The Constitutional Review Commission, appointed by the President “to review the Sierra Leone Constitution of 1991 with a view to recommending amendments that might bring it up to date with economic, social and political developments that have taken place nationally and internationally since 1991,” published its preliminary report in April 2007 with recommendations for alterations to the current Constitution of Sierra Leone. During the nationwide consultative meetings, a number of concerns were raised regarding the proposed amendments. These concerns are too complex and serious to be discussed in a single article. There are going to be discussions on them in successive publications of this newsletter, The Monitor. However, one prominent issue that raised the most dust during the consultative meetings and which shall be the subject of discussion in this piece is the issue of the proposed Senate discussed in Chapter VII of the report, titled: ‘The Legislature.’
Since independence, Sierra Leone has had a unicameral legislative system – a single house where bills are enacted into law. It is wholly elected through universal adult suffrage, save for 12 Paramount Chiefs who represent the 12 administrative districts in the country. However, the Constitutional Review Committee proposes that there should be two legislative houses, one being the Senate and the other, the House of Representatives (whose members shall be referred to as Members of Parliament). The reasons for this proposition, according to the Committee, are that they consider the position of Paramount Chiefs in Parliament as “undesirable and unusual in a modern democracy”; that they wish to expand the legislature so that people who might not be in Parliament but whose knowledge and experience would be desirable may be appointed; and also to enable minority groups to win representation in the legislature.
The Committee proposes that the Senate shall have “limited involvement in the legislative process and in the vetting of executive appointees in so far as this is provided for in the Constitution.” It shall consist of 44 members, 31 of whom shall be appointed by the President in consultation with the House of Representatives. These appointees would include people who had formerly held senior positions in the country, such as a former President of the Republic, a former Vice President, a former Chief Justice, a former Speaker of the House of Parliament, a former Vice Chancellor, a former Governor of the Bank of Sierra Leone, a former Commander of the Armed Forces, a former Inspector-General of Police, etc. However, appointees could also include people who have ‘distinguished themselves in business or politics or in their professions and have made significant contributions to the development of the nation’. The President shall also appoint six persons from a pool of candidates elected by recognised Professional Associations. Four persons would be appointed by Civil Society Organisations. The Mayor of the Municipality of the City of Freetown and two persons who are high ranking clerics in the Inter-religious Council shall also be members of the Senate. It shall also include 12 Paramount Chiefs, each representing the 12 districts, elected by the Paramount Chiefs in the district. Hence, Paramount Chiefs would no longer be Members of Parliament.
The Senate shall have the power to: “review all Bills passed by the House of Representatives within a month and forward them to the House of Representatives with their comments; consider and approve or otherwise matters referred to it by the House of Representatives; and consider and approve or otherwise, in a joint committee of both houses, in respect of any appointment which is required by this Constitution or any other relating to the same to be made with their approval or on their advice, which decision shall be given not later than thirty days after the receipt of the request from the President or other authority.”
Larger countries tend to have bicameral legislature because they enable a diverse range of opinions to be voiced in the legislature. The idea is to secure the highest possible quality of legislation. A Second Chamber is a suitable place to provide it, and it has additional advantages in terms of the other functions it can perform. For example, it examines the effectiveness of the executive through questions and committees; it provides a forum for debate, and represents different views and interests from the primary chamber. Thus, the primary function of a Second Chamber is to revise and scrutinise proposed legislation; in essence, to provide a second opinion. It is important in large countries like Nigeria, the US, the UK etc., and helps Parliament maintain public confidence that the political process is representative of different interests and viewpoints.
However, looking at the roles and responsibilities of Senates elsewhere, the same could not be said of the proposed Senate in Sierra Leone. The role would be limited only to reviewing and commenting on laws proposed by the House of Representatives. These comments are not binding on the ‘lower house’. Even if the Senate disagrees with the final version of a bill authored by the House of Representatives, the Bill could still be passed into law. This is unlike the Senate found in the United States for example. No law can be passed in the United States without the approval of both chambers of Congress. Furthermore, Congress can override a presidential veto by a two-thirds majority vote in both chambers, thus creating law even against the will of the President. The proposed Senate is more like the House of Lords in the United Kingdom, which has no such power to veto laws enacted by the House of Commons. Like the House of Lords in the UK, the idea of having a Senate in Sierra Leone is to ensure that the issues can be considered more thoroughly, and with more input from respected members of our society. However, if the Senate (the name itself a misnomer) has no power to veto laws proposed by the House of Representatives, and if it fails to add anything in terms of additional impartial expertise, then it may be said that the Chamber is merely slowing down the legislative process, providing another bureaucratic hurdle for legislative developments. As the mandate of the Senate currently stands, this is a very real possibility.
The composition of the Senate is also a matter of concern considering the country’s recent past. The President has the power to appoint 31 out of the 44 members which is about 65% of the general membership. Appointment by the President in the Senate brings the chamber’s legitimacy into question from the outset. If the argument of the Committee is to remove 12 Paramount Chiefs from Parliament because they are elected by a narrowly based electoral college and therefore “undesirable and unusual”, by the same stretch it is an affront to our democratic aspirations to create a legislative chamber of 44 unelected representatives, 31 of whom would be appointed by the President to sit in the Second Chamber. Although some contend that politicians should obey their consciences rather than their constituents, that popular will can be expressed in other ways than by voting, and that it is possible for an unelected assembly to represent the wishes of the people as there are implications that sometimes it is more responsive to public opinion than the demagogues who put their names on ballot papers, however, in a free society, it is necessary for the people to possess the power to change their rulers. Democracy resides as much in the right to dismiss as in the right to elect; hence elections are necessary. The proposed Senate allows neither: it represents a charade of a democratic society. The Constitution, instead of restraining some of the powers of the President, instead gives him too much power. By appointing 31 out of the 44 ‘Senators’, political patronage would be greater in the Senate, which would potentially increase the government’s ability to impose its will on the people. Also, for some of the positions, there are definitely not many persons to choose from and as such, it implies a continuation of political power for some people; forming them into a compact impenetrable phalanx. Take the case of one of the persons who have held the office of President of the Republic of Sierra Leone. If this proposed Constitution is passed into law, probably the only surviving President we will have is former President of the Republic, Ahmed Tejan Kabbah. That is, he will get an automatic membership into the Senate-a continuation of political power. Further, even if it could be argued that the President is only formally appointing members, and that they will be nominated by other bodies, it has not been set out clearly in the proposed amendments to the Constitution who those bodies will be. There are by no means enough safeguards provided for to ensure that the President does not use his power to exert influence over who the nominees should be, and it is arguable that given the way political power works in this country, no such safeguards would in practice be effective.
Another issue that is worth bringing to the attention of the general public is that the proposed amendments to the Constitution are silent on a number issues relating to the Senate. Chapter VI of the Constitution of Sierra Leone, 1991 clearly states the composition of the House of Parliament including qualifications for membership; disqualification for membership; tenure and remunerations. The same could not be said of the proposed Senate. The proposed amendments make no mention of the length of tenure of Senate members; they are silent on what grounds a member of Senate can be dismissed; it is quiet as to how a vacancy can be filled in a case of death or dismissal; and also nothing is said of remunerations. It does not say anything on how to fill a seat or whether there would be fewer people sitting in the Senate if there is no surviving person for a particular post mentioned in the Constitution. In other words, what happens if there is no surviving former President of the Republic? This needs to be spelled out more explicitly. Moreover, there is currently no provision stating the minimum proportion of Senators who must be female: in fact the way the nominations are currently proposed, very few women would in practice qualify for a seat in the Senate. A Senate with so little female representation would not add to diversity of views in the legislative process. The SLCMP understands that the Constitutional Review Committee intends to clarify and specify some of these issues after consultation, but it would emphasise that these are all central issues when discussing whether or not a Senate should be established at all, and cannot be considered in any sense as an afterthought. They should be stated in clear terms well before any referendum is conducted.
In addition, with the current Parliament constantly and vociferously agitating for better working conditions, the Senate in Sierra Leone, unlike its counterpart in the UK where members of the House of Lords are not paid salaries, is also likely to make similar claims in the future. With the country struggling to maintain a single legislative chamber, the introduction of another is likely to compound the problems for an ailing economy like ours. This is so because it would mean providing healthy working conditions of service for 44 people. However, in juxtaposing their would-be entitlements such as salaries, allowances, gratuities, pensions and other such benefits as may be prescribed viz-a-viztheir roles and responsibilities, it would not be far-fetched to say, as one contributor put it during the consultative meeting at the British Council hall in Freetown, that the proposed Senate risks being “nothing more than a retirement rendezvous for the rich and powerful to continue to dominate the state of affairs in the country”. Also, the cost of constructing the Second Chamber itself, paying for their staff members and the general administrative cost of running it will undoubtedly be too hard for our current economic situation.
Length of tenure is another vital concern. The Constitutional Review Committee has indicated orally that it is recommending a term length of five years, with appointments directly after a general election. This raises two issues. First, if members only hold their positions for five years it is arguable that they will have little more acquired experience than ordinary MPs to offer the legislative process. In the UK for example, Members of the House of Lords sit for life. This is itself highly controversial, and it looks as though in the next few years this will be changed to a period of 15 years. Again, this may be considered too long for Sierra Leone, but acquired experience is a central consideration. Moreover, in the proposed changes to the House of Lords, it looks likely that the House will be replaced piecemeal – only one third of the House will be elected on each occasion, so that new members learn from the acquired experience of longer-standing Members. This overlapping approach could be followed in Sierra Leone. The second issue that a short term length raises is whether Senators will feel more beholden to the President if they have the opportunity to be reappointed or expelled by the President in only a few years as a result of their performance. Much like ordinary MPs, they may come to focus on their reappointment, at the cost of objectively considering the matters at hand.
Furthermore, when considering the Senate’s potential scrutiny and revision functions, well-developed unicameral Parliaments elsewhere build in other procedures and mechanisms to ensure that proper scrutiny is provided somewhere in the legislative process, and often have voting systems which provide for a diversity of views to be represented in the sole chamber. For example in New Zealand, which abolished its Second Chamber in 1950, a special select committee stage between first and second reading of the Bill is specifically charged with detailed scrutiny of legislative proposals.
Given the fact that the proposed Senate’s current design appears to be based largely on the House of Lords in the UK, it would be only sensible to look to the reforms which they are currently proposing to bring their Upper Chamber in line with a modern democratic State. It makes little sense to model it on an archaic structure, which is already widely critiqued for being out of touch with the modern world. It would be far wiser to look at the reformist arguments in the UK and see what lessons can be learnt. This to a large extent will help us in determining whether there is need to have a Senate or not.
The SLCMP is of the opinion that given the way the Second Chamber has currently been set out, it would add little to the legislative process, and presents more potential risks and burdens than it does benefits. Also given the current state of our Parliament, there should more focus on providing logistical support and training for the administrative and support staff of Parliament. That said, the SLCMP will refrain from taking a final position until it can analyse the revised proposals to be set before the people. Nevertheless, there is the dictum that says “what touches us all must be agreed by us all”. Whatever our personal views are, we frankly recognise that these proposals must be put before the country and that the people of this country, with full knowledge of the proposals, should vote on them.