Legal Analysis of the Sierra Leone 1991 Constitution March 11 2015

ABA/UNDP International Legal Resource Center - 0 - UNDP/Sierra Leone Constitutional Review
INTERNATIONAL LEGAL RESOURCE CENTER
LEGAL ANALYSIS OF THE SIERRA LEONE 1991 CONSTITUTION
PREPARED FOR UNDP
MARCH 11, 2015

Review of Sierra Leone’s 1991 Constitution
LEGAL ANALYSIS OF SIERRA LEONE’S 1991 CONSTITUTION
PREPARED FOR UNDP
INTERNATIONAL LEGAL RESOURCE CENTER
American Bar Association
Section of International Law
1050 Connecticut Ave, NW Ste 400
Washington, DC 20036
Christina Heid, International Projects Director
Christina.Heid@americanbar.org; + 1 (202) 662-1034
Khalil Ali, International Program Associate
Khalil.Ali@americanbar.org; + 1 (202) 662-1662
Fax: + 1 (202) 662-1669
http://ambar.org/ilrc

The statements and analysis contained herein are the work of the ABA-UNDP International Legal Resource Center
(ILRC) which is solely responsible for its content. The views expressed herein have not been approved by the House
of Delegates or the Board of Governors of the American Bar Association (ABA) or the United Nations Development
Programme (UNDP) and, accordingly, should not be construed as representing the policy of the ABA or UNDP.
Furthermore, nothing contained in this report is to be considered rendering legal advice for specific cases, and
readers are responsible for obtaining such advice from their own legal counsel. The opinions expressed herein are
those of the author(s) and do not necessarily reflect the views of the ABA or UNDP.
©2015 American Bar Association. All rights reserved.
Available only in electronic form.

Table of Contents
I. COMMENTS AND RECOMMENDATIONS ......................................................................... 4
A. CHAPTER I – REPUBLIC OF SIERRA LEONE .........................................................................................4
1. Declaration of Republic (Section 1)............................................................................................4
2. Public Seal (Section 2).................................................................................................................6
3. National Flag and National Anthem (Section 3) ........................................................................6
B. CHAPTER II – FUNDAMENTAL PRINCIPALS OF STATE POLICY..................................................................6
1. Fundamental Obligations of Government (Section 4)...............................................................6
2. Government and the People (Section 5)....................................................................................6
3. Political Objectives (Section 6)...................................................................................................7
4. Economic Objectives (Section 7) ................................................................................................9
5. Social Objectives (Section 8).....................................................................................................10
6. Educational Objectives (Section 9)...........................................................................................11
7. Foreign Policy Objectives (Section 10) .....................................................................................11
8. Obligations of the mass media (Section 11) ............................................................................12
9. Enhancement of national culture (Section 12) ........................................................................12
10. Duties of the Citizen (Section 13) .............................................................................................12
11. Fundamental Principles Not Justiciable (Section 14)...............................................................13
C. CHAPTER III – THE RECOGNITION AND PROTECTIONS OF FUNDAMENTAL HUMAN RIGHTS AND PROTECTION OF
FREEDOMS OF THE INDIVIDUAL........................................................................................................13
1. New Section Recommended to Chapter IV..............................................................................13
2. Additional New Section Recommended: .................................................................................14
3. Fundamental Human Rights and Freedoms of the Individual (Section 15) ............................15
4. Protection of Right to Life (Section 16)....................................................................................18
5. Protection from Arbitrary Arrest or Detention (Section 17)...................................................19
6. Protection of Freedom of Movement (Section 18)..................................................................20
7. Protection from Slavery and Forced Labor (Section 19)..........................................................22
8. Protection from Inhuman Treatment (Section 20)..................................................................23
9. Protection from Deprivation of Property (Section 21)............................................................23
10. Protection for Privacy of Home and other Property (Section 22).......................................25
11. Provision to Secure Protection of Law (Section 23) ............................................................26
12. Protection of Freedom of Conscience (Section 24) .............................................................29
13. Protection of Freedom of Expression and the Press (Section 25).......................................30
14. Protection of Freedom of Assembly and Association (Section 26).....................................32
15. Protection from Discrimination (Section 27).......................................................................33
16. Enforcement of Protective Provisions (Section 28).............................................................35
17. New Section Recommended: Authority of courts to uphold and enforce fundamental
freedoms and rights ..........................................................................................................................38
18. Public Emergency (Section 29).............................................................................................39
19. Interpretation of Chapter III (Section 30) ............................................................................43
20. New Section Recommended: Right to Dignity ....................................................................44
21. New Section Recommended: Equality in Marriage.............................................................44
22. New Section Recommended: Children’s Rights ..................................................................45
23. New Section Recommended: Rights of Persons with Disabilities ......................................46
24. New Section Recommended: Protection of Socio-Economic Rights ..................................46
D. CHAPTER IV – THE REPRESENTATION OF THE PEOPLE ........................................................................47
1. Registration of Voters (Section 31) ..........................................................................................47

2. Electoral Commission (Section 32)...........................................................................................47
3. Functions of the Electoral Commission (Section 33) ...............................................................48
4. Political Parties Registration Commission (Section 34)...........................................................48
5. Registration and Conduct of Political Parties (Section 35)......................................................48
6. Secret Ballot (Section 36)..........................................................................................................49
7. Referendum (Section 37)..........................................................................................................49
8. Constituencies and Elections (Section 38) ...............................................................................49
9. Filling of Vacancies (Section 39) ...............................................................................................49
E. CHAPTER V – THE EXECUTIVE......................................................................................................49
PART I – THE PRESIDENT ....................................................................................................................49
The experts provided several comments and recommendations regarding the specific sections
within Part I, regarding the Office of the President. ......................................................................49
1. The Office of the President (Section 40) ..................................................................................49
2. Qualifications for Office of President (Section 41) ..................................................................50
3. Election of President (Section 42) ............................................................................................50
4. Period During Which Presidential Elections Shall Take Place (Section 43).............................50
5. Parliament to Make Laws for Election of President (Section 44)............................................50
6. Presidential Returning Officer (Section 45) .............................................................................50
7. Tenure of Office of President, etc… (Section 46).....................................................................50
9. Incidents of Office, etc… (Section 48).......................................................................................50
10. Vacancy in Office of President (Section 49).........................................................................50
11. Mental or Physical Incapacity (Section 50)..........................................................................50
12. Misconduct by President (Section 51) .................................................................................51
13. Temporary Filling of Vacancy (Section 52) ..........................................................................51
PART II – THE EXECUTIVE ........................................................................................................................51
14. Exercise of Executive Authority in Sierra Leone (Section 53) .............................................51
15. Vice President (Section 54) ..................................................................................................51
16. Vacancy in the Office of Vice President (Section 55) ..........................................................51
17. Ministers and Deputy Ministers of Government (Section 56)............................................51
18. Oaths to be Taken by Ministers, etc… (Section 57).............................................................52
19. Ministerial Vacancies (Section 58).......................................................................................52
20. Establishment of Cabinet (Section 59).................................................................................52
21. Collective Responsibility (Section 60)..................................................................................52
22. Constitution of Offices (Section 61).....................................................................................52
23. Administration of Ministries (Section 62)............................................................................52
24. Prerogative of Mercy (Section 63) .......................................................................................52
25. Establishment of the Office of Attorney-General and Minister of Justice (Section 64).....52
26. Solicitor General (Section 65)...............................................................................................54
27. Director of Public Prosecutions (Section 66) .......................................................................54
28. Secretary to the President (Section 67)...............................................................................54
29. Secretary to the Cabinet (Section 68)..................................................................................55
30. Secretary to the Vice President (Section 69).......................................................................55
31. Power of Appointment Vested in the President (Section 70).............................................55
32. Other Statutory Appointments (Section 71) .......................................................................56
33. Office of Paramount Chief (Section 72) ...............................................................................56
F. CHAPTER VI – THE LEGISLATURE..................................................................................................58
PART I – COMPOSITION OF PARLIAMENT ...............................................................................................58
1. Establishment of Parliament (Section 73)................................................................................58

2. Members of Parliament (Section 74) .......................................................................................58
3. Qualifications for Members of Parliament (Section 75)..........................................................58
4. Disqualifications for Members of Parliament (Section 76) .....................................................58
5. Tenure of Seats of Members of Parliament (Section 77) ........................................................59
6. Determination of Question as to Membership of Parliament (Section 78)............................59
7. The Speaker (Section 79) ..........................................................................................................59
8. Deputy Speaker (Section 80) ....................................................................................................60
9. Election of Speaker and Deputy Speaker (Section 81) ............................................................60
10. Clerk of Parliament (Section 82) ..........................................................................................60
11. Oath to be Taken by Members of Parliament (Section 83) ................................................60
Part II – SUMMONING, PROROGATION AND DISSOLUTION .........................................................................60
12. Sessions of Parliament (Section 84).....................................................................................60
13. Life of Parliament (Section 85).............................................................................................60
14. Sittings of Parliament (Section 86).......................................................................................60
15. General Election (Section 87)...............................................................................................60
PART III – PROCEDURE IN PARLIAMENT.....................................................................................................61
16. Presiding in Parliament (Section 88)....................................................................................61
17. Quorum in Parliament (Section 89) .....................................................................................61
18. Use of English in Parliament (Section 90)............................................................................61
19. Voting in Parliament (Section 91) ........................................................................................61
20. Unqualified Persons Sitting and Voting (Section 92) ..........................................................61
21. Committees in Parliament (Section 93)...............................................................................61
22. Regulation of Procedures in Parliament (Section 94) .........................................................61
23. Contempt of Parliament (Section 95) ..................................................................................61
24. Criminal Proceedings (Section 96) .......................................................................................61
PART IV – RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES .........................................................................62
25. Responsibilities of Members of Parliament (Section 97)....................................................62
26. Freedom of Speech and Debate (Section 98) ......................................................................62
27. Parliamentary Privileges (Section 99)..................................................................................62
28. Immunity from Service of Process and Arrest (Section 100) ..............................................62
29. Immunity from Witness Summons (Section 101)................................................................62
30. Immunity from Serving as Juryman (Section 102)...............................................................62
31. Immunity from Publication of Proceedings (Section 103) ..................................................63
32. Privileges of Witnesses (Section 104) ..................................................................................63
PART V – EXERCISE OF LEGISLATIVE POWER...............................................................................................63
33. Power to Make Laws (Section 105)......................................................................................63
34. Mode of Exercising Legislative Power (Section 106)...........................................................63
35. Minister May Introduce Bill and Be Summoned to Parliament (Section 107) ...................64
36. Alteration of Constitution (Section 108)..............................................................................64
37. Residual Authority of Parliament (Section 109)..................................................................64
PART VI - FINANCE .................................................................................................................................64
38. Authorisation for Imposition of Taxation (Section 110) .....................................................64
39. Consolidated Fund (Section 111) .........................................................................................64
40. Authorisation of Expenditure from Consolidated Fund (Section 112) ...............................64
41. Authorisation of Expenditure in Advance of Appropriation (Section 113) ........................64
42. Withdrawals of Monies for General Revenues (Section 114).............................................64
43. Remuneration of President and Certain Other Officers (Section 115)...............................65
44. Contingencies Fund (Section 116)........................................................................................65

45. Public Debt (Section 117) .....................................................................................................65
46. Loans (Section 118)...............................................................................................................65
47. Establishment of the Office of Auditor-General (Section 119)...........................................65
G. CHAPTER VII – THE JUDICIARY ....................................................................................................66
PART I – THE SUPERIOR COURT OF JUDICATURE.......................................................................................66
1. Establishment of the Judiciary (Section 120)...........................................................................66
PART II – THE SUPREME COURT ...............................................................................................................69
2. Composition of the Supreme Court (Section 121)...................................................................69
3. Jurisdiction of the Supreme Court (Section 122).....................................................................69
4. Appeals to the Supreme Court (Section 123)...........................................................................70
5. Interpretation of the Constitution (Section 124).....................................................................70
6. Supervisory Jurisdiction (Section 125) .....................................................................................70
7. Power of Justices of the Supreme Court in Interlocutory Matters (Section 126)...................71
8. Enforcement of the Constitution (Section 127).......................................................................71
PART III – THE COURT OF APPEAL.............................................................................................................71
9. Composition of the Court of Appeal (Section 128)..................................................................71
10. Jurisdiction of the Court of Appeal (Section 129)................................................................71
11. Power of Single Justice of Appeal (Section 130)..................................................................71
PART IV – THE HIGH COURT ....................................................................................................................72
12. Composition of the High Court (Section 131)......................................................................72
13. Jurisdiction of the High Court (Section 132)........................................................................72
14. Claims Against the Government (Section 133)....................................................................73
15. Supervisory Jurisdiction of the High Court (Section 134)....................................................73
PART V – APPOINTMENT OF JUDGES, ETC..................................................................................................73
16. Appointment of Judges, etc… (Section 135)........................................................................73
17. Judicial Vacancies (Section 136)...........................................................................................73
18. Tenure of Office of Judges, etc… (Section 137) ...................................................................74
19. Remuneration of Judges, etc… (Section 138) ......................................................................75
20. Oath of Office of Judges (Section 139).................................................................................75
PART VI – JUDICIAL AND LEGAL SERVICE COMMISSION................................................................................75
21. Establishment of the Judicial and Legal Service Commission (Section 140) ......................75
22. Appointment of Judicial and Legal Service Officers, etc… (Section 141)............................76
23. Appointment of Court Officers (Section 142)......................................................................76
24. Fees of Court, etc… (Section 143) ........................................................................................76
25. Official Document (Section 144) ..........................................................................................76
26. Rules of Court Committee (Section 145) .............................................................................76
H. CHAPTER VIII – OMBUDSMAN ....................................................................................................76
1. Parliament to Establish Office of Ombudsman (Section 146).................................................76
I. CHAPTER IX – COMMISSIONS OF INQUIRY......................................................................................77
1. Appointment of Commissions of Inquiry (Section 147) ..........................................................77
2. Powers, Rights and Privileges of Commissions of Inquiry (Section 148) ................................78
3. Report of Inquiry (Section 149) ................................................................................................78
4. Rules Regulating Commissions of Inquiry (Section 150) .........................................................78
J. CHAPTER X – THE PUBLIC SERVICE ...............................................................................................78
1. Establishment of the Public Service Commission (Section 151)..............................................78
2. Appointments, etc… of Public Officers (Section 152)..............................................................79
3. Appointment of the Principal Representative of Sierra Leone (Section 153).........................79
4. Appointment of Permanent Secretaries and Certain Other Officers (Section 154) ...............79

PART II – POLICE FORCE ..........................................................................................................................79
5. Establishment of the Sierra Leone Police Force (Section 155) ................................................79
6. Establishment of the Police Council (Section 156) ..................................................................79
7. Appointments in the Police Force (Section 157)......................................................................79
8. Functions of the Police Council (Section 158)..........................................................................79
PART III – RESIGNATIONS, RE-APPOINTMENTS AND PROTECTION OF PENSION RIGHTS OF PUBLIC OFFICERS
HOLDING ESTABLISHED OFFICES ...............................................................................................................79
9. Resignation and Effect of New Appointment of a Person Holding Established Office (Section
159)
10. Reappointments, etc… (Section 160)...................................................................................79
11. Protection of Pension Rights (Section 161) .........................................................................79
PART IV – POWER AND PROCEDURES OF COMMISSIONS AND COUNCILS, AND LEGAL PROCEEDINGS ..................80
12. Power of Commissions in Relation to the Grant of Pension (Section 162) ........................80
13. Power and Procedure of Commissions (Section 163) .........................................................80
14. Protection of Commissions from Legal Proceedings (Section 164) ....................................80
K. CHAPTER XI – THE ARMED FORCES ..............................................................................................80
1. Establishment of the Armed Forces (Section 165)...................................................................80
2. Prohibition of Private Armed Forces (Section 166) .................................................................80
3. Establishment of Defense Council (Section 167) .....................................................................80
4. Appointments in the Armed Forces (Section 168)...................................................................81
5. Functions of the Defence Council (Section 169) ......................................................................81
L. CHAPTER XII – THE LAWS OF SIERRA LEONE ...................................................................................81
1. The Laws of Sierra Leone (Section 170)....................................................................................81
M. CHAPTER XVII – MISCELLANEOUS................................................................................................81
1. Interpretation (Section 171).....................................................................................................81
2. Legislation (Section 172)...........................................................................................................81
3. Consequential Provisions (Section 173)...................................................................................81
N. CHAPTER XIV – TRANSITIONAL PROVISIONS ...................................................................................81
1. Existing Constitution — Act No. 12 of 1978 (Section 174).......................................................81
2. Effect of Transitional Provisions (Section 175) ........................................................................81
3. Existing Law (Section 176) ........................................................................................................82
4. Application of Existing Law (Section 177)................................................................................82
5. Preservation of Existing Offices (Section 178) .........................................................................82
6. Existing Parliament (Section 179).............................................................................................82
7. Delegated Powers (Section 180)………………………………………………………………………………………… 82
8. Continuation of Matters (Section 181) ....................................................................................82
9. Legal Proceedings (Section 183)...............................................................................................82
10. Appeals (Section 184)...........................................................................................................82
11. Jurisdiction of the Courts (Section 185)...............................................................................82
12. Finance (Section 186) ...........................................................................................................82
13. Financial Authorisation (Section 187)..................................................................................82
14. Official Seals, etc… (Section 188) .........................................................................................82
15. Continuation of the Police Force (Section 189)...................................................................83
16. Continuation of the Military Forces (Section 190) ..............................................................83
17. Repeal of Act No. 12 of 1978 and Savings (Section 191).....................................................83
18. Reprint (Section 192)............................................................................................................83
19. Commencement (Section 193).............................................................................................83

INTRODUCTION AND GENERAL ASSESSMENT1
This report compiles the comments, questions, and recommendations of legal experts to the 1991
Sierra Leone Constitution (hereinafter referred to as “the 1991 Constitution” or “the
Constitution”). This report summarizes the experts’ observations and recommendations
regarding the 1991 Constitution. The report is divided into the Chapters and subsections
currently present the Constitution.
I. Introduction
The purpose of this review is twofold: a) provide final recommendations for constitutional
reform; and b) to raise questions and possible options in the dialectic process of amendment
through the lens of a third party experienced in constitutional theory and practice.
Given the time constraints for submission, we recognize the realistic limits of our understanding
of the lives of the people of Sierra Leone. Thus, our external experience and advice must
continuously interact with the public consensus in Sierra Leone to form a sort of tapestry in
which external advice and the public consensus weave together to eliminate legal loopholes.
Background to the Constitutional Review Process:
Following his re-election for a second term in November 2012, Sierra Leone’s President Koroma
pledged to undertake the long awaited review of the country’s 1991 Constitution, as envisaged
under the Lome Peace Agreement and recommended by the Sierra Leone Truth and
Reconciliation Commission (TRC). The President also assured the wider public and the
international community, including the United Nations, that the review process would be
inclusive and transparent. If properly undertaken, this review process will provide Sierra Leone
with a unique opportunity to ensure its own transformation into a fully-fledged democracy, based
on the rule of law and international human rights standards. A reformed Constitution, based on
public input and participation, should also help Sierra Leone on the road to enduring peace and
prosperity.
Since its launch in July 2013, the CRC has carried out a series of activities, including civic
education, public consultations and workshops on thematic issues, with the support of the United
Nations Integrated Peacebuilding Office in Sierra Leone (UNIPSIL) and the United Nations
Development Programme (UNDP). To complement the efforts of the CRC, UNIPSIL with
support from the Peace Building Fund, also organized a series of dialogues to facilitate
discussion of the process with political parties, women and youth groups and religious and
traditional leaders.
1
For nearly 15 years, the ILRC has assisted UNDP as well as several other United Nations (UN) entities and multinational organizations that
work in developing countries with legal issues beyond democratic governance. The ILRC, which is housed within the ABA Section of
International Law, identifies experts for requests relating to technical legal assistance projects, knowledge management and advisory services
worldwide. The ILRC also conducts assessments of draft and current legislation, gauging their compliance with international standards where
appropriate, and provides legal research and substantive advice to governments on policy formulation. The ILRC has engaged twelve (12) legal
experts as well as three (3) junior expert to conduct complimentary research. This report was compiled by Suzanne Lachelier and Kwangsup
Kim. All the experts’ biographies can be found in Annex A of this report. To date, the team of experts have provided over 500 pro bono hours of
service valued at nearly $111,000. For more information, please contact Khalil.Ali@americanbar.org.

UNDP's support to the Constitutional Review Process will continue after UNIPSIL leaves. The
process aims to consolidate National Peace-Building and State-Building efforts through a
consultative, transparent and widely inclusive course of action.
Since December 2013, there has been significant progress and CRC sub-committees have
finalized their outreach and nation-wide consultation strategy with technical assistance from
UNDP. Sierra Leonean media practitioners have been trained on mediation, dialogue and conflict
sensitive reporting on constitutional issues.
In order to ensure that issues of gender and non-discrimination are prioritized in the process,
UNDP, with collaboration from the Ministry of Gender, Social Welfare and Children organized a
nation-wide Women’s Voices Conference on gender-mainstreaming in the Constitutional
Review Process in Bo in March 2014. Various women’s groups and leaders participated in the
conference and developed plans to promote gender equality issues throughout the constitutional
review process.
Throughout 2014 the UNDP-led constitutional review project will assist the CRC to implement
country-wide stakeholder consultations with women, youth, local government bodies, paramount
chiefs, civil society organizations and consultations trickling down to district and community
level.
In general, the Constitution is quite lengthy and detailed. In most of the proposed amendments
below, superfluous or other matters best provided for by statute are recommended for repeal
under the theory that enactment of specific legislation is the best response to evolving matters
rather than frequent amendment of the Constitution—a (rightly) laborious and time-intensive
process. Amendments were drafted in order to achieve a number of aims: Maintain as much of
the spirit and structure of the 1991 Constitution as well as analyze and reinforce as many of the
Constitutional Review Commission’s recommendations as set forth in its January 2008 report as
possible; Bring the Constitution into line with Sierra Leone’s international legal obligations;
Satisfy the recommendations of the Truth and Reconciliation Commission in its exhaustive 2004
report; and align with current constitutional experience, particularly those constitutions that have
been amended and enacted in Africa since 1991. In this regard, the 1996 Constitution of South
Africa and the 2010 Constitution of Kenya were most useful, not only because they are widely
regarded strong and effective instruments, but because they were both drafted in the wake of
internal conflict. The amendments below also change gendered pronouns to gender-neutral
pronoun (i.e., “their” instead of “his”) or restructure text so as to avoid the use of pronouns
altogether.
Most of the last third of the 1991 Constitution consists of provisions establishing constitutional
authorities, which are designedly independent of the President and Parliament. This review has
been trying to establish whether this respect exists mainly on paper, or whether it is also reflected
in reality; though without obtaining much information on this point. However, we believe that,
either way, it is valuable to set a good standard in the Constitution. At worst, this sets a standard
to which the authorities should aspire and, as resources become available, gradually achieve.

It is, of course, true that the question of the independence of these institutions depends as much
on that elusive thing, tradition or ‘culture’, as on the law or Constitution. But the Constitution is
a significant factor in shaping culture and so, if the Constitution tends to promote independence,
it will have, certainly in the medium term, a significant effect on the culture. They are intended
to ensure that the President and Parliament remain within the Constitution and the Rule of Law.
The most important of these authorities are the Courts. But they also include: Electoral
Commission; Political Parties Registration Commission; Directors of Public Prosecutions;
Ombudsman; Commissions of Inquiry; Public Service Commission; and Police and Defense
Councils.
In addition, it forms a strong policy in the Report of the Commission to Review the 2008
Constitution of Sierra Leone proposes several further examples of these constitutional
authorities, namely Parliamentary Service Commission; Human Rights Commission; NGOs
Regulatory Board; Forces Complaints Commission; Extractive Industries Transparency
Commission (paras. 105, 129, 140 and 138). If these proposals in the Report were adopted, it
would naturally require some adjustment to the Constitution, including the amendments
proposed later, in the matrix. This review not pursuing this further, since we are concentrating
here on the 1991 Constitution. But it would note that probably there should be some limit to the
number of these constitutional authorities, because the greater the number the less chance that
they will be taken seriously.
The independence and effectiveness of these constitutional authorities seems (and, it appears, the
2008 Report) to be of the first importance. After all, principles and values, however excellent,
cannot enforce themselves. Institutional machinery is needed to ensure respect for laws
promoting gender equality and non-discrimination; or respect for Human Rights. It remains as
true as ever that ‘power corrupts; and absolute power corrupts absolutely’. The inference from
this is that independent officers, so as to prevent it from being all-powerful, should at critical
points control the executive-legislative organ of state.
The importance of constitutional authorities of this type, in making good government work, has
been recognized internationally. For instance, see Uganda (1995); South Africa (1996); Kenya
(2010); Egypt (2014); Tunisia (2014). As noted, this idea of independent, specialized
Constitutional Bodies already exists in the Sierra Leone Constitution. Accordingly, the
remainder of this advice consists of a review of the existing divisions in this field, in order to see
how they can be improved.

I. COMMENTS AND RECOMMENDATIONS
Within each Part, the experts' comments and recommendations generally fell within three
categories: (a) substantive comments regarding specific provisions and their legal implications
(b) substantive and lengthy recommendations as to additional language that should be included
in the Bill; and (c) editorial comments and recommendations focusing on grammatical issues and
clarity. Because of the high number of comments and the specific and in-depth nature of these
comments, this report has organized them on a per-section basis.
A. CHAPTER I – REPUBLIC OF SIERRA LEONE
1. Declaration of Republic (Section 1)
All the experts noted that it would be important for the Constitution’s supremacy to be
emphasized in this Section.
One expert recommended adopting language that would specify the power to enforce provisions
of the Constitution. To that end, this expert proposed the following:
If any other laws are found to be inconsistent with
any provision of this Constitution, they shall be
rendered void.
Another expert pointed to the recommendation from the 2008 Review of the Sierra Leone
Constitution, which sought to establish the supremacy of the Constitution and the sovereignty of
the people. The 2008 Review proposed the following language for addition to Section 1:
1. The Constitution shall be the Supreme law of
Sierra Leone, and
2. Sovereignty belongs to the people of Sierra Leone
from whom Government through this Constitution
derives all its power, authority and legitimacy.
A third expert also suggested emphasizing the supremacy of the Constitution, with the following
additional language:
The Constitution shall be the Supreme law of Sierra
Leone. This Constitution binds all persons and all
State organs at all levels of government. Any law,
including customary or religious law, that is
inconsistent with this Constitution is void to the
extent of the inconsistency, and any act or omission
in contravention of this Constitution is invalid.
This expert referenced a number of international treaties, agreements other national constitutions,
as examples supporting the inclusion of the above language in Sierra Leone’s Constitution:
International Covenant on Civil and Political Rights (hereinafter “ICCPR,”) art. 18(a); Human
Rights Committee, General Comment No. 22(48) (art. 18), U.N. Doc. CCPR/C/21/Rev.1/Add.4,

¶2 (Sept. 27, 1993); Committee on the Elimination of Discrimination Against Women, General
Recommendation No. 28: On the Core Obligations of States Parties under Article 2 of the
Convention on the Elimination of All Forms of Discrimination against Women, ¶33, U.N. Doc,
CEDAW/C/GC/28 (Dec. 16, 2010); Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, art. 5; S. AFR. CONST., 1996 § 2; KENYA CONST., 2010
art. 2; GHANA CONST., 1992 art. 1(2); UGANDA CONST., 1995 art. 2; U.S. CONST. art. IV, cl. 2;
WITNESS TO TRUTH: REPORT OF THE SIERRA LEONE TRUTH & RECONCILIATION COMMISSION,
Vol. II, Ch. 3, ¶108 (2004) [hereinafter TRC REPORT].
This same expert further recommended that the Sierra Leone Constitution include a new
provision, acknowledging the place of international law in Sierra Leone’s domestic legal
structure. Citing a number of treaties, agreements and state constitutions, this expert proposed
the following addition:
Any treaty or convention ratified by Sierra Leone
shall form part of the law of Sierra Leone.
ICCPR, art. 2; Human Rights Committee, General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. No.
CCPR/C/21/Rev.1/Add. 13, ¶13 (May 26, 2004); CEDAW, art. 2(a); Committee on the
Elimination of Discrimination Against Women, General Recommendation No. 28: On the Core
Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms
of Discrimination against Women, ¶31, U.N. Doc, CEDAW/C/GC/28 (Dec. 16, 2010);
Convention on the Rights of the Child, art. 4; Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, art. 2(1)(a); S. AFR. CONST., 1996 § 2;
KENYA CONST., 2010 art. 2(5), (6); RWANDA CONST., 2003 prmbl., §9, arts. 25, 28; S. AFR.
CONST., 1996 § 39(1)(b).
Another expert suggested writing a preamble in Section 1 that would not limit the Section to
defining the territory of Sierra Leone. Rather, this expert recommended that a preamble
underscore
the sovereignty of Sierra Leone through its elected
representatives or by referendum in this adoption of
the Constitution as the Supreme Law of the Land
regulating their affairs for the purposes stated in
Chapters II and III of the Constitution.
This expert further recommended that the preamble contain language which acknowledges
popular consciousness of the history of the nation,
its diversity and the resolve of the people to live
together as one nation, in peace, progress and
posterity, hereby make this solemn declaration
contained in this constitution.

The same expert referenced the preamble in South Africa’s Constitution (1996), which provides
that “We therefore, through our freely elected representatives, adopt this Constitution as the
Supreme law of the Republic so as to heal the divisions of the past and establish a society based
on democratic values, social justice and fundamental human rights; improve the quality of life of
all citizens and free the potential of each person. These ideals are expressed in Sections Chapters
II and III of this draft Constitution.”
The expert also noted that Section 171(15)’s affirmation of the primacy of the Constitution
should be placed in the recommended preamble to the Constitution.
2. Public Seal (Section 2)
There were no comments regarding the Public Seal.
3. National Flag and National Anthem (Section 3)
One expert commented that the Constitution should stipulate that Freetown is the capital of the
Sierra Leone. He pointed to Germany’s laws as an example where, in Article 22 (Federal capital
– Federal ﬂag) of the Basic Law for the Federal Republic of Germany, which declares Berlin as
the capital, and further provides that “[t]he Federation shall be responsible for representing the
nation as a whole in the capital. Details shall be regulated by federal law.”
In contrast, another expert recommended that the legislature determine the appearance of Sierra
Leone’s flag, since the Constitution currently provides that the flag shall contain the Public Seal,
and the design of the Public Seal is already prescribed by the legislature under Section 2 of the
Constitution. He therefore proposes the following conforming language for Section 3 of the
Constitution:
The flag of the Republic shall be as Parliament
shall prescribe.
B. CHAPTER II – FUNDAMENTAL PRINCIPALS OF STATE POLICY
1. Fundamental Obligations of Government (Section 4)
There were no comments on this Section.
2. Government and the People (Section 5)
Several experts highlighted that this Section should address the role of Government in protecting
the rights and freedoms of the people, in representing and serving them. With that goal in mind,
an expert proposed the amendments (italicized) to the existing language in Section 5(2)(b):
and to this end it shall be the duty of the Armed
Forces, the Police, Public Officers and all security
and other public agents and representatives to
protect and safeguard the people of Sierra Leone
and all their rights and freedoms.

With a similar desire to focus this Section on Government representing the people and deriving
its power from them, another expert proposed re-lettering Subsections 5(2)(a), (b) and (c) as
5(2)(b), (c) and (d), respectively. He then recommended including the following language in a
new Section 5(2)(a):
Sovereignty belongs to the people of Sierra Leone.
It shall be exercised by the people through elected
representatives elected among the people or by
referendum following the procedure and conditions
specified in this Constitution.
An renumbered Subsection 5(2)(b), therefore, would delete the phrase
addressing sovereignty currently contained in it, but still contain the
existing language as modified below:
Through this Constitution the Government derives
all its powers, authority and legitimacy.
Another expert suggested the following amendment (italicized) to Section 5(1):
The Republic of Sierra Leone shall be a State based
on the principles of Human Dignity, Equality,
Freedom, Democracy and Justice.
3. Political Objectives (Section 6)
All of the experts expressed similar wishes with different language seeking to assure the
independence and integrity of public servants. One of these experts emphasized that this Section
should explicitly prescribe the impartiality of public servants, their independence from the
Executive and from political interests groups. To that end, the expert proposed creation of a new
subsection 6(6), which would contain the following language:
The status and political impartiality of public
officials shall be guaranteed as prescribed by
legislation. All public officials shall be servants of
the people and shall be responsible for and
accountable to the people.
The second expert proposed the following language for a constitutional assurance of public
servants’ integrity:
All organs of Government and all authorities and
persons employed in the service of the State shall
act ethically. No person employed in the service of
the State may act in any way inconsistent with their
office or this Constitution.

Two experts proposed specific language amendments to Subsection 6(2). These proposed
amendments were similar in that they seek to promote the widespread and non-discriminatory
protection of the rights assured under the Constitution. One of these expert’s proposed
amendments to Subsection 6(2) are:
1. to delete the word “discourage” and replace it
with “prohibit,” to make clear that discrimination is
not to be tolerated;
2. to delete “on the grounds” because the grounds
for which discrimination is prohibited are currently
specified in Section 27(3) (“Enforcement of
Protective Provisions”);
3. to change “citizen” to “persons,” so that the
Constitution protects all persons within the territory
of Sierra Leone as those rights are broadly
articulated in Section 15 (“Fundamental Human
Rights and Freedoms of the Individual”).
Also regarding Subsection 6(2), the other of these experts expressed concern that “integration”
could be contradictory to the goal of protecting diversity and the rights of minority groups of all
types. With this concern in mind, this expert proposed that the phrase “promoting national
integration” be removed, and the following sentence be added:
The state shall promote the ideals and principles
stated in section 5(1) as well as the pursuit of
happiness, social justice, promotion and protection
of fundamental human rights without discrimination
on the basis of race, ethnicity, religion, status or
gender.
Regarding Subsection 6(3), an expert recommended continuing the promotion of egalitarianism
by adding the following language, after 6(3)(a):
(b) Promote gender balance, the interest of disabled
and disadvantaged people in the procurement of
government services, appointments and promotions.
It was further recommended to add a sentence (in italics below) to the existing Subsection 6(5):
The state shall take all steps to eradicate all corrupt
practices and abuse of power. For this purpose,
prior to taking and leaving office, all persons who
by the provisions of this constitution shall be
mandated to take an oath of office prior to taking
office and shall, in addition to the oath, declare
their affirmation under the conditions and
procedures to be specified by an act of parliament.

4. Economic Objectives (Section 7)
Experts’ responses on Section 7 diverged significantly. One expert recommended deleting it
entirely, and stated that the language currently in Section 7 involves more government policies,
and not principles typically articulated in a constitution; the policies contained in Section 7, he
advised, could conflict with rights in the constitution, including any environmental rights that
may be adopted.
Another expert recommended substantial changes to the language, designed to promote an
accountable government and transparent legal institutions, in the hopes of minimizing
government officials acting to the detriment of the people’s economic opportunities. This expert
therefore proposed the following new language for Section 7(1):
The State shall establish and implement a plan to
comprehensively develop and support farm and
fishing communities in order to protect and foster
agriculture and fisheries.
In order to protect the interests of farmers and
fishermen, the State shall endeavor to stabilize the
prices of agricultural and fishery products by
maintaining an equilibrium between demand and
supply of such products and improving their
marketing and distribution systems.
The State shall protect and foster small and medium
enterprises.
The State shall foster organizations founded on the
spirit of self-help among farmers, fishermen and
businessmen engaged in small and medium industry
and shall guarantee their independent activities and
development.
A third expert suggested adding, to Subsection 7(1)(c), the word “promote,” before “protect.”
He further recommended adding a new subsection to Section 7, with the following statement:
All other economic objectives promoted and
protected by international conventions to which
Sierra Leone is a state party.
This expert provided commentary to explain the basis for the above additional language, and to
expound on the purposes of Sections 6(5), 7, 8 and 9. Specifically, he noted that the distinction
between rights purportedly non-justiciable (i.e., economic, social and cultural rights described in
the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) (1966)), and
justiciable political and civil rights, is falling out of favor. He further noted that the ICESCR, at
Section 2 commits signatory nations to taking reasonable legislative measures that would make

these “second generation human rights” justiciable. He pointed to the efforts of many African
nations to stamp out corruption, correct injustices and minimize societal economic disparities,
including the fact that South Africa addressed these problems in its preamble, and Sections 11,
26 and 27 of its Constitution. He then recommended that the Sierra Leone Constitution do
similarly. To that end, and although the second generation rights themselves may not be
justiciable, this expert suggested that the Constitution could declare that policies, acts or
omissions of the Government which infringe on these rights could be made justiciable.
5. Social Objectives (Section 8)
There is a recommendation to add a requirement that
The government will to the greatest extent possible
promote and facilitate universal public access to
modern information and communications
technologies and to a diverse range of information.
The expert making this recommendation emphasized the crucial value of access to information in
promotion and advancement of Social Order. He suggested that the government should, through
language such as the above, facilitate access to important information, and the information
technologies and communications systems necessary to access such information.
Another expert made specific language change recommendations to Section 8. These are:
1. In Subsection 8(2)(a), delete “based on merit,”
because there may be other grounds for benefits
inuring to citizens, and limiting these to benefits
“based on merit” could conflict with any affirmative
action principles that may be adopted.
2. In Subsection 8(2)(c), delete “by reason of
economic….” There could be many other unlawful
reasons for denying access to courts, and thus the
wording in this section should not limit itself to
economic reasons.
3. In Subsections 8(3)(c) and (d), delete the phrase
“having due regard to the resources of the State.”
This phrase could provide a pretext, often used by
States, to deny access to the benefits afforded in
these Subsections.
A third expert commented on Subsection8 (2)(c), recommending deletion of the phrase “and that
opportunities for securing justice are not denied any citizen by reason of economic or other
disability,” to replace it with:

and that access to justice is not denied any citizen
by virtue of his economic status, social cultural
factors, disability or on religious, ethnic, gender or
any other discriminatory factors.
6. Educational Objectives (Section 9)
Two experts recommended gender neutral terms, or using “his or her,” in the language of this
Section, so as to promote women’s rights.
Another expert noted that this Section should include access to information technologies and
telecommunications systems. He emphasized that the State should commit itself to provide
necessary finance and structures that lead to universal access to modern computing and
communications technologies, as these are necessary to provide effective education and equal
educational opportunities for the public.
Two expert suggested deleting from Subsection 9(1)(c) the phrase “as and when practicable,” so
that the responsibility of the State to provide senior education is not be open-ended or free too
free to be ignored. One of these experts further recommended deleting Subsections 9(1)(a)
though (c), and replacing them with the phrase “free education for all at all levels,” so that the
description of free education levels to be afforded under the Constitution is more comprehensive,
and specific levels are not inadvertently omitted, as they could be through an itemized list.
7. Foreign Policy Objectives (Section 10)
An expert recommended the addition of the following language, so that the Constitution would
specify that treaties to which Sierra Leone are a party become part of domestic law:
Treaties duly concluded and promulgated under the
Constitution and generally recognized rules of
international law shall have the same effect as the
domestic laws of the Sierra Leone.
This expert further recommended that the Constitution specify the State would guarantee the
status of foreigners, such as travelers, investors, etc…, with the addition of the following
language:
The status of foreigners shall be guaranteed as
prescribed by international law and treaties.
Another expert shared a recommendation focused on assuring international rights and
obligations, proposing to delete in Section 10(a) the phrase “the protection of National interest,”
and adding the following:
promotion and protection of the national and
international policies of Sierra Leone and its sub-
regional, regional and global strategic interest.

A third expert suggested that the language in Section 10(d) could be modified to encourage the
adoption of complaint procedures in human rights treaties. To this end, he recommended
changing the phrase “or adjudication” to “adjudication, or complaint mechanisms,” in paragraph
10(d).
8. Obligations of the mass media (Section 11)
One expert suggested adding the following sentence to this Section, so as to safeguard the
freedom of expression this Section assures:
All means of mass communication including the
press, radio and television shall operate within the
principles and objectives set out in this constitution
regarding the responsibility and accountability of
the government of Sierra Leone
Another expert recommended adding social media, blogs and all other electronic media should
be included in this section, to ensure that the freedom guaranteed in this Section covers more
than traditional mass media.
9. Enhancement of national culture (Section 12)
Only one change was recommended for this Section, namely to delete, as unnecessary
restrictions, in Subsections 12(a) and (b) the phrases “which is compatible with national
development” and “compatible with national development,”
10. Duties of the Citizen (Section 13)
An expert endorsed the 2008 Constitution reports suggestion that the duty to protect the
environment should be added to Section 13, and for that purpose, he recommended adding the
following language:
Mindful also of its responsibility toward future
generations, the state shall protect the natural
foundations of life and animals by legislation and,
in accordance with law and justice, by executive
and judicial action, all within the framework of the
constitutional order.
The following specific language changes were recommended to Section 13:
1. In Subsection 13(b), delete “the National Flag,
the National Anthem,” because “ideals and
institutions” can be respected without requiring
respect to the flag or national anthem.

2. Also in Subsection 13(b), delete “so that
loyalty…” as unnecessarily restrictive to the reasons
for cultivating nationalism and patriotism.
3. In Subsection 13(g), delete “work conscientiously
in a lawful and chosen occupation,” because this
phrase is too vague as to the obligations it purports
to create.
4. Delete Subsection 13(j) (which imposes a duty on
citizens to render assistance to State agencies)
entirely because it places too great a burden on
citizens and might result in the State or government
officials undue interference with citizens and their
freedoms.
Another expert suggested that this phrase, “help enhance the power, prestige and good name of
the state,” be deleted from Subsection 13(d); he noted that the duty of patriotism is encompassed
already in Subsection 13(d), through the phrase “defend the state and render national service.”
He further recommended that the meaning of “citizen” be defined in this Section.
11. Fundamental Principles Not Justiciable (Section 14)
An expert recommended adding the following phrase to Section 14:
and courts shall be guided by the provisions in this
Chapter when interpreting this Constitution.
Another expert recommended deleting this Section altogether, noting that the principles created
in this Chapter becomes merely hortatory claims if they are non-justiciable.
C. CHAPTER III – THE RECOGNITION AND PROTECTIONS OF FUNDAMENTAL
HUMAN RIGHTS AND PROTECTION OF FREEDOMS OF THE INDIVIDUAL
1. New Section Recommended to Chapter IV
Noting the examples of Kenya’s Constitution (2010), at art. 20, and the South African
Constitution (1996), at §8, an expert proposed the following new two new Sections to this
Chapter:
(1) This Chapter applies to all laws and binds all
State organs and all persons.
(2) Every person shall enjoy the rights and
fundamental freedoms in this Chapter to the
greatest extent consistent with the nature of the
right or fundamental freedom.
(3) In applying a provision of this Chapter, a court
shall—

(a) develop the law to the extent that it does
not give effect to a right or fundamental
freedom; and
(b) adopt the interpretation that most
favours the enforcement of a right or
fundamental freedom.
(4) In interpreting this Chapter, a court, tribunal or
other authority shall promote––
(a) the values that underlie an open and
democratic society based on human dignity,
equality, equity and freedom; and
(b) the spirit, purport and objects of this
Chapter.
(5) In applying any right under Sections [insert
Section number for new proposed provision on
socio-economic rights] if the State claims that it
does not have the resources to implement the right,
a court, tribunal or other authority shall be guided
by the following principles––
(a) it is the responsibility of the State to
show that the resources are not available;
(b) in allocating resources, the State shall
give priority to ensuring the widest possible
enjoyment of the right or fundamental
freedom having regard to prevailing
circumstances, including the vulnerability of
particular groups or individuals; and
(c) the court, tribunal or other authority may
not interfere with a decision by a State
organ concerning the allocation of available
resources, solely on the basis that it would
have reached a different conclusion.
2. Additional New Section Recommended:
An expert pointed to Constitutions from two other African nations, specifically, §7(2) of South
Africa’s Constitution (1996) and art. 21 of Kenya’s Constitution (2010), and proposed the
following additional section to this Chapter of the Sierra Leone Constitution:
(1) It is a fundamental duty of the State and every
State organ to observe, respect, protect, promote
and fulfill the human rights and fundamental
freedoms in this Chapter
(2) The State shall take legislative, policy and other
measures, including the setting of standards, to
achieve the progressive realization of the rights
guaranteed under Sections [insert Section number

for new proposed Section on socio-economic rights
discussed below]
(3) All State organs and all public officers have the
duty to address the needs of vulnerable groups
within society, including women, older members of
society, persons with disabilities, children, youth,
members of minority or marginalised communities,
and members of particular ethnic, religious or
cultural communities.
(4) The State shall enact and implement legislation
to fulfill its international obligations in respect of
human rights and fundamental freedoms.
3. Fundamental Human Rights and Freedoms of the Individual (Section
15)
One expert suggested adding language that would assure that, even in public emergencies or
other emergent conditions, the State could not infringe on the essential aspects of the freedoms
articulated in Section 15. He proposed the following language:
Even when restrictions (for example, public safety
and order, etc.) are imposed, no essential aspect of
an affected freedom or right shall be violated.
An expert wrote that Section 15 should be streamlined in its language to make it consistent with
the human rights provisions of the International Covenant on Civil and Political Rights
(“ICCPR”), in particular, articles 1, 2 (a), (b), (c), and 3. He proposed the following introductory
language, to precede Subsections 15(a), (b), and (c). He also recommended deleting the
concluding paragraph to Section 15 that follows 15(c), commenting that what constitutes “public
interest” can be the subject to controversy, and thus such language should not be in a
constitution.
Pursuant to international conventions ratified or
acceded to by Sierra Leone for the promotion and
protection of the human rights, the people of Sierra
Leone recognize that citizens of Sierra Leone and
persons present within the national territory are
entitled to the following inherent and inalienable
rights without distinction on the basis of, tribe,
race, colour, sex, language, religion, ethnicity,
political, or other opinion, national or social origin,
economic or, birth or social status, subject to the
respect of the individual and collective rights of
others:
A few experts recommended adopting the rights articulated in the Constitution report, so that
Section 15 would expand protected rights and include, for example, the right to passport; the
right of protection of environment; the right to education; and the right to dignity of the person.

Along these lines, one of these experts proposed, below, specific amendments to Section 15,
relying on the constitutional and international treaty provisions of other nations (cited after the
proposed language below):
(1) Whereas every person in Sierra Leone is entitled
to the fundamental human rights and freedoms of
the individual, that is to say, has the right, whatever
his regardless of race, tribe, place of origin,
political opinion, colour, creed or sex, but subject to
respect for the rights and freedoms of others and for
the public interest, to each and all of the
following—
(a) life, liberty, security of person, the
enjoyment of property, and the protection of
law;
(b) freedom of conscience, of expression
and of assembly and association;
(c) respect for private and family life, and
(d) protection from deprivation of property
without compensation; and
(e) passport;
(f) protection of the environment; and
(g) education, health and dignity.
(2) The subsequent provisions of this Chapter shall
have effect for the purpose of affording protection
to the aforesaid rights and freedoms, subject to such
limitations of that protection as are contained in
those provisions, being limitations designed to
ensure that the enjoyment of the said rights and
freedoms by any individual does not prejudice the
rights and freedoms of others, or the public interest
and shall not be limited except by law, and then
only to the extent that the limitation is reasonable
and justifiable in an open and democratic society
based on human dignity, equality and freedom,
taking into account all relevant factors, including––
(a) the nature of the right or fundamental
freedom;
(b) the importance of the purpose of the
limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of
rights and fundamental freedoms by any
individual does not prejudice the rights and
fundamental freedoms of others; and

(e) the relation between the limitation and
its purpose and whether there are less
restrictive means to achieve the purpose.
(3) The State or a person seeking to justify a
particular limitation shall demonstrate to the court,
tribunal or other authority that the requirements of
this Article have been satisfied.
(4) Despite any other provision in this Constitution,
the following rights and fundamental freedoms shall
not be limited––
(a) freedom from torture and cruel, inhuman
or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial; and
(d) the right to an order of habeas corpus.
S. Afr. Const., 1996 §§7(2), 27(1), 36; Kenya Const., 2010 arts. 21, 24, 25, 43(1)(a);
International Covenant on Economic, Social and Cultural Rights, art. 12(1) (“ICESCR”);
Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”),
art. 12; CRC, art. 24; Banjul Charter, art. 16; Rwanda Const., 2003 art. 41; Uganda Const., 1995
arts. 43(1) and 44.
Another expert emphasized that the right to access all public information is vital in order to
permit individuals to exercise their full economic, social, and political potential, and thus
constitutes today a fundamental human right. He therefore recommended that this section
include the liberty to access all public information. He further noted that the many forms of
electronic surveillance now available interfere with basic human rights, including the freedoms
of expression and association. Accordingly, he also recommended that this Section include a
specific right to be free from unreasonable electronic surveillance.
An expert proposed the following specific language changes, for the reasons explained below:
1. In the preamble paragraph, insert “including”
between “right,” and “whatever.” This amendment
would allow for expansion of the bases for
protecting against discrimination, for example to
include sexual orientation and class.
2. Also in the preamble, delete “and for the public
interest,” as this phrase imposes an unnecessary
limitation on the exercise of the freedoms created in
Section 15.
3. Delete 15(c), as this language does not articulate
a right, but rather an obligation.

4. Delete the final concluding paragraph, as it
repeats the preamble paragraph of Section 15.
4. Protection of Right to Life (Section 16)
The majority of experts recommended changes that either would eliminate or reflect disfavor for
the death penalty. One expert noted that Subsections 16 (2) (a)(b)(c)(d) are inconsistent with
section 8(a) of the current Sierra Leone Constitution, which protects the sanctity of life, that they
promote violence, and that contravene the rule of law and Part III, articles 6(1)(2)(3)(4)(5)(6), 7
of the ICCPR.
Two experts recommended deletion of Subsection 16(2) in its entirety. One of these experts
noted that Subsection 16(2) actually lists specific defenses, and such detailed provisions do not
constitute fundamental human rights that should are ordinarily contained in a constitution. He
recommended that the Constitution not articulate pro and anti-death penalty positions, and to that
end, suggested the following language changes to Subsection 16(1):
1. Insert “unlawfully” between “shall be” and
“deprived”.
2. Delete “intentionally except….”
The other of the two experts who recommended complete deletion of Subsection 16(2) cited
other constitutions and treaties (listed below), and proposed the following new Subsection 16(2),
and changes to Subsection 16(1):
(1) Every person has the right to life.
(2) No person shall be deprived of his life
intentionally except in execution of the sentence of
a court in respect of a criminal offence under the
laws of Sierra Leone, of which he has been
convicted to the extent authorized by this
Constitution or other written law.
See ICCPR, arts. 6(1), 7, Banjul Charter, arts. 4, 5; U.N. Special Rapporteur on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report, General
Assembly, ¶53, U.N. Doc. A/67/279 (Aug. 9, 2012); Kenya Const., 2010 art. 26(1) and (3), S.
Afr. Const., 1996 §11, Tanz. Const., 1977 (as amended to 2005), art. 14.
One expert modified the proposed language in the 2008 Constitution Report (see ¶41 of that
Report), similarly adding a new Subsection (3), to Section 16. The Constitution report language
is reflected below, with the experts proposed changes (in italics) and deletions (strikeouts)
(b) the death penalty should be abolished and
replaced by life imprisonment for all crimes but for
the temporary exception of acts in all cases of

treason or other crimes of a political nature which
does not directly cause the death of another
person(s), and replaced by life imprisonment.
(c) that Parliament shall review the death penalty
every two (2) years with a view to its total
abolition.
5. Protection from Arbitrary Arrest or Detention (Section 17)
An expert focused on the need for the Constitution to provide the right counsel for indigent
accused, as well as the provision of a victims’ assistance fund for victims of violent crimes. He
suggested the latter would be separate from any compensation such victims obtained in court,
and could be funded through fines imposed on offenders. To these ends, this expert proposed the
following additional language to Section 17:
If a criminal defendant is unable to secure counsel
by her or his own efforts, the government shall
assign counsel for the defendant as prescribed by
law.
Persons who have suffered bodily injury or death
due to criminal acts of others may receive aid from
the government under conditions as prescribed by
law.
Noting that the period of detention of 10 days currently authorized in Subsection 17(3) violates
article 14(3)(a)(c) of the International Covenant on Civil and Political Rights. He therefore
recommended reducing this time period to 48 hours “or such justifiable period not exceeding 7
days as the circumstances of the case may require.” This expert further recommended also
shortening, from 72 to 24 hours, the time period for bringing before the court someone accused
of a non-capital crimes, non-environmental offences, or offences involving less than a life
sentence.
Another expert proposed repealing Subsection 17(1) entirely, and replacing it with the following:
(1) Every person has the right to freedom and
security of the person, which includes the right:
(a) not to be deprived of freedom arbitrarily
or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from
either public or private sources;
(d) not to be tortured in any way;
(e) not to be subject to corporal punishment;
and
(f) not to be treated or punished in a cruel,
inhuman or degrading way.

This same expert then recommended moving Subsections 17(2)-(4), which protect the rights of
arrested and detained persons, to a new version of Section 23 she proposes (further below, in
discussion of Constitution Section 23). Similarly, another expert recommended moving all of
Section 17 to Section 23, and modifying the language as follows:
1. To Subsection 17(1), insert “unlawfully”
between “shall be” and “deprived.”
2. 17(1), delete “except as…,” because the
language otherwise gives unfettered powers to the
state.
3. Delete Subsections 17(1)(a-j). Change
recommended for same reason as immediately
preceding recommended amendment.
4. A new Subsection 17 (2), “No person can be
detained without reasonable suspicion of his having
committed or of being about to commit a criminal
offence,” to retain language in current Subsection
17(1)(f), aimed establishing a legal standard that
would trigger detention powers.
5. Similarly to recommendation from expert
mentioned above, this expert suggested reducing the
number of days specified in 17(3)(a), from “ten”
with “seven,” and in 17(3)(b) from “seventy-two” to
“forty-eight.” This expert commented that these
changes would be consistent with the proposal in
the 2008 Constitution.
7. As to the final paragraph after 17(3), replace
with “Any person who is unlawfully arrested or
detained shall be entitled to compensation.” This
change would avoid implying that there is only a
private cause of action as a remedy for violating the
provisions of protecting against unlawful arrest or
detention.
6. Protection of Freedom of Movement (Section 18)
An expert suggested that Sierra Leone may wish to include biodiversity as a “natural resource.”
Two experts recommended deleting Subsection 18(2), with one of these commenting that it is
superfluous. The other expert proposed a streamlined change to Section 18’s language, making it
broader and more encompassing. Referencing other constitutions and treaties, this expert
suggested deleting Subsections 18(2)-(7) in their entirety, and making the following language
changes (in italics) and deletions (strikeouts) to what is now Section 18(1):
(1) Every person has the right to freedom of
movement.

(2) No person shall be deprived of freedom of
movement, and for the purpose of this section the
said freedom means the right to move freely
throughout Sierra Leone, the right to reside in any
part of Sierra Leone, the right to enter or the right to
leave Sierra Leone, and immunity from expulsion
form Sierra Leone.
(3) No citizen shall be deprived to the right to
enter, remain in, or reside anywhere in Sierra
Leone.
See ICCPR, art. 12(3); Ghana Const., 1992 art. 21(g); Kenya Const., 2010 art. 39; S. Afr. Const.,
1996 §21; Rwanda Const., 2003 art. 23; Tanz. Const., 1977 art. 17.
Several experts expressed concerns about Subsection 18(3), with one of these recommending
deleting it entirely on the grounds that this Chapter conveying human rights should not address
granting any State rights. Two suggested deleting Subsection 18(3)(g), noting that it is
inconsistent with section 18(1), and articles 12(1), (2), (3), (4) of the ICCPR. One expert
recommended replacing 18(3)(a)’s current use of “interest of national defence” with “national
security”, public order, public health or morals or the rights and freedoms of others, and are
consistent with other rights recognized, promoted and protected by this Constitution.” He
commented that the term “national security” better captures the spirit behind this Section, and
that subjecting civilians to military activities violates the intent behind the ICCPR.
Another of the experts expressing concern about the impact of Subsection 18(3) wrote that this
provision could significantly undermine one or more individual rights assured in the
Constitution. He proposed that, to minimize the chances of this occurring, the Subsection could
instruct the courts to interpret it consistently with other sections of the Constitution, and include
specific cross-reference to sections that address individual freedoms. In the alternative, he
proposed the following limiting language, directed at the courts, could be added to 18(3):
This provision should be construed narrowly by the
courts in order to provide the widest possible
protection for individual rights consistent with this
section.
As to Subsection 18(4), one expert recommended adopting the proposed language from the 2008
Constitution Report (text below), and he added (in italics) some language to clarify how the
commission created under this proposal would be structured:
18(a) if any person whose freedom of movement
has been restricted by virtue only of such a
provision as is referred to in paragraph (a) of
subsection (3) so requests at any time during the
period of that restriction not earlier than thirty days
after he last made such a request during that period,
his case shall be reviewed by an independent and

impartial tribunal, established by law, comprising
not more than three persons from amongst persons
of not less than fifteen years’ standing entitled to
practice in Sierra Leone as legal practitioners;
18(b) Any tribunal has been set up established
under paragraph (a), the Chairman of that tribunal
consist of three members:
i. The Human Rights Commission shall
appoint the Chairman of that tribunal, who
shall be a lawyer.
ii. The Human Rights Commission shall
appoint the second member of that tribunal,
who shall not be a lawyer.
iii. The Sierra Leone Bar Association shall
appoint the third member of that tribunal,
who shall be a lawyer.
Commenting on the above changes, the expert said that the intent appeared to be to create a panel
(Human Rights Commission, “HRC”) comprised of two lawyers and one non-lawyer. Note that
the clarification this expert proposes also goes with language proposed elsewhere; seeking to
assure the HRC has the powers to investigate and adjudicate, in order to fulfill its mission. The
expert comments that officials reviewing the Constitution should consider and decide if this
specific structure meant to cover all HRC hearings or is unique here, to Section 18 of the
Constitution. Drafters may wish either to (a) move this structural provision down to the section
dealing specifically with the HRC, or (b) include an express statement in the HRC section that
other tribunal structures are permissible in other circumstances.
Similarly relying on the proposed changes reflect in the 2008 Constitution report, an expert
recommended replacing the current Subsection 18(4)(a) with
If any person whose freedom of movement has been
unlawfully restricted by any public official so
requests at any time during the period of that
restriction not earlier than thirty days after he last
made such a request, his case shall be reviewed by
an independent and impartial tribunal set up by the
Human Rights Commission.
7. Protection from Slavery and Forced Labor (Section 19)
Both experts commenting on this Section recommended deletion of Subsection 19(2). One
expert noted that (2) is over-expansive, and seems to allow forced labor in times of emergencies.
The other expert noted that 19(2) is inconsistent with the non-derogable nature of the right to
protection from slavery and forced labor.

It was recommended that Subparagraph 19(1) be retained as is, as the sole paragraph in this
Section.
8. Protection from Inhuman Treatment (Section 20)
An expert recommended deletion of this entire Section, indicating that it is already encompassed
in the proposed Subsection 17(1)(f), above, which would guarantee the freedom “not to be
treated or punished in a cruel, inhuman or degrading way.”
Three experts recommended deletion of Subsection 20(2). Two experts of these expressed
similar concerns that Subsection 20(2) is so broad that it effectively creates a blanket exception
which allows the continuation of laws that permit inhuman treatment. He advised that, if
Subsection 20(2) is intended simply to articulate an exception for events that occurred prior to
acceptance of the Constitution then, at a minimum, this intent should be stated explicitly with,
for example, the following language:
no law or action that violates this right is permitted
from 1991 forward.
This same expert notes that perhaps Sierra Leonese courts have interpretations of Subsection
20(2) that would make the proposed language above unnecessary.
The second expert recommending deletion of Subsection 20(2) noted that Section 20 generally
should be read to be consistent with art. 15 of the ICCPR, which precludes retroactive
application of a law to punish individuals for conduct preceding enactment of that law.
Another expert recommended language changes to Section 20 so that its wording conforms to the
wording used in the Convention Against Torture.
9. Protection from Deprivation of Property (Section 21)
Two experts proposed deleting Subsections 21(2) through (5), with one stating these are
overbroad exceptions to the protection of property rights. The other of these experts, citing
Article 14 of the Banjul Charter, which generally protects the right to property, and the
constitutions of several African nations (referenced below), proposed that Subsections 21(2)
through (5) replaced with the following additions (italics) and deletions (strikeouts) to the
existing language of Section 21(1):
Every person has the right, either individually or in
association with others, to acquire and own
property:
(a) of any description; and
(b) in any part of Sierra Leone.
(2) No person may be deprived of property of any
description or of any interest in, or right over, any
property of any description except in terms of law of
general application, and no law may:

(a) permit arbitrary deprivation of property,
or
(b) limit, or in any way restrict the
enjoyment of any right under this Section on
the basis of any of the grounds specified or
contemplated in Section 27(4)
(1) (3) No property of any description shall be
compulsorily taken possession of, and no interest in
or right over property of any description shall be
compulsorily acquired, except where the following
conditions are satisfied, that is to say—
(a) the taking of possession or acquisition is
necessary is for a public purpose or in the
public interest and is carried out in
accordance with this Constitution and any
Act of Parliament in the interests of defence,
public safety, public order, public morality,
public health, town and country planning,
the development or utilization of any
property in such a manner as to promote the
public benefit or the public welfare of
citizens of Sierra Leone; and
(b) the necessity therefor is such as to afford
reasonable justification for the causing of
any hardship that may result to any person
having any interest in or right over the
property; and
(c) (b) provision is made by law applicable
to that taking of possession or acquisition—
i. for the prompt payment of
adequate compensation; and
ii. securing to any person having an
interest in or right over the property,
a right of access to the court or other
impartial and independent authority
for the determination of his such
interest or right, the legality of the
taking of possession or acquisition of
the property, interest or right, and the
amount of any compensation to
which he or she is entitled and for
the purpose of obtaining prompt
payment of that compensation.
(c) Provision may be made for compensation
to be paid to occupants in good faith of land

acquired under clause (b) who may not hold
title to the land.
(4) Parliament shall enact legislation to support,
promote and protect the intellectual property rights
of the people of Sierra Leone.
(5) The rights under this Section do not extend to
any property that has been found to have been
unlawfully acquired.
Banjul Charter, art. 14; Kenya Const., 2010 art. 40(1)-(6); Rwanda Const., 2003 art. 29; Tanz.
Const., 1977 art. 24(1)-(2); S. Afr. Const., 1996 §25.
An expert suggested inserting, in Subsection 21(1)(c)(i), the words “just and” between “of” and
“adequate,” so that the elements of justness/fairness are included in the adjudication of
compensation for the deprivations of property lawfully authorized under this Section.
Another expert proposed adding to Subsection 21(5) a right to appeal from the proposed Lands
Tribunal, to some competent authority above it.
10. Protection for Privacy of Home and other Property (Section 22)
One expert recommended that this Section should articulate specific protections against
unreasonable searches and seizures for internet searches, searches of electronic computing and
communications devices, and of stored electronic communications. Such protections would
recognize that much personal property today includes electronic devices that store sensitive
personal information. This expert further suggested that this Section of the Constitution should
extend to protecting the privacy of information in electronic communications and activities (such
as e-mail addresses, website URLs). This expert commented that beyond the content of e-mails
themselves, e-mail addresses and websites an individual may access convey personal information
about that individual; the Constitution should contain protection this sort of data, “metadata,” as
well. Finally, the expert also recommended that this Section contain a prohibition on
unreasonably invasive surveillance and monitoring technologies, such as thermal imaging
devices, without appropriate authorization. The expert suggested that the Constitution create a
privacy interest that guards against modern tracking technologies that enable surveillance beyond
the expectations of individual citizens (e.g., “keystroke monitoring” software which tracks
keystrokes, and wireless communications “sniffers” which can identify phone numbers and
Internet addresses accessed).
Two experts suggested deleting Subsection 22(2) as an overbroad exception to the right sought to
be protected here. One of these also recommended deleting 22(1), and that the following
language substituted:
Every person has the right to privacy, which
includes the right not to have—
(1) their person, home or property searched;
(2) their possessions seized;
(3) information relating to their family or private
affairs unnecessarily required or revealed; or

(4) the privacy of their communications infringed.
See S. Afr. Const., 1996 §14; Kenya Const., 2010 art. 31. See also Uganda Const., 1995 art. 27;
U.S. Const. amend. IV.
An expert recommended deleting the phrase “reasonably justifiable in a democratic society” at
the end of Section 22, as it may be the subjection of controversial interpretations. He further
suggested that to clarify this Section, the following additions (italics) and deletions (strikeouts)
should be made to Section 22(1) and 22(2)(a):
Section 22(1): Add “Unless required by law or
with his express consent”…
Section 22(2)(a): Replace “defence” with “national
security”
Finally, one expert advised that Subsections 22(2)(a) through (d) should be deleted, but 22(a)(e)
should be kept as it offers child and spousal protection.
11. Provision to Secure Protection of Law (Section 23)
One expert recommended that the age of 21 referred to in Subsection 23(3) should be changed to
18, to be consistent with the right to vote that is set out in Section 31 of the Constitution.
Regarding Subsection 23(4), an expert advised deletion of the phrase “to the extent that the law
in question imposes on any person charged as aforesaid the burden of proving particular facts,”
commenting that this provision is inconsistent with the presumption of innocence and right to
remain silent, which are reflected in art. 14 of the ICCPR.
One expert recommended adding to Subsection 23(5) a right to free legal counsel upon
demonstration of lack of ability to afford one. Another expert commented that the proviso in
Subsection 23(5), which limits the right to legal representation created in this Subsection to those
persons charged with a criminal offense, should be deleted; this expert commented that the right
to legal representation should not be prohibited at any level.
As to 23(9), another expert recommended deleting the second proviso of in that subsection
(regarding the trial of members of the defence forces), noting that it violates the principles of
equality before the law and against double jeopardy, contained in art. 14(7) of the ICCPR.
It was further proposed that Subsections 23(10) and 23(11) be deleted, on the basis that the
former deletion is consistent with the 2008 Constitution report’s recommendation, and the latter
contains a definition of “legal representation” that could need to change over time and that
therefore should not be contained in the more static document that is a constitution.
Finally, one expert suggested comprehensive changes to the whole of Section 23, through the
language below. The expert cited examples and support for these changes, which are footnoted.
(1) An arrested person has the right—

(a) to be informed at the time of arrest2
in
language that the person understands, of—
(i) the reason for the arrest;
(ii) the right to remain silent;
(iii) the consequences of not
remaining silent; and
(iv) the right of access to a legal
practitioner or any person of their
choice.
(b) to remain silent;
(c) to communicate confidentially with a
legal practitioner of their own choice, and
other persons whose assistance is
necessary;3
(d) not to be compelled to make any
confession or admission that could be used
in evidence against the person;
(e) to be held separately from persons who
are serving a sentence;
(f) to be brought before a court as soon as
reasonably possible, but not later than––
(i) forty-eight hours after being
arrested; or
(ii) if the forty-eight hours ends
outside ordinary court hours, or on a
day that is not an ordinary court day,
the end of the next court day;4
(g) at the first court appearance, to be
charged or informed of the reason for the
detention continuing, or to be released; and
(h) to be released on bond or bail, on
reasonable conditions, pending a charge or
trial, unless there are compelling reasons.
2
Report of the Commission to Review the Constitution of Sierra Leone, 1991 at 22, ¶44 (2008) [hereinafter
Commission Report] (deleting “and in any event not later than twenty-four hours, of the facts” from Section
17(2)(a)).
3
Commission Report at 23, ¶45 (deleting “at his own expense” from Section 17(2)(b)).
4
ICCPR, art. 9(3) requires that arrested persons “be brought promptly before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” Under the
Kenyan and South African Constitutions, 48 hours is the outside limit on pre-hearing detention. KENYA CONST.,
2010 art. 49(1)(f) (24 hours); S. AFR. CONST., 1996 §35(1)(d). The Commission has determined that 48 hours shall
be the standard for non-capital offenses in Sierra Leone. Commission Report at 23, §46 (changing seventy-two to
forty-eight in Section 17(3)(b) of the 1991 Constitution). Neither international nor comparative law provides a
different time standard for capital offenses which is why the 10-day time frame provided for in the 1991
Constitution, Section 17(3)(a) (amended to seven days by the Commission Report at 23, §46) is removed.

Legal Analysis of the Sierra Leone 1991 Constitution March 11 2015

Legal Analysis of the Sierra Leone 1991 Constitution March 11 2015

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