NO PEACE WITHOUT JUSTICE E.P. 2H262; Rue Wiertz 60; B-1047 Bruxelles; Tel. +32 (0)2 284 3357; Fax +32 (0)2 2849983 866 UN Plaza #408; New York NY 10017 Tel. +1 212 9802558 Fax +1 212 9801072 Via di Torre Argentina 76; I-00186 Roma; Tel. +39 06 68803613 Fax +39 06 68803609 LAW-MAKING BY LEGISLATION IN SIERRA LEONE 1. Separation of powers Sierra Leone operates according to the system of the separation of powers, by which the three functions of government legislative, executive and judicial are exercised by three different branches, namely Parliament, the Executive (i.e. The President) and the Courts. Each branch is independent of the others and is intended to act as a check on the exercise of powers of the other two branches, to ensure effective and transparent governance. The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organizations. The executive function broadly comprises the authority to govern, other than those areas falling directly within the sphere of authority of the legislative or judicial branches. Traditionally, the executive function is exercised by the Head of State (in Sierra Leone, the President) acting on advice of cabinet. The judicial function involves the determination of disputes concerning questions of law and questions of fact by private persons and public authorities before the courts. It also exercises other functions, many of which are essentially administrative in nature (for example the granting of probate of a will) and most importantly it exercises a review function in respect of the constitutionality of legislation. 2. Law making In Sierra Leone, as in most other countries, the legislative function is exercised by Parliament, in whom the legislative power of Sierra Leone is vested and who may make laws for the peace, security, order and good government of Sierra Leone. i As the supreme legislative authority for Sierra Leone, ii Parliament has broad law-making powers, subject only to provisions of the Constitution regulating how laws are to be made, particularly those relating to amendments to the Constitution. When Parliament decides to make a law, it must be assented to (ie signed) by the President before it will enter into force. Laws can be proposed to Parliament by any member of Parliament, whether they are a member of Government or not. Usually, a draft law (a Bill) will be proposed by a member of Government, usually the Minister responsible for the subject matter of the law acting on the advice of cabinet. For example, the law to ratify and implement the Agreement Establishing the Special Court was proposed to Parliament by the Attorney-General and Minister of Justice, as the Minister responsible for legal matters. Nevertheless, any member of Parliament may introduce a Bill for the consideration of Parliament ( Private Members Bills ). Irrespective of its origin, once a Bill has gone through the legislative process, including approval by Parliament and assent by the President, it then becomes an Act of Parliament and, as such, is binding law throughout Sierra Leone. 3. Legislative process A Bill will go through a number of stages before it reaches Parliament, then go through a number of different stages once it has been introduced to Parliament. What follows is the description of a Bill that originates within government, as this is the most common practice in Sierra Leone. Sierra Leone Office 127 Jomo Kenyatta Road; Freetown Tel +232 (022) 240-195
Development of government s legislative program by Responsible Minister Cabinet consideration Consult ation Report Cabinet Legislation Committee Appr oval Responsible Minister Drafting stage Parliamentary Counsel drafts on instructions of the responsible Minister Government consultative paper Introduction of Bill to Parliament Interested parties First reading in Parliament Second reading in Parliament Committee stage in Parliament Third reading in Parliament and vote passing Bill Report from Committee to Parliament Presidential assent Act of Parliament Publication in Gazette Entry into force 2
3.a Stage 1: Formulating a law; the pre-bill stage First, a proposal is made by the responsible Minister to Cabinet to adopt certain proposals in the government s legislative program, approval for which is given by the Legislation Committee of Cabinet. Based on the proposals made to Cabinet and within the limits of Cabinet s approval of legislative proposals, it is for the responsible Ministry to decide what should be in the draft Bill. The responsible Ministry advises the Parliamentary Counsel, who is responsible for drafting all government Bills. While a Bill is being drafted, there is usually extensive consultation within Government, most notably among the Ministries affected by the Bill, with successive revisions being circulated for comment. While there may be consultations outside of Government, it is not common practice for draft Bills to be disclosed during the drafting stage, as this stage is an administrative and political process. However, once the Bill is ready for introduction to Parliament, it must be published at least nine days before its introduction. Aside from this, in many Commonwealth countries, the Government may issue a consultative paper, usually called a green paper (stating the Government s provisional views) or a white paper (stating the Government s decided position, with some matters left open for discussion), to seek the views of those whose interests are affected. It should be noted that those governments that do issue such papers are generally not under any legal obligation to do so, and usually only will do so if they consider it in the interests of the draft Bill to be so discussed. 3.b Stage 2: Making the law; The Public Bill procedure Once a Bill has been introduced to Parliament, while lobbying and consultation may continue, the Bill can only be changed by formal amendment to the Bill. Such amendments may take place at Committee Stage. The Minister responsible for the Bill will introduce the Bill to Parliament. The Bill will then go through a formal first reading, by reading aloud the short title of the Bill. After a certain period of time, the Bill will go through a second reading, by reading aloud the long title of the Bill. During this stage, Parliament may debate the general principles contained in the Bill. How long Parliament takes to debate the Bill or whether it debates the Bill at all will depend on the subject matter of the Bill and its complexity. For example, in some countries, debates can range from two hours to two days or even longer. After the second reading, the Bill is referred to a Committee whether a Committee of the full House or a Select Committee for detailed consideration. The purpose of the Committee Stage is to enable consideration to be given to individual clauses of the Bill and to enable amendments to be made. While general approval must be given during the second reading for the Bill to proceed to Committee stage, there may be some areas to which reconsideration needs to be given, for example in light of the debates in Parliament. Following the Committee stage, the Chair of the Committee reports to Parliament on the outcomes of the Committee s deliberations. During this report stage, some amendments of a non-material nature may be made to the Bill. Following this, the Bill goes through a third reading, which it its final stage before being voted upon by Parliament. 3
3.c Stage 3: Becoming law; Passage and assent After the Bill is approved by vote in Parliament, it is sent to the President for his assent, after which it becomes an Act of Parliament. It will not, however, enter into force until it is published in the Gazette. If no other starting (commencement) date is mentioned in the Act, it will enter into force on the day it is published. 4. International law in Sierra Leone 4.a Introduction Sierra Leone is a dualist system, which means that international conventions and treaties generally require implementation in national law before the obligations contained in them can be enforced in the domestic context. The President of Sierra Leone has the power to enter international agreements on behalf of the Republic of Sierra Leone, subject to internal ratification by Parliament in certain cases (section 40(4) of the Constitution). Section 40(4) of the Constitution reads as follows: Notwithstanding any provisions of this Constitution or any other law to the contrary, the President shall, without prejudice to any such law as may for the time being be adopted by Parliament, be responsible, in addition to the functions conferred upon him in the Constitution, for (i) all constitutional matters concerning legislation; (ii) relations with Foreign States; (iii) the reception of envoys accredited to Sierra Leone and the appointment of principal representatives of Sierra Leone abroad; (iv) the execution of treaties, agreements or conventions in the name of Sierra Leone; (v) the exercise of the Prerogative of Mercy; (vi) the grant of Honours and Awards; (vii) the declaration of war; and (viii) such other matters as may be referred to the President by Parliament; Provided that any Treaty, Agreement or Convention executed by or under the authority of the President which relates to any matter within the legislative competence of Parliament, or which in any way alters the law of Sierra Leone or imposes any charge on, or authorises any expenditure out of, the Consolidated Fund or any other fund of Sierra Leone, and any declaration of war made by the President shall be subject to ratification by Parliament i. by an enactment of Parliament; or ii. by a resolution supported by the votes of not less than one-half of the Members of Parliament.. 4.b Ratification: Internal and International Some confusion may arise due to the words used in Sierra Leonean constitutional law and in international law regarding ratification. Indeed, this is a problem that arises fairly often in this context, as virtually every country in the world requires some form of internal ratification prior to international ratification taking place. 4
Under the Vienna Convention on the Law of Treaties, ratification refers to the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. Consent to be bound will be subject to this international act of ratification if the treaty so provides or the representative of the State has signed the treaty subject to such ratification. When the Constitution of Sierra Leone refers to ratification, in section 40(4), it is referring to an internal process. By this internal process, Parliament authorises the representative of Sierra Leone to complete the international act of ratification, by which Sierra Leone establishes on the international plane its consent to be bound by the international instrument in question. It should be emphasised that this internal ratification process has no bearing on the validity or effect of an international treaty in itself. 4.c Entry into force of an international treaty An international treaty will not enter into force for Sierra Leone until Sierra Leone has completed its international act of ratification, i.e. become a party to the treaty, and the requirements named in the treaty for its entry into force are fulfilled. The internal ratification process, be it by Act of Parliament or resolution of Parliament, will result in authorising the full powers document to be issued to a representative of Sierra Leone. This will enable the representative to complete the international act of ratification. Upon the international act of ratification, namely the depositing of the full powers document with the depository, Sierra Leone becomes a party to the treaty. In the case of the Rome Statute for the International Criminal Court (ICC), H.E. The President of Sierra Leone following the conclusion of the internal ratification process on 23 May 2000 deposited Sierra Leone s instrument of ratification with the Secretary-General of the United Nations in New York on 16 September 2000. At that point Sierra Leone became a party to the ICC. The Rome Statute for the ICC, however, provides that it would enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations (article 126). Following this procedure, the Rome Statute for the ICC entered into force on 1 July 2002. 5
4.d. Enabling or implementing legislation Enabling or implementing legislation is necessary, as the name suggests, to enable Sierra Leone to comply with the terms of the treaty. Many treaties particularly human rights treaties contain provisions requiring States to make provision in their domestic law so that the treaty provisions can be enforceable in that State. In the case of the ICC, there are many provisions in the Rome Statute regarding cooperation between States Parties and the ICC, including the execution of warrants and orders, the transfer of suspects and accused persons, enforcing sentences of imprisonment and general cooperation with requests from the ICC. As with the Special Court, these obligations require implementation in national law, to provide the legal basis for the competent authorities in Sierra Leone to cooperate with the ICC. i Constitution of Sierra Leone, section 73(2) and (3). ii Constitution of Sierra Leone, section 105. 6