By Amicus curiae
Introduction
On 10 August 2026 the Rt Hon Segepoh Solomon Thomas, Speaker of the Sixth Parliament of the Second Republic, ruled that the Constitution of Sierra Leone (Amendment) Bill, 2025 could be passed by a majority of Members present and voting under section 91(1) of the Constitution, and that the requirement of a two thirds majority under section 108(2)(b) had no application to it. He then referred the underlying question to the Supreme Court for an opinion within three months to guide future discussions.
The ruling opens with a correct statement of principle, cites the relevant provisions, and reaches a conclusion that those provisions cannot bear. What follows is an examination of why.
Two preliminary observations. First, the Supreme Court alone can determine this question authoritatively, and nothing here anticipates its judgement. Second, the criticism that follows is directed at reasoning, not at the person. The office of Speaker is entitled to respect. A ruling that alters the manner in which the supreme law may be amended is entitled to none beyond what its reasoning earns.
The ruling misdescribes the very subsection on which it turns
The reasoning rests on a single proposition, stated at page 4:
all the provisions in the Constitution requiring a two-thirds vote for their amendment or alteration are to be found under Section 108(3) which informs the reason why emphasis is laid on “this section.”
From that premise, the Speaker concludes that because the Bill does not touch any provision requiring a two-thirds vote, the House reverts to section 91(1).
The premise is not arguable. It is wrong on its face.
Section 108(3) contains no two-thirds requirement of any kind. It lists the specially protected provisions and provides that a Bill altering any of them shall not be submitted to the President for assent and shall not become law unless, after it has been passed by Parliament and in the form in which it was so passed, it has been submitted to and approved at a referendum. Subsection (3) is about the people. It is not about the numbers in the Chamber.
The only two-thirds requirement anywhere in section 108 is in subsection (2)(b), which the Speaker himself set out in full at page 3 of his ruling. His conclusion is therefore that the two-thirds requirement lives in a subsection that does not contain it, and does not live in the subsection that does.
Once that premise falls, the ruling has no remaining foundation. Everything after page 3 is built on a description of subsection (3) that the text does not support.
The ruling collapses two safeguards that the framers kept apart
Section 108 erects two hurdles at two different stages.
The first is parliamentary. Under subsection (2), a Bill for an Act of Parliament under that section shall not be passed unless it has been published in two issues of the Gazette nine days apart before first reading and is supported at second and third readings by not less than two-thirds of the Members of Parliament.
The second is popular. Under subsection (3), a Bill altering a listed provision shall not be submitted for assent and shall not become law unless it has additionally been approved at a referendum.
The two operate on different verbs at different moments. Passage, then assent. Parliament, then the people. Subsection (3) presupposes that the Bill has already been passed, and passage is governed by subsection (2). Far from qualifying the two thirds requirement, subsection (3) assumes it.
The Speaker’s reading makes subsection (2)(b) apply only where subsection (3) already applies. On that construction subsection (2)(b) does no independent work anywhere in the Constitution. It becomes a rider on the referendum clause rather than a freestanding condition of passage.
That is precisely the outcome the Speaker told the House to avoid. At page 2 he directed himself, correctly, that provisions must be read as a coherent whole and that one provision should not be interpreted so as to render another ineffective where both are capable of operating together. He then adopted the one construction under which the two cannot operate together, and under which the earlier of them is emptied of content. The canon was announced and then breached in the space of two pages.
The framers showed us how they would have said what the Speaker says they said
The strongest answer to the ruling is not an argument. It is a comparison.
Section 108(2) opens with the words “A Bill for an Act of Parliament under this section”. The Speaker attaches great weight to the word “this”, and he is right that it matters. But he never asks what the framers wrote when they meant to refer specifically to the entrenched category, and the Constitution answers the question directly.
Section 72(2), dealing with the abolition of the office of Paramount Chief, provides that the provisions of section 108 shall apply to such a Bill as they apply in relation to the Bill for an Act of Parliament that alters any of the provisions of this Constitution that are referred to in subsection (3) of that section.
There it is. When the framers meant a Bill altering an entrenched provision, they wrote a Bill that alters any of the provisions referred to in subsection (3). When they meant any Bill altering the Constitution, they wrote a Bill for an Act of Parliament under this section.
Two formulae, deliberately different, in a single instrument. Section 72(2) is unintelligible unless the two describe different classes, because the whole point of the cross reference is to elevate a Paramount Chief Bill from the ordinary class into the higher one. If every Bill under section 108 were already an entrenched Bill, section 72(2) would have nothing to elevate it from and the sentence would be circular.
The Speaker’s construction requires us to believe that the framers used the narrower formula in section 72(2) and the broader formula in section 108(2) to mean exactly the same thing. Drafters of this Constitution were more careful than that.
Section 91(1) defers to section 108 by its own opening words
Section 91(1), quoted in bold at page 2 of the ruling, reads:
Except as otherwise provided in this Constitution, any question proposed for decision in Parliament shall be determined by a majority of the votes of the Members present and voting.
The Speaker emphasised the operative half of the sentence and passed over the qualification that governs it. Section 91(1) is not a rule that displaces others. It is a residual rule that yields wherever the Constitution has provided otherwise. Section 108(2)(b) provides otherwise in terms. The two provisions are not in competition, and no interpretive contest between them needed to be resolved. Section 91(1) simply steps aside.
The list of exceptions the Speaker offers makes the difficulty worse rather than better. He directs the House and the citizenry to sections 29(3), 119(9), 137(7), 137(10) and 173, and then says that apart from these and a few others there is no section of general application dealing with a two thirds requirement.
Three things follow.
First, he concedes that his list is incomplete. A list admitted to be incomplete cannot establish that section 108(2)(b) is not on it.
Second, the list is in fact demonstrably incomplete in ways that bear directly on the point. Section 51(2) and section 51(5) both require the votes of not less than two thirds of all Members of Parliament for the removal of a President. Neither appears. The list was not the product of a survey of the Constitution.
Third, and decisively, the provisions he does cite are in the same form as the one he excludes. Section 29(3) requires a resolution supported by the votes of two thirds of the Members of Parliament. Section 108(2)(b) requires support by the votes of not less than two thirds of the Members of Parliament. If the first is an exception to section 91(1), and the Speaker says it is, then so is the second. There is no principle on which they can be distinguished, and the ruling offers none.
If this is not a Bill under section 108, there was no power to pass it at all
This is the fork on which the ruling impales itself.
Section 108(1) is the sole source of authority in the Constitution for altering the Constitution. Section 73(2) vests legislative power in Parliament expressly subject to the provisions of this Constitution. Section 171(15) provides that the Constitution is the supreme law and that any other law inconsistent with it is void to the extent of the inconsistency.
So either the Bill of 10 August 2026 was a Bill for an Act of Parliament under section 108, or it was not.
If it was, then section 108(2) applied to it in terms, and the two thirds requirement in paragraph (b) was mandatory.
If it was not, then Parliament was purporting to alter the Constitution otherwise than under the only provision that permits it to do so, and the resulting Act is void under section 171(15) for that reason alone.
The ruling takes the second branch without noticing that it is fatal. It asserts that section 108 “deals specifically with the provisions of Section 108 and no other” and that subsection (2) is confined to a new Constitution and the listed sections. On that view the Bill before the House was not a Bill under section 108. But the House was nonetheless invited to pass it as an alteration of the Constitution, which is a thing only section 108 permits.
There is no third branch. A Bill that alters the Constitution is either under section 108 or it is ultra vires.
The Government took the benefit of subsection (2) and the ruling disclaims the burden
Paragraphs (a) and (b) of section 108(2) are conjunctive limbs of one subsection governed by one opening phrase. Paragraph (a) requires publication in at least two issues of the Gazette before first reading, with not less than nine days between the first and second publication. Paragraph (b) requires the two thirds majority.
If subsection (2) did not apply to this Bill, then the Gazette requirement did not apply either, and no double publication was necessary before first reading.
That proposition is worth stating plainly because nobody believes it. The Bill was, on the ordinary course of business, gazetted twice in compliance with section 108(2)(a). The promoters of the Bill therefore proceeded throughout on the footing that this was a Bill for an Act of Parliament under section 108. Having taken the benefit of paragraph (a), they cannot disclaim the burden of paragraph (b). The two stand or fall together.
The framers withheld from the Speaker the finality he has assumed
Section 108(6) provides that a Bill for an Act of Parliament under that section shall not be submitted to the President for signature unless accompanied by a certificate under the hand of the Speaker that the provisions of subsections (3) and (4) have been complied with, and that every such certificate shall be conclusive for all purposes and shall not be inquired into in any court.
Read that carefully, because it does two things.
First, it confirms the reading advanced above. Subsection (6) uses the identical phrase “a Bill for an Act of Parliament under this section”, and it requires a Speaker’s certificate for every such Bill. If the Speaker is right that this Bill is not one “under this section”, he cannot issue a section 108(6) certificate in respect of it, and without that certificate the Bill cannot lawfully be submitted to the President for signature. The ruling has thus disabled the very process it was intended to advance.
Second, and more tellingly, subsection (6) shows exactly where the framers were prepared to make the Speaker the final judge, and exactly where they were not. They gave him a conclusive and non justiciable certificate in respect of subsections (3) and (4), the referendum requirements. They gave him nothing of the kind in respect of subsection (2)(b).
The inference is unavoidable. Compliance with the two thirds requirement was deliberately left outside the Speaker’s conclusive determination and inside the jurisdiction of the courts. The ruling of 10 August 2026 therefore carries no protective force whatever. It cannot cure a defect, it cannot bind the Supreme Court, and it cannot save an Act passed in breach of section 108(2)(b) from being void under section 171(15).
The 2012 precedent is worth less than nothing
The ruling asserts that examples of amendments of non entrenched sections without recourse to a two thirds majority “abound in this parliament”, and offers one, the amendment of section 79 in 2012 by voice collection only.
Three answers.
Practice does not amend the Constitution. Section 171(15) is not subject to an exception for things Parliament has done before. If the 2012 amendment was passed in breach of section 108(2)(b), the consequence is that there is a question mark over the 2012 amendment, not that the requirement has lapsed. An unconstitutional act repeated remains unconstitutional, and a precedent that was never tested in any court establishes nothing at all. Parliament is not a court, and rulings from the Chair are not authority in law.
The claim that such examples abound is unsupported. One instance is given. If others existed, they should have been listed, and the House was entitled to see them before it voted.
Parliament’s own institutional understanding is directly to the contrary. On 13 January 2022, at the launch of the Government White Paper on the Constitutional Review Process, in the presence of the President, the Chief Justice and the Justices of Judicature, the then Speaker Dr Abass Chernor Bundu stated the law of the Constitution relating to its alteration in six numbered points. His third was that not as much as a word can be altered in the Constitution unless the Bill has been supported at second and third readings by the votes of not less than two thirds of the Members of Parliament, and that the Bill must first be gazetted twice with nine days between publications. He then said, in terms, that this procedural requirement is stated in section 108 and that < it applies to the alteration of all the provisions of the Constitution. His fourth point was that where a new Constitution or an entrenched provision is involved, there is an additional and more stringent requirement, namely the referendum.
That is the two stage structure set out in section 2 above, stated by the immediately preceding Speaker of the same Parliament, on the record, to the Head of State and the entire superior judiciary. He went further and did the arithmetic, calculating that any constitutional amendment in the Fifth Parliament would require at least 96 affirmative votes out of 144 members. He was not speaking of entrenched provisions. He was speaking of amendment as such.
So Parliament’s practice does not point one way. It points both ways, and the more recent, more considered and more public statement is against the present ruling. A precedent argument that omits the most authoritative contrary statement in the institution’s recent history is not a precedent argument. It is a selection.
The walkout was treated as a reason, and that inverts the safeguard
At page 4 the Speaker gives as part of his reason for reverting to section 91(1) the circumstance particularly when the Opposition has decided to work out on their responsibility and a Bill as important as this.
A constitutional threshold is not a sanction. It does not rise and fall with the conduct of Members, and no provision of the Constitution makes it contingent on attendance.
The drafting confirms this beyond argument. Section 91(1) speaks of “the Members present and voting”. Section 108(2)(b) speaks of “the Members of Parliament”. Both formulae appear in the same Constitution, and the framers plainly understood the difference between them. Section 30(6) reinforces the point, providing that in determining a majority of all Members of Parliament account is to be taken only of persons actually and validly existing as Members at the relevant time, which fixes the denominator by reference to membership rather than attendance.
The entire function of the “Members of Parliament” formula is that absence cannot lower the bar. To treat a walkout as a reason for lowering it stands the safeguard on its head. It produces the rule that the fewer Members participate in amending the Constitution, the easier amending the Constitution becomes. That cannot be right, and no Constitution drafted after 1978 could have intended it.
There is a further and more basic objection. A ruling on a question of law is vitiated by the taking into account of an irrelevant consideration. The conduct of the Opposition, whatever one makes of it, is irrelevant to the meaning of section 108(2)(b). The Speaker allowed his view of that conduct to enter into his construction of the Constitution, and said so.
Section 94(2) cannot do the work assigned to it
The Speaker states that he reverts to section 91(1) “pursuant to Section 94(2)”.
Section 94 is headed “Regulation of Procedures in Parliament”. Whatever its subsections provide, a power to regulate the procedure of the House cannot be a power to disapply an express requirement imposed by the Constitution on the passage of a class of Bills. Section 73(2) vests legislative power subject to the Constitution. A body cannot use a power conferred by an instrument to escape a limitation imposed by the same instrument.
If section 94(2) meant what the ruling implies, Parliament could by resolution exempt itself from any procedural requirement in the Constitution, including the referendum. The proposition need only be stated.
The referral concedes the doubt and then insulates the Bill from it
The Speaker refers the question because it is “of grave public interest”, and asks for an opinion within three months “to guide future discussions on this matter”.
Those last five words give the game away.
If the Speaker was sufficiently confident to declare the Bill passed, the question was not of grave public interest and no referral was needed. If the question was of grave public interest, it needed answering before the House was asked to vote, not afterwards.
Worse, the referral is expressly framed as prospective. But if the Supreme Court holds that two thirds was required, the consequence is not guidance for the future. It is that this Act was passed in breach of section 108(2)(b) and is void ab initio under section 171(15). Nullity is not curable by a later opinion, and a defect in the manner of passage cannot be repaired by anything short of passing the Bill again properly.
The referral therefore does one of two things. Either it is an admission that the Speaker was not sure, which is itself a sufficient reason why he should not have declared the Bill passed. Or it is a device that appears to submit to the Court while ensuring that the Court’s answer arrives after the fact and is framed as advice for another day. Neither reading does the ruling credit.
The order of operations was not a technicality. It was the whole question. Clarify, then act. The ruling was acted upon, then clarified.
Two phrases in the ruling deserve comment.
Section 108 is described as “the much-trumpeted Section 108”. The Speaker also tells the House that he states his conclusion “without attempting to go vernacular”.
A ruling on the manner in which the supreme law of the Republic may be altered is not the place for the dismissive adjective or the conversational aside. The provision being brushed aside is the one the framers wrote to prevent a transient majority from rewriting the rules of political competition. It has been much trumpeted because it matters. Tone is not a legal argument, but in a document of this kind it is evidence of the seriousness with which the question was approached.
Conclusion
The ruling is not a close case decided the wrong way. It fails at the level of description before it reaches the level of construction.
It attributes to section 108(3) a two thirds requirement that section 108(3) does not contain. It renders section 108(2)(b) inoperative in every case, contrary to the canon it expressly adopted. It reads the phrase “under this section” in a sense that section 72(2) shows the framers did not use. It quotes section 91(1) while passing over the opening words that subordinate it. It relies on a list of exceptions that it admits is incomplete and that is in fact incomplete. It takes a branch of reasoning that, if correct, would leave Parliament with no power to pass the Bill at all. It disclaims a subsection whose first limb the promoters of the Bill complied with. It assumes a finality that section 108(6) shows the framers deliberately withheld. It relies on a single untested precedent while omitting the contrary statement of the preceding Speaker, made on the record to the President and the Judiciary. It treats a walkout as a reason for lowering a threshold whose entire purpose is to be immune from absence. And it refers to the Supreme Court, for prospective guidance only, the very question it had just answered in a manner that cannot be undone if the answer was wrong.
The Speaker was right about one thing, and he said it at the outset. Constitutional interpretation requires that the Constitution be read as a coherent whole and that no provision be read so as to render another ineffective where both can operate together. Applied faithfully, that principle answers this case. Section 91(1) governs the ordinary business of the House. Section 108(2)(b) governs the alteration of the Constitution. Section 108(3) adds the people whose protected provisions are affected. Each has its field. None is surplus.
The Supreme Court will now decide. It should be said clearly that if it upholds the ruling, the practical consequence is that the Constitution of Sierra Leone is, save for the listed provisions, no more difficult to amend than the Finance Act. Whatever else the framers of 1991 intended after the experience of 1978, it was not that.
