By Israel Ojekeh Parper Snr (14/09/2026)
Sierra Leone’s constitutional order is confronting a structural crisis rooted in the inconsistent application of Section 108, the entrenched‑clause amendment procedure. Two events — the 2021 abolition of the death penalty and the 2025–2026 constitutional amendment dispute — expose a recurring procedural fault line: the use of ordinary legislation to alter or neutralise entrenched constitutional meaning.The 2021 Abolition Act bypassed Section 108 despite entrenched constitutional references to capital punishment. Sierra Leone later ratified the Second Optional Protocol to the ICCPR, strengthening abolition internationally but not curing the domestic procedural irregularity.In 2026, Parliament used the same shortcut to pass a constitutional amendment bill by simple majority under Section 91(1). Opposition MPs walked out. Four petitions have now reached the Supreme Court.
The crisis now requires judicial clarification. The Supreme Court must determine whether altering entrenched constitutional meaning requires Section 108. The ruling will define Sierra Leone’s constitutional future.
INTRODUCTION
Constitutionalism, Entrenchment, and the Crisis of Amendment Discipline. Constitutional democracies rely on procedural discipline. Entrenched clauses — requiring supermajority and referendum — exist to protect foundational rights, institutional structures, and democratic legitimacy. When these safeguards are bypassed, constitutional stability is threatened. Sierra Leone’s 2021 abolition of the death penalty was a landmark human‑rights achievement. Yet its legislative pathway raised constitutional concerns. The Constitution contains entrenched references to capital punishment, particularly in treason provisions.
Parliament abolished the death penalty through ordinary legislation, bypassing Section 108 - the 2/3rd majority and referendum requirments. The Supreme Court did not intervene - the doubt and uncertainties were not referred to the Court. This procedural ambiguity resurfaced in 2026 when Parliament passed a constitutional amendment bill on 10th August 2026, using the same simple‑majority logic. Opposition MPs walked out at the Committee stage. The 1991 constitution madated 2/3rd majority in the secobd and third readings. Thesev were not obtained. Four petitions are now filed at the Supreme Court.
This publication examines: the constitutional architecture of entrenchment, the 2021 irregularity, the 2026 crisis, the ratification of the Second Optional Protocol, objectors’ views (including Sylvanus Koroma), interpretive theories, comparative jurisprudence, governance risks, and
the Supreme Court’s likely approach.
The analysis is grounded in constitutional theory (Ackerman, Dworkin, Waldron), ethical frameworks (Rawls, Kant), and comparative case law (Kenya, Ghana, South Africa, Nigeria, India, Canada).
SECTION 1 — THE 2021 ABOLITION OF THE DEATH PENALTY
1.1 The Act: Parliament abolished capital punishment through ordinary legislation.
1.2 Constitutional Tension: The Constitution contains entrenched references to capital punishment.
1.3 Treaty Ratification: Sierra Leone ratified the Second Optional Protocol to the ICCPR, committing to permanent abolition.
1.4 Objectors’ Views — including Sylvanus Koroma (“What a Man”). Objectors including
Sylvanus Fornah Koroma argued: abolition without referendum was a constitutional kerfuffle; entrenched clauses cannot be amended by ordinary legislation; bypassing Section 108 undermines democratic legitimacy; constitutional meaning cannot be changed indirectly; the Supreme Court’s silence created instability. His critique is grounded in: literal interpretation (the Constitution references death penalty), purposive interpretation (entrenchment protects foundational rights), and constitutionalism theory (procedural legitimacy is essential).
SECTION 2 — THE 2025–2026 AMENDMENT CRISIS.
2.1 The Bill: The Amendment Bill sought to modify entrenched provisions.
2.2 The Speaker’s Ruling: The Speaker applied Section 91(1) (simple majority).
2.3 Opposition Walkout: Opposition MPs walked out, arguing Section 108 applied and will not be party to a treanous breach of tge constitution.
2.4 Treaty Implications: The Second Optional Protocol strengthens abolition of the death penalty but highlights the contradiction. Sierra Leone complied internationally while bypassing domestic entrenchment rules.
SECTION 3 — THE FOUR SUPREME CASES at the Supreme Court.
Case 1 — Osman Timbo Esq. (APC MP/ Lawyer)
Prayers: Declare the Speaker’s ruling unconstitutional. Declare the bill invalid for bypassing Section 108. Order Parliament to restart the process.
Case 2 — APC Party (National Action)
Prayers: Declare the bill unconstitutional.
Declare the parliamentary process null and void. Prevent presidential assent. (Note: The president has not assented - submited bill to Supreme Court for opinion)
Case 3 — Conteh & Kelley (Civil Society).
Prayers: Declare that entrenched provisions cannot be amended by simple majority.
Clarify the amendment architecture.
Issue guidance on future constitutional amendments.
Case 4 — Speaker’s Reference (Status uncertain)
If filed, the Speaker would seek: Judicial confirmation that Section 91 applies and a
Validation of the parliamentary process.
However, it would sppear that despite the loud publicity, the Speaker's referal has not materilised. But the President has now referred the Bill to the Supreme Coyrt for interpretation under section 122 of the 1991 Sierra Leone Constitution.
Will the Supreme Court hear them individually or collectively?
Likely outcome: COLLECTIVE HEARING.
The Supreme Court will almost certainly:consolidate the cases, hear them together, issue one unified judgment.
Reason: all cases raise the same constitutional question i.e. Does Section 108 apply? judicial economy, consistency of reasoning, avoidance of conflicting rulings.
SECTION 4 — RULES OF INTERPRETATION AND THEIR APPLICATION.
Let us briegly examine the basic rules courts use to interpret statutes and constitutions. These rules help judges understand what Parliament meant and how laws should apply in real cases.
1. Literal Rule. Meaning of words as written.
The Literal Rule gives words their plain, ordinary meaning. It is simple and predictable, but sometimes leads to absurd results — like in Fisher v Bell case, where displaying a knife was not legally an “offer for sale” in contract law.
Attorney‑General v Momoh (Sierra Leone, 1974) — literal meaning governs unless it defeats the Constitution’s structure.
Applied to Sierra Leone's crisis:
The Constitution references death penalty → therefore it cannot be abolished without amending text.
Amendment bill touches entrenched provision, therefore Section 108 with referendum, should have applied.
2. Purposive Rule. This helps judges to Interpret legal provisions in light of their purpose and spirit. It is especially important for constitutional cases.
The Purpose of entrenchment is to protect foundational rights, prevent arbitrary amendment, require referendum.
The Purposive interpretation strengthens Section 108. In the case of Minister of Home Affairs v Fisher, the court said constitutions must be read generously. This rule is central to Sierra Leone’s current constitutional crisis.
Kallon v State (Sierra Leone, 2009) — Court stated that the Constitution must be interpreted holistically.
This Rule determines whether Parliament must follow Section 108’s referendum requirement.
3. Golden Rule. Avoid absurdity.
Absurd outcome: entrenched clauses amended by simple majority.
The Golden Rule starts with the literal meaning but allows judges to modify it to avoid absurdity.
In Adler v George, “in the vicinity of” was interpreted to include “in”, because excluding it would be ridiculous. The dramatic distinction of the Speaker Segepoh Solomon Thomas in the debate to remove the Auditor General - members "IN" Parliament as against mambers "OF" Parliament (still undecided) caused him yo applh the simple majority - section 91 interpretation.
4. Mischief Rule. Identify the mischief the law intended to prevent. Basically, the Mischief Rule asks what problem Parliament intended to fix. It comes from Heydon’s Case in 1584 in England. This rule is practical and focuses on legislative intent.
The Mischief is the arbitrary amendment of core constitutional provisions
There are three othe Contextual Rules which help judges to interpret lists, and phrases. These are:
Ejusdem Generis; general words limited to same type as specific words.
Expressio Unius: mention of one thing excludes others.
Noscitur a Sociis: words interpreted by surrounding words.
Application to Sierra Leone - Likely Supreme Court Approach.
The Supreme Court may choose to use The Purposive Rule: purposive interpretation (primaryly - and decide that section 108 must apply; so a 2/3rd majority (and/referandum) is reqiired).
On the other hand, the Supreme Court may use the Literal Rule and afirm the Speaker of Parliment's use of Section 91 - simple majority thereby effecting the literal interpretation (secondary), and/or the Court may make full use of comparative jurisprudence in supporting its decision.
SECTION 5 — COMPARATIVE CASE LAW
Kenya — Articles 255–257 require referendum for structural amendments.
In Ndii v Attorney General - Ordinary legislation cannot amend constitutional structure. Its Supreme Court emphasises public participation.
Ghana: Article 290 entrenches key provisions. Referendum required.Courts adopt purposive interpretation. In the case of Asare v Attorney General- Entrenched clauses require strict compliance.
Uganda.:Articles 260–262 require referendum.Courts strike down improperly passed amendments.
Zambia: Article 79 entrenches Bill of Rights. Referendum mandatory.
South Africa: Section 74 requires supermajority. Constitutional Court emphasises architecture. Certification of the Constitution - Amendment tiers must be respected.
Nigeria — Attorney General v Abubakar - Constitutional supremacy prevents amendment by implication.
India — Kesavananda Bharati - Basic structure cannot be altered by ordinary legislation.
Canada — Senate Reference - Constitutional architecture cannot be changed through ordinary statutes.
Kallon v State (Sierra Leone, 2009) — Constitution must be interpreted holistically.
Comparative Insight - Sierra Leone’s Section 108 aligns with regional practic and Purposive interpretation is the dominant judicial approach.
CONCLUSION
Sierra Leone stands at a constitutional crossroads. The crisis is structural, not episodic. The unresolved tension between Section 91 and Section 108 — exposed during the 2021 death penalty abolition — has now escalated into a full constitutional crisis. Treaty ratification strengthened abolition but did not cure domestic procedural shortcuts.
At its core lies a clash between Literal and Purposive interpretation, each producing radically different outcomes.
The Supreme Court’s ruling will determine the validity of the 2026 amendment bill, the limits of parliamentary power, the meaning of entrenched constitutional protections, and the proper pathway for constitutional reform in the future. It will also clarify the President’s 14‑day assent obligation.
Comparative jurisprudence strongly favours the Purposive approach, requiring strict amendment procedures and referendum safeguards.
The future of Sierra Leone’s constitutional stability depends on restoring amendment discipline. Whatever the Court decides, this moment will shape Sierra Leone’s constitutional trajectory for decades.
ADENDUM
Constitutional Entrenchment & Amendment Procedures:
1. What is the purpose of Entrenchment. Why do they exist?
Entrenched clauses exist to: Protect foundational constitutional principles from ordinary political change. They require higher thresholds (supermajorities, referenda, or both) and signals that certain provisions form the constitutional “core” or “identity”.
These clauses often cover: Separation of powers, Fundamental rights, Electoral systems, Territorial integrity, Presidential term limits (in African jurisdictions especially).
2. Two Global Models of Entrenchment.
Procedural Entrenchment uses explicit amendment thresholds (i.e., supermajorities, referenda, special legislative procedures).
Examples: Ghana, Kenya, Uganda, Zambia, Australia.
Substantive Entrenchment: Courts protect unwritten constitutional “basic structure” even without explicit entrenchment clauses.
Examples: India, partially South Africa, Canada (through federalism and rights architecture).
3. Role of Referenda
Referenda serve as: A democratic veto. against elite-driven constitutional change and It is a legitimacy mechanism for altering foundational clauses and a safeguard against unilateral parliamentary amendments. African constitutions (post‑1990s) frequently require referenda for entrenched clauses, reflecting 'Post-conflict' constitutional settlements, Desire to prevent 'authoritarian reversals' and Public participation norms.
4. Judicial Approaches to Entrenchment. Courts typically adopt one of three interpretive stances:
a. Purposive Interpretation
Courts read entrenchment clauses broadly to protect constitutional values.
Used in: Ghana, Kenya, Uganda, Zambia, South Africa, Canada, Australia.
b. Basic Structure Doctrine
Courts strike down amendments that violate the constitution’s core identity, even if procedurally valid.
Used in: India (strongest version globally).
c. Undetermined / Emerging Doctrine
Courts have not yet clarified the scope of entrenched clauses.
Example: Sierra Leone, pending the 2026.
Supreme Court ruling on Section 108/Section 91 ongoing crisis.
5. Why Entrenchment Matters for Constitutional Stability.
Entrenchment affects: Amendment difficulty Executive overreach, Protection of term limits, Judicial review scope, Public trust in constitutional change,
Countries with strong entrenchment plus purposive courts, tend to have: More stable constitutional orders, Fewer unilateral amendments, Clearer separation of powers.
Those Countries with weak judicial enforcement or ambiguous doctrine face: Higher risk of political manipulation, Uncertainty in amendment validity, and Litigation over constitutional identity
6. Comparative Insight Before the Table
Most Commonwealth and African constitutions combine procedural entrenchment with purposive judicial interpretation, while India stands alone with a powerful substantive doctrine.
Sierra Leone is the only jurisdiction where the judicial approach remains unresolved pending the upcoming constitutional cases now before the Supreme Court.
| Country | Entrenched Clauses? | Amendment Procedure | Referendum Required? | Judicial Approach |
|---|---|---|---|---|
| Sierra Leone | Yes (Section 108) | 2/3 + referendum | Yes, for entrenched clauses | Undetermined (pending 2026 ruling) |
| Ghana | Yes (Art. 290) | 2/3 + referendum | Yes | Purposive |
| Kenya | Yes (Arts. 255–257) | Parliament + referendum | Yes | Purposive |
| Uganda | Yes (Arts. 260–262) | Parliament + referendum | Yes | Purposive |
| Zambia | Yes (Art. 79) | Parliament + referendum | Yes | Purposive |
| South Africa | Yes (Sec. 74) | Supermajority | No | Purposive |
| India | Basic Structure Doctrine | Parliament + judicial review | No | Strong purposive |
| Canada | Yes (Constitution Act 1982) | 7/50 or unanimity | No | Purposive |
| Australia | Yes | Parliament + referendum | Yes | Purposive |
| New Zealand | Limited entrenchment | Supermajority or referendum | Sometimes | Mixed |
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