Christian Lawyers Centre hereinafter referred to as LEGAL LINK has followed keenly the discussions around banning of street rallies and campaigns in the weeks leading to the June 2023 elections.
Of particular note is the attempt by PPRC to partner with political party representatives and surreptitiously enter into illegal agreements that seek to erode away the enjoyment of certain fundamental human rights guaranteed under entrenched clauses in the 1991 Constitution of Sierra Leone.
In this legal advisory opinion therefore, LEGAL LINK has advanced 10 reasons as to why the proposed ban on street rallies and campaigns is wrong, illegal and misplaced.
The 10 reasons are stated below:
1) The ban violates key fundamental human rights guaranteed under the 1991 Constitution of Sierra Leone.
These rights include the right to freedom of movement ( section 18) and the right to freedom of assembly and association( section 26). Such rights serve as the life blood and engine for democratic participation in any electioneering process. Banning street rallies and campaigns will directly violate the right to freedom of movement, freedom of assembly and association, freedom of speech and the right to hold opinions.
Agreed that these rights can be limited in exceptional situations as provided under the constitution. However, for these exceptions to apply, it behoves a judicial process to determine the merit of those exceptional situations and not just state actors and political party representatives.
2) A ban on street rallies and campaigns might weaken political participation and enthusiasm in a country's democratic process.
Where people are not allowed to freely move, interact and engage in democratic campaigns as designed by their parties, there's the tendency to discourage them and ultimately hinder their effective participation in the electioneering process.
3) The ban conflicts with Sierra Leone's human rights obligation on International law.
It is important to also note that Sierra Leone is a signatory to many international and regional treaties, conventions and protocols that puts obligation on the country to guarantee the rights to movement, assembly, association and the right to freedom of speech and to hold opinions in a democratic society. Such treaties and conventions include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People's Rights and the African Charter on Democracy, Elections and Governance to name but a few.
A ban therefore of these fundamental human rights outside of a judicial process will hurt our international reputation as a democratic nation.
4) A ban will instill an atmosphere of fear and panic before, during and after the elections.
When unreasonable fear is injected into the minds of the voter population prior to an election, that election will not meet the threshold / standards of international best practice and hence cannot be said to be free and fair. This is the case because, elections must not only be free and fair but must also be free from fear.
5) A ban further makes room for laziness and complacency to fester within our security architecture
Securitization of an electioneering process is a primary function of the security sector in a democratic society. Citizens pay their taxes to get such protection in such moments and not the other way round.The government should do all in their powers to provide the Security forces with the needed resources and gadgets to effectively police the electioneering process which also includes rallies and campaigns in a professional way.
6) Such bans are always void of due process.
It is no gainsaying to opinionate that such bans are often decided behind backyard kitchens by a few men leaving the courts and the majority of voters left out and without having a say. This is certainly an erroneous standpoint.
It is trite and settled law that limitations of fundamentally human rights enshrined under the Constitution should never be done without reference to a judicial or Parliamentary process. This was the ratio held by the Supreme Court in the case of Augustine Sorie Sengbeh Marrah Vs the Inspector General of Police regarding the banning of vehicular movement on polling day. The court held that the IG was wrong to have curtailed such rights without the involvement of a parliamentary or judicial process.
7) Bans on political rallies also makes room for political apathy to fester amongst voters in the nation
Voters are usually incentivize when campaign rallies take place before the general elections. Amongst other things, they are able to measure in detail the strength of their voter turnout as against opponents, success in their strategies of wooing the public on their side and can even make projections regarding voter turnout on polling day to vote for their prospective candidates in the elections. All of the above may be lost when street rallies and campaigns are banned in a democratic society.
8) The practice of calling representatives of political parties to agree to illegal measures that erodes away the fundamental human rights of citizens is inconsistent with the spirit and object of the 1991 constitution.
According to section 171(15) of the 1991 constitution, any law, order, agreement, policy etc that is inconsistent with the 1991 constitution is null and void to the extent of it's inconsistency. It is irrelevant as to which institution or person was involved in that agreement, policy, MOU or order. If it conflicts with the 1991 constitution, then it is null and void.
9).It is vital to pinpoint that any ban that infringes on the fundamental human rights of citizens must pass the four tests under international human rights law:
The four tests are listed below.
1) The test of legality. This means that the person or institution limiting the right must show the express provision in the law that gives it or him the express right to so do.
2) The test of justifiability: This means that clear, convincing and acceptable reasons must be given by the person or institution limiting the right that justifies the limitation of such rights.
3) The test of reasonability: This means that the limitation must be reasonable and measured in the given circumstances.
4) The test of necessity: This means that the limitation of such rights must be truly and absolutely necessary to be rolled out within a democratic context. The question therefore that comes to mind when assessing this test would be thus: is the baning of peaceful street rallies and campaigns necessary in a democratic society?
While the test of justifiability and reasonability are often achieved by the state, it is difficult if not impossible for state actors that limit rights to usually pass the tests of legality and necessity. This is currently true in the case of the PPRC.
10) The ban may still not erode the possibility of street rallies and campaigns taking place since supporters may need to ply the streets to access designated field centres or halls to do their campaign rallies.
Except if PPRC or the police can helicopter supporters to field campaign sites, the possibility will still exists for street rallies to take place despite the ban as people will still have to ply the streets to access field campaign centres.
Having objectively espoused on the 10 reasons as to why the ban on street rallies is illegal and misplaced, we shall now end by proffering recommendations on how the PPRC , the SLP and other election management bodies can reasonably and professionally deal with and / or regulate street rallies and campaigns with little or no problems emerging at the end of such exercises.
Below are a few recommendations:
1) Ensure to have a separate day and calendar for each of the political parties to come out and engage in their rallies and campaigns.
2) Ensure to have a designated route for all political parties on their days of rally having due consideration to vehicular and pedestrian traffic inconveniences.
3) Ensure to have a starting and end time for the rallies preferably 9am to 5pm. Night rallies should be discouraged as a lot of things can go wrong and may not be accounted for.
4) The Sierra Leone Police and a few military personnel under the MACP framework should police the rallies ensuring decency and orderliness in the process.
5) Political party leadership must be held accountable over the actions of their supporters should there be use of profanities, abuse languages, hate speech, tribal and religious bigotries or any damage to properties belonging to the state or another during such rallies. Political parties can be fined, decried, warned, rebuked or ask to apologize by PPRC for any misgivings that might occur in their designated day of rally. In such ways, internal discipline and maturity will be ensure within political parties and their supporters going forward.
It is vital to note that the word "ban" is a word that is inimical to a democratic society and must be avoided at all costs by state institutions. Such a word is more often akin to autocratic systems of governments where citizens rights are muzzled, suppressed and cowed into subjection at all times.
Ours is a democracy and not a totalitarian system of government. Hence, any attempt by any body or state institution to limit fundamental human rights must be done in line with due process as required by law.
Rashid Dumbuya Esq Executive Director, LEGAL LINK
For and on behalf of the LEGAL LINK team
Christian Lawyers Centre (a.k.a LEGAL LINK) is a non-profit legal advocacy group comprising of lawyers, law students and human right activists that seeks to provide legal assistance to religious communities as well as vulnerable groups in Sierra Leone through legal advocacy, education and training, public interest litigations, state and private sector accountability, enforcement of the rule of law and ensuring respect for domestic and international laws that guarantee fundamental human rights and freedoms.
For more information, contact us at: No. 89 Fort Street, Off Circular Road, Freetown, Sierra Leone, West Africa Email: email@example.com Tel: +23279167457 / +23288646294 Website: www.legallinksierraleone.org
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