Wayne Munroe Q.C.,
PLP Aspirant Candidate for Freetown
As a general overview, the Attorney General’s press release contents demonstrate a disconcerting lack of appreciation for the function of the Legislative Branch of Government’s role in holding the Executive Branch accountable to the people who the Members of Parliament represent. It is particularly distressing that the release is by the Chief Law Officer of the Crown.
A Proclamation of a State of Emergency is intended to be an exceptional and temporary means of addressing a sudden severe situation. As a result, many of the ordinary protections afforded the citizen are suspended even extending to the suspension of fundamental rights. The Governor-General is given power by the Emergency Powers Act to make regulations that apply during the currency of a state of emergency. These regulations bestow powers on different members of the Executive as well of seeking to impose controls. It is in this light that one must approach the construction of the regulations.
Regulation 11, in my considered opinion, contains two distinct provisions. The provision in regulation 11(1) provides the Competent Authority’s ability in consultation with the Minister of Finance to waive rules and laws governing the procurement of goods and services. It does not create an obligation for the Competent Authority to waive any rule of law. Therefore, it follows that goods may be procured to protect the public safety and health that are done in accordance with the prevailing rules and laws on procurement.
The provision of regulation 11(2) requires a report to be laid before the House of Assembly, the contents of which are specified in paragraphs (a) to (c). The report will enable the People’s representatives to exercise their roles in holding the Executive to account for its stewardship of the country’s finite financial resources. In the context of a state of emergency, the information required has a dual purpose. The first and most apparent that the Attorney General views as the only purpose is to require an accounting of expenditure incurred otherwise than in accordance with the prevailing rules and laws on procurement. The second equally laudable purpose is to hold the Executive accountable for its choice to expend financial resources during a state of emergency.
Section 23 of the Financial Administration and Audit Act recognizes that the Minister of Finance may choose not to expend resources or suspend money. The requirement of reporting on all goods and services procured during an emergency permits an evaluation and scrutiny of the Executives’ priorities in the face of an emergency.
Compliance with the requirement would disclose, for instance, the millions of dollars that were spent on sidewalks instead of on paying nurses the overtime worked in addressing the health emergency. It would also provide material by which the Legislature could examine whether the procurements of the goods and services were procured in accordance with the prevailing rules and the law governing procurement.
It would be a ridiculous law that would free the Executive from being held accountable for breaching procurement rules and laws by merely not expressly waiving the rules and laws.