Francis Ben Kaifala: Sierra Leone Telegraph: 11 March 2019:
My attention has been drawn to an article in the Sierra Leone Telegraph, by Joseph Kamara (also “JFK”) which raises legal questions around the amendments tabled before Parliament which, the current leadership of the Commission, believes, will revolutionize the fight against corruption and consolidate the gains made for good of the country.
This amendment, if passed by our Parliament is poised to provide for increased penalties for offences under the Act; strengthen the protection of those who assist the Commission; provide the Commission with alternatives to prosecutions; widen the scope of corruption counter-actions; provide for administrative sanctions for public officers who fail to submit their Asset Declaration Forms; and to vest in the commissioner, power to take preventive action with regard to “corrupt” contracts within its prevention mandate.
To start with, this amendment was drafted, reviewed and taken through the stages to get to where it is by the concerted efforts of the Anti-Corruption Commission, the World Bank and its team of anti-corruption experts, the Ministry of Finance and the Law Officers’ Department. It also received overwhelming approval in Cabinet before it was tabled in parliament – it is not just the product of the Commission or the Commissioner
While JFK’s article is predicated entirely on the law and its effect, and not really the need to tackle corruption head on, the purport of the amendment is to deal corruption a serious blow and control it for good of the country. (Photo above: Author – Francis Ben Kaifala).
This need is necessitated the fact that for 18 years of the existence of the ACC, which includes about six years of JFK’s reign as Commissioner, the country remains among the poorest in the World (184th in 2018 out of 190 in the HDI), among the most corrupt (129th in the CPI) and at the bottom of every serious index on development.
Over the years, recovery rate of proceeds and wealth of corruption have been very low – Many viewed funding ACC as basically throwing good money after bad money. As for the courts, Sierra Leone once had the fortune of a robust ACC Commissioner, Abdul Tejan-Cole, whose approach to tackling Corruption robustly, yielded many high-profile convictions – but almost all were overturned on appeal in the years that followed after he was forced to resign.
For example, even the undefended Haja Hafsatu Kabba’s case was overturned on appeal and made history as the only case in Sierra Leone that attained that glory without the accused presenting a defence at all. Similarly, Allieu Sesay made history to beat 150 Count Charges Indictment in court after being charged by JFK. In 2013, while JFK was in office, we were crowned “the most corrupt country in the World” and the years that followed, saw corruption flourish – which culminated in the GTTR report describing the corruption that existed in Sierra Leone in the 10 years prior to my assumption of office as “egregious”.
To cut the historical perspective short, Sierra Leone had been shadow-boxing in the fight against corruption as a result of human inaction, weak laws, low political will and corruption within the fight against corruption itself. The foregoing reminders go to tell the Learned JFK that efforts in fighting corruption in Sierra Leone need a re-strategisation; not to vilify his tenure or others before or after him, as I know him to be a hardworking professional.
It is against this backdrop that after the change of government early 2018 and Sierra Leone had the fortune of a progressive President who has declared three peaceful wars, with corruption at its zenith, conscientious efforts are being made to change our country’s corruption blemished image.
Less than one year of the new era, and due to immediate robust steps taken aimed at corruption control, Sierra Leone has now passed the Millennium Challenge Corporations’ Control of Corruption Scorecard from a failing position of 49% in 2017 to a respectable pass of 71% in 2018; Afro Barometer Corruption Perception dropped from over 70% in 2015-2017 to an all-time low of 43% in 2018.
Similarly, according to the Afro Barometer Corruption Perception survey of 2018, Citizens’ belief in government’s effort in the fight against corruption jumped from an all-time low of 40% to over 66% in 2018; and according to Transparency International’s Corruption Perception Index, Sierra Leone moved one space up in the CPI rankings – unlike 113 other countries that experienced a decline in scores.
Moreover, the ACC has a 100% conviction rate. Unprecedentedly, the ACC has been able to recover domestically close to Le 12 Billion (About $1,500,000.00) of funds lost through corruption and corrupt practices and returned to the People of Sierra Leone for the provision of social services with almost 8 Billion Leones (About $1M) already committed to be recovered in the next 6 months after completed investigations (This recovery rate within one year is above what the ACC has ever collected in its 18 years existence as a whole).
Also, Prosecutions are now moving faster and investigations covering all spheres of public life with no room for impunity. Generally, the citizens’ confidence in the fight against corruption and the results being produced by the ACC is at an all-time high.
These gains need to be consolidated; and we need to put the country on a firm trajectory of reputational laundry and corrupt-free going forward. It is these that have predicated the need to review the act and provide solid foundation for the Commission to be able to reach its fullest potentials for the country to once again gain respectability under the leadership of His Excellency, Brig (Rtd.) President Julius Maada Wonnie Bio and within the vision of the current Commissioner.
The provisions of the amendment are revolutionary and done in the best of faith. That vision is articulated in the Commissioner’s very explicit article published here: https://www.thesierraleonetelegraph.com/what-is-the-sierra-leone-anti-corruption-commission-amendment-act-2019/ and needs not be repeated here.
With these, there is a clear justification for the amendment tabled, and if the country should reinvent itself, that amendment, with few modifications as the Members of parliament in their respected wisdom may so desire, need to be affected, and passed.
That said, Mr. Joseph Kamara has attacked many legal positions in the Amendment which, contrary to his assertions, with respect, some of which are predicated on incorrect positions of the law or his failure to take into consideration other sub-sections supporting same the provisions he chose to analyse in isolation.
Firstly, while lauding the justifiable need for an amendment of the asset declaration regime as a “wise pathway to reform”, Mr. Kamara decries the administrative punitive actions prescribed for defaulters and posits that they make the Commission “judge in its own cause”, and ousts the jurisdiction of the courts.
What Joseph Kamara failed to conscientiously predicate this assertion on is that, within the amended bill, there is a “process” and cumulative action leading to the administrative actions like request for dismissal, which are clearly outlined in the amendment as follows:
i. The Public Officer will have 90 days within which to declare his assets
ii. That 90 days can be extended by the commissioner
iii. Only after that 90 days of the extension can a default notice be sent to the Public Officer by the Commissioner outlining the sanction for failure to comply and provide a further 7 days to the officer to comply.
iv. Only after that 90 days, any extension thereto, the period of notice and any extension thereto, can the commissioner write to the HRMO or the Accountant-General for administrative action that includes withholding part of the officer’s salary or removal from office.
While these are clearly convoluted processes that cannot make the commissioner act on his whims, contrary to what JFK makes it sound, clearly, anyone who decides to challenge these or any action of the Commission or the Commissioner can always go to court for redress.
To say that the provision ousts the jurisdiction to the court, as JFK asserts, is palpably incorrect and demonstrates a limited grasp of administrative law and its processes. Every citizen remains within his rights to challenge any administrative action on the basis of due process or seek judicial review on the grounds of “Arbitrary or Capricious” action.
That needs not be stated in an amendment or in deed overemphasized. He also states that by the Commissioner issuing directives after the convoluted process outlined above, which he carefully left out, the commission will be a “judge in its own cause”.
This, with respect, is a misapplication of the nemo judex in causa sua principle; as it only applies to tribunals. The ACC is not a tribunal. This makes JFK’s assertions both on the issue of ouster of the court’s jurisdiction and the ACC being a judge and executioner to be without proper legal merit or footing.
Also, on the well-talked about Contracts clause, the answer that JFK seeks, when he rhetorically asked “ to what length does this power go?” is in the amendment itself. Firstly, the exercise of the power is discretionary with the use of the word “may”.
Most importantly, the amendment gives power to any party affected by the stop order to proceed to court and shorten the life of the commissioner’s directive by only 7 days. This is a deliberate check on the powers of whosoever is commissioner. Is that not a sufficient gloss and limitation on the powers of any commissioner and a statutory safeguard for abuse when a judge can discharge the order?
Did JFK not see how significant that provision is? Why did he not countenance it in his analysis at all? The rest of his assertions are covered by the position that the amendment is a collective and collaborative effort between the ACC, the Office of the Attorney-General and Minister of Justice, and received overwhelming cabinet approval. Had they felt threatened, those issues would have been dealt with at that stage.
On the issue of settlement and the automatic application of 3-year ban on holding public office, I must state that section 105 of the Constitution makes parliament the supreme legislative authority in Sierra Leone.
If this amendment goes through, no claim of duress can trump the validity of the ban once one signs a settlement agreement with the ACC in the presence of witnesses. That is why these agreements are effectively publicised so no one feels like it was done surreptitiously and to give anyone the opportunity to reject them publicly.
We are solving the very problem that JFK fears, and which clouded the infamous settlement he negotiated in the “NASSIT rotten ferry” case.
Lastly, but important, on the issue of shifting of burdens, let me allay JFK’s fears that in line with his conclusion, only the evidential burden for the offences of bribery and misappropriationis is being shifted and NOT the legal burden, which, by Constitutional mandate and well-established legal principle expounded in the locus classicus Woolmington V. DPP , cannot be shifted to an accused, even by legislative action, without amending section 23 of the constitution.
The legal burden to prove the guilt of the accused will always be with the prosecution. This is in fact the best practice around the world and captured in Anti-corruption legislations like this provision from Kenya:
“If a person is accused of an offence under Part V an element of which is that an act was done corruptly and the accused person is proved to have done that act the person shall be presumed to have done that act corruptly unless the contrary is proved.”
Sierra Leone may have lagged behind in convictions for corruption because this very useful legal tool was left out for offences like bribery and misappropriation of public revenue or funds which are hard to prove because the evidence to establish them are usually within the control of the accused and not the Prosecution. This is why this amendment in that regard will be very useful in the renewed fight against graft.
JFK’s points with respect to Conspiracy (Section 128) is noted; but we are of the view that the provision in question is a substantive provision that creates an offence in like manner as the completed offence; and the reading of it to the contrary by a judge is an error or an improper application of the tools of interpretation.
The problem is therefore with that judge, not the law. We also note the call for public declaration of assets by public officers but believe that the need for privacy overrides the cries of the public.
In conclusion, this amendment goes beyond mere legal provisions. It is the product of a careful study of the legal and regulatory framework for the fight against corruption, the corruption culture and environment of Sierra Leone, the successes and failings of the past, the need to finally control corruption and put the country on a firm trajectory of corruption control and development.
We mean it when we call it “revolutionary”. It is a true game-changer bill – it is the people’s amendment in the New Direction for Sierra Leone.
About the Author:
Francis Ben Kaifala is the Current Commissioner of the anti-Corruption Commission of Sierra Leone.