UPDATE: Sierra Leone Legal System and Legal Research
By Hanatu Kabbah
Hanatu Kabbah holds an LL.B (Hons.) and an LL.M (Public Service Law) degree from NYU. She is a co -founder and Director of the newly established Centre for Human Rights and Development (CHRD) in Sierra Leone. She received her Bachelor of Laws Degree with Honours (LL.B. Hons.) from Fourah Bay College, University of Sierra Leone and a Degree of Utter Barrister at the Sierra Leone Law School. She was admitted to the Sierra Leone Bar in 1999. She holds a Diploma in the Equal Status and Human Rights of Women (2002) from the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University in Sweden, and is also a Transitional Justice Fellow, after having studied at the Transitional Justice Fellowship Programme organized by the International Centre for Transitional Justice and the Institute for Justice and Reconciliation in Cape Town, South Africa in 2007.
Published September 2008
Table of Contents
6.1. The Supreme Court
6.2. The Court of Appeal
6.3. The High Court
6.8. Court Marshall
6.10. Judicial Divisions
6.11. Judicial Review
7.1. The Constitution
7.2.1. Delegated Legislation
7.2.2. Autonomic Legislation
7.3. The Common Law
7.4. Customary Law
7.4.1. The Existing Law
7.5. Statute Law
10. Law Reporting
Sierra Leone is situated on the West Coast of Africa and covers an area of 72,000 square kilometers. The country is bounded on the north and north-east by the Republic of Guinea, on the West by the Atlantic Ocean and on the east by the Republic of Liberia.
Sierra Leone, a former British Colony, gained independence on the 27th April 1961. The country is divided into three provincial areas: Southern province, Eastern province and Northern Province and the Western Area. There are twelve (12) districts and one hundred and forty nine (149) chiefdoms and three hundred and ninety four (394) wards in Sierra Leone. Freetown is the capital of Sierra Leone. There are about 13 ethnic tribes in the country but the lingua franca widely spoken is Krio. The official language of the country is English.
Sierra Leone’s recent past has been marred by conflict. In 1991, an armed conflict erupted in the country that claimed thousands of lives, maimed, displaced and left a trail of sexually abused women and children. This war lasted for over a decade, coming to an end in 2001. Two transitional justice mechanisms have been put into place to ensure accountability for human rights abuses. These are the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone. The Truth Commission has completed its mandate and has published a report of its findings and recommendations. The Special Court is still in operation. Find more about this at the website of The International Center for Transitional Justice (ICTJ).
Sierra Leone became independent on the 27th of April 1961 after years of British Colonial rule. In the early nineteenth century, Sierra Leone became the centre of government for all British possessions on the West Coast of Africa. European contact with Sierra Leone was among the first in West Africa and Sierra Leone was one of the first West African British Colonies. Foreign settlement did not occur until 1787 when the British prepared a refuge within the British Empire for freed slaves. That year, the site where Freetown is now located received the freedmen from Great Britain. These returned Africans were from all areas of Africa.
In the early 19th century, Freetown served as the residence of the British Governor who also ruled the Gold Coast (now the Republic of Ghana) and the Gambia settlements. Sierra Leone also served as the educational center of British West Africa with the Fourah Bay College established in 1827. This institution rapidly became a magnet for English speaking Africans on the West Coast and was known as the Athens of Africa. For more than a century, it was the only European-style university in Western Sub-Saharan Africa.
Sierra Leone’s historical legal development can be divided into two phases. Earlier, there was the protectorate; but before the establishment of this, it was an area ruled by the natives themselves. Part of this territory was ceded for settlers and with time, the original area as distinct from the protectorate became known as the provinces and at other times as regions. Prior to the advent of colonialism, the chiefs governed with a set of rules. The Paramount Chief was the senior chief, followed by the Town Chief and the Section Chief. In 1963 a new Act, the Local Courts Act, was enacted. This Act guaranteed amongst other things that Local Courts will have the jurisdiction to administer the estates of deceased persons (Section 13(1)). It is further provided that Letters of Administration should be taken out to administer the property of deceased persons. The criteria for this are that one should be a native and must be subject to customary law.
With the arrival of settlers in the colony area, a new system brought over from Britain was introduced. The advent of the Magistrate’s Court, the High Court and the West African Court of Appeals led to the Privy Council. Foreign officers were sent to various provinces as District Officers. They were administrative officers rather than lawyers, but because they had studied law they could sit as Magistrates and hold court.
The current system of government in Sierra Leone, established under the 1991 Constitution, is modeled largely on the presidential system with the following structure of government:
Each organ or arm of government is distinctly provided for without reference to the other. However, the Constitution provides for checks and functional overlaps in the mechanism of government.
Within the confines of the 1991 Constitution of Sierra Leone, supreme legislative powers are vested in Parliament, which is the lawmaking body of the land. Supreme executive authority rests in the President and members of his cabinet, and judicial power with the judiciary of which the Chief Justice is head.
Section 105 of the 1991 Constitution provides that the Sierra Leone Parliament is the supreme lawmaking body vested with legislative power. Parliament consists of the President, the Speaker and members of Parliament. The Sierra Leone Parliament is unicameral.
Section 74(1) of the 1991 Constitution provides that Members of Parliament shall comprise the following:
a) One Member of Parliament for each District who shall, subject to the provisions of this Constitution, be elected in such a manner as may be prescribed by or under any law from among the persons who, under any law, are for the time being Paramount Chiefs’
b) Such number of Members of Parliament as Parliament may prescribe and elected in such manner prescribed by law.
To be qualified as Member of Parliament, the person should possess the following:
a) Should be a citizen of Sierra Leone
b) Have attained the age of 21
c) Able to speak or read the English language with a degree of proficiency to enable him to actively take part in proceedings in Parliament.
d) Should be an elector registered in the Register of electors.
Section 40 of the 1991 Constitution of Sierra Leone states that the supreme executive authority shall be vested in the President of the Republic of Sierra Leone, who shall also be the Head of State and the Commander-in-Chief of the armed forces. The President is described as the Fountain of Honour and Justice and the symbol of national unity and sovereignty- Section 40(3).
Section 40(4) outlines the responsibility of the President for certain key issues:
For qualification to be elected President, a person should possess the following characteristics:
Section 54(1) creates the office of the Vice President who is the Principal Assistant to the President in the discharge of his executive functions. Section 56(1) of the Constitution provides for such other offices of Ministers and Deputy Ministers as may be established by the President with the proviso that no Member of Parliament shall be appointed as Minister or Deputy Minister.
Section 53(1) vests executive power in the President, which may be exercised by him directly or through Ministers, Deputy Ministers or Public Officers subordinate to him.
The executive function embraces the direction of the general policy of the government. This includes the initiation of legislation, the maintenance of law and order, and the promotion of social and economic welfare. To a large extent all administration though some public services are administered not by government departments but by local authorities and independent statutory bodies.
The tenure of the Office of the President is dealt with in Section 46(1) of the 1991 Constitution. It is thereby provided that no person shall hold office as President for more than two 5-year terms, whether or not the terms are consecutive.
Section 120(1) of the Constitution states that the judicial power of Sierra Leone shall be vested in the judiciary. The judiciary of Sierra Leone, headed by the Chief Justice, comprises the Supreme Court, the Court of Appeal and the High Court. These constitute the Superior Court of Jurisdiction. The inferior courts comprise the Magistrates courts and the Local courts. The Magistrates Courts exist in each district. Local courts administer customary law in provincial communities outside the Western Area.
The administration of justice is the focal and foremost function of the judiciary. According to Section 120(2), the judiciary has jurisdiction over all civil and criminal matters relating to the 1991 Constitution and such other matters conferring jurisdiction on it by Parliament or under an Act of Parliament. Section 120(3) stipulates that in the exercise of its functions, the judiciary shall be subject only to the 1991 Constitution or any other law and shall not be subject to the control or direction of any other person or authority.
At the apex of the hierarchy of courts in Sierra Leone is the Supreme Court. Section 121(1) provides that the Supreme Court shall consist of the Chief Justice, not less than four Justices of Supreme Court and such other Justices of the superior court of judicature or of the superior courts in any state operating a body of law similar to Sierra Leone. The Chief Justice may for the determination of any particular cause or matter request to sit in the Supreme Court for such period as the Chief Justice may specify or until the request is withdrawn. According to Section 121(3) the Chief Justice shall preside at the sittings of the Supreme Court and in his absence the most senior of the Justices of the Supreme Court as constituted for the time being shall preside. The quorum of the Supreme Court shall not be less than three justices. The Supreme Court is the final Court of appeal in Sierra Leone and as such, appellate and other jurisdiction may be conferred upon it by the Constitution or any other law.
The Supreme Court has original jurisdiction to the exclusion of all other courts in two instances:
1) in matters relating to the enforcement or interpretation of any provision of the constitution and
2) where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law under the Constitution.
Section 128(1) provides that the Court of Appeal shall consist of the Chief Justice, not less than 7 Justices of the Court of Appeal and such other Justices of the superior court of judicature as the Chief Justice may for the determination of any particular cause or matter, request to sit in the Court of Appeal for such period as the Chief Justice may specify or until the request is withdrawn.
Section 128(2) provides that the Court of Appeal shall be duly constituted by any 3 Justices thereof. However, a single Justice of the Court of Appeal may exercise any power vested in the Court of Appeal not involving the decision on any cause or matter before the Court of Appeal save…:
1) in criminal matters, if any such Justice refuses or grants an application in exercise of any such power, any such person affected thereby shall be entitled to have the application determined by the Court of Appeal as duly constituted and
2) in civil matters, any order, direction or decision made or given in pursuant of the power conferred by the provision may be varied, discharged or reversed by the Court of Appeal as duly constituted.
Section 129(1) grants the Court of Appeal jurisdiction to hear and determine appeals from any judgment, decree or order of the High Court of Justice or any Justice of the High Court and such other appellate jurisdiction as may be conferred upon it by the Constitution or any other law.
The Court of Appeal is to be bound by its own previous decisions and Courts inferior to the Court of Appeal are bound to follow the decisions of the Court of Appeal on questions of law. Section 128(3).
Section 131(1) provides that the High Court shall consist of the Chief Justice, not less than 9 High Court judges and such other judges of the superior court of judicature as the Chief Justice may for the determination of any particular cause or matter, request to sit in the High Court for such period as the Chief Justice may specify or until the request is withdrawn. The High Court shall be duly constituted by any one judge of the High Court sitting with a jury. Section 131(2).
The High Court of Justice has supervisory jurisdiction over all inferior traditional Courts in Sierra Leone and any adjudicating authority, and in the exercise of its supervisory jurisdiction shall have power to issue directions, writs, and orders, including the writs of habeas corpus, and other writs of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers.
According to Section 135 of the 1991 Constitution, the President of Sierra Leone shall, acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament, appoint the Chief Justice from among persons qualified to hold office as Justice of the Supreme Court.
The other Judges of the Superior Court of Judicature are appointed by the President acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament.
Section 135(3) states that a person shall not be qualified for appointment as a Judge of the Superior Court of Judicature unless he is entitled to practice as Counsel in a Court having unlimited jurisdiction in civil and criminal matters in Sierra Leone or any other country with a system of law analogous to that of Sierra Leone or approved by the Judicial and Legal Service Commission and has been entitled as such Counsel in the case of appointment to:
Judges of the Superior Court of Judicature may retire as a Judge at any time after attaining the age of sixty five years but shall vacate that office on attaining the age of sixty five years. Section 137(2).
The primary inferior court of judicature is the Magistrate’s Court. Pursuant to the Courts Act, Act No. 31 of 1965, Sierra Leone is constituted into Judicial Districts; Section 4 of the Act states that there shall be constituted Magistrate’s Court in and for every judicial district. Magistrate’s Courts have limited jurisdiction. Subject to their limitations, Section 8 of the Courts Act, 1965 provides that the Magistrate’s Court shall have the jurisdiction to do all lawful acts necessary to enquire into and dispose of or to hear and determine all civil and criminal matters arising within the district, area, or place for which it is established or transferred to it by the High Court. Such jurisdiction is to be exercised by the Magistrate duly appointed to such courts.
These are provided for by Section 9 of the Courts Act of 1965. They sit in various magistrate courts as the Chief Justice decides.
Courts Marshall are established pursuant to Section 84 of the Republic of Sierra Leone Military Act. These tribunals are empowered to try any person subject to military law, in addition to offences against the general law which are applicable to all persons who join the army. Section 85 of the Act provides that Courts Marshall shall be convened by the Force Commander or any General, Brigadier or Colonel, or Officer of corresponding rank.
A Court Marshall consists of the President and not less than 2 other Officers, but in the trial of an Officer or Warrant Officer, it should consist of at least 5 Officers.
There is provision for a Judge Advocate to be appointed to advise the Court Marshall in matters of law and procedure and to advise the tribunal before it deliberates on its findings.
Courts Marshall have jurisdiction to try and punish persons subject to military law for 2 classes of offences created by the Republic of Sierra Leone Military Act (Part V).
There are cases where the matter goes straight from the High Court to the Supreme Court. This “Leap Frog Approach” occurs in situations where a matter touches or concerns the Constitution.
This is the Court’s power to police the legality of government decisions, sometimes referred to as supervisory jurisdiction. In exercising the power of judicial review, the Courts are concerned about whether the actions of the government (executive) meet certain legal standards.
The above roles are fused. As Attorney General, the designated person is the principal legal advisor to the government, and as the Minister of Justice is responsible for supervising the administration of Justice (looking after the judiciary). The responsibilities of this Office include ensuring that the rule of law is upheld.
The Sierra Leone legal system encompasses a combination of the Constitution, common law, statutory law and customary law. A two-tiered system of Common Law based on the British system and local customary law characterizes the legal system.
Being a former British Colony, Sierra Leone received laws from Britain. This is guaranteed under Section 74 of the Courts Act 1965 which states that, subject to the provision of the Constitution, the common law and statutes of general application in England before the 1st day of January 1880 shall automatically be part of the common law of Sierra Leone.
Article 170(1) of the 1991 Constitution of Sierra Leone, Act No 6 states that the laws of Sierra Leone shall comprise the following:
Sierra Leone has had a number of Constitutions since Colonial rule to date. The first Constitution was that of 1863 when constitutional government was first introduced in Sierra Leone. This was followed by the 1924 and 1951 Constitutions. The 1961 Constitution was the first Constitution for an independent Sierra Leone. The subsequent Constitutions- the 1971 and 1978 Constitutions, are referred to as the Republican and the One-Party Constitutions respectively. The current Constitution is Act No 6 of 1991. The Constitution is the supreme law of the land and all other laws are derived from and must conform to it.
The 1991 Constitution can be accessed online.
In Sierra Leone, the ultimate legislator is Parliament.
Section 73 of the 1991 Constitution establishes the Legislature. It is provided therein that the legislature of Sierra Leone shall be known as Parliament and shall consist of the President, the Speaker and Members of Parliament.
The legislative process, which is a somewhat long procedure, is provided for in the 1991 Constitution.
Some subordinate bodies are entrusted with certain powers by Parliament to make rules, regulations, orders, and by-laws.
There are some autonomous bodies and organizations that have powers to make their laws, and guide their members and those affected by them. Examples include Trade Unions, Student Unions, Medical and Dental Associations, and the Sierra Leone Bar Association.
The Common law of Sierra Leone comprise the rules of law generally known as the common law, the rules of law generally known as the doctrines of equity, and the rules of customary law including those determined by the Superior Court of Judicature.
In the Sierra Leone legal system, the common law was introduced to work alongside customary law and Statute law. Section 74 of the Courts Act, 1965 provides specifically that Common law enforced in England up to the 1st January 1880 shall always apply in Sierra Leone.
Customary law means the rules of law which by custom are applicable to particular communities in Sierra Leone. It derives from the community’s acceptance of it as a binding obligation on them. It is largely unwritten. Customary law is taken to include Islamic law.
The Constitution states in Section 170(4) that the existing law shall comprise the written and unwritten laws of Sierra Leone as they existed immediately before the date of the coming into force of the Constitution and any statutory instrument issued or made before that date which is to come into force on or after that date.
This refers to the English doctrines of equity as they have over time evolved in England and Sierra Leone. Equity generally is referred to as Natural Justice because it is synonymous with it. But in Sierra Leone as in England, equity goes beyond Natural Justice because it affects the interpretation of the law by the courts. Equity is necessary because of the need to give justice to individuals who may be in dispute.
Section 76(1) of the 1991 Constitution states that Customary Law shall not prevail if it is in conflict with Natural Law, Equity and good conscience. This is simply because in interpreting any rule of custom, it is important to do justice to the parties in dispute.
Section 76(3) provides further that the court would be guided by those principles where no expressed position of the rule is applicable. The court should look at what justice, equity and good conscience would demand. Equity does not take precedence over a statute. The alternative is for the Statute to be amended or repealed if it is found to be in conflict with justice.
Statute Law in Sierra Leone is in two categories:
The Statutes handed over are those enacted by the British government, and because Sierra Leone was a colony, they were applied directly or adopted. Examples are the Wills Act of 1837, The Larceny Act of 1916 and the Offences Against the Persons Act 1816. The first group of Statutes was the Laws of Sierra Leone, 1949 which was repealed by the Laws of Sierra Leone, 1960.
Since 1961, Statutes are now enacted locally by the Sierra Leone Parliament. The Interpretation Act No. 8 of 1971 governs the interpretation of statutes.
Within the Sierra Leone legal system, the legal profession is fused. There is no separation of the qualification of a Barrister and Solicitor. Currently, the Legal Practitioners Act of 2000 governs the legal profession. The Council of Legal Education Act came into being in 1989. Before this time, practice in the legal profession was governed by the Legal Practitioner’s Act, Cap 11, of the Laws of Sierra Leone, 1960. At all times, the Attorney General, who is the principal legal adviser to the government, has been regarded as the titular Head of the Sierra Leone Bar.
Since the Law School was established, there are two categories of qualified persons in the legal profession that are eligible to enroll. These are persons eligible to be called to the Bar of England and Ireland and those called to the Bar locally by the Sierra Leone Law School, which is under the Council of Legal Education.
The Legal Practitioners Act, Act No 15 of 2000 is titled an Act to consolidate and amend the law relating to the admission, enrollment, practice and discipline of legal practitioners and to provide for matters incidental to or connected with the foregoing. The Legal Practitioners Act establishes the General Legal Council. Section 3(1) of the Act states the composition of the Council as consisting of the following members:
The Chairman of the Council is elected from one of the three legal practitioners of not less than fifteen years standing referred to above. Section 4 establishes that the Council shall be the governing authority with regard to the conduct of the legal profession in Sierra Leone. The functions of the Council consist of the following:
· the admission and enrollment of persons to practice law, whether as barristers or solicitors or both;
· the admission to pupilage and the registration of pupils in the Temporary Register;
· the issuing of practicing certificates to legal practitioners, the prescription of standards of professional conduct and code of etiquette for legal practitioners;
· the discipline of legal practitioners and,
· the prescription of fees for non contentious matters.
A person shall not engage in the practice of law in Sierra Leone unless he has been admitted and enrolled as a legal practitioner under the Legal Practitioners Act. By Section 10 of the Legal Practitioners Act, a person qualifies for admission as a legal practitioner if he is:
If pupilage is to be served in the Government service, the period will be for eighteen months.
Sierra Leone is a party to a number of international bilateral and multilateral treaties. The country practices a dualist system of laws. International Conventions ratified by the country have to be domesticated by the passing of an implementing legislation in Parliament for them to have the force of law in Sierra Leone. A Bill has to be drafted by the Law Officers Department in the Office of the Attorney General and Ministry of Justice and tabled in Parliament.
The proviso to Section (40)(4) of the 1991 Constitution which outlines the responsibilities of the President stipulates that where any treaty or agreement execution by the President relates to the legislative competence of Parliament or which in any way alters the laws of Sierra Leone such shall be subject to ratification by Parliament.
Notably, Sierra Leone has ratified International treaties including those relating to the Law of Armed Conflict (the Geneva Conventions), Conventions relating to Employment and Forced Labour, Education, Rights of the Child, and Freedom of Association. The government of Sierra Leone in 2006 submitted a report in compliance with its obligations under Article 18 of the Convention on the Elimination of Discrimination against Women (CEDAW). This was the first Report submitted since the signing and ratification of the CEDAW in 1988. In 2000, Sierra Leone acceded to the Optional Protocol to the Convention. The report was a combined one covering the initial, second through fifth reports. Sierra Leone has also signed quite a number of International treaties that are not ratified. Examples include Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, the Charter establishing the African Court on Human and Peoples Rights. For more information on this issue please see the Human Rights Library of the University of Minnesota.
In Sierra Leone, law reporting started when a division of the Law Officers Department was charged with the responsibility of developing law reports. Sierra Leone law reports were introduced in 1961. Three volumes were published: 1961, 1962 and 1963. In West Africa, there were the West Africa Law Reports, which had been going on even before the advisory committee was formed, and these West African Law Reports were published from rulings emanating from the West African Court of Appeal. In the case of Sierra Leone, it also had its own series from its inception, 1920-1929. The work of such reports was carried out through research facilities made available by the Bodleian Law Library of Oxford and carried on until 1973.
Law reporting in Sierra Leone stalled until quite recently. A recent compilation of Sierra Leone Law Reports covering the period 1973-1980 has been done. The initiative was carried out by the Sierra Leone Bar Association and is available in hard copy.
The Sierra Leone Official Gazette is printed by the Government Printing Department. Most of the Statutes in Sierra Leone can be found online. The most comprehensive list can be found on the website of Sierra Leone web - The Laws Project and the Laws and government of Sierra Leone. Other websites are the government website and the official website of the President of Sierra Leone.
The primary materials of Sierra Leonean law include the Constitution of Sierra Leone 1991, the Criminal Procedure Act 1965, The Offences Against the Persons Act 1816, The Larceny Act 1916, the Anti Corruption Act 2000, The Electoral Laws Act 2002, The Human Rights Commission of Sierra Leone Act 2004, etc. More can be found at the Sierra Leone web site mentioned above.
Some important Bills have been passed in Parliament. In particular, in 2007 three Bills relating to women’s rights became law. These are the Registration of Customary Law Marriage and Divorce Act, the Domestic Violence Act and the Devolution of Estates Act. Other Laws include the Child Rights Act 2007, the Prevention and Control of HIV and Aids Act 2007, etc. For an update on recent acts passed by the Sierra Leone Parliament, please see the Sierra Leone web site.
The most comprehensive legal journal is published by the Sierra Leone Law School. The Student Advocate is published yearly and invites lawyers to submit articles.
There are quite a number of publications and books written on Sierra Leone. Most concern its history, and social and political issues. A list of some of these publications can be accessed here.
The Sierra Leone Law School is situated in Freetown and students with an LLB (hons) degree from the Fourah Bay College or from England spend one year for a professional course. Thereafter, they are able to sit for bar exams and are granted a degree of Utter Barrister. Recently, a new course of study was introduced at the Sierra Leone Law School resulting in the award of a Post Graduate Diploma in Law. Graduates of this course become legal executives. The course duration is six months.