Vol. 8 No. 8 (August 1998) pp. 307-312.

THE CONSTITUTIONAL HISTORY AND LAW OF SIERRA LEONE (1961-1995) by Bankole Thompson. Lanham, MD: University Press of America, 1997. 317 pages. Cloth. $44.00. ISBN 0-7618-0473-0.

Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University, Georgia. Email: mpufong@valdosta.edu.
 

To most public law scholars, it is ordinary knowledge that there are certain minimum features and/or core values that any national constitution claiming to be democratic should embody. Thus, within the discipline, constitutional law is defined as the study of an aspect of a nation's public law which treats the organization, powers and framework of the government, the distribution of political and governmental authorities and functions, the fundamental principles of which are to regulate the relations of government and citizens, and which prescribes generally the plans and methods according to which the public affairs of the nation are administered.

In regulating relations between governments and citizens, we presume above all, that constitutions serve as the source for the protection of fundamental civil rights and liberties, therefore guarding against arbitrary acts of governments. Thus, in democratic societies, the civil rights of the people are protected by obligating governments to protect their citizens from actions of other individuals and/or acts of governments. Likewise civil liberties are protected by restricting what governments can or cannot do to their citizens.

In Jean-Jacques Rousseau's political thought, constitutions of modern democratic polities not only establish the responsibilities and working relationships of governments vis-à-vis the governed, they represent yardsticks from which to judge the progress of a nation through time and historical space. Hence, the so often emphasized view that constitutions are fundamental laws of the land, goes hand in hand with a parallel belief in constitutionalism, i.e., the belief in constitutional governance and the rule of law.

Consistent with the above, Professor Bankole Thompson in this book examines the constitutional history and law of Sierra Leone from 1961 through 1995 from the following three summary perspectives. First, he examines the country's experience with constitutional law's most fundamental and enduring problem, namely; the relationship between its legal and political components. Second, he examines the complex interaction between constitutional standards and values, on one hand, and institutional and societal forces, on the other, for Sierra Leone as a developing nation. Third, he evaluates the application of fundamental constitutional principles regulating the relations between the government and the people of Sierra Leone. I should note here that this work by Professor Thompson is by far the most comprehensive treatment of the constitutional development of Sierra Leone to date. It is comprehensive in its coverage of developments in that country under the various constitutions adopted since its independence in 1961.

It is interesting to note that Sierra Leone was once characterized as a model, if not the model, of British parliamentary democracy in West Africa. When Sierra Leone emerged as an independent nation in 1961, (during a period when several African nations were undergoing similar political conversions), there were reasons to believe that it could become a constitutional model for most West African nations. However, political upheavals over the years made this goal unattainable for Sierra Leone.

Some of the reasons for the initial optimism were due in part to its pre-independence constitutional tutelage under British rule. It is no surprise, therefore, that between 1961 to 1996, Sierra Leone continued to demonstrate aspects of its inherited democratic legacy. In its very first competitive election, six years after independence, Sierra Leone witnessed the first defeat of a political party in power by an opposition party. That was in 1967. Fast-forwarding to 1996, the military junta which seized power in 1992 and suspended the Constitution, willingly returned power back to a democratically elected government.

Professor Thompson premises his study on the notion constitutional law provides a useful point of departure to acquire a broad perspective on the institutional, political, social and often moral realities of a nation. He presents lucid analyses of Sierra Leone's constitution. In doing, so he makes an excellent case for the study of Sierra Leone's constitutional law and its historical development. He devotes special attention in analyzing how the three main branches of the government of Sierra Leone (i.e., legislative, executive and judiciary) between 1961 and 1995 responded to the following: political challenges, values aspirations, cultural ambiguities, and moral dilemmas. This is an ambitious undertaking in a 316 page book.

The author's approach and emphasis is worth elaborating upon. The traditional paradigm for studying constitutional law in common law countries has been that of describing how the government of a state is structured and organized, how roles and functions are authoritatively allocated and subsequently, explaining the basic principles which govern the relations of government and its citizens. The method adopted by Professor Thompson in this book transcends that narrow paradigm. He adopts an analytical problem approach, focusing on the abstract and empirical dimensions of both the growth of constitutional law problems and issues in the particular case situation of Sierra Leone.

A prominent feature of this approach is the author's extensive use of the comparative method. This, of course, makes his overall analysis more understandable to comparative law and comparative constitutional law scholars. For example, because Sierra Leone shares a common legal tradition with other commonwealth countries, Professor Thompson sheds light on what could have been particularized and complicated issues of constitutional law by drawing from the experience of other common law jurisdictions. Contrasting them to the case of Sierra Leone, he argues that by learning how other courts have responded to similar constitutional challenges and/or dilemmas within a normative context, we are able to learn more about how far Sierra Leone has gone in promoting the principles of constitutionalism and preserving the common law legal tradition. Moreover, we are also able to understand Sierra Leone's specific shortcomings with respect to other social changes.

Covering a period of three decades, Professor Thompson identifies and analyzes major challenges to Sierra Leone's orderly constitutional evolution. He also evaluates Sierra Leone's Supreme Court's jurisprudential development and its application of constitutional law principles during the performance of two crucial tasks: interpreting the constitution and protecting and enforcing the fundamental rights of the people of Sierra Leone.

Tied to this evaluation is Professor Thompson's emphasis on revealing substantive weaknesses and flaws in that nation's constitutional history and law in all of the ten chapters of the book.

In Chapter 1, Professor Thompson traces the constitutional development and history of Sierra Leone from 1787-1960 (pp. 1-13). He argues among other things that a lesson to be learned from the constitutional growth and development of Sierra Leone is that for a considerable length of time, colonial rule, although thought then to be democratic, was in reality, autocratic. The preparation of political and "hereditary elites" for the transition from colonial autocracy to fully representative and responsible government was both inadequate and cosmetic in nature. In effect, Thompson maintains, parliamentary constitutionalism is wrongly equated with political democracy (p.9).

In Chapter 2, Professor Thompson examines both the structural and functional aspects of the 1961 independence Constitution of Sierra Leone. His central argument is that the Constitution was not a "faithful reproduction of the Westminister model of parliamentary democracy" (pp. 15-42). To underscore this argument, he sketches the constitutional structure at independence and then compares its main features with the British Constitution of that time to reveal inconsistencies (p. 16). He buttresses this point by reviewing several court cases during a similar period challenging the basis of the 1961 constitution.

Chapter 3 is a critique of the role of the judiciary as both the custodian and interpreter of the Constitution. Professor Thompson argues that in a majority of the cases, "the techniques used by the courts to interpret relevant constitutional provisions regarding clear instances of derogation from the rights and freedoms of individuals were regrettably that of restrictive interpretation" (pp. 46). In his view, the Sierra Leone Courts during this period missed the opportunity to inquire into important questions of whether "rights and freedoms were absolute, limited or qualified." With clear preference for judicial activism over restraint, Professor Thompson takes the zealous view that within the sphere of constitutional interpretation, Courts should play a constructive role with "clear preference" to change as a safeguard against illegitimate constitutional constraint that may be intolerable to the majority.

Chapter 4 focuses on the "jurisprudential analysis of the revolutionary situation of 1967" which resulted from the defeat, in competitive elections, of the first party and government in power. Professor Thompson compares and contrasts responses of judges in Sierra Leone to responses of judges of other countries who have confronted similar situations. His conclusions are an indictment of the judiciary. He maintains that the "revolutionary situation of 1967 was the denouement of a consistent trend of judicial ultra-restraint and abdication, on the part of the Courts, in performing effectively and constructively their regulatory functions" (p. 71).

In Chapter 5, Professor Thompson focuses on the "republican constitution of 1971" (pp. 107-144). He explores what he calls "Sierra Leone's quest for constitutional autochthony." He argues that in an effort to overcome problems occasioned by the political upheavals of the period, the government consolidated authority by transforming the country from a constitutional monarchy to a republican state. The 1971 constitution, Thompson notes, placed striking emphasis on the "sovereignty of the people of Sierra Leone" and highlighted specific rules for the conduct of State affairs. More importantly, for the first time he maintains, the Constitution classified the functions of the government into three branches, namely; legislative, executive and judiciary. In Thompson's view, this constitutional reorganization injected accountability in the government in the form of separation of power and checks and balances.

Chapter 6 is a critical examination of the functioning of the "1978 One-Party Constitution" (pp. 145-181). Professor Thompson begins this chapter by drawing attention to the incorporation into the constitution provisions for "public emergencies" and the extensive use of that provision by the government as a technique of statecraft. He critiques the role of the Court in their inability to curb the abuse of freedoms and infringements of civil rights and liberties during the period of the enforcement of the emergency provisions. While acknowledging the dilemmas confronting Courts in passing judgment in government declared emergency situations in general, he notes as do other constitutional scholars, the general difficulties Courts confront in making legal determination as to when, in fact, an emergency has occurred and/or when it is sufficient to warrant the use of restrictive measures by a government for the purpose of maintaining law and order. Notwithstanding the often used rationale of "separation of powers" by Courts when declining to assess the merits of emergency declarations, Professor Thompson insists however, that there is no reason why measures taken during periods of emergencies in time of peace, should be immune from judicial review.

Chapter 7 surveys "the 1991 Constitution" with specific focus on military rule and government accountability. First, Professor Thompson provides a general critique of the main features of the 1991 Constitution in light of its declared principles and potential for effective democratic governance (pp. 184-188). Among other things, he questions whether the 1991 Constitution, adopted a year prior to the military coup of April 1992, was a commitment to restoring a truly electoral democracy in Sierra Leone (p. 188). Second, he examines the inquisitorial role played by Sierra Leone courts to curb corruption in the public service beginning with the period of "All People Congress" (APC) party rule in 1968 through 1990. Endorsing the judiciary's role in several post-facto imposition of restrictive orders and forfeitures of assets of corrupt government officials, Professor Thompson concludes that as techniques of public accountability, such Court actions were effective in unearthing massive administrative corruption during that period (pp. 193-197).

Chapter 8 is an analysis of "the 1993 Draft Constitution" as a potential instrument for effective government. From a comparative perspective, Professor Thompson undertakes a comprehensive examination and analysis of key provisions of the Draft Constitution. He questions its potential as an instrument for creating institutions intended to "form the bedrock of sustainable democracy in Sierra Leone based on a commitment to political pluralism" (199-334)." While Professor Thompson agrees that the Draft Constitution was a major step towards the restoration of political and electoral democracy, he questions its potential as an instrument designed to create a progressive, viable, and stable democracy. Realism and pragmatism he insists, dictate different approaches. Because ideal situations are rarely attainable, in his view, the Draft Constitution at best, established a political and legal foundation from which to accomplish future goals and objectives of the country. Such objectives he hoped would be consonant with a revitalized society committed in theory and practice to electoral democracy through the collective will of the people and their government.

Chapter 9 covers the period 1992-1995 and focuses on "the military rule and constitutionalism." Reiterating the assumption that military governments are generally unworkable, Professor Thompson examines and provides particular evidence in support of this thesis for the case of Sierra Leone. He questions the concept of military rule as it relates specifically to constitutionalism, social contract and the rule of law. He articulates the features of military rules in general and their primacy for negating democracy, the protection of human rights, observance of rule of law, denial of the rights for self-governance through arbitrary, despotic and authoritative rule (pp.225-236). Beyond abrogation of the collective rights of the people to determine how and who should govern them i.e., self-determination, Professor Thompson argues that the perpetuation of military rule in any country have "grave implications for constitutionalism in its obvious impact on free speech, press freedom, freedom of association, the rule of law, judicial independence, electoral competitiveness and government accountability" (pp. 238-246). Finally, in Chapter 10, he concludes by providing a summary conclusion of the various chapters (pp. 249-253).

Two things are readily obvious in this book. First is that whatever role the Courts play or were expected to play in dispensing justice in Sierra Leone is perhaps taken too seriously by the author. For example, he blames the Courts for not advocating an activist position in defense of the Constitution. He also blames the Court for not taking a position against government imposed "emergency orders." It is indeed doubtful whether Courts alone can shoulder all the blame in Sierra Leone constitutional history. Second is the absence in the book of a coherent and consistent body of empirical beliefs and values designed to give meaning to prescribed constitutional norms. This second point, which in some way is related to the first, is worth reiterating further. Constitutions as we know, are generally perceived as institutional control mechanisms, even though their main objectives include ensuring that political organs of the state function effectively within the limits of the law in order to achieve legitimate national goals and objectives. The realization of these goals and objectives is facilitated by empirical beliefs observable and practice in the society, if such beliefs and practices are themselves outgrowth of values underlying the constitution. Primary among such beliefs, of course, are "free press," "right to vote" "freedom of association," "the respect for the rule of law" by both the government and the people. In a country where the legitimacy of the law is constantly questioned or being challenged, especially by the lawmakers, as portrayed by Professor Thompson, public confidence in the law and the judiciary is easily eroded. When this happens, it unleashes popular grievances and an immediate quest for redress outside the natural framework of the law. And assuming such a course is pursued, it poses serious peril to the status quo process. Who then can truly shoulder the blame in these instances? In my view therefore, I don't think the Courts alone are to be blamed.

Finally, the case for Sierra Leone's constitutional history presented by Professor Thompson points to a fact applicable to most Third World countries with a similar history. For those who argue for particular kinds of constitutions, it speaks clearly to the fact that typically "home-grown" types as opposed to "foreign grown or influenced constitutions" are no panaceas for democracy or for that matter, an effective democratic governance. Democracy and/or democratic values cannot be achieved simply through the enactments of constitutional documents void of a strong will and commitments from the people and their government to democratic ideals. The history of sustained democracy in the West and other emerging democracies in the former Soviet Union, teaches us that democracy cannot, in fact, be legislated. Democracy, as argued by political theorists, must be cultivated, natured, and sustained by the people through compromises and consensus rooted in the spirit of their liberty and the respect for the rights and freedoms of individual, tolerance for political dissent, openness in government, and above all, the respect for the rule of law and an impartial judiciary.

To that end, Thompson's study of the history and growth of the constitutional law of Sierra Leone undertaken in this book has just begun and needs replication in other emerging democracies in Africa and beyond. Scholars of comparative law and comparative constitutional law with interest in British commonwealth countries will find this very comprehensive book interesting. It will make an excellent addition to their class readings for undergraduates, graduates, seminars and research projects.
 


Copyright 1998