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Challenging Sylvia Blyden On The Presidential Election Date: Nfa Alie Has A Case To Answer (Part One) PDF Print E-mail
Written by Expotimes   
Monday, 27 February 2017 11:20
If you ask me a hundred times if I want President Ernest Bai Koroma’s tenure to be extended (legally), I would on all occasions answer in the affirmative. And I’m not alone in being desirous for this great transformative President (about to leave office at an age when his predecessor was just entering politics) to continue to deliver on his developmental initiatives in the country – even as I can bet my last cent that he is still the most popular politician in Sierra Leone today. President Koroma’s leadership acumen has raised the bar very high – perhaps too high. But that’s another topic for another day.
Today, let’s talk (actually write) about the hullabaloo or brouhaha or hoo-ha or whatever one may want to call it over the announcement of a presidential date outside of the generally anticipated time. The Valentine’s Day news was received with mixed feelings: the prior talk of the town was the call for dates for the elections; but then when the announcements came, the date for the presidential election fell outside what everybody else was thinking. Constitutionally. And it has raised eyebrows – and eyelashes and eye-pupils.
I don’t have time to respond to Charles Margai’s hallucinatory unnecessary attacks on President Koroma. If the PMDC lawyer (is he still leading anyone?) thought he had a case, he would go to court. I would dismiss with a wave of the hand the misplaced sections of the Constitution that he used to declare that the National Electoral Commission (NEC) Chairman’s announcement of 7th March 2018 was unconstitutional. The same I would do, if not worse, for the National Elections Watch (NEW), which was not so sure of what it was doing so much so that it lost the temerity to put the press release questioning the constitutionality of the presidential election date on its own Facebook page. Tamely activism! Both Margai and NEW have used the wrong provisions (Section 43 (b) – or ‘second (b)’ of the Constitution and Section 43 subsection 3 (b) of the Public Elections Act 2012 respectively, which do not apply in this circumstance) to condemn the presidential date as proclaimed by the Chief Electoral Commissioner. And I wouldn’t have bothered to correct them.
But Sylvia Blyden is APC like myself. And she is serving President Koroma as I’m doing. She is my comrade. If she wades into a discourse of such crucial nature as the constitutionality of the date of a presidential election, and if it has taken the proportions of getting acidic critics to accuse the President of complicity in a matter in which he has no hands, I feel I owe it to our party and our government and to our nation to make clarifications – or rather seek clarifications – on a matter of such national significance and fundamental magnitude.
I have to make my position plain, clear and categorical.
To summarise it: to me, the announcement of 7th March 2018 as the date for the next presidential elections is unconstitutional – except the Chief Electoral Commissioner comes out with a thorough and convincing explanation to the public, perhaps too late now or rather there’s none. Commissioner Nfa Alie Conteh has refused to come out of his closet and convince the Sierra Leonean people of his capacity and capability to run the next set of elections – with all due respect to him.
Suspicions flew about recently about his role in the Zainab Moseray scandal when the Acting Registrar allegedly acted on the authority of the Political Parties Registration Commission (PPRC) - of which Nfa Alie was a member, but did not form a quorum - to recognize one faction of the main opposition Sierra Leone People’s Party (SLPP) as against another. Doubts also arose when two letters that he wrote to the President about the same presidential date were leaked to the press. What else would leak tomorrow from the Chairman of Electoral Commission’s closet?  Placed side-by-side with Nfa Alie, Christiana Thorpe is a saint. Nfa Alie - we have to call a spade a spade - has not won hearts and minds so far. And this presidential date controversy has worsened things for him.
So we will continue to ask the question: just why did Nfa Alie choose 7th March 2018 as the date for the next presidential elections? Just how did he arrive at that? He cannot tell us that the President told him to announce it. Then he is not fit for purpose! Therefore, if it is (rather, as it is) his sole decision as an independent electoral commissioner, how did he arrive at March 7 2018? We have to remember, or Nfa Alie has to be reminded, that the circumstance that triggered the proclamation of a presidential date was wholly and solely the constitutional ‘effluxion of time’ as per presidential term limit. For that circumstance, the Constitution is very clear that the election date should be within three months. Where did Nfa Alie get the additional two weeks from?
Sylvia Blyden, the versatile and controversial Minister of Social Welfare, has come to his defence. In her presentation, she said she relied on two authorities vis-à-vis constitutional provisions (original and amended): Section 49 (1) and the constitutional amendments of 21st December 2001 captured in the supplement of the Sierra Leone Gazette Vol. CXXXIII No. 6 of 7th February 2002. Relying on these authorities, Blyden categorically stated thus: “So between the original proviso of Section 49 (1) and the amended proviso of section 43 (1), the Chairman of the National Electoral Commission (NEC) is perfectly within all legal ambits to have declared March 7th 2018 as the date for the next Presidential Elections.” Wrong. To me, all wrong. If this was what informed the Chairman of the Electoral Commission to declare a date beyond 23rd February 2018, then he got it all wrong. In my opinion – my humble opinion.
We will have to go step by step to explain this…
WHICH AUTHORITY DID NFA ALIE RELY ON TO DECLARE 7TH MARCH 2018 AS THE DATE FOR THE NEXT PRESIDENTIAL ELECTIONS?
According to Blyden, the justification can be found in Section 49 (1) and Section 43 (1) of the Constitution of Sierra Leone. But then there’s no Section 43 (1) in the Constitution of Sierra Leone. Section 43 is one of very few multi-paragraphed sections with no numbered (but only lettered) subsections. It is the only section that has two (a) and two (b) – whether it is deliberate or was caused by the ‘miri-miri’ of the presidency overwhelming the drafters is not for me to tell. So to talk about a 2001/2002 amended proviso of section 43 (1) is a non-starter. Blyden wrote: “This amendment, passed by SLPP-led Government of which C.F. Margai Esq. was a very senior member, is where the NEC Chairman has derived his powers from to choose March 7th 2018 as date of the next presidential elections…”
But did Nfa Alie himself say that he derived his powers for declaration from Blyden’s constitutional references? No. Nfa did not say so. To be fair to the man, he did not say that.
In his terse and tacit presidential election date declaration of Valentine’s Day 2017, the Chief Electoral Commissioner was very clear on the constitutional instrument he was relying on for taking the decision. Choosing to call it the “appointment of date” for the 2018 presidential elections, Commissioner Nfa Alie’s night-time press statement (coming on the heels of the President’s address to the nation in which he had declared the same 7th March 2018 as the date for the parliamentary and local council elections) stated that, “In exercise of the powers conferred on it by Section 43 of the Public Elections Act 2012 (Act No. 4 of 2012), the National Electoral Commission (NEC), after consultation with the President, hereby makes the following proclamation:  The 7th day of March 2018 is hereby appointed as the day for the election of the President of the Republic of Sierra Leone.”  
Section 43 of the Public Elections Act 2012. Not a non-existent Section 43 (1) of the Constitution as stated by Sylvia Blyden. Of course the Public Elections Act 2012 has Section 43 (1), but that would not be what Blyden in her ‘Defending March 7th 2018 Elections Date’ treatise was referring to when she wrote about an amendment made in 2001 to Section 43 (1) and gazetted in 2002 … Everybody knows 2012 came ten years after 2002. Also worthy of note is that Section 43 of the Public Elections Act 2012 relies entirely on Section 43 of the Constitution in terms of proclamation of a presidential date following the expiration of a term-limit.
Nevertheless, the more important question still remains: if Section 43 of the Public Elections Act 2012 was the only authority that Nfa Alie Conteh used to declare March 7 as the date for the presidential election, was he justified in doing that? Was that declaration or ‘appointment’, as he called it, constitutional?
My humble opinion, even a layman submission, is that the March 7 2018 date is unconstitutional and unacceptable. The Chief Electoral Commissioner acted out of his constitutional mandate as per the authority he quoted in making his declaration. He should therefore not be allowed to get away with it. For the sake of posterity. For constitutionality. For democracy. For history And in all this, the President has no blame at all…
Certainly, if President Koroma wanted an extension of his tenure, he would have, as he said in Kabala during the New Year celebrations, started that campaign long time ago. We are all living witnesses to how the President silenced members of his own party and even musicians who were hell-bent on implementing a ‘more time/ term extension’ strategy. Ok, let’s assume the President wanted to extend his time; but would he do it for two weeks? Merely two weeks? Of what benefit would a two-week extension be to him?
Therefore, in the conundrum of this lacuna, I see Chief Electoral Commissioner Nfa Alie’s proclamation of 7th March 2018 as a mischievous attempt, wittingly or unwittingly, consciously or unconsciously, to portray in bad light a President who has so diligently worked the democratic pathway so laudably and so enviously. Nfa Alie must come out clean on this issue: let him explain to the nation which ‘exceptional circumstances’ caused him to extend the presidential term-limit. His ephemeral reliance on Section 43 of the Public Elections Act 2012 is woefully inadequate.
Let’s ponder our thoughts over the relevant section that deals with the circumstance that caused the proclamation of the date: Section 43 (a) – or I rather say ‘first (a)’ – of the Constitution, “A Presidential election shall take place – where the office of President is to become vacant by effluxion of time and the President continues in office after the beginning of the period of four months ending with the date when his term of office would expire by effluxion of time, during the first three months of that period” (italicized emphasis mine).
The Chairman of the National Electoral Commission, Nfa Alie Conteh, is not above the law.
I stand to be corrected; because we live to learn and learn to live.
(In Part Two, I’ll deal with how the provision which Minister Blyden quoted from Section 49 (1) of the Constitution in defence of the date is NOT applicable in this circumstance)
 
 

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