Constitutional improvement in Sierra Leone - The Blackhall perceive

Law Offices Of David J Stern - Constitutional improvement in Sierra Leone - The Blackhall perceive

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The Colony of Sierra Leone

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Law Offices Of David J Stern

Henry Smeathman, the botanist, recommended Sierra Leone as the most advantageous place for the preparing of a settlement.1 Established as a Crown Colony in 1808, the Sierra Leone peninsula and the areas directly to the south of it were governed by a Governor-in-Council who combined both menagerial and Legislative authority. This theory prevailed until 1863 when the menagerial and Legislative functions were divided in the middle of an menagerial Council and a Legislative Council. Though the new councils marked a step away from the earlier form of colonial autocracy, it is argued that they were not intended as a move towards self-government.2 The Colony of Sierra Leone then was inspired by the humanitarian opposition to the convention of slavery and nurtured by the British determination to end the Slave Trade. By the middle of the eighteen century, the theory of slavery was not too beloved with the English. On any occasions, social concentration was drawn to the interrogate as to either a slave should become free after arriving on English soil. The philanthropist Granville Sharp struck an effective blow in 1772 when "a test case was provided in the case of a slave named James Somerset, who had been brought to England from Jamaica by his scholar and had subsequently run away from him"3. The theory laid by Lord Chief Justice Mansfield of the English High Court in the case Somerset v. Stewart implied that any slave setting foot in England should be deemed a freeman. He noted that "the state of slavery... Is incapable of being introduced on any reasons...I cannot say this is allowed or stylish by the law of England and therefore the black man must be discharged".4 This noted Mansfield Decision stimulated the Christian philanthropy of men like Sharp and Wilberforce.

The consequence of this judgement was the liberation of hundreds of slaves living in England. During the American War of Independence (1776-1983), the British encouraged slaves in America to desert their masters to join the British army in return for relaxation and land. After the War - which Britain lost- some of these slaves went to Nova Scotia (Canada) and some to London. In London, these former slaves were beset with many problems. Their relaxation assuredly did not mean equality with British subjects. Often destitute, most of these freed slaves wandered about the streets of England distressing the kindhearted and men of property. They posed an awkward social problem. The victor and hero of the Somerset case, Granville Sharp, maintained a growing number of these slaves collectively referred to as the Black Poor. It did not take long for Granville Sharp to realize that the problem was more than incommunicable charity would cope with. As a remedial agency, a necessary number of philanthropists formed a Committee for relieving the Black Poor in 1986 known as the Committee of the Black Poor. This Committee was chaired by Jonas Hanway. It was During this period of uncertainty that a certain private Dr. Henry Smeathman, alias flycatcher, who had lived for about three years in the vicinity of Sierra Leone strongly proposed the area as a suitable settlement. In 1785, this botanist certified Sierra Leone unhealthy for the preparing of a concrete settlement. However, in February 1786, he declared the area suitable for human habitation, crop yield and cattle rearing. His foresight for the hamlet was principally economic and commercial. Granville Sharp, the leading abolitionist, Jonas Hanway, John and Thomas Clarkson (and subsequently Thomas Fowell Buxton) resorted to a scheme of colonialization. Inadequate finances prevented them from acting along. They appealed to the British government for assistance which the latter willingly gave since it wanted to end the problems posed by the Black Poor.

The Colony of Sierra Leone (which started on 11th May, 1787), began, not as a Colony of Britain, but rather, as a fully independent colony with an African governor, Richard Weaver. Needless to state, this was the dawn or coming of a brand new experiment in the relationship in the middle of the Africans and the Europeans. This experiment was a reverse drive of the so-called African Diaspora for "instead of the old 'middle passage' traffic when negroes were taken from Africa and sold into slavery in the markets of Europe and the New World, the new 'middle passage' traffic of these years consisted in Negroes making the return journey from Europe and the New World, not for purposes of slavery, but that they might have the opportunity of living their lives as freemen on their own native continent".5 This hamlet was no doubt a tiny one but had nearly all the essentials of a state. This Governor and the coarse Council might have been dubbed President and Parliament respectively. The hamlet was administered under the old English theory of frankpledge whereby the colony was divided into tithings and hundreds. Tithingmen and Hundredors (who were duly elected representatives) made rules for the good government of the settlement. These rules may be called laws. In effect, there existed an independent political community composed of free and independent blackmen (and women).6 Such a brief consulation reminds one of the old Greek city state which practised democracy, though differently. Naturally defined, "democracy in Africa or in any place else, is government by the people"7. As Mr. Guy Clutton-Brock - writing about a typical African hamlet community - put it, "the elders sit under the big tree and talk until they agree"8. This form of democracy (similar to that practiced by the City States of old Greece) was slightly different from that practiced by the settlers in Sierra Leone. In the latter, the right of the settlers to make political decisions was not exercised directly but "through representatives chosen by and responsible to them, known as representative democracy"9. The early constitution of Sierra Leone has its point as the first instance in modern history of a self-governing colonial community of non-European population, where colour was no disqualification and negro relaxation were allowed the political and civil possession of Europeans. As hundredors and tithingmen the black settlers of Sierra Leone had fulfilled menagerial duties that had industrialized into legislative duties; as jurymen they had shown judgement and intelligence that won the praise of Europeans."10 The constitutional right or privilege to elect representatives was only a respite.

The Sierra Leone business Act of 1790 which transformed the St. George's Bay business into the Sierra Leone business with a Royal hire signaled the start of a marathon period of settler suppression and entailment of independence. Porter outlines four major developments in the middle of 1807 and 1808 which not only altered by reshaped and restructured the history of the Colony of Sierra Leone. First, the Slave Trade was abolished in 1807 by the British Parliament. Second, the African convention (mainly composed of members of the Sierra Leone Company) was formed for the physical regeneration of Africa. The members hoped or rather attempted straight through this African convention to continue exercising their interest and influence in the Colony. Third, partly as a succeed of the bankruptcy of the exhausted Sierra Leone business and partly to suppress the inhuman Atlantic Traffic, a Crown Colony was established over Sierra Leone on 1st January 1808. Fourth, the Order in Council of 16th March, 1808 established a Vice-Admiralty Court in Sierra Leone for trying both captured slaves and their owners.11 A catastrophic implication of these developments was the abrogation of the legal jurisdiction of the settlers. They lost all possession of participation and representation. Since 1863 "although(ugh) the size of the Legislative Council gradually increased, its necessary features remained unchanged."12 It would, therefore, not be farfetched to briefly look at the changes in the state of the colony and the Blackhall Constitution for "this structure did not change much until 1924...."13 The Colony of Sierra Leone was partly established in 1978 to "secure a home on the continent of Africa for natives of Africa and their descendants who for one reckon or another, primarily, because of slavery and the Slave Trade, had left their native shores and were perforce living abroad."14 One could identify four groups of settlers in the Colony of Sierra Leone. The first was the Black Poor who arrived in 1787. The second group of settlers, the Nova Scotians, arrived in 1792. The next two groups of settlers, the Maroons and Liberated Africans/Recaptives, arrived in the nineteenth century, the former in 1800 and the latter from 1808 onwards. Relations in the middle of and among these various groups of settlers were initially hostile and the Freetown community or community was hierarchically stratified. There was that recognized social distance in the middle of the Settlers and the Liberated Africans. With time however, Freetown became a melting pot of cultures. Faced with the western cultural patterns as interpreted by the New World Settlers (that is the Nova Scotians predominantly), which patterns were reinforced by the patronage and favour of the European supervision and other ancillary agencies like the missionary societies, the Liberated Africans, as the fourth group of immigrants came to be known "began to copy these patterns which soon became the high credit for all groups in the territory."15 This 'new' land enabled settlers to mould themselves and the succeed was a new nation with a certain and unique identity. Religion, study and trade were three factors which aided the transformation of the lives of the settlers whose descendants were designated the Krios. Religion and education, agreeing to Porter were "indicators of status in the Freetown community and as avenues by which an private or family, properly motivated, can move vertically in the stratification ladder."16 It was therefore coarse by 1850 to see descendants of settlers and Liberated Africans (Krios) in the registers of the C.M.S. (now Sierra Leone) Grammar School (1845) and the Female Insituttion (1849), later known as the Annie Walsh Memorial School. As families became prosperous, they moved from the independent chapels to the big churches. The role or point of study for instance must not be underestimated. It opened the eyes of the Krios.

The 1850s ushered in a new era of political activity. There was a revolution in ideas as a succeed of the emergence of the new elite. study "made men more ready when the need arose to interrogate the whole foundation of the old order."17 But what was this old order? This was the political or constitutional arrangement in the Colony. Supreme power - legislative, menagerial and judicial - rested with the Governors who were all whitemen. Her Majesty would not intervene in colonial affairs without the guidance of the Secretary of State for the Colonies, or to the Cabinet. These Colonial governors were responsible not to the habitancy they governed, but to the Queen, the British Parliament or the British electorate.

Events leading to the 1863 Constitution

Why were the Krios not adequately represented in the Council which governed the Colony? As Wyse caustically realized, "the Krios contributed to the amelioration of politics in West Africa. Education, the Christian religion and relationship with the white man adequate the Krios with the necessary tools to understand European government and western political ideology, and to use their options, restricted as they assuredly were, to challenge the European ruling caste system".18 The Krio community was aware of the reasons behind the preparing of Granville Town in 1787. Granville Sharp intended the hamlet to be more than a receptacle for indigent blacks. He dreamt of a free settlement. The Krios now wished for a return of the period when ancestors enjoyed free black rule. They perceived their introductory role of agents in the transport of western civilization and Christianity with utmost pride. Krios, the educated class, were disappointed by British unwillingness to introduce democratic government into the Colony, though the British themselves enjoyed democracy at home. They became all the more interested when they compared what was happening in the Colony with what was happening in Liberia, where the habitancy governed themselves. They started to assault the Crown Colony theory of government which was imposed on them.19 Other developments aggravated the desire of the educated elite in the Colony of Sierra Leone to interrogate the entire foundation of the old theory of colonial administration. Sierra Leone produced the first group of western educated elite in British West Africa and was fulfilling the dream of Governor Charles McCarthy (1814-1824). She acted as a base for the spread of religion, civilization and western study in West Africa.

Fourah Bay College (1827) served British West Africa and was the only university in the region until the turn of the century. It was therefore very painful to the Krios that the Colony of Sierra Leone ran a much slower constitutional race than the other British West African countries which had won more 'advanced' constitutions which provided for isolate Legislative and menagerial Councils. When the Gambia was separated from Sierra Leone in 1843, an menagerial and a Legislative Council were constituted there and the business community, dominated by a few European firms, given representation. In the Gold Coast too, menagerial and Legislative Councils were set up in 1850. The Liberian Republic was self governing. But the constitution of Sierra Leone remained, with only small amendment, what it had been in 1821. Its citizens were taxed but still unrepresented. Deprived even of the social voice of a Grand Jury, they could still only present their views in petitions.20 The settlers in the colony had no recognized political party in the 1850s to interrogate the Constitution of 1808 which was obsolete in the face of new social development. However, the absence of a political party was a low wall which did not frustrate the efforts of the settlers. As Porter observed, "as the Colony expanded, many became discontented with the form of government in which they had no share. In 1850, the Rev. E.T. Poole, Colonial Chaplain, published a book in which he protested against the Colony being ruled by a incommunicable council in which the habitancy were not represented at all"21. This was any way an private pressure. In 1853, a marvelous organization, the Sierra Leone Committee of Correspondence was formed by a West Indian, Mr. Lenaghan to advocate for the legal and constitutional privilege of representation. This local body of businessmen was later superseded by the more marvelous or influential Mercantile Association. It is but fitting at this point to pay tribute or briefly comment on the Mercantile relationship or rather the role of the Merchant elite as the articulates of the middle-class. Trade was to become an instrument of moral upliftment. Largely straight through the efforts of Governor Charles McCarthy and the Settlers themselves, there was a marvelous change in the proper of living of the latter. By forming bidding groups and other co-operative societies, the Settlers in the Colony were able to make huge profits. It soon became clear that a merchant elite was developing. An society designed to record the interests of the growing mercantile community, the Mercantile Association, was formed by a group of prosperous merchants in 1851.

The Mercantile relationship played a very leading role in political amelioration in the Colony in the 1850s. Whereas writers like Edmund Burke believed that political authority derives from tradition, others like James Harrington have argued that political authority was the outgrowth of economic order. In other words, political power follows economic power. If anything, there is some semblance of truth in Harrington's proposition. With economic power, the Mercantile relationship (a multiracial organization) became a political mouthpiece of the habitancy as it frequently petitioned the colonial administration. (As will be seen later, this relationship was so leading that one of the appointments to the Legislative Council of 1863 was made with its consultation). The Mercantile relationship (which had some professionals) was not only numerically and lamentably stronger than the Committee of Correspondence but comprised very influential black and white settlers who assuredly controlled a gigantic part of the economy. Irrespective of this composition, this all-powerful relationship in 1958 "petitioned against abuses over taxes and duties and asked for a new constitution for Sierra Leone."22 The relationship also asked for an elected assembly. The Settlers of the Colony of Sierra Leone also had international support. The Aborigines safety community and the Anti Slavery community in England were two bodies which questioned the British House of Lords for maladministration in the Colony of Sierra Leone. One would be assuredly charged with schoraly treason for failing to riposte the role of the Press During this period. On a more general note, the African-owned newspaper During the colonial period had any general characteristics. First, it rivaled the colonial administration. It was the most effective weapon for airing long-felt political grievances and influencing the tide of events in the absence of a democratically elected government. Second, the Press was both the analyst of the ideals and aspirations of the habitancy as well as the custodian, guardian and protector of their possession and liberties. On a more particular note, the Press in Sierra Leone During the 1840s and 1850s was far from ineffective. It is sometimes argued that newspapers in the tail end of the nineteenth and early twentieth centuries were of a good capability than those of the 1840s and 1850s. That notwithstanding, newspapers in the 1840s and 1850s were very necessary of the colonial administration. One such newspaper which attacked deeply-felt political grievances, the direct rule of the unrepresentative council (in which the powers of the governor were approximately absolute) and its indirect power of patronage was the New Era.

In May 1855, William Drape, a West Indian, established the very first newspaper on African soil. This weekly publication had been expressly founded to reflect local opinion. Many finally saw the paper as "a rally point for anti-government forces..."23 It was clear by 1863 that the 1808 Constitution was outmoded as far as amelioration was concerned. It is true that with pressure only fools and gods do not change. The colonial government realized that the wind of change had been transformed into a hurricane blowing over the Colony of Sierra Leone. The incumbent governor, Governor Hill, was very obstinate. The Settlers needed a governor who was necessary enough. They found such a man in Governor Blackhall, an Irish landowner who was appointed in 1863. As Fyfe observed, this gentleman "was ready to reverse, as bidden, his predecessor's bellicose policy, and to accept a new legislature."24

The 1863 Constitution

Legislation was being passed in the Colony of Sierra Leone to prepare the way for the formal introduction of the Blackhall Constitution. The pressures of the Settlers in the Colony and their supporters in Britain for added constitutional advance were not in vain since the British or colonial government "acceded to the demands for constitutional change and introduced a hire dated 27th May, 1863 together with Royal Instructions dated 30th May, 1863 following a new constitution for the Colony of Sierra Leone."25 On 26th July, 1863, Governor Major Samuel Wensley Blackhall issued the following proclamation, "I do hereby publicly proclaim the said hire of Justice to be in full force and succeed from this date."26 The hire and the Royal Instructions which brought the Blackhall Constitution into being revoked the hire of 1799. In this novel constitution, "the Governor's Council was abolished and in its place a Legislative and an menagerial Council were set up."27 It must be noted that constitutional history allowable commenced in Sierra Leone in 1863.

Perhaps, it would not be farfetched to say that this was the beginning of our modern House of Representatives or good still Parliament. Looking intimately at the details, the menagerial Council was composed entirely of the valid members, that is to say, those forming the Legislative Council, with the governor's appointees. Members of the menagerial Council therefore were H.E. The Governor (Major S.W. Blackhall), The Chief Justice (John Carr), The Colonial Secretary (George Nicol), The Queen's Advocate (H.J. Huggins), The Officer Commanding forces (Colonel Hughes).28 The Legislative Council consisted of the governor (who bore the valid title of Governor and Commander in Chief), the valid members of the menagerial Council and "such other person or persons nominated and appointed to serve on the Council"29. The valid members were compelled to support the policies of the Governor. As Martin Wight put it, an valid member "could not be continued in the office and seat if his conscience should not permit him to give the Crown such a part of support as may be necessary to enable the governor to carry on the business of government in the Legislative."30

The Council made provisions for only two appointed unofficial members. These were chosen from among the population. In his selection, the governor was required to take into observation "not only to those who are most likely to support the government but those who will be taken to record and will inform you of the wishes of the more thoughprovoking part of the community... And adopt the guidance of any constituted body of a more or less beloved kind."31 Two conclusions could be drawn or derived from the above quotation. First, the unofficial members were nominated to record social conception and second, by seeking to know the wishes of the thoughprovoking part of the community and the guidance of any beloved body, the government used the unofficial members to bring in the speak section of the community. Thus, as Peterson observed, "when Governor Blackhall revived the Mercantile relationship in 1863 to elect an unofficial member for the newly instituted Legislative Council for Sierra Leone, it elected the leading African merchant in Freetown, John Ezzidio. As a member of the Legislative Council, Ezzidio remained a representative of the commercial community.32 The other unofficial member was the influential Charles Heddle who had sat on the former Governor's Council for many years. It was clear that the Mercantile relationship was still influential. Revived temporarily in 1863, the Mercantile relationship was reconstituted in 1864 as the chamber of Commerce. After 1863, although it was "excluded from constitutional function, the chamber still provided a forum where grievances could be ventilated and reforms suggested."33 A necessary examination or enumerate of the mixture and functions of the Councils established by the 1863 Constitution clearly reveals barriers to their amelioration as truly representative institutions. A proper examination of the Blackhall Constitution puts one in a good position to understand the Slater Constitution. The powers of the governor for instance were extraordinary. As President of both Councils, he was to preside over meetings and advise the program for discussion. Markin Kilson forces one to believe that "evidence of the prevalence of a democratic legacy in British West African colonies was apparent at the very start of the constitutional development."34 Marcus Jones' great summary of the governor's powers for instance belies Kilson's assertion that "the governor had the right to nominate and appoint whomsoever he pleased...He could summon, adjourn, prorogue or dissolve the Council at will. He was the undisputed ruler, field only to directions from the home government."35 Hargreaves discussed at distance the British theory of choice and representation in her colonies. He concluded the section by stating that though Ezzidio's choice was hardly a democratic one, it was in no way an arbitrary selection but added realistically noted that "such systems were clearly unsatisfactory to habitancy who felt they had a right to select their own representatives and to resolve how they would be governed."36 Wyse pierced the heart of the matter when he observed that Ezzidio's choice could in no way be seen as a precedent for nascent political independence. Although the consent of the Legislative Council was necessary to pass legislation and the yearly estimates, that consent was all the time assured by the valid majority. If one critically assesses the menagerial Council Minutes book of 20th July, 1863 Constitution was merely a ludicrous document. agreeing to A.Dike, Clerk of the menagerial Council, "His Excellency took the guidance of his Council on the estimates for 1864... The Board having recommend some alterations stylish of and recommended that the same be submitted to the Legislative Council at its sitting."37 This is all absurd as the Governor is all the time assured of an valid majority in the Legislative Council. But what sort of democracy was this? It is true that the 1863 Constitution provided a forum for the consulation of political issues but "ironically the Constitution marked the beginning of a declining phase in the political fortunes of Sierra Leone"38.

The fact that the Legislative Council on some occasions influenced colonial government procedure did not mean that it was very effective. Although John Ezzidio had a list of marvelous successors, one must not forget that anything the situation, a colonial government represented a set of or autocratic interests. Although the Legislative Council had the right to guidance the governor, the latter was not bound to accept such advice. Perhaps a fair article of the Constitution was that rendered by Blyden. As he observed, "a note worthy feature of the 1863 Constitution was the prolongation of the privilege of unofficial representation on the Legislative Council to the African settler population."39 One must note well the use of the word privilege which aptly described the situation. But why not right? assuredly the colonial government was not yet ready to concede representation. Some erroneously believe this Constitution was democratic because of the African representation. Indeed, it is very indubitable that "this amelioration could hardly be regarded as the beginning of true representative government in Sierra Leone since the British government insisted that Ezzidio was not a delegate but a nominee of the merchants, removable at the Queen's delight and not at the delight of the merchants."40 This 'new' arrangement therefore did not foreshadow any independent political community. 1863 left the Settlers in a disillusioned state. The major defects of the judicial theory that existed before this period were preserved. One dismisses the choruses of praise which recommend that it was a welcome and industrialized part as misleadingly over simplistic since it lamentably failed to meet the demands, aspirations and expectations of the Settlers. As Porter put it, "the habitancy were clearly ready for a change and this was (only) partially met in 1863...."41 It was recommend that the Colony would have profited from the taste gained by the application from and adaptation of these institutional processes of a liberal democracy which the Constitution of 1863 and its implementative devices introduced. In the light of the recommendations made by a Parliamentary Committee which investigated the conditions of the West African settlements within two years of the 1863 Constitution in Sierra Leone, the verdict appears doubtful.42

Conclusion

It is assuredly a truism that the 1963 Constitution marked an inch away from former forms of colonial autocracy. At the same time, it is also incontrovertible that this Blackhall Constitution was "essentially a gismo for the more effective government of an increasing colony, rather than a concession to the principle of representation."43

References

1. Arthur Porter, Creoledom, (London: Oxford University Press, 1963), p.10

2. Martin Kilson, Political change in a West African State, (Harvard: Harvard University Press, 1966),p.98

3. T.N. Goddard, The handbook of Sierra Leone, (London: Grant Richards Ltd, 1925), p.20

4. W.M. Macmillan, The road to self rule, (London: Faber & Faber, 1959), p.51

5. Porter, op.cit., p.19

6. W.S. Marcus Jones, "Legal amelioration and constitutional change in Sierra Leone, 1787-1971,
unpublished manuscript", p.30

7. Rupert Emerson, The political awakening of Africa, (Englewood Cliffs: Prentice Hall, 1975), p.122

8. Ibid.

9. The New Encyclopaedia Britannica, Vol.4, s.v. "Democracy", p.5.

10. Kilson, op.cit., p.98

11. Porter, op.cit., pp.35-36

12. Christopher Allen, "Constitutional change in Sierra Leone, 1863-1967", p.1

13. Ibid.

14. Porter, op.cit., p.10

15. Ibid., p.12

16. Porter, op.cit., p.78

17. David Thomson, Europe since Napoleon, (Norfolk: Lowe and Brydone Printers Limited, 1957), p.4

18. A.J.G. Wyse: cited in Joseph E. Harris, Global Dimensions of the African Diaspora, (Washington: Washington University Press, 1982), p.327

19. J.D. Omer Cooper et. Al., The growth of African Civilization, Vol. 1, (Longman: Longman Group Limited, 1968), p.154

20. Christopher Fyfe, A history of Sierra Leone, (London: Oxford University Press, 1962), pp.281-282

21. Porter, op.cit., p.56

22. Jones, op.cit., p.214

23. Frederick J.A. Omu, cited in J.D. Fage, J.R. Gray and R.A. Oliver, eds. Journal of African History, Vol.

Ix, No.2, 1968

24. Fyfe, op.cit., p.318

25. Jones, op.cit., p.11

26. Ibid., p.10

27. Cecil M. Fyle, The history of Sierra Leone, (London: Evans Brothers Ltd., 1981), p.75

28. Jones, op.cit., p.221ff

29. Blyden, op.cit., p.37

30. Martin Wight, The amelioration of the Legislative Council (1806-1945), (London: Faber and Faber, 1945), p.109

31. Jones, op.cit., p.214

32. John E. Peterson, Province of freedom, (Evanston: North Western University Press, 1969), p.295

33. Fyfe, op.cit., p.331

34. Wilson, op.cit., p.4

35. Jones, op.cit., p.213

36. J.D. Hargreaves, "Problems of constitutional amelioration in West Africa", Publication 1, agency of Extra Mural Studies

37. menagerial Council Minutes (20th July 1863-7th November 1870), Sierra Leone social Archives

38. W.S. Marcus-Jones, "The safety of underlying possession and relaxation of the private in Sierra Leone", unpublished Ph.D. Thesis, Yale (n.d.), p.31

39. Blyden, op.cit., p.42

40. Gershon Collier, Sierra Leone: Experiment in democracy in an African nation, (New York: New York University Press, 1970), p.7

41. Porter, op.cit., p.123

42. Blyden, op.cit., p.43

43. Collier, op.cit., p.7

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