Introduction
The essence of the existence of laws is to protect the people it is enacted to serve. Those laws can be more effective if they are reviewed at regular intervals to meet contemporary challenges. Post-conflict Sierra Leone still operates on laws that it inherited from its colonial master, Britain. It also has many laws that were enacted under dictatorship and whose framers intention was to suppress and not protect the citizenry. The conservative interpretation of some of these laws has led to the breach of human rights and limited the channels ordinary Sierra Leone could used to address their grievances. Consequently, it led to the decade long civil war costing Sierra Leoneans lives and properties.
Reform in the justice sector is supposed to be one of the priority areas of the government. Despite the fact that there exists a parliament, the Law Reform Commission, the recently established Constitutional Review Committee, and the efforts of partners and organizations such as the Law Reform Initiative, Justice Sector Development Programme, United Nations Development Programme, reform in the justice sector has been too slow in the face of the urgency the situation deserves. Given the challenges facing the sector, , it is important that the Sierra Leone Judiciary explore the possibility of adopting more progressive and liberal ways of interpreting the laws, thus the need for judicial activism.
This article will examine the concept of judicial activism in the context of post-conflict Sierra Leone, and how it will enhance the administration of justice and the integrity of the judiciary. Sierra Leone being an adherer to the Common law tradition, judges’ decisions are largely guided by precedent. Sceptics of the concept would imply that the adoption of judicial activism is a shift from the Common law tradition. The article will therefore, analyse the views of some sceptics of the concept and will make a case for the contrary.
The Concept of Judicial Activism
Judicial activism as a concept generally refers to the tendency of judges to be flexible in using their powers in relation to their decisions. For instance, an activist judge may tend to give a decision that reflects the changing situation devoid of the fact that it may be a departure from a particular precedent and the intention of the framers of the affected law or policy. According to Black’s Law Dictionary , judicial activism is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” The Merriam-Webster’s Dictionary of Law defines judicial activism as “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent”. Various legal scholars and judges may have different definitions.
However, what is important is that the judge being refered to as an activist may not necessarily adhere to the restraint of the appellate judges, meaning may decide not to strictly abide by judicial precedence. Additonally, most activist Judges guide cases through, taking a more active part in order to ensure the smooth running of the case; and when there is no specific decision on a particular point of law the judge may sometimes use their discretion to apply broader concepts from the constitution or human rights law. In view of the fact that there is no law reporting, the scope for judicial activism should be much greater than elsewhere.
In Sierra Leone, the role of the judiciary is set out in the Constitution, and so also are the other branches of government, the legislature and the executive. By virtue of the principles of separation of power, one arm of government may not interfere with the function of the other, without prejudice to the doctrine of checks and balances. Furthermore, the various arms have an obligation to abide by the Constitution. However, section 124 of the Constitution of Sierra Leone, 1991 granted the Supreme Court the power to interpret the Constitution. Additionally, they have the power of judicial review, meaning they may declare a legislative decision ultra vires if it is repugnant to the Constitution. Nonetheless, judges are not expected to go beyond their jurisdiction i.e. interpretation. Skeptics of the concept have posited that law making role is exclusively the prerogative of parliament and not of judges. As such when judges interpret legislation in a progressive manner, they have been accused of usurping the functions of parliament.
The phrase “judicial activist” was first introduced by Arthur Schlesinger Jr. when he wrote an article, The Supreme Court: 1947, in the Fortune magazine in 1947. Other people have traced the start of judicial activism to the ruling in the landmark case, Marbury v. Madison (1803). Although the decision itself was not a show of activism, it however sets the stage for activism in the United States when Justice John Marshall who wrote for the Court said “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
The Judiciary in Sierra Leone is much more familiar with the opposite view of judicial activism, judicial restraint since they have been confined more to interpreting legislations in a narrow and conservative way instead of progressive interpretation as judicial activists do. This is as a result of the fact that, Judges in Sierra Leone have inherited their judicial caution from the traditional English law system whereby Judges were wary of interfering with politics, and unlike their European counterparts, shied away from guiding cases through the courts and applying larger principles in their decisions. Since the time when Sierra Leone gained independence however, English judges have moved far from this lack of intervention.
Today, while abiding by the law, judges act as a balance against the government when it introduces changes for example in anti-terrorism legislation. Judicial review has also expanded rapidly, and many judges take it on themselves to guid cases through, although this tends to rely on the personality of the judge. Sierra Leone’s judges have largely remained as inactive as English Judges were back in the 60s.
Why Judicial Activism in Sierra Leone?
Sierra Leone is currently recovering from a decade long civil of which the lack of the rule of law was one of its root causes. O n the eve of the war, the once reputable judiciary was more renowned for rendering justice to the few political elites and their wealthy friends than the poor Sierra Leoneans. “Lack of courage on the lawyers and judges over the years paved the way for the desecration of the constitution, the perpetuation of injustice…” [i] People became disgruntled with the justice system and some of them decided to use extra-judicial means to seek recourse, thus the decade long civil war.
The Judicial system had become infamous not only for its ramshackle application of laws, but was also for the obnoxious and archaic character of the laws themselves. Given the centrality of the judiciary to the balance of powers, the lack of a functioning judiciary will certainly have ripple effects on the proper functioning state institutions, and it is thus important that more attention is accorded to the reform of the judiciary including the laws. The judiciary has been able to record some considerable success in the reform process.
However, law reform has nevertheless been slow. Parliament has been too slow in effecting changes to the laws especially those that will guarantee protection to the country’s citizens. For instance, a group of civil society organizations sponsored the drafting of an omnibus bill comprising of important elements of the TRC recommendations. This bill was presented to Parliament in a public ceremony in 2005. Parliament took no action to ensure that the bill was passed; not even a first reading done. Other bills relating to women and children drafted at a similar time are yet to be passed into law.
The Law Reform Commission on its part, while quick to respond to issues brought to its attention by the Government, rarely initiates issues on its own. The Government on its part is less than mesmerized by human rights issues despite the hue and cry by right groups and civil society organizations to repeal certain laws such as the death penalty and seditious libel. Moreover, in the absence of a law reporting mechanism, there is no recent formal precedent on many issues.
Amidst all this, it is a pity that the Judiciary has only been interpreting the available laws in a restrictive fashion. The judiciary need to grasp the opportunity to adopt a judicially active approach by interpreting the laws in a progressive manner to protect rights instead of continuing to restrain itself. Some judges may report that they are already referring to other commonwealth cases and human rights law when considering their decisions: this needs to be embraced more widely, and, in a system when many indigents go unrepresented, not only when cases are drawn to their attention by defence lawyers. This will not only help protect rights but will also enhance the integrity of the judiciary in post-
conflict Sierra Leone. In its Report, the TRC suggested legal activism by calling on members of the Sierra Leone Bar to initiate pro bono service for indigent persons. Much as the Sierra Leone Bar was encouraged to partake in legal activism by offering pro bono services, so too should the judiciary contribute what it can to the enhancement of human rights protection in the country.
Judicial Activism Towards What?
Generally, apologists of the concept posit that the activist judges engage in judicial activism in the following:
· Decide to adhere to more forward looking precedent when there is an option between conservative and progressive precedent;
· Declaring legislative decisions unconstitutional by way of judicial review as provided for under section 124(1)b of the Constitution. “…whether an enactment was made in excess of the power conferred on Parliament or any other authority or person by law or under this Constitution.” Following this, activist judges could refer cases to the Supreme Court for such review.
· Ruling against the framers intention of certain legislations where the intent was not for but against the interest of public good. This often happened in the United States.
· Judges using their powers to make orders providing for the close management of cases, so as to ensure their smooth running through the system. For example refusing to adjourn on the request of one of the parties unless there are exceptional reasons.
In Sierra Leone, judges may need to apply activism in all three scenarios because there are certain verdicts of certain courts whose ratio decidendi (reasoning) are too weak to be compelling precedents, albeit the fact that they are superior courts. In some countries such as the United States, the Bench expressly compel the legislators to amend a particular law within a specific timeframe. For instance, the Massachusetts Supreme Court in Goodridge v. Department of Health (2004) compelled the legislators to rewrite their gay
marriage law to be consistent with the Court’s decision within six.
Sceptics of Judicial Activism
For the sceptics, the court’s work is to take negative action, meaning it jurisdiction stops at where it strikes down a particular law and must not extend to taking a positive action by way of directing the legislature to amend the laws. Furthermore, sceptics believe that legislation from the Bench is gross abuse of authority and usurpation of the authority of the other arms of government.
However, in Sierra Leone the balance of power between the executive and the judiciary is unclear. For instance, subsections 3 and 5 of section 136 of the Constitution of Sierra Leone, 1991 empowers the President to fire judges who are hired on contract basis after retirement as stipulated in section 137 of same. The security of tenure of office for judges hired under sub sections 2 and 4 of same may not be guaranteed, which in effect undermines their independence. By adopting judicial activism, therefore, this may show that in fact they are not controlled by the executive.
Conclusions
The main contention between judicial activism and judicial restraint, especially in a country which is in urgent need of reform lies in the institutional mandate with the discretional power to effect those changes. Not that judges should exert their power to legislate, but that they should take advantage of a time when there are forward-looking precedents, and try to manage cases more closely so as to speed up trials and ensure that people’s rights are protected throughout. As being vital that Judges take on this responsibility in a system where there the chances of a person being legally represented before court is so slim.
[i] Sierra Leone TRC Report Vol. 2 pp 145