ACC Czar speaks about the collapse of the missing Chinese rice court trial

Sierra Leone Telegraph: 20 July 2020:

Last Thursday, 16th July 2020 in Freetown, High Court Judge – Justice Cosmotina Jarrette discharged former Minister of Basic Education – Alpha Osman Timbo; Emily Kadiatu Gogra – Deputy Minister of Basic Education; Charles T. Kamanda; Mamusu Massaquoi and Zainab Binta Kamara, on all 15 count charges of corruption related offences, concerning the missing consignment of 50,000 bags of rice donated by China to the government of Sierra Leone, to help boost the country’s schools feeding programme.

Discharging the accused in a trial brought  to court on 9th April, 2020 by the Anti-Corruption Commission (ACC), lead ACC prosecutor – Calvin Mantesbo, informed the court that the ACC had reached a conclusion that they offer no evidence against all accused persons, after all accused persons pleaded not guilty to the charges.

Lawyers for the first, second, third and fourth accused persons demanded payment of costs in the sum of two hundred and fifty million Leones (Le250, 000,000) to be granted but Justice Cosmotina Jarrett declined their request.

The collapse of this case which many believe to have become politicised, sent shockwaves, especially among critics of the government who are accusing the ACC of conveniently offering no evidence in the trial to protect a sacked government minister accused of the disappearance of 50,000 bags of rice donated by China for the feeding of millions of poor children across the country.

So, why did the ACC withdraw this high-profile case from the courts?

Journalist – Milton Margai, yesterday spoke with the head of the Anti-Corruption Commission – Mr Francis Ben Kaifala to discuss why. This is what he told Milton Margai:

MARGAI: Earlier this year, Timbo and 4 others were charged with 15 count charges. In recent development, the judge discharged Timbo and others on all counts based on the fact that the ACC could not offer any evidence against the accused persons. Firstly, is it wise or economically viable to charge the five accused persons without evidence?

KAIFALA: “There was evidence that a charge could be viably brought on. We just had an unprecedented shock which pushed us to make a tactical move. There is a misunderstanding of what really happened. To “offer no evidence” does not mean “there is no evidence”. Lawyers can strategically offer no evidence to withdraw the file from the courts for strategic reasons including a tactical withdrawal.

This can happen because there are some issues which need to be taken care of in-house or to correct a mistake or to avoid proceeding at this stage. There can be ample evidence and this would still be done in criminal cases.

In the instant case, for the first time in the history of the fight against corruption in Sierra Leone, the former attorney General denied giving the ACC fiat for trial by judge alone (and by Section 44 of the Criminal Procedure Act, only the Attorney General can give that fiat). It had never been an issue since 2008 until now. Without it, we would be locked in a jury trial in a country where jurors can be unreliable and easily bought.

Anti-corruption cases are complex and complicated. We do not think leaving it to a jury trial would be wise for many reasons beyond even the complexity of the charges. For two months, we tried to convince her to back off that stance. She did not budge. We were already in court and the case was grounded while we try to solve it diplomatically and avoid a public show. In the face of not wanting to set a precedent for Jury trial in corruption cases, and while trying to navigate it,

I was having pressure from the judge who was under constant pressure from defence counsel who wrote multiple letters to the Chief Justice complaining the delay and wanting the case thrown out or proceeded with. Two months was too long to keep the court waiting. Since we could not move in court, I decided to ease the pressure on us and the judge and the best option which would cause little damage to the case was for us to offer no evidence (does not mean there is no evidence) so we can come back to the drawing board to better prepare ourselves to navigate the challenges.

Offering no evidence is merely a legal way to say “we want to go back and put our house in order. We are always free to come back”. The judge cannot stop it. The defence cannot stop it. We are in full control.

Allowing Jury trial for anti-corruption cases would be a disastrous compromise of the fight against corruption and defeat the purpose for which we set up the Special Court for corruption. It was like a forester watching over the health of the forest. There is one bad and unhealthy tree that could either be left to stand and become contagious to other trees in the forest, or he cuts it down and save the rest of the trees in the forest from a pandemic contagion. That one tree cannot be more important than the acres of green forest.

We cut down the one tree to save the health of the forest (while we think what next with the tree – including to replant it). The sick tree is the Timbo case and the forest is the fight against corruption in Sierra Leone and the several dozen cases in court with the hundreds more to be charged now or the years to come, which is and remains in extremely good health.

The forester is us at the ACC. It was wiser to cut that one tree and save the health of the forest than to foolishly leave it standing and create a lot of diseased trees which would destroy the forest not just for us now but for the future.”

MARGAI: Secondly, what do you make of the judge’s decision to discharge Timbo and others on all counts?

KAIFALA: “A discharge is not a bar to further prosecution or for us to take other steps within our powers. It is better to tactically offer no evidence to get a discharge than to be foolhardy and proceed towards acquittal; in which case the ‘autre fois’ acquit rule would catch us and prevent us from doing anything further. We would lose all round then. It was the best move.

MARGAI: Legally speaking, what does it mean for all the accused to be discharged on all counts that the ACC charged them with?

KAIFALA: “It means we now have full control over the file as though we had not yet charged. In court our options were limited. Bringing the file back to the ACC our options remain open including further investigation to tighten the evidence, or engage asset recovery or prosecute again by re-filing in court against those we believe there is sufficient evidence to go to a jury or judge or both (if we cannot get the current Attorney General to overturn his predecessor’s position). In short – no one is entirely free.”

MARGAI: Based on the ruling by Justice Jarrett, Timbo’s lawyer, Osman Jalloh, is now asking the ACC to pay his client a 250 million Leones compensation. Other lawyers are also asking for compensation but one. What do you make of the requests and will the ACC be paying any compensations?

KAIFALA: “That application was refused and not entertained by the judge because there was no reason for it. The case had not proceeded. Even if it had proceeded, only after an acquittal would it be remotely possible; which was not the case.

MARGAI: In an interview given by Timbo after the ruling, he said he has known all along that he was innocent in this particular case and thanked God that justice has prevailed. Has Timbo been found innocent and has justice prevailed?

KAIFALA: “No. No judgment has been given of his innocence. Like many, the situation may have been misunderstood.

MARGAI: Timbo also thanked the ACC for acknowledging that they wouldn’t be able to secure a conviction. Is that the case? Has the ACC concluded that they wouldn’t be able to secure a conviction against Timbo?

KAIFALA: “No. The ACC is reviewing the file in the view of the Attorney General’s letter and the evidence with us.

MARGAI: On Twitter, you mentioned the refusal of fiat by the former Attorney General for Trial by Judge alone. When did the former Attorney General make that decision?

KAIFALA: “Two months ago by letter addressed to me and the master and Registrar copied.

MARGAI: Why is the ACC only withdrawing the file now for review and next step after the judge’s decision, instead of when the former Attorney General refused the Trial by Judge alone, which the ACC seem to prefer in corruption cases?

KAIFALA: “Because we thought we could negotiate our way and dissuade her. Following her removal, only a review of the processes and engagement with the new Attorney General can change the position. So, it had to be now or never. Not before.”

MARGAI: What are the next steps?

KAIFALA: “Review and engagement with the new Attorney General. Then based on that we decide next steps.”

Photo above: Journalist – Milton Margai.  

9 Comments

  1. Good heavens, what happened to Ben Kaifala? Within just two years of riding the highest wave, he is flat on the floor – face down. His legal credentials are in serious need of thorough scrutiny. A lay person would have done a better job. The poor chap needs a break, he has lost his bearings. Those of us who had believed in him, now walk around with our respective heads hanging. Who can blame anybody for thinking that like his predecessors, except one (Tejan cole) Ben Kaifala has been compromised behind the scenes? He started off like a cheetah – the fastest land animal, especially when chasing prey, to now where he is a chameleon. His authority only shows when dealing with powerless members of society.

    But Ben Kaifala and his team should be spared a thought of empathy and sympathy. They’re operating in a framework where they have to consistently have to glance over their shoulders to see whether the President and his chief minister are giving them the nod or shaking their heads with a frowned face. Billions of Leones went missing at various government departments – Ben Kaifala stalled. There was the $1.5 million associated with the chief minister – Ben Kaifala stalled . Now we have the case of the thousands of bags of missing rice in which the chief was implicated – Ben Kaifala’s legal acumen was conspicuously absent. Yet when lowly immigration officials at our border with Liberia were caught in corruption they were publicly displayed in the centre of Freetown with placards. Are we in a new direction or just using the side roads?

    Ben Kaifala must definitely be at war with himself with pangs of conscience. He is in a damned if you do and damned if don’t situation. He may want to resign but cannot because of the privilege he enjoys, including a handsome salary. Our nation will continue to tether on the brink of disaster. Let’s stop crying or may soon have no more tears to shed.

  2. As a layman to the law profession and legal proceedings especially in Mama Salone the provisions of official sensitivities, protections to certain cases in the justice system are of prime importance far the safety/security of the country and the three arms of government to operate smoothly. We must be aware of the rights of every nation to state secrets, as every country in planet has their own national secrets to keep and only become available to those legitimate by the laws/constitutional provisions of that country.

    For instance, no country will go to the airwaves to report of the transfer of police/military officials from one location to another either within/out of the country etc. So there are sensitive matters for example like the cases the Anti-Corruption Commission is dealing with. And since the ACC was established by the Ahmed Tejan-Kabbah led govt in modern Salone it was a trial by judges alone. And from the boss of the ACC this Alpha Timbo’s matter was the first to be suggested by the Attorney General to be tried by jury instead of judge alone trials.

    Salone is a third world country and it will surprise you how some advanced/developed economy like Australia etc are fighting external cyber crimes. Spies trying to gain access to state’s secret in order for those spies to gain access and know what to do about the strength/weaknesses of the host country. I will end by mentioning the true historical story of the Trojan Horse story as a false gift by one country to another, in the middle ages period, that resulted in the destruction of the accepting country of such gift. Please do your research of that historical fact and see how bribery, corruption, mismanagement, nepotism etc has reduced us to abject poverty, destitution, economic refugees looking for greener pastures and fertile lands to do whatever jobs to meet our needs.

  3. KAIFALA, when you and many of your kind were in opposition you were crying loud about corruption in the past government of EBK. Today you are at the helm as commissioner of anti corruption. There are two high profile cases of corruption from the ruling government of President Maada Bio. First was the Chief Minister with the allegedly 1.5 million dollars deposited in his proxy account with Eco-bank, even though the actions of the Chief minister with the journalist who raised the issue clearly give credence to the citizens to believe there is something to hide by the Minister. It end up being a boff case.

    Now, the above case of the 50,000 bags of rice meant to feed the school going children despite there is clear evidence that the said rice was shared among the ruling party members, it is also a boff case. You waited for a good opportunity to use the sacked Antony General as a scape goat to exonerate your party members.

    Why do we have to continue believing that the backwardness of our nation is as result of illiteracy, that we should invest in education and human capital development, which is the mantra of your administration. Sierra Leone’s problems of underdevelopment in any aspect, is not due to illiteracy, it is due to young men like you and many others who lack morals and are dishonest to the core. I can give you an example of a country that is not as educated compared to Sierra Leone, they dont have any precious natural resources like we do, but they are far more peaceful and better than us in many international standings – The Gambia. To me, you are the worst ACC commissioner ever in the history of that institution. You should bow your head in shame.

    • Ngor Foday, its the elites (literates ) who have literarily killed that country, not illiterates. Unfortunately, the elites are so arrogant and dishonest that it never accept it roles in this disaster. Anytime there’s a discussion on thieving in salone, the bullying elites will refer it to the courts of the illiterates’ just to avoid scrutiny.

  4. Nigeria, Africas largest black population, have lost the tune of 400 billion dollars to corruption since the country’s independence on the 1st of October 1960. President Buhari one of the least corrupt leaders in Nigeria’s history, has made it his mission to fight that scourge in Nigerian society. I only hope president Bio, is listening. Because, he too has identified the same problem in Sierra Leone. Yes our anti corruption team might have a case there, when they said, it is difficult to bring cases of corruption to the courts. They should not see this as a set back, but redouble their efforts and go after corrupt officials that have destroyed our country’s prospects for future developments. Nigerian anti corruption authorities are having difficulty as well. But they are still active. The reason or reasons, why both these anti corruption bodies are yet to land the big fish, is because, both anti corruption bodies have been corrupted by politices.

    You cannot fight corruption, by corrupting the vehicle you use to fight corruption . Corrupt government officials should not think, this judgement gave them the green light to enjoy their stolen loot in peace. Far from it. Sierra Leoneans have woken up from their slumber since independence. Thsnks to the world wide web. Now we seek accountability from our politicians. If these bodies were to succeed in bringing corruption charges against past and present public officials, they need to take the politics out of these bodies Transparency, and being seen to be independent, is the name of the game.

    Take the politics out and operate like you are blind folded. Go after corrupt politicians whether APC /SLPP officials. Gathering of evidence should not be seen like a common crime scene. More like you are investigating cold case reviews. Building a case against corrupt politicians, is time consuming, and if you secure a conviction is good for the nation. May God bless Sierra Leone.

  5. Indeed. “Anti-corruption cases are complex and complicated” when it involves SLPP members and politicians, but easy as drinking a glass of “Palm Wine” from the palm tree when APC members and politicians are involved. Can you imagine the injustice Sierra Leoneans face? Secondly, can anyone explain to me what the ACC boss means by this?

    “In the instant case, for the first time in the history of the fight against corruption in Sierra Leone, the former attorney General denied giving the ACC fiat for trial by judge alone (and by Section 44 of the Criminal Procedure Act, only the Attorney General can give that fiat). It had never been an issue since 2008 until now. Without it, we would be locked in a jury trial in a country where jurors can be unreliable and easily bought”. I don’t get it. Was the former AG corrupt? God help our justice system. TBC.

    • This commission exonorated Mikilu Mansaray even though his investigation commenced under the government of the APC party he was deputy leader of. Victor Foh the co accused was sent to court. At that time, it was all praise from you Mr. Matturi. In life the truth should take primacy over love and emotion. Having said that, the indictment by the ACC in this matter was faulty. The court charge said that Alpha Timbo and co misappropriated 50,000 bags of rice donated by the Chinese for school feeding.

      However, in the course of the investigation the ACC got admission from recipients of half of the number of bags from the 50000 bags. There was still a quarter of the consignment in the store meaning less than 15000 bags was uncounted for. It was surprising that the ACC alleged that the accused could not account for the same 50000 that the Chinese donated. They must have seen their mistake after sending the matter to Court. What a fatal mistake. The ACC still have a leeway. That is amend the indictment and send the matter back to court. That way, the ACC can rebuild the confidence that they have garnered over the last two years.

  6. Interesting development. There goes the fight against corruptions with the former attorney general who was hell bent on cooking up frivolous charges against opposition members while adamantly stonewalling for justice to be served against ruling regime members found wanting for corrupt practices. Exactly how many bad precedents does this regime have to set before citizens realizes their phoney schemes?

    It appears the ACC office under the new regime is only active and successful when opposition members are accused of corruption. Ruling party members are allowed to steal at will and get defended by either the attorney general’s office or the ACC pretending to be investigating, with subsequent press release of a ‘no case found’ or ‘there is no evidence’. This is the new normal in our so called new direction.

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