Standing Order 42 & Section 94(2) vs. Constitutional Supremacy (The Critical Debate)
By: Ady Macauley
On 10th August 2026, exactly four years since tens of peaceful Sierra Leoneans were killed for exercising their constitutional right to protest, a grave constitutional violation occurred in the Well of Parliament. The supreme law itself, the Constitution, was murdered.
Section 108(2)(b) of the 1991 Constitution is clear: to amend or alter the Constitution, a Bill must receive two-thirds support on second and third readings. There are 149 elected MPs (including 14 Paramount Chiefs), so the threshold is 100 votes, no less. Yet, the Constitution Amendment Bill 2025 was purportedly declared passed by simple majority. Facing challenge from the opposition APC and opprobrium of the citizens, the SLPP leadership and its allies invoke Standing Order 42 and Section 94(2) of the 1991 Constitution to shield the Speaker’s action from judicial scrutiny.
According to the Standing Order 42: “The Speaker in the House and Committee Chairmen shall enforce order. Their rulings on points of order are not appealable and may only be reviewed by the House via substantive motion with prior notice”.
Section 94(2) 1991 Constitution further reinforce that, “Notwithstanding anything to the contrary… no decision, order, or direction of Parliament, its Committees, or the Speaker relating to rules of procedure, their interpretation, or acts done under them, shall be inquired into by any court.”
But does this grant unconditional immunity, even for unconstitutional acts? Does “parliamentary sovereignty” place the Speaker above the Constitution? No, as our law and centuries of common law confirm.
What SO42 and Section 94(2) Actually Protect
These clauses safeguard internal procedural autonomy only, i.e.:
- Rulings on Standing Orders, debate conduct, voting processes, admissibility of motions
- Matters genuinely concerning Parliament’s internal management
- Key Limit: Section 94(1) explicitly states all parliamentary rules are subject to the Constitution.
The Golden Rule of constitutional legality is, Procedure cannot override the Constitution. These protections do not apply to acts that violate the Constitution itself. Courts have long drawn the line between legitimate procedure and unlawful excess.
Common Law and Comparative Constitutional Precedents
The distinction between legitimate parliamentary procedure and acts that exceed constitutional or legal authority is not without precedent in the common law and other Commonwealth jurisdictions. In Stockdale v Hansard (1839) 3 State Trials (NS) 876, the courts established that the scope of parliamentary privilege is ultimately a matter capable of judicial determination and that Parliament cannot simply confer upon itself unlimited immunity from judicial scrutiny. The case supports the broader proposition that where a question arises as to whether an act falls within legitimate parliamentary privilege or constitutes an unlawful exercise of power, the courts may determine the legal boundaries of that privilege.
Similarly, in Bradlaugh v Gossett (1884) 12 QBD 274, the courts recognised the principle that they should ordinarily refrain from interfering with the internal proceedings of Parliament where the matter concerns purely procedural questions. However, that principle does not necessarily mean that every parliamentary act is immune from judicial consideration. The case is relevant to the distinction between matters properly left to Parliament’s internal management and actions alleged to have been taken outside the lawful authority conferred upon Parliament or its officers.
The principle of constitutional accountability was further developed in R (Miller) v Prime Minister [2019] UKSC 41, in which the United Kingdom Supreme Court considered the constitutional limits on the exercise of executive power in relation to Parliament. Although the case concerned the exercise of prerogative power rather than a Speaker’s ruling, its broader constitutional significance lies in the Court’s recognition that the exercise of public power is subject to legal limits and that constitutional principles cannot simply be displaced by reliance upon institutional procedure.
The South African jurisprudence provides an even closer illustration of the relationship between parliamentary procedure and constitutional supremacy. In Economic Freedom Fighters v Speaker of the National Assembly, the Constitutional Court made clear that parliamentary procedures and rules must operate within the framework of the Constitution and cannot be used to defeat constitutional obligations. Parliamentary procedure, therefore, cannot become a shield against compliance with constitutional requirements where the Constitution itself imposes a mandatory duty.
Likewise, in Canada (House of Commons) v Vaid, [2005] 1 SCR 667, the Supreme Court of Canada examined the scope of parliamentary privilege and emphasised that privilege is not unlimited. It exists to protect those activities that are necessary for Parliament and its members to perform their legislative functions independently and effectively. The principle is therefore one of functional necessity rather than an unrestricted immunity from the law. This distinction is important because an act cannot necessarily acquire constitutional protection merely because it occurs within the parliamentary sphere.
Taken together, these authorities demonstrate an important constitutional distinction: courts ordinarily respect Parliament’s autonomy in matters genuinely concerning its internal procedure, but parliamentary procedure cannot automatically immunise an act that exceeds lawful authority or conflicts with a superior constitutional requirement. The critical question, therefore, is not simply whether an act occurred within Parliament or was described as a procedural ruling, but whether the act falls within the lawful constitutional and procedural authority of the institution or officer who exercised it.
The Sierra Leone Context
Unlike the UK, Sierra Leone rejects absolute parliamentary sovereignty. Our
Constitution is the supreme law; any conflicting act, including the Speaker’s, is void. Section 124: The Supreme Court has explicit jurisdiction to interpret the Constitution and resolve constitutional questions-this cannot be removed by Section 94(2). The Speaker’s alleged breach of Section 108 is a substantial constitutional violation, not
mere procedure, proper for judicial inquiry.
Local Precedent: APC & Others v Speaker & Others CIL-APP/ (2000)
The Sierra Leone Court of Appeal rejected reliance on Section 94(2) and ruled Courts could review the Speaker’s actions.
The facts of the case
On a Private Member’s Motion, moved by the Hon. Gaiva Labor and seconded by Hon. Wiliams Jusu pursuant to Section 77(e) of the 1991 Constitution of Sierra Leone Act No. 6 of 1991 and in tandem with Standing Order 77 of the Sierra Leone Parliament, Parliament approved the setting up of an Ad Hoc Committee to investigate and report on the persistent absentism from plenary Parliamentary sitting within the second and the third sessions of the first Parliament of the Second Republic of Sierra Leone.
The Chairman of the Committee, the Hon. Gaiva Labour, moved the motion. At the end of the investigation, the Committee reported and recommended to parliament that seven members namely the Hon. Abdul Serry Kamal, Hon. Victor B. Foh, Hon. Jengo Stevens, Hon. Edward Turay (Appelants herein); Hon. Dr. Augustine E. Stevens, Hon D.r John Karefa Smart and Hon. Abdulai Bundu Kamara should vacate their seats in Parliament with immediate effect. The Speaker subsequently declared their seats in Parliament vacant.
Mr. Serry Kamal Counsel for the Appellants complaint that the Committee was not properly constituted as stipulated by Standing Order 77(2) (c). The Speaker of Parliament was not a member. The report showed that Hon. Gaiva Labour acted as chairman and so whatever decision taken by the Committee was null and void and of no moment.
On Appeal, the Court of Appeal agreed with Mr Serry-Kamal even though Counsel for the Hon. Speaker sought to take refuge under section 94(2) of the 1991 Constitution of Sierra Leone, the Court ruled that “Section 94(2) does not insulate acts done in breach of the Constitution or Standing Orders.” The Court granted leave issue a Writ of certiorari to quash the Speaker’s decision, confirming that Courts may review acts/conduct of the Speaker of Parliament for constitutionality. The Hon. Justice Tolla Thompson JA (Presiding) emphasized that rules are imperative; non-compliance will render them null and void.
The Hon. Justice TOLLA THOMPSON J.A. (Presiding) Said: “What appears to me to be the issue in this appeal is whether the learned trial judge erred in law in refusing to entertain the application for leave to apply for an Order of Certiorari relying on sections 94 and 134 of the Constitution. And in dealing with the issue, I shall refer to the Provisions of the Constitution and the Standing Orders of parliament as far as they are relevant to this appeal. From its habitat, it cannot be disputed that Standing Order 7 is a product of legislative drafting, and Order 77(2) (c) which deals with membership of the Committee clearly stipulates that the Committee shall consist of the Speaker etc. There is no evidence that it has been amended by Parliament to exclude the Speaker from membership. See Vide So 77(2)(c) It is therefore absolutely vital that the membership of the Committee must strictly comply with the Standing Order 77(2)(c) therefore clear to me that Parliament must have misconstrued the Provision of the Standing Order 77(2)(c) and was in error when it nominated the members of the Committee to the exclusion of the Speaker. In other words, without the Speaker the Committee was not properly constituted. It follows that the report cannot be a report of the Committee as prescribed by Standing Order 77(2)(c) consequently the action by the It is a matter of strictissima juris…….. that the Speaker of Parliament must be a member. If peradventure I am said to be wrong in the view that I have expressed. I am fortified in the view by the definition of *shall” in a Dictionary of Modern Legal usage by Bryam Gerner: It is
“The word “shall” ordinarily denote language of command. In legislation this over worked auxiliary verb invariably denotes an imperative rather than futurity when it appears in drafting”
“In view of the numerous authorities cited. It seems to me that the Committee was incompetent to undertake such an exercise. What the Committee did was not within the powers conferred by Standing Order 77. I therefore hold that the application for leave pursuant to Section 134 of the Constitution was proper. The learned trial judge ought to have entertained the application.”
“That the Appellants / Applicants, are hereby granted leave to apply for an order of Certiorari to quash the order of the speaker of Parliament based on, and of the report of
the Ad Hoc Parliamentary Committee on absenteeism chaired by the Honourable John Gaiva Labor as Acting Chairman”.
From the above analysis of decided cases, both in Sierra Leone and other commonwealth jurisdictions, it is clear that there is a distinction between rules relating to how Parliament conducts itself and constitutional prescriptions relating to the powers of parliament and the exercise of those powers. The phrase “relating to rules of procedure” in section 94(2) does not extend to “violating the Constitution”. A Speaker who uses procedural cover to bypass constitutional mandates is not acting under “procedure”, he is acting unlawfully and outside the protection of s.94(2).
The Speaker Is Not Above the Law
Section 94(2) provides immunity for procedure only, not for unconstitutional or ultra vires acts. The Common Law courts have consistently held that Courts determine the limits of parliamentary authority, they distinguish internal rules from constitutional mandate and may inquire into whether an act is truly procedural or a breach of higher law. Sierra Leone’s Constitution is supreme; the Speaker’s unconstitutional actions are open to inquiry and review by the courts. Section 94(2) protects parliamentary autonomy; it does not create a law-free zone where constitutional accountability is shielded by “notwithstanding” provisions. History and justice demand that power remains accountable to the Constitution. The Courts determine where Parliamentary privilege begins and where it ends.
I fully support approaching the Supreme Court to challenge this constitutional deviance.
Over to you, Supreme Court of Sierra Leone.
The author is a Flag Bearer aspirant for APC, a lawyer and Anti-corruption expert, former prosecutor and Commissioner of the Anti-Corruption Commission, and an alumnus of the International Law Enforcement Academy at its Accra, Gaborone and Rosewall Campuses.
