A REJOINDER: TWO-THIRDS OF WHOM? SECTION 108 OF THE CONSTITUTION OF SIERRA LEONE, THE MAJORITY REQUIRED TO AMEND IT, AND THE QUESTION OF CONSTRUCTION FOR THE SUPREME COURT
By Ady Macauley Esq.
Abstract
Dr. Michael Imran Kanu in his above titled article casts the 2025 Constitutional Amendment Bill as the long-awaited outcome of Lomé and TRC reforms which will strengthen electoral governance, gender equity, and dual-citizen rights. This rejoinder rejects framing substantive gains ahead of constitutionality and procedural legitimacy. It argues that Section 108(2)(b) dispute is no mere technicality: the Bill’s 10 August 2026 passage violated the constitutionally required two‑thirds supermajority (calculated against full parliamentary membership, not those present) and legislative procedure at critical stages, rendering the purported enactment void ab initio. Unlike Dr. Kanu’s argument, which accepts passage as fact and awaits interpretive clarity, this rejoinder distinguishes interpretive doubt from jurisdictional defect: a law passed in breach of the Constitution’s amendment procedure has no legal existence, its reforms remaining unborn. The Supreme Court is asked not merely to secure these gains but to determine whether the Bill was ever lawfully passed, for constitutional progress cannot rest on an unconstitutional foundation.
Introduction
This rejoinder addresses the contention that two competing interpretations of Section 108(2)(b) are equally balanced and that the matter should simply be commended to the Supreme Court without prejudice. While the need for judicial clarification cannot be ignored, the suggestion that the two constructions carry equal weight textually, structurally, or jurisprudentially cannot weather rigorous scrutiny. The argument that the omission of the word “all” is decisive misreads the Constitution’s architecture, misemploys the comparative authorities, and discounts the very purpose for which Section 108 was enacted: i.e. to place constitutional alteration beyond the reach of transient majorities and procedural manoeuvre.
- THE TEXTUAL ARGUMENT: “MEMBERS OF PARLIAMENT” IS A DEFINED CLASS
The argument that “Members of Parliament” means only those present and voting ignores the statutory definition of the term itself. Section 74 of the 1991 Constitution defines what constitutes the Members of Parliament: it is the totality of 149 persons, which is the elected Constituency Members Parliament and Paramount Chief Members of Parliament whose membership subsists regardless of daily attendance. When Section 108(2)(b) speaks of “two-thirds of the Members of Parliament,” it refers to that defined body, not the fluctuating number present in the Chamber on any given day.
The distinction between the general rule and the constitutional exception is explicit in Section 91(1): “Except as otherwise provided in this Constitution.” Section 108 is that “otherwise provided.” The framers did not need to add the word “all” to convey totality when they used the term “Members of Parliament” which the Constitution elsewhere defines as a fixed body. The argument that “all” must be expressly included proves too much: if that were the standard, the Constitution would need to qualify every reference to “Members of Parliament” with “all”, a practice it does not follow. Section 51(5) uses “all” for emphasis in a different context; its absence from Section 108(2)(b) does not alter the plain reference to a constitutionally defined class.
The question, “two thirds of whom?” which Dr. Kanu sought an answer to in his article is one that had long been answered by the Speaker of Parliament, Hon. Segepoh-Thomas. The Speaker’s own reasoning in the Lara Taylor‑Pearce matter is conclusive on the matter, it turned on the preposition and the absence or presence of the qualifying phrase. The Speaker did not distinguish between “all the Members of Parliament” in s.51(1) and “of the Members of Parliament” in s.108(2)(b). He distinguished between “of” (total membership) and “in Parliament” (those present) s.137(7). The word “all” in Section 51(1) is emphatic and descriptive, it confirms the scope, but it does not alter the meaning of “the Members of Parliament” as the constitutional body. The phrase “all the Members of Parliament” in Section 51(1) and “the Members of Parliament” in Section 108(2)(b) are grammatical variations expressing the same constitutional concept, the entire body of Members, substantively identical and interchangeable in usage; both refer to the full, fixed membership of the House. The addition of “all” is emphasis, not alteration, any attempt to distinguish the two is one without a difference.
The Constitution does not employ “of the Members of Parliament” to mean two different things in two of its most consequential provisions (in s.51(1) dealing with electing the Speaker and in s.108(2)(b) which regulates amending the supreme law) while reserving “in parliament” for matters of lesser constitutional gravity as in s.137(7). The deliberate omission of “in parliament” from both s.51(1) and s.108(2)(b), and its express inclusion in s.137(7) is the Constitution’s own distinction. The Speaker’s ruling in the Taylor‑Pearce case validates this very method of interpretation.
The comparative authorities cited by Dr. Kanu actually reinforce the position: Constitutions that require “two-thirds of members present and voting” use that exact phrase, words that do not appear in Section 108(2)(b). Sierra Leone’s framers chose instead the language of membership, not presence. The US cases cited are distinguishable: they interpret a text that expressly speaks of “members present,” a formulation our Constitution does not employ. Fidelity to text requires us to enforce what the framers wrote, not interpolate words they deliberately omitted.
- THE PURPOSE OF SECTION 108: SAFEGUARDING THE CONSTITUTION FROM MANOEUVRE
The argument that an entire-membership rule would hand a minority an absolute veto misrepresents the arithmetic and the principle. Two-thirds of 149 Members means 100 affirmative votes. That is not a veto; it is a threshold requirement, a deliberate design choice to ensure that constitutional alteration commands broad, durable consensus. If a minority can deny that threshold through absence, the remedy lies in persuasion and attendance, not in lowering the bar by redefining the denominator.
The alternative construction, two-thirds of those present and voting creates a dangerous incentive: it rewards the strategic withdrawal of opposition Members to shrink the quorum and reduce the number of votes required to pass an amendment. That is not democratic protection; it is a procedural loophole that allows constitutional change to be effected with fewer votes as opposition participation declines. The very purpose of a special majority is to prevent exactly this: to ensure that the requirement is not relaxed when consensus is weakest.
The point about the referendum is erroneous. Section 108(3) and (4) make a referendum mandatory only for entrenched provisions, a subset of constitutional amendments, not all. The Bill in question may not trigger the referendum requirement for all its provisions. To argue that the referendum provides a sufficient safeguard is to concede that the parliamentary threshold is being lowered, leaving the Constitution more vulnerable in the very stage where safeguards should be highest.
III. THE SPEAKER’S OWN PRECEDENT UNDERMINES THE CONSTRUCTION HE NOW ADVANCES
The article acknowledges the Speaker’s earlier ruling in the proceedings concerning the removal of former Auditor-General Lara Taylor-Pearce, where he determined that “two-thirds of Parliament” means two-thirds of all elected Members. That ruling was not a casual observation; it was a considered interpretation of the Constitution’s voting thresholds. To depart from that standard now without distinguishing the cases, without new constitutional amendment, without guidance from the Supreme Court raises a fundamental concern: the interpretation of the Constitution cannot change when the political arithmetic changes. If the threshold was the entire membership, then, it is the entire membership now. The Speaker’s own precedent is the strongest evidence against the construction he has adopted.
- VOTING METHOD: VOICE VOTE CANNOT ESTABLISH A NUMERICAL THRESHOLD
The argument that a voice vote was sufficient because the Constitution does not prescribe a different method conflates procedure with substantive validity. Section 108(2)(b) does not specify how the vote must be taken, but it does specify how many votes are required. A voice vote, “the ayes have it” is inherently incapable of demonstrating that 100 Members voted in the affirmative. It can only reflect the Speaker’s assessment of the sense of the House. Where the Constitution prescribes a numerical threshold, that threshold must be numerically demonstrated. The absence of a division or recorded vote, precisely because opposition Members withdrew, means the threshold was never actually proven to have been met. To validate passage on that basis is to accept that the requirement was satisfied without evidence.
The 2012 precedent cited is distinguishable: the validity of the threshold in that case was not contested at the time. The fact that a practice was followed does not make it constitutionally correct when the threshold itself is in dispute.
- SECTION 94(2) IS NO SHIELD FOR CONSTITUTIONAL NON-COMPLIANCE
This rejoinder welcomes the recognition that parliamentary procedure and the Speaker’s ruling are not beyond judicial review when the Constitution itself is at issue. As the Privy Council held in Bribery Commissioner v Ranasinghe [1965] AC 172, the Speaker’s certificate cannot preclude judicial inquiry into whether the constitutional requirement was actually met. That principle is decisive here: Section 94(2) protects rulings relating to rules of procedure, it does not protect rulings that misinterpret or disregard the express substantive requirements of the Constitution itself. Section 171(1) declares the Constitution supreme, and section 171(13) went further to say that any provision in the Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in exercising any functions under the Constitution doesn’t preclude the Courts from enquiring whether the person or authority has performed those functions in accordance with the Constitution or any other law. No Standing Order, no Speaker’s ruling, and no parliamentary majority can override that supremacy. The distinction, between how business is conducted and altering what the Constitution requires is the distinction between procedure and substance. Section 108(2)(b) is substantive, not procedural.
- CONCLUSION: THE ISSUE IS NOT “FAIRNESS”—IT IS COMPLIANCE
Dr. Imran Kanu’s article concludes that the matter is balanced and should be commended to the Court. I hold the view that the balance is not equal. One interpretation respects the text as written, upholds the Constitution’s definition of Members Parliament, gives effect to the “except as otherwise provided” clause, and preserves the special majority as a genuine safeguard against constitutional alteration by simple majority. The other interpretation rewrites the Constitution by substituting a different denominator, present and voting, nowhere expressed in the text, contradicts the Speaker’s own precedent, and creates an incentive for strategic withdrawal to ease the passage of constitutional change.
Some of the intended reforms contained in the Bill as presented to parliament prior to the constitutional mayhem which shield the appointment of members of the Electoral Commission from political considerations, strengthen women’s representation in governance and inclusion of dual citizens are worthy objectives. But worthy ends do not justify unconstitutional means. The Supreme Court is not being asked to choose between two equally plausible readings; it is being asked to uphold the Constitution as it was written, and to ensure that the threshold deliberately placed above the reach of ordinary majorities is not lowered by interpretive fiat. The gains of a generation deserve to rest on a foundation that is not merely convenient, but constitutionally valid.
The author is a Flag Bearer aspirant for APC, a lawyer and Anti-corruption expert, former prosecutor and Commissioner of the Anti-Corruption Commission, and an alumni of the International Law Enforcement Academy at its Accra, Gaborone and Rosewall Campuses.
