Gaps in the proposed Sierra Leone Anti-Corruption Commission Amendments 2019

Winstanley R Bankole Johnson: Sierra Leone Telegraph: 24 March 2019:

Parliamentarians are wont to shift blame for their enacting shoddy laws or for approving mediocre Presidential appointees to us the electorates. Their argument is that public input which is germane to their decision-making processes is non-existent, even though opportunities for that is why Bills and names of appointees are “Gazetted” in good time before enactment into laws or approvals of Presidential nominees.

That being the case, Parliamentarians therefore further argue that they are invariably left with no alternatives but to work with the limited information at their disposal.

It is in that light that this piece is informed, so as to draw attention of our Parliamentarians to what I consider as significant gaps in the proposed amendments put forward by the Anti-Corruption Commissioner to the existing Anti-Corruption Commission (ACC) Act of 2008 which, he believes “…..will consolidate the fight against corruption FOR GOOD”.

My intention is to sufficiently guide our Parliamentarians against swallowing those proposed amendments hook, line and sinker and inadvertently end up creating a “Monster” at Gloucester Street as our Anti-Corruption Commissioner and further make the Appellate Courts within our Judicature redundant, insofar as the right of citizens to access unfettered justice is concerned.

For starters, no law is cast in concrete, because they will have to be subject to periodic reviews to suit changing circumstances. So, it’s unrealistic for the ACC Commissioner to presume that if his proposed amendments are carried to the fullest, the battle against corruption will be consolidated FOR GOOD.

And from the statements in the Press personally signed –off by Commissioner Ben Kelfala himself, one can deduce a level of suppressed bigotry to wit: “…As long as the political will remains as positive as our President, His Excellency Brig. (Rtd.) Julius Maada Bio has demonstrated, and we at the ACC remain COURAGEOUS in executing our duties FAIRLY but FIERCELY without fear or favour for ANYONE”.

I am not sure of the relevance of that embellishment in profiling his proposed amendments or whether it was for public consideration or to canvass parliamentary assent, but it smirks of the kind of influence peddling James and his brother John the sons of Zebeedee exhibited in the Books of Matt.20: 20-21 and Mk. 10:37 when, convinced of the importance proximity to Jesus was opening them to and propelled by blind ambition, they requested Jesus to accord both of them prominent seats in His Kingdom.

Why Commissioner Ben Kelfala chose to bye-pass the official ACC communication dissemination channels and to personally author the newspaper write-ups with respect to an official proposition is another matter altogether, as it smirks of a lack of confidence in their internal Information, Education and communication (IEC) structure.   Could the ACC Commissioner be eyeing something bigger in the horizon?

Of all the proposed amendments, the ones I find more questionable – if not unreasonable, are:

No.4. Removing the discretion of Judges to order restitutions from our Judicature and transferring same to the ACC Commissioner who will then make it mandatory for accused persons to refund/repay the defalcated sums in full.

No.5. To strengthen the civil powers of the ACC to enter settlement arrangements with corrupt persons, but that any such settlements should be mandatory and in full. Has this not been applied occasionally – even if seemingly selectively?

No.6. To empower the ACC to wade into all contract negotiations using “PREVENTIVE AUTHORITY” as its basis.

No.7 (1). Reversing the burden of proof (as enshrined in our Criminal Codes) from the prosecution to prove the accused guilty beyond reasonable doubts, to the accused to prove his/her innocence in cases of bribery.

Disarm

Now, if all the above do not seem suspicious and a clear evidence that the ACC is looking at overstepping their mandate, I wonder what else is.

What I see in some of their proposed amendments are attempts by the ACC to disarm the Judicature of their core functions in Criminal procedures and arrogate to themselves the powers of Courts of First, Second and even Third (Supreme) instances, including further depriving citizens their fundamental rights to fair and independent hearings through appeals processes in our regular Courts of Law.

From the proposed amendments of the ACC Commissioner that seeks to empower themselves more than the institution now is, are we reading into insinuations of a loss of confidence by the present Commissioner in our Judiciary, in much the same way that saw the government preferring to outsource Judge-Commissioners for our ongoing Commissions of Inquiries?

Why would the ACC wish to be interrupting procurement processes in MDAs mid-stream (Gestapo-like) (Re: Amendment No.7) when in addition to Sec. 32 of the ACC Act, our existing laws make ample provision for protests by dissatisfied bidders even beyond the National Public Procurement Authority (NPPA) and right unto the Courts?

Targets

And if (God forbid!!) the ACC should have their way (because one cannot safely vouch for outcomes on clear majority decisions from this Parliament as is presently constituted), what regulatory options would we have in place to checkmate their potential excesses when they occur?

As I have said many times before, our problems are not with our existing legislations, but in our inability to implement them fairly and fearlessly. And it is only when we have exhausted those parameters that we should begin to agitate for amendments. For example, if the ACC Commissioner was so committed to consolidating the powers of the “ACC FOR GOOD”, why didn’t he start with removal of the Nolle-Prosequi fiat of the Attorney General in corruption matters, so as to allow them unlimited prosecutorial powers?

But I suppose he didn’t, because between now and 2023 he knows who the “targets” are, and once he gets the fresh powers he now seeks, he can proceed to handle them accordingly to pre-empt or complement the likely outcomes of the Cabinet White Paper arising from the ongoing COIs.

Whereas if between now and 2023, if anyone outside his net is apprehended (meaning their own) he can absolve himself from accusations of being biased as he watches the Attorney General proceed to apply the Nolle-Prosequi fait to his satisfaction at a safe distance.

I am suspicious of the genuineness of the intentions of the ACC Commissioner in this particular enterprise.

Already the ACC has since been “arranging settlements” with accused persons, and in recent times they are publishing running totals, even though the existing ACC 2008 Laws make no provision for that. Does it then mean accused persons consenting to such settlements could have been over-charged or under-charged?

Why the need to further empower the ACC Commissioner to impose ban on citizens from holding public offices for any number of years? Wouldn’t such additional powers be too much for the head of an institutions whose role is fundamentally prosecutorial?

Is the ACC technically equipped and sufficiently resourced to combine all such roles together?

Already in the preamble of the proposed amendments they complained that the volume of Assets Declaration Forms requiring scrutiny would have to be whittled down to specific Service Grades (7 and above). So why not focus on issues they can handle efficiently and leave the Courts to do the rest?

Grey

One grey area about this (private) settlement arrangement between the ACC and accused persons is that the general public is hugely kept in the dark about: (1) how those private settlements were arrived at; (2) What inducements – if any – had to be made for the ACC to prefer private settlements to Criminal proceedings on a case by case basis; (3) Whether the amounts advertised as having been recovered represent the full sums of moneys originally alleged to have been defalcated by the accused persons from the State.

The ACC announces the quantum recovered, but do not say how much was originally stolen.  And by not doing so, is the public/State not short-changed.

The public is further unable to ascertain whether in the interest of justice, accused persons with whom settlement arrangements are reached are allowed legal representations throughout the process (to avoid the ACC being accused of coercion), and a guarantee obtained from the ACC indemnifying them in return against further indictments or prosecutions on those same matters by any other prosecutorial arm of government, including the ongoing COIs.

Now, that requirement should not be downplayed to avoid subjecting those who have reached settlement arrangements with the ACC to “double jeopardy”, as in recent weeks we have been made to understand that a clear dichotomy now exist between the ACC investigations and the COIs proceedings.

An ACC Commissioner desirous of “making Corruption a very COSTLY and TERRIBLE choice for every Sierra Leonean” cannot afford to be economical with information of recoveries or make the process a secret.  Otherwise a possibility exists that the bug within would not have been thoroughly exorcised, leaving a few to come away with their reputation and professional practicing licenses intact – and with surpluses that could see them leaving off well right unto their graves.

I am not being cynical here because reports from the ACC about impersonators of their own staff being apprehended and sentenced in our Courts abound. And given the fact that only those in lucrative positions can be impersonated, (e.g. corpses are never impersonated) it is certainly not out of place to enquire if certain covert or overt “handling fees” (if any) are not squared-off before arriving at the figures they advertise as having been recovered. Or is it that only “Saints” are recruited to work within the ACC?

To my mind, an acceptance to settle at any level is self-indictment and a presumption of guilt and no amount of settlement reached that does not include criminal convictions should be acceptable. That’s the first regular step into “making Corruption a very COSTLY and TERRIBLE choice for every Sierra Leonean”.

1 Comment

  1. The new provision on stopping contracts that are not deemed to be in the public interest would require some explanation. Will this be done before the contract is concluded? If so is the intent to prevent the conclusion – execution – of a contract?

    Once a contract is concluded obligations may start for both parties. Surely the amendment cannot refer to contracts already ratified by Parliament, as any such act will trigger international arbitration where the courts are known to protect investors from unilateral actions by Governments who claim sovereignty. Furthermore can a single individual annul a decision of parliament apart from the Supreme Court and the President in certain specific cases.

    Assume the Parliament approves the amendment; this would mean that Foreign and even Domestic investors will be advised that holding a contract is no guarantee that the obligations would be respected as a third party who can at any time intervene and stop it on the basis that it is not in the public interest – to be defined by who?

    This is not to say investors will give the jurisdiction a wide berth, rather only high-risk takers will come in.
    I am also intrigued about the capacity of the ACC to review all contracts involving the public interest. The range is vast, the numbers each year are huge. Will the Commission have the resources to examine each one?

    As always the issue is whether it is better to destroy the serpent’s eggs or wait until they become full snakes before attempting to kill them.

    Another way of protecting public interest is to institute more robust checks during the contract negotiations process. I hope this is what is intended, but weakly articulated.

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