By Michael Imran Kanu, SJD
On the 24th March 2020, the President of the Republic of Sierra Leone, H.E. Dr Julius Maada Bio, declared a state of public health emergency (“SoPE”) to take effective measures ‘to prevent, protect and curtail the spread’ of the corona virus disease 2019 (“COVID-19”) in Sierra Leone. This declaration is just about a year apart from the declaration of rape and sexual violence as a ‘national emergency’ by President Bio. For varying reasons and motives, declarations of SoPE (or the urgency to do so) have attracted public debate overtime, including newspaper features and unpublished but publicly disclosed letters. This descriptive précis adds to the growing literature on the declaration of SoPE in Sierra Leone, with the objective to stimulate informative public discourse and further clarity.
The Presidential Prerogative to Declare a SoPE
Without engaging in a detailed doctrinal analysis in this piece, the starting place for such a précis is section 171 of the Constitution of Sierra Leone, Act No. 6 of 1991 (the ‘Constitution’), which defines “Public Emergency” to include “any period during which a. Sierra Leone is at war; or b. there is in force a Proclamation issued by the President under subsection (1) of section 29; or c. there is in force a Resolution of Parliament made under subsection (3) of section 29”. This is a precising definition, and it directs us to section 29 of the Constitution, in which subsection (1)(a) & (b) states:
Whenever in the opinion of the President a state of public emergency is imminent or has commenced, the President may, at any time, by Proclamation which shall be published in the Gazette, declare that— a) a state of public emergency exists either in any part, or in the whole of Sierra Leone; or b) a situation exists which, if it is allowed to continue, may lead to a state of public emergency in any part of or the whole of Sierra Leone.
In adopting a methodical approach, the first key feature for consideration is the prerogative of the President to declare a state of public emergency. In the State v Adel Osman and Others (SC MISC APP 1/88;  SLSC 1 (13 April 1988), (“S v Osman and Others”) p. 15, per Kutubu C.J., the Supreme Court examined the issue under the 1978 Constitution (with similar language) and opined that the “power of the President to declare by proclamation that a state of public emergency exists or ‘a situation’ exists which may lead to a state of public emergency is in his absolute and unfettered discretion subject only to the provisions of” the sub-section.
In examining the provision of section 29 (1)(a) & (b) of the Constitution, four important points have to be noted. First, a declaration is based on the opinion of the President for an actual or perceived (imminent) condition that warrants SoPE proclamation. The Supreme Court confirmed the wide latitude given to the President in S v Osman and Others in proclaiming a SoPE and likened emergency situations to “connote abnormality, and curtailment of our rights and freedoms […and an emergency,] empowers the President to take measures as he sees fit or necessary to control and contain a crisis situation”. Second, the SoPE may exist in the whole of Sierra Leone or any part whether actual (and continuing) or perceived. Third, the existence of a ‘situation’ which if allowed to continue may lead to a state of public emergency in part or the whole of Sierra Leone. A ‘situation’, in this context, is not defined in the Constitution but in S v Osman and Others, the Supreme Court had this to say:
‘A situation’, could be wide-ranging and encompasses a multiplicity of situations ad infinitum. It lies in the sole power and discretion of the President to determine a situation, which at any given time in his estimation, deserves a declaration by Proclamation of a state of public emergency. The exercise of this power is unquestionable and unchallengeable. The situation could be described as ‘Economic’ ‘Political – ‘National Disaster, and like situations, too numerous to mention here. Indeed, they are many and varied”.
Fourth, the Presidential proclamation must be published in the Gazette, which means ‘the Gazette published by order of the Government of Sierra Leone and includes any supplement thereto…” as provided for in section 4 of the Interpretation Act 1971 (see S v Osman and Others, pp. 27-28). The publication represents a fundamental procedural step to give effect to a declaration of a SoPE.
Compliance or otherwise with the procedure for the proclamation of SoPE as outline above represents the one unique situation where the legality of a SoPE declaration may be enquired into as provided for in section 29 (4) and (18) the Constitution. And if emergency regulations are made, the Supreme Court has taken the view in S v Osman and Others that in SoPE, “Emergency Regulations are laws to which the fundamental rights constitutionally have to give way. They take a back seat to the extent the Emergency Regulations take the front seat. There is no room for both in the front seat. An emergency is what the word means”, per Kutubu C.J., citing and adopting Rodrigo J. in Visuvalingam &, Ors v Liyanage & Ors, (Supreme Court of Sri Lanka, Law Reports of the Commonwealth, 1985, pp. 919-922).
Conditions for the Declaration of SoPE
The next key feature is the conditions that must exist for a SoPE to be declared. These are listed in the Constitution in section 29(2)(a) to (f) inclusive and are self-explanatory in the lexical sense.
The President may issue a Proclamation of a state of public emergency only when—a. Sierra Leone is at war; b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone. (Emphasis mine).
Duration of a SoPE
The duration of the SoPE has always been a contentious and often misunderstood or misconstrued feature. A careful perusal of the Constitution demystifies this issue. Pursuant to section 29(3)(a) of the Constitution, the duration of a declaration of SoPE when Parliament is sitting is 7 days, inclusive of the date of the publication of the declaration. If a declaration is made when parliament is not sitting (‘any other case’) the duration is 21 days, including the date of publication of the declaration; except if Parliament through a resolution by a two-thirds majority (of its membership) approves or supersedes the declaration (see sections 29(3)(b) and (16) of the Constitution). According to section 29(12) and (13) of the Constitution, the duration of a SoPE approved by Parliament shall be for 12 months, or a shorter period specified therein. The 12 months or shorter period specified in the resolution by Parliament can be extended by a two-thirds majority in Parliament, or be revoked at any time by a simple majority of all the Members of Parliament. This lower revocation threshold, that is, a simple majority of all Members of Parliament reinforces the view that oversight in SoPE is largely political and rests with Parliament, except where there are procedural non-compliance and abuse of the detention powers.
The Validity Question
As already noted, the legality or rather validity of a SoPE declaration cannot be enquired into, and based on section 29(4) and (18) of the Constitution, ‘all measures taken thereunder shall be deemed valid and lawful and shall not be enquired into by any court or tribunal’. Thus, once the procedural requirements outlined above are complied with, a declaration of SoPE cannot be challenged in court on the question of legality. Only parliament can supersede a declaration, or it is revoked by the President by proclamation, a view confirmed by the Supreme Court in S v Osman and Others.
The Powers of the President and SoPE Regulations
One main thrust of the public discourse on SoPE is the remit and exercise of the powers of the President. SoPE allows for derogation of rights and the exercise of the powers associated with such derogation must not be taken for granted nor abused. However, there is historical evidence of abuse of SoPE in Sierra Leone, a point which will be addressed below.
Presidential powers during SoPE includes law-making functions in addition to executive powers, i.e., ‘make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part’ of Sierra Leone under section s 29(5) of the Constitution. The application of emergency regulations with respect to the prior legal order has always been a key point of contention. It has always not been so clear whether the promulgation of emergency regulations equates to the suspension of the prior legal order. The Supreme Court interpretation of the 1978 Constitution in S v Osman and Others suggests the application of the ‘suspension rule’ except expressly limited or if so limited by the Constitution. The 1991 Constitution, however, addresses the point of inconsistency of the regulations with prior law not only by providing for amendment, suspension or modification of any law with exception to the Constitution as noted in section 29 (6) (d) of the Constitution; but in learning from the opinion of the Supreme Court in S v Osman and Others, SoPE regulations as stated in section 29(11) of the Constitution supersede prior law on the question of inconsistency, save for the principle of ‘nullum crimen sine lege’ in section 23 (7) and (8) of the Constitution.
In line with section 29(6) of the Constitution, the specific areas where the President may decide to introduce regulations are:
[To] a) make provision for the detention of persons, the restriction of the movement of persons within defined localities, and the deportation and exclusion of persons other than citizens of Sierra Leone from Sierra Leone or any part thereof; b) authorise— i. the taking of possession or control on behalf of the Government of any property or undertaking; ii. the acquisition on behalf of the Government of any property other than land; c. authorise the entering and search of any premises; d. amend any law, suspend the operation of any law, and apply any law with or without modification: […but not the Constitution] g. provide for the apprehension, trial and punishment of persons offending against the regulations; h. provide for maintaining such supplies and services as are, in the opinion of the President, essential to the life and well-being of the community.
A specific and special provision is made on detention, which is often the most abused power in SoPE historically in Sierra Leone. The Truth and Reconciliation Commission Report (TRC) “formulated a scathing critique of the use of the emergency powers…[as example] of the abuse of the justice system (TRC, Report 2004: 72–4, 397; seeGerhard Anders, ‘Transitional Justice, States of Emergency and Business as Usual in Sierra Leone’, (May 2014]). Safety, however, is found in section 29(17) in that detention of a person beyond 30 days during a SoPE can be reviewed by an independent and impartial tribunal established by law.
SoPE regulations or measures to be taken pursuant to a SoPE regulation shall cease to have effect 90 days from the date upon which it comes into operation; except by expiration of time, if the period approved by Parliament has lapsed, or amended or revoked by the President under section 29(10) of the Constitution. Such regulations may apply to the whole of Sierra Leone or such parts as may be specified therein as provided for by section 29(8) of the Constitution.
With the abusive use of SoPE replete in the history of Sierra Leone, any such proclamation will automatically prompt public debate notwithstanding its necessity and utility. In the present case, COVID-19 has been declared a global pandemic, and countries with advanced and robust public health systems have been overwhelmed and exposed. With the experience of the Ebola virus disease that devasted the West African countries of Guinea, Liberia and Sierra Leone a few years ago, taking appropriate and responsible measures to stop the spread of COVID-19, including using the instrumentality of SoPE is necessary and expedient. This article has not addressed the issue of justifying the proclamation of the President, nor is it intended to unpack the human right discourse on public emergencies. The objective has simply been to provide a description commentary on the statement of the law on SoPE to engender informative public discourse and much need further clarity. This ensures that the focus will be on taking measures to address the spread of COVID-19 and nothing else.
*About the Author: Dr. Michael Imran Kanu is a Doctor of Juridical Science (SJD) and publishes frequently on Sierra Leone law. This feature is written in his private capacity and not attributable to his present role as Ambassador and Deputy Permanent Representative for Legal Affairs in the Permanent Mission of the Republic of Sierra Leone to the United Nations in New York.