Contempt: Dr. James Vibbi vs the House of Parliament – Did parliament get it right?

Joseph Fitzgerald Kamara: Sierra Leone Telegraph: 22 January 2019:

The origin of the power of Parliament to punish conduct constituting contempt is uncertain and it is not necessary to delve into it here. It is sufficient to say that by the end of the seventeenth century, it had become firmly established in Great Britain as an immutable principle of parliamentary government. (Photo: Joseph Fitzgerald Kamara).

Thus, by virtue of the Common Law and the Imperial Statutes prior to 1880, parliamentary law, practice and procedure in the United Kingdom, became part of the laws of Sierra Leone.

The story is being told, that four centuries ago, when lawyer Edward Floyde insulted the King of England’s children, he was sentenced to ride backwards on a horse without a saddle across London, a ‘K’ was branded on his forehead and he was fined £5,000 and imprisoned for life. Floyde, had been found guilty of contempt of Parliament.

Thankfully today, contempt of Parliament generally attracts less onerous penalties, but what is really contempt of Parliament?

Contempt of Parliament has been defined as any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results.

Generally, Contempt of Parliament consists of interference with parliamentary privilege and of certain acts that obstruct the house and its members in their business.

Actions that have been held to be contempt of parliament include deliberately misleading a house of the legislature, or a legislative committee; refusing to testify before, or to produce documents to, a house or committee; and attempting to influence a member of the legislature by bribery or threats.

In the United Kingdom, for example, to arrest a member of Parliament in the course of carrying out his duties may constitute contempt of Parliament, although immunity from criminal arrest was removed by the Parliamentary Privilege Acts of the 18th century.

It is further a contempt to bribe or attempt to bribe any member (and for any member to accept or solicit a bribe), to disrupt the sittings of the House or a committee — wherever it is sitting, to refuse to appear before a committee to testify, to refuse to answer any question put by a committee, to lie to a committee or to refuse to swear an oath when testifying, or to otherwise obstruct the business of the House.

It should be understood at the outset, however, that unless a legislature chooses to enact legislation specifying the actions that it will punish as contempt, there is no limitation on its power to determine that in a particular case certain conduct constitutes contempt.

Parliament is the judge of what is and what is not contempt and the courts are virtually powerless to interfere. This has been made clear in Australia by the High Court decision in The Queen v. Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36 (24 June 1955). In that case, Dixon C.J., delivering the judgement of the Court, said: “while it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”.

However, in some jurisdictions, a house of the legislature may declare any act to constitute contempt, and this is not subject to judicial review. In others, contempt of Parliament is defined by statute; while the legislature makes the initial decision of whether to punish for contempt, the person or organisation in contempt may appeal to the courts.

Some jurisdictions consider contempt of Parliament to be a criminal offence and as such a conviction is duly appealable as a matter of course.

An interesting point and of recent vintage in the discourse of Contempt of Parliament, is when on
4 December 2018, the UK Government was found in contempt of Parliament for the first time in history on a motion passed by MPs by 311 to 293 votes.

The vote was triggered by the government failing to lay before Parliament any legal advice on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union, after a humble address for a return was unanimously agreed to by the House of Commons on 13 November.

The government has now published the full legal advice for Brexit that was given to the Prime Minister by the Attorney General during negotiations with the European Union. This means that even a Government, can be found to be in contempt of parliament. Interesting times and  interesting outcomes indeed.

In Sierra Leone,  Section 95-96 of the Constitution of Sierra Leone, Act No. 6 , 1991 makes provision for the definition, criminalization and punishment for Contempt of Parliament. “Any act or omission which obstructs or impedes Parliament in the performance of its functions, or which obstructs or impedes any member or officer thereof in the discharge of his duties or affronts the dignity of parliament, or which tends to either directly or indirectly to produce such a result shall be a contempt of Parliament”(S.95)

“Where an act or omission which constitutes contempt of Parliament is an offence under the criminal law, the exercise by Parliament of the power to punish for contempt shall not be a bar to the institution of proceedings under the criminal law”. (S.96).

In the case of Dr Vibbi, the question that raises its head for resolution is “whether Dr Vibbi’s refusal to comply with the instructions of Parliament to withdraw suspension and dismissal letters to staff who were being investigated by the Anti-Corruption Commission, is in itself a contempt of Parliament”?

In his response to refuse the withdrawal, Dr Vibbi is quoted to have maintained that, “I have the responsibility here to respect this House that have maybe the strongest powers, I also have the responsibility to stand behind the truth which has the utter most power and because of that Mr Speaker without any disrespect to you I am constrained not to withdraw the decision.”

For that refusal, the Hon. Speaker of Parliament maintained James Vibbi is guilty of Contempt of Parliament and ordered for his detention until Tuesday 22nd January 2019, when the House will debate the Motion relating to the withdrawal of his “Approval” for appointment.

Gleaning a purposive and literal approach in analysing sections 95-96 of the Constitution of Sierra Leone cited above, it is poignant that the language is broad and embraces a wide breadth of conduct that could easily amount to “an affront to the dignity of Parliament”.

Or even, conduct “which tends to either directly or indirectly to produce such a result shall be a contempt of Parliament”. Worse still, it is Parliament that determines conduct which amounts to contempt.

An affront is to meet defiantly, to confront, to slight, or in obsolete diction, an hostile encounter.  It seems therefore, to flout the Order of Parliament to withdraw the impugned letters of suspension and dismissal, could very well amount to an ‘affront to the dignity of Parliament’.

Having said that, while the powers of Parliament are in no doubt enormous, but did their action meet the threshold of natural justice? That is to say, a man cannot be a judge in his own cause. The principle of ‘nemo judex’ in law.

Parliament determined what constituted a contempt and adjudicated and then punished the alleged offence. So, Parliament is the author of the law, investigator, and judge in the same cause.

It is my considered opinion, that to caboodle all the powers of the other branches of Government (Executive & Judiciary) and abrogate them to itself, undermines not only the principle of natural justice but, that of Separation of Powers clearly enshrined in the Constitution of Sierra Leone.

Section 23(1) of the said Constitution provides that “Whenever any person is charged with a criminal offence (contempt being defined as a criminal offence under S. 96) he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.

In the case of Dr. Vibbi, can it be said that the hearing was fair, independent and impartial?

A Parliament trying a suspect for an offence committed against the very House and imposing a penalty on its own accord, cannot be fairly said to be independent. Adjudicatory independence serves as a safeguard for the rights and privileges provided by a constitution and prevents Executive and Legislative encroachment upon those rights. It serves as a foundation for the rule of law and democracy.

An adjudication mechanism such as Parliament when sitting to hear contempt cases must be seen to be free from actual or perceived bias in any form.

It is Dr. Vibbi’s right to have an Adjudicator with no actual bias against him (the defendant) nor interest in the outcome of the case. Can we fairly say that Parliament had no interest in the outcome of the case? I think not.

Again, it is my considered opinion, that Parliament could have reprimanded Dr. Vibbi and direct the Oversight Committee responsible for the Ministry of Trade, to implement its Orders and take further disciplinary measures as may be deemed necessary by the appropriate employing authority or further still, refer the case to the Office of the Director for Public Prosecutions (DPP) for prosecution, should that be the preferred Parliamentary option.

In the United Kingdom for instance, Parliament used to be able to imprison or fine perpetrators for contempt, as a court of law, but these powers have lapsed. The last time Parliament fined someone was in 1666, and the last time it imprisoned anyone was in 1880 (in the Clock Tower).

There have been many calls to put the ability to fine on a statutory basis. Most punishments now involves bringing perpetrators before the House to be reprimanded.

In any event, the discourse will not close without a cursory examination of the reasoning behind  Dr Vibbi’s refusal to comply. In his apologia, Dr Vibbi reiterates respect for Parliament and standing for the “truth”.

The impugned letters it is reported, are meant to give the ACC a free opportunity to investigate acts of corruption without interference with witnesses or documents by staff being investigated.

Customarily, when the ACC investigates a matter and there is probable cause that there is a case to answer before charge, a request is made for those under investigation to be suspended with or without pay until a decision is reached to charge or not to charge.

Once a suspect is charged, the suspension is automatic by operation of law, and placed on half-pay, until the conclusive end of the trial, including appeal as the case maybe.

In conclusion, I hold the view, that while Dr Vibbi’s refusal to comply with a Parliamentary Order may affront the dignity of Parliament, but the manner of trial and penalty, vitiates the rules of natural justice and the Separation of Powers.

I further hold that in any criminal trial, it is trite law that the criminal intent must coincide with the physical act- “Actus non facit reum nisi mens sit rea”, which literally means (“an act does not make a person guilty unless the mind is also guilty”).

The intention of Dr Vibbi was never to insult or impede the work of Parliament, but rather to preserve public integrity in the discharge of public management functions.

(Photo: Joseph Fitzgerald Kamara).

Hence the lack of intention to commit the specific crime of Contempt, has negatived an essential requirement to a guilt finding.

Under the circumstances thereof, it is advised that Parliament may wish to direct the Oversight Committee, to work in tandem with the Ministry of Trade, to fairly address the issues of  suspension and dismissals and also look into disciplinary matters that may have arisen in the course of the proceedings on the part of Dr. Vibbi and/or any other person(s).

Additionally, to discontinue the Motion to Withdraw Parliamentary Approval, as it will signal a frightening and dangerous precedent in our fledgling democracy.

About the author

Joseph Fitzgerald Kamara is a Barrister and former Attorney General and Minister of Justice of Sierra Leone; prior to which, he was the head of the country’s Anti-Corruption Commission. He also served as a Judge of the Special Court for Sierra Leone. He now runs his own Law firm in Freetown, Sierra Leone.

3 Comments

  1. Indeed Levi Fofana,Joseph Kamara suddenly rediscovered his legal mind and bearings, because SLPP are now in power and have taken the fight against corruption to a level never before seen in the history of our dear country.

    As head of ACC, I could tell that Joseph Kamara was being used by APC as a propaganda tool to fool the populace that his boss, Ernest Koroma, was earnest in not only halting corruption, but eradicate it completely.

    Eleven years later, proofs are all over the place to reveal the multiple tongues and multiple sides of a mouth Joseph Kamara really is. Those being called before ACC now and found guilty of malicious thievery of the nation’s wealth did not serve in the last nine months of the Bio administration – if this fact needs pointing out to Joseph Kamara. With his demented look at things can he tell us,for example, under whose government Kallah Kamara served?

    Joseph Kamara’s attention should be drawn to the cavalier and disdainful manner in which he and Ernest Koroma responded to the ECOWAS ruling on the Sam Sumana case. One would expect this so-called legal expert to show respect for both national and international law, but did he? He should leave his legal opinions at his door step whenever he is heading out of his house.

    Sierra Leone needs total professionals in all fields minus Joseph Kamara. Give power back to APC this minute and Joseph Kamara would do a double somersault to give an opposite rendition of what he has said or written.

    Where did he get his Fitzgerald from? I hope he is not Irish disguised as a Sierra Leonean to help milk the nation dry.

  2. Wow!!! All of a sudden Joseph Fitzgerald Kamara has become a democrat? Where was Mr. Kamara when his cousin, Ernest Bai Koroma was bastardizing the constitution of Sierra Leone? Was it constitutionally correct to fire an elected Vice President? And what about the regional hegemony that Kamara endorsed during the APC days? Joseph Kamara is a big hypocrite and a wolf in sheep’s clothing. To hell with his nonsensical legal opinions.

  3. I wish Mr.Joseph Fitzgerald Kamara was so erudite during his tenure as Attorney-General and Minister of Justice, during the APC administration when our constitution was torn to pieces.

    As far as I am concerned, his credibility and that of many people in his party, was dented when they sat on their hands when Ernest Bai Koroma was having a field day. I do not take him seriously at all and it will good for him to reserve his legal opinion for the birds.

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