The Supreme Court rejected the plaintiff’s arguments and ruled that the Committee was enacted correctly and possessed the power to conduct such an investigation. The accused Judges tried to argue against the legitimacy of the investigative body on five grounds. The following will briefly describe the plaintiff’s arguments and the reason each was dismissed.
Plaintiff’s Claims and Reasons for Dismissal
Before getting into the specifics of the decision, a few key details must be reviewed. As indicated above, the plaintiff’s focused their argument on the composition of the Committee. The plaintiffs identified several areas where the legality of the Committee’s incorporation could be questioned. The most important facts for the plaintiff’s argument are as follows. The Committee was made up of four members, only three of whom sat on this matter. All of the Committee members were older than sixty-five, above the retirement age for Judges. And, the Committee Chair was the Ombudsman.
- All members of the Committee are older than sixty-five. The requirement for serving as a Committee member is eligibility to serve on the Supreme Court. Because Judges must retire from the Supreme Court when they turn sixty-five, the Judges were ineligible to sit on the Committee.
This argument was rejected as an overly restrictive reading of the key sections of the Constitution, Sections 135, 136, and 137. The requirements for serving on the Committee are the same as serving as a Judge of the Supreme Court – being admitted to practice in Sierra Leone or another country with a similar system of law for over twenty years. The Supreme Court held that this is the key qualification for serving as a Supreme Court Judge, not the age limit.
However, Section 137 of the Constitution says that a Judge shall vacate his office on reaching the age of sixty-five years. Despite this, the Supreme Court found that the Committee was properly constituted because, under Section 136, the President has authority to appoint Judges that are over the retirement age.
The Supreme Court made a difficult decision in finding that the Committee members were eligible for sitting despite their age. While it might seem unjust to take away the power of the Committee simply because of the age of the Judges, these Judges were appointed solely by the discretion of the President (otherwise they would have to stay in retirement). As such, they may be subject to undue influence by the Executive.
- One member of the Committee did not meet the requirement of being admitted to practice law for over twenty years.
The Supreme Court rejected this argument as unimportant to the matter at hand. The member of the Committee in question did not even sit on this case. So, his presence on the Committee, it was held, did not affect the proceedings in any way.
- The name of the Committee Chair was improperly listed in the Gazette.
As with argument #2, the Supreme Court found this challenge to be without merit. The misspelling was held to be a simple typographical error, a misnomer. In any case, the Court held that it should not affect the legitimacy of the investigative body because it was clear, at all stages, who was intended to be the Chair of the Committee.
- There is a conflict of interest in the Chair of the Committee being the Ombudsman.
The plaintiffs argued that, by having the Ombudsman sit as the Chair of the Committee, the plaintiffs were unable to complain about any impropriety done by the Committee, outside of the Courts. In essence, the plaintiffs argued that one of the key oversight mechanisms of the government, the Ombudsman, was made inaccessible to them. While this argument seems to have merit, the Supreme Court rejected it.
The Court rejected the argument by considering the Ombudsman, in his official capacity, as separate from Justice Cowan sitting as Committee Chairperson. This is because the Ombudsman is an administrative position with very limited power to interfere with any judicial proceeding. As Committee Chairperson, Justice Cowan was not acting in furtherance of his duties as Ombudsman in any way. So, even though the positions of Ombudsman and Committee Chairperson were held by the same person, their responsibilities are separate enough that the Court held there was no conflict of interest.
This distinction seems to be somewhat unfair to the plaintiffs. The plaintiffs, rightfully, claimed that they could not go to the Ombudsman with any complaints about the investigation, because of his involvement in the investigation. The plaintiff’s common sense argument was that even if the Ombudsman was sitting as a member of a judicial committee, his willingness to identify impropriety in the Committee would be lessened.
Beyond rejecting the conflict of interest argument, the Supreme Court held that the Ombudsman cannot investigate proceedings before a Court. However, this does not seem to be the case. In the Justice Sector Development Programme’s 2008 report, the work of the Ombudsman is described in detail. Included is a list of the types of complaints submitted to the Ombudsman. While the report does not indicate which specific complaints were found to be justified, the Ombudsman received complaints about maladministration in the Magistrate’s Courts and in delays in court proceedings. From this, it would seem that the Ombudsman does have some power to investigate judicial proceedings.
Further, restricting the power of the Ombudsman to investigate judicial proceedings would be contrary to the spirit of the entire decision, which was to enable the government to check corruption and maladministration within the judiciary. Because of this, the Supreme Court’s decision should not be read to limit the power of the Ombudsman to investigate the Courts. Instead, it should, appropriately, stand for the concept that the Ombudsman’s investigation of the Courts is limited to procedural rights. The Ombudsman is not meant to be able to determine the outcome of lawsuits. But, he should be able to make sure that the parties to a suit have their rights honored and that the court follows appropriate procedures.
- The dates of effectiveness for the Committee listed in the Gazette were not the actual effective dates of the Committee.
Again, the Court found this argument to be overly technical and lacking substantive strength. The dates in the Gazette were not, in fact, the actual dates of operation for the Committee. However, the Court found that the Gazette, itself, has no power. The intent of the Legislature is more important. And, here, the Legislature intended the Committee to be operational for the time that it, in fact, operated.
Summary
Overall, the decision is a positive step toward enabling future investigations of judicial misconduct. Judges face a tremendous amount of pressure – high caseloads and lower salaries than they might earn in the private sector. With these pressures, some Judges might be drawn toward misconduct. Having an investigative committee, in addition to the ACC, might be useful in protecting against such misconduct. Parliament specifically provided for the empanelment of the Committee in question in this case. We recommend that Parliament continue to support such investigative bodies. But, it should be mindful of some of the questions raised by the plaintiffs.
In the future, the Ombudsman should not sit on such Committees. While the role of the Ombudsman and the Committee Chairperson might be very different, having one person fill both positions does, effectively, rob anyone being investigated by the Committee of the chance to complain to the Ombudsman.
Additionally, the retirement age for judges should be observed and followed when appointing members to the Committee. While all superior court judges are appointed by the President, those judges serving after reaching their retirement may be especially beholden to the President.
