Chieftancy Report_vis3 15 Oct

March 16, 2018 | Author: Maxwell Kemokai | Category: Sierra Leone, Governance, Local Government, Ghana, Taxes


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Reform is not Against Tradition: Making Chieftaincy st Relevant in 21 Century Sierra LeoneCampaign for Good Governance Methodist Church Sierra Leone Network Movement for Justice and Development October 2009 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Contents Background Background List of Acronyms Executive Summary Introduction: Why Reform the Chieftaincy System? 1 1.1 1.2 1.3 2 2.1 2.1.1 2.1.2 2.1.3 2.1.4 2.2 2.2.1 2.2.2 2.2.3 2.2.4 2.3 2.3.1 2.3.2 2.3.3 3 3.1 3.2 3.3 4 5 5.1 5.2 5.3 5.4 Legacies of “Indirect Rule”: Government Policy On Chieftaincy in the 20th Century “Native Law and Custom” Post-Colonial Patronage Politics and Legislative Stagnation Lessons from History for a New Programme of Chieftaincy Reform Talking About Chieftaincy in Sierra Leone Today Accountability and Good Governance The Moral Contract between Chiefs and People Case Study: The Biriwa Chieftaincy Election Crisis of 2006 Chieftaincy’s Crisis of Accountability The Case for Universal Adult Suffrage in Chieftaincy Elections Justice and Human Rights Overlapping Spheres of Justice Rural Community-Based Justice Corruption and Conflict in the Local Justice System Ways Forward for Improving the Local Justice System Taxation and Representation Chiefdoms and Local Councils Case Study: Conflicts over Revenue Collection in Tonkolili District Ways Forward for Improving the Local Government System Strengths and Weaknesses of Recent Legislation on Chieftaincy The Chieftaincy Act, 2009 The Local Courts Bill, 2008 The Local Government Act, 2004 Chieftaincy and Decentralization in other African Countries: What Lessons for Sierra Leone? Recommendations and Conclusions Accountability and Good Governance Reforms Justice and Human Rights Reforms Taxation and Representation Reforms Conclusions 1 2 3 10 15 15 19 23 25 25 25 26 29 34 37 37 38 39 42 43 43 46 47 49 49 52 53 54 56 56 57 58 58 59 60 This report is published by Partners in Conflict Transformation (PICOT) In collaboration with Campaign for Good Governance (CGG) in Freetown, October 2009 The following organisations are members of Partners in Conflict Transformation: 1. Network Movement for Justice and Development (NMJD) 2. Methodist Church Sierra Leone (MCSL) This report was commissioned by Campaign for Good Governance (CGG); and Network Movement for Justice and Development (NMJD) and the Methodist Church Sierra Leone (MCSL), who work together as Partners in Conflict Transformation (PICOT), to inform their advocacy campaign calling for reform of the chieftaincy system in Sierra Leone. Over the past years, chiefdom governance has been identified as a major issue by community members participating in conflict transformation sessions facilitated by the partner organizations. During a one-week workshop in July 2007 , PICOT therefore decided to make chieftaincy reform its major advocacy focus. Reform at this level has the potential to effect real change in the lives of the rural poor as it addresses root causes of poverty and exclusion rather than symptoms. The failings of chiefdom governance have been highlighted in several recent reports commissioned by donor agencies. While the present report is equally candid about these failings, its primary aim is to draw all interest groups, chiefs included, into a debate about the institutional reforms that are needed to make the chiefdom governance more accountable, democratic, just, and focussed on development. The fundamental challenge for reform is to make chieftaincy relevant in Sierra Leone in the 21st century. Since the end of the civil war, there have been numerous changes in Sierra Leoneans’ conceptions of governance, development, accountability, justice and human rights. Some have attempted to label these changes as “untraditional” and “un-Sierra Leonean. However, there is nothing untraditional about ” women wanting better access to justice and governance, for there are many places in the country where women are chiefs, judges and lawyers. There is nothing untraditional or un-Sierra Leonean about people from non-ruling houses holding positions of authority, since there are many such persons holding responsible positions within chiefdom governance structures, local councils and central government. There is nothing untraditional and un-Sierra Leonean about chiefs being more accountable to their people, or of ensuring that chiefs are insulated from the pressure to serve as party political enforcers. These are not issues that should be seen as opposing tradition. The resilience of traditional political institutions depends on their ability to bring on board new ideas and respond to emerging aspirations. Where institutions are out of step with the aspirations of the people, they risk losing the loyalty and respect of those that they are meant to serve. The case for reform is therefore not a case against tradition. It is rather a case for the continued relevance of chieftaincy in a country that yearns for better governance, fairer justice systems, socio-economic development and greater accountability. The importance of stimulating debate on chieftaincy reflects two wholly Sierra Leonean priorities. First, the overwhelming message from post-war community dialogue sessions is that ordinary people want to see the chieftaincy system reformed, not abolished. Second, one Act directly affecting chiefdom governance has recently been enacted: the Chieftaincy Act, 2009; while another Bill, equally affecting chiefdom governance, is waiting to be enacted: the Local Courts Bill, 2008. Additionally, the Sierra Leone government is considering the Constitutional Review Committee’s recommendations for the addition of new clauses on chieftaincy in the Sierra Leonean Constitution. It has also commissioned a departmental review of the Local Government Act, 2004, which establishes the division of functions between the chiefdoms and the town and district councils. Through their advocacy campaign, PICOT, CGG and other civil society organizations in Sierra Leone seek to ensure that the voices and concerns of ordinary Sierra Leoneans are taken into account during these important legislative and policy developments. The evidence cited in this report is drawn from published sources, the authors’ fieldwork and community dialogue sessions facilitated by the partner organizations. The authors would like to thank PICOT partners, CGG, Frances Fortune of Search for Common Ground and Marie-Luise Schueller of Christian Aid for their comments. They would also like to thank Peter Muffu of Njala University and Marie-Luise Schueller of Christian Aid for their assistance in editing and proof reading the first and final drafts.1 The research was supported by Christian Aid, UK, with funding from Irish Aid MAPS. References Persons, Organizations and Communities Consulted 1. Thanks also to Renee Zandvliet , CGG intern, for editing and proof reading the first draft. 1 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone List of Acronyms Executive Summary AFRC: Armed Forces Revolutionary Council APC: All Peoples Congress BKM: Bureh-Kasseh-Makonteh Chiefdom CCFC: Central Chiefdom Finance Clerk CDC: Chiefdom Development Committee CDF: Civil Defense Forces CEDAW: Convention on the Elimination of Discrimination against Women CGG: Campaign for Good Governance CGRP: Chiefdom Governance Reform Programme CPI: Chiefdom Police Inspector CSO: Civil Society Organization DecSec: Decentralization Secretariat IDP: Internally Displaced Person IRCBP: Institutional Reform and Capacity Building Project LGA: Local Government Act MIALGRA: Ministry for Internal Affairs, Local Government & Rural Affairs NEC: National Electoral Commission NMJD: Network Movement for Justice and Development NGO: Non Governmental Organization NPRC: National Provisional Ruling Council MCSL: Methodist Church Sierra Leone ONS: Office of National Security PICOT: Partners in Conflict Transformation PC: Paramount Chief PMDC: People’s Movement for Democratic Change PPRC: Political Parties Registration Office RUF: Revolutionary United Front SLP: Sierra Leone Police SLPP: Sierra Leone People’s Party TA: Tribal Authorities TDC: Tonkolili District Council TRC: Truth and Reconciliation Commission UNDP: United Nations Development Programme VDC: Village Development Committee WDC: Ward Development Committee YKK: Yakemo Kpukumu Krim Why Reform the Chieftaincy system? Chieftaincy remains a key cultural and political institution in Sierra Leone. However, recent public consultations have revealed a general crisis of confidence in the system of governance through which chiefs exercise local authority. Many Sierra Leoneans, chiefs included, have acknowledged that the failings of the chieftaincy system were among the root causes of the recent civil war. Reform of the chieftaincy system is nevertheless faced with numerous obstacles, both institutional and political. The system was originally designed for the purpose of colonial “indirect rule” a regime under which chiefs were allowed to , rule over their subjects according to “native law and custom” with supervision from above. Many commentators, including the Sierra Leone Truth and Reconciliation Commission (TRC), argue that the control exerted by the colonial administration over chiefs had a negative impact on their relationship with their people. Chiefs served the central government first and foremost and often used their colonially wrought powers to exploit their people for private gain. It was Sierra Leone’s misfortune that post-colonial governments tended to use chiefs in exactly the same manner as their colonial predecessors: as instruments for maintaining political control over the countryside. Party-political rivalries, particularly the rivalry between the Sierra Leone Peoples Party (SLPP) and All Peoples Congress (APC), intensified this trend. Whichever party had the ascendency in a particular area relied on chiefs to mobilize the rural vote in its favour. When in power, both of the leading parties were inclined to speak publicly of chieftaincy as if it was a completely traditional system of governance that was above politics. But in practice, central government actively sought to control chiefs using laws inherited from the colonial era. Since the war, the resurgence of multi-party democracy has also seen the revival of party political co-option of chiefs. Some international donor agencies working in Sierra Leone have come to regard the obstacles facing chieftaincy reform as intractable and recommend starting afresh with more modern institutions of local government. However, chieftaincy is protected from abolition by the 1991 Constitution and, in spite of widespread anger and resentment towards chiefs’ authoritarian behaviour over the years, the vast majority of Sierra Leoneans still respect the institution of chieftaincy and want to see it continue. Clearly, the first step for meaningful reform of the chieftaincy system is to repair the relationship between chiefs and their people and to protect that relationship from political interference from above. Chiefs remain to be convinced that reform is in their best interests and many complain that “tradition” is sacrosanct. Yet many of the powers and functions attached to chieftaincy are demonstrably not traditional. Just as government is continually refining laws and policies to ensure that the state system is operating efficiently, serving the nation and moving with the times, so should the functions attached to chieftaincy be subjected to critical examination and reformed if need be. Indeed, the Government of Sierra Leone is even now passing laws that will have a significant impact on chiefdom governance. These laws include the Chieftaincy Act, 2009, the Local Courts Bill, 2008 and the Local Government Act, 2004. The latter Act is currently undergoing an internal government review. With this legislation in progress, there is every reason for chiefs to join a national discussion about the future of their institution. The fundamental challenge for chieftaincy reform is to make the institution relevant in Sierra Leone in the 21st century. Where institutions are out of step with the aspirations of the people, they risk losing the loyalty and respect of those that they are meant to serve. The case for reform is therefore not a case against tradition. It is rather a case for the continued relevance of chieftaincy in a country that yearns for better governance, fairer justice systems, socioeconomic development and greater accountability. Chieftaincy reform, we argue, cannot work unless it takes the voices of ordinary people fully into account. For that reason, it must address the following priority principles: 1. Accountability and Good Governance Ordinary people want to have greater say in the decision making process in the chiefdoms. They also want to see more democratic and transparent chieftaincy elections so that they can be confident that the winners are genuinely committed to the welfare and development of the communities they represent. 2. Justice and Human Rights Ordinary people want to have confidence that when they take a dispute to a chief or a case to the Local Court, they will receive justice irrespective of their age, gender or social status. 3. Taxation and Representation When ordinary people pay their taxes to local authorities, they want to see a tangible return in the form of services and development investment. 2 3 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Lessons from History The failings of an authoritarian model of Chieftaincy Several important lessons for chieftaincy reform can be found in history. First, colonial “indirect rule” helped to create an authoritarian model of chieftaincy that has arguably never been “traditional” Successive governments of Sierra . Leone have supported this model, believing oligarchy [i.e. rule by a small elite] to be necessary for the maintenance of law and order at the local level. This model overlooks the vital role that cooperation and consensus have always played in maintaining social order at the grassroots. Whenever governments have been faced with evidence that the authoritarian model of chieftaincy creates conflict, their habitual response has been to put the blame on the protestors. Yet if chiefs are going to return to their traditional communitarian role as the TRC Report recommends, the authoritarian model of chieftaincy will have to go. Central Government Interference in Chieftaincy Affairs Third, the British colonial authorities arrogated to themselves the task of supervising chiefdom governance, which meant that, in the final analysis, executive interpretations of “native law and custom” always enjoyed priority over the interpretations of chiefs and their people. Since native law and custom could not, by definition, be regulated directly by the statute, the colonial authorities effectively licensed themselves to intervene in chiefdom affairs whenever they saw it fit. National governments have carried on that tradition even in the post-civil war era. Clearly, legislative reforms aimed at making chiefdom governance more accountable, just, respecting of human rights and effective in delivering services and development inputs must also aim to protect chiefs and rural people from excessive and unaccountable central government interference in their affairs. Overlapping systems of local governance Second, Successive governments’ determination not to compromise “native law and custom” often meant that when reforms in chiefdom governance did take place, they lacked coherence and sustainability. For example, the “native administration” reforms of the 1930s sought to add local government functions to the governing councils of chiefdoms (Tribal Authorities) without any real consideration of whether these bodies had the capacity to manage these functions. Furthermore, taxpayer representatives were originally included in Tribal Authorities with the intention of making these bodies more democratic. Yet the expanded Tribal Authorities became too large to function effectively as decision-making forums and their key administrative functions were eventually transferred to self-recruiting Chiefdom Committees. Another approach was to introduce new institutions to satisfy social groups (e.g. miners and wage workers) who were demanding modern governance yet leave chiefdom institutions intact to serve communities of poor farmers. That policy created two overlapping systems of justice and the institutional separation of local revenue collection (chiefdoms) from service delivery (District Councils). Clearly, the primary objective of chieftaincy reform must be the creation of a fully integrated local government system. Talking About Chieftaincy in Sierra Leone Today The analysis continues with an examination of the views of different stakeholders on chieftaincy issues in present-day Sierra Leone. Accountability and Good Governance Issues Applying the principle of accountability to relations between chiefs and their subjects might appear problematic, given that a Paramount Chief’s primary claim to rule is his or her hereditary right. However, many rural people still consider chiefs to be bound by a moral contract with them and it is this contract that they want to see restored. Case studies of the Biriwa chieftaincy election of 2006 and the Bureh-Kasseh-Makonteh (BKM) chieftaincy election of 2002 illustrate chieftaincy’s current accountability crisis. In the Biriwa case, government officials revised the Chiefdom Councillor list without consulting the chiefdom people, accepted inflated tax assessments, made revisions to the List that clearly favoured one candidate and prioritized their own interpretation of local customs and traditions. When it refused to respond to local protests, bringing in armed security to ensure the completion of the election, local secret societies imposed ritual curfews on bush paths and the Court Barray, forcing the election to reconvene elsewhere. The Biriwa election also prompted a confrontation between the National Electoral Commission (NEC) and the Local Government Ministry, which eventually led to a controversial High Court ruling stating that chiefdom elections were not “public” elections and therefore outside NEC’s constitutional remit. In the BKM case, government officials also accepted inflated tax assessments, authorized a “ghost” chiefdom section and upheld a colonial-era rotational crowning agreement that had only been signed by one faction in the chiefdom. The first accountability issue emerging from these cases is that many chiefdom residents, youth and women in particular, are reduced to the role of bystanders at chieftaincy elections as ruling houses and their elite supporters struggle for ascendency. Second, insofar as they were designed to introduce taxpayer (and thus popular) representation to Chiefdom Councils, the old rules for allocating Chiefdom Councillors to localities on a ratio of one councillor for every 20 taxpayers have become a manifest failure. Many chiefs insist on appointing taxpayer representatives to Chiefdom Councils because it helps them to secure the support of community patrons and opinion formers and ensure that upwardly mobile chiefdom residents remain tied to the system of authority based on chieftaincy. Yet, the fundamental problem with this system of patronage is that it excludes youths, women and poorer chiefdom residents and often contradicts shared ideas of “community” that enable chiefs to maintain social order in the first place. Third, local factional rivalries would clearly not have such a disruptive effect on chiefdom governance if it were not for the excessive and unaccountable power government continues to hold over chieftaincy affairs. Chieftaincy politics remains focussed on winning the favour of central government rather than winning the support of the people. Justice and Human Rights Issues There are no explicit provisions in the general law about the local administration of justice by chiefs. The Local Courts Act, 1963, states that these Courts have primary jurisdiction to “hear and determine civil cases governed by customary law” and that it is an offence to any person to “exercise or attempt to exercise judicial powers” within their territorial jurisdiction. But since Section 176(3) of the Laws of Sierra Leone 1965 makes provision for the existence of the statutes and common law, Paramount Chiefs have retained a role as the final arbiters of justice in communities governed by customary law. The present system of justice therefore creates overlapping spheres of authority. In remote rural communities, chiefs represent by far the most accessible resolvers of disputes and dispensers of justice. Paramount Chiefs, Section Chiefs and Village Chiefs often hold informal courts where they adjudicate cases, levy fees, impose fines or other punishments. But they also adjudicate intracommunity disputes where little or no money is involved. Another feature of this community-based justice system is the strong moral pressure on individuals not to involve outsiders in disputes. Yet even in remote rural areas there are people who prefer to look beyond chiefs for justice: traders, teachers and others who, by virtue of their work, education and community of origin, prefer to bring cases before the Local Courts and Magistrate’s Courts. Community based justice only works effectively where there is a moral consensus. Unfortunately, there are many signs that this consensus has come under severe strain in rural Sierra Leone in recent years. Part of the problem is chiefs’ over-zealous enforcement of their subjects’ “community” obligations, especially unpaid labour. They also use their own judicial authority and the Local Courts to inflict punishments on community people who defy their authority. Another element of the problem is that many chiefs and Local Court functionaries have come to rely on the local justice system as a source of private income. The Case for Universal Adult Suffrage in Chieftaincy Elections Universal adult suffrage in chieftaincy elections could help to resolve chieftaincy’s current crisis of accountability. First, it would bring an end to politically motivated inflation of local tax assessments and fraudulent manipulation of Chiefdom Councillor lists. Second, since women are now expected to pay local tax under decentralization, the numbers of assessed taxpayers in all chiefdoms are already increasing substantially. If the old 1:20 ratio of Councillors to taxpayers is retained it will produce Chiefdom Councils that are too large to be able to meet and conduct business effectively in one place (e.g. a Court Barray). Third, it would place responsibility for managing chieftaincy elections firmly in the hands of the NEC and curtail abuse of the government’s colonially wrought power to arbitrate on matters of “customary law and usage” in chieftaincy elections. The whole point of universal adult suffrage in chieftaincy elections is to bring chiefs back in touch with the communities they represent, to give them a mandate to “stand firm and do something better for the people” as one rural youth put it. The idea that the public cannot be trusted to vote responsibly for their political leaders really should have no place in a modern democracy. Again, the argument comes back to the point that if all Sierra Leonean citizens have the right to vote for the President, there is no good reason why they should not vote for their chiefs. 4 5 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Ways Forward for Improving the Local Justice System First, it is very unlikely that corruption in the Local Courts and Chiefs’ judicial hearings will diminish until Local Court functionaries and chiefs cease to rely so heavily on fees and fines for private income. Providing adequate salaries for Local Court functionaries, Chiefdom Police and chiefs and a proper salary structure for all ranks of chief (i.e. Village Chiefs and Section Chiefs should receive proper salaries, not rebates on local tax collections) is essential. Second, the idea enshrined in the Chiefdom Councils Act (Cap.61 of the Laws of Sierra Leone, 1960), that chiefs should maintain order in their localities simply by exercising their authority as chiefs, is a throwback to colonial “indirect rule” and needs to be revised to reflect 21st century realities. The law should recognize that chiefs of all ranks play a key role in mediating problems and disputes at the community level, including disputes between community members and outside parties Third, the interface between customary law and state law needs to be better defined. Customary law in Sierra Leone must be restated. Restatement basically entails writing down laws and their usages in one document. This process is different from codification, which entails entrusting binding legal force to the laws so documented. Codifying customary law would freeze it and deny it the flexibility that is its defining characteristic. A restatement of customary laws and usages would improve all justice practitioners’ knowledge of these laws, and generate more informed understanding of the social context in which they are applicable. Taxation and Representation Issues The Relationship between Chiefdom Councils and District Councils The Local Government Act (LGA) of 2004 establishes the local councils as the highest authorities in their localities. The LGA reinstates an old system whereby the local councils claim a precept on revenues collected by the chiefdoms. It also confirms the original law and order functions of Chiefdom Councils as established by the Chiefdom Councils Act and Provinces Lands Act (Caps. 61 and 122 of the Laws of Sierra Leone, 1960). This division of functions has tended to place the chiefdoms and local councils in competition with one another. By far the most pressing problem arising here concerns the collection and usage of revenue. At present, local revenue collection remains the primary responsibility of poorly trained and infrequently remunerated Treasury Clerks and other chiefdom functionaries. Current problems between local councils and chiefdoms over revenue collection are illustrated by a case study from Tonkolili District. Since 2004, the rate of local tax in the District has increased considerably, and is now a significant source of revenue. Tonkolili District Council (TDC) is entitled to take a percentage of local taxes and revenues from market dues, but with so much money now becoming available, local Paramount Chiefs are arguing that the tax paid by communities should be reinvested in the development of those specific communities, not the district as the whole. In a public meeting held in November 2008, the TDC leadership revealed that one chiefdom administration had not paid anything into its bank account for two years, despite collecting taxes over that time. Furthermore, nobody in the district seemed to know where the 60% of local revenues due to the chiefdoms was going. Functionaries employed by chiefdom administrations (e.g. Chiefdom Police, Treasury Clerks, etc) claimed that they were not being paid and Treasury Clerks were frequently transferred from chiefdom to chiefdom and didn’t have up-to-date records. It eventually emerged that the Ministry for Internal Affairs, Local Government & Rural Affairs (MIALGRA) in Freetown was still controlling chiefdom financial accounts, summoning CCFCs and Treasury Clerks to the capital every year to assist in the preparation of budgets. Such practices contravene the clauses in the Local Government Act that establish district councils as the highest authorities in their localities with responsibility for approving the annual budgets of chiefdom administrations and overseeing the implementation of these budgets. A Provincial Secretary interviewed in January 2009 later revealed that revenue deposited in chiefdom administration banks accounts is often used as a “hospitality” slush fund for Minsters and other senior government figures when on visits to rural areas. He concluded by observing that central government will always side with the chiefs when they come into conflict with the local councils because a Paramount Chief can still deliver “40,000 votes” to a political party at election time. Ways Forward for Improving the Local Government System Clearly, the present division of functions between the local councils and the chiefdoms is untenable. The logical solution might be that local councils take over responsibility for collecting all revenues, but the political reality is that most rural Sierra Leoneans’ primary loyalty is to their chiefdoms and they would resist extending further powers to bureaucrats and functionaries whom they are already inclined to distrust. The only answer in the long term is that the chiefdoms become fully integrated into the local government system. Chiefdom Committees should take over the present functions of Ward Development Committees and the new generation of Village Development Committees (VDCs), which are more representative of the interests of women and youth than the hastily formed VDCs of the early post-war era, should also be formalized as the bottom tier of the integrated local government system. Strengths and Weaknesses of Recent Legislation Affecting Chieftaincy The Chieftaincy Act, 2009 The primary purpose of this Act is to set out procedures for electing Paramount Chiefs and Sub-Chiefs. The government’s initiative in making these elections a specific subject of legislation is to be applauded, as are the sections of the new Act that seek to give paramount chieftaincy elections greater protection from political interference from above. However, the Chieftaincy Act, 2009 clearly does not go far enough in terms of reforming the ills that have plagued the chieftaincy system in the past. In particular, the Act merely recapitulates existing guidelines for using Chiefdom Councils as Electoral Colleges in paramount chieftaincy elections. Section 4(3) of the Act states that fraudulent inflation of taxpayer lists is an offence. It also states that “irregularities” in the revision of the gazetted Chiefdom Councillors list shall not constitute grounds for invalidating an election. Here, the government is acknowledging, tacitly, that fraud is commonplace in the revision of Chiefdom Councillors lists. Yet it seems to be worried that if legal challenges to election results were permitted the whole Electoral College system could collapse. If the system requires such protection, there is something fundamentally wrong with it. Rather than seeking to protect the old system, the government should have set about reforming it. Furthermore, the Act is either deficient or inconsistent on several issues, both major and minor. The lack of clarity over the role of the NEC in paramount chieftaincy elections is a notable case in point. Section 4(4) of the Act states that: “The revision of the Chiefdom Councillors List shall be undertaken by the office of the Provincial Secretary in collaboration with the National Electoral Commission (NEC)”Are NEC officials going . to have access to the raw tax data in order to ensure that the list is compiled in accordance with the rules, or are they going to be asked to approve a list that has simply been updated to fill vacancies caused by recent deaths of Councillors? Finally, some sections of the Act continue to support excessive central government control over chieftaincy affairs. For example, the Act specifically states that Provincial Secretaries should preside over chieftaincy elections in their capacity as Declaration Officers and that government recognises the validity of an election based on Provincial Secretaries’ reports. In effect therefore, Provincial Secretaries are both managing elections and monitoring them on behalf of the government. It is not clear, however, who is monitoring their performance. The Local Courts Bill, 2008 and the Justice Sector Reform Strategy On paper, the Local Courts Bill, 2008 is a far more radical piece of legislation than the Chieftaincy Act, 2009. In essence, the Bill updates and expands upon the provisions of the Local Courts Act, 1963 and subsequent amendments. The radical feature of the Bill is to transfer the administration of the Local courts from the Ministry responsible for Local Government to the Ministry of Justice. The Chief Justice now appoints the Court Chairman and all other functionaries after consultation with the Judicial and Legal Service Commission, as established by Section 140 of the Constitution. The effect of the Local Courts Bill, 2008, is to separate the local law courts completely from chiefdom administration. For the first time in Sierra Leone’s history, the formal justice system has been placed under one institutional umbrella, breaking down old divisions created by colonial “indirect rule. ” The great advantage of this change is that a single authority will take overall responsibility for the appointment, training and terms and conditions of employment of all local law court functionaries. Answering to a clear chain of command will enable these functionaries to resist political leverage on their decision making. With court revenues paid directly into the government’s coffers and the government taking responsibility for functionaries’ salaries, both the opportunity and incentive for financial corruption in the local law courts should be greatly reduced. The Local Courts Bill represents a historic step forward in Sierra Leone’s system of governance, yet its enactment continues to be delayed. 6 7 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone The Local Government Act, 2004 The Local Government Act, 2004 is the oldest piece of legislation considered in this report and is already the subject of an internal governmental review. One of the main areas earmarked for review is the division of functions between the local councils and the chiefdoms. The root of the problem is the old idea, inherited from colonial “indirect rule, that the ” chiefdoms are responsible for law and order while the local councils are responsible for development. The Chieftaincy Act, 2009, is now emphasizing that Paramount Chiefs should serve as agents of development. If it achieves nothing else, the review of the 2004 Act should seek to ensure that chiefs become part of the local government system, not remain in competition with it. Chieftaincy and Decentralization in other African Countries: What Lessons for Sierra Leone? There have been close links between Sierra Leone and Ghana on policy relating to chieftaincy for many years. Many of the colonial laws on chieftaincy in Sierra Leone were adapted from existing laws enacted in Nigeria and Ghana (then Gold Coast). More recently, Ghanaian and Ugandan experts have advised the Sierra Leone Government on local government policy. One of the striking differences between Sierra Leone and Ghana and Uganda is that in these two countries, there is no separate sphere of chiefdom governance responsible for collecting tax and maintaining law and order. Both countries have a system of elected councils that extend from the district level right down to the village level. These councils are responsible for collecting all local revenues and helping to maintain national security. Chiefs have no formal role in them. Both the intent and effect of chieftaincy legislation in both countries is to place chiefs firmly within the realm of civil society. Chiefs in Ghana and Uganda continue to wield considerable influence in local and national affairs, but they do so in their capacity as leaders and representatives of particular communities. In Ghana, chiefs themselves often acknowledge that their formal exclusion from party politics ensures that their position as community leaders is not compromised. There are clear benefits to both chiefs and their people when chieftaincy remains a strictly civil institution. In Ghana in particular, there are regional and national Houses of Chiefs whose duties include advising any person or authority on matters relating to chieftaincy and undertaking the study, interpretation and codification of customary law. Another benefit of “civil” chieftaincy is that it can become a corporate foundation for community development. For example, the Kingdom of Buganda is registered as a development agency and has been able to secure funding from the Ugandan government and international NGOs. There are several lessons from these two countries here for chieftaincy reform in Sierra Leone. First, while the authors of this report are not recommending the removal of chiefs from the local government system in the foreseeable future, the experience of Ghana and Uganda emphasizes that, where chieftaincy is concerned, there is a trade off between formal political power and genuine community representation. Second, an institutionally integrated local government system is always going to be more efficient in delivering services and responding to local development needs than one in which functions are divided between separate and competing institutions. Third, when chieftaincy becomes a strictly civil institution, it is better placed to develop its own special sphere of governance and adapt to social and economic change. Fourth, freedom from political work on behalf of the central state also allows chiefs to take a lead in civil society organizations capable of attracting external development funding. D. All Chiefs Receive Salaries Chiefs of all ranks perform key roles in maintaining social order in rural areas (see recommendation G) and should receive government salaries for this work. They should not have to rely on community contributions to make up for time lost in securing their livelihoods and local taxes should pay for welfare services and development. Sub-Chiefs should receive graded salaries and the rebate on local tax collection should be abolished. I. Reform the Chiefdom Police The Chiefdom Police should be reformed into a rural auxiliary police force, trained by the SLP but with less stringent entry qualifications. The new force should serve the local councils as well as chiefdom authorities. J. Enact the Local Courts Bill, 2008 The Bill represents a key step in the reform of the chieftaincy system and the integration of chiefdom-level structures into the state system. It should be enacted without further delay. E. Reincorporate the National Council of Paramount Chiefs as a Body with Specific Constitutional Responsibilities The National Council of Paramount Chiefs should be renamed National Council of Chiefs and fully incorporated, based on the model of the Ghanaian House of Chiefs. The new body should be fully funded and work with the Law Reform Commission on the restatement of customary law, investigate land tenure reform in the Provinces and advise the Local Government Ministry and NEC on matters pertaining to rotational crowning agreements and ruling house eligibility in chieftaincy elections. K. Local Councils Take over Responsibility for all Local Revenue Collection District and Town Councils should become responsible for all revenue collection, which should now fund welfare services and development activity. L. Extend Statutory Recognition to the New Generation of VDCs Villages represent the bottom tier of local administration in rural areas and statutory recognition of these structures will pave the way for their incorporation into the local government system. Recommendations and Conclusions A. Introduce Universal Adult Suffrage in Paramount Chieftaincy Elections. This will ensure that elections are truly democratic and Paramount Chiefs are representative of all of their people. If people are allowed to elect their chiefs, chiefs will become accountable to the community, not to the brokers and manipulators who seek to control chieftaincy elections. Peace and security will therefore increase. F. Establish a Chieftaincy Commission This independent body will regulate chiefs’ salaries, develop a code of conduct for chieftaincy and investigate complaints against chiefs raised by citizens. The Chieftaincy Commission should have the power to recommend to the President that a Commission of Inquiry into the conduct of a Paramount Chief is necessary, but it must also be bound by law to forward evidence of illegal activity on the part of bureaucrats and private citizens to the relevant authorities. M. Replace Ward Development Committees with VDCs and Reformed Chiefdom Committees WDCs should be abolished and their functions returned to reformed Chiefdom Committees. The new Chiefdom Committee should comprise of the Paramount Chief (chairman), Speaker, Section Chiefs, Local Councillors representing wards wholly or partially located in the chiefdom and 5 men and 5 women elected by the people. Chiefdom Committees should become part of the local government system along with the VDCs and have development budgets approved by the District Council. Committee members should receive expenses for attending meetings. There is nothing in these recommendations that would represent a radical departure from local governance practices in other African countries that have chieftaincy systems. On the contrary, these recommendations would bring Sierra Leone more into line with the local governance systems now found in counties like Ghana and Uganda. B. The NEC Supervises Paramount Chieftaincy Elections Paramount Chieftaincy elections are public elections and should therefore be supervised by the NEC. This will allow the NEC to carry out its constitutional mandate and help to ensure that chieftaincy elections are free and fair and fully regulated by the law. A list of aspirants should be published well in advance of the election and their eligibility should only be investigated when it is the subject of a formal written challenge from a citizen of the chiefdom. Challenges should be heard by the Local Courts and the Declaration of Rights meeting should be abolished. G. Extend Legal Recognition to Chiefs’ Leading Role in Local Dispute Resolution This role should receive statutory recognition and should be the basis upon which chiefs receive salaries (see recommendation D). Clarifying this role will help to improve liaison between chiefs, the police services and the formal court system. Disputes over customary land rights are a special case and it is vital that these are properly recorded. Chiefs require support from government in formalizing these adjudications. H. Restate Customary Law A restatement of customary laws and usages would improve all justice practitioners’ knowledge of these laws, and generate more informed understanding of the social context in which they are applicable. This is work that should be done by the upgraded National Council of Chiefs in partnerships with Customary Law Officers and the Law Reform Commission. Restatement is not codification and the purpose of the exercise is to improve the performance of the justice system rather than transform customary law into written law. C. Incorporate the Chiefdom Committee as a Local Government Body The Chiefdom Committee, rather than the Chiefdom Council, should be recognized in law as the governing body of the chiefdom and its structure, roles and responsibilities must be redefined to reflect this (see recommendation M). The Chiefdom Council serves no useful function except as an instrument of patronage and should be abolished. 8 9 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Introduction: Why Reform the Chieftaincy system? Chieftaincy remains a key cultural and political institution in Sierra Leone. Formal government and business activity is concentrated in Freetown and the mining areas and two thirds of the population is scattered in small rural towns and farming communities. There are few civil authorities readily accessible to these rural communities other than chiefs. Even after the inception of decentralization in 2004, chiefs continue to represent the first point of contact with government for many Sierra Leoneans. Rural people still rely on chiefs to intercede on their behalf with central government in Freetown and government still uses chiefs to issue decrees to the people and to oversee development programmes in their localities. The prevalence of customary land tenure in the provinces also means that chiefs, especially those of paramount rank, still play a vital role in authorizing transfers of land ownership between community members and supervising land leases taken out by non-locals. Rural people still make a point of informing chiefs about their family affairs, often inviting them to witness the life-cycle ceremonies of family members (e.g. babies’ naming ceremonies, initiations and funerals). In rural areas, many births, marriages, deaths and property transfers remain unrecorded by the state. Chiefs’ capacity to “speak” for their subjects therefore remains, for many, a major source of social and economic security. Chiefs’ continuing importance in grassroots governance also derives from the African cultural idea that they are the living embodiments of the histories and traditions that bind local communities together. This idea did not disappear during the recent civil war. For example, a group of Internally Displaced Persons (IDPs) from Buya Romende Chiefdom in Port Loko District were interviewed in a camp in Port Loko town in November 2001. According to the manager of the camp (an employee of the Norwegian Refugee Council), the recently redeployed Sierra Leone Police had been extremely helpful in providing security for the camp and had established a temporary post there after some ex-combatants had been discovered harassing the IDPs. But when the IDP group was asked to pinpoint the changes that would give them confidence to return home they stated that “The Paramount Chief should return first”“The police are around for everyone, . ” they went on “but the Paramount Chief has been recognized by the government for our chiefdom alone. If he comes back, we will know that out ‘father’ has returned and we will go back” (Fanthorpe, 2001). But it is precisely because chiefs are still considered integral to the social fabric of communities that they are expected to govern in the community interest. If they deviate from this norm, putting their own private interests and/or those of outsiders ahead of their people, public dismay and anger is particularly intense. Community dialogue sessions facilitated by NGOs since the end of the civil war have revealed the extent to which chiefs’ governance has deviated from popular expectations in recent years. Time and again, participants in these sessions have claimed that chiefs, especially Paramount Chiefs, have been abusing their authority. For example, chiefs have stood accused of diverting external development support to their own families and political supporters rather than the most needy, entering into secret cartels with outside agencies (e.g. foreign firms) to exploit local resources behind the backs of their people, and using the Local Courts and informal judicial hearings to suppress criticism of their governance, seize property under disputed ownership for their own use and generate income from fines that are often grossly incommensurate with the offences committed.2 Reports also continue to circulate that chiefs and religious leaders (e.g. imams) at the village level are compelling people to work farms for them without pay under the pretext that this represents “communal labour”3 . Many Sierra Leoneans, chiefs included, now acknowledge that these abuses have been driving able bodied young people out of rural areas, and that during the civil war some of these exiles joined militia groups and targeted chiefs and their families in order to exact revenge. For example, Conciliation Resources facilitated a series of public workshops on governance in southern Sierra Leone at the end of the civil war. One of their field reports outlines rural youths’ views on the consequences of corrupt local justice: This is an age-old problem in the community and is one of the main factors underlying the war. These heavy fines cause deep-seated grudges as well [as] force young people to flee as they are unable to pay. The chiefs in the community are not paid [by the government]. Therefore, they find their living from conflict and the fines that it produces. Combining this practice with other malpractices that chiefs enjoy has made chiefs a target for victimisation by armed youth[s], as they themselves feel victimised by the authorities.4 A summary report on this consultancy exercise went on to observe that ‘many youth[s] joined the rebel war out of frustration to be able to [exact] revenge on the chiefdom[s] for all the bad governance that had been targeting them over the years’ (Conciliation Resources, 2000:3). Since the end of the war, Sierra Leone has seen a massive influx of foreign aid, aimed at rehabilitating state institutions and providing social and economic support to the Sierra Leonean people. Governments of Sierra Leone have strongly supported these international efforts, pledging to put the corruption and political oppression of the past behind them. To that end, they have overseen the return of multi-party democracy and a decentralization programme whose primary aim has been to “create a participatory local governance structure where people (including previously marginalized groups) can actively participate in the decision-making process at the local level. 5 Over the last ten years, Sierra Leoneans ” from all walks of life have become familiar with ideas about good governance, accountability, transparency, justice and human rights. Many of these ideas have now become part of the language of everyday politics and have helped stimulate what a recent World Bank report describes as a “remarkable upsurge in self-organized social activism” especially , among young people. This activism has taken the form of business cooperatives, community development groups, and occupational bodies like bike-riders and cassette sellers associations (Peeters, et al, 2009:11). Post-war reconstruction has impacted strongly on relations between government and people. The return of multi-party democracy has given many Sierra Leoneans renewed confidence that a popular verdict on the performance of governments can be expressed peacefully. Indeed, the Presidential and Parliamentary elections of 2007 marked only the second time in Sierra Leone’s history that an opposition party was voted into power and the first time that such an event did not prompt a military coup. Yet government is also constantly reminding people of their civic responsibilities, especially with regard to paying taxes. By law, all men over the age of 21 years are liable for local tax, but the government has recently decreed that all adult women are also liable. The local tax rate in many districts is ten times higher than it was before the decentralization programme started in 2004. Many people living in rural areas now take the view that if principles of good governance, democracy, accountability, transparency and justice are priorities for central government and decentralized councils, there is no good reason why they cannot also be applied to the chiefdoms. At stake here is not only the quality of local-level governance, but also Sierra Leone’s future peace and prosperity. Reform of the chieftaincy system is nevertheless faced with numerous obstacles, both institutional and political. Foremost among these obstacles is the durability of a species of patronage politics that exploits the legacy of colonial “indirect rule”As the Sierra Leone Truth and Reconciliation Commission . (TRC) notes in its final report, Sierra Leone’s chieftaincy system, like similar systems in other African colonies, was designed from the outset to operate on principles distinct from those of modern local government. In the early Sierra Leone Protectorate, large pre-colonial polities were often broken up into small colonial chiefdoms to facilitate the collection of government tax and chiefs were allowed to rule their localities only as long as they maintained law and order and fulfilled colonial demands for labour and taxes. The TRC goes on to argue that the control exerted by the colonial administration over chiefs changed the traditional relationship between chiefs and their people: The overhaul of the structure of Chieftaincy was to have grave implications on the ways in which traditional rulers related to their subjects and on the socio-political organization of the communities. The overbearing attitudes and behaviour imbibed by the Chiefs from their colonial masters led to their assuming new and overwhelming powers over their subjects. Some of these measures, such as the ability to impose fines or other punishments for errant behaviour, were retained long into the post-colonial period and permanently defined the negative perceptions of Chiefs among many of their subjects. Indeed, these negative perceptions carried over into the conflict in Sierra Leone in the 1990s as a partial explanation for the brutality of the treatment meted out to Chiefs and other figures of status or authority.6 After Independence, some African ex-colonies embarked upon ambitious programmes of political modernization that often had strong repercussions for chiefs. In Guinea for example, chiefs were seen as functionaries of a discredited colonial regime and there was widespread public support for President Sékou Touré’s campaign to abolish chieftaincy (Schmidt, 2005). In Ghana, the Kwame Nkrumah government made a determined attempt to democratize local government, eventually settling, after a bitter political battle, to alter the legal basis of chieftaincy (Rathbone, 2000). In Sierra Leone, however, national governments conserved an unreformed chieftaincy system. Party-political rivalries, particularly the growing rivalry between the Sierra Leone Peoples Party (SLPP) and All Peoples Congress (APC), saw chieftaincy become a political instrument. Whichever party had the ascendency in a particular area relied on chiefs to mobilize the rural vote in its favour. The 1965 Public Order Act empowered Paramount Chiefs to disallow public meetings if they considered them 2. For summaries of the testimonial evidence, see Conciliation Resources (2000); Fanthorpe, Jay and Kamara (2002); Archibald and Richards (2002); Fanthorpe (2003, 2004a); Manning, 2008. 3. Community Dialogue Session, Malenkay village, Tonkolili District, January 2009. 4. Conciliation Resources, Report on Bumpeh Chiefdom (Moyamba District) Consultation, 19th-20th January 2000, Paramount Chiefs Restoration Unit, Governance Reform Secretariat, Ministry of Presidential Affairs (PRU/GRS/MPA), Freetown. 5. World Bank, Project Appraisal Document on a Proposed Grant in the Amount of SDR 16.8 Million (USD 25.12 Million Equivalent) to the Government of Sierra Leone for an Institutional Reform and Capacity Building Project, Report No. 28315-SL, April 2004, P 27 . . 6. TRC Report, Vol.3a, paragraph 19. 11 10 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone detrimental to national security, public order, public safety or public morality. These powers were routinely abused to prevent opposition party activists from campaigning in party strongholds (Cartwright, 1970:138-81). Yet, if a Paramount Chief supported one party, members of rival ruling houses currently out of power would declare support for the other leading party in the hope that they would gain favours if there was a change of government (Tangri, 1978a). Such strategies ensured that chieftaincy politics would become interwoven with national electoral politics. Observing these developments, the political scientist Victor Minikin argued that in the first decade after independence, Sierra Leone underwent a relatively seamless transition from colonial indirect rule to the ‘indirect’ participation of the rural masses in modern democracy (Minikin, 1973). Chiefs who had the favour of the ruling party were given a virtually free rein to rule their localities as they saw fit. Many exploited their positions for private gain, often seeking to recoup the considerable outlay in bribes that had helped to secure their elections in the first place. Yet the real power always remained with the central regime. When in power, both of the leading parties were inclined to speak publicly of chieftaincy as if it was a completely traditional system of governance that was above politics. But in practice, central government actively sought to control chiefs using laws inherited from the colonial era. A prime case in point is section 25 of the Provinces Act (Cap.60 of the Laws of Sierra Leone, 1960), which authorizes the deposition of paramount chiefs on grounds of “subversive conduct” Siaka Stevens’ one-party . regime used this law extensively in the 1970s and ‘80s to control chiefs. Another clause in the unreformed Provinces Act states that both Paramount Chiefs and Chiefdom Councillors are elected according to “native law” subject to the approval , of the administrative officer presiding over their elections. It thus remained extremely difficult for ordinary citizens to challenge corrupt chieftaincy elections in the courts because the adjudication of customary law in respect of chieftaincy elections became the preserve of the Ministry responsible for Local Government. Even today, ordinary people seeking to challenge the results of paramount chieftaincy elections have few options available to them except petitioning central government. The government has no legal obligation to respond to such petitions even when they present prima facie evidence of corruption or procedural irregularity. In the 1970s and ‘80s, the chieftaincy system became locked into a downward spiral of exploitation and oppression. This poisonous legacy was emphasized in nationwide consultations on governance carried out by the Ministry of Local Government in partnership with UNDP in 1998. The report on these consultations notes that “the entire local government structure broke down” during the Stevens era and goes on to state that 12 …the Paramount Chiefs were reduced to mere agents of the Central Government. They had to tow [sic] the line or perish. Indeed, many, like Alikali Modu of Maforki, Bai Koblo Pathbana of Lunsar, Masimera and Kumkanda of Loko Masama, lost their thrones and in many areas, individuals loyal to the ruling party were imposed on the people even when they did not hail from recognized ruling houses.7 Since the war, chiefs themselves have acknowledged that their governance must improve and many have taken steps to re-establish harmonious relations with local youth. For example, PICOT-trained paralegals interviewed in Bumpeh Chiefdom in Bo district in December 2008 reported that youths are now being included in village and section meetings and that, as a result, many are now more inclined to carry on living and working in rural areas rather than join the exodus to the towns. In Masingbi in Tonkolili District, the Paramount Chief has recently donated start up money to a youth organization whose combined aims are to ensure that local youth activism is led by the genuinely young and that “communal labour” for public works is properly regulated and rewarded with “food for work”8 . Yet the post-war resurgence of multi-party democracy has also seen the revival of party political co-option of chiefs. For example, the United State’s State Department country report on human rights practices for Sierra Leone in 2006 noted several instances where Paramount Chiefs, supporting the then ruling SLPP harassed members and supporters of , the opposition APC and PMDC parties. Reported incidents include the Niawa Lenga Paramount Chief’s summary dismissal of a town chief for attending an APC party meeting, the Sorogbema Paramount Chief’s suspension of four of his section chiefs for attending a PMDC party meeting and a Paramount Chief’s ejection of a woman from a local microcredit scheme because she could not produce an SLPP party membership card.9 These problems have continued since the change of government in 2007 Many Paramount Chiefs . now declared their support for the APC party. After the July 2008 local government elections, the registrar of the Political Parties Registration Commission complained to the press that “Paramount Chiefs are forcing their people to support the APC government. 10 In one incident, the Paramount Chief ” of Sandor chiefdom threatened to remove several sub-chiefs if they allowed the female candidate contesting on behalf of the SLPP to win the District Council seat in their ward. He organized youth that disrupted campaign activities of the female SLPP candidate.11 The TRC made a strong recommendation that the co-option of chiefs by political parties must end: The Commission calls for the return of Chiefs to their traditional roles and functions. Their first and primary loyalty must be to their subjects, not to party political bosses. The Commission accordingly recommends the decoupling of Chiefs from party politics. Their legal responsibilities and authority should be closely examined to ensure that these accord with their traditional roles. This recommendation is made for the serious consideration of Government.12 Some international donor agencies working in Sierra Leone have come to regard the obstacles facing chieftaincy reform as intractable and recommend starting afresh with more modern institutions of local government.13 However, chieftaincy is protected from abolition by the 1991 Constitution and, in spite of widespread anger and resentment towards chiefs’ authoritarian behaviour over the years, the vast majority of Sierra Leoneans still respect the institution of chieftaincy and want to see it continue. That sentiment has remained steadfast even in chieftaincy’s darkest moments. For example, popular grievances against chiefs’ governance boiled over into civil disorder in southern Sierra Leone in the 1940s and in northern areas in the mid1950s. Some commentators consider these riots evidence of an incipient “class” conflict in rural areas (e.g. Kilson, 1966) and others suggest that they were a precursor of the recent civil war (e.g. Hanlon, 2004). However, the Commission of Inquiry into the northern riots found that while they had been provoked by some chiefs’ despotic behaviour, the institution of chieftaincy had not itself come under attack: All our inquiries have demonstrated the respect in which the office of chief – if not the office holder – is held. Witness after witness has said that if the chief is kind, the people will work for him...We find no evidence whatsoever that would support any contention that a unit of local administration other than a chiefdom should be adopted or is even possible. What is required is that the Paramount chiefs in particular keep out of party politics and devote themselves to their duties to their people...14 Similar conclusions were reached by the nationwide consultative process facilitated by UNDP in 1998: It was evident that throughout the country, the relationship between traditional rulers and their subjects had become strained over the years. Contributing factors as expressed include the open partisan affiliation and the manifestly unprogressive character of some chiefs. The cry for reform in aspects of the institution of chieftaincy was overwhelming. This was, however, tempered by the desire to see that the institution regained its former glory and respect and that chiefs are empowered to play their roles as vehicles of development and progress in their chiefdoms.15 Clearly therefore, the first step for meaningful reform of the chieftaincy system is to repair the relationship between chiefs and their people and to protect that relationship from political interference from above. Many chiefs oppose, on grounds of principle, state-led reforms of institutions they consider to be traditional. For example, in a recent interview with the Chairman and executive committee members of the National Council of Paramount Chiefs, the chiefs acknowledged that “confusion” in chiefdom governance was one of the causes of the recent civil war. Yet, they argued that chieftaincy is a cultural institution, a product of traditions that “stretch deep into the history of the country” Culture, they . went on, is the “whole self of the man and cannot be built with a new face. In their view, pressure for reform in the ” chieftaincy system comes from international development agencies and Sierra Leoneans should not be forced to import foreign governmental institutions “just because we don’t have money”16 Yet, many present-day problems in chiefdom . governance do not stem from the cultural institution of chieftaincy itself, but from the powers and functions that have been attached to it over the years by colonial and postcolonial governments. The fundamental point being made by the TRC Report is that many of these powers and functions are explicitly not traditional: they were attached to chieftaincy as a result of government policies that may no longer be relevant to present day Sierra Leone. Just as government is continually refining laws and policies to ensure that the state system is operating efficiently, serving the nation and moving with the times, so should the functions attached to chieftaincy be subjected to critical examination and reformed if need be. 7 Government of Sierra Leone and UNDP Nation-Wide Consultative . , Process (October – December 1998), Volume 1, Main Report, Freetown, January 1999, p.4. 8. Interview, Kunike Youth Development Organization, Masingbi, January 2009. 9. Country Report on Human Rights Practices, Sierra Leone, 2006, US State Department, online at http://www.state.gov/g/drl/rls/ hrrpt/2006/78756.htm 10. ‘PPRC Angry With SLPP APC’, Concord Times, Freetown, , 4 September 2008. 11. Partners in Conflict Transformation (PICOT), MAPS 11 Annual report, December 1st 2007 to November 30th 2008. 12. TRC Report, Vol. 2, paragraph 257 . 13. For an analysis of these arguments, see Fanthorpe (2006), Jackson (2007) and Sawyer (2008). 14. Government of Sierra Leone, Report of the Commission of Inquiry into Disturbances in the Provinces (November 1955 to March 1956) (London, 1956), p.150. 15. Nationwide Consultative Process, p.23-4 16. Interview with PC Bai Koblo Queen II of Masimera Chiefdom (Chairman, National Council of Paramount Chiefs), P Alhaji Issa .C. Kamara-Koroma, Gallinas Perri Chiefdom, Pujehun District, PC Amadu Kaikai, Kpanga Kabonde Chiefdom, Pujehun District, November 2008. 13 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 1. Legacies of “Indirect Rule”: Government Policy on Chieftaincy in the 20th Century Indeed, post-war reconstruction is still underway and the Sierra Leone government is starting to pass laws and implement sector-specific reform programmes that are clearly intended to define chieftaincy’s place in the local government system for many years to come. The process began with proposed amendments to Section 72 of the 1991 Constitution, which sought to add detail on the election of Paramount Chiefs, their powers and duties and the circumstance of their depositions/ removal.17 This initiative was taken further by the Chieftaincy Act, 2009, which is about to be enacted and represents the first time in Sierra Leone’s history that procedures for electing Paramount Chiefs and Sub-Chiefs have been detailed in law. The Local Courts Bill, 2008, also about to be enacted, places the Local Courts entirely under the supervision of the Judiciary (rather than the Ministry of Local Government and chiefdom administrations as previously). The new Bill is part of a package of reforms aimed at improving local justice, building the capacity of the Local Courts and Chiefdom Police, and improving oversight of the local justice system.18 Finally, the Local Government Act, 2004, has already provided for the re-establishment of elected local government in Sierra Leone, the devolution of central government functions to local councils, and the division of functions between local councils and chiefdom authorities. In essence, the 2004 Act revives the local government system Sierra Leone inherited at Independence: a two-tier system in which District and Town Councils are primarily responsible for managing public services and development and chiefdoms primarily responsible for maintaining law and order. The new councils take a “precept” from taxes collected by chiefdom authorities and oversee the chiefdoms’ administrative budgets. Five years on, the weaknesses of the original Act, particularly its provisions for the financing and staffing of the new councils and the divisions of functions between the decentralized councils and the chiefdoms, have prompted the government to undertake a comprehensive internal review of its provisions. This review, led by the Decentralisation Secretariat (DecSec) is not yet complete. Some Sierra Leonean commentators argue that chiefs tend to oppose reform within their sphere of governance out of an underlying fear that new legislation will only add to the power central government holds over them.19 But since new legislation is already appearing accompanied by very little public consultation, there is all the more reason for chiefs to join a national discussion about chieftaincy reform and to join civil society groups in encouraging government to listen to what community people are saying on the subject. This report identifies the reforms that will be needed if chieftaincy in Sierra Leone is to remain relevant in 21st century Sierra Leone. Chieftaincy reform, we argue, cannot work unless it takes the voices of ordinary people fully into account. For that reason, it must address the following priority principles: Accountability and Good Governance: Ordinary people want to have greater say in the decision-making process in the chiefdoms in order to ensure that decisions over the utilisation of local resources, the allocation of development inputs and the appointment of chiefdom functionaries (e.g. Treasury Clerks) are made in the community interest. They also want to see more democratic and transparent chieftaincy elections so that they can be confident that the winners are genuinely committed to the welfare of the communities they represent. Justice and Human Rights: Ordinary people want to have confidence that when they take a dispute to a chief or a case to the Customary Law Court, they will receive justice irrespective of their age, gender or social status. They also want to see an end to exploitative summonsing fees, administration fees and fines. Taxation and Representation: When ordinary people pay their taxes to local authorities, they want to see a return in the form of services and development investment. They want to be sure that their political representatives are managing resources responsibly. They also want to see chiefdom authorities and elected councillors cooperating effectively in bringing development to their localities. In making the case for specific reforms in the sphere of chieftaincy this report aims to stimulate a new national debate on the subject. Chapter 1 examines government policy on chieftaincy in the 20th century and the lessons it contains for any new programme of chieftaincy reform. Chapter 2 analyses the views of stakeholders in the chieftaincy system (i.e. government, chiefs, Civil Society Organizations (CSOs) and ordinary people) in context and highlights priority areas for reform. Chapter 3 examines the strengths and weaknesses of recent legislation affecting chiefdom governance in the light of these stakeholder views. Chapter 4 explores the lessons Sierra Leone can learn from chieftaincy reform and decentralization in Ghana and Uganda. Chapter 5 sets out the reforms that are now needed to secure the future of Sierra Leone’s chieftaincy system. 1.1 “Native Law and Custom” As the TRC report notes, the chieftaincy system operating in Sierra Leone today was originally designed to harness indigenous African authorities to British colonial rule. For the British, the attraction of ‘indirect rule’ in the Sierra Leone Protectorate was that it represented government on the cheap. If chiefs could be relied upon to maintain order in the countryside, a small corps of colonial administrators could serve in an oversight role and be spared the rigours, and costs, of governing rural areas directly. Central to the theory of “indirect rule” was that chiefs’ authority was established by “native law and custom”Within . the colonial state, the limits of this authority was established by distinguishing “natives” from “non-natives”; i.e. distinguishing subjects of chiefs from citizens of the state (cf. Mamdani, 1996). The original Native Courts, over which Paramount Chiefs presided, only had jurisdiction over “natives” (i.e. descendants of the indigenous African population of the Protectorate and neighbouring regions); Europeans and Krios (descendants of liberated slaves) from Sierra Leone Colony were considered “non-natives”In the provinces, they were served by courts . presided over by British District Commissioners. Customary law was nevertheless given primacy in respect of the Protectorate’s main economic asset: land. Under the terms of the original Protectorate Ordinance, as amended in 1897 all Protectorate , land was deemed inalienable to “non-natives” and the regulation of local land rights (excluding mineral rights) was left, by default, in the hands of chiefs. It was apparent very early in the colonial era that the distinction between “native” and “non-native” was particularly problematic in Sierra Leone: a region with a long history of indigenous African commerce, migration and cultural interaction. One British District Commissioner complained in a report of 1914 that the Native Courts of Paramount Chiefs were “flagrantly corrupt” and “exist purely and simply for the purpose of betting and for the extortion of outrageously high court fees from suitors of little influence and standing. He ” went on to note that many residents of the Protectorate who had set up their own businesses and who visited the Sierra Leone Colony regularly were refusing to obey summonses to chief’s courts. “ Although such persons are usually sharply dealt with” he went on, “there is really little ground for surprise that , a native who possesses intelligence and initiative, who sees justice properly administered in the District Commissioners’ Court, should revolt against the tribunal of his Chief.20 In spite of such misgivings, the British remained committed to the principle of “indirect rule” In the early colonial era, . chiefs’ powers over their subjects were bolstered rather than reduced. Domestic slavery was allowed to continue and chiefs’ right to tribute from their free subjects was guaranteed in law. A subject who disobeyed their chief’s “lawful orders” , or who left their chiefdom without first obtaining their chief’s permission, became liable to prosecution in the District Commissioners’ Courts.21 Yet the colonial authorities also reserved the right to depose Paramount Chiefs whom they considered guilty of maladministration. Indeed, officials on the ground never lost sight of the fact that “native law and custom” served colonial administrative ends and that their role as arbiters of “native affairs” was founded, in the final analysis, upon a monopoly of coercive force. As District Commissioner E.F Sayers argued in . his annual report for Koinadugu District for the year 1922: The Government took over things as they found them, under a regime in which might was right, and decided political boundaries accordingly. In some cases however, there remains the souvenir of a legitimist but weaker cause. The great advantage of the Government rule is its overwhelming force, which can impose that great boon, stability. In my opinion, what has been done should not be undone, but abuses carefully pruned away. To do this, it is necessary at one and the same time to respect the office of paramount chief, but to carefully scrutinize the conduct of the holder of this office, and where he proves unworthy, to punish him with exemplary severity, even to the extent of ruthless deposition and replacement.22 Successive governments of Sierra Leone, both colonial and independent, have never really moved beyond this way of thinking. Consequently, the contradictions of colonial “indirect rule” continue to plague local governance. On the one hand, the colonial authorities often spurned opportunities for implementing socially progressive reforms in chiefdom governance even when these had popular support. For example, when the Sierra Leone Protectorate was first established, the British authorities encouraged the principle of hereditary succession to paramount chieftaincy, which resulted in proliferation of local claims to “ruling house” status (Barrows, 1977:80-2). Yet, strict hereditary succession to chieftaincy represented a departure from pre-colonial tradition. Sierra Leonean historians who have studied this era report that pre-colonial chiefs often succeeded to office on the basis of their personal qualities and the services they were able to provide to local communities; not necessarily because they were descended from previous chiefs (Abraham, 1978:27480). By the 1920s, increasingly fraught competition between chiefdom ruling houses for the prize of paramount chieftaincy had prompted the colonial authorities to experiment with popular suffrage in paramount chieftaincy elections. 21. These measures were set out in the Protectorate Native Law Ordinance of 1905. 17 Government of Sierra Leone Report of the Commission to Review . the Constitution of Sierra Leone, 1991, January 2008 18. Government of Sierra Leone, Justice Sector Reform Strategy and Investment Plan, 2008-2010, March 2008 19. Interview, Ambrose James, Search For Common Ground, Freetown, December 2008. 14 20. Annual Report on the Railway District for the Year 1914 (Freetown, Government Printing Department, 1915). 22. Annual Report on the Northern Province for the Year 1922 (Freetown, Government Printing Department, 1922) 15 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Most of these experiments took place in the prosperous Southern Province, where the spread of modern education and wage employment was already beginning to foster more critical public attitudes towards chieftaincy. Under these experiments, British officials continued to meet with assessor chiefs and chiefdom elders to identify chieftaincy aspirants with the best hereditary credentials, but the final choice was put to a ballot of the chiefdom people. In some cases, this ballot was restricted to taxpayers (at that time, only family heads were registered for the house tax) but in others it was open to every resident of a chiefdom who attended the election meeting. Commenting on these experiments in 1926, one British official noted that: The four elections of Paramount Chiefs during the year have been presided over by The Commissioner, Southern Province, sitting with two assessor chiefs. Although bribery and corruption will creep in at these elections...one receives the definite impression this it is diminishing and that these democratic elections have rightly superseded the intrigues of an oligarchical nominating board sitting in camera. The preliminary conferences held between the assessor chiefs and the Tribal Authority, followed by an open election by houses [i.e. taxpayers], is the one method open to the least objection and is rapidly becoming recognized, appreciated and relied upon by the people themselves.23 Yet the experiment was soon dropped. It was disliked by chiefs and colonial officials, who feared that popular suffrage in chieftaincy elections would threaten the patriarchal social order they considered to be the foundation of “indirect rule” . One colonial official warned that the experiments were already providing young “upstarts” with opportunities to bribe their way into power and warned against any policy that seeks to “graft upon oligarchy [oligarchy = rule by a small elite group] principles taken directly from a highly developed democracy but without the safeguards that are essential for their safe working. 24 ” On the other hand, when the colonial authorities finally conceded that chiefdom governance needed to be reformed in order to keep pace with social and economic change in the Protectorate, its precise strategy was to attempt to graft new powers and functions onto chiefly oligarchies. A raft of legislation, beginning in the late 1920s, added new powers and functions to the governing councils of chiefdoms, then known as Tribal Authorities. For example, the 1927 Protectorate Land Ordinance assumed that all land in the provinces was “vested in Tribal Authorities” and set about defining the conditions under which external agencies (including the central state) could lease chiefdom land. The Concessions Ordinance of 1931 granted Tribal Authorities the power to alienate land, with government approval, in plots of up to 5,000 acres for 23. Annual Report on the Provincial Administration for the year 1926 (Freetown, Government Printing Department, 1927). 24. Annual Report on the Provincial Administration for the year 1925 (Freetown, Government Printing Department, 1926). 16 commercial cultivation. The Protectorate Ordinance of 1933 confirmed the Tribal Authority as the body that elects the paramount chief, although it was silent on the constitution of that body and the precise method for electing chiefs. The key elements of this legislative programme were the Native Administration ordinances, which were based on earlier reforms instituted in the Gold Coast (Ghana) and Nigeria.25 These ordinances, passed in 1937 granted tax authority to Tribal , Authorities, provided for the creation of chiefdom treasuries and charged Tribal Authorities with responsibility for drawing up annual administrative budgets. Chiefs and chiefdom functionaries were now to be paid salaries and obliged to waive all rights to tribute. According to the Tribal Authorities Ordinance, the primary duty of the Tribal Authority was “to maintain order and good government in the area over which its authority extends” and to “interpose for the purpose of preventing, and to the best of its ability to prevent, the commission of any offence” . It was the duty of native subjects ‘to do all that is reasonably necessary” to give effect to any lawful order issued by their chiefs. The Tribal Authority was also invested with powers to prevent disturbances of the peace, environmental damage (e.g. the pollution of water and the destruction of economic trees in bush fires) and the spread of infectious diseases. It was also empowered to compel chiefdom residents to register births and deaths and cultivate land in order to ensure an adequate supply of food. It was further empowered to pass bye-laws pertaining to: a) the setting aside of land in or near a settlement for development benefitting the community as a whole; b) public services and amenities (e.g. slaughterhouses) provided by the chiefdom authorities and fees in respect of these c) the construction, repair and demolition of buildings in the chiefdom; d) street and market trading in the chiefdom. 26 Remarkably, the new ordinances could not arrive at any more precise definition of the Tribal Authority than: “the Paramount Chief, the Chiefs, the councillors and men of note elected by the people according to native law and custom. ” Visible again here is the extreme reluctance of the colonial authorities to use statutory instruments to regulate institutions deemed to be governed by “native law and custom” whatever , new powers and functions were being attached to them. Some concession to democratic principles was in fact made by the inclusion of representatives of taxpayers on Tribal Authorities (using a 1:40 ratio of Tribal Authority to taxpayers), but this innovation was not itself a subject of legislation. Rather, it was left to colonial officials on the ground to ensure that ‘correct constitution’ of Tribal Authorities was achieved.27 25. Report by Mr. J.S. Fenton, O.B.E., District Commissioner, on a Visit to Nigeria and on the Application of Principles of Native Administration to the Protectorate of Sierra Leone (Freetown, Government Printing Department, 1935). 26. Tribal Authorities Ordinance, 1937 . 27 National Archives, London, CO267/679/2, H.R.R. Blood to Moyne, . 30 April 1941. While the idea behind chiefdom tax was that the people could invest in their own development, almost all of chiefdom revenue was, in practice, consumed by the salaries of chiefs and chiefdom functionaries. This was a common problem among “native administrations” in British colonial Africa (Kilson, 1966:24-33). In Sierra Leone, efforts to free up resources for development investment saw the amalgamation of several small chiefdoms. The 217 chiefdoms existing in 1937 were reduced to 148 by the time of independence in 1961.28 Some officials claimed at the time that chiefdom amalgamations were ‘restoring’ pre-colonial polities that had been broken up at the beginning of British rule to facilitate the collection of colonial tax, although no effort was made to re-survey chiefdom boundaries.29 The inadequacy of this reform programme became clear within a decade of its inception. Chiefs’ implementation of the “native administration” reforms was kept discretionary in order to retain their support for the programme and 63 out of 199 chiefdoms remained unreformed at the end of 1948. These delays compromised the local services Tribal Authorities were supposed to be managing, which by now included primary education and healthcare, agricultural extension and the construction and maintenance of local roads. The colonial government soon reached the conclusion that, despite numerous chiefdom amalgamations, these units were too small and inefficiently run to succeed in the role as service providers. New development investment was expected to come on stream after World War Two and the idea took hold that new institutions were required to manage it. District Councils, originally a forum for chiefs, had already been set up. Legislation passed in 1950 re-incorporated these councils as elected local government bodies whose primary duty was ‘to promote the development of the District and the welfare of its people with the funds at its disposal’.30 Furthermore, Local Tax Ordinance of 1954 provided for the replacement of the old government “house” tax with a unified poll tax levied on all male residents of a chiefdom at or over the apparent age of twenty-one years, plus any adult female carrying out a trade or business in the chiefdom. The Tribal Authorities retained primary responsibility for collecting this tax and other sources of local revenue (e.g. market dues and hawkers’ licences), but the District Councils also claimed a precept on revenues collected by the chiefdoms as part of their own operating budgets. Tribal Authorities also retained their primary functions in maintaining law and order, yet their capacity to perform even these functions was called into question by growing civil unrest in rural areas in the late 1940s. Giving up rights to tribute in favour of fixed salaries had represented a loss of income for many Paramount Chiefs and some were continuing to collect tribute even after they had agreed to institute the reform programme. These illegal demands provoked widespread rioting and other forms of civil disobedience. Young men featured prominently in these protests, which prompted the return of colonial anxieties that the old deference to chieftaincy and patriarchy was breaking down. The administrative report on the Sierra Leone Protectorate for the year 1947 comments on these riots as follows: From all provinces complaints have come that [Paramount Chiefs’] salaries are too low, but as long as the present excessive number of chiefdom units continue it is impossible to raise them appreciably with the result that there is always a temptation for Paramount Chiefs to recoup themselves by illicit means. Finding themselves unable to support the pomp and circumstance to which they feel themselves entitled, they are all too apt to see a ready way out of their difficulties in the imposition of illegal levies, the holding of surreptitious courts, or the use of forced labour. Whether from a sense of loyalty to the chiefdom, or from fear of the consequences, sufferers from such abuses are generally slow in coming forward with complaints until their grievances burst bounds and their disgruntlement becomes so widespread that only drastic action can cure the ill.31 The colonial government was therefore forced to return, yet again, to the question of making chiefdom governance more democratic. For example, the annual report on the Protectorate administration for 1948 notes that: [Tribal Authorities] form the judicial and legislative body of the chiefdom and are the only political expression of the will of the chiefdom. The oligarchic nature of this body has caused some misgiving and the importance of introducing younger and more educated elements into it has long been realized.32 28. The de-amalgamation of the Marampa and Masimera chiefdoms shortly before the recent civil war raised the number of chiefdoms in present day Sierra Leone to 149. 29. Report on the Sierra Leone Protectorate for the years 1949 and 1950 (Freetown, Government Printer, 1952), p. 14. 30. District Councils Ordinance, 1950, section 14. 31. Annual Report on the Sierra Leone Protectorate for the year 1947 (Freetown, Government Printer, 1948) 32. Annual Report on the Sierra Leone Protectorate for the year 1948 (Freetown, Government Printer, 1949) 17 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Responding to a confidential query from the Colonial Office in 1952, the Chief Commissioner for the Protectorate also observed that: ..age might almost be said to be a necessary qualification for membership of a Tribal Authority. Very few members are probably under 40 years of age, and the only satisfactory way of providing an opening for representatives of the more youthful part of the community, would seem to be some form of popular election. The question is one which requires a careful approach, and even when the outline of such a development has been agreed in principle, the arrangement and supervision of such elections would still present plenty of difficulties. Nevertheless it is in this direction that opinion is moving.33 Further outbreaks of rioting against chiefs in the Northern Province in the mid-1950s finally prompted government action. The Commission of Inquiry into these riots reported that not least among the difficulties confronting the police (recently deployed in the provinces) was the “existence in many areas of a state of affairs better described as a civil war rather than a disturbance” Echoing the above noted administrative report for . 1947 the Commissioners reported encountering: , … a degree of demoralisation among the people in their customary institutions and in their approach to the statutory duties with which they have been entrusted, which has shocked us. Dishonesty has become accepted as a normal ingredient of life to such an extent that no one has been concerned to fight it or even complain about it. The ordinary peasant or fisherman seems originally to have accepted a degree of corruption which was tolerable; at a later stage he has been cowed into accepting it; finally he has rebelled.34 The Commissioners recommended that Tribal Authorities should be replaced by smaller and more representative bodies, that chiefdoms should be allowed to deliver local services (e.g. primary education and healthcare) rather than making all social and development services the responsibility of District Councils and that the District Councils should only use their power of precept over local taxes for specific projects rather than their general operating budgets. These riots also highlighted the weakness of formal institutions for administering justice and maintaining law and order in the provinces. With chiefs controlling the local court system, the only non-violent option available to ordinary people seeking relief from injustices perpetrated by their chiefs was to take complaints to officials of the colonial government. Yet these officials still relied upon chiefs to keep order in the countryside and were thus predisposed to treat these complaints with scepticism (Barrows, 1971: 86-128). Justice sector reform was in fact taking place in the provinces at the time of the riots. The old District Commissioners’ Courts had begun to be replaced by Magistrates Courts in the 1930s and it had also become administrative policy to take Native Courts out of Paramount Chiefs’ personal control and to appoint Court Presidents to serve for limited terms. These Court Presidents were elected by Tribal Authorities, subject to the approval of the Provincial Commissioner. Uniformed police were deployed into the provinces for the first time in 1954, replacing the old Court Messenger service. Yet the old legal dualisms of “indirect rule” were still preserved in practice. The original government policy on the uniformed police was that Tribal Authorities should retain primary responsibility for maintaining law and order in rural areas and that the police should concentrate on the urban and mining areas where customary authority was weaker and “non-natives” most likely to congregate.35 In 1959, the chiefdoms went on to acquire their own dedicated police force, charged with responsibility for detecting crime, apprehending offenders, serving summonses and enforcing orders issued by the Chiefdom Council. Yet, the Chiefdom Police were never considered part of the national police service and received no formal training from them. Rather, they were trained at the District Offices and came under the supervision of District Watch Committees comprising of the District Officer (equivalent of the colonial District Commissioner) and representatives from the uniformed police and Chiefdom Councils in the district (Bondi 1976:65). Reforms directed specifically at Tribal Authorities in the wake of the riots were equally conservative. The Commission of Inquiry’s recommendations concerning the relationship between chiefdoms and District Councils were largely ignored. In 1956, however, a sub-committee of the recently Africanised Executive Council issued new instructions regarding the composition of Tribal Authorities (Box 1).36 The instructions also cover chieftaincy elections and state that only candidates descended from a ruling house may stand for election as paramount chiefs and that descent from a ruling house means descent in the male line from a Paramount Chief, or a full brother of a Paramount Chief, who has previously been recognized as a Paramount Chief of the same chiefdom. It is also stated that “where tradition or other circumstances make this advisable, permission may be sought from the Governor in Council to depart from this rule” . The Composition of Tribal Authorities (1956 Guidelines) 1. The New Tribal Authority List will consist of: a. The Paramount Chief, Acting Chief or Regent Chief, speakers, section chiefs and section speakers and any other customary officials who by virtue of their office are included in the present Tribal Authority list. b. The headmen of towns of 20 or more taxpayers. c. One representative for every twenty tax payers in any town additional to the first twenty. d. One representative of neighbouring villages of less than 20 tax payers where such villages agree to group into units of not less than twenty tax payers. 2. The appointment of representatives in paragraph 1(c) and 1(d) will be by vote of the taxpayers within the town or villages and the representative shall be a taxpayer in the village or group of villages which he is elected to represent. 3) In large towns, where sections are established under recognized heads responsible for the collection of tax within the section, each section will be regarded as a separate town for the purpose of electing representatives under paragraphs 1(b) and (c) above. 4) Villages of less than 20 taxpayers unable to group under paragraph 1(d) will lose their right of representation. Grouping may only take place within sections of a chiefdom. Source: Secret Policy File: EP/3/2 Election of Paramount Chiefs, Provincial Secretary’s Office, Kenema. Secretary, commenting on the late Chief’s recommendations in 1964, argued that taxpayers would constitute a large electorate and thus “introduce the danger of mob rule” in chieftaincy elections.37 The 1956 instructions were to govern procedure in chieftaincy elections for the next 40 years. They went on to serve as a basis for new guidelines broadcast (but again not passed into law) by the government of President Ahmad Tejan Kabbah in 2002. 1.2 Post-Colonial Patronage Politics and Legislative Stagnation The government’s cautious and somewhat secretive approach towards reforms in chiefdom governance in the second half of the 1950s was politically motivated. The Krio business and professional elite of the old Sierra Leone Colony had long considered themselves the group best equipped to govern an independent Sierra Leone. But when the old Colony and Protectorate where fully united under a single constitution in 1951, the balance of power shifted towards an emerging elite of Protectorate origin, many of whom were educated members of chiefly families. This new elite saw themselves as having a greater right to govern Sierra Leone than the Krios because they were the descendants of the country’s original African rulers. Uniting under the banner of the SLPP they took advantage , of the former Protectorate’s bigger population to win Sierra Leone’s first national elections in 1957 The new government, . led by Prime Minster (later Sir) Milton Margai, remained fiercely protective of chiefs’ interests, especially after Krio politicians started to win bye-elections in riot-torn provincial constituencies (Kilson, 1966: Cartwright, 1970; Clapham, 1982). This protective attitude was made clear in the government’s response to the report of the Commission of Inquiry into the 1955-56 riots. The government acknowledged that chiefs had to put their house in order and move with the times, but was more inclined to put the blame for the riots on the “unsettlement following upon the [Second World] war, the decline in moral standards in general and the undermining of respect for law and order following on widespread discoveries of diamonds and the economic consequences. These factors, ” the government claimed, had caused people in the south to “detest and resent as extortion and oppression practices which they had previously accepted as part of the custom and the rights of their Chiefs” People in the north, it went on, . had inculcated a similar attitude as a result of contact with southerners during seasonal labour migration.38 33. National Archives, London, CO554/242, secret report entitled Tribal Authorities, 29 July 1952. 34. Government of Sierra Leone, Report of the Commission of Inquiry into Disturbances in the Provinces (November 1955 to March 1956) (London, 1956). 18 35. Government of Sierra Leone, The Introduction of the Police Force into the Protectorate (Freetown, Government Printer, 1954). 36. The Sierra Leone government’s only surviving copy of the original instructions, dating from 1958, is currently stored in the Provincial Secretary’s Office in Kenema. Originally labelled a Secret Policy File, it has since been made accessible to researchers and consultants. Given the prevailing unrest in the provinces, these instructions were remarkably conservative and not obviously designed to “provide an opening for representatives of the more youthful part of the community. Amendments to ” CAP 61 of the Laws of Sierra Leone (1960), passed after Independence, established the legal status of elected Tribal Authority members representing taxpayers on a ratio of 1:20 and of Tribal Authority members appointed directly by central government. But the bulk of these instructions were treated as “policy” and not passed into law. One set of the original instructions survived the civil war in the Provincial Secretary’s Office in Kenema. It is included in a file containing extensive internal government correspondence on policy in relation to chieftaincy elections. One of these discussion documents is an essay written by Paramount Chief Kai Samba I of Nongowa chiefdom in the early 1950s. PC Kai Samba was renowned during his lifetime for his progressive political views. In his essay he strongly advocated the re-introduction of taxpayer suffrage in all chieftaincy elections, arguing that it was an essential instrument for fighting bribery and corruption. The government did not take up his suggestions. A Provincial 37 Memo, PS Southern Province to the Permanent Secretary, Ministry . of the Interior, Freetown, 22 September 1964. Secret Policy File: EP/3/2 Election of Paramount Chiefs, Provincial Secretary’s Office, Kenema. 38. Statement of the Sierra Leone Government on the Report of the Commission of Inquiry into Disturbances in the Protectorate (November 1955-March 1956), (Freetown, Government Printer, 1956). 19 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone It may not have been the Margai government’s original intention to use chieftaincy as an instrument of patronage politics, but the combination of the highly centralized state system bequeathed by the British, the persistence of rural underdevelopment and the rise of party politics, virtually guaranteed that outcome in the post-independence era. As patronage politics took hold, formal government policy on chiefdom affairs began to grind to a standstill and many colonial laws were simply left on the statute. For example, the 1927 Protectorate Land Ordinance and 1931 Concessions Ordinance were incorporated into the Laws of Sierra Leone (1960) as the Provinces Land Act (Cap 122) and Concessions Act (Cap 120). The 1933 Protectorate Ordinance and 1937 Tribal Authorities Ordinance were likewise incorporated as the Provinces Act (Cap 60) and Tribal Authorities Act (Cap 61). Among these laws, only the Tribal Authorities Act was amended after Independence. The bulk of these amendments, enacted in one package in 1964, changed the name of the chiefdom’s governing council from that of Tribal Authority to Chiefdom Council and provided for the formal recognition of the Chiefdom Committee as the executive arm of the Chiefdom Council. According to the amendments, the Chiefdom Committee membership comprised of the Paramount Chief (Chairman), senior Speaker (ViceChairman), the second Speaker (if any), two members from each District Council ward in the chiefdom elected by the chiefdom councillors, and a literate councillor nominated by the local government Minister. The original idea behind ward representatives had been to make elected District Councillors ex officio members of Chiefdom Committees, but this was watered down due to fears that councillors would interfere politically in chiefdom affairs (Kilson, 1966:220). Chiefdom Committees were originally formed on an ad hoc basis in the mid-1950s as the government had began to realize that (as the Commission of Inquiry into the 1955-56 riots had pointed out) including taxpayer representatives on Tribal Authorities often made these bodies too large to operate effectively as governing councils (Bondi, 1976:32). The primary functions of the Chiefdom Committee, according to the 1964 amendments, were: a) to prepare chiefdom budgets and inspect chiefdom accounts on a regular basis; b) negotiate contracts with external agencies; c) ensure the proper collection of local revenues; d) approve the appointment of chiefdom employees; e) devise chiefdom bye-laws for consideration by the chiefdom council; f) advise the chiefdom council generally on chiefdom affairs and perform any other duties as may be delegated to it by the Chiefdom Council. The Chiefdom Council remained the legally recognized governing body of a chiefdom, and continued to serve as an electoral college in paramount chieftaincy elections. Unfortunately, the establishment of unelected Chiefdom Committees clearly undermined what had been the primary rationale for introducing taxpayer representation on Tribal Authorities/Chiefdom Councils in the first place: i.e. greater public participation in chiefdom governance. The effect of this amendment, whatever its drafters may have intended, was to strengthen chiefly oligarchies (Viswasam, 1972:31). From the very beginning, most ward representatives on Chiefdom Committees were in fact Section Chiefs and they continued to sit on these committees after the abolition of the original District Councils in 1972. The amendments to the original Tribal Authorities Act represent the last major piece of legislation specifically focussing on chieftaincy prior to the drafting of the Chieftaincy Act of 2009. The trend towards increasing central government control over chiefdom affairs in the post-colonial era was also visible in the justice sector. The Local Courts Act, 1963, finally jettisoned the distinction between “native” and “nonnative” in the administration of justice by replacing the old Native Courts with Local Courts. The new courts retained complete jurisdiction over customary law cases but were also given the power to administer both civil and criminal law in certain cases (e.g. debt recovery, disputes over property ownership, petty larceny and assault) provided that the value of disputed proprieties and the magnitude of crimes (as measured by the punishments appropriate to them) fell below specified thresholds. The Local Courts now had jurisdiction over specific territories (usually chiefdoms or sections of chiefdoms) rather than categories of persons and their decisions could be appealed to the higher courts. Under the Act, Court Presidents and Vice-Presidents were formally appointed by the “Minister” responsible for the Local Courts on the recommendation of Chiefdom Councils. Lesser court functionaries (i.e. clerks and bailiffs) and Court Members (local elders serving as advisors to the Local Court in return for a nominal fee) were appointed directly by Chiefdom Councils. The exercise of judicial power within the primary jurisdiction of a Local Court was also outlawed. This provision effectively rendered chiefs’ exercise of judicial authority illegal, notwithstanding their unreformed statutory powers to prevent the commission of offences and to ensure, generally, that law and order prevailed in their chiefdoms. A government memo circulated to Provincial Secretaries in 1965 alleged that most Court Presidents were either close relatives of Paramount Chiefs, and thus biased towards chiefs’ interests in their judgements, or political rivals of Paramount Chiefs (i.e. members of rival Ruling Houses) intent on using their mandates as elected functionaries to challenge Paramount Chiefs’ authority (Barrows, 1971:144). Following this memo, authority to nominate Court Presidents (later known as Court Chairmen) was transferred from Chiefdom Councils to an ad hoc Local Court Service Commission (LCSC), comprising of the Judicial Advisor from the Ministry of Justice, the Provincial Secretary, the District Officer and the Paramount Chief of the chiefdom concerned. However, when Siaka Stevens’ APC regime came to power in 1968 it became commonplace for central government to appoint party activists as Local Court Chairmen, often with no regard to the literacy and residency qualifications attached to the position and contrary to the recommendations of the LCSC. The Stevens government’s interest in using the Local Courts as an instrument of political control was emphasised in an amendment to the Local Courts Act passed in 1974. This amendment clarified the definition of “Minister” in the original Act to mean the “Minister responsible for the Interior”: a security-orientated portfolio that included local government. One researcher working in Sierra Leone at the time reported that in the south in particular, APC supporters would usually take their cases to Local Courts run by APC-appointed Court Chairmen while SLPP supporters would usually take their cases to Paramount Chiefs (Barrows, 1971:145). As the central state began to unravel in the 1980s, responsibility to nominate Local Court Chairmen defaulted back to Paramount Chiefs, although the legislation remained unchanged. The fundamental problem with the 1963 Act and subsequent amendments was that it conserved the dualistic legal system Sierra Leone had inherited from colonial “indirect rule” (Maru, 2005). For example, the Act provided the Local Courts with jurisdiction over cases pertaining to the estates of deceased persons when these were governed by customary law (especially where chiefdom land was involved), but withdrew this jurisdiction when such cases were governed by modern law. In practice, matching a particular civil case to a particular system of law always depended on which authorities – i.e. Paramount Chiefs and Local Courts or Police and Magistrates’ Court – the case was brought to in the first instance. It remains commonplace today for plaintiffs and defendants to manoeuvre to have a case heard in whichever court they believe will offer the best chance of a favourable verdict. Wealthy, well-educated and politically well connected people have always enjoyed a considerable advantage in such “justice shopping” (Fanthorpe, 2001). The suppressive effects of legal dualism on rural Sierra Leoneans’ aspirations towards modernity and self-development are as apparent today as they were in the above-noted administrative report dating from 1914.39 39. See page 10, footnote 22. The trend towards centralized control over chiefdom governance continued further after the abolition of the District Councils. These bodies had been a success at first, but after a decade of operation they became severely hampered by financial constraints. Overseas development grants had come to an end in 1955 and government grants for capital development and road maintenance became increasingly unreliable. By the mid-1960s, many chiefdoms were regularly defaulting on their precepts. Cut backs in services and capital projects were unavoidable and some councils saw their functions taken over by central government. The councils were also undermined by patronage politics. Many councillors remained loyal to their chiefdoms of origin and competed to divert council resources to these localities. Party political supporters were also given preferential access to administrative jobs in the councils and external contracts. Prodigious unauthorized expenditure was a regular occurrence in all councils and repeated allegations of financial mismanagement prompted frequent suspensions of council business (Tangri, 1978b). In 1970, the Stevens government set up a Local Government Review Commission to analyse the local government system. The Committee’s main recommendations with regard to local structures were: a) both the Chiefdoms and District Councils should be retained but must be re-organized and improved; b) the Local Courts should come under the supervision of the Chief Justice; c) the Chiefdom Police should be gradually replaced by the state police; d) a Local Government Service Commission should be set up to control appointments; e) there should be a significant increase in local taxes as soon as there was a “climate of opinion” favourable to such increases (Bondi, 1976:7-8). However, the Stevens government chose to abolish the District Councils and ignored all the other recommendations.40 The law establishing the District Councils was formally suspended in January 1972. In a presidential address to parliament in June 1973, President Stevens stated that it was his “government’s intention to strengthen Chiefdom Administrations so that they will play a significant role in our economic, social, and political development”At that time, the government was giving serious . consideration to using the Chiefdom Police as the basis for a new internal security force. Many Chiefdom Police officers were deployed in their home areas and the government’s strategy was to take advantage of their local knowledge. Ultimately however, Stevens opted for a modern paramilitary force (Internal Security Unit, later renamed Special Security Division), trained by Cuban and Chinese expatriates and served by a vast network of local informers (Bondi, 1976:65-7). 40. In an interview in November 2005, the Director of Local Government in the Ministry of Local Government and Community Development stated that all copies of the final report of this Local Government Review Commission had been lost. 21 20 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone The Stevens government also commissioned a United Nations Development Programme (UNDP) study on chiefdom governance with a view to making chiefdom institutions fit for purpose as local government bodies and service providers. The report, which appeared in 1972, was scathing about the continuing dominance of policy inherited from colonial “indirect rule” in Sierra Leone. The basis of this critique was that the maintenance of law and order is really a central government function and one that the centre should support financially even when delegating it to the chiefdoms: The principle of using traditional authorities and customary law for the maintenance of social cohesion is unexceptionable. The difficulties however arose from the policy, quite unrelated to the above principle, that the traditional authorities must also maintain themselves out of local revenues. With the growing need of the rural communities for welfare services two options were open to the colonial government, either to set up a separate local body in the chiefdom and transfer to it the local revenue or to confer local government functions on the existing authorities and take over financial liability for the law and order function. Neither course was adopted. Instead local functions were imposed on the chiefdoms in addition to the law and order function and the local revenues proved to be quite insufficient to sustain both. The colonial government attempted to meet this problem by a system of local government grants which resulted in the illogical position whereby chiefdoms subsidised a central government function and the central government subsidised local government functions. The fact that the Chiefdom Council was incapable of functioning as a local body and that the Chiefdom Committee, left to itself, was equally ineffective appears to have been lost sight of. In any case, the Chiefdom Committee had neither the resources nor the organization necessary for a local authority. When the inevitable failure resulted, obsession with theory dictated the establishment of District Councils without sufficient consideration of whether the conditions necessary for the growth of a second tier of rural local government existed. The conferment of precepting powers on District Councils and the subsequent diversion of government’s attention away from the chiefdoms (so far as local government functions were concerned) led to the present degenerate state of chiefdom local government (Viswasam, 1972:41). The report went on to make four key recommendations for reforming chiefdom governance: a) the Chiefdom Committee, not the Chiefdom Council, should be recognized as the local authority of the chiefdom, with the Chiefdom Council serving only as an electoral college in paramount chieftaincy elections; b) the Chiefdom Committee should become a legally constituted local government body with clearly defined roles and responsibilities; c) most seats on the Chiefdom Committee should, in the course of time, become elective; d) central government should assume full financial responsibility for the chiefdoms’ law and order function, paying the salaries of Paramount chiefs, Chiefdom Police and Local Court functionaries (Viswasam, 1972:69-70). None of these recommendations were implemented. On the contrary, the Stevens regime set about the further strengthening of central government control over rural administration. A series of amendments to the law on local tax (notably the Chiefdom Treasuries Amendment Act of 1975) saw chiefdom finances placed under the full control of the District Offices. The rate of local tax was fixed nationally, and Chiefdom Committees could not instruct their Treasury Clerks to draw salaries and expenses from chiefdom bank accounts. Instead, Treasury Clerks were obliged to submit vouchers to the Central Chiefdom Finance Clerks (CCFCs), who were employees of central government working out of the District Offices. Under the new arrangements, the CCFCs controlled a Consolidated Revenue Fund for all chiefdoms in a district. In the mid-1970s, the Auditor General’s office issued a series of damning reports on the management of these accounts, but the auditing process itself had petered out by the end of that decade in a general climate of de-bureaucratization (Clapham, 1976). These changes effectively stripped away the last vestiges of local government and service functionality from the chiefdoms. In theory, Chiefdom Councils continued to employ numerous salaried functionaries, which included Local Court staff, Chiefdom Police, the Treasury Clerk, revenue collectors, sanitary inspectors, Traditional Birth Attendants and labourers. Many salaries of lesser functionaries were not sufficient to cover living costs and chiefdom work was often combined with farming or other sources of income. They nevertheless had a considerable symbolic value as rewards from “government” for public service. In the 1980s, as Sierra Leone’s economy declined and bureaucratic corruption became rife, salary payments to chiefdom functionaries became increasingly intermittent. Central government grants-in-aid to chiefdom administrations continued, but the funds that actually reached the chiefdoms were mainly used to settle arrears in Paramount Chiefs’ salaries. Many chiefdom functionaries, especially Chiefdom Police, left their posts during this era (Fanthorpe, 2001). Those that remained would often demand fees for their services from ordinary people in lieu of regular salaries (Fanthorpe 2004a, 2004b). Local Court staff also converted judicial fees and fines into private income (Conciliation Resources, 2000). Like the Margai government thirty years earlier, the Stevens’ government’s unwillingness to reform the chieftaincy system was driven by politics. Stevens had come to power pledging to introduce a ‘socialist pattern of society’ and thus a stronger state. Yet his main political strategy was to use the regulatory authority of the state as a coercive instrument, taking advantage of the heavy concentration of population and capital-generating activity in Freetown and the mining areas. By co-opting all branches of the executive, Stevens was able to distribute mining licenses, import-export licenses and government contracts as political favours. Laws and regulations were relaxed to favour political supporters, yet rigorously enforced whenever it was considered necessary to exclude rivals or punish dissent. For the most part, Stevens left local political factions to fight amongst themselves for the largesse his regime occasionally saw fit to distribute. Yet, the success of this ‘shadow state’ strategy also depended on the excluded masses remaining poor and politically divided and upon chieftaincy remaining an effective instrument for maintaining social order among these excluded populations (Clapham, 1982; Reno, 1995). As Sierra Leone descended towards civil war, the conservation of unreformed chieftaincy institutions seemed more and more like a cynical strategy for insulating the governing elite from popular accountability. By the time war broke out in 1991, what little formal administrative activity still taking place in the chiefdoms was directly controlled by central government. Senior District Officers and Provincial Secretaries continued to preside over paramount chieftaincy elections and revise Chiefdom Councillor lists every few years. Local tax continued to be paid, despite the fact that it yielded scant returns in the form of services. Indeed, most of the essential services (particularly health and primary education) accessible to rural people remained heavily dependent on the charity of foreign religious missions and development NGOs. Even so, there were other compelling reasons for local people to carry on paying tax. First, it helped to ensure that their home villages were represented on the Chiefdom Council and thus provided them with a chance of influencing the outcome of paramount chieftaincy elections. Second, rural travellers were frequently asked to produce their local tax receipts at police checkpoints on the main roads. These receipts consequently became markers of local citizenship (Ferme, 1998). 1.3 Lessons from History for a New Programme of Chieftaincy Reform The history of government policy towards chieftaincy in the 20th century contains some valuable lessons for a new programme of chieftaincy reform. First, successive governments of Sierra Leone, both colonial and post-colonial, have always supported an authoritarian model of chieftaincy, believing oligarchy to be necessary for the maintenance of law and order. This authoritarian model overlooks the vital role played by cooperation and consensus in maintaining social order at the grassroots. These attributes of traditional governance have been emphasized in numerous academic studies. For example, some academics have argued that cooperation is driven by the needs of economic survival in remote rural areas (e.g. Richards, 1986). Other commentators have focussed on cultural ideas that portray chiefs as pivots of community life, who should ideally know all of their people personally, be ready to supply wise advice when needed and use their skills in public speaking to “cool hearts” when disputes arise (e.g. Finnegan, 1963). One study has gone so far as to argue that conflict arises in rural communities when key decisions are made of the basis of technical-rational criteria – e.g. allocating development resources on the basis of population statistics and poverty assessments and choosing political leaders by means of modern, winner-takes-all elections – rather than the traditional modality of “hanging heads” and reaching decisions through consensus (Ferme, 1998). Whenever governments have been faced with evidence that the authoritarian model of chieftaincy creates conflict, their habitual response has been to put the blame on the protestors: e.g. the young “upstarts” allegedly exploiting a widened franchise in chieftaincy elections in the 1920s; the anti-chief rioters in the 1950s whose actions were allegedly a symptom of a “decline in moral standards” caused by the diamond mining boom; the fears of “mob rule” in the 1960s that precluded official consideration of full taxpayer suffrage in paramount chieftaincy elections. Governments have also promoted this conservative way of thinking for overtly political ends. For example, the government of Sir Milton Margai was desperate to circumvent a political alliance between the Freetown Krios and provincial anti-chief protestors, while the Stevens regime was keen to keep the rural masses beholden to chiefs while it stripped the nation of its assets. The recent civil war presents yet further evidence that the authoritarian model of chieftaincy creates conflict. The failings of chiefdom governance may not have been a direct cause of the war, but frequent attacks on chiefs and chiefdom buildings (especially Court Barrays and Treasury Clerks’ offices) are indicative of the depths of popular resentment towards chiefdom authorities that had built up in some areas. If chiefs are going to return to their traditional communitarian roles as the TRC Report recommends, the authoritarian model of chieftaincy will simply have to go. 22 23 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 2. Talking About Chieftaincy in Sierra Leone Today Second, successive governments’ determination not to compromise “native law and custom” often meant that when reforms did take place, they lacked coherence and sustainability. For example, the “native administration” reforms of the 1930s sought to add local government functions to Tribal Authorities without any real consideration of whether these bodies had the capacity to manage these functions. Furthermore, taxpayer representatives were originally included in Tribal Authorities with the intention of making these bodies more democratic. Yet the expanded Tribal Authorities became too large to function effectively as decision-making forums and their key administrative functions were eventually transferred to self-recruiting Chiefdom Committees. The original objective of introducing democratic principles in chiefdom governance was thus undermined. Another approach was to introduce new institutions to satisfy those social groups (e.g. miners and wage workers) that were now demanding modern governance yet leave chiefdom institutions intact to serve everyone else. That policy created two overlapping systems of justice and the institutional separation of local revenue collection (chiefdoms) from service delivery (District Councils). Furthermore, central governments have often, due to politics, ignored perfectly logical and reasonable recommendations for improving chiefdom-level governance. For example, proposals to introduce full taxpayer suffrage in paramount chieftaincy elections, and consultancy reports advocating for the incorporation of Chiefdom Committees as local government bodies, the introduction of an elective element to Chiefdom Committees and the integration of the Chiefdom Police into the national police service, have all fallen on deaf ears. Clearly, the primary objective of any future reform must be the creation of a fully integrated local government system. Here, the question should not be how local government can co-exist with traditional authority, but how the unique qualities of chieftaincy (e.g. championing community interests and resolving disputes) and can be put to best use in local government. Third, the British authorities arrogated to themselves the task of supervising chiefdom governance, which meant that, in the final analysis, colonial interpretations of “native law and custom” always enjoyed priority over the interpretations of chiefs and their people. Since “native law and custom” could not, by definition, be regulated directly by the statute, the colonial authorities effectively licensed themselves to intervene in chiefdom affairs whenever they saw fit. It was in this context that the Sierra Leonean historian Arthur Abraham argued that there was never a coherent colonial policy towards the chieftaincy system in Sierra Leone, merely a series of ad hoc administrative interventions (Abraham, 1978). The politicisation of chieftaincy in the post-colonial era saw successive governments, the Stevens regime in particular, revive the old colonial technique of controlling chieftaincy affairs by means of administrative fiat (i.e. orders issued from an office with executive or managerial authority under the guise of policy, without necessarily having the force of law). With the statute left largely unreformed, politically motivated interventions in chiefdom governance were thus kept insulated from legal and democratic challenge. Given the extent of government-led changes to chiefdom governance since the earliest colonial times, there can be little justification for opposing a presentday reform programme on the grounds that it contravenes “tradition” Clearly however, legislative reforms aimed at making . chiefdom governance more accountable, just, respecting of human rights and effective in delivering services and development inputs must also aim to protect chiefs and rural people from excessive and unaccountable central government interference in their affairs. Culture and customary law will still play an important role in rural life in the foreseeable future, but the notion that the chiefdoms represent a separate sphere of governance, regulated entirely by customary law, has no place in a modern state. Like colonial “indirect rule” it should be left , behind in history. Young woman voicing her concerns about the lack of popular participation in Paramount Chieftaincy Elections; MCSL Community Dialogue Session, Kailahun District The following analysis of the views of different stakeholders on chieftaincy issues in present-day Sierra Leone is organized according to the priority principles set out in the introduction: Accountability and Good Governance, Justice and Human Rights and Taxation and Representation. In recent years, senior members of the Sierra Leonean government have called the outputs of NGO-facilitated community consultations into question, expressing concerns that participants are merely responding to the promptings of foreign-trained facilitators.41 In order to answer these misgivings, outcomes of consultations and interviews are linked to a broader contextual analysis of post-war chieftaincy politics, illustrated with case studies. 2.1 Accountability and Good Governance 2.1.1 The Moral Contract between Chiefs and People Applying the principle of accountability to relations between chiefs and their subjects might appear problematic, given that Paramount Chiefs’ primary claim to rule is their hereditary right. However, many rural people still consider chiefs to be bound by a moral contract with them. During earlier fieldwork in 200203, one of the authors of this report asked several gatherings of chiefdom residents what attribute of chieftaincy was, in their view, the most important. The answer most frequently given was that “a chief knows a person’s right” (Fanthorpe, 2006). Many social and economic rights (especially rights to land) in 41. This view was strongly expressed by former Minster of Youth and Sports Dennis Bright in an interview with a DFID research mission in March 2003. rural areas remain unwritten and the point being made here was that people continue to rely on chiefs to authorize their rights, prevent outside agencies from infringing upon them, and resolve disputes over them. The other side of this moral contract is that chiefs are expected to commit themselves fully to the welfare of their communities and be involved in their day-to-day affairs. Unlike chiefs at the village level, Paramount Chiefs cannot possibly know all their subjects personally. Here however, the moral contract takes on a symbolic character. As members of Ruling Houses, Paramount Chiefs claim descent from precolonial rulers who authorized the original land and residence rights of the ancestors of present-day chiefdom people. In principle therefore, rights to chieftaincy are interlinked with subjects’ social and economic rights and chiefs’ are expected to respect subjects’ rights like their own. Another feature of that moral contract is that Paramount Chiefs are expected to serve as patrons of cultural activities in their chiefdoms, e.g. initiation ceremonies, funerals of Sub-Chiefs and other “bigmen” secret society masquerades and sacrifices to ancestral , and non-human spirits that are believed to protect the welfare of the chiefdom. There is more at stake here than mere adherence to “tradition” since these cultural activities also , serve to reproduce chiefdoms as political communities within a modern state still dominated by patronage politics. Public trust in elected politicians, bureaucrats and security services has still to recover from the rampant corruption of the pre-war years and the abject failure of the central authorities to protect civilians during the RUF war. 25 24 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Many rural people still consider Paramount Chiefs as the authorities most likely to champion the interests of their communities within government and to direct scarce services and development resources back home. In a village discussion group about a forthcoming chieftaincy election in Port Loko District in October 2002, a male participant observed that: A Paramount Chief has the right to stand firm and do something better for the people. We are expecting that our new chief will talk to the government for us. All messages from government come through the Paramount Chief. A Paramount Chief is the “people’s representative” in government. An elderly female participant responded to this observation by pointing out that: Our new chief should not be a chief that government imposes. If we have a Paramount Chief we can call our own, we will make any number of sacrifices to work for him. This moral contract also emerged strongly in a consultation exercise commissioned by the DFID-funded Chiefdom Governance Reform Programme (CGRP).42 For example, according to one workshop report, participants identified “service to their people” and “implementing the law for the benefit of the people” as chiefs’ main responsibilities. They also recommended that “politicians should keep their hands off local administration” In another workshop, participants . identified “protecting the chiefdom people from molestation and other inhumane treatment from the hands of police and other law enforcement agencies” as a leading responsibility for Paramount Chiefs, while in a third workshop, participants reported that a Paramount Chief must “love his/her subjects without fear or favour”“always protect the rights of citizens” , and “be honest in all dealings with the government authorities for the welfare of his/her people. In a fourth report, the ” facilitators observed that the Paramount Chief had been imposed on the chiefdom by the Stevens regime. They went on to note that it was a local custom to invite newly elected Paramount Chiefs to serve as patrons of local Wunde society initiations, which enabled them to collect ceremonial offerings thus recoup their election expenses. However, this Paramount Chief had never once been invited to serve as a Wunde patron during his twenty-five year rule.43 As this last example indicates, many of the cultural institutions that serve to integrate chiefdoms as political communities are fiercely protected from encroachment by the central state and other outside agencies. Illiterate farmers are well aware that government is dominated by highly educated people who know modern laws and bureaucratic procedures far better than they do. Since they can’t compete on these terms, they use their cultural resources as political weapons. As one Sierra Leonean NGO manager observed: “the one thing an illiterate man can use to fight back against corrupt politicians is his culture”44 Another group of NGO . fieldworkers made similar observations when discussing how difficult it remains to raise the topic of chieftaincy reform in some isolated villages. The Poro society, they noted, is still strongly involved in chieftaincy affairs in southern Sierra Leone and decides certain cases in the bush where no woman is allowed to enter. As one fieldworker observed, “these things they hold firm to their chests and we could not work in the chiefdoms if people thought we were coming to destroy them. 45 ” 2.1.2 Case Study: The Biriwa Chieftaincy Election Crisis of 2006 46 Central government interference in chieftaincy elections continues to provoke local outrage and the Biriwa chieftaincy election crisis of 2006 is a notable case in point. The majority of the chiefdom’s population are Limba speakers, but substantial numbers of “stranger” Mandingo and Fula also reside in the area. These two ethnic groups specialized, historically, in long distance trading and livestock herding and their populations are scattered widely throughout Sierra Leone and neighbouring countries. While many present-day Paramount Chiefs in Sierra Leone acknowledge Mandingo or Fula ancestry, there are no Mandingo or Fula chiefdoms as such. Biriwa contains Karina town, one of the oldest Mandingo settlements in rural Sierra Leone. Karina has its own section with seventeen large settlements. A second Mandingo section, Balandugu, has eight villages. The Limba speakers reside in the seven remaining sections, which have more than two hundred villages. However, by virtue of their trading speciality the Mandingo of Biriwa are in regular contact with fellow Mandingo living elsewhere in Sierra Leone and many of these people regard Karina town as an ancestral home. The Mandingo population with an interest in Biriwa chieftaincy politics is thus considerably larger than that which is normally resident in the chiefdom at any one time. 42. Between 1999 and 2001, the CGRP hosted workshops on chieftaincy issues in more than seventy chiefdoms in southern and central Sierra Leone. The project was original called the Paramount Chiefs Restoration Programme, but the name was changed in its second and final year of operation. 43. CGRP workshop reports for Kongbora Chiefdom, (May 2000), Valunya Chiefdom (July 2000), Malen Chiefdom (June 2000) and Gbo Chiefdom (May 2000). These workshop reports were originally stored in the Paramount Chiefs Restoration Unit, Governance Reform Secretariat at the Ministry of Presidential Affairs. This unit is now closed, but copies of the reports are still held by the Ministry of Internal Affairs, Local Government and Rural Affairs. 26 44. Interview, Victor Kalie Kamara, Community Action for Progress (CAP), Rokupr, November 2002. 45. Interview, NMJD fieldworkers, Bo, November 2008. 46. This case study is based on field research carried out by Richard Fanthorpe during numerous visits to Biriwa Chiefdom between April 2003 and February 2009. Bombali District has long been a heartland of APC support. Bumban, the historic Biriwa capital, is the hometown of two leading APC members: a former Minister who now sits on the party’s executive committee and the current party Treasurer. Kamabai, the present-day chiefdom capital, is the hometown of the APC Chairman of Bombali District Council and the birthplace of the mother of President Ernest Bai Koroma. While Limba speakers in Biriwa remained staunchly supportive of the APC when the civil war ended, the local Mandingo and Fula speakers did not. Both ethnic groups were frequent targets of the pre-war APC government’s “anti-stranger” drives in the diamond mining areas. After the war, the national leaderships of both groups declared support for the SLPP government of Ahmad Tejan Kabbah. Former President Kabbah is a Mandingo on his father’s side and had long been a supporter of the Sierra Leonean Mandingo community. In Biriwa, the paramount chieftaincy has rotated between the Limba ruling houses of Bumban and Kamabai since the early colonial era. In the 1950s, aspirants from Karina began to contest the Biriwa paramount chieftaincy, claiming that their ancestors had helped to protect the chiefdom from war during the pre-colonial era and that their ruling house was descended from a daughter of Suluku of Bumban, the famous late 19th century Biriwa Limba ruler. In a chieftaincy election held 1956, a Karina aspirant took advantage of a split in the vote between the Limba aspirants to poll the most votes, but the British District Commissioner eventually ruled that a Mandingo Paramount Chief was unacceptable in a Limba chiefdom and ordered the election to be re-run (Fanthorpe, 1998). The old rotational succession arrangement between Bumban and Kamabai ruling houses continued up to the civil war period. All factions in the chiefdom took advantage of the weak state of local bureaucracy in the aftermath of civil war to inflate taxpayer assessments in their localities (Box 2). The Biriwa chiefdom Treasury Clerk at that time lived in Makeni and his monthly travel allowance of 5,000 Leones did not cover even one return taxi fare from Makeni to Kamabai. When tax collection resumed in the chiefdom in 2002, he relied upon a network of personal contacts to deliver tax assessment forms and receipt books to chiefdom authorities as and when they travelled to the chiefdom.47 Documents obtained from the Treasury Clerk also indicated that the final assessment for Karina town included the names of 720 taxpayers who were not accounted for on the original assessment forms. With the local tax rate still set at the pre-war level of 500 Leones per person, there was little to deter chieftaincy factions from manipulating the local tax system for political gain. On this particular occasion, the Mandingo faction had seized an advantage over its Limba rivals. Inflated Tax Assessments, Biriwa Chiefdom Post-war tax assessment in Biriwa chiefdom began in 2002. The total number of tax payers assessed in the chiefdom in 2002 was 8,782 as compared to 4,263 in 1985, a rise of 106%. Yet, according to census data, the population of the chiefdom grew by a mere 8% between 1985 and 2004. Among the Limba, the greatest increases in recorded taxpayers were in the headquarters sections. Kamabai section recorded 596 taxpayers in 1985 and 1,125 in 2002, while the corresponding figures for Bumban section were 722 and 1,303. The Mandingo sections showed even larger increases. Balandugu section recorded 340 taxpayers in 1985 and 1.012 in 2002, while the corresponding figures for Karina section were 538 and 1,903. Furthermore, the revised Chiefdom Council list, based on the 2002 tax assessment, also allocated 130 Councillors to Karina section, although a 1:20 ratio of Councillors to taxpayers should only have produced 95. The Biriwa Paramount Chief (from the Kalawa ruling house of Bumban) died unexpectedly in 2003, but preparations to elect a new chief did not get underway until 2006. The updated Chiefdom Councillor lists soon became a major point of contention. Local tax had been assessed and collected in 2004 under new rules that required all adult women to pay local tax, but the Local Government Ministry insisted that an electoral college for the forthcoming election should be based on the flawed 2002 Chiefdom Councillor list. Furthermore, when the updated list was gazetted in March 2006, it omitted the names of 36 Limba ceremonial chiefs that had appeared on the original 2002 list. In Temne-speaking areas, chieftaincy is surrounded by considerable ceremony, led by numerous male and female titled officials. These “ceremonial chiefs” have long been included in Temne Chiefdom Councils and the predecessor of the late Biriwa Paramount Chief had introduced the idea into his own chiefdom. All of the Biriwa ceremonial chiefs were, of course, Limba-speaking nominees of the Paramount Chief. They had appeared on several gazetted Biriwa Chiefdom Councillor lists, but with an election pending the government decided to remove them. The Office of the President would later issue a statement claiming that this action represented a bid to “adhere to the norms that existed about chieftaincy during the colonial era” . Since there was no record of Limba ceremonial chiefs at Independence in 1961, the government had concluded that ceremonial chieftaincy could not be considered a “traditional” Limba institution. The statement also went on to note that accepting this development would have “opened a floodgate to the numerous ‘secret society’ members nationwide insisting on their inclusion on the councillors list by virtue of 47 Interview, Biriwa Chiefdom Treasury Clerk, Makeni, March 2003 . 27 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone the membership of their societies”48 The newly gazetted list . also added an extra 22 Chiefdom Councillors to Balandugu section, the government’s explanation being that these were representatives of Fula cattle herders who had only returned to the chiefdom after 2002. The local Limba-speakers were outraged by these developments. Officials of the Local Government Ministry did nothing illegal in modifying the Chiefdom Councillor list. Yet, as the local Limba saw it, the government had declared that their ceremonial chiefs were not in fact traditional authorities while upholding the rights of Fula herders whom they did not consider to be indigenes of the chiefdom. Furthermore, they believed that the Ministry had insisted on using the 2002 revision of the Chiefdom Councillor list for the forthcoming election in order to favour the SLPP-supporting Mandingos and Fulas. Indeed, the sole Mandingo aspirant in the election was a Freetown-based medical doctor and personal friend of President Kabbah, whose declaration that Karina town was his birthplace raised eyebrows even among neutral observers. Local Government officials made three attempts to complete the pre-election Declaration of Rights exercise (Box 3, page 33), in the early months of 2006, all of which were disrupted by violent arguments over the eligibility of Mandingos to stand for election to the Biriwa paramount chieftaincy and the right of Government to exclude Limba ceremonial chiefs from the Chiefdom Councillor list. Even though they still commanded a notional majority of 60 Chiefdom Councillors, the Limba aspirants and their supporting Councillors decided to boycott the election entirely and seek satisfaction for their grievances in the law courts. Tensions in the chiefdom escalated as it became clear that the government was determined to press ahead with the election even though the Mandingo aspirant was now the sole registered candidate. Reports began to circulate that the Limba Gbangbani society, which the strictly Muslim Mandingo and Fula rarely joined, was being used to impose ritual curfews on roads and paths in the chiefdom, so as to prevent the passage of Mandingos and Fulas across “Limba” land. An attempt was made to hold the election on 28 July 2006, in spite of the fact that a High Court Injunction restraining the Mandingo candidate from standing had been granted hours earlier. The Kamabai Court Barray was surrounded by police and soldiers, armed with live ammunition and tear gas. While vehement, possibly violent, protest from the local Limba had been anticipated, it took a form against which government agencies were completely unprepared. In Biriwa, as in most present-day chiefdoms, women’s leaders (Mammy Queens) are considered chiefdom authorities. Each of the chiefdom’s nine sections has a Mammy Queen with an overall leader currently residing in Kamabai. The head Mammy Queen, along with the Kamabai section Mammy Queen and the head of the women’s Bondo society for the chiefdom, were among the ceremonial chiefs omitted from the Chiefdom Councillor list in the 2006 update. In full view of the security forces and the Local Government officials and Chiefdom Councillors sitting in the Barray, the head Mammy Queen and her supporters surrounded the Barray and placed a Bondo curfew on it, forcing all the men out. Declaration of Rights Ever since colonial times, the first stage in any chieftaincy election has been an exercise known as the Declaration of Rights. Here, aspirants declare their hereditary claims to paramount chieftaincy at a special meeting of the Chiefdom Council chaired by the Provincial Secretary. The meeting begins with a roll call of Chiefdom Councillors, and if the list has not already been updated (e.g. to replace deceased Councillors) since the last official revision, changes will be agreed at this time. With the assistance of assessor Paramount Chiefs (who usually come from neighbouring chiefdoms), the Provincial Secretary seeks to ensure that that aspirants belong to ruling houses recognized by government, that government guidelines on the eligibility of candidates (e.g. candidates must belong to ruling houses through direct paternal lineage, they cannot previously have served as Acting Paramount Chiefs or Regent Chiefs and must not have any criminal convictions) are adhered to and that rotational succession pacts between ruling houses, if any, are honoured. The assembled Chiefdom Councillors are consulted regularly during this vetting process and it is they who make the final decision as to whether or not a particular aspirant should be accepted as a candidate in the election proper. Usually, a collective shout of approval or disapproval is enough to decide the matter, with a vote being taken only if the Council is split. In the past, the actual election of the Paramount Chief took place immediately after the completion of the Declaration of Rights, but the Local Government Ministry now tends leave a few weeks’ gap between the two events to ensure that all challenges and complaints can be fairly dealt with and that failed aspirants and their supporters do not disrupt election proceedings. One participant in this ritual explained later that the women had taken matters into their own hands in order to protect their men, since, as she put it, “soldiers shame to shoot women”49 . The head Mammy Queen also explained that she was the daughter of the Kamabai Paramount Chief who, in 1953, had built the Barray in the first place. As far as she was concerned, it was a symbol of Kamabai’s status as the chiefdom headquarters and she was not going to allow outsiders to appropriate it.50 Indeed, it was a source of great satisfaction to the local Limba that the women’s action had forced the Provincial Secretary to reconvene the election in a cramped market enclosure and that the formal recognition ceremony for the new Paramount Chief, led by the President in January 2007 was held in a school assembly hall. , Within days of the election, the leading Limba aspirant, already serving as the Senior Speaker of the chiefdom, underwent the traditional ceremonies of chiefly investiture in Bumban’s society bush. He was briefly detained by the police, concerned that he was trying to usurp the authority of the elected Paramount Chief. While he would in fact serve as the de facto chief of the local Limba, he adopted the title “Chairman of Biriwa Limba Customs and Secret Societies” . By using that title he made his political point clear, yet deflected any allegations of usurpation.51 The newly elected Paramount Chief, who took the name Paramount Chief Alimamy Moseray II, did not challenge his Limba rival, spending most of his time abroad or in Freetown. The return of an APC government in September 2007 made it a certainty that the 2006 Biriwa election result would be annulled and the election re-run. PC Alimamy Moseray was formally suspended in November 2008, and the re-run election was still pending as of September 2009. The Biriwa election also prompted a confrontation between the National Electoral Commission (NEC) and the Local Government Ministry. The NEC was granted an oversight role in paramount chieftaincy elections by the then AttorneyGeneral Solomon Berewa in 2002 and the commission went on to preside over more than 70 chieftaincy elections. However, during the Biriwa Chieftaincy election, the NEC called for a suspension of proceedings while the injunction against the Mandingo candidate was still in force and while local complaints over the updated Chiefdom Council list were still being investigated. The NEC was also concerned over the possibility of violence if the election went ahead before these issues were resolved. However, the Local Government Ministry ordered the NEC to hand over election materials if it wasn’t prepared to resume the proceedings. The NEC refused to comply with this order, citing its independence as established by Section 32 of the 1991 Constitution and its authority to conduct public elections under Section 33 of the same Constitution.52 In November 2006, a team of judges led by Chief Justice A.R.D. Renner-Thomas delivered a controversial ruling in the Supreme Court in response to an appeal action brought by the Limba ruling houses of Biriwa. He upheld an earlier High Court ruling that the eligibility of aspirants in chieftaincy elections was a matter of customary law, over which the courts had no jurisdiction. He also rejected the plaintiffs’ argument that the Biriwa chieftaincy election should be declared null and void because it was conducted in contravention of Section 33 of the 1991 Constitution. The Chief Justice ruled that paramount chieftaincy elections did not constitute public elections for which the NEC was expressly responsible because a) chieftaincy elections were not mentioned specifically in Section 33 of the Constitution and b) Section 72 of the 1991 Constitution establishes the supremacy of Parliament in making provisions for managing paramount chieftaincy elections. If legislators had intended for chieftaincy elections to be covered by the provisions of Section 33, the Chief Justice argued, they would have inserted an appropriate crossreference making that intent clear.53 2.1.3 Chieftaincy’s Crisis of Accountability The Biriwa case illustrates the importance many Sierra Leoneans still attach to the chiefdom as a source of political identification and belonging. But it is also indicative of a broader crisis of accountability that currently afflicts the chieftaincy system. Further examples from Biriwa and other chiefdoms illustrate the magnitude of this crisis. First, there is no question that the Limba speakers of Biriwa were united in opposing what they perceived to be central government manipulation of the 2006 chieftaincy election for partisan political ends. Yet, many residents of the chiefdom remained little more than onlookers upon an elite contest. On one side, the Supreme Court appeal was lodged by elite descendants of Kamabai living in Freetown and the petition that helped set in motion the annulment of the 2006 election result, and suspension of PC Alimamy Moseray II, was drafted by members of the APC party executive. Even the women who placed the ritual curfew on the Court Barray were wives and daughters of senior chiefs. On the other side, the Kabbah government seemed to treat all criticism of its handling of the election as a challenge to its sovereign authority, to be answered with force if need be. Yet, PC Alimamy Moseray’s 49. Interview, Isatu Pompoli, Section Mammy Queen, Bumban, May 2007 . 50. Interview, Regina Posseh Kalawa, Head Mammy Queen, Kamabai, May 2007 48. Government of Sierra Leone, Office of the President, Government Notice, Biriwa Paramount Chieftaincy Elections, 15 August, 2006 28 51. Interview, Chiefdom Speaker Alimany Alusine Seku Conteh, Kamabai, May 2007 52. Interview, Christiana Thorpe, NEC Commissioner, Freetown, May 2007 . 53. The full text of this ruling was published in several Freetown newspapers. 29 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone candidacy was merely the most recent among a series of attempts by members of the Freetown elite to make political capital out of Karina town’s historic status, and thereby enhance the national profile of a small yet economically powerful Mandingo community still struggling to shake off its “stranger” image.54 Had the choice of a new Paramount Chief been put to a popular vote in the chiefdom, the whole fiasco would have been avoided. Local youths’ frustration at their exclusion from chieftaincy elections came out vividly in a group discussion held in Kamabai in 2005. At that time, the youths’ main concern was the lack of opportunity for paid employment in the town. They were all born in the chiefdom and they were hoping that more development projects would come to their area to provide jobs. Yet they complained that when projects did come, chiefs and elders reserved many benefits for themselves and gave work to their “favourites”The fundamental problem, as they . saw it, was that youths had no means of holding chiefs and elders to account. In the old days, one youth observed, a person who could pay tax for twenty people automatically became a Chiefdom Councillor. But nowadays, “everyone pays tax for themselves and the Town Chief chooses the TAs”55 . The situation was no better in respect of chieftaincy elections. As another youth observed: Crownings [i.e. chieftaincy elections] do not involve youths. Elders meet to make a committee [i.e. Electoral College] and only TAs have the right to vote for the chief. Youths can support a person, but because they are not on the committee they don’t have the right [to vote]. The elders just say: ‘chieftaincy is not child’s play’. Sometimes the young men do not like a Paramount Chief but they have no power to influence the choice. Let the youths be involved in crownings.56 Male and female youths living in other parts of Sierra Leone have expressed the same frustrations. For example, in a community discussion group facilitated by MCSL in Kailahun District in March 2008, a youth participant observed that: We suffer from paramount chieftaincy elections because it is only the TAs that are involved and we, the youths, are excluded. It affects us because it is only the wishes of the TAs that are fulfilled and not the youths, yet the population of youths is far greater than the TAs. This can destroy our development because our voices are not heard. A female participant in the same group echoed these sentiments: The number of youths and women far outweighs the number of TAs. Therefore, since women and youths pay taxes, they should be accorded the right to vote for the Paramount Chief. It affects the women because we pay taxes as men do but why should we not be entitled to vote for the PC? The very survival of communities is at stake here. For example, another youth participant in the same MCSL -facilitated discussion group observed: The [chiefdom] authorities maltreat us at will and they often say that if you are not pleased with their rule, then you can willingly leave their chiefdoms. If a young person sees how risky it is, then he or she will already be preparing to leave. You can even find some villages that haven’t any young people in them because they have all left. To take another example, Kamabai served as an operational base for RUF groups in the final stages of the civil war and most of the youths who participated in discussions had been conscripted at one time or another as trainee combatants, labour gangers, load carriers and messengers. Local youths had observed RUF personnel closely and felt that their present situation was not so far removed from that which had prompted those people to go to war. As the chiefdom’s youth leader (Young Man’s Chief) observed, Sierra Leonean youth is living under political authorities that are “not transparent” , that have many “hidden agendas” and whose representatives are only interested in “self-development. Young people are ” therefore inclined to say to themselves: “if no development comes, I will look around and take what I want”“That way of . thinking” the youth leader concluded, “brings war”57 , . Village Discussion Group, Massahun, Bo District, December 2008 54. Other national politicians to claim descent from Karina include the late diamond magnate Jamil Said Mohamed and former Vice-President S.I. Koroma. See Koroma (1996:44). 55. In rural areas, Chiefdom Councillors are still known by the old colonial name “Tribal Authorities” often abbreviated to “TA” , . 56. Youth discussion Group, Kamabai, November 2005. 30 57 Youth discussion Group, Kamabai, November 2005 . A second session with the same group of youths took place in January 2008. On this occasion, the youths reported that their main concern, over and above the continuing lack of employment opportunities, was the absence of a Paramount Chief who could intercede with the government on their behalf to bring development to the chiefdom. It is easy to understand why the political imagination of these youths was still captured by the ideal of the communitarian chief. At that time, none of the three District Councillors representing wards in the chiefdom actually resided there and Parliament had only recently gone back to a constituency system after a decade during which parliamentary seats were allocated on a district basis. Yet it is the very commitment of rural people to this ideal that leaves them vulnerable to exploitation by unscrupulous elites. If that exploitation persists, it is only likely to provoke further conflict. Second, insofar as they were designed to introduce taxpayer (and thus popular) representation to Chiefdom Councils, the old guidelines (see Box 1, page 17) have been a manifest failure. The formula for electing councillors is fundamentally flawed. Take, for example, a hypothetical case where Village A has 55 taxpayers, including the Village Chief. Under the existing guidelines, the first 20 taxpayers qualify the Village Chief to sit on the Chiefdom Council, while the next 20 qualify the village to have an extra Councillor. The remaining 15 taxpayers are insufficient in number to qualify for a third Councillor, but if the guidelines are adhered to correctly, all the taxpayers in the village should vote to decide who shall serve as the extra Councillor and all are therefore represented. Yet if villages are small, they must organize themselves so that they can create “units” of twenty taxpayers. Thus for example, Villages B, C and D with a combined total of 15 taxpayers must seek out another small village to bring the group’s total to at least 20. Since the guidelines also allow for the division of a large settlement into separate “sections” for the purpose of electing Councillors, they have provided chiefdom authorities with a pretext for grouping all chiefdom taxpayers into notional “units” of 20 and allocating Councillors to them. This interpretation of the guidelines ensures that larger and politically important settlements can maximise their allocation of Councillors. In Village A for example, the final 15 taxpayers would be considered as an incipient “unit” thereby , allowing the village to claim a third Councillor. The additional five taxpayers completing this “unit” would be found by grouping it with taxpayers living in other villages. This interpretation also obviates the need for public elections of Councillors, since in theory a “unit” of 20 taxpayers is small enough to meet face to face to decide which of their number should become the Councillor. Such interpretations of the original guidelines are followed everywhere. As a result, the organization of taxpayers into notional “units” to qualify for Chiefdom Council representation has become little more than a game of numbers played by the authorities that manage the local tax system (i.e. the Chiefdom Committee, Treasury Clerk and CCFC) and authorize revisions of Chiefdom Councillor lists (Provincial Secretary and Local Government Ministry). Chiefs of all ranks are nevertheless inclined to defend the present system because it also answers to other priorities. Chiefs at the village and section level claim that they rely on Chiefdom Councillors to help them maintain law and order in their localities and therefore need to appoint responsible people. As one Section Chief in Bombali District noted: TAs must be appointed on the recommendation of their Section Chiefs. In my section, I won’t recommend you if I don’t know you to be a hard working person. Even the Paramount Chief cannot recommend anyone to be a TA in my section. A TA is a real citizen.58 A Village Chief made a similar point when contributing to a NMJDfacilitated village discussion group. At one stage he observed that: “TA means ‘chief’, as in Tribal Authority”He also noted that: . The TA is the person that pays the tax for the other 19 people. There are two TAs here in Massahun. Chiefdom authorities will scrutinize TAs to see if they are working in the interests of the people. If not, he or she will be changed automatically... Removing TAs will create more workload for Village Chiefs. A large village of 1,500 people would now have only one chief.59 It was clearly not the intent of the colonial architects of the Chiefdom Councils that taxpayer representatives should become an auxiliary class of chiefs, directly appointed by chiefdom authorities. Yet some chiefs insist that their method works best because it respects “tradition”According to one . Paramount Chief for example, the number twenty represents the indigenous (Mende) cultural concept of the “whole man” (ten fingers and ten toes). Each “unit” of twenty tax payers represented by a TA reflects, in his view, the traditional family structure with the “whole man” at the head.60 However, the days when most rural family heads were directly responsible for the day-to-day welfare of twenty fully fledged adults are long gone. In present-day Sierra Leone, people who have money are constantly under pressure from their family networks to provide them with support, but that is a different kind of relationship. Social and economic life in rural areas is never static. Young people move out in search of education and employment 58. Interview, Section Chief Yayah Conteh II, Bumban, December 2008. 59. Village Discussion Group, Massahun, Bo District, December 2008. 60. Interview with PC Bai Koblo Queen II of Masimera Chiefdom (Chairman, National Council of Paramount Chiefs), PC Alhaji Issa KamaraKoroma, Gallinas Perri Chiefdom, Pujehun District, PC Amadu Kaikai, Kpanga Kabonde Chiefdom, Pujehun District, November 2008. 31 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone while older people move in to take over the households and family lands of late relatives. Traders offering credit to farmers are active even in remote areas and locally born businessmen who support the rural poor fairly can sometimes rival chiefs as community figureheads. Many people that succeed in government or business also take a keen interest in their home communities, especially during national elections. Given this situation, it is easy to understand why chiefs insist on appointing taxpayer representatives to Chiefdom Councils. It helps them to secure the support of community patrons and opinion formers and ensure that upwardly mobile chiefdom residents remain tied in, in a more general sense, to the system of authority based on chieftaincy. For example, one of the authors of this report spent several months working with a Sierra Leonean NGO in Rokupr in Kambia District shortly after the civil war. The managers of this NGO were supplying relief inputs to their hometown on behalf of international agencies. When local tax resumed in 2002 the local Section Chief gave them a receipt book and asked them to pay tax on behalf of their workers. After doing so, both were invited to join the Chiefdom Council for a “fee” of 6,000 Leones each.61 Yet, the fundamental problem with this system of patronage is that it excludes youths, women and poorer chiefdom residents and often contradicts shared ideas of “community” that enable chiefs to maintain social order in the first place. In Rokupr for example, The Section Chief was notorious for demanding contributions from Chiefdom Councillors to cover his “expenses” and threatening to remove their names from the gazetted Councillor list if they refused to comply. He was equally notorious for distributing Chiefdom Councillorships to store keepers, boat operators, vehicle operators and government functionaries who were not indigenes of the chiefdom. In a discussion with town residents, many complained that these “strangers” answered only to the Section Chief and District Officer and that the Chiefdom Councillors representing them considered themselves to be local “chiefs” on an equal footing with indigene Councillors.62 A driver working for the above-mentioned NGO later described how he had been subjected to a “citizen’s arrest” by one of these “stranger” Councillors for failing to produce a local tax receipt on demand. He was released as soon as he managed to convince the Chiefdom Police that he had left the receipt at home, but the incident still rankled several months later. “I was born in this chiefdom”he complained, “and I told the man that I , know the very year, the month and the day that he first set foot here. Why should he have authority over me in this chiefdom?”63 61. Interview, Victor Kalie Kamara, CAP Rokupr, Kambia District, , December 2002 62. Discussion Group, Rokupr, Kambia District, October 2002. The same problem has been reported in diamond mining districts, another area where wealth is concentrated in the hands of non-indigenes. See Reno (1995:55-103) 63. Interview, Deltha Kamara, Driver, CAP Rokupr Kambia District, , October 2002. 32 In a village discussion group held in another part of the same chiefdom, a female Chiefdom Councillor who had recently seen her name deleted from the gazetted Chiefdom Councillor list made the following remarks: I paid local tax in this chiefdom for 23 years and because of my hard work I was made a Chiefdom Councillor. But now we seem to have a new system and my name has been removed from the list. If a candidate for the throne [i.e. paramount chieftaincy] comes, he pays the DO [i.e. District Officer] to remove councillors from the list and add those who support him. For now, Councillors are changed at will. A person up to the age of 18 can vote for the President, but they cannot vote for a Paramount Chief unless they are Councillors. If they demand to vote they are told they are not old enough! Elders are not willing to include the youths in chieftaincy business, but if they act dishonestly, the youths will expose it. The youths are not prepared to be used again as tools.64 Rural people are also demanding more representative Chiefdom Committees. For example, action points raised in the CGRP consultations included a) “the present Chiefdom Committee is not functioning well, as they are all old [and] lack initiatives for development”; 2) “Chiefdom Committee members should all be replaced and provisions made for representatives of women’s groups, CDF and youths”; 3) “The female councillors are not selected for the Chiefdom Committee. This has aroused feelings of neglect and low esteem among the women who know that it is unfair. 65 ” Again, the message from all these testimonies is that unless chiefs win back the respect of their people, and unless the people can be confident that Chiefdom Councils and Committees represent their interests, the community values that underpin the entire system of local governance at the chiefdom level will collapse. Third, local factional rivalries would clearly not have such a disruptive effect on chiefdom governance if it were not for the excessive and unaccountable power government continues to hold over chieftaincy affairs. Chieftaincy politics remains focussed on winning the favour of central government rather than winning the support of the people. The Biriwa chieftaincy election is only one among several recent chieftaincy elections to see government officials authorize inflated Chiefdom Councillor lists and make other questionable decisions. Another case in point is the chieftaincy election in BKM chiefdom in December 2002.66 The salient feature of this election was controversy over whether a rotational crowning agreement was in force. The small Makonteh chiefdom had amalgamated with Bureh in 1946 without a specific agreement on crowning being drawn up. Kasseh had joined in 1957 and its ruling houses subsequently demanded an agreement to rotate the chieftaincy. However, the three parties couldn’t agree as to which of them should have the first turn. In 1959, an exasperated British District Commissioner called a meeting in the Kasseh chiefdom headquarters and drew up a declaration reserving the next paramount chieftaincy for Kasseh. The declaration was signed by Kasseh chiefs, but the other ruling houses boycotted the meeting. The District Commissioner’s decree was not honoured, and ruling houses from the largest of the three ex-chiefdoms (Bureh) continued to win every subsequent chieftaincy election until 2002. The Contested BKM Chiefdom Councillor List of 2002 The 1998 revision of the BKM Chiefdom Councillor list showed that Bureh had 9 sections, 90 villages and 196 councillors, Makonteh had 3 sections, 40 villages and 87 councillors, and Kasseh had 5 sections, 70 villages, and 137 councillors. However, the October 2002 list, published in the Gazette, showed that Bureh had 259 councillors, Makonteh 153 councillors and Kasseh 355 councillors. Historically one of the Bureh chiefdom sections was comprised of the employees of a large Sierra Leone Produce Marketing Board (SLPMB) palm oil mill. The mill was destroyed during the civil war and this section was summarily deleted from Bureh in the revised Chiefdom Councillor list. A new “section” comprising of entirely fictitious villages, , was listed in the Gazette under Kasseh. The Bureh ruling houses petitioned the government over the revised list, pointing out further that several of the Councillors listed under Kasseh were well known local personalities (including a former APC Vice-President of Sierra Leone) who were long dead. This petition was ignored. Source: Field research, R. Fanthorpe In the run up to the December 2002 election, the Kasseh ruling houses’ campaign to win the paramount chieftaincy of the amalgamated chiefdom was led by a cabal of local traders (including the Regent Chief), backed by a high ranking civil servant and relative of a former Vice-President of Sierra Leone. The government did not respond to the Bureh ruling houses’ petition claiming that the gazetted Chiefdom Councillor list contained numerous frauds (Box 4). In the Declaration of Rights meeting, the Provincial Secretary ruled that the Kasseh declaration of 1959 represented a binding agreement and disallowed Bureh and Makonteh aspirants from standing. He promised to return in due course to arrange a new rotational succession agreement between all three ex-chiefdoms, but that promise was never kept. The Makonteh and Bureh Chiefdom Councillors took some measure of revenge by combined forces to defeat the candidate favoured by the civil servant and the Regent Chief. The winning candidate was a former CDF commander who was respected throughout the amalgamated chiefdom. At the Declaration of Rights, more might have been made of the fact that he had recently been “adopted” by a local ruling house for the purposes of fighting the election if the rival candidate supported by the civil servant had not also been “adopted” by another ruling house in exactly the same manner. The enduring legacy of colonial “indirect rule” is apparent in both the Biriwa and BKM cases. In the Supreme Court ruling on the Biriwa case, the Chief Justice specifically cited the provisions of Section 72 of the 1991 Constitution (i.e. that Paramount Chieftaincy is established by customary law and usage and that laws passed by Parliament governing the election and removal of Paramount Chiefs should not be inconsistent with custom), when arguing that customary law had priority over matters of ruling house eligibility and that decisions over the jurisdiction of the statute in chieftaincy matters were the prerogative of Parliament. Implicit in this ruling is the notion that Chieftaincy is an institution apart from normal political affairs and that many of the protections of citizens rights enshrined in the Constitution (including the rights of all citizens above the age of 18 to vote in public elections) do not apply to it. 64. Village discussion Groups, Gbonkomaria, Kambia District, October 2002. 65. CGRP workshop reports for Kpaka Chiefdom (May 2000), Imperri Chiefdom (June 2000) and Peje Chiefdom (June 2000). 66. This case study is based on field research carried out by Richard Fanthorpe between October and December 2002. 33 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone But if the Supreme Court restrains itself from adjudicating on matters of customary law, the Local Government Ministry has no such concerns. Prior to the Biriwa controversy, the Kabbah government had decreed that ruling houses established after Independence in 1961 were no longer to be recognized, arguing that it was necessary to uphold “traditional” ruling houses untainted by the manipulations of the Stevens regime in the 1970s and ‘80s. During the Biriwa controversy, the Local Government Minister argued that since the Karina Mandingo had contested elections in the 1950s, they must be considered a legitimate “ruling house” But he forgot to mention . that a British official had refused to recognize a winning Karina candidate as Paramount Chief because the colonial government had always considered Biriwa to be a “Limba” chiefdom. The Minister also referred to a treaty of friendship between the British and the Karina chiefs dating from the 1890s. While that treaty did indeed prove that chieftaincy in Karina has a pre-colonial pedigree it did not, contrary to the Minster’s claims, establish any connection between Karina and the chieftaincy of Biriwa.67 In the BKM case there was certainly justice in the Kasseh and Makonteh ruling houses’ claim that Bureh should not be allowed exclusive access to the paramount chieftaincy just because it had the most taxpayers. Yet the 1959 declaration on Kasseh’s right to fill the next chieftaincy vacancy, signed by Kasseh chiefs alone, represented very questionable grounds for barring Makonteh as well as Bureh ruling houses from contesting the 2002 election. In both cases, colonial officials’ ad hoc interventions in chieftaincy affairs provided their modern counterparts with precedents for equally arbitrary rulings on chieftaincy elections. Arbitrary government rulings on chieftaincy elections often engender strong feelings of anger and injustice in rural areas. People know when tricks are being played upon them. The public has access to gazetted Chiefdom Councillor lists via the Government Bookshop in Freetown and irregularities in gazetted Chiefdom Councillor lists are widely discussed. Old government records on colonial-era chieftaincy elections remain such valuable political commodities that they have also been copied extensively. After the destruction of government property during the civil war, some private citizens now hold more complete records on chiefdom histories than central government. Yet when the name of a former Vice-President everyone knows to be dead appears on a gazetted Chiefdom Councillor list, it is a political signal to all concerned that the lies and fabrication of the chieftaincy faction favoured by government have become the government’s “truth”With no satisfaction likely to be found in . the courts, all an aggrieved faction can do is petition the Local Government Minister and other senior government figures in the hope that it can induce a change of heart. 67 Government of Sierra Leone, Office of the President, . Government Notice, Biriwa Paramount Chieftaincy Elections, 15 August, 2006. The chieftaincy of Biriwa was the subject of a treaty originally drawn up in 1841. 34 Paramount Chiefs who benefit from fraudulent or otherwise unfair elections tend to alienate large numbers of their people even before taking up office. More accountable to the bureaucrats and politicians that arranged their election victories than the communities they are supposed to represent, they are susceptible to pressure from above to exploit their customary authority over land and other local resources for the benefit of their patrons. These are the very practices that the above-noted TRC report condemned as being among the root causes of the civil war. Clearly, the rights of chiefdom people must now be fully protected by the statute. The extension of that protection does not mean that chieftaincy is under threat of abolition. Rather, it means that a legal and constitutional distinction urgently needs to be established between chieftaincy as a traditional institution and institutions of governance at the chiefdom level, most of which ceased to be traditional long ago. Third, these changes would place responsibility for managing chieftaincy elections firmly in the hands of the NEC and curtail abuse of the government’s colonially wrought power to arbitrate on matters of “customary law and usage” in chieftaincy elections. If candidates were registered by the NEC ahead of an election, there would be no need for an old fashioned Declaration of Rights exercise in which the Provincial Secretary arrives in a motorcade and leads the process from a high table while the aspirants and councillors sit below him in the Court Barray (see photo). Early registration of candidates would provide time for any challenges to their hereditary rights claims to be thoroughly investigated and for the Provincial Secretary and Assessor Chiefs to supply a pre-election report on matters pertaining to rotational succession agreements and the ruling house legitimacy. Action Points on Chieftaincy Elections, CGRP Workshops, 1999-2000 1. The Councillors who vote for [the] Paramount Chief and Section Chiefs are not elected in accordance with the rules. People who are not eligible are included on the list of councillors by corrupt officials just to influence elections (Baoma Chiefdom, July 2000). 2. Instead of Councillors voting for chiefs, let all taxpayers within the chiefdom who are indigenes vote (Wunde Chiefdom, July 2000). 3. Only candidates with birthright for holding the chieftaincy should contest. The birthright question for each aspirant should be answered by chiefdom people not Central Government (Kamajei Chiefdom, June 2000). 4. The election of a Paramount Chief should no more be interfered with by the Government. Each contestant must come from a ruling house recognized by the people (Bendu Cha Chiefdom, June 2000). 5. A system should be devised to ensure “one man one vote” in chieftaincy elections (Mano Sakrim Chiefdom, June 2000) 6. The councillors who constitute the Electoral College for election of Paramount Chief of the chiefdom [should] be enlarged/broad based to include more youths and women (Mano Dasse Chiefdom, December 1999) 7 The people of Nomo agreed that the election of future . Paramount Chiefs should be by universal suffrage involving the people for the chiefdom (Nomo Chiefdom, July 2000) 8. According to the teachers, youths civil groups and CDF , the Paramount Chief should be from a ruling house and must be elected by every taxpayer of the chiefdom, not the TAs or Councillors alone (Nongowa Chiefdom, May 2000) 9. Election of Paramount Chief [should] be the business of all taxpayers since councillors do not represent the wishes of the 19 people they represent (Sorogbema Chiefdom September, 2000) 10. Chieftaincy elections must be conducted by an Electoral Commission, not by District Officers (Gallinhas Perri Chiefdom, June 2000) 2.1.4 The Case for Universal Adult Suffrage in Chieftaincy Elections As we have seen, introducing popular suffrage in chieftaincy elections has been mooted in Sierra Leone since the 1920s. Governments, both colonial and post-colonial, have long resisted this reform for ideological reasons and out of cynical political calculation. Yet universal adult suffrage in chieftaincy elections could help to resolve chieftaincy’s current crisis of accountability. First, it would bring an end to politically motivated inflation of local tax assessments and fraudulent manipulation of Chiefdom Councillor lists. Second, since women are now expected to pay local tax under decentralization, the numbers of assessed taxpayers in all chiefdoms are already increasing substantially. If the old 1:20 ratio of Councillors to taxpayers is retained it will produce Chiefdom Councils that are too large to be able to meet and conduct business effectively in one place (e.g. a Court Barray). The number of registered taxpayers in a chiefdom is now nearing the number of registered voters, the only differences being due to the respective ages of tax liability and voter eligibility (21 years for taxpayers and 18 years for voters). If the ages of tax liability and voter eligibility were harmonised in law, it would be easy to use the national electoral register as a basis for voter registration in chieftaincy elections, with additional safeguards (e.g. possession of local tax receipts) in place to ensure that voters are genuine residents of the chiefdom in which they are voting. Aspirants seated before the Provincial Secretary and Assessor Chiefs. Declaration of Rights, Kukuna, Bramaia Chiefdom, November 2002. There is no question that these measures would be popular at community level. Outcomes of village discussion groups and public workshops on desired reforms for chieftaincy elections have been consistent on this matter for several years. Compare for example, comments and recommendations emerging from the above-noted Chiefdom Governance Reform Programme (CGRP) consultations held shortly after the end of the civil war (Box 5) and those recently agreed in discussion groups facilitated by CGG, NMJD and MCSL (Box 6). The consistent message in these discussion groups and workshops is that ordinary people want to be able to vote for their Paramount Chief, just like they vote for District Councillors, Members of Parliament and the President. In rural areas, women, youths and other people who are not Chiefdom Councillors are expected to perform their civic duties in obeying the law, engaging in productive activities, paying taxes and performing communal labour. Consequently, they feel it is an injustice that they can’t vote for the authorities that still represent their first point of contact with government. If people did not have respect for the institution of chieftaincy, they would not feel so passionately on this issue. 35 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Action Points and Comments on Chieftaincy Elections: CGG, NMJD and MCSL facilitated discussion groups, 2008-2009 1. Since we are not allowed to vote for our PC, and he does not feel accountable to us, no development activities are taken forward that respond to our needs (Several groups, Kakua Chiefdom, June to August 2008). 2. The Electoral College System disenfranchises us as women and youths in the election of our local authorities (Fowaya, Peje Bongre Chiefdom, February 2009). 3. If people vote for their MPs and [District] Councillor and President, then why can’t they vote for their chiefs? (Several groups, Kakua chiefdom, October 2008). 4. We want NEC to be conducting chieftaincy elections (Segbwema, Njaluahun Chiefdom, March 2009). 5. Let the process [for electing Paramount Chiefs] be just like voting for the President. Let all chieftaincy aspirants start campaigning for votes like the Honourables [Members of Parliament]; let them go and meet people on their farms (Massahun, Kakua Chiefdom, December 2008). 6. If I reach 18 years and vote for the PC, the PC will respect me (Massahun, Kakua Chiefdom, December 2008). 7 All participants agreed that the chieftaincy election that . obtains now is unfair. The T/A system (Electoral College) is undemocratic and should be abolished (Kabala, Warra Warra Yagalla Chiefdom, May 2009). 8. The sole responsibility should be given to the NEC for the conduct of chieftaincy elections which is the body set up by law (Binkolo, Safroko chiefdom, May 2009). 9. ...all participants endorsed the position of CSOs that the election of Paramount Chiefs [should] be done through universal adult suffrage and that TAs should be abolished. However, they said that if it was impossible for every tax payer to vote then every 10th taxpayer should become a TA and those TAs should be democratically elected (Joru, Gaura Chiefdom, May 2009). 10. All the participants agree that chieftaincy elections should now be democratic wherein all taxpayers who have attained the age of 18 years and above should vote (universal adult suffrage). This was buttressed on the grounds that PCs/ Sub-Chiefs when elected have to govern everybody in the chiefdom and not just the few TAs who elect them (Koidu, Gbense Chiefdom, May 2009). There is, at present, little support for the idea of universal adult suffrage in chieftaincy elections among Paramount Chiefs. One Paramount Chief argued that the British monarchy had not changed for centuries, so why should the chieftaincy system? “Immediately you accept adult suffrage” he went on, , “the institution of chieftaincy starts breaking; the cracks have come”68 Another Paramount Chief remarked that: “universal suffrage in chieftaincy elections will not improve anything. Money will become the main factor in deciding the winners and they may not be the right people. An aspirant has to please as many people as possible and under universal suffrage only those with money will get elected. 69 A third Paramount Chief ” argued that the present structure of chiefdom governance can be made to work “if we are left alone to do our roles without outside political interference” But he also conceded . that the system for appointing TAs has “hiccoughs” and has been politicised such that “people put more names [i.e. inflate Councillor numbers] to get their supporters’ votes” He . concluded that “we are looking forward to a system that can reconstruct our governance and build its capacity”70 . It is understandable that Paramount Chiefs fear that conceding one major reform in chiefdom governance could open the door to a whole host of other reforms that could marginalize them from the political process completely. But since the statute already provides for the inclusion of taxpayer representatives on Chiefdom Councils, there are no justifiable grounds for arguing that universal adult suffrage in chieftaincy elections is wrong because it does not respect “tradition” . As we have seen, taxpayer representatives are regularly appointed by chiefdom authorities, and some chiefs have reinterpreted these representatives as traditional authorities. But these reinterpretations are a product of politics, not of law or democratic principle. The whole point of universal adult suffrage in chieftaincy elections is to bring chiefs back in touch with the communities they represent, to give them a mandate to “stand firm and do something better for the people” as one youth informant , put it. The argument that universal adult suffrage in chieftaincy elections would only ensure that the richest candidate always wins, regardless of hereditary right, is remarkable given the amount of bribery that currently goes on in chieftaincy elections. Indeed, the Kabbah government specifically outlawed the practice of “camping” Chiefdom Councillors at chieftaincy elections (i.e. corralling them for the purpose of bribery and coercion) in an effort to combat this problem. The Paramount Chief who raised this argument went on to note 68. Interview with PC Bai Koblo Queen II of Masimera Chiefdom (Chairman, National Council of Paramount Chiefs); P Alhaji Issa .C. Kamara-Koroma, Gallinas Perri Chiefdom, Pujehun District; PC Amadu Kaikai, Kpanga Kabonde Chiefdom, Pujehun District, November 2008. 69. Interview, Paramount Chief Thomas Kposowa, Bumpeh Ngao Chiefdom, November 2008. 70. Interview, Paramount Chief Bai Sunthuba Osara III, Gbonkolenken Chiefdom, December 2008. how, during his election campaign, some poor farmers had rubbed their hands with glee in anticipation of the largesse he and other aspirants would be obliged to distribute. Another Paramount Chief, interviewed in 2005, was perhaps being more honest over the issue when he observed that, under universal adult suffrage, there would be too many people for him to bribe to be sure of getting elected.71 As the chief’s admission implies, widening the suffrage in chieftaincy elections could serve to combat bribery and corruption rather than increase it. This was certainly the view of participants in one of the above-noted Chiefdom Governance Reform Programme workshops. As the workshop report noted: The people are strongly advocating that PCs be elected by all taxpayers. They argue that Councillors who vote for PCs do not adequately represent the interest of the people. It would be easy to manipulate a few people but not the majority.72 A further point often made by Paramount Chiefs is that if everyone is allowed to vote in chieftaincy elections, local residents would call relatives from Freetown and Kono to come and vote, and the result would therefore be decided by people not genuinely committed to the welfare of the chiefdom. A bureaucrat, interviewed in 2002, expressed a similar view when claiming that, under universal adult suffrage, “the street boys in Bo would elect one of their own as Paramount Chief, ” apparently assuming that ruling houses would be abolished too. There are echoes here of the arguments put forward by British colonial officials in the 1920s to oppose a wider suffrage in chieftaincy elections: that “native” Sierra Leoneans were not yet ready for democracy and that a wider suffrage would only benefit young “upstarts” who were only interested in becoming chiefs to make money. These arguments were tendentious even then, and the idea that the public cannot be trusted to vote responsibly for their political leaders really should have no place in a modern democracy. Again, the argument comes back to the point that if all Sierra Leonean citizens have the right to vote for the President, there is no good reason why they should not be able to vote for their chiefs. 2.2 Justice and Human Rights 2.2.1 Overlapping Spheres of Justice As we saw in Chapter 1, the primary responsibility of Chiefdom Councils under the Chiefdom Councils Act (Cap 61 of the Laws of Sierra Lone, 1960) is to “maintain order and good government” in their chiefdoms and do everything within their reasonable power to prevent the commission of offenses. However, the Local Courts Act, 1963, states explicitly that Local Courts have primary jurisdiction to “hear and determine civil cases governed by customary law” and 71. Interview, Paramount Chief Bai Sebora Kasanga II, Makeni, October 2005. 72. CGRP workshop, Badjia Chiefdom, June 2000 that it is an offence to any person to “exercise or attempt to exercise judicial powers” within their territorial jurisdiction. Since the Local Courts are limited as to the civil and criminal cases upon which they can adjudicate, their jurisdiction is effectively subordinate to that of the Magistrate’s Courts and higher courts. Where written law and customary law come into conflict, written law is supposed to prevail. Cases heard in a Local Court can be referred to a higher court and decisions can also be appealed to a District Appeal Court, presided over by a Magistrate assisted by customary law assessors. Each Province has a Customary Law Officer who advises on referral and assessment matters. The appointment of party political activists as Local Court Chairmen, noted in Chapter 1, ended with the demise of the pre-war APC regime. In recent years, Paramount Chiefs have been in the habit of appointing Local Court Chairmen, expecting endorsement of their decisions by the Local Government Ministry. Legally speaking, the situation metamorphosed into a fiduciary relationship, in which the Minister became the principal, and the Paramount Chiefs, the agents. Therefore, even though the Paramount Chiefs do not have the legal authority to appoint Court Chairmen, and even though the Act does not expressly transfer the said authority to them, by accepting Paramount Chiefs’ nominees for Chairmen of Local Courts, the Minister ratified their actions, thereby generating agency by ratification. Recently however, Provincial Secretaries have begun to take back this power, sometimes sacking Court Chairmen appointed by chiefs and making new appointments. Paramount Chiefs are outraged by this change, although Provincial Secretaries are operating in accordance with the law as it currently stands. There are no explicit provisions in the general law about the local administration of justice by chiefs. Some Paramount Chiefs argue that judicial decisions taken by them should not be considered as unconstitutional or illegal. Section 176(3) of the Laws of Sierra Leone, 1965, makes provision for the existence of the statutes and common law. Common law in that sense means the existing law and customary law, which are applicable to particular communities in Sierra Leone. Some of the powers exercised by Paramount chiefs in administering the functions of their institution are established by customary law and usage and the institution is protected from abolition by means of legislative instruments such as Section 72(1) of the 1991 Constitution. In theory therefore, in communities governed by customary law Paramount Chiefs might be seen as the final arbiters of justice comparable to the Supreme Court, which means that whatever ruling the Paramount Chief may issue, that decision is final. 36 37 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone In theory also, Paramount Chiefs have powers to banish individuals from their chiefdoms. This power is enshrined in Section 26(1) of the Provinces Act (Cap. 60 of the Laws of Sierra Leone, 1960). However, Section 18 of the 1991 Constitution guarantees every citizen of Sierra Leone freedom to move and settle in any part of the country without expulsion or threat thereof and Section 171(15) of the Constitution establishes the Constitution as the supreme law of Sierra Leone. Section 26(1) of the Provinces Act has therefore ceased to be pure law and any Paramount Chief evoking this provision to banish a citizen from his chiefdom will be violating the Constitution. Even so, the Paramount Chief of Kakua chiefdom in Bo District banished popular radio broadcaster John Abu in 2006 and also threatened to banish a civil society activist called Maxwell Kemokai.73 Section Chief’s Court, Bumban, May 2007 2.2.2 Rural Community-Based Justice The present system of justice therefore creates several overlapping spheres of authority. In some areas, conflict between these spheres is limited due to the poverty and geographical isolation of the local population. For example, Biriwa chiefdom has a population of 30,000, many living in small villages in remote hill country. The main Makeni-Kabala highway runs along the foot of the hills and the three Local Courts operating in the chiefdom are all based along this road. The nearest Magistrate’s Court is in Makeni, 40 kilometres distant from Kamabai, the Biriwa chiefdom headquarters. There is no permanent Sierra Leone Police post in the chiefdom. Two police officers usually travel up to Kamabai from Makeni every day but don’t always stay overnight. For most of the chiefdom’s residents, chiefs represent by far the most accessible resolvers of disputes and dispensers of justice. Paramount Chiefs, Section Chiefs and Village Chiefs often hold informal courts where they adjudicate cases, levy fees, impose fines or other punishments. In 2003 for example, the standard rate for a ‘country summons’ to a Village Chief’s informal court in Biriwa was 500 Leones (£0.15). The Local Courts on the main road charged 5,000 Leones for a summons and levied further charges for ‘hearing’, ‘service’ and ‘stationary’ that pushed protagonists’ potential expenses (should they lose a case) towards 20,000 Leones before any fines were taken into consideration.74 Many poor farmers found these sums difficult to come by. For them, the advantage in taking cases to a chief rather than the Local Court was that justice is comparatively cheap and quick. 73. Field research, Abubakar Sidique Turay, December 2008 74. The material in this and following paragraphs is based on fieldwork carried out by Richard Fanthorpe at various times between April 2003 and February 2009. 38 The dispute resolution work of one Section Chief in Biriwa was observed over a ten day period in May 2007 He received . no salary and the rebate owing from the tax collected in his section had not been paid for years. Yet on five of those ten days, several hours of the chief’s time were taken up with dispute adjudications. The first of these cases involved a witchcraft accusation prompted by the sudden death of a child in a remote village; the second was prompted by a violent fist fight in a neighbouring village; the third was a complaint brought by a mother that her young son-in-law had started an affair with his wife’s younger sister; the fourth was a complaint brought by an elder against a young man whom he accused of having cleared a farm on his land without first asking permission; the fifth was a complaint brought by a villager against his younger kinsman whom he accused of growing marijuana on family land. In each case, the Section Chief knew all the people and families involved personally. The largest sum of money offered to the Section Chief during these hearings was two thousand Leones. However, he received compensation for this work by calling section people to farm a large swamp farm for him every year. This is a common practice among chiefs in rural areas. While Sierra Leone has ratified both International Labour Organization Conventions on Forced Labour (Convention No. 29, the Forced Labour Convention, and Convention No. 105, the Abolition of Forced Labour), Section 19(2e) of the 1991 Constitution excludes “communal labour or labour which forms part of other civic obligation” from its definition of “Forced Labour. ” Clause 8(h) of the Chiefdom Councils Act (Cap 61 of the Laws of Sierra Leone, 1960) also empowers chiefs to compel their subjects (“natives”) to engage in productive farm work. As long as chiefs demands for farm labour are accepted by community people as compensation for their services to that community, they are currently protected by the law, in spite of the fact that the Native Administration Ordinances of 1937 were originally designed to render such arrangements obsolete and unlawful. If salaries were paid to all ranks of chiefs, it would no longer be a “civic obligation” to support chiefs economically except through the general tax system. Formal taxes offer much greater transparency than chiefs’ ad hoc demands for labour and thus are better able to protect rural citizens from exploitation. The male and female secret societies play a leading role in maintaining the moral contract that enables chiefs and their people to exchange services. In many areas of Sierra Leone, every child is initiated at puberty (sometimes earlier). Initiates are taught skills and social behaviour specific to their sex, including deference to chiefs and elders. Furthermore, the powers that the societies control are also believed to be morally discerning. Having been ritually transformed into adults through the agency of these powers, initiates are required to observe a range of laws and protocols in order to keep them in balance. Many “society” laws are the same as general laws, e.g. people should not curse, steal, fight, or kill. The societies thus play a major role in maintaining law and order in rural areas even when not in session (Fanthorpe, 2007). Another feature of this community-based system of justice is the strong moral pressure upon individuals not to involve outsiders in disputes. A Regent Chief interviewed in 2001 observed that people living together in a rural village or town are invariably relatives by marriage or descent, and feel they have to get along with each other come what may. When a person committing an offence pays compensation to an injured party and begs forgiveness for a crime it allows people to put the incident behind them. For that reason, he went on, the traditional practice of ‘begging’ for forgiveness is not necessarily considered immoral in rural areas even when it absolves an offence that, under a Western system of justice, might demand the severest punishment. It was this moral pressure, the Regent Chief reasoned, that made rural people reluctant to bring cases to the SLP That action, he observed, would not only bring in . ‘strangers’ to pry into the private affairs of a village, but also shame the person accused of an offence. Going to the police, the chief concluded, ‘makes an enemy for life’.75 Yet even in a rural chiefdom like Biriwa there are people who prefer to look beyond chiefs for justice. As noted above, the chiefdom contains numerous Mandingo and Fula residents who regularly exchange goods and services with the local Limba but who do not join Limba secret societies and do not consider themselves beholden to Limba chiefs. There are also many residents of the chiefdom, both temporary and permanent, Limba and non-Limba, who, by virtue of their work, education, religious beliefs and personal choice, are less integrated into the local community than others. Many prefer to bring cases before the Local Courts and Magistrate’s Courts. The Local Courts provide an essential service for these social groups. For example, in their first year of operation after the civil war (2003), the Local Courts of Biriwa heard a mere 36 cases. Eighteen of these cases concerned the recovery of debts and property and all involved Limba versus non-Limba and/or locals versus non-locals. Seven cases involved marriage disputes often accompanied by allegations of “woman damage” (i.e. unauthorized sexual contact). Again, four of these cases were brought by nonlocals seeking the return of locally born wives who had left them to go and live with their families. The Local Courts were also patronized by chiefs for the purpose of punishing challenges to their authority. Two cases were brought by chiefs against local youths for failing to answer to their summonses and a further two cases were brought against youths for committing “sacrilege” (kasseh), i.e. fighting in a village in contravention of secret society laws. 2.2.3 Corruption and Conflict in the Local Justice System Community based justice only works effectively where there is a moral consensus. Unfortunately, there are many signs that this consensus has come under severe strain in rural Sierra Leone in recent years. Part of the problem is chiefs’ over-zealous enforcement of their subjects’ “community” obligations, especially unpaid labour. Unfair compulsion of rural youths to perform “communal labour” has been a hot topic in community consultations since the end of the war (Fanthorpe, 2004a; Richards, Bah and Vincent, 2004) and there is no sign as yet that the problem is abating. For example, a NGO fieldworker, interviewed in Tonkolili District in January 2009, spoke of how the Chief and Imam of the village in which he worked expected villagers to work farms for them every year. Youths who refused to comply with these demands would be fined and if they showed any further defiance, their families would be told that they would be excluded from future aid distributions. “Communal labour” gang improving a bush road, Bumban, May 2007 75. Interview, Regent Chief, Kukuna, Bramaia Chiefdom, November 2001. 39 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone But the main element of the problem is that many chiefs and Local Court functionaries have come to rely on the local justice system as a source of private income. Only Paramount Chiefs and Speakers receive salaries, and these are rarely paid on time. Pending the implementation of the Local Courts Bill, 2008 (see Chapter 3.2), Local Court functionaries are supposedly paid out of general chiefdom revenues. However, the management of chiefdom finances remains in disarray (see section 2.3 below) and many do not receive salaries at all. Many Court functionaries only work when there is a case to be heard and find their main livelihoods in farming (Richards, Bah and Vincent, 2004:6). For both chiefs and Local Court functionaries, revenue from fines and fees represents a major cash windfall and rarely finds its way into chiefdom bank accounts. As a result, justice becomes a market in which satisfaction usually goes to the highest bidder. This problem was particularly acute at the end of the civil war and was highlighted in the CGRP consultations (Box 7). At that time, the local justice system not only suffered from financial corruption but also political corruption. Workshop participants accused chiefs of using the Local Courts to punish anyone who defied their authority yet also ensuring that family members and political allies were never summoned. However, chiefs were also facing competition from a range of other authorities intent on pursuing the same strategies: Magistrates, Customary Law Officers, District Officers, Provincial Secretaries and Members of Parliament. The resulting erosion of public confidence in the justice system is evident in the contribution of a young NGO worker in a discussion groups held in Rokupr in Kambia District, October 2002. Unlike Kamabai in Biriwa, Rokupr is situated in an area of intensive commercial farming, which supplies rice and other produce to Freetown and Guinea. The area’s political connections to Freetown are therefore much stronger than those of Biriwa Chiefdom and the socio-economic profile of its population more diverse. As the young man observed: Our problem in this country is that it is too centralized. Freetown is everything. If somebody comes to this area from outside, they do not regard the chief; they prefer to go to Freetown. The chief is not given the power for people to find out if he is an effective ruler. If you have a land issue, the chief has a mandate to preside over the case. But the losers will go to Freetown to contact the politicians and they will come back and reverse the case. We have no guidelines on justice; nobody knows where the law lies. Losers also go to the DO [District Officer]. Instead of investigating the case, he will transfer the case to Kambia [District Headquarters]. The door has been opened to expeditors. If you don’t have connections in Freetown, you can do nothing up-country. Everything costs money and we are poor people. Comments and Action Points on Local Justice, CGRP Workshops, 2000 1. Leaders levy heavy fines not commensurate to crimes committed by people. This has led to youths running away to urban cities where rules are flexible (Badjia Chiefdom, June 2000). 2. The Chiefs levy exorbitant fines for wife confessions, “call name” or adultery, especially if the wives are those of elders. This is a very nagging problem for the youth (Panga Krim Chiefdom, May 2000). 3. [In group discussions] Chiefs were also accused of grossly backing their relatives in disputes...In many cases, chiefs had levied low fines where their relatives are involved but had escalated such fines for people outside their family. To gain respect of the people chiefs must exhibit maximum impartiality in dealing with people. (Gorama Mende Chiefdom, July 2000). 4. ...the chief takes bribes from non-indigenous people in the chiefdom for special protection and favouritism. As a result the non-indigenes continue to violate chiefdom laws with impunity (Falla Wondor Chiefdom, June 2000). 5. [The] Court Chairman is in conflict with [the] Court Clerk and is frequently duped by [the] Court Clerk over court proceeds. The court revenue is a source of conflict and mainly the Court Chairman takes the lion’s share of these proceeds and is in conflict with the [Court Members] over withholding payments due to them. He also has problems with the Paramount Chief if he doesn’t give revenue on demand. [The] Customary Law Officer interferes with [the] Court by withdrawing cases from the court to be settled (at greater expense) in Bo (Gbo Chiefdom, May 2000). 6. There is no respect for Chiefdom Police since they are not officially uniformed or attired. They have been reduced to the rank of beggars with no money, no decent houses, no food and so there is no regard for them in the chiefdom (Banta Mokelle Chiefdom, July 2000). 7 The power of Chiefs is undermined by the Magistrate’s . Court. Cases already in [the] N.A. Court are withdraws and taken to [the] Magistrate’s Court to the embarrassment of the Chiefs (Nongowa Chiefdom, May 2000). 8. Seed rice and palm oil are produced in vast quantities in this area. Consequently traders are drawn to the markets. However the farm gate prices are very low. Traders can even interfere in court business to ensure that the person being fined has enough money to pay the fine to fight his case – at extortionist prices. Traders have even been known to go so far as to connive with the Court Chairmen to ensure that they have first call on the cheapest produce (Bumpeh Chiefdom, January 2000). Many of these problems are still affecting rural areas. For example, in one recent case in Kenema District a young man went to the Local Court in an attempt to win control over his late father’s estate: a house situated at Tejan Street in Kenema town. The plaintiff had only been 14 years old when his father died and the defendant was his father’s surviving brother. The house had been rented out to different persons, but now the brother was attempting to seize the house. He was supported in that plan by the plaintiff’s step-mother, who had born three children with his late father. The step-mother had asked the defendant to sell the house and to share proceeds with her. But the plaintiff was now 18 years old and living in one of the rooms in the house. He objected to the sale and the matter was taken to the Local Court. However, the Paramount Chief withdrew the matter from the Local Court and adjudicated it himself. The Paramount Chief ordered the sale of the house. He came to this decision by asking those in favour of the sale to raise their hands and then those against to do the same. The plaintiff was in the minority and the Paramount Chief ruled that the house should be sold. It later emerged that the Paramount Chief had bought the house himself to accommodate a relative who was about to return from England. One and a half million Leones were given to the Local Court Chairman to pass on to the plaintiff as his own share.76 In another recent case, a Paramount Chief in Kailahun District victimized a chiefdom resident for taking a case to the police after the Chief himself had accepted bribes from a local businessman to dismiss the resident’s complaint against him. The complaint arose from a business arrangement between a land owner and a chainsaw operator. Some chainsaw owners asked the landowner for permission to fell trees on his land, which was granted. Thirteen boards were produced and the landowner was given three boards as payment. After one month, one chainsaw operator returned and continued to cut boards from the felled trees without the landowner’s permission. When confronted by the landowner, the chainsaw operator and his workers admitted that they were cutting boards without his permission. The landowner took the matter to the local Town Chief, claiming that the chainsaw operator had been trespassing on his land and stealing his property. The Town Chief reported the matter to the Paramount Chief, who found in the chainsaw operator’s favour and instructed the landowner to pay a total of Le 410,000 in fines for slander, summonsing fees and hearing fees. The landowner subsequently reported the matter to the Police who said that the case was a matter of larceny which they should be dealing with and not the Paramount Chief. This argument, however, did not sit well with the Paramount Chief. The landowner was arrested and jailed by the Paramount Chief for 14 days and told to pay Le 400,000 in further fines. After the 14 days, he was released and then rearrested for failing to pay the sum demanded. Eventually, the landowner, a poor farmer, had to borrow the money in order to gain his freedom.77 The following testimony of a female Chiefdom Police Officer provides a further example of the intimidation that chiefdom residents can still suffer if they question the authority of chiefs or attempt to use the local justice system to pursue grievances against them: At the start of June, 2007 I had a confrontation with one of , the Sub-Chiefs in the chiefdom over the unfair treatment of women in his locality. The matter was reported to the Paramount Chief who, without investigating, ordered the roof of my house to be uprooted as punishment for my action. This was during the rainy season, and my entire belongings got wet and eventually destroyed. My children and I had to evacuate and sought refuge at my elder sister’s place. A few weeks later, a senior Chiefdom Police Officer, (name withheld), attacked and beat me up mercilessly (I suspect his act was a machination). I decided to use the legal channel to secure justice. Therefore, I had to summon him to the Local Court. When the matter was called up for hearing, the Paramount Chief intervened and asked the Court Chairman to dispose of the case so that he (the Paramount Chief) could adjudicate over it. For two months nothing was heard of my case. Sensing that I was not going to get justice, I went to a women’s rights organization in Bo for help. After some pressures from this organization, the case was finally charged to the JPs’ [Justice of the Peace’s] Court in Bo. My hope of eventually securing justice was again dashed when in the midst of the proceedings, The Paramount Chief , for the second time, got the court to dispose of my case. This became very frustrating and I finally lost hope in the matter. To date, nothing has come out of the case. Back in Jaiama, the Paramount Chief and other chiefdom authorities continued to intimidate me and my family. As a result, I transferred to another chiefdom in the far north of Bo called Valunia, where I am currently resident.78 In these examples we can see several violations of fundamental rights enshrined in the Constitution, including the rights to the protection of law and security of person (Section 15a), protection from the deprivation of property without compensation (Section 15d), freedom from unlawful arrest and detention (Section 17) and protection from inhuman or degrading treatment (Section 20). It is also apparent that statutory guidelines on the jurisdictions of the various courts are regularly flaunted, as are the guidelines on the magnitude of the punishments Local Courts can hand down. 77 Field research, Abubakar Sidique Turay, December 2008. . 76. Field research, Abubakar Sidique Turay, December 2008 78. Interview, female Chiefdom Police Officer, Valunia Chiefdom, November 2008. 41 40 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone The adjudication of land disputes represents one type of case over which chiefs, especially Paramount Chiefs, retain close control.79 Here, chiefs can point to laws (notably the preamble of the Provinces Land Act, Cap. 122 of the Laws of Sierra Leone, 1960 and Section 28(d) Local Government Act, 2004) which state that provincial land is “vested in” and “held in trust for the people” by Chiefdom Councils headed by Paramount Chiefs. In some areas, newly elected Paramount Chiefs still undergo traditional cultural ceremonies of investiture in which their lives are linked to the land, its fertility and the health and wellbeing of its inhabitants. But the problem with chiefs’ adjudication of land disputes is that there is no formal mechanism to ensure that it is fair and transparent. For example, in Biriwa chiefdom farm land is apportioned to villages. Families resident in these villages inherit specific plots of land within these apportionments. In April 2003, the most recent Limba Paramount Chief of Biriwa presided over a land dispute between two villages. The essence of the case was that the inhabitants of one village claimed that those of another were encroaching on their ancestral land. The case was complicated by the fact that the villagers accused of encroachment were not residing in their settlement’s original location; the village had moved to take advantage of a roadside location several decades previously. The villagers accused of encroachment argued that no knowledge of any boundary agreement had been passed down to them by their forefathers. The villagers complaining of encroachment argued that there was no boundary agreement between them because the encroaching villagers weren’t supposed to be there in the first place! The Paramount Chief demanded 100,000 Leones from each party to hear the case. After sending a delegation of elders to inspect the disputed land, he decreed that the case was not resolvable and invited both groups of villagers to try again with a new Paramount Chief after he was dead. He did not return the hearing fee. The details of the case were recorded by a local schoolteacher on pages ripped out from a student exercise book. The notes remained in his personal possession for several months but he eventually lost them.80 2.2.4 Ways Forward for Improving the Local Justice System The above discussion indicates that while chiefs still have an important role to play in the local justice system, this role is in urgent need of clarification. First, it is very unlikely that corruption in the Local Courts and Chiefs’ judicial hearings will diminish until Local Court functionaries and chiefs cease to rely so heavily on fees and fines for private income. As a Village Chief observed during a discussion groups in Bo District in November 2008: I am a farmer but I have to drop my cutlass whenever I am summoned to the PC in Bo. I get to Bo and we all sit down in the Court Barray to wait for the Paramount Chief and the DC [“District Commissioner” i.e. a Local Government Ministry , official.] As long as they are not there we sit down and sweat. When they arrive we all stand up like school children and then sit down again. We have to do what they tell us. Then we are dismissed with no food and no (money for) transport. I come home having lost a day of farming. So when I fine you 5,000 Leones for something am I going to refund it? Providing adequate salaries for Local Court functionaries, Chiefdom Police and chiefs and a proper salary structure for all ranks of chief (i.e. Village Chiefs and Section Chiefs should receive proper salaries, not rebates on local tax collections) is more than just a strategy for combating corrupt justice. The Sierra Leone government also needs to revisit an issue of principle raised almost forty years ago by UNDP consultant C. Viswasam: that in performing their statutory duties in maintaining law and order in their localities, chiefs are performing a service for the central state, which the state must pay for. One obvious concern here is that if chiefs were paid out of central government revenues rather than local taxes, central governments’ political grip on them would only increase. However, central government has been subsidizing, and effectively controlling, chiefs’ salary payments for many years. If it took over formal responsibility for chiefs’ salaries, the mutual obligations of state and chiefs would at least become more transparent. Second, the idea enshrined in the Chiefdom Councils Act (Cap.61 of the Laws of Sierra Leone, 1960), that chiefs should maintain order in their localities simply by exercising their authority as chiefs, is a throwback to colonial “indirect rule” and needs to be revised to reflect 21st century realities. The law should recognize that chiefs of all ranks play a key role in mediating problems and disputes at the community level, including disputes between community members and outside parties. It would be unrealistic to expect chiefs living in remote villages not to authorize on-the-spot punishments for minor offences. But the law should also protect the rural poor from being subjected to corrupt and vindictive judgements in chiefs’ informal courts. Institutional strengthening is crucial here. The Sierra Leone government is already following the lead of NGOs in piloting support to paralegal services and strengthening liaison between chiefdom authorities and the SLP81 Providing the . rural poor with a realistic opportunity of obtaining justice independently of chiefs, should they wish to do so, would help to re-establish chiefs in their role as community advisors and mediators. Institutional strengthening for better justice and security should be strategic and multifaceted. For example, now that the administration of the Local Courts is to be placed under the Ministry of Justice (see Chapter 3.2), Local Court Chairmen should cease to become political footballs between Paramount Chiefs and Provincial Secretaries. As their appointments gain legitimacy, senior bureaucrats and politicians will have fewer pretexts for intervening in the local justice system. The same principle should also apply to the Chiefdom Police, an organization that has suffered badly from unpaid salaries, poor equipment and low staff morale since the end of the civil war. Placing the Chiefdom Police under the management of the SLP will help to improve liaison and coordination between the two organizations without compromising the integrity of the Chiefdom Police as a community-based force with its own methods of recruitment and training. This was indeed the direction in which the above-mentioned Local Government Review Commission was seeking to travel almost 40 years ago. Third, as several recent studies have pointed out (e.g. Alterman, et al, 2003), the interface between customary law and state law needs to be better defined. In recent years, the Justice Sector Development Programme has been piloting the restatement of customary law in some districts.82 Restatement basically entails writing down laws and their usages in one document. This process is different from codification, which entails entrusting binding legal force to the laws so documented. Codifying customary law would freeze it and deny it the flexibility that is its defining characteristic. A restatement of customary laws and usages would improve all justice practitioners’ knowledge of these laws, and generate more informed understanding of the social context in which they are applicable. Restatement of customary law is also urgently needed given the numerous social protection laws that have been appearing on the statute in recent years, notably the Child Rights Act, 2007; The Devolution of Estates Act, 2007; the Domestic Violence Act, 2007 and the Registration of Customary Marriages and Divorce Act, 2009. All of these Acts impact on family and property relations that, in the provinces, are currently governed by customary law. However, these new laws reflect post-war social changes and the level of local demand for them is a matter to be determined rather than assumed. 81. Government of Sierra Leone, 2008. Justice Sector Reform and Investment Plan: 2008-2010, Freetown, March 2008 82. Justice Sector Development Programme, Progress Report, December 2006 Chiefs could play a leading role in this restatement process, especially now that increasing numbers of Paramount Chiefs have been educated to university level. Land is a special case within that process, given the primacy of laws protecting customary tenure of land in the provinces, the importance of agriculture in the Sierra Leone economy and the recent efforts of government to stimulate commercial investment in farming. It is vital that land cases are properly recorded, not only to safeguard the interests of poor farmers but also to establish a body of legal precedents for the adjudication of appeals in the higher courts. 2.3 Taxation and Representation 2.3.1 Chiefdoms and Local Councils Democratic decentralization – the devolution of central government functions to elected local authorities – was a policy priority for Ahmad Tejan Kabbah’s Sierra Leone People’s Party (SLPP) government when it was first elected in February 1996. Public consultations on this policy got underway in Freetown and the provinces soon after the restoration of civilian rule in February 1998. These consultations, facilitated by the United Nations Development Programme (UNDP), revealed strong grassroots support for decentralization, based on a general understanding that exclusion from the processes of government was a major source of poverty and insecurity in rural areas. As the summary report notes: Sierra Leoneans believe that the centralization of government powers and functions over the past two and a half decades, and the consequent exclusion of the majority of Sierra Leoneans from the planning and management of development activities that concern them, are among the root causes of the many social ills within the country today. These include violence, general indiscipline, corruption and poverty. There was, therefore, a unanimous call for decentralization through the restoration of appropriate local government institutions.83 District and Town Councils had been reactivated under Committees of Management in 2000, but the Sierra Leone Government and international donors decided upon further public consultation and technical preparation. A second Task Force on Decentralization and Local Government was commissioned, and throughout 2003 it organized expert seminars and consultancy studies on the modalities of decentralization, plus a further series of public consultations in the capital and provinces. The Sierra Leone Parliament passed a new Local Government Act (LGA) in February 2004, which paved the way for local elections the following May; the first in Sierra Leone since the 1960s. Following the local 79. In a recent survey of Local Court records in Kailahun, Pujehun, Tonkolili and Koinadugu Districts, land cases were only recorded in Kailahun District, representing 2.1% of all cases in that District; see Koroma (2007). 80. This case was witnessed by Richard Fanthorpe in April 2003. 42 83. Republic of Sierra Leone and UNDP Nation-Wide Consultative , Process (October-December,1998), Volume 1, Main Report, Freetown, January 1999, pp. v-vi. 43 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone elections, the Sierra Leone government, again with donor support, established a Decentralization Secretariat (DecSec) to coordinate action among central government ministries and provide training and other assistance to the new councils. The LGA establishes the new councils as the highest authorities in their localities. They have authority under the Act to oversee the Chiefdom Councils in the performance of any functions they may delegate to them, determine the rate of local tax, approve the annual budgets of the Chiefdom Councils and oversee the implementation of these budgets (Section 20, Subsection 2, clauses h-j). The LGA reinstates the old system whereby the local councils claim a precept on revenues collected by the chiefdoms. Yet, the LGA also confirms the original functions of Chiefdom Councils as established by the Chiefdom Councils Act and Provinces Lands Act (Caps. 61 and 122 of the Laws of Sierra Leone, 1960): a) preventing the commission of offences; b) prohibiting illegal gambling; c) making bye-laws and d) holding land in trust for the people of the chiefdom (Section 28). The LGA also reserves seats for Paramount Chiefs on local councils on a quota basis. Many complications have arisen in the relationship between the local councils and the chiefdoms. First, international donors’ strong support for the decentralization programme led many people in Sierra Lone to believe that the new councils would become leading conduits for development investment. Urbanised party members flocked to rural areas to compete for nominations in the inaugural council elections, often forcing locally based politicians to fight on independent tickets (Brown, et al, 2006). Many among the first intake of local councillors interpreted the provisions of the LGA as giving them personal authority over Paramount Chiefs. For the first time ever, Paramount chiefs now had serious political rivals in their localities (Fanthorpe, 2006). In Makeni, for example, the APC won control over the Town Council despite the local Paramount Chief’s heavy canvassing on behalf of the SLPP The . incoming Council Chairman issued a public condemnation of the pre-decentralization management of local revenues, in which the Paramount Chief had played a leading role. The latter retaliated by announcing a policy of non-cooperation with the town council. In a subsequent interview, the Paramount Chief argued that he retained two key political advantages over local councils. First, he held office for life while local councillors only served four year terms; second as the person responsible for the welfare of the land and people of his chiefdom, no development activity could take place there without his knowledge and permission.84 Another Paramount Chief was even more blunt when remarking that whatever powers local councillors claim, when they set foot in his chiefdom they were his “subjects”85 . 84. Interview, Paramount Chief Bai Sebora Kasanga II, Makeni, October 2005 85. Interview, Paramount Chief Bai Sunthuba Osara III, Yele, Gbonkolenken Chiefdom, December 2008. 44 Five years on and the situation has settled down considerably, at least on the surface. Early optimism within local councils over the resources available to them has been replaced by recurrent anxiety over securing adequate funding. The political opportunists have moved on and in some areas, the 2008 intake of local councillors is considerably younger and more community based than before (Fanthorpe, 2009). As a result of these developments, local council activities have begun to mesh, however informally, with the chieftaincy system and its politics. In Biriwa chiefdom for example, the local councillor representing the western ward is a Mandingo from Karina, the councillor representing the southern ward is a member of the Kamabai ruling house and a nephew of a former Biriwa Paramount Chief, while the councillor for the northern ward, the current Bombali District Council Chairman, is a descendant of the Bumban ruling house on his mother’s side and the son of a former Treasury Clerk who lived and worked in Kamabai for most of his life. In neighbouring Tonkolili District, the current Council Chairman is a descendant of a ruling house of one chiefdom in the District, a fact he frequently mentions in meetings with community people (Fanthorpe 2009). Second, complications of a different nature have arisen in relation to the Ward Development Committees (WDCs). The LGA assigns functions to Ward Development Committees (WDCs) that have long been part of the de facto functional repertoire of the chiefdoms. These include mobilizing local residents for the implementation of self-help and development projects, providing a focal point for discussion of local problems and needs (with a view to developing action plans and making recommendations to higher authorities) and organizing communal and voluntary work (Sections 95 and 96). According to the LGA, each WDC should be comprised of the local councillor, Paramount Chief and no more than ten ordinary members (of which five must be women) elected by the ward residents in a public meeting. The WDCs were designed to facilitate community oversight over local development activities initiated by the new councils. The WDC concept was strongly supported by international donor agencies, many of whom believed that chiefdom structures were unfit to manage development in a fair and transparent manner.86 The Village Development Committees (VDCs) that had been formed in response to early post-war relief efforts had come under heavy criticism from international NGO staff, the argument being that they were dominated by patriarchal elites and were unrepresentative of the interests of women, youths and the poorest community members (e.g. Archibald and Richards, 2002). However, no resources were made available for WDC elections and many among the original intake of local councillors simply nominated their WDCs. Inevitably, many current and former WDC members in rural areas have close social and family ties 86. Interview, Sylvia Fletcher, United Nations Development Programme, Freetown, October 2005 to chiefdom authorities. For example, the WDC member in Bumban between 2004 and 2008 was the wife of the Bumban Section Chief. Her successor in 2008 was the daughter of a former Biriwa Paramount Chief and estranged wife of a senior APC party official. Whether the WDCs have succeeded where the early post-war VDCs failed is therefore open to question. As early as 2005, members of DecSec staff were reporting that many WDC members were refusing to attend meetings without receiving per diems and travel expenses, although neither were included in local council budgets. Councillors were also complaining that they could not afford to provide food and lodging for WDC members attending meetings (Brown, et al, 2006). In some areas, the recent intake of younger, more community based councillors has benefitted WDCs, since their members are better placed to liaise between communities and councillors. But even today, WDCs remain most effective when they receive direct NGO support and have been specifically included in the participatory monitoring and evaluation of NGO projects (Fanthorpe, 2009). Meanwhile, community life has moved on since the end of the war and NGOs are helping to facilitate the formation of VDCs that do in fact represent the interest of women, youths and the poorest of the poor. For example, in village discussion groups in Bo district, an NMJD-supported paralegal observed that “people are beginning to accept change; they now accept, for example, that women should be part of decision making”He went on . to note that “youths are now being called to elders’ meetings and whatever the outcome, it is agreed with them”An NMJD . fieldworker added that villages now have elected VDCs that include youth and women’s representatives. The fieldworkers are working hard to forge links between VDCs and WDCs.87 Unlike WDCs, VDCs are not recognized in law. But structures at this level are clearly necessary for effective development administration, especially since villages remain primary references of social identification and belonging and since the populations served by WDCs number in thousands. This point came out clearly in village discussion groups recently facilitated by MCSL in Kailahun District. In one discussion, villagers complained that the “WDC should be reporting their meeting outcomes to we the community members which they are not doing” In another village, people complained . that “none of our community members was invited to the WDC election in Ward 24, we are not happy about that” and that “we need our VDC members to be on the WDC so that development can be fostered”88 Since villages represent the . bottom tier of chiefdom administration, there is an opportunity here to begin the formal integration of chiefdom structures into the local government system. Third, by far the most pressing problem in the relationship between the chiefdoms and local councils concerns the collection and usage of revenue. Many chiefdoms still employ, at least notionally, large numbers of functionaries that include Treasury Clerks, Court Chairmen, Court Clerks, Chiefdom Police, Traditional Birth Attendants, Health Inspectors and labourers. While the local councils oversee chiefdom administration finances, neither they nor the Local Government Service Commission are responsible for hiring these workers or monitoring their pay and conditions. That responsibility, for all functionaries except Court Chairmen, lies with the Chiefdom Councils. At present therefore, local revenue collection remains the primary responsibility of poorly trained and infrequently remunerated Treasury Clerks and other chiefdom functionaries. To complicate matters further, oversight over all aspects of chiefdom administrations except finance and development is now the responsibility of the Provincial Secretary, who took over that role from the now defunct position of Senior District Officer. Furthermore, the Central Chiefdom Finance Clerks (CCFCs) remain in post. They are responsible for training Treasury Clerks and producing chiefdom financial accounts for auditing purposes. They are expected to work closely with the local councils, but they remain, for the time being at least, employees of central government. Neither chiefs nor local councillors and council administrations find the current revenue collecting arrangements satisfactory. For example, the Paramount Chief in Bumpeh Ngao Chiefdom claimed that the District Council was not doing anything to earn the precept it takes from the revenue collected in his chiefdom and that he and his people were “discouraged” Last year, he went on, Bumpeh paid the . highest precept of all chiefdoms in Bo District. Furthermore, the District Council and the chiefdom are supposed to share the ground rent paid by rutile mining companies working in the chiefdom, but the chiefs claims that the chiefdom never receives it.89 On the other side of the coin, a District Council Chairman complained during an interview that chiefdom authorities were regularly withholding revenues from the local councils and that they were supported in such practices by Provincial Secretaries and higher political authorities in Freetown. As a result, the Councils are always short of operating funds and unable to plan effectively because, as he put it, “it is always difficult to budget on another man’s pocket” In a subsequent interview, he stated . that he was attempting to win government approval for the transformation of the Chiefdom Police into a “District Police” force capable of monitoring revenue collection effectively and tracking down defaulters.90 89. Interview, Paramount Chief Thomas Kposowa, Bumpeh Ngao Chiefdom, November 2008 90. Interviews, Eric Dura Sesay, Bombali District Council Chairman, Makeni, October 2005 and December 2008 45 87 Village discussion group, Kpetema, Bumpeh Ngao Chiefdom, . Bo District, November 2008. 88. Village discussion groups, Yeikandor and Wonde villages, Njaluahun Chiefdom, October 2008. Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 2.3.2 Case Study: Conflicts over Revenue Collection in Tonkolili District91 Further illustration of the current problems between local councils and chiefdoms over revenue collection is provided by the following case study of Tonkolili District. Like other local councils, Tonkolili District Council (TDC) has set the rate of local tax at 5,000 Leones per person. Local tax has thus become a significant revenue source. According to figures obtained from the Tonkolili CCFC, the local tax collected in the district was 166.6 Million Leones in 2005, 146.2 Million in 2006, 96.6 Million in 2007 and 315.2 Million in 2008. The , greatly increased tax collection in 2008 reflects the efforts of government agencies, including the police, to check the public for tax receipts and ensure that every adult citizen has paid. All revenues collected by the chiefdoms are now paid into separate bank accounts, the only authorized signatories for which are the Paramount Chief, Treasury Clerk, and Chief Administrator (CA). It is only when the money is deposited and properly accounted for that TDC can claim its precept. In theory, TDC should receive 20% of market dues and licence fee revenues and 40% of local tax. Of the remaining 60% of the local tax take, 40% goes to chiefdom administrations, 10% to the CCFC’s office and the remaining 10% to Village and Section Chiefs. With so much money becoming available, Paramount Chiefs are now arguing that the tax paid by communities should be reinvested in the development of those specific communities, not the district as a whole. In other words, they believe that chiefdom administrations should keep all of the revenues they collect. In a public meeting held in November 2008, the TDC leadership revealed that one chiefdom administration has not paid anything into its bank account for two years, despite collecting revenues over that time.92 The Paramount Chief of this particular chiefdom is a noted critic of the local councils. When interviewed in April 2007 he argued at some length that Donors and NGOs should be assisting chiefdom administrations, not local councils. A highly educated man, he became a leading advisor to President Koroma after the latter’s election victory in September 2007 Inquiries among chiefdom . people revealed that the tax monies were still being held by local Section Chiefs. The general view was that the Section Chiefs would not have been so bold as to withhold the money without the backing of the Paramount Chief. It appeared that the Paramount Chief was exploiting his elite political connections in withholding local tax monies, but his stance also drew attention to the fact that nobody in the district seemed to know where the 60% of local revenues due to the chiefdoms is going. Functionaries employed by chiefdom administrations (e.g. Chiefdom Police, Treasury Clerks, etc) claim that they are not being paid, senior chiefs are paid intermittently by central government and no services are being delivered. Two Treasury Clerks were interviewed during the research and both were asked if the old accounting system of a) drawing up estimates of chiefdom administration revenue and expenditure at the beginning of each year and b) conducting a full audit of actual revenue and expenditure at the end of each year was still followed. One answered that the accounting period was now supposed to be three years but that he was new in post and had not yet conducted an audit. His predecessor had taken all the accounting records with him when he had been transferred to another job the previous year and all he had in his possession were bank statements and a petty cash book. The other Treasury Clerk answered in the same vein, only having been in post a few months. When the same question was put to the CCFC, he referred the matter back to the Treasury Clerks. After further discussion with DecSec staff it eventually emerged that the Ministry for Internal Affairs, Local Government & Rural Affairs (MIALGRA) in Freetown is still controlling chiefdom financial accounts, summoning CCFCs and Treasury Clerks to the capital every year to assist in the preparation of budgets. Such practices contravene the clauses in the Local Government Act that establish district councils as the highest authorities in their localities with responsibility for approving the annual budgets of chiefdom administrations and overseeing the implementation of these budgets. Such lack of transparency sows mistrust. For example, it was common knowledge in TDC that the Paramount Chief who was refusing to pay tax distrusted the CCFC, who also happened to be an indigene of his chiefdom. Under decentralization, CCFCs no longer have authority to withdraw money from chiefdom bank accounts, but the Paramount Chief had previously accused the CCFC of doing just that. The CCFC had been exonerated by a Ministerial inquiry team, but the mistrust remained. Tensions also escalated when a Treasury Clerk, who had been pursuing the Section Chiefs to hand over the tax monies, died unexpectedly prompting rumours of witchcraft. Eventually the Freetown press got hold of the story and the negative publicity stung the Paramount Chief into action. By late January 2009, word was circulating in the District that the Paramount Chief had instructed his Section Chiefs to release the tax money for deposit in the bank. The tax issue was also raised with the senior chiefs who preside over the chiefdom while the Paramount Chief is away in Freetown. They claimed that the tax collection had been delayed because polygamous husbands had been struggling to find the money to pay for their wives. It was suggested to them that it would be easier to leave the task of collecting tax to TDC. They were aghast at this idea, claiming that “Town and Section Chiefs are the only ones who know their people” If . a non-local person attempted to collect tax, they argued, the people would simply run away from them. But by no means all chiefdom authorities in the District are reluctant to pay over taxes. Another chiefdom in the district paid over all the taxes assessed for 2008 with exemplary promptness. When the chiefdom authorities were interviewed, they claimed that the community people had mobilized themselves to pay tax as an expression of support for a highly respected Regent Chief. They had shown a unity of purpose in performing their civic duty and as far as they were concerned, it was now up to TDC and the government to keep up their end of the bargain and bring development to the chiefdom.93 Yet, the Ministry has recently announced a freeze on chiefdom bank accounts and decreed that the precept on local tax for the year 2008 will be withheld from local councils and used to pay arrears in paramount chiefs’ salaries. The legality of this decree is questionable, although nobody in the local government system appears to have challenged it publicly. Commenting on this decree, a Provincial Secretary interviewed in January 2009 claimed that the Ministry had taken action because the local councils were failing to bring development to the chiefdoms. But he also made further disarmingly candid remarks that indicate where the 60% of local revenues due to chiefdom administrations are still going. He argued that political accountability works differently in Sierra Leone as compared to Western countries. Ministers and other senior government figures expect to be royally entertained when they visit rural areas. If they are not satisfied with local hospitality, they will block development in that locality. Revenue deposited in chiefdom administration bank accounts, he went on, is often used as a “hospitality” slush fund for visiting dignitaries. He concluded by observing that central government will always side with the chiefs when they come into conflict with the local councils because a Paramount Chief can still deliver “40,000 votes” to a political party at election time.94 2.3.3 Ways Forward for Improving the Local Government System As noted earlier, the government constantly reminds people about their civic responsibilities, especially with regard to paying taxes. Indeed, when he was first elected President Ernest Bai Koroma made several speeches stressing the importance of a “social contract” between government and people, where citizens pay, either directly or via taxes, for services provided by government. But such well meaning sentiments are hollow if people pay their taxes and see no visible return. Lack of transparency in financial administration only breeds local suspicion that revenues are being consumed by distant elites who have no legal or moral right to them. That suspicion also exacerbates conflict between the chiefdoms and the local councils. Clearly, the present division of functions in which chiefdoms are primarily responsible for collecting revenues and the local councils responsible for delivering services and development inputs is untenable. The logical solution might be that local councils take over responsibility for collecting all revenues, but the political reality is that most rural Sierra Leoneans’ primary loyalty is to their chiefdoms and they would resist extending further powers to bureaucrats and functionaries whom they are already inclined to distrust. Senior Chiefs, Kunike Barina Chiefdom, January 2009 91. This case study is based on field research carried out by Richard Fanthorpe for Concern Worldwide in January and February 2009; see Fanthorpe (2009). 92. Details of interviews in this and the next two paragraphs have been withheld due to the sensitivity of the issues discussed. 46 93. Meeting with the chiefs and elders of Kunike Barina chiefdom, Makali, January 2009 94. Details of interview withheld 47 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 3. Strengths and Weaknesses of Recent Legislation Affecting Chieftaincy The above-noted Paramount Chief who refused to pay tax to TDC strongly advocates for the return of planning and budget making authority to the chiefdoms as established by the original Chiefdom Treasuries Ordinance of 1937 Yet that is . no real solution to the revenue mobilisation problem. In their present form, neither the Chiefdom Councils nor the Chiefdom Committees are sufficiently representative of community interest to retain public trust. Furthermore, and as C. Viswasam pointed out nearly 40 years ago, they simply lack the capacity to perform local government functions (Viswasam, 1972). One Paramount Chief interviewed in May 2002 was very receptive to the idea of an elected Chiefdom Committee, although another Paramount Chief interviewed more recently argued that such an innovation would simply “bring politics” into these Committees, like the politics that currently plague the Chiefdom Councils.95 But if chiefs want to be more involved in the decentralized government system, they will have to make concessions to institutional reform. The only answer in the long term is that the chiefdoms become more fully integrated into the local government system. Senior members of DecSec lament what they call the “missing bottom” of decentralization, i.e. the fact that institutional reform has not extended down to the community level. The problems experienced by WDCs shows that the solution does not lie in creating new institutions whose activities and functions overlap with those of chiefdom institutions. Incorporating the new generation of VDCs into the local government system has been noted already as a possible way forward. Once that incorporation is underway, the task of convincing chiefs of the merits of a more democratically representative Chiefdom Committee, coordinating between VDCs and District Councils, may be that much easier. 3.1 The Chieftaincy Act 2009 The primary purpose of the Chieftaincy Act, 2009, is to set out the procedures for electing and appointing Paramount Chiefs and Sub-Chiefs. It builds upon guidelines for paramount chieftaincy elections issued by the government of Ahmad Tejan Kabbah in 2002 and represents the first time in Sierra Leone’s history that these procedures have been detailed in law. Much of the Act reiterates the status quo. For example, Section 2 states that “the Chiefdom Councillors of the Chiefdom shall elect a new Paramount Chief in the chiefdom in accordance with the provisions of this Act and the customary law of the chiefdom” Section 3 provides for the appointment . of a Regent Chief by the Minister responsible for Local Government in consultation with the Chiefdom Committee, while Section 4 states that the Chiefdom Councillor list should be specially revised for the purposes of the election and include the Regent Chief, Speaker, Section Chiefs, Court Chairmen, Ceremonial Chiefs (“where the paramount chieftaincy in the chiefdom is by customary law linked with secret societies”), Member of Parliament for the constituency in which the chiefdom is situated, any government Minister from the chiefdom and finally Chiefdom councillors “representing every twenty taxpayers”The 1956 guidelines . on the specifics of this representation (Box 1, p. 17) are not included in the Act. Section 4(4) states that “The revision of the Chiefdom Councillors’ List shall be undertaken by the office of the Provincial Secretary in collaboration with the National Electoral Commission (NEC)” . Sections 5 and 6 reiterate the status quo in respect of the Declaration of Rights meeting (see Box 3, p. 33). The meeting is “convened by the Provincial Secretary” who serves as Declaration Officer. In a departure from earlier practice, Section 6(2) states that “where the chiefdom concerned is an amalgamated chiefdom the Declaration Officer shall ensure that the conduct of the election of a Paramount Chief for the Chiefdom is done on a rotational crowning basis and further ensure that the same is complied with. This provision removes ” the need for written proof of rotational crowning agreements96 but does not specify how rotational crowning will be organized. Section 7 emphasises that “in any paramount chieftaincy election, the responsibility of the Government is limited only to the facilitation of the process so as to ensure that the election is conducted in a fair and transparent manner” and that: “no government Minister or other official, and no political party, whether collectively or otherwise, shall promote or show preference for the candidature of any particular contestant in a paramount chieftaincy election” . Sections 8 and 9 deal with eligibility of candidates and reiterate the status quo in requiring candidates to be born in wedlock to a “rightful claimant in a recognized ruling house” or have “direct paternal lineage” for such a claimant whether born in wedlock or not. A recognized ruling house is now legally defined as “one that has been established and in existence as such at independence on 27th April, 1961” Persons not . qualified to stand as candidates are also the same as before: those with criminal convictions, deposed chiefs within 5 years of their deposition and adopted children of ruling houses. Sections 11 and 12 provide for the appointment of Assessor Chiefs in chieftaincy elections. These Assessors are appointed by the Minster responsible for local government. Sections 13 to 17 deal with the acceptance of aspirants as fully fledged candidates, with the provision that aspirants whose qualifications have been disputed will be allowed to stand as candidates providing their candidature is supported by “the Provincial Secretary, the Assessor Chiefs and by two-thirds of the Chiefdom Councillors present and voting by secret ballot”The Act recapitulates current practice in . the election process: 1) winning candidates should poll 55% of the votes and the runoffs should be decided by simple majority; 2) when a new Paramount Chief is elected, all Chiefdom Councillors sign an Attestation Document signifying their agreement to recognize the new chief and “obey his lawful order and instructions”; 3) the government recognizes the election as valid when it accepts a report from the Provincial Secretary signalling satisfaction with the conduct of the election. Section 18 goes on to state that “the validity of the election of any person as a Paramount Chief may be challenged by any Chiefdom Councillor of the chiefdom within seven days after the declaration of the result of the election by a petition addressed to the High Court” All . the grounds for challenge relate to the eligibility of candidates as covered by Sections 8 and 9, except for a Section 18 (1b), which provides for a challenge if “the election was otherwise improper” However, an earlier clause appears to rule out . challenges to election results on the basis of fraudulently inflated taxpayer lists. Section 4(3) states that “subject to paragraph (b) of sub-section (1) of Section 18, the election of a Paramount Chief shall not be invalidated by any irregularity in the revision on the Gazette List used for the election, but it is an offence for any person compiling that list to knowingly take into account an inflated number of taxpayers” . 95. Interview, Paramount Chief Charles Caulker, Freetown, May 2002; Interview, Paramount Chief Bai Sunthuba Osara III, Gbonkolenken Chiefdom, December 2008. 48 96. see BKM case study, box 4, page 41 49 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Sections 19 and 20 deal with the removal of Paramount Chiefs and have been brought into line with Section 72 (4) of the 1991 Constitution, which states that “a Paramount Chief may be removed from office by the President for any gross misconduct in the performance of the functions of his office if after a public inquiry conducted under the Chairmanship of a Judge of the High Court or a Justice of Appeal or a Justice of the Supreme Court, the Commission of Inquiry makes an adverse finding against the Paramount Chief, and the President is of the opinion that it is in the public interest that the Paramount Chief should be removed. 97 Section 32 of the new ” Act repeals Sections 5 and 25(c) of the Provinces Act (Cap. 60 of the Laws of Sierra Leone, 1960), which allow for the removal of Paramount Chiefs for “subversive conduct. ” Sections 22-27 deal with the appointment and removal of Speakers and Sub-Chiefs. In the past, Speakers were often elected by Chiefdom Councillors but the new Act now states that they shall be personal appointees of the Paramount Chief. The rationale for this change, as explained by the Director of Local Government in a meeting of the Task Force on Local Government and Decentralization in 2003, was that some elected Speakers were using their “mandate” to challenge the authority of the Paramount Chief whenever he or she made an unpopular decision. The Act states that Section Chiefs shall be elected by the Chiefdom Councillors in the relevant section and that Town Chiefs shall be elected by the tax payers residing in the town. It goes on to state, in respect of both Town Chiefs and Sections Chiefs, that “if the Minister [of local Government] is satisfied with the conduct of the election, the newly elected chief shall be formally recognized by publication of the election in the Gazette”The Act goes on to state that Speakers, Section . Chiefs and Town Chiefs may be removed from office on the recommendation of the Chiefdom Committee following its investigation of complaints brought by the Paramount Chief, Paramount Chief and Councillors and local tax payers respectively. The Act specifies that appeals against removal are to be dealt with in the first instance by the Provincial Secretary with the final and binding decision resting with the Minister responsible for local government. 97 The Constitutional Review Commission’s proposed amendment to . this Section is: “ Paramount Chief may be removed from office by the A President for any gross misconduct in the performance of the functions of his office if after a public inquiry conducted under the Chairmanship of a Judge of the High Court or a Justice of the Appeal Court or a Justice of the Supreme Court, the Commission of Inquiry makes an adverse finding against the Paramount Chief, and the President is of the opinion that it is in the public interest that the Paramount Chief should be removed. The report of the Commission of Enquiry shall, for the purposes of this Constitution, be deemed to be a judgment of the High Court of Justice and accordingly an appeal shall lie as of right from the Commission to the Court of Appeal, and if thereafter the President is of the opinion that it is in the public interest that the Paramount Chief should be removed, it should be done accordingly. See Report of the Commission to Review ” the Constitution of Sierra Leone, 1991, January 2008. 50 Section 28 of the new Act states that “the Polling of any Paramount Chieftaincy election shall be supervised by the National Electoral Commission whose decision on an electoral issue shall be final” Section 29 lists the duties of . Paramount Chiefs as set out in the amendments to the 1991 Constitution: a) “supervise the collection of local tax and assist the appropriate authority in the collection of other lawful taxes to which members of his chiefdom are subject”; b) “use his best ability to prevent the commission of offences within his chiefdom and to maintain order and good government within his chiefdom”; 3) “preserve or promote, as appropriate, and to serve as the guardian of the customs and traditions of his chiefdom”; 4) “to all intent and purposes a Paramount Chiefs shall serve as an agent of development in his chiefdom”; 5) “to supervise the election of all Sub-Chiefs in his chiefdom” . It is also stated that “for the purpose of his functions” a , Paramount Chief shall “use his best ability to secure the making of the appropriate bye-laws by the Chiefdom Council. The government’s initiative in making the election of Paramount Chiefs a specific subject of legislation is to be applauded, and Section 7 of the new Act that seeks to give paramount chieftaincy elections greater protection from political interference is particularly welcome. However, the Chieftaincy Act, 2009 clearly does not go far enough in terms of reforming the ills that have been plaguing the chieftaincy system in the past decades. The failure of the government to reform the Electoral College system in chieftaincy elections is particularly alarming. As we saw in the previous chapter, case studies illustrate how readily the present system for electing Paramount Chiefs is abused. Control over Chiefdom Councillor lists is in the hands of few people and they can easily be manipulated to favour particular aspirants. A lack of consistent records of taxpayers in a Chiefdom also makes it very easy to bloat the list of tax payers. As a result, Chiefdom Councillors often do not function as individuals conferring with those they represent to make considered votes in paramount chieftaincy elections as much as names and numbers on a list that are mobilized by groups competing to control chieftaincy elections in pursuit of their own selfish interests. Section 4(3) states that fraudulent inflation of taxpayer lists is an offence but also states that “irregularities” in the revision of the gazetted Chiefdom Councillor list shall not constitute grounds for invalidating an election. Here the government is acknowledging, tacitly, that fraud is commonplace in the revision of Chiefdom Councillor lists. Yet it seems to be worried that if legal challenges to election results were permitted on these grounds, the whole system for electing paramount chiefs could collapse under the weight of these challenges. If the system requires such protection, there is something fundamentally wrong with it. Rather than protecting the system from legal challenges the government should have set about reforming it. Any system that prevents the majority of local citizens from voting or their political leaders is undemocratic. The Electoral College system is skewed in favour of elderly males; women and youth are marginalized. If the Chieftaincy system is to survive, political accountability needs to shift downwards. Furthermore, the Act is either deficient or inconsistent on several issues, both major and minor. First, given that the government has recently reported for the first time on the Convention on the Elimination of Discrimination against Women (CEDAW), and given that there are female Paramount Chiefs in some southern chiefdoms, the constant reference to a Paramount Chief as “he” in the text of the Act is unacceptably gender biased. Second, the provisions in the Act regarding Ceremonial Chiefs do not solve the problem that arose in the above-noted Biriwa case, where the government decided that such chiefs were not part of Limba “custom” and local Limba emphatically disagreed. It is certainly true that titled officials with ceremonial duties connected to the death and crowning of chiefs have a public profile in the Temne-speaking area, but there are very few areas in Sierra Leone where Paramount Chieftaincy is not “linked” with secret societies in one way or another. Who therefore decides what is and what is not “customary” for each chiefdom? Third, the same question applies to the new provisions on rotational crowing. While the removal of the requirement for written proof of rotational crowning agreements is welcome, who now decides on the order of rotation? Fourth, while the Act states that a Paramount Chief should serve as “an agent of development in his chiefdom” there , is no mention in the Act whatsoever of the decentralized councils. The LGA is explicit in establishing the District Councils as the highest authorities in their localities with primary responsibility for development. At first sight, this clause might not appear controversial since Paramount Chiefs are already members of WDCs and elect their own representatives to sit on District Councils. However the new Act does not make it clear whether Paramount Chiefs’ newly specified functions as agents of development are a reflection of their existing involvement in the District Council system or whether it provides them with statutory license to engage in development activities independent of District Council oversight. Gaps and contradictions within local government legislation have already created conflicts over roles and responsibilities and the new Act seems to be multiplying them rather than reducing them. Fifth, similar gaps and contradictions appear in other provisions of the Act. For example, the newly defined functions assigned to Paramount Chiefs overlap with those assigned to Chiefdom Councils under Cap.61 of the Laws of Sierra Leone, 1960. While this overlap reflects the fact that the Paramount Chief is also the head of the Chiefdom Council, the Act appears to be making the office of Paramount Chief a new focus of these powers and functions at the expense of the Chiefdom Council. All the historical evidence points to the fact that the centralization of power at the chiefdom level creates division and conflict and this section should not have been included in the Act without further clarification of Paramount Chiefs’ powers vis a vis those of Chiefdom Councils as set out in Caps. 60 and 61 of the Laws of Sierra Leone (1960) and subsequent amendments. Furthermore, why are Members of Parliament, and Minsters who happen to have been born in a particular chiefdom, included in Chiefdom Council lists by virtue of their offices (which, incidentally, are hardly “customary” offices), but not District and Town Councillors whose wards lie wholly or partially within that chiefdom? Sixth, why does the Act limit eligibility to challenge the result of chieftaincy elections to Chiefdom Councillors? Surely it is the right of all citizens to seek relief in the courts for their legitimate grievances? Further problems arise over the role of the NEC. With respect to Section 4(4), it is not clear what form of “revision” of the Chiefdom Council list is being referred to. Historically revising the list entailed re-calculating the allocation of Chiefdom Councillors to each locality in the chiefdom based on the latest local tax assessments. But as we saw in the Biriwa case, it can also mean adjusting and updating a gazetted list based on a tax assessment made several years earlier. Are NEC officials going to have access to the raw tax data in order to ensure that the list is compiled in accordance with the rules, or are they going to be asked to approve a list that has simply been updated to fill vacancies caused by recent deaths of Councillors? It is not clear whether the new Act really achieves anything more than returning the NEC to its pre-2006 role in observing paramount chieftaincy elections and ensuring that the ballot of Chiefdom Councillors takes place in a free and fair manner. The Executive Secretary of the NEC, interviewed in December 2008, argued that the NEC should have a much stronger role in chieftaincy elections than the Act currently allows. In the Commission’s view, the NEC should be on hand to ensure that the candidates registered by the Provincial Secretary actually go through the Declaration of Rights process and meet the qualifications required by law. The Commission also argues that the NEC should be taking the lead in the registration of voters, meaning that the NEC should be managing and authorizing the revision of Chiefdom Council lists.98 Given the problems with chieftaincy elections detailed in the last chapter, the case for handing over chieftaincy elections to a professional election management body is compelling. But the NEC would be even better placed to carry out its constitutional mandate if the principle of universal adult suffrage was introduced to paramount chieftaincy elections. Again, the draft Chieftaincy Act does not go far enough to ensure that paramount chieftaincy elections are free and fair. 98. Interview, Stephen Aiah Mattia, NEC Executive Secretary, Freetown, December 2008. 51 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Finally, some sections of the Act continue to support excessive central government control over chieftaincy affairs. For example, the Act specifically states that Provincial Secretaries should preside over chieftaincy elections in their capacity as Declaration Officers and that government recognises the validity of an election based on Provincial Secretaries’ reports. In effect therefore, Provincial Secretaries are both managing elections and monitoring them on behalf of the government. It is not clear who is monitoring their performance. Furthermore, while the Sierra Leone government’s effort to standardize the appointment of sub-chiefs is to be applauded, it is not clear why these community-level elections should require the approval of the Ministry of Local Government. It is doubtful whether provincial secretariats have the administrative capacity to monitor the elections of Town Chiefs and Section Chiefs in remote rural areas and thus whether it is feasible to expect formal notification of Sub-Chiefs’ elections to appear in the Gazette outside the normal revision of Chiefdom Councillors lists every three years. Yet the Act grants the Local Government Ministry the power to annul the appointment of any Sub-Chief whose election it considers unsatisfactory, without specifying the grounds for that dissatisfaction or, it would appear, requiring the Ministry to actually monitor that election. The Act goes on to state that Speakers, Section Chiefs and Town Chiefs may be removed from office on the recommendation of the Chiefdom Committee following its investigation of complaints brought by the Paramount Chief, Paramount Chief and Councillors and local tax payers respectively. But since a Paramount Chief is also the Chairman of the Chiefdom Committee, he or she cannot bring personal complaints against a Speaker or Section Chief for investigation by the Committee without creating a conflict of interest. According to the Act, appeals against the removal of Sub-Chiefs from office are to be dealt with in the first instance by the Provincial Secretary with the final and binding decision resting with the local government Minister. While the Act has some positive features, concern has to remain that the government is intent on retaining direct control over the chieftaincy system in order to carry on using it as an instrument of political control over the countryside The present system is fundamentally anti-democratic and facilitates the very abuses of power that brought chieftaincy into discredit before the recent civil war. 3.2 The Local Courts Bill, 2008 and the Justice Sector Reform Strategy On paper, the Local Courts Bill, 2008 is a far more radical piece of legislation than the Chieftaincy Act 2009. In essence, the Bill updates and expands upon the provisions of the Local Courts Act, 1963 and subsequent amendments. The radical feature of the Bill is to transfer the administration of Local Courts from the Ministry responsible for Local Government to the Ministry of Justice. The Chief Justice now appoints the Court Chairman and all other functionaries after consultation with the Judicial and Legal Service Commission.99 A Local Courts Service Committee will also be established for each Province, for the purpose of advising the Commission on appointments, transfers, promotions and dismissals of officers and servants of Local Courts (Section 7 (1)). The Committee is chaired by the resident High Court Judge of the Province and consists of a Paramount Chief representing the Council of Chiefs in the Province, a representative of the Minister responsible for judicial affairs,, the Provincial Secretary, a person with experience in the administration of Local Courts and a representative of the District Council. Members of each Local Courts Service Committee are appointed by the President. While the Local Courts Service Committee has some similarities with the Local Court Service Commission that was established by the original Local Courts Act of 1963 (See above, page 20), it is now less of an ad hoc body. It does not therefore include the Paramount Chief of the particular chiefdom in which court appointments are being made at any given time. The Chiefdom Council no longer has a role in appointing lesser court functionaries (i.e. Vice-Chairman, Clerk of Court, Finance Clerk and Bailiff) and all fees, penalties, fines, and other monies taken by the court are now to be paid directly into the Consolidated Fund rather than chiefdom bank accounts as before. The salaries of Court Chairmen and all other functionaries are now to be paid out of the same Fund. The Sierra Leone Government’s new Justice Sector Reform Strategy recognizes the pivotal role played by chiefs in the delivery of ‘primary’ justice.100 The strategy seeks to improve the quality of ‘primary justice’ in the country through activities that include training chiefs in basic concepts of human rights, jurisdiction, appointment and tenure, and basic record keeping. The 2008 strategy document also acknowledges the chiefdom police as being in the frontline of crime prevention in many local communities. It is expected that the Ministry responsible for Local government will “clearly define the roles and responsibilities of the Chiefdom Police, train them to carry out these roles and responsibilities and develop an effective performance management system.101 99. As established by section 140 of the Constitution 100. Primary justice is defined in the strategy as that delivered by local courts and paramount chiefs’ courts. 101. Government of Sierra Leone, 2008. Justice Sector Reform and Investment Plan: 2008-2010, Freetown, March 2008 The effect of the Local Courts Bill, 2008 is to separate the local law courts completely from chiefdom administration. For the first time in Sierra Leone’s history, the formal justice system has been placed under one institutional umbrella, breaking down old divisions created by colonial “indirect rule. As ” discussed above in Chapter 2.2.4, the great advantage of this change is that a single authority will take overall responsibility for the appointment, training and terms and conditions of employment of all local law court functionaries. Answering to a clear chain of command will enable these functionaries to resist anyone seeking to exert political leverage on their decision making. With court revenues paid directly into the government’s coffers and the government taking responsibility for functionaries’ salaries, both the opportunity and incentive for financial corruption in the local law courts should be greatly reduced. The Local Courts Bill is a historic step forward in Sierra Leone’s system of governance and justice and the sooner it is fully implemented the better. However, there is no reason why the principles applied in the new Bill cannot also be applied to the Chiefdom Police. Looking at the situation logically, the agency that should be taking the lead role in defining the roles and responsibilities of the Chiefdom Police should by the SLP Hopefully, the new Bill . can go on to set a precedent for further reforms of this kind. 3.3 The Local Government Act, 2004 The Local Government Act, 2004 is the oldest piece of legislation considered in this report and is already the subject of an internal governmental review. One of the main areas earmarked for review is the division of functions between the local councils and the chiefdoms.102 Clearly, the local revenue collection system requires urgent attention and along with it the overlap of functions between chiefdom structures and WDCs. But the root of the problem is the old idea, inherited from colonial “indirect rule”that the chiefdoms are responsible , for law and order while the local councils are responsible for development. As we have seen, the Chieftaincy Act, 2009 is now emphasizing that Paramount Chiefs should serve as agents of development. If it achieves nothing else, the review of the 2004 Act should seek to ensure that chiefs become part of the local government system and not remain in competition with it. 102. Interview, Emmanuel Gaima, Director, DecSec, December 2008. 53 52 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 4. Chieftaincy and Decentralization in other African Countries: What Lessons for Sierra Leone? There have been close links between Sierra Leone and Ghana on policy relating to chieftaincy for many years. Many of the colonial laws on chieftaincy in Sierra Leone were adapted from existing laws enacted in Ghana (Gold Coast). More recently, former President Kabbah, then serving as an advisor to the NPRC junta, led a delegation to Ghana to learn from its experiences in planning and implementing democratic decentralization. Ghanaian chieftaincy experts also provided inputs into the short-lived Task Force on Chiefdom Governance set up by the Kabbah government in 2006.103 Sierra Leone’s post-war decentralization programme was also based on lessons learned in Uganda, which is generally regarded as having one of the most far reaching decentralization programmes in the whole of Africa. As part of UNDP’s assistance to the Sierra Leonean programme, the head of the Ugandan Decentralisation Secretariat participated as an advisor to the Kabbah government’s Task Force on Local Government and Decentralization for 10 months in 2003. One of the striking differences between Sierra Leone and Ghana and Uganda is that in these two countries, there is no separate sphere of chiefdom governance responsible for collecting tax and maintaining law and order. Both countries have a system of elected councils that extend from the district level right down to the village level. These councils are responsible for collecting all local revenues and helping to maintain national security. Chiefs have no formal role in them. In Ghana, 30% of all seats in local government councils were reserved for chiefs until 1988, when the Rawlings administration removed that privilege. One third of the membership of District Assemblies is still appointed by central government and traditional leaders are often included in these appointments in their individual capacities as respected community leaders (Crook, 2005). Section 246(f) of the Constitution of Uganda (1995) states explicitly that: “a traditional leader or cultural leader shall not have or exercise any administrative, legislative or executive powers of Government or local government” and Section 246(3d) states that: “no person shall be compelled to pay allegiance or contribute to the cost of maintaining a traditional leader or cultural leader. The constitutions of both countries also exclude ” chiefs from taking part in “active party politics” (Ghana) and joining and participating in “partisan politics” (Uganda). Chieftaincy in both countries has a more corporate character than chieftaincy in Sierra Leone, in the sense that chiefs derive income from managing community assets attached to their offices Section 246(3a) of the 1995 Constitution of Uganda, drawn up two years after the institution of chieftaincy was formally restored by the Museveni administration, states that chieftaincy is a “corporation sole with perpetual succession and with capacity to sue and be sued and to hold assets or properties in trust for itself and the people concerned. Ugandan chiefs derive income from land rents, donations from external sources and voluntary contributions from their subjects (Mukyala-Makiika, 1998). Ghanaian chiefs have been collecting rents from stool and skin lands since pre-colonial times. Both the intent and effect of chieftaincy legislation in both countries is to place chiefs firmly within the realm of civil society. Chiefs in Ghana and Uganda continue to wield considerable influence in local and national affairs, but they do so in their capacity as leaders and representatives of particular communities. In Ghana, chiefs themselves often acknowledge that their formal exclusion from party politics ensures that their position as community leaders is not compromised. For example, according to Barimah Kwame Nkyi, Omanhene of the Assin Traditional Area, “a chief swears oath of office and allegiance to his people and indulgence in active partisan politics will mean serving two masters and such divided allegiance impairs the trust and the confidence that his people have in him” He argued further that a chief in partisan . politics may expose himself to the dictates of the party and could be victimized should the party he supports lose power. Furthermore, in an address to the National House of Chiefs in 1996, its President noted: “On the participation of Chiefs in politics, a Chief who dabbles in politics is likely to be treated like a politician who could be hooted at or booed. This would not only undermine his position but ultimately desecrate the institution of chieftaincy as a whole” (Boafo-Arthur, 2001). It might be argued that chiefs in Ghana and Uganda have had little choice but to become leaders in civil society. Early post-colonial governments in both countries were far more ideologically driven than their counterparts in Sierra Leone and specifically sought to quell the political influence of powerful indigenous kingdoms (Asante in Ghana and Buganda in Uganda) that had prospered under colonial “indirect rule. ” Larger and richer countries than Sierra Leone have the luxury of not having to rely on chiefs to perform governmental functions at the local level. Yet, there are clear benefits to both chiefs and their people when chieftaincy remains a strictly civil institution. In Ghana in particular, there are regional and national Houses of Chiefs whose main duties, as established by Section 272 of the Constitution are: a) to advise any person or authority charged with any responsibility under this Constitution or any other law for any matter relating to or affecting chieftaincy; b) to undertake the progressive study, interpretation and codification of customary law with a view to evolving, in appropriate cases, a unified system of rules of customary law, and compiling the customary laws and lines of succession applicable to each stool or skin; c) undertake an evaluation of traditional customs and usages with a view to eliminating those customs and usages that are outmoded and socially harmful d) perform such other function, not being inconsistent with any function assigned to the House of Chiefs of a region, as Parliament may refer to it. In other words, when not burdened with the political and administrative work of the central state, Ghanaian chiefs become free to develop their own special sphere of governance. Another benefit of “civil” chieftaincy is that it can become a corporate foundation for community development. For example, the Kingdom of Buganda, is registered as a development agency and has been able to secure funding from the Ugandan government and international NGOs.104 In Ghana, the World Bank has recently established a special lending facility, known as the Learning and Innovation Loan (LIL), whose main purpose is to “test approaches to substantially integrate and improve deprived remote and rural communities led by the traditional authority and help focus the contributions/influence of traditional authorities in socioeconomic development” (Guri, 2006). There are several lessons here for chieftaincy reform in Sierra Leone. First, while the authors of this report are not recommending the removal of chiefs from the local government system in the foreseeable future, the experience of Ghana and Uganda emphasizes that, where chieftaincy is concerned, there is a trade off between formal political power and community representation. Second, an institutionally integrated local government system is always going to be more efficient in delivering services and responding to local development needs than one in which functions are divided between separate and competing institutions. Third, when chieftaincy becomes a strictly civil institution, it is better placed to develop its own special sphere of governance and adapt to social and economic change. Fourth, freedom from political work on behalf of the central state also allows chiefs to take a lead in civil society organizations capable of attracting external development funding. Finally, there is a lively debate in both Ghana and Uganda over the relevance of chieftaincy in a modern state and the role it should be playing in the 21st century. Some chiefs continue to campaign for greater involvement in the formal government system, while modernizers argue that chieftaincy is retrogressive and undemocratic and better left out of the state system. Debate is healthy for democracy and chiefs are always likely to win greater public support when they seek to demonstrate their continuing relevance than simply relying on central government to keep them in power. 103. This Task Force ceased operations ahead of the 2007 Presidential and Parliamentary elections and was not reactivated by the incoming APC Government. It did not produce a public report. 54 104. The Buganda Development Agency has a website at www.buganda.or.ug. 55 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone 5. Recommendations and Conclusions The following recommendations for reforming the chieftaincy system are based on the evidence and analysis presented in the previous chapters. 5.1 Accountability and Good Governance Reforms A. Introduce Universal Adult Suffrage in Paramount Chieftaincy elections. This will ensure that elections are truly democratic and Paramount Chiefs are representative of all of their people. If people are allowed to elect their chiefs, chiefs become accountable to the community, not to the brokers and manipulators who seek to control chieftaincy elections. Peace and security will therefore increase. E. Reincorporate the National Council of Paramount Chiefs as a Body with Specific Constitutional Responsibilities The National Council of Paramount Chiefs should be renamed National Council of Chiefs and fully incorporated based on the model of the Ghanaian House of Chiefs. The new body should be fully funded and work with the Law Reform Commission on the restatement of customary law, investigate land tenure reform in the Provinces and advise the Local Government Ministry and NEC on matters pertaining to rotational crowning agreements and ruling house eligibility during chieftaincy elections. 5.2 Justice and Human Rights Recommendations G. Extend Legal Recognition to Chiefs’ Leading Role in Local Dispute Resolution This role should receive statutory recognition and should be the basis upon which chiefs receive salaries (see recommendation D). Clarifying this role will help to improve liaison between chiefs, the police services and the formal court system. Disputes over customary land rights are a special case and it is vital that these are properly recorded. Chiefs require support from government in formalizing these adjudications. B. The NEC Supervises Paramount Chieftaincy Elections Paramount Chieftaincy elections are public elections and should therefore be supervised by the NEC. This will allow the NEC to carry out its constitutional mandate and help to ensure that chieftaincy elections are free and fair and fully regulated by the law. A list of aspirants should be published well in advance of the election and their eligibility should only be investigated when it is the subject of a formal written challenge from a citizen of the chiefdom. Challenges should be heard by the Local Courts and the Declaration of Rights meeting should be abolished. F. Establish a Chieftaincy Commission This independent body will regulate chiefs’ salaries, develop a code of conduct for chieftaincy and investigate complaints against chiefs raised by citizens. The Chieftaincy Commission should have the power to recommend to the President that a Commission of Inquiry into the conduct of a Paramount Chief is necessary, but it must also be bound by law to forward evidence of illegal activity on the part of bureaucrats and private citizens to the relevant authorities. H. Restate Customary Law A restatement of customary laws and usages would improve all justice practitioners’ knowledge of these laws, and generate more informed understanding of the social context in which they are applicable. This is work that should be done by the upgraded National Council of Chiefs in partnerships with Customary Law Officers and the Law Reform Commission. Restatement is not codification and the purpose of the exercise is to improve the performance of the justice system rather than transform customary law into written law. I. Reform the Chiefdom Police The Chiefdom Police should be reformed into a rural auxiliary police force, trained by the SLP but with less stringent entry qualifications. The new force should serve the local councils as well as chiefdom authorities. C. Incorporate the Chiefdom Committee as a Local Government Body UNDP consultant C.Viswasam’s recommendations of nearly 40 years ago must be implemented. The Chiefdom Committee, rather than the Chiefdom Council, should be recognized in law as the governing body of the chiefdom and its structure, roles and responsibilities must be redefined to reflect this (See recommendation M). The Chiefdom Council serves no useful function except as an instrument of patronage and should be abolished. J. Enact the Local Courts Bill, 2008 The Bill represents a key step in the reform of the chieftaincy system and the integration of chiefdom-level structures into the state system. It should be enacted without delay. D. All Chiefs Receive Salaries Chiefs of all ranks perform key roles in maintaining social order in rural areas (see recommendation G) and should receive government salaries for this work. They should not have to rely on community contributions to make up for time lost in securing their livelihoods and local taxes should pay for welfare services and development. Sub-Chiefs should receive graded salaries and the rebate on local tax collection should be abolished. 56 57 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone References 5.3 Taxation and Representation Recommendations K. Local Councils Take over Responsibility for all Local Revenue Collection District and Town Councils should become responsible for all revenue collection, which should now fund welfare services and development activities. 5.4 Conclusions There is nothing in these recommendations that would represent a radical departure from local governance practices in other African countries that have chieftaincy systems. On the contrary, these recommendations would bring Sierra Leone more into line with the local governance systems now found in counties like Ghana and Uganda. The authors of this report do not anticipate that chiefs will cease to play a role in the local government system in the foreseeable future, but governance practices that simply reproduce the divisions of colonial “indirect rule” have no place in a modern African state. Even today, there is great respect in rural areas for the institution of chieftaincy. 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Extend Statutory Recognition to the new Generation of VDCs Villages represent the bottom tier of local administration in rural areas and statutory recognition of these structures will pave the way for their incorporation into the local government system. M. Replace Ward Development Committees with VDCs and Reformed Chiefdom Committees WDCs should be abolished and their functions returned to reformed Chiefdom Committees. The new Chiefdom Committee should comprise of the Paramount Chief (chairman), Speaker, Section Chiefs, Local Councillors representing wards wholly or partially located in the chiefdom and 5 men 5 women elected by the people. Chiefdom Committees should become part of the local government system along with the VDCs and have development budgets approved by the District Council. Committee members should receive expenses for attending meetings. 58 59 Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Reform is not Against Tradition Making Chieftaincy Relevant in 21st Century Sierra Leone Persons, Organizations and Communities Consulted, 2008-9 Government of Sierra Leone Dr Julius Sandy, Public Sector Reform Unit Joe Lebbe, Director of Local Government, Ministry for Internal Affairs, Local Government & Rural Affairs (2005) Emmanuel Gaima, Decentralisation Secretariat Christiana Thorpe, National Electoral Commission (2007) Stephen Aiah Mattia, National Electoral Commission Abraham John, Human Rights Commission Vandie Nabie, Human Rights Commission Other Chiefs Chief Younge, Mende Tribal Headman, Freetown This report was researched and written by Richard Fanthorpe and Mohamed Gibril Sesay. With contributions from Abubakar Sidique Turay (Justice and Human Rights section) and Momo Taziff Koroma. Chiefdom Functionaries Treasury Clerk, Biriwa Chiefdom, Bombali District (2003) Treasury Clerk, Kunike Chiefdom Treasury Clerk, Kunike Barina Chiefdom Central Chiefdom Finance Clerk, Tonkolili District Community Discussions and Focus Groups Youths, Kamabai, Biriwa Chiefdom, Bombali District (2005 and 2007) Massahun, Kakua Chiefdom, Bo District Rokupr, Magbema Chiefdom, Kambia District (2002) Gbonkomaria, Magbema Chiefdom, Kambia District, (2002) Kpetema, Bumpeh Ngao Chiefdom, Bo District Yeikandor and Wonde, Njaluahun Chiefdom, Kailahun District Chiefdom Authorities, Makali, Kunike Barina Chiefdom Fowaya, Peje Bongre Chiefdom, Kailahun District Segbwema, Njaluahun Chiefdom, Kailahun District Kabala, Warra Warra Yagalla Chiefdom, Koinadugu District Binkolo, Safroko Chiefdom, Bombali District Joru, Gaura Chiefdom, Kenema District Koidu, Gbense Chiefdom, Kono District Makeni, Bombali Sebora Chiefdom, Bombali District Local Government Chairman, Bo District Council Eric Dura Sesay, Chairman, Bombali District Council (2005 and 2007) Dr. Wusu Sannoh, Mayor, Bo Chief Administrator, Pujehun District Council Chief Administrator, Bo District Council Deputy Chairman, Bo District Council Finance Officer, Pujehun District Council Paramount Chiefs and Speakers PC Alhaji Issa Kamara-Koroma, Gallinas Perri Chiefdom, Pujehun District PC Amadu Kaikai, Kpanga Kabonde Chiefdom, Pujehun District PC Bai Koblo Queen II, Marampa Chiefdom, Port Loko District PC Thomas Kposowa, Bumpeh Ngao Chiefdom, Bo District PC Bai Sunthuba Osara III, Gbonkolenken Chiefdom, Tonkolili District PC Bai Sebora Kasanga II, Makeni, Bombali District (2005) PC Charles Caulker, Bumpeh Chiefdom, Moyamba District (2002) Alimany Alusine Seku Conteh, Chiefdom Speaker, Kamabai, Bombali District (2007) CBOs Kunike Youth Development Organization, Masingbi, Tonkolili District Market Traders, Bo Bike Riders Association, Bo. NGOs Ngolo Katta, Centre for the Coordination of Youth Activities Tennyson Williams, ActionAid Ambrose James, Search For Common Ground Frances Fortune, Search For Common Ground Victor Kalie Kamara, CAP Rokupr, Kambia District (2002) , Deltha Kamara, CAP Rokupr, Kambia District (2002) , Community aminator, Focus Group, Network Movement for Justice and Development Musa Mewa, National Accountability Group Brima Sheriff, Amnesty International-Sierra Leone Sub-Chiefs and other Chiefdom Authorities Regent Chief, Bramaia Chiefdom (2001) Town Chief Osman Bangalie, Imperri Chiefdom, Bonthe District Isaac K. M. Sheriff, Caretaker Chief and Treasurer, Imperri Chiefdom Mohamed Sidi Ahmed, Youth Chairman Imperi Chiefdom Isatu Pompoli, Section Mammy Queen, Bumban, Bombali District (2007). Regina Posseh Kalawa, Head Mammy Queen, Kamabai, Bombali District (2007) Yayah Conteh II, Section Chief, Bumban, Bombali District Doris Alpha, Chiefdom Police, Valunia Chiefdom, Bo District Donor Agencies Chiara Bellini, European Union Sylvia Fletcher, UNDP (2005) Edward Kamara, UNDP Grainne O’Neil – Irish Aid Chris Gabelle, DFID 60 61 This report was commissioned by: Campaign for Good Governance Methodist Church Sierra Leone Network Movement for Justice and Development Supported by Funded by Irish Aid MAPS This document has been produced with the financial assistance of Irish Aid. The contents of this document are the sole responsibility of PICOT and CGG and can under no circumstances be regarded as reflecting the position of Irish Aid.
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