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Sierra Leone: Changes to the 1991 Constitution Proposed

(Feb. 29, 2016) On February 16, 2016, Sierra Leone’s Constitutional Review Committee (an 80-member body established in 2013 to review the 1991 Constitution and a 2008 report proposing changes to it) published an abridged draft report of its findings.  (Ibrahim Tarawallie, New Chapters Proposed in New Constitution, CONCORD TIMES (Feb. 17, 2016).)   The draft report, which took two years to prepare, is the result of “extensive” public consultations involving citizens both within and outside of Sierra Leone, contributions made by various individuals and organizations (including those in the form of consultations and over 100 position papers submitted to the committee), and the review of the constitutions of 75 countries.  (Id. at 6.) Among other recommendations, the Committee proposed four thematic areas for inclusion as new chapters in the 1991 Constitution: local government and decentralization; citizenship; land, natural resources, and the environment; and information, communication, and the media.  (Constitutional Review Committee, Abridged Draft Report (Feb. 2016), at 3.)

Local Government and Decentralization

The Committee’s draft report states that a new chapter on local government and decentralization is necessary  in order to “strengthen the decentralisation of power and devolve it on the districts at council level.”  (Id. at 7.)  Adding this chapter would also be in line with the 2002 Truth and Reconciliation Commission (TRC) report on Sierrra Leone and the Lomé Peace Accord 1999, both of which call for such provisions.  (Id.; TRC, WITNESS TO TRUTH – COMPLETE VOLUME 2 210 (2002).)

If adopted as proposed, this chapter would result in the establishment of independent, powerful, and well-funded local governments.  Under the proposed amendment, the local government system would be composed of a city council, a district council, and any other council structure deemed necessary.  (Abridged Draft Report, supra, at 8.)  A local council composed of a general assembly and an executive body would serve as the highest political authority for the general administration of its locality.  (Id.)  The Committee also called for the establishment of a finance commission to “ensure equitable distribution of national resources” and the inclusion of a provision in the Constitution guaranteeing such distribution.  (Id. at 9.)

The Committee’s recommendation is in line with the existing trend of devolution in the country.  Under a 2004 Act and statutory instruments issued in 2006, Sierra Leone established 19 local councils with legislative and executive powers, including the power to raise revenue through taxes and fees.  (Local Government Act No. 1 of 2004, §§ 2, 20, & 45 (Mar. 1, 2004), Sierra Leone on the Web website; The Local Government System in Sierra Leone, COMMONWEALTH LOCAL GOVERNMENT FORUM (CLGF) 141 (last visited Feb. 24, 2016).)

Sierra Leone had reportedly issued the Local Government (Assumption of Functions) Regulations of 2004, which included 80 different functions “to be devolved from central to local government.”  (CLGF, supra.)  The Regulations are said to have put in place a timetable for transferring these functions during the period 2005 through 2008, and close to half of the task was successfully completed by the end of that time frame.  (Id.)  In 2009, a program was put in place to fast-track the transfer of the rest of the functions.  (Id.)  There is also a traditional form of local government carried out by 149 chiefdoms.  (Id. at 142.)  Each chiefdom is run by a paramount chief whose election and functions are governed by law.  (Chieftancy Act No. 10 of 2009 (Sept. 10, 2009), Sierra Leone on the Web website.)  In 2010, the Sierra Leonean  government issued a policy document calling for, among other measures, the revision of the 1991 Constitution so as “to reflect the policy of decentralisation by devolution.”  (National Decentralisation Policy, § 2.2.3 (Sept. 2010), Awareness Times website.)

Citizenship

The proposed new chapter on citizenship provides four possible avenues for the acquisition of Sierra Leonean citizenship: birth, naturalization, marriage, or adoption.  (Abridged Draft Reportsupra, at 12.)  The proposed chapter would differ from the current legal framework for citizenship in several key respects.  For instance, it would eliminate race as the basis for citizenship.  (Id.)  Under the current provisions, the right to apply for citizenship is either exclusively reserved for (with regard to citizenship by  birth or descent), or preferential treatment is accorded to (in cases of applications for naturalization), an applicant who is “a person of negro African descent” (defined as “a person whose mother or father and any of the grandparents of the mother or the father is or was a Negro of African descent”).  (Sierra Leone Citizenship Act of Nov. 4 1973 (as amended in 1976) §§ 2-8 (May 24, 1973) REFWORLD; Sierra Leone Citizenship (Amendment) Act No. 11 of 2006 §§ 2-4 (Dec. 28, 2006) REFWORLD.)  The proposed chapter would also  allow any foreigner married to a Sierra Leonean to apply for and acquire citizenship by marriage, a right limited only to foreign women married to Sierra Leonean men under the current legal framework.  (Abridged Draft Reportsupra, at 12; Sierra Leone Citizenship Act, 1973, § 7.)

Like the issue of local government and decentralization, the citizenship matter was addressed in the 2002 TRC report.  In it, the Commission had stated that “[r]ace and gender must not be a consideration in the acquisition of citizenship.  The Sierra Leone Citizenship Act should be amended accordingly.”  (TRC, supra, at 133.)

Land, Natural Resources, and the Environment

The proposed chapter on land, natural resources, and the environment would classify land as government land or as private land (including land under customary tenure systems), much like the existing land system, with private land being held in freehold or leasehold.  (Abridged Draft Report, supra, at 16; Property Rights and Resources Governance: Sierra Leone, at 6 (Aug. 2010), USAID Land Tenure and Property Rights website.)  Like the current system, while the proposed chapter would accord citizens “the right to acquire, inherit, transfer or receive as gift any interest in land,” foreigners’ interest would be limited to leasehold.  (Abridged Draft Report, supra, at 16; Property Rights and Resources Governance: Sierra Leone, supra.)  On the question of how to reconcile the existing land tenure systems (statutory and customary), citing the “tremendous division” surrounding the matter, the Committee left it for further public deliberation.  (Abridged Draft Report, supra, at 17; Property Rights and Resources Governance: Sierra Leone, supra.)  The Committee also recommended the inclusion of a provision on eminent domain with guarantees of due process and fair compensation.  (Abridged Draft Report, supra, at 18.)

The proposed language for the part of the chapter on natural resources would, among other things, make subject to parliamentary approval any and all transactions, contracts, or undertakings for a grant of right of concession for exploitation of any natural resources in the country.  (Id. at 20.)  While Parliament may waive its approval rights on any of the relevant issues, a waiver requires the support of at least two-thirds of all the Members of Parliament.  (Id.)

A provision on environmental rights includes language guaranteeing the “right to adaptation for protecting oneself from the adverse impact of climate change.”  (Id. at 23.)

Information, Communication, and the Media

The purpose of the chapter on information, communication, and the media is “to bring about an independent media.”  (Id. at 24.)  While this chapter would guarantee the freedom and independence of the media, it provides that the protection does not extend to the following types of speech: propaganda for war, incitement to violence, hate speech, or advocacy of hatred.  (Id. at 25.)  It does not define these terms.  The Committee also recommended the establishment of an 11-member media regulatory body.  (Id. at 26.)

Other Recommendations

In addition to the new chapters, the Committee also proposed amendments to individual provisions of the  current Constitution.  For instance, it recommended language to tighten the government’s duty (under chapter two) to provide free education by removing caveats to this duty.  The current Constitution states:

The Government shall strive to eradicate illiteracy, and to this end, shall direct its educational policy towards achieving—

a. free adult literacy programmes;

b. free compulsory basic education at primary and junior secondary school levels; and

c. free senior secondary education as and when practicable.  (Constitution of Sierra Leone, 1991, § 9(2), World Intellectual Property Organization website.)

The proposed language removes the phrase “as and when practicable.”  (Abridged Draft Report, supra, at 33.)

The Committee also recommended adding language for the purpose of “opening up the possibility of making [chapter two, on fundamental principles of state policy] justiciable,” which the current Constitution expressly states is not the case.  (Constitution of Sierra Leone, 1991, § 14; Abridged Draft Report, supra, at 35.)  The proposed language states that the “principles contained in this chapter are fundamental in the governance of the State.”  (Abridged Draft Report, supra, at 35.)

Other recommendations include: imposing a fixed date for holding elections at all levels of government, removing section 48(3), which exempts the head of state from paying income tax, and adding a recall clause for Members of Parliament.  (Id. at 55, 56, & 65.)