Post Ebola Legal Considerations - Gov of Sierra :Leone 2015

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Recommendations for revisions to the commercial law and justice component

of the draft JSSIP III

Volume 1: Report

20 February 2015

The impact of the Ebola crisis on Sierra Leone’s commercial law

and justice priorities

The Law & Development Partnership Ltd 1-3 Staple Inn, London, WC1V 7QJ t +44 (0)20 7636 6856 f +44 (0)20 7900 6886 www.lawdevelopment.com [email protected]

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Contents

Executive Summary ............................................................................................................................. 3

Abbreviations ....................................................................................................................................... 4

Background and Introduction .............................................................................................................. 5

Overview of the economic impact of Ebola on the Sierra Leonean economy .................................... 5

GoSL post Ebola planning .................................................................................................................... 7

The impact of the Ebola outbreak on commercial law and justice in Sierra Leone ............................ 8

Recommendations for revisions to the commercial law and justice component of the draft JSSIP III10

Strengthening GoSL’s processes and capacity for commercial contract negotiation and strengthening ......................................................................................................................... 10

How LASER could help ....................................................................................................................... 13

Annex A: Documents considered ...................................................................................................... 15

Annex B: People met ......................................................................................................................... 16

Annex C: Long list of potential legislative reforms ............................................................................ 17

Volume I: The Impact of the Ebola crisis on Sierra Leone’s Commercial Law and Justice Priorities

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Executive Summary

This report was developed at the request of Sierra Leone’s Attorney General and Minister of Justice

and is funded by the Legal Assistance for Economic Reform (LASER) programme. The report

identifies three immediate commercial law and justice priorities for the Government of Sierra Leone,

(GoSL) to assist with its post Ebola recovery, and suggests how LASER could support the GoSL to

address these.

1) Strengthen processes and capacity for commercial contract negotiation

Firstly, post Ebola recovery offers opportunities for new concessions to be granted to international

extractives firms, aimed at expediting economic recovery. It is vital that systematic processes of legal

scrutiny are applied when entering into new MOUs and contracts.

Should due consideration not be given to this area, there stands to be significant financial and social

implications for Sierra Leone. Not only does the GoSL stand to lose out financially, but if agreements

are hastily made with investors without due attention being given to the rights of local communities,

there is the potential for social unrest and conflict.

2) Strengthen commercial dispute resolution – including at the community level

Commercial dispute resolution mechanisms were slow, complicated and expensive before the

outbreak of Ebola. The Ebola outbreak has led to a substantial worsening of the court backlog. Quick

and immediate measures to deal with the mounting backlog could include piloting the use of ADR

and enhanced case management techniques drawing on experiences in Nigeria and Ghana.

In addition it is foreseen that support will be needed for dispute resolution at the community level.

One potential fall-out from the Ebola crisis is likely to be an increase in disputes, particularly an

increase in inheritance, succession and property disputes. Particular attention must be given to the

most vulnerable groups (woman and children) who have historically been side-lined in such disputes.

3) Develop a programme for prioritising, enacting and implementing key commercial laws

Not only does Sierra Leone face a backlog of laws from before the crisis, but the crisis has itself

revealed and spawned the urgent need for legislative updating. There is a ‘long list’ of 33 laws that

have been identified across government for reform, including newly proposed laws, which have

arisen as a result of the Ebola crisis.

LASER’s Technical Support

If requested by the GoSL, LASER could supply an adviser to the Ministry of Justice with a focus on the

development of processes and procedures for effective contract negotiation and enforcement,

drawing in and leveraging specialist technical legal support where required. Support could also be

provided to the Judiciary to develop an ‘emergency’ plan to deal with the backlog of commercial

cases, and pro bono expertise sourced (e.g. from the UK Judiciary) to assist with implementation.

Support could also be provided to the GoSL to develop a prioritised legislative programme.


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Abbreviations

A4P Agenda for Prosperity ACC Anti-Corruption Commission ADR Alternative Dispute Resolution ASJP Access to Security and Justice Programme CA Christian Aid CAC Corporate Affairs Commission CBO Community Based Organisations CHISEC Chiefdom Security Committee CLJ Commercial Law and Justice CP Child Panel CPA Criminal Procedure Act CSOs Civil Society Organisations DFID Department for International Development DISEC District Security Committee FTCC Fast Track Commercial Court FSU Family Support Unit GoSL Government of Sierra Leone GLC General Legal Council HRCSL Human Rights Commission of Sierra Leone IPCB Independent Police Complaints Board JLSC Judicial and Legal Service Commission JP Justice of Peace JSCO Justice Sector Coordination Office JSRSIP Justice Sector Reform Strategy and Investment Plan LAB Legal Aid Board PLC Parliament Legislative Committee LG Leadership Group LOD Law Officers Department LPPB Local Police Partnership Board LRF Law Reform Commission MAFFS Ministry of Agriculture, Forestry & Food Security MIA Ministry of Internal Affairs MDA Ministries, Departments and Agencies MFAIC Ministry of Foreign Affairs and International Cooperation MSWGCA Ministry of Social Welfare, Gender and Children’s Affairs MTI Ministry of Trade & Industry NRA National Revenue Authority OARG Office of the Administrator and Registrar General ONS Office of National Security OoO Office of the Ombudsman SEZ Special Economic Zone SLCB Sierra Leone Central Bank SLIEPA Sierra Leone Investment & Export Promotion Board SLCS Sierra Leone Correctional Services SGBV Sexual and Gender Based Violence SME Small & Medium Size Enterprises


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Background and Introduction

1. This report was developed at the request of Sierra Leone’s Attorney General and Minister of

Justice and is funded by the Legal Assistance for Economic Reform programme (LASER1). It

reviews the impact that the Ebola outbreak has had on Sierra Leone’s economy and in

particular on commercial law and justice (CLJ) issues. In the light of this analysis the report

makes recommendations on key CLJ priorities for the Government of Sierra Leone (GoSL) as

the country moves into post Ebola recovery. The recommendations imply some re-focusing of

the GoSL’s CLJ priorities identified during the development of its third Justice Sector Strategy

and Investment Plan 2015-18 (JSSIP III).

2. Since November 2014, the GoSL has been working to analyse both pre-Ebola priorities, which

were interrupted by the Ebola outbreak, and post Ebola recovery planning and strategies. This

report draws on these developing plans and strategies, together with information provided

during meetings in Freetown with key informants. The report identifies three immediate CLJ

priorities for the Government of Sierra Leone to assist with post Ebola recovery:

Strengthening GoSL’s processes and capacity for commercial contract negotiation;

Strengthening commercial dispute resolution – including at the community level; and

Developing a programme for prioritising, enacting and implementing key commercial laws.

3. The analysis for this report was undertaken between December 2014 and February 2015 by

the LASER team, including an in-country international legal expert. The UK Sierra Leone Pro

Bono Network also gave input into this report.2 Documents considered are listed in Annex A

and people met in Annex B.

Overview of the economic impact of Ebola on the Sierra Leonean economy

Economic challenges for post Ebola recovery

4. The Ebola outbreak in Sierra Leone has all but devastated the commercial and investment

sectors. The country, listed among the poorest countries in the world, lies 11th from the

bottom of the Human Development Index.3 Ebola is a humanitarian crisis first and foremost;

but it is also a mounting economic disaster for Sierra Leone. The World Bank has estimated

that the cost of the epidemic could be up to $6.2bn.4 The World Bank forecasts a -2% decline

in GDP for 2015 in Sierra Leone.5 The impact is measurable in terms of reduced production,

1 LASER is funded by the UK Government and is implemented by KPMG and The Law & Development Partnership 2 The UK Sierra Leone Pro Bono Network (UKSLPBN) was established in 2014, and is supported by LASER. It is an umbrella network for UK legal professionals and organisations interested in providing pro bono legal assistance to Sierra Leone. The UKSLPBN focuses on meeting specific demands from the GoSL for legal assistance. The UKSLPBN were consulted before the publishing of this final report 3 See http://hdr.undp.org/en/countries/profiles/SLE 4 See World Bank Press Release ‘Ebola: Most African Countries Avoid Major Economic Loss but Impact on Guinea, Liberia,

Sierra Leone Remains Crippling’ [January 20, 2015]. Full text document available at:

http://www.worldbank.org/en/news/press-release/2015/01/20/Ebola-most-african-countries-avoid-major-economic-loss-but-impact-on-guinea-liberia-sierra-leone-remains-crippling 5 See World Bank ‘Update on the Economic impact of the 2014 Ebola Epidemic on Liberia, Sierra Leone and Guinea’ [December 2, 2014]. Full text document available at:


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diminished trade, disrupted agriculture, output forgone, higher fiscal deficits and rising

prices.6 Household incomes are dropping due to the reduction in the labour market, the loss

of harvests, reduced passengers for transport operators, the temporary and occasional closure

of markets, partial operations of banks, restrictions on the movement of people, the closure

of government offices and laying off of workers.

5. Sierra Leone’s business environment is challenging, with the 2015 Doing Business Index

ranking Sierra Leone at 140 out of 189 economies.7 With the Ebola outbreak businesses

including extractive industries, and small and medium-sized enterprises, have suffered a

monumental blow to their operations, with redundancies, corporate restructuring and

liquidation now a frequent outcome.8 Operations at Sierra Leone’s port present bureaucratic

and other challenges9, which the Ebola outbreak has complicated. While the International

Maritime Organisation has not classified Freetown as an ‘unsafe port’10, several shipping

organisations11 have issued their own guidance on the risks associated with vessels calling at

affected countries.12

6. Three million people of Sierra Leone’s population of six million need jobs, but that there are

only 90,000 formal jobs in the economy. An estimated 800,000 youth between the ages of 15

and 35 are actively searching for employment.13 The Ministry of Finance has summarised the

situation in its draft Post Ebola Recovery Plan (see Document 1 in Annex 2):

The disease has caused unprecedented social and humanitarian damage, accompanied by severe

economic consequences. It has remarkably decreased the impressive gains made in economic growth

over the years, as farmers, traders14, investors and a range of economic agents have extensively been

affected by the epidemic. Key economic activities, including agriculture, mining, manufacturing,

construction, trade and commerce, transport, and tourism, have been disrupted, and this has hiked

the rate of national unemployment.

http://www.worldbank.org/content/dam/Worldbank/document/Economic%20Impact%20Ebola%20Update%202%20Dec%202014.pdf 6 See Ministry of Trade National Threat Assessment paper in Volume 2 at Document 3 7 See http://www.doingbusiness.org/~/media/giawb/doing%20business/documents/profiles/country/SLE.pdf, Accessed 16/01/2015 8 For example AML, London Mining, Comium, Tropical Farms Ltd. 9 Note that The Agenda for Prosperity (PRSP 3), under Pillar 4, International Competitiveness observes under Objective 2: ‘Improve the Doing Business Environment’, where the Government’s ‘Key Reforms to target, in particular’ include: Improving procedures at the port to facilitate export and import trading. See also WB Doing Business Index, 2015, ranking Import Procedure days (‘Time to import’) at 28, with 8 documents required. GDP 10 The International Maritime Organisation has not classified Freetown port ‘unsafe’ as per the safety standards set out by precedent in “Eastern City” [1958] 2 Lloyd’s Rep. 127, at page 131. 11 This includes the International Chamber of Shipping, the International Maritime Employers’ Council and the International Transport Workers’ Federation 12 Source: interview with Sierra Leone Maritime Administration 13 See UNDP website: Tackling youth unemployment in Sierra Leone at

http://www.sl.undp.org/content/sierraleone/en/home/ourwork/povertyreduction/successstories/tackling_youth_unemployment_umaru/ visited 23/12/2014. JSEC should be mindful under the National Budget 2015 presented on 14/11/2015 under Labour and Social Security: the consultant notes that ‘Le5.3 billion is proposed to be allocated to review obsolete laws for private sector employment promotion’. 14 In Sierra Leone, trade is based on the exchange of goods and ideas, but people are too scared to shake hands, or leave their homes.


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The role of the private sector in mitigating impact

7. The Ebola Private Sector Mobilisation Group (EPSMG)15, a coalition of more than 48

companies with major assets and operations in West Africa, has attempted to mitigate the

effects of the wider private sector economic commercial impact in Sierra Leone through its

consortium. The EPSMG have provided operational support for any company with a presence

in the country, with a focus (although not exclusively) on assisting those in the mining and

natural resource sector.

8. Additionally, various private sector organizations in Sierra Leone16 have fledgling position

papers, which are being further developed. (See document 2 in volume 2 of this report

prepared by the Sierra Leone Business Forum).

Economic opportunities afforded by the Ebola outbreak

9. It is also the case that some sectors of the economy have benefitted from the outbreak. The

GoSL is spending a larger than planned part of its 2014/2015 budgets on healthcare, and on

reactive and preventive measures to contain the disease. Businesses selling materials used for

the screening and treatment of the disease, and products widely perceived to protect from

potential infection, such as hand sanitizers and antibacterial soap, have benefitted.

10. The outbreak presents opportunities for businesses in Sierra Leone such as pharmaceuticals

and research and development organisations, particularly with regard to joint ventures with

international firms in relation to vaccine research and development, trials, etc. In the Ebola

recovery phase we are also likely to see an increase in the contracting out of basic social

services, which provides significant opportunity for service providers.

11. There is also the potential for e-commerce to increase in popularity as people avoid public

places. Various new e-commerce platforms are already evident. An Irish consortium has

almost completed the installation of a fibre optic ‘highway’ in Sierra Leone.

GoSL post Ebola planning

12. Various MDAs have begun to plan for post Ebola recovery, although limited coordination

between them is a cause for concern. Of particular importance is the Ministry of Finance and

Economic Development’s Sierra Leone Post Ebola Recovery Strategy (ERS) (initial draft January

2015) which sets out a framework for speedy recovery of economic activities, compatible with

the goals of the Agenda for Prosperity. Section 4.5 of the ERS sets out the GoSL’s strategies to

recover economic sectors, the key objectives of which are:

i. To re-launch economic activities in the various sectors to stimulate employment and

revenue generation.

15 See www.epsmg.com, see also generally consortia success in the UK House of Commons, International Development Committee ‘Recovery and Development in Sierra Leone and Liberia’ Sixth Report of Session 2014–15, 2 September 2014, HC-247, Point 15, Use of Consortia. 16 The consultant visited the following private sector organizations during January 2015 in order to ascertain their post-Ebola planning: The Sierra Leone Chamber of Commerce; the Sierra Leone Agriculture Chamber of Commerce; and the Sierra Leone Business Forum (SLBF).


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ii. To improve the image of the country to re-gain the confidence of private investors.

iii. To plan and work towards expanding public infrastructural investment

programmes to

1. meet emerging demand from a planned health sector that is robust to

responding to any future health emergencies and addressing the general

healthcare needs of the population;

2. meet emerging demand from all socioeconomic sectors that will be directed

towards ensuring increased economic growth and sustainable

development.

13. The epidemiological uncertainty of predicting the cessation of Ebola outbreak in Sierra Leone,

has prompted the Government to present two budgets for the financial year: the first for a

‘best case scenario’ of Ebola being eradicated by March 2015 and a worst-case budget

scenario.

The impact of the Ebola outbreak on commercial law and justice in Sierra Leone

14. The draft JSSIP III which was developed in the midst of the Ebola crisis noted

The Ebola pandemic has also gravely affected the implementation of the strategy and action plan.

While trying to stick to the strategy and action plan, both the TWG and the LG are trying to be creative

in adapting to the current circumstance. For instance, decongestion plans have been fast-tracked with

the sector proposing an augmentation of the number of people to be granted the Prerogative of

Mercy and the use of more ADR mechanisms to settle cases that could have been taken to the police

and court.17

15. This section considers the impact of Ebola on three key CLJ issues in Sierra Leone:

Commercial contracts;

Commercial dispute resolution; and

Commercial legislation

Commercial contracts

16. The unprecedented scale of the Ebola outbreak has led to the discharge of many commercial

contracts. Contractual obligations are being discharged, with contracting parties evoking

force majeure clauses in light of the Presidential decree of the State of Emergency in July

2014. This has created an unstable and unpredictable commercial climate to contract within.

This is further compounded by the GoSL’s general lack of technical capacity with regards to

commercial legal negotiations. Unclear on the language of force majeure clauses, and their

rights and obligations with regards to the same, GoSL negotiators are poorly equipped to

manage the volume of commercial contracts being discharged. As a result, several contracts

17 ‘Justice Sector Strategy and Investment Plan III 2015-2018 at paragraph 2.30


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spanning all industries have been discharged, but particular impact has been felt in the mining

sector where several large-scale mining projects have suspended activity altogether.

Commercial dispute resolution

17. The Ebola crisis has slowed down the functioning of most courts, with the High Court closing

down entirely for many months.18 This has significantly delayed the machinery of justice, and

has resulted in the already-large backlog of cases increasing. The Fast Track Commercial Court

observed that pending cases19 have been significantly delayed due to non-appearance by

litigants affected by travel bans, concomitant with the general view that the dual procedural

codes of the court20, often hampered speedy litigation prospects. By January 2015, the Court

had only addressed 4 cases21 since the outbreak of Ebola.

18. More generally, perceived human rights violations may mount and actions by individuals,

groups, civil society may be evident. Food insecurity, massive joblessness, idle youth and

fundamentalism may test GoSL to the proclamation of a state of emergency. Efforts are

needed now to identify justice sector responses and establish preventative measures.

Commercial legislation

19. Before the outbreak, Sierra Leone had a long list of areas of commercial (and other) laws,

which required modernisation. This list remains and new legislative priorities have been

added to it. The full legislative agenda envisaged for 2014 – 2015 by Parliament has been

delayed with MPs struggling to commute to Freetown to attend its sittings. Planned

commercial legislation has been temporarily shelved. Details are provided in box 1 below.

Box 1: Legislative priorities

As of December 20th 2014, The Attorney-General’s Offices, reports the following Bills were in Parliament: The Sierra Leone Correctional Service Act; National Carrier (Amendment) Act 2014; The Petroleum (Exploration & Production) Amendment Act 2014; The Companies (Amendment) Act 2014; The Universities (Amendment) Act 2014; The Borrowers and Lenders Act 2014; The Appropriation Act 2015;The Finance Act, 2015; The Road Transport Authority Amendment Act, 2014;Local Court (Amendment) Act, 2014; The Petroleum Regulatory Agency Act, 2014; Sierra Leone Correctional Service Act, 2014; The Universities (Amendment) Act, 2014; The Polytechnics (Amendment) Act, 2014; The Companies (Amendment) Act, 2014; The Public Health (Amendment) Act, 2014. In addition the following statutory instruments were also pending: The Ernest Bai Koroma University of Science & Technology (Establishment) Instrument, 2014; The Registration of Business Fees (Amendment) Rules, 2014;The Registration of Instrument (Fees) (Order) 2014; The Stamp Duty (Duty) (Fees) Amendment Order, 2014;The Public Emergency Regulations, 2014;The Minimum Wage Order, 2014 (S.I.); The Public Service Commission (Disciplinary Procedure) Regulations, 2014 (S.I.); The Arms and Ammunition Regulations, 2014; The Public Emergency (Detention) Order, 2014;The Fourth Parliament of Sierra Leone (Commencement of Third Session) Proclamation, 2014; Public Notices: Proclamation

Commercial legislation not yet in Parliament and considered a priority includes:

18 The High Court of Sierra Leone closed down for two and a half months after Ebola broke out, and only re-opened in September 2014. 19 The Registrar of the FTCC reported to the consultant, that 59 cases were filed between January – June 2014, 12 concluded at ADR, 20 concluded at judgment/rulings and 27 cases pending (document FTCC of 15/01/2015). 20 For example, the FTCC has its own Procedure Rules, however, must also utilise the High Court Rules (2007). It is suggested that a new set of Rules harmonizing the two Rules should be urgently developed. 21 For example Case number 039/14: Huawei Technologies Co. Ltd, on January 13, 2015.


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Ministry of Agriculture: Strategic Grain Reserve policy and Regulations; Live Animal Disease Act; Seed Policy and Seed Act; Phytosanitary policy and law; Produce Monitoring Board Inspection Regulations

Ministry of Trade & Industry: Sale of Goods Act; Competition law; Consumer Protection law, Food Safety law (latter being developed by Law Reform Commission)

Ministry of Lands: Land Policy and Provincial Land Act (Cap. 112).

20. As well as creating a legislative backlog, the Ebola outbreak has limited the GoSL’s ability to

take forward the development of much needed policies and new legislative initiatives. An

important example is the review and consultation of specific land policy proposals and

legislation necessary to implement a National Land Policy. Draft Five of the policy has not

evolved or progressed over the past year, from even the pre-Ebola era.

Recommendations for revisions to the commercial law and justice component of the draft JSSIP III

21. It is recommended that the work plan of the JSSIP III (and ideally the draft JSSIP III itself) be

amended in the light of the analysis above to reflect re-focused priorities in the light of the

impact of the Ebola outbreak. Recommended amendments are shown in table 1 below.

Table 1: Recommended amendments to outcome 4 of draft JSSIP III

Outcome 4: Commercial law and justice improved

Output Recommended amendments

Capacity of Law Officers Department, Judiciary and lawyers in private practice strengthened (output 1)

New activity: Strengthen capacity of GoSL lawyers and officials to negotiate

and manage commercial contacts, especially related to extractives. (Includes development and implementation of procedures, processes and training).

Perception of judicial independence and impartiality improved (output 4)

New activities: Develop and implement action plan to improve performance of

Commercial Court and address backlog Pilot initiatives to address community level disputes arising from

Ebola outbreak, and scale up if appropriate

Legislative and regulatory reform strengthened (output 3)

New activity: Develop and take forward prioritised legislative programme for

commercial law reform in light of new priorities identified by MDAs in light of Ebola outbreak.

22. These recommendations are discussed further below

Strengthening GoSL’s processes and capacity for commercial contract negotiation and strengthening

23. UK law firm Herbert Smith Freehills (HSF) has been providing assistance to the GoSL (Ministry

of Justice) during the Ebola crisis on the operation of force majeure provisions in contracts and

memoranda of understanding, building on their previous work to support contract negotiation

and management. The Ministry of Mining is in the process of putting together a Negotiations

Team, composed of key decision-makers in Government who will focus specifically on the

commercial re-engagement of large-scale mining projects. Post Ebola recovery offers

opportunities for new concessions to be granted to international extractives firms, aimed at

expediting speedy economic recovery. It is vital that new MoUs and contracts are entered into


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in the light of proper legal considerations and proper procedures for legal scrutiny. This area

was a challenge for the GoSL before the Ebola crisis. Following it, it is likely to be more acute.

The results of deficiencies in this area not only are that the GoSL stands to lose out financially,

but also the potential for social unrest and conflict arises if agreements are made with

investors, without due attention being given to the rights of local communities.

24. A further potential area for attention relates to legal issues associated with shipping and

international trade. Legal assessments should be made in relation to maritime transportation.

In addition, the Sierra Leone Insurance Commission may consider re-defining accepted risks of

loss22 in first-party property insurance policies. Some of the issues are outlined in box 2

below.

Box 2 Outline of potential legal issues arising out of the Ebola outbreak relevant to shipping and

international trade

Charterparties

Unsafe ports: Time charters will often contain express or implied safe port warranties, which will continue to apply despite the master’s duty to follow a charterer’s lawful orders.

Delays: Liabilities for delay will depend on the relevant facts and the charterparty wording. Potential relevant causes of delay, which may even amount to force majeure, may include refusals to grant free pratique, refusal of pilots to board vessels arriving from affected areas, the placing of vessels under quarantine, port closures, or the refusal of members of the crew to visit affected ports.

Force majeure: Port closures may lead to increased risks of delay, or deviation to alternative ports being necessary. Force majeure defences may be applicable

Bills of lading

Parties should also take account of their obligations under respective bills of lading issued for the cargo carried on board. Delays or late delivery or deviations may lead to claims from cargo interests for damages for deterioration to cargo or landing cargo in the wrong place.

Duty of care

Employers have a duty of care under individual contracts of employment. This duty has been reiterated in the various industry guidelines imposing stringent requirements on owners as a result of the outbreak.

Contracts of sale

If owners boycott Freetown Port, there will be a knock-on effect on sale contracts. In contracts on cost insurance and freight terms, sellers may find themselves unable to find a vessel to load and/or deliver their goods, in breach of their obligation to arrange for carriage.

25. Finally, to promote investment in off shore oil and gas exploration, consideration should be

given to UNCLOS applications for maritime delimitation in relation to the coastal waters

between Liberia and Sierra Leone and Guinea and for exclusive economic zones.

22 Property insurance policies generally insure either (1) “all risks” of physical loss unless perils are specifically excluded; or (2) “named perils” such as losses from specifically identified causes, for example, fire or earthquake. The typical “all-risk” policy begins with a broad insuring provision which states that the policy covers “direct physical loss or damages to Covered Property.” The insurer then specifies which risks it will not assume by listing those causes of loss as policy exclusions.


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Support to commercial dispute resolution

26. The proper functioning of Sierra Leone’s Commercial Court has been challenging from its

inception. The World Bank’s Doing Business data for 201523 gives an average number of 515

days for a commercial dispute to be resolved in Sierra Leone at an astounding cost of, on

average, nearly 40% of the claim. The Ebola outbreak has lead to a worsening of the backlog

situation, negatively affecting both the time and cost of resolving commercial disputes. There

is now an opportunity for a thorough review of the operations of the Commercial Court, with

a view to putting it on a proper footing so that it is fully fit for purpose. There are strong

regional models to learn from – for example Ghana and Nigeria. A much stronger emphasis on

the use of alternative dispute resolution (ADR) may be part of the solution. It was not possible

within the scope of this study to assess whether the backlog of commercial cases has now

reached a critical level and to develop an emergency response. Such an assessment should be

made quickly and an action plan developed to deal with the backlog – for example trialling /

piloting the use of ADR and enhanced case management techniques. A crucial first step for

expediting commercial dispute resolution is for Sierra Leone to ratify the New York

Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1959, a point that

has also been highlighted by the UK Sierra Leone Pro Bono Network as a key action to

facilitate foreign investment, particularly post the Ebola crisis.

27. The High / Commercial Court deals with formal, large disputes. For the vast majority of the

population of Sierra Leone commercial dispute resolution (for example relating to land

disputes) happens at the community level. One potential fall-out from the Ebola crisis is likely

to be an increase in disputes – for example in relation to inheritance and property issues,

where the most vulnerable (women and children) are likely to be the losers. Building on work

done under the GoSL’s successive Justice Sector Strategies to make justice more accessible to

the people of Sierra Leone (supported by ASJP), an assessment need to be undertaken of the

extent of the issues and an understanding gained of where the problems are likely to be most

acute. The response could include support to Chiefs and to Magistrates to process cases

including training, support to community mediation and to community based paralegals. In

addition ASJP’s Leh Wi Know legal phone helpline and radio programme aimed at women

could have an important role to play.

Support for the development of key laws

28. Not only does Sierra Leone face a backlog of laws from before the crisis, the crisis has itself

revealed and spawned the urgent need for legislative updating. Perhaps one of the most

urgent needs is for a modern public health regime to replace the Public Health Act (1960),

introducing 21st Century sanitation regulations. There are also commercial laws that need

attention – including to respond the commercial opportunities offered by the Ebola crisis, for

example to provide an appropriate regulatory framework for vaccine research and

development and drug trialling. Annex C sets out a ‘long list’ of 33 laws that have been

identified across government for reform, including new laws which have arisen in relation to

the Ebola crisis. This is an impossible legislative programme. There is urgent need for

23 World Bank ‘Ease of Doing Business in Sierra Leone’ 2015 data sheet. Full text available online at: http://www.doingbusiness.org/data/exploreeconomies/sierra-leone#enforcing-contracts


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prioritisation across government and the development of a realistic and sensible

Parliamentary legislative programme so that the most urgent laws are dealt with as a priority.

How LASER could help

29. LASER is a small programme, which offers demand driven, flexible support on commercial law

and justice issues. The support is not for ‘big ticket’ items, but instead for technical assistance,

including specialised legal expertise, and support in strategy development and planning.

LASER has been supporting the Ministry of Justice throughout the crisis, including assisting

with the development of the first ever commercial law and justice component of the national

Justice Strategy. Before the crisis LASER had already responded positively to the Minister of

Justice’s request for a long-term adviser to work with the Ministry on commercial contract

negotiation and management, to support shorter term inputs provided by HSF. This support

was put on hold due to the crisis.

30. As Sierra Leone moves into the post Ebola recovery stage, it is suggested that the next step

would be for LASER to support the GoSL and the Ministry of Justice in particular to develop

and implement plans to address the issues identified in this report. A key aspect of this

support would be to support HSF in their detailed technical work, and to work with the GoSL,

particularly supporting the newly proposed Negotiations Team attached to the Ministry of

Mining, to ensure that proper processes are in place across Government for entering into

MoUs and agreements with investors. Table 2 below summarises the support that LASER may

be able to provide, if requested so to do by the GoSL.

Table 2: How LASER could help


Output Recommended activities How LASER could help

Capacity of Law Officers Department, Judiciary and lawyers in private practice strengthened (output 1)

New activity: Strengthen capacity of GoSL

lawyers and officials to negotiate and manage commercial contacts, especially related to extractives. (Includes development and implementation of procedures, processes and training).

Supply of adviser to the Ministry of Justice with focus on development of processes and procedures for effective contract negotiation and enforcement across the GoSL MDAs, with specific support to the proposed Mining Negotiations Team, drawing in and leveraging specialist technical legal support where required

Perception of judicial independence and impartiality improved (output 4)

New activities: Develop and implement action

plan to improve performance of Commercial Court and address backlog

Adviser to Ministry of Justice could also work with the Judiciary to develop the plan, and source pro bono expertise (e.g. from the UK Judiciary) to assist with implementing it

Pilot initiatives to address community level disputes arising

Potential for LASER to source assistance from HiiL24 on post Ebola dispute

24 HiiL The Hague Institute for the Internationalisation of the Law is an advisory and research institute. HiiL operates by (i) offering justice strategy advice to make processes more accountable, (ii) measuring justice to make progress comparable and transparent, and (iii) through their justice innovation law which develops, tests, improves and endorses prototypes of new approaches. HiiL is currently supporting the Community Justice Teams through the Accountability Lab, in Liberia (please see: http://www.innovatingjustice.com/innovations/accountability-lab-community-justice-teams-liberia). The

http://www.innovatingjustice.com/innovations/accountability-lab-community-justice-teams-liberia


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Output Recommended activities How LASER could help

from Ebola outbreak, and scale up if appropriate

resolution, drawing on work they are already undertaking in Liberia or working in partnership with them to pilot an SL programme. Would need to be carefully coordinated with ASJP

Legislative and regulatory reform strengthened (output 3)

New activity: Develop and take forward

prioritised legislative programme for commercial law reform in light of new priorities identified by MDAs in light of Ebola outbreak.

Adviser to Ministry of Justice, with short term specialist support from LASER could work with GoSL to develop prioritised legislative programme

Community Justice Teams operate 24/7 offering community dispute resolution to the poorest communities in Liberia, which has been particularly impactful during the Ebola crisis when courts have been poorly functioning.


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Annex A: Documents considered

General Justice Sector Strategy and Investment Plan III CLJP Evidence Reports (Vol. 1 & 2) PRSP III Agricultural Sector Policy SL, MAFFS, 2007 MAFFS Strategic Plan 2006-2011 Country Strategy Paper and National Indicative Programme, 2008-2011, not dated DTIS, 2006 Agriculture Sector Review, MAFFS, all thematic documents & Main Report EIU, Quarterly, IV, 2012

Port

Strategic Plan 2014 - 2015 Financial reports 2013 – 2014 Operations Manual (undated)

Financial Services for Exporters

Rural Finance and community Improvement Programme, Appraisal, vol . I, Draft, 2007 BoSL, Prevention to Money Laundering, Financial Intelligence, 2009 BoSL, Banking Act 2000, Statutory Instrument and Banking Regulations, 2003 BoSL, Annual Report, from 2010 to 2012 Bank of Sierra Leone Annual Governor's Dinner speech 2013 BoSL, Commercial banks branches, 1212008 BoSL, List of Community banks and Discount houses in SL, l212012 MITAF, Community banks support strategy, draft, 2012 MITAF, Quarterly Report, 9/2012

Quality control

National Quality Policy October 2012 SLBS Food Storage Standards SLBS Environmental Standards Inspection Rules, Agriculture Act Cap 185 Native Produce Inspection Rules

Government Reports Policies & documents

Agenda for Prosperity National Export Strategy

Legislation Acts & Bills listed in Annex C


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Annex B: People met

Office of the President First Lady Madam Sia Nyama Koroma

State House Residence Paramount Chief Salifu Kalawa III

National Revenue Authority Commissioner General Madam Haja L. Kallah-

Kamara

Office of the Administrator and the Registrar-

General

Michala Mackay, CEO and Registrar of the

Corporate Affairs Commission

Ministry of Agriculture, Forestry & Food Security 1) Minister Dr Sam Sesay

2) Dr Mohamed Barie

3) Director of Crops

4) Director PEMDS

5) Deputy-Director PEMDS

Ministry of Finance Dr Sheku Bangura

Ministry of Trade and Industry Mr Mereweather, Director

Fast Track Commercial Court Office of the Master & Registrar

Central Bank of Sierra Leone Mr Eugene E.T. Caulker, Head of Monetary Policy

& Financial Stability Division

Sierra Leone Produce Marketing Company Mr Henry Yamba Kamara, Managing Director

Sierra Leone Maritime Administration Mr Jallow, Director

Sierra Leone Standards Bureau Mr Amadu Jogoh Bah

Sierra Leone Business Forum Mr Franklyn Williams

Sierra Leone Import and Export Promotion

Agency

Mr Kawa, Director

Chamber of Commerce Mr Oscar

Agriculture Chamber of Commerce Mr Nanoh

Law Reform Commission 1) Mr Idrissa

2) Mr Timbo, Director of Research

Maersk Shipping Line Mr Nadeem Ahmed, Managing Director


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Annex C: Long list of potential legislative reforms

No New law / law to be amended Rationale (if known) Source (if relevant)

Exploiting commercial opportunities introduced by Ebola outbreak

1. Medical laws including regulation of medical trials (currently no regulatory framework)

Potential for new foreign investment / joint ventures for medical research into EVD, including medical trials

2. Insurance laws / regulatory framework Expanding risk consideration to new areas as agricultural insurance e.g. for crops and livestock

Ministry of Agriculture post- Ebola planning document

3. Data protection, call recording and telephone marketing regulations

Potential for new foreign investment in call centres (building on Sierra Leone’s experience of Ebola hotline)

4. E-commerce laws Potential for expansion in light of installation of fibre optic ‘highway’ and increase in popularity due to avoidance of public places

Legislation in response to Ebola outbreak – aimed at supporting recover of economic sectors

AGRICULTURE / FORESTRY SECTOR

5. Draft Seed Act instruments. In relation to potential Strategic Grain Reserve for post-Ebola food security Ministry of Finance post-Ebola strategy document

6. Phytosanitary Act Ministry of Agriculture post-Ebola planning document

7. Cooperatives Act (1977) revision To reflect modern functions and roles of cooperative societies

8. Warehouse Receipts law

9. Produce Monitoring Board Regulations Ministry of Agriculture post-Ebola planning document

10. Agricultural Act and the Rural Area Act

Review and consider enforcement for charcoal exports and reinforce phytosanitary rules for plant exports.

Ministry of Agriculture post-Ebola planning document

11. Climate change Develop comprehensive policy on climate change together with regulations on use of carbon credits to encourage reforestation and afforestation


12. Forestry law Formulate a new forest policy and legislation, based on the principles of Sustainable Forest Management


GENERAL COMMERCIAL LAWS

13. Food Standards Agency law Ministry of Finance post-Ebola strategy document

14. Competition Bill 2012 Sierra Leone does not yet have a competition policy or regime.

15. Consumer Protection Act


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No New law / law to be amended Rationale (if known) Source (if relevant)

16. Taxation laws To incentivise businesses25

17. Special Economic Zone Act Amend to provide broader manufacturing possibilities for exporters at the Newton site.

18. Factories Act 1974 Amend to modernise the definition of ‘factory’ and bring draft in harmony with health, safety, environmental considerations.

19. Sale of goods and supply of services In possible collaboration with European Commission (A4D project), update the Sale of Goods Act and consider Supply of Services within update

Ministry of Finance post-Ebola strategy document

20. Intellectual Property Rights law

21. Micro, small and medium sized enterprise law To encourage formalisation of MSMEs Ministry of Finance post-Ebola strategy document

22. Review of land laws To give legal status to freehold interests; facilitate access by non‐Sierra Leoneans through leasehold that will serve as legal tender (note developing GoSL Land Policy)

Pre Ebola commercial legislative programme (laws not listed above)

23. The Petroleum (Exploration & Production) Amendment Act 2014

Amend to further regulate the development and production of petroleum operations

24. The Companies (Amendment) Act 2014

25. The Borrowers and Lenders Act 2014

26. The Appropriation Act 2014

27. The Petroleum Regulatory Agency Act 2014

28. The Registration of Business Fees (Amendment) Rules 2014

29. The Registration of Instrument (Fees) Order 2014

30. The Minimum Wage Order (2014)

Planned commercial legislation not yet in Parliament (laws not listed above)

31. Land Policy and Provincial Land Act (Cap.112)

32. Food Safety Law Currently being developed by the Law Reform Commission

33. Live Animal Disease Act In light of Ebola, to establish regulations that prevent and control animal disease

25 For example, the Companies Commission is proposing no-fee registration of new companies over an 18 month period meeting with CEO of Companies Commission 30/12/2014); the Sierra Leone Central Bank is developing position papers concerning support to SME’s linking microfinance institutions to a recovery package through finance facilities (meeting 16/1/2015 with Central Bank Head, Monetary Policy & financial Stability Division Research Department, Mr. Eugene E.T. Caulker); the NRA is considering tax breaks for SMEs

Post Ebola Legal Considerations - Gov of Sierra :Leone 2015

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