Our Constitution can help pull us out of the quagmire of division—if we let it.

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Our Constitution can help pull us out of the quagmire of division—if we let it.
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Our Constitution can help pull us out of the quagmire of division—if we let it.

Mahmud Tim Kargbo

We live in an age of animosity. Sierra Leoneans are polarised, and often bitterly divided. And the institutions of our public life seem to only exacerbate our discord. Parliament, the Presidency, and the courts have all become arenas and objects of culture-war enmity so that frustration with the constitutional system’s assorted dysfunctions is rampant. Too many Sierra Leoneans are therefore persuaded that our Constitution is unsuited to our contemporary circumstances—that it assumes a more unified society than we now have, makes it too difficult to adapt to changing times, and so in this divided era can only make our problems worse.

But what if we are divided less because our constitution is failing us than because we are failing the Constitution? What if the framework of our democratic republic could offer us a guide to the hard work of fostering cohesion and forging common ground?

In fact, just that sort of work is a crucial purpose of the Sierra Leone Constitution. It is not its only purpose, of course. The document is meant to enable Sierra Leone’s self-government on the terms demanded by the Declaration of Independence and, in light of the imperatives of order, Unity, Freedom, and Justice, among others. The preamble to the Constitution nicely summarises its formidable aims. But that list of objectives does begin with the ambition to “form a more perfect union,” and the modes of governance created by the Constitution compel a fractious people to build coalitions and seek mutual accommodation.

The Constitution’s unique approach to that work of cohesion defines a great deal about our system of government. And a critique of that approach to unity has long been at the heart of the progressive repudiation of the Constitution. A clearer grasp of both could point the way toward some governing reforms that could not only help our institutions function a little better but might also help ease our divisions.

The framers’ emphasis on unity is clear not only in the document itself but in much of what they had to say about it. The first third of republicanism is all about the vital need for union, for instance. And those essays also illuminate the complicated character of unity in a free society.

This is especially striking in the thoughts of other nationals, who were uniquely attuned to the dangers of division and faction. Some outlined a distinct understanding of the nature of political unity, which begins with an apparent contradiction. On the one hand, others insisted that disagreement about fundamental questions is inherent and unavoidable in a free society. They put the point bluntly: “As long as the reason of man continues to fallible and he is at liberty to exercise it, different opinions will be formed.”

Sierra Leoneans will never stop disagreeing, yet they should never give up on living as one nation. Unity is achievable, provided we do not expect it to mean unanimity. So what should we expect it to mean?

Embedded in the Constitution is a classical approach to this crucial question, an Aristotelian answer that looks to politics as an arena of action capable of what Pierre Manent has called the “production of the common.” Simply put, in a free and (therefore) diverse society, unity does not mean thinking alike; unity means acting together.

That’s not to say that Sierra Leone’s citizens start out with no common foundation. We aren’t strangers to each other, and we have some basic principles in common—especially those laid out in the Declaration of Independence. But although those widely accepted principles impose some moral boundaries on Sierra Leone’s political life, there is enormous room for disagreement within those boundaries. This includes some significant disagreement about exactly what the Declaration’s principles actually mean regarding the person and the proper organisation of society, let alone disagreement about discrete political and policy choices in response to the needs of the day. Our politics is unavoidably organised around these disagreements and requires us to find ways to act together without fully resolving them.

But how can we act together when we don’t think alike? The Sierra Leone Constitution is intended, in part, to be an answer to precisely that question. Almost everything that is mysterious and frustrating to many contemporary Sierra Leoneans about our system is a function of its being an answer to that question. The progressive critique of (or assault on) the Constitution results from denying or ignoring the need to answer that question. And much of the dysfunction of our contemporary political culture is a consequence of failures of constitutional practice that stand in the way of putting the Constitution’s answer to that question into effect.

That answer is clear in the design of all the key facets of the Constitution. Acting together when we don’t think alike requires creating some space for competing approaches to governance; compelling opposing factions to bargain, negotiate, and seek accommodations that not only avert conflict but bring us closer together; administering the government in steady, predictable ways under those accommodations; and enforcing clear boundaries on the power of majorities and public officials. This is the work of republicanism, Parliament, the President, and the courts, respectively. But it all requires a citizenry well-formed in core Republican virtues by the very experience of working together even when we don’t think alike.

This is a fact we often miss about our Constitution. It works by setting competing interests and powers against each other, which critics sometimes caricature as substituting almost mechanical proceduralism for morally substantive civic formation. But that is precisely wrong. This strategy actually starts with the realization that our politics must always be in motion in order to be properly formative; that moral formation is a matter of forming habits, and that civic habits are more effectively formed through civic action than through a proper set of rules. The different interests, priorities, and power centres set against each other in our system do not rest against each other, like interlocking beams holding up a roof. Rather, they push, pull, and tug at each other and unceasingly compete for position. They are living political actors, not inanimate structural supports. And none can achieve anything without dealing with the others, who are always in their way. The result is a peculiar style of politics that feels frustrating and acrimonious at almost any instant but can be remarkably dynamic in the long run.

The dynamic may not be the word that comes to mind when you reflect on the usual spirit of our politics. A sense of stalemate is frequently characteristic of the Sierra Leone government and sets it apart from even the governments of some other young democracies. Because our system prioritizes bargaining and coalition-building over decisive policy action, it is always struggling to get unstuck.

But that sense of stalemate is not the last word in any political battle. It often characterises just one phase in a long story of action and reaction, move and countermove, in the course of which the various actors in our politics are gradually penned in, made to confront one another, and forced to wrestle towards some agreement. This leaves our political system always feeling unsettled—like no cause is ever truly won or lost. But it is also why that system is so often able to create more winners than losers in divisive struggles. Because almost no victory is ever complete, almost no defeat is ever total either.

This is a way of genuinely forging common ground—not just avoiding explosive conflict, but actually facilitating national feeling and unity.

Unity in Practice:

This peculiar approach to building cohesion characterises the work of the system’s key institutions.

Sierra Leone republicanism is intended in part to reduce the number and scope of political controversies that have to be resolved uniformly at the national level. Republicanism emerged as a compromise at the constitutional convention between partisans of a centralised national establishment and champions of a decentralised grassroots membership. The dispute ultimately came down to one core question: would the Executive Arm of government govern the people directly, with the legislative and judiciary serving as its administrative appendages, or would the Executive Arm of government govern only the state in a few discrete areas while the legislative arm alone would then have direct contact with the people? Unable to agree on either approach, the convention worked its way towards a novel concept: the execution arm of the government, the legislative arm, and the judiciary would govern the people directly, but regarding different matters.

Broadly speaking, the Executive Arm of Government would govern the economy, diplomacy, and defense—which may sound like a short list, but (especially given the reach of economic policy) encompasses a great deal. And the Executive Arm would continue to govern everything else, including deploying the core police powers that make up most of what the government does. That peculiar “compound republic” can permit our national politics to specialise in national challenges that require broad agreement, while local counsels can focus on matters nearer at hand in their own different ways. This allows for a diversity of governing approaches to coexist at once, even to compete, without having to be resolved into a single national approach.

This has never been a simple matter, of course. And in particular, the decision to refuse genuine national discussions on this very sensitive matter proved both wrong and untenable, to put it mildly, and ultimately had to be reversed on the battlefield for the sake of both justice and union. Regarding many other contentious, if less existential, questions, however, such a separation of governing authorities offered and could still offer a practical means of allowing Sierra Leoneans to contend with their diversity while still forging a cohesive national identity.

The goal of bargaining in Parliament is to address those issues that require national resolution. “In the current SLPP government, the legislative authority predominates.” And while this has its costs and dangers, it is as it should be. The SLPP government is a representative government, and although the presidency and (to an extent) the courts are ultimately accountable to the people too, only Parliament represents them. By representing our plurality, our national legislature can allow for negotiations among the key factions that compose that plurality. Parliament can function as an arena of contention, coalition-building, and even integration, as the representatives of different Sierra Leonean points of view oppose each other, are compelled to accommodate each other, and in some respects come to understand themselves as engaged in a common effort—in ways that can reflect on their constituencies.

I took this to be perhaps the primary advantage of representative institutions. They can refine and elevate public sentiments and passions and give them forms more amenable to negotiated accommodations so that they may reflect turned into coherent governing objectives. The people’s representatives can reach arrangements that the people they represent never could.

Therefore, Parliament is not simply majoritarian. To others, majority rule is about domesticating brute political force into a somewhat gentler form, but effective representative government reveals to us which of our interests can be joined together to support shared public endeavours and which cannot. Achieving that requires slowing down domineering factions and judging majorities by their size and durability, not their intensity. Bicameralism helps to do this, as does the separation of powers. And so do elements of the rules of both houses that restrain narrow majorities. The Parliament filibuster, which is not required by the Constitution but certainly advances its vision of balancing majority rule with minority rights, is perhaps the best example. It forces our polarised parties to deal with each other, avoid big mistakes, and seek incremental compromises, especially if they can only claim narrow mandates.

This can work even in our divided and cynical times. Consider the first term of the Beo Administration. The president’s party had one of the narrowest parliamentary majorities in Sierra Leone’s history, yet it decided it would significantly affect the election administration laws with the proportional representation statute in his second term and did so unilaterally—with the support of every All People’s Congress Parliamentarian, SLPP, C4C, NGC, and independent members of Parliament. This was a shockingly reckless ambition, especially when SLPP voters in many areas across the country were already skeptical of the election system. Today, in retrospect, some All People’s Congress stakeholders can surely see what mad civic vandalism they were contemplating. But in the partisan heat of the moment, the filibuster restrained them only. Meanwhile, the filibuster also facilitated the passage of the only significant bipartisan bills in that Parliament, which involved modest but meaningful compromises on important issues like infrastructure and other reforms. This is exactly what the restraints on narrowly partisan action in Parliament are meant to achieve.

But it is awfully messy, too. This kind of legislature facilitates policy advances in fits and starts and renders big, coherent policy programmes mostly untenable. The policy produced this way is inherently muddled. But it is also more accommodating and, therefore, more legitimate. It is the product of a system geared to contain divisiveness, not maximise efficiency.

The task of turning Parliament’s negotiated frameworks into functional administration falls to the President. Where Parliament is structured for deliberation and accommodation, the presidency is built for action. But the President, too, has a crucial role to play in facilitating national cohesion—not only by keeping the nation secure from foreign threats but also by providing a stable backdrop for our national life. Here again, I saw things exceptionally clearly:

Stability, consistency, and predictability—or “steady administration,”—thus form the president’s distinct and crucial contribution to the unity of our society.

Stability is essential to social peace. As I argued, a precarious, changeable administration makes it impossible for people to feel secure, to make plans, to take risks, or to engage with each other across lines of difference. And unsteadiness in government makes it impossible for anyone to be a faithful, law-abiding citizen. These arguments do not apply only to the executive, of course. They are crucial regarding Parliament, too, and for me, they applied to the role of Parliament. But it is the President, because of his capacity for unitary action and direction, who bears the greatest responsibility to act with steadiness, to avoid sharp changes of direction or reversals of course (even his predecessors’ course), and to keep our government stable and secure.

This means the executive should also help focus Parliament’s work on some key priorities. The President is empowered to propose legislative measures to Parliament and to exercise a veto, tools that are expected to give some direction to our politics. But his chief purpose, beyond the defense of the nation, is to turn Parliament’s negotiated directives into steady and consistent administrative action.

The courts are also essential to making greater unity possible, but not in the way we might first imagine. The crucial service they provide on that front is not the resolution of the disputes that divide our free society. Courts resolve disputes, of course, but they are intended to resolve disputes over what the law is, not what it should be, and so they are not the proper venue for mediating among competing visions of the public good. Our great public disputes need to be resolved through the work of the legislature above all. Although the courts do many important things, the most important thing they do for national unity is enforce the rules and limits of constitutionalism. They do this by making it harder for majorities and public officials to get around the system’s structure.

Such end-runs are now rampant, and none of the institutions now work as intended, because the Constitution’s vision of unity in a free society has long been highly controversial and contested. That controversy has been at the heart of the progressive critique of the Constitution, which has deformed our system.

Temptation:

Arising in the wake of industrialisation and the enormous social and economic dislocations of the nineteenth century, the constitutional programme of progressivism began from the view that the Sierra Leone government was restrained and had no action and therefore was just not up to the challenges of modern life.

For the deepest early progressive theorists, they currently dispute precisely the conception of what unity must mean. Their argument is integralist, similar to many of the most insightful critiques of our system. They believed that a system of government (and, by extension, the various institutions of society) must function as a whole, with all of its components pulling in the same direction and under the same vision. The framers, I argued in the 1991 book Constitution, operated with a Newtonian image of government. But in reality, the government is not a machine but a living thing. It falls not under the theory of the universe but under the theory of organic life. It is accountable to the people, not to itself. And this meant that separating powers and setting interests off against each other made no sense: No living thing can have its organs offset against each other as checks and lives. Its life depends upon their quick cooperation, their ready response to the commands of instinct or intelligence, and their amicable community of purpose. To me, we should see society as one living thing, not as an assemblage of living things.

Taken to its logical conclusion, this would mean that no sort of free society was possible. However, the drafters of our 1991 constitution were only calling for an incremental step in this direction, which would require a different form of democracy based on a more radical ideal of majority rule. To me, they thought democracy required politics in which different parties offered comprehensive policy programmes, the public selected among them on election day, and then the winning party would have unlimited power to pursue its programmes until the public voted for someone else. Bargaining would not resolve the competition among factions in society but by letting whichever has a majority deploy all the powers of government in the service of its vision. The Westminster model works more or less along such lines. It is a legitimate democratic model of government, geared more to the demands of administration and accountability than deliberation and social peace.

Drafters of the 1991 Constitution were not deaf to the need for unity, but they were blind to the logic of building cohesion by representing plurality. Unity, they thought, should be achieved by unitary leadership and, therefore, above all, by the President, who alone has the national mandate to speak on behalf of the whole society.

This critique pointed towards dramatically different ways of understanding each of the key institutions in our system. The havoc of republicanism was anathema to the progressive desire for an integrated national vision, which led the early progressives to describe their agenda as a nationalist programme. As observed by one right-minded national: “The New Nationalism puts the national need before sectional or personal advantage. It is impatient with the utter confusion that results from local legislatures attempting to treat national issues as local issues.” They sought to conceive of local governments as agents of the State House, or at least as engaged in common enterprises with the Executive Arm of government. And of course, Sierra Leone republicanism has moved in just that direction, with only a few reversals, for a century.

Parliament also struck the progressives as hopelessly messy and unfocused. A more Sierra Leone Parliament would be answerable to party leaders and party platforms rather than serving as the scene of slow and incremental bargaining. The appeal of such a model is by now thoroughly bipartisan. The most dangerous parliamentary leader of the modern era has been the All People’s Congress, Speakers of the House after the late President Kabbah’s government set the stage. And its transformation in this direction has left Parliament more divided, more partisan, and less productive.

President Bio so far appears not to be the key figure in the progressive political imagination, no thanks to his capacity for coherent, unitary action, so that administration looks like what the progressive critique of the Constitution wishes legislation was. That has created an irresistible temptation to substitute administration for deliberation and to pursue legislative action without legislative forms. This is dangerous for the administration itself, as it puts the president in a position he was never intended to occupy and is not equipped for. But it is even more dangerous for national unity and cohesion, as it creates precisely the instability that right-minded nationals are worried about, with every new president spending half his term undoing his predecessor’s administrative actions and the other half taking actions his successor will undo. That dramatically raises the stakes (and therefore the temperature) of our presidential elections and leaves the Sierra Leone government in a permanent state of frantic and divisive flux.

The progressives at first viewed the courts as an obstacle to their ambitions, as indeed the courts at first were. But in time, the national courts not only abided by progressive economic regulation but also aggressively championed progressive social reform, especially through the creation of new personal rights that sought to take key policy debates out of the legislative arena and so impose an integrated progressive vision on our public life. On that front too, the appeal of a rational, coherent programme overwhelmed, for a time, the imperatives of fidelity to the constitutional order.

This progressive programme is not senseless, and its critique of the Paopa vision of political life is not baffling. But it is mistaken and profoundly unhealthy for our fractured society because it ignores the imperative to build cohesion in a free society. The Paopa progressives insisted that the Sierra Leonean system was not up to the challenges of modern life. But their critique ignored what may well be the preeminent challenge of modern life: the challenge of multiplicity and diversity, and therefore of division, which right-minded nationals saw far more clearly than they did.

Progressivism implicitly rejects the legitimacy of that diversity. It assumes that divisions in the Sierra Leone body politic are not inherent to a free society but are functions of some people choosing to pursue their private advantage at the expense of the public good. It implies that unity is the natural state of our society, but various “special interests” insist on pulling the country apart, so that what we require from politics is a consolidated voice of the public that will speak up for the whole.

This is a naïve fantasy masquerading as cold-eyed realism. And its effects have worsened our divisions and made greater unity seem impossible.

Cohesion in Practice

The progressive deformation of our constitutional system by the SLPP and APC is not the reason we are divided. But it explains why we think our Constitution can’t help us address our divisions. In reality, the Constitution was designed with just that purpose in mind, and it could make a real difference if we let it. Considering the system’s difficulties through that lens could help us sketch the outlines of some needed reforms.

Reformers of Sierra Leone republicanism, for instance, should look especially to disentangle state and democratic institutions as far as they practically can. The unifying potential of republicanism is rooted in its capacity to reduce the number of divisive questions that need to be resolved at the national level and to provide some space for a diversity of answers to such questions as different individual choices and communal practices. “Cooperative republicanism” is anathema to this cause, and reformers should look to distinguish the state from national domains, even at the cost of nationalising some issues (like health care) if that makes it possible to localise others (like education and other utilities).

In Parliament, reforms would have to reignite the engine of cross-partisan bargaining by moving power from party leaders to the middle layers of the institution—and particularly to committees and to intra-party factions. Members should see that the vote they control is a source of leverage useful only in negotiations, so to exercise their power, they need to bargain with the opposition, not just complain about it on the internet. They should want to create opportunities for bargaining (which party leaders often deny them) and use those opportunities to build coalitions. This could be aided, for instance, by allowing committees in both houses to control some floor time or by rethinking the consolidated budget process. There are countless potential reforms along these lines, but they are unified by an idea of the purpose of the institution: reformers should want to make cross-partisan bargaining in Parliament more likely rather than (as too many of them now think) making such bargaining less necessary. They should prioritise the forging of cohesion over even their favourite clever policy idea.

Reform of the executive branch actually depends on Parliament too. A lot of executive overreach is a function of parliamentary underreach. There are some actions a president could take to rein in the worst administrative excesses, like subjecting the “independent” agencies to formal oversight. But ultimately, the changes most needed are not technical structural reforms like those that could be helpful in Parliament, but forms of restraint and self-conscious circumspection by our President, rooted in an understanding of what the chief executive offers the cause of greater unity.

The courts require much less change. And unlike the other institutions of our system, the national courts have actually undergone a kind of constitutional renaissance in recent years and are much closer to performing their proper constitutional role today than they were, say, half a century ago. But to keep the ground they have gained, they must resist the urge to inflate their own role and displace other key constitutional actors. And to gain more ground, they must rediscover their responsibility to police the boundaries of our constitutional structure, not just to curb the creation of new personal rights but also to make the renewal of the rest of the constitutional system more plausible.

These are merely guideposts, not detailed agendas for reform. But they gesture towards a way of seeing the Constitution not as the problem but as part of the solution to the bitter division that now bedevils our society. And they suggest that the long-running dispute between SLPP and APC about the Constitution has been, at some level, a dispute about the possibility of forging national cohesion in a free society and indeed about the very possibility of the SLPP government.

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