“TENURE” OF THE CHIEF JUSTICE: The Constitutional Stipulations, -Hon. Dr. Bu-Buakei JABBI, MP. The issue of the “tenure” of a Chief Justice of the Republic of Sierra Leone has been recently publicly raised by no less a public body or institution as the Anti-Corruption Commission (ACC). 2. Although the issue was thus raised by the ACC in respect of its application to a specific holder of the office of Chief Justice at a particular time, nonetheless, the rendition here focuses on the generality of that issue; that is to say, the constitutional stipulations on the “tenure” of any and every holder of the office of Chief Justice of the Republic of Sierra Leone at any and every time of the relevance and application of the provisions in issue, irrespective of any particular holder of that office at any specified time. 3. But, of course, it is that generality that always obtains and always ought to obtain in respect of any and every holder of the office of Chief Justice at any and every specific, moment, at least so long and so far as the current Constitution of Sierra Leone, Act No. 6 of 1991, remains in force as the “supreme law” of Sierra Leone. The Stipulations 4. The main relevant provisions on the nature and tenure of judicial offices in Sierra Leone are in sections 120, 121, 135, 136, 137, and 139 (among others) of the Constitution. 5. The “Establishment of the Judiciary” is provided for in section 120, with subsection (1) thereof stipulating that the “judicial power” of the State “shall be vested” in the Judiciary and that the Chief Justice “shall be the Head” of the Judiciary. 6. Subsection 120(4) is a highly crucial provision, in that it establishes the mandatory structure and content of the “Judicature” or court system in Sierra Leone (higher and lower courts alike) and also adopts a concept of crucial interpretative relevance in respect of the higher or senior-most courts. 7. According to subsection 120(4), the Judicature “shall consist of” the three “superior courts of record” and lower or “inferior and traditional courts”, as Parliament “may by law establish.” And, as to the said crucial interpretative concept, that the three ‘superior” courts (i.e. the Supreme Court, the Court of Appeal, and the High Court) “shall constitute one Superior Court of Judicature.” 8. By implication, all “Judges/Justice” of any and all of the three “superior” courts are thereby also “Judges/Justices” of the “one Superior Court of Judicature”; and that includes the Chief Justice as well. So that any stipulation in any relevant provision of the Constitution concerning the “Judges/Justices” of the “one Superior Court of Judicature”, if it is made without an express or clearly implied exception, would necessarily include all the “Judges/Justices” of any and all of the three “superior courts of records”, including the Chief Justice as “Head” both of the Judiciary as such and of the highest “superior court”, the Supreme Court. 9. So that in section 135 on the “Appointment of Judges, etc”, for instance, whereas the provisions in subsection (1) thereof expressly relate to the Chief Justice alone, those in subsections (2) to (4) expressly refer collectively to only “other Judges of the Superior Court of Judicature” without any express or implied reference to the Chief Justice as such, whilst that in subsection (5) is jointly referable to all the judicial appointments “for the purposes of this section”. 10. So also in section 136 on “Judicial vacancies”: whereas the provision in subsection (1) thereof expressly relate to the Chief Justice alone, subsections (2) to (6) expressly refer variously to only “a Justice of the Supreme Court or of the Court of Appeal” without any express or implied reference to the Chief Justice as such. 11. And the “Oath of Office” provisions in section 139 do categorise “a Judge of the Superior Court of Judicature” into two kinds or forms for the purpose of oath-taking, i.e. either (a) as the Chief Justice or a Justice of the Supreme Court or (b) as “any other Judge” of the Court of Appeal or of the High Court. Judicial Tenure 12. The provisions on “Tenure of Office of Judges, etc” in the Superior Court of Judicature in Sierra Leone are under section 137 of the Constitution. And they are quite systematically arranged into various sets of provisions on generally “holding” the office, discretionally “retiring” from it, having to necessarily “vacate” it, or being “removed” from office. 13. Subsections 130(4) to 137(7) inclusive, for instance , deal with the “removal” of a Judge of the Superior Court of Judicature, “other than the Chief Justice”, from office. Whereas subsections 137(8) to 137(10) inclusive deal with the conditions, criteria and process of “removing” the Chief Justice himself or herself from office. 14. Each of the foregoing sets of selective provisions on the “removal” of a Judge of the Superior Court of Judicature is exclusive of and different from those provisions dealing with “retiring” from or “vacating” a judicial office of the Superior Court of Judicature. The said selective sets of provisions on “removal” separately deal with specified kinds or sets of relevant judicial offices, one set with all Judges “other than the Chief Justice” and the other set only with the office of the Chief Justice”, 15. Unlike the two selective sets of “removal” provisions, those on “retiring” from and “vacating” a judicial office are not selective as such, in that, they apply (without express or implied exception) to any and every Judge of the Superior Court of Judicature, whether the Chief Justice or any other Judge/Justice of any of the three “superior courts of record”, to wit, the Supreme Court, the Court of Appeal, or the High Courts. 16. So the provisions in subsection 137(1) to 137(3) inclusive are the general provisions of non-selective application in respect of the “holding” of, or “retiring” from, or ‘vacating”, the office of “a Judge of the Superior Court of Judicature”, as follows: 137(1), “Subject to the provisions of this section, a Judge of the Superior Court of Judicature shall hold office during good behaviour”. 137(2). “A person holding office as a Judge of the Superior Court of Judicature (a) may retire as Judge at any time after attaining the age of sixty years; (b) shall vacate that office on attaining the age of sixty-five years. 137(3). “Notwithstanding that he has attained the age at which he is required by the provisions of this section to vacate his office, a person holding the office of a Judge of the Superior Court of Judicature may continue in office, after attaining that age, for a period not exceeding three months, to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previously thereto.” Each of these three sets of provisions applies, without exception or selection, to any and every Judge of the Superior Court of Judicature, whether the Chief Justice or any other Judge/Justice of any of the three “superior courts”, i.e. the Supreme Court, the Court of Appeal, or the High Court. CJ TO “VACATE” OFFICE. 17. Now, what are the criteria and conditions for a holder of the office of Chief Justice to “vacate” that office? Are there any provisions in the Constitution of Sierra Leone 1991 on why, when, how or what basis a holder of the office of Chief Justice has to “vacate” that office, if at all, as distinct from either discretionally “retiring” or being requisitely “removed” from it? And what is the legal nature and character of those provisions, if any, in terms of whether or not they are entrenched, mandatory, and/or capable of extension or modification or not, and how or how far, if at all? 18. All these questions are categorically answered, or at least answerable, with relatively pellucid clarity by means of the generic provisions in subsections 137(2)(b) and 137(3), taken together with the non-generic stipulations in subsection 136 (1)(a), all of the 1991 Constitution currently in force, as follow: 136(1), “Where the office of the Chief Justice is vacant …….then….. (a) until a person has been appointed to and has assumed the functions of that office, or (b) ……………………………………. those functions shall be performed by the most senior for the time being of the Justice of the Supreme Court.” 137(2) “A person holding office as a Judge of the Supreme Court of Judicature (a)……………………………. (b) shall vacate that office on attaining the age of sixty-five years”. 137(3) “Notwithstanding that he has attained the age of which he is required by the provisions of this section to vacate his office, a person holding the office of a Judge of the Superior Court of Judicature may continue in office, after attaining that age, for a period not exceeding three months, to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previously thereto.” (Emphasis variously added herein by emboldening, italicizing and/or underlining). 19. Since the generic concept of “a Judge of the Superior Court of Judicature”, when used without any express or implied exception or preclusive inference in any provision of the Constitution, includes any and every holder of any and every judicial office in any of the three “superior courts” (the Supreme Court, the Court of Appeal, and the High Court), as explained in paragraphs 7 and 8 above hereof, and since the office of Chief Justice is a judicial office in the Supreme Court, therefore any and every holder of the office of Chief Justice under the current Constitution would also be conceived as ‘a Judge of the Superior Court of Judicature”. Accordingly, subsections 137(1) to 137(3) inclusive (and especially subsections 137(2)(b) of the current Constitution), being without any express or implied exclusive/preclusive provision in respect of the said generic concept, are all fully and clearly applicable to any and every holder of the office of Chief Justice at any and every time, in so far and so long as the 1991 Constitution is and remains in force. Subsection 136(1)(a), on its part, is non-generic in nature, and it already expressly deals specifically with the office of Chief Justice. 19. And be it further emphasized at this stage that a lot of the provisions on the Judiciary, to wit, sections 120-124, 128-129,131-133, 135-137, 140 (all inclusive, as applicable) are, each in its entirety, fully entrenched and interpretively sacrosanct in terms of the still entrenched section 108 of the 1991 Constitution. CONCLUSION. 20. So that the stipulation in subsection 137(2)(b) in respect of the holder of the office of Chief Justice “vacating” the office, being also expressed in mandatory terms in adding to its being entrenched, obtains and applies automatically on the relevant office holder’s attainment of the stipulated sixty-five years of age, subject only to the strictly limited possible extension under subsection 137(3) for expressly stipulated purposes of finalizing a not yet concluded matter that has been before him/her or in which he/she has been and still in judicially engaged, to wit, “for a period not exceeding three months, to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previously thereto,” 21. And in either case, immediately the stipulation under subsection 137(2)(b) obtains or occurs clearly without an extension option or, alternatively, immediately after the applicable extension under subsection 137(3) expires, in either case, meanwhile, the latest holder of the office of Chief Justice at once ceases functioning in that capacity and, henceforth, “those functions shall be performed by the most senior for the time being of the Justice of the Supreme Court”, in terms of subsection 136(1)(a), “until a person has been appointed to and has assumed the functions of that office.” 22. The entrenched nature of the relevant provisions on the Judiciary, some of which are also expressly mandatory, allows for no other option or alternative than those stipulated or expressed therein. And even the existence of a state of public emergency in terms of section 29 of the Constitution during such a transition period can have no reversal, countermanding or even otherwise modifying import, or effect on the relevance and applicability of the stipulations in the said provisions on the Judiciary. Any non-compliance with or neglect of the stipulations in those entrenched or mandatory provisions, whether express or implied and whether by the latest holder of the office or even by “the guardian of the Constitution” (subsection 40(3), would be tantamount to a breach or contravention of entrenched and mandatory provision of the “supreme law” of the land. 23. The issue of “vacation” of office by a duly functioning Chief Justice is thus a crucial matter of constitutional importance and the proper functioning of the law. The basic point of concern is to verify when the holder attains the age of sixty-five years, which would be known even as early as his/her taking of the office. When once that date is clarified or made known, it will be obvious that the holder will have to “vacate” that office either immediately he/attains that age in the absence of a stipulated extension option in terms of subsection 137(2)(b) or, alternatively, immediately after the applicable extension under subsection 137(3) expires. In either case, the latest holder of the office of Chief Justice at once ceases functioning in that capacity, subject to the stipulations in subsection 136(a). It is crucial and absolutely essential that the law is strictly applied, observed and/or complied with by all concerned, particularly in respect of the institution into which “the Judicial power” and the administration and management of the law are “vested” (subsection 120(1). 23. It is a bounden duty of “the principal legal adviser to the Government”, the Attorney-General and Minister of Justice, to immediately make it publicly clear when the latest holder of the office of Chief Justice attains or attained the age of sixty-five years in terms of section 137 of the Constitution. And then all else will follow accordingly.
Posted on: Wed, 12 Nov 2014 16:12:37 +0000
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