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.