foreign states  The reception with foreign envoys and the appointment of principal representatives of Sierra Leone abroad  The execution of treaties, agreements or conventions in the name of Sierra Leone  Exercising the Prerogative of Mercy  The grant of honors and awards  Declaration of war  Such other matters as may be referred to the president by Parliament.  However, this is in addition to the other functions conferred upon the President in the Constitution. For qualification to be elected President, a person should possess the following characteristics:  Should be a citizen of Sierra Leone  Should be a member of a political party  Should have attained the age of 40 years  Should be otherwise qualified to be elected as a Member of Parliament.
  7. 7. The Executive  Section 54(1) creates the office of the Vice President who is the Principal Assistant to the President in the discharge of his executive functions. Section 56(1) of the Constitution provides for such other offices of Ministers and Deputy Ministers as may be established by the President with the proviso that no Member of Parliament shall be appointed as Minister or Deputy Minister.  Section 53(1) vests executive power in the President, which may be exercised by him directly or through Ministers, Deputy Ministers or Public Officers subordinate to him.  The executive function embraces the direction of the general policy of the government. This includes the initiation of legislation, the maintenance of law and order and the promotion of social and economic welfare and to a large extent all administration though some public services are administered not by government departments but by local authorities and independent statutory bodies.  The tenure of the Office of the President is dealt with in Section 46(1) of the 1991 Constitution. It is thereby provided that no person shall hold office as President for more than two 5-year terms, whether or not the terms are consecutive.
  8. 8. The Judiciary  Section 120(1) of the Constitution states that the judicial power of Sierra Leone shall be vested in the judiciary. The judiciary of Sierra Leone, headed by the Chief Justice comprises the Supreme Court, the Court of Appeal and the High Court. These constitute the Superior Court of Jurisdiction. The inferior courts comprise the Magistrates courts and the Local courts. The Magistrates Courts exist in each district. Local courts administer customary law in provincial communities outside the Western Area.  The administration of justice is the focal and foremost function of the judiciary. According to Section 120(2), the judiciary has jurisdiction over all civil and criminal matters relating to 1991 Constitution and such other matters conferring jurisdiction on it by Parliament or under an Act of Parliament. Section 120(3) stipulates that in the exercise of its functions, the judiciary shall be subject only to the 1991 Constitution or any other law and shall not be subject to the control or direction of any other person or authority.
  9. 9. The Supreme Court  At the apex of the hierarchy of courts in Sierra Leone is the Supreme Court. Section 121(1) provides that the Supreme Court shall consist of the Chief Justice, not less than four Justices of Supreme Court and such other Justices of the superior court of judicature or of the superior courts in any state operating a body of law similar to Sierra Leone. The Chief Justice may for the determination of any particular cause or matter request to sit in the Supreme Court for such period as the Chief Justice may specify or until the request is withdrawn. According to Section 121(3) the Chief Justice shall preside at the sittings of the Supreme Court and in his absence the most senior of the Justices of the Supreme Court as constituted for the time being shall preside. The quorum of the Supreme Court shall not be less than three justices. The Supreme Court is the final Court of appeal in Sierra Leone and as such, appellate and other jurisdiction as may be conferred upon it by the Constitution or any other law. The Supreme Court has original jurisdiction to the exclusion of all other courts in two instances:  1) in matters relating to the enforcement or interpretation of any provision of the constitution and  2) where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law under the Constitution.
  10. 10. The Court of Appeal Section 128(1) provides that the Court of Appeal shall consist of the Chief Justice, not less than 7 Justices of the Court of Appeal and such other Justices of the superior court of judicature as the Chief Justice may for the determination of any particular cause or matter, request to sit in the Court of Appeal for such period as the Chief Justice may specify or until the request is withdrawn. Section 128(2) provides that the Court of Appeal shall be duly constituted by any 3 Justices thereof. However, a single Justice of the Court of Appeal may exercise any power vested in the Court of Appeal not involving the decision on any cause or matter before the Court of Appeal save…:  1) in criminal matters, if any such Justice refuses or grants an application in exercise of any such power, any such person affected thereby shall be entitled to have the application determined by the Court of Appeal as duly constituted and  2) in civil matters, any order, direction or decision made or given in pursuant of the power conferred by the provision may be varied, discharged or reversed by the Court of Appeal as duly constituted. Section 129(1) grants the Court of Appeal jurisdiction to hear and determine appeals from any judgment, decrees or order of High Court of Justice or any Justice of the High Court and such other appellate jurisdiction as may be conferred upon it by the Constitution or any other law. The Court of Appeal is to be bound by its own previous decisions and Courts inferior to the Court of Appeal are bound to follow the decisions of the Court of Appeal on questions of law. Section 128(3).
  11. 11. The High Court  Section 131(1) provides that the High Court shall consist of the Chief Justice, not less than 9 High Court judges and such other judges of the superior court of judicature as the Chief Justice may for the determination of any particular cause or matter, request to sit in the High Court for such period as the Chief Justice may specify or until the request is withdrawn. The High Court shall be duly constituted by any one judge of the High Court sitting with a jury. Section 131(2).  The High Court of Justice has supervisory jurisdiction over all inferior traditional Courts in Sierra Leone and any adjudicating authority and in the exercise of its supervisory jurisdiction shall have power to issue directions, writs and orders, including the writs of habeas corpus, and other writs of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers.
  12. 12. Appointment of Judges  According to Section 135 of the 1991 Constitution, the President of Sierra Leone shall acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament, appoints the Chief Justice from among persons qualified to hold office as Justice of the Supreme Court.  The other Judges of the Superior Court of Judicature are appointed by the President acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament. Qualification for appointment as a Judge  Section 135(3) states that a person shall not be qualified for appointment as a Judge of the Superior Court of Judicature unless he is entitled to practice as Counsel in a Court having unlimited jurisdiction in civil and criminal matters in Sierra Leone or any other country with a system of law analogous to that of Sierra Leone or approved by the Judicial and Legal Service Commission and has been entitled as such Counsel in the case of appointment to:  the Supreme Court, for less than twenty years  the Court of Appeal, for less than fifteen years  the High Court of Justice, for not less than ten years.  Judges of the Superior Court of Judicature may retire as a Judge at any time after attaining the age of sixty five years but shall vacate that office on attaining the age of sixty five years. Section 137(2).
  13. 13. The Magistrate’s Court  The Magistrate’s Court The primary inferior court of judicature is the Magistrate’s Court. Pursuant to the Courts Act, Act No 31 of 1965, Sierra Leone is constituted into Judicial Districts and Section 4 of the Act states that there shall be constituted Magistrate’s Court in and for every judicial district. Magistrate’s Courts have limited jurisdiction. Subject to their limitations, Section 8 of the Courts Act, 1965 provides that the Magistrate’s Court shall have the jurisdiction to do all lawful acts necessary to enquire into and dispose of or to hear and determine all civil and criminal matters arising within the district, area or place for which it is established or transferred to it by the High Court. Such jurisdiction is to be exercised by the Magistrate duly appointed to such courts.  Justices of the Peace These are provided for by Section 9 of the Courts Act of 1965. They sit in various magistrate courts as the Chief Justice decides.  Court Marshall Court Marshalls are established pursuant to Section 84 of the Republic of Sierra Leone Military Act. These tribunals are empowered to try any person subject to military law, in addition to offences against the general law which are applicable to all persons who join the army. Section 85 of the Act provides that Court Marshalls shall be convened by the Force Commander or any General, Brigadier or Colonel or Officer of corresponding rank.
  14. 14. Jurisdiction of the Court Marshall Court Marshalls have jurisdiction to try and punish persons subject to military law for 2 classes of offences created by the Republic of Sierra Leone Military Act (Part V). Judicial Divisions Supreme Court – The Highest Court. 5 judges with provision for 7. Court of Appeal - 3 Judges with provision for 5 High Court – Has appellate jurisdiction and is a court of first instance for both civil and criminal matters. In its appellate jurisdiction are ordinary appeals and local appeals. A matter from the District Appeals Court goes to the Local Appeals Court with a Magistrate and 2 assessors whose responsibility is to advice him/her. Magistrate’s Court – Civil, Industrial, Family Division (Divorce), Admiralty (Shipping). Coroner’s Court – Consists of a magistrate sitting with a jury of seven. No power to sentence. Its jurisdiction is to conduct an inquiry, to investigate and consider whether an offence has been committed. The decision of the inquiry of the court could result in the matter being charged to the Magistrate Court or High Court and the evidence of witnesses are taken as depositions during the trial. District Appeals Court – Does not have original jurisdiction. (A summons cannot be initiated in this court). A Magistrate sits as the Chairman in the District Appeals Court. Two Customary Law Officers are assigned to the court to advice the Chairman. However, the Chairman is not bound by the advice proffered by these Customary Law Officers and may even dispense with these assessors if the matter before the Court does not pertain to Customary
  15. 15. •Local Court – Has jurisdiction exclusively in matters that arise within their geographical area. Local courts cannot hear cases where the government or a company is a party. This is because neither is considered native. There are cases where the matter goes straight from the High Court to the Supreme Court. This “Leap Frog Approach” occurs in situations where a matter touches or concerns the Constitution. Judicial Review This is the Court’s power to police the legality of government decisions, sometimes referred to as supervisory jurisdiction. In exercising the power of judicial review, the Courts are concerned about whether the actions of the government (executive) meet certain legal standards. The Office of the Attorney General and Minister of Justice The above roles are fused. As Attorney General, the designated person is the principal legal advisor to the government, and as the Minister of Justice, is responsible for supervising the administration of Justice (looking after the judiciary). The responsibilities of this Office include ensuring that the rule of law is upheld.
  16. 16. Sources of Law in Sierra Leone Sources of Law in Sierra Leone The Sierra Leone legal system encompasses a combination of the Constitution, common law, statutory law and customary law. A two-tiered system of Common Law based on the British system and local customary law characterizes the legal system. Being a former British Colony, Sierra Leone received laws from Britain. This is guaranteed under Section 74 of the Courts Act 1965 which states that subject to the provision of the Constitution, the common law and statutes of general application in England before the 1st day of January 1880 shall automatically be part of the common law of Sierra Leone. Article 170(1) of the 1991 Constitution of Sierra Leone, Act No 6 states that the laws of Sierra Leone shall comprise the following:  The Constitution;  Laws made by or under the authority of Parliament as established by the Constitution;  Any orders, rules, regulations and other statutory instruments made by any person or authority pursuant to a power conferred in that behalf by the Constitution or any other law;  The existing law; and  The common law
  17. 17. THANKS FOR YOUR ATTENTION Musa M Kamara 110i