Iscandari LAW Group

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01/12/2018

MUNKOO POLITICS. THE RAPE OF THE CONSTITUTION OF SIERRA LEONE.
My fellow citizens I am inspired to write this article to shed light on the recent constitutional conundrum created by the APC government and its leader Ernest Bai Koroma. In addressing this issue I will post my thoughts and analysis on certain sections of the constitution germane to my arguments. I conclude that the recent attempts by this government to disenfranchise members of the sierra leonean diaspora from becoming Members of Parliament. I further conclude that the constitution of sierra leone is a badly constructed document that allows for gray areas that are antithetical to the intent of the drafters and those who debated and voted for it.

Section 75 (a) of the sierra leone constitution, which dictates the qualification for being elected to parliament states thus:

75. "Subject to the provisions of section 76, any person who—
a. is a citizen of Sierra Leone (otherwise than by naturalization)................................... shall be qualified for election as such a Member of Parliament:

Provided that a person who becomes a citizen of Sierra Leone by registration by law shall not be qualified for election as such a Member of Parliament or of any Local Authority unless he shall have resided continuously in Sierra Leone for twenty-five years after such registration or shall have served in the Civil or Regular Armed Services of Sierra Leone for a continuous period of twenty-five years."

Section 76(1) (a) of the constitution states as follows:

Disqualifications for membership of Parliament.
"No person shall be qualified for election as a Member of Parliament—
a. if he is a naturalised citizen of Sierra Leone or is a citizen of a country other than Sierra Leone having become such a citizen voluntarily or is under a declaration of allegiance to such a country; or ....................."

Section 171(15) of the constitution states as follows:

(15) This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.

The sierra leone citizenship amendment act of 2005 section 5 states as follows:
5. Section 10 of the principal Act is repealed and replaced by
the following section:–
10. A citizen of Sierra Leone may hold a citizenship
of another country in addition to his citizenship of
Sierra Leone”.

A clear reading of the afore mentioned sections of the constitution show that the present constitutional conundrum (one cleverly created but stupidly so to preclude certain presidential and parliamentary aspirants from contesting the 2018 elections with the intent to disqualify them) are at variance with one another and thus create a legal and legislative absurdity that only the Highest court in the land can address, and failing which can be addressed by the ECOWAS court of Justice.

Section 75 is clear that any person who is a Naturalized citizen of sierra leone is unqualified to be elected as a member of parliament. Although it does not define citizenship a safe assumption is that being born in sierra leone automatically grants citizen status.
Section 75 goes further to state that any person regardless of where they were born who obtains a grant of citizenship by registration can become elligible for election as a member of parliament if they have attained at least 25 years of residency in sierra leone or have served in the civil and or military for said number of years.

Section 76 is also clear on the disqualification for membership in parliament to those persons who have become naturalised citizens of sierra leone or have acquired citizenship of another country voluntarily or is under a declaration of allegiance to that other country.

Analysis of sections 75 and 76 show that these two statutes when read together create a legal absurdity as follows: section 75 which is race neutral, creates a path to legislation for any person who has resided in sierra leone for the requisite period of time and who REGISTERS such residence to be allowed to run for parliament.

However section 76 counters that, because it precludes sierra leoneans who have become citizens through the process of naturalization or those born in sierra leone and who attained such citizenship by virtue of their birth but who have naturalised as citizens of another country, from becoming members of parliament. The legal absurdity here being that section 75 would allow someone who is a citizen of another country, who has not NATURALIZED as a citizen of sierra leone to become eligible to be a member of parliament while denying that same right to citizens of sierra leone by birth who have acquired other nationalities by naturalization. This makes no sense.

To add to this argument, The sierra leone citizenship amendment act of 2005 section 5 commonly called the "DUAL CITIZENSHIP" ACT, makes clear that a citizen of sierra leone does not lose their status as citizen of sierra leone because they have naturalized as a citizen of another country.

How does this all tie up. The fact is that the 2005 act acts as a nullification and a repeal of section 76 of the constitution to the extent that the acquisition of citizenship of another country does not vitiate the right to citizenship of a person who was a citizen of sierra leone prior to such acquisition.

This issue is ripe for judicial interpretation and it is within the jurisdiction of the sierra leone supreme court that venue lies.
Any plaintiff should ask the following questions of the court:
1. Does the 2005 Act nullify and repeal section 76 and if so does it allow for a sierra leonean citizen by birth who has attained citizenship in another country to contest for presidency and or vice presidency of sierra leone pursuant to section 41 et seq of the constitution.

2. the court must define who is a citizen of sierra leone and must address the issue of racially discriminatory aspects of the constitution which prohibit people who are otherwise sierra leoneans by birth and inclination from holding elected public offices on account of their having been granted naturalized citizenship status by another country, or having been born to a father who cannot satisfy the "facially racially discriminatory element of non negorid paternity".

3. The court will now be compelled to interprete the statutes by looking at the PLAIN MEANING, LEGISLATIVE HISTORY AND PURPOSE OF THE STATUTES.

RULES OF STATUTORY INTERPRETATION
There are three rules used by courts in common law jurisdictions to interprete statutes:

The Mischief rule.

The mischief rule[1] is one of three rules of statutory interpretation traditionally applied by English courts.[2] The other two are the "plain meaning rule" (also known as the "literal rule") and the "golden rule".

The main aim of the rule is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In applying the mischief rule, the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the bill.

In utilizing the Mischief rule, the court would have to look at whether or not the enactment of the 2005 amendment to the constitution granting dual citizenship to citizens who were otherwise prior to such grant were precluded from being voted for as members of parliament was purposed to repeal section 76 of the act. In doing so the court may have to look at the INTENT of the legislature in enacting the act. To do this the court would have to look at the parliamentary records on the debate in parliament prior to the passing of the act and then ask itself whether or not the 2005 act nullifies vitiates and repeals section 75, and thus granting full rights as a citizen of sierra leone regardless of whether or not one is a naturalized citizen of another country if one was a citizen of sierra leone by birth.

Clear statement rule
When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.

It is my Reserved opinion that the decision in this acse will rest on the following dictum.

Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")
When two statutes conflict, the one enacted last prevails.

Section 75 of the sierra leone constitution conflicts with the 2005 Amendment of the constitution and where there is a conflict of statutes the last enacted statute will stand.

Now over to the supreme court of sierra leone to make the right decision and issue an order repealing and replacing section 75 of the constitution with the 2005 amendment of the constitution granting dual citizenship. any other decision will be UN JUDICIOUS AND UN REASONED, and subject to a further review by an international court such as the ECOWAS court for violation of international agreements.

M. Alieu iscandari Esq
Attorney at law
Oakland California
One proud sa lone Man from Foulah Town.

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03/29/2016

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05/29/2015

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04/12/2015

Dr. Peter Dumbuya a colleague, comrade and founding member of the ASSOCIATION OF SIERRA LEONEAN LAWYERS IN THE UNITED STATE chimes in on the constitutional issue. LEGISLATIVE INTENT IS A NECESSARY ELEMENT IN THE PROCESS OF INTERPRETATION OF THE CONSTITUTION. Dr Dumbuya lays it out here. GOOD READ

So, FB, a Big Thank You to Concerned Sierra Leoneans USA for organizing today's peaceful rally in support of the 1991 Constitution of Sierra Leone. To better understand the thinking that went into this document, I revisited the functional equivalent of the Constitution's "legislative history," namely the "Report of the National Constitutional Review Commission" of March 1991. The late President Joseph S. Momoh appointed a National Constitutional Review Commission (NCRC) in October 1990 to review and recommend changes to the one-party 1978 Constitution of Sierra Leone. Dr. Peter L. Tucker chaired the thirty-five member NCRC. Among the recommendations the Commission made were the election of an "Executive President" and "Vice-President." Interestingly, President Ernest B. Koroma anchored his March 17, 2015, decision to "relieve" VP Sam Sumana of his duties and, consequently, remove him from office on his understanding that he has "executive" powers to do so regardless of what other provisions of the Constitution have to say about the existence of a vacancy in the office of the VP.
What the NCRC meant by "Executive President" in its Report is at variance with President Koroma's interpretation of his putative powers. The NCRC's use of "Executive President" was meant to distinguish it from a "Ceremonial President." Here's what the Report said at paragraph 61: "The first question that came up for consideration in this regard [Type of President] was whether in a multi-party regime, Sierra Leone should have an Executive or a Ceremonial President. The corollary to that question was whether there should be a Vice-President or a Prime Minister. It was obvious that an Executive Presidency is incompatible with the position of Prime Minister since an Executive President is both Head of State and Head of Government and a Prime Minister is by definition a Head of Government." At paragraph 62 the Report continued: "The possibility of having a Ceremonial President and a Prime minister were also ruled out. The fact is that a Ceremonial President simply means the President with less executive functions than a Prime Minister. Even when a President is referred to as a Ceremonial President he does have some executive functions just as an Executive President also has some ceremonial functions." At paragraph 63 the Commission went on: "We, therefore, decided to recommend for Sierra Leone an Executive President and a Vice-President. We further recommend that the President should be elected to serve for not more than two terms of five years duration whether or not the terms are consecutive." In the accompanying "White Paper," the Government recorded its acceptance of the NCRC's recommendation for the office of an "Executive President" and the term limit.
So, this is how the language of an "Executive President" entered the 1991 Constitutional lexicon. What was meant to differentiate an executive from a ceremonial president has now been used as a substantive provision, without more, to remove a sitting VP without regard to Sections 50 (removal of the president or vice president for mental or physical incapacity), 51 (removal of the president and vice president for misconduct), 54(8)(referring to the applicability of Sections 50 and 51 to removal of the president and vice president), and 55 (relating to when a vacancy occurs in the office of the vice president: expiration of the president's term; resignation, retirement, or death; removal under Sections 50 and 51; or when the vice president assumes the office of the president).
Another crucial argument against the President's decision to remove the VP from office is Section 55(a) which states that a vacancy occurs in the office of the VP "on the expiration of the term of office of the president." The reason behind this provision, which finds support in the NCRC Report, is that the president and VP are elected by the people as a team. The NCRC Report states that "We have also recommended that a Vice-President shall not be appointed as at present, but he shall be nominated by the Presidential candidate as his Running Mate." Joined at the hip, the president cannot fire the VP; it amounts to electoral nullification!
Therefore, I submit to you that the great weight of the evidence in this unprecedented constitutional matter is in favor the VP and against the President!

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Esq

03/03/2012

Under what circumstances can someone with a green card be deported from the USA? Take a stab at this one folks.

03/03/2012

This past Friday two doctors agreed with me that my client was insane at the time he allegedly car jacked a woman and he is now entitled to make a plea of not guilty by reason of insanity. Which leads me to ask the question what is your opinion of the Insanity Plea and why would you or would you not allow it if you had the ability to legislate your own jurisprudence. You have been put on task with this subject please stay on the issue. any divergence will be deleted.

03/02/2012

hello friends, i have created a new page for my Law Office. I will be posting materials here on legal issues and you are welcome to debate or coment on the issues presented.

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