Joseph Fitzgerald Kamara: Sierra Leone Telegraph: 9 March 2019:
Sierra Leone’s Anti-Corruption Commission is credited with continuing efforts and enjoying the political goodwill in the fight against corruption in the country. To that end, an Amendment Bill has recently been presented to the House of Parliament, seeking to revise certain provisions of the Anti-Corruption Act of 2008, with a bid 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; provide for administrative sanctions for public officers who fail to submit their Asset Declaration Forms; and to vest in the commissioner, power to direct that ‘contracts may not be proceeded with’.
The Asset declaration regime has posed significant challenges to the ACC since its introduction in 2008. The provisions of the 2008 Act, were overly ambitious and management of the exercise became a nightmare.
Several efforts to address the gap produced limited results. Compliance rate has been on average of 30% and 35% being the highest point on performance. One of the reasons suggested for the low rate in compliance, is the wide breadth of persons covered under the Asset Declaration regime.
This has been confirmed by the Commissioner, when he said, that “the assets declaration pool at present is too wide, unmanageable and cumbersome”. Hence the need to address the challenge remains an ever-present sine qua non. A legislative route to amend is seemingly the wise pathway to reform.
The issue of administrative sanctions for failure to Declare Assets as proposed in the Amendment Bill, seeks to give broad powers to the Commissioner to: direct the Accountant-General or Director-General of Human Resources to withhold the salary, suspend and even dismiss a public officer who fails to comply with a default notice.
The exercise of these powers by the Commissioner, without prior recourse to the Courts as stipulated by the current Anti-Corruption Act 2008, pose a challenge to due process and an ouster of jurisdiction from the Courts. Under Section 119(7), the Commission is required to go before the Courts by ‘ex parte’ application for an Order directing defaulting persons to comply with the Act. There is obvious wisdom in the intention of the legislators, in vesting the power to punish defaulters on the Courts, after a fair trial.
What the Amendment is seeking to do, is to make the Commission both the investigator and Judge at the same time, and in the same matter. (Photo: Former Attorney General – Mr Joseph F. Kamara. He is also a former Head of Sierra Leone’s Anti-Corruption Commission).
Clearly conflicting with the principles of natural justice, ‘a man cannot be a judge in his own cause’.
Additionally, the Amendment Bill is deficient on information as to an ‘Administrative Hearing’, leading to the punitive measures of suspension and dismissal.
It is advised that the Commission, upon finding of a defaulter, may choose to elect either the criminal process under section 122 of the Anti-Corruption Act, or refer the case to the Director-General of Human Resources to do the needful, under the General Orders or Civil Service Code, as the case maybe, thereby averting the conflation of both executive and judicial powers in the hands of one person.
Another related comment on Asset Declaration, relates to the “confidentiality of filing.” Under section 119(13), Asset Declaration Forms, are to be filed ‘secret and confidential.’
Experience has shown that members of the public are anxious for the disclosure or unfettered access to Declarations of Public Officials, particularly, elective offices. It will not be unwise to give due consideration to such, as the Commission now seeks to amend the Asset Declaration regime.
This measure will invariably enable the public to have greater and continuous scrutiny of the accumulation of assets by public officials.
Section 126(a)(1) of the Amendment Bill states “where the Commissioner has reason to believe that a contract to which a public body is a party, is not in the national interest, the Commissioner may issue a directive in writing to the public body, directing not to proceed with the contract”.
This is an interesting clause, and one can glean through the determined goal of the Commission, to wield influence in contractual relations in fighting corruption. Well and good. But however, to what length does this power go?
Will the Commissioner have power to direct ‘not to proceed with contract’ even where Cabinet has approved? The answer is obviously not! Many a time, there is a Cabinet Approval of terms and conditions of Contracts (depending on the quantum of money and service to be provided).
Interestingly also, the role of the Office of Attorney-General and Minister of Justice become blurry in the general scheme of things of this amendment. Section 64 of the Constitution states that ‘the Attorney-General is the Principal Legal Adviser to the Government.’ It seems to me that the proposed amendment attempts to override or overreach the powers conferred under the Constitution to the Office of the Attorney-General.
In practice, contracts are forwarded to the Law Office, for review through a Request for Legal Opinion. Still unclear, is whether after the Legal Opinion, the Commissioner can ‘direct not to proceed with contract’.
Practically, the Amendment suggests that ‘the Commissioner’ will have to make the judgment call as to ‘what is not in the national interest’. There has to be clarity about determining what amounts to “National interest”, as it cannot be said to reside in the purview of a public officer, whose function is not to interpret the law.
Of greater worry is the uncertainty of the timing of the ACC intervention. After a contract is concluded, legal obligations and rights accrue between the parties, per the contractual terms. A cancellation at that stage, could incur huge financial liability on the part of government for breach and damages for loss of revenue.
Now, how does this impact the private sector?
Troubling, and anxious at the very least. For instance, a company negotiates an Agreement for the Mining of Bauxite. Then uses the contract to secure financing from reputable international financial institutions, running into millions of dollars. At about commencement of operations, the ACC direct “not to proceed with contract”. what are the consequences for the investor?
This example is not far-stretched as it may appear, but rather, the existence of the possibility to happen is what matters. The wide latitude to intervene in contractual relations affecting the private sector, deeply shakes business confidence in engagement with the Government.
It is therefore advised that a Contract Management Unit be established within the ACC, with the capacity to review contracts for evidence of corrupt practices, and to advise public bodies on same, well before Cabinet Approval, Parliament Approval and even before the issuance of a Legal Opinion from the Office of Attorney-General, as the case maybe.
Presently, there is no need to amend the law for the sake of reviewing contracts. Section 7 of the Anti-Corruption Act (ACA) 2008 gives adequate and general powers to the Commission to “take all steps necessary for the prevention, eradication or suppression of corruption and corrupt practices”.
With that said, there is no need for the extra powers being sought to address management of Government Contracts. It must be noted also, that private sector corruption calls for a three-pronged approach. Firstly, companies can take internal steps to prevent it. They need a zero-tolerance policy towards bribery and corruption. And it must be enforced through specific anti-corruption measures.
But companies also need an honest operating environment. So, we must make sure that the Government enforce international anti-bribery laws and conventions. This protects companies from corruption across borders and down supply chains. We need to help make sure these approaches are effective. This means more transparency from everyone involved with markets. Then we can hold business people to account for their actions. We must call on companies and the institutions that regulate them to report their finances and actions openly.
The amendments in respect of referrals to the Commission (section 78), and witness protection measures (section 85), are all in place and within necessary legal limits.
The 2019 Amendment Bill also seeks to revise Section 89 of the ACA, by widening the powers of the exercise of prosecutorial discretion of the Commissioner. The formal introduction of what appears to be “out of court settlement” is most welcome as it gives flexibility and an opportunity to avoid long drawn out and costly trials, if the amount in issue can be recovered without further loss to Government.
In retrospect, this has been a legal conundrum in the practice of the fight against corruption. The Amendment Bill will resolve once and for all, the arguments regarding the power to settle out of court. Conversely, section 89(b)(ii) above, seeking to preclude from holding office for a period not less than three years is fraught with questions of validity in the light of invoking punitive measures without trial, notwithstanding the voluntariness of the agreement.
There is always the argument that the agreement was made under duress or intimidation and threat of prosecution. Standard ‘Deferred Prosecution Agreement’ as known in the United Kingdom and elsewhere, need to be formulated and made to form part of the Prosecutorial policy. This will prevent “ambush” or “surprise” targeted Agreements.
Another question to be addressed is whether the language as drafted under Section 97 of the Amendment Bill 2019, impose a legal or an evidential burden of proof on the Accused.
Section 97 states: “Where in any proceedings for an offence under this Act, it is proved that the Accused gave, offered, solicited, accepted, obtained or received an advantage, the advantage shall be presumed to have been given, offered, solicited, accepted, obtained or received as inducement or reward as is alleged in the particulars of the offence unless the contrary is proved by the accused”.
The jurisprudence in Sierra Leone in respect of shifting of the burden of proof in corruption offences is still developing and remains largely unclear. I support the view that, in the absence of clear and unequivocal words, penal statutes ought not to be construed to place any burden of proof on an Accused person.
However, the Anti-Corruption Act (ACA) 2008 does employ express language such as “unless the contrary is proved” to shift the burden of proof as in sections, 26, 27, 28, 44, 93, 97 and 98. This formula creates a rebuttable presumption which will hold, unless the Accused proves otherwise. In the absence of such express terms, the burden of proof does not shift although some lesser onus, for example, an evidential burden might be imposed.
If even the most obvious way to read Section 97 of the Amendment Bill is that it imposes a burden of proof, I have no doubt that it is “possible”, without doing violence to the language or to the objective of that section, to read the words as imposing only the evidential burden of proof.
Such a reading would in my view be compatible with the Constitution, since, even if this may create evidential difficulties for the prosecution as I accept, it ensures that the defendant does not have the legal onus of proving the matters referred to in Section 97 aforesaid.
Finally, is the question whether section 97 aforesaid, read in tandem with section 23(4), of the Constitution, makes an inroad on the presumption of innocence.
The approach of the common law to the presumption of innocence was memorably stated by Viscount Sankey LC in Woolmington v D.P.P. 1935 AC 462, 481 to be that “Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.”
It seems to me that the prevailing view today, is that if by the provisions of the statutory presumptions, an accused is required to establish, that is to say, prove or disprove, on a balance of probabilities either an element of the offence or an excuse, then it will contravene section 23(4) of the Constitution and similar provisions.
Alternatively, a permissive or evidentiary presumption from which a trier of fact may (as opposed to must) draw an inference of guilt, will not infringe section 23(4) of the Constitution.
The same point emerges from jurisprudence of the South African Constitutional Court: State v Mbatha  2 LRC 208; State v Manamela  5 LRC. In the latter case, the majority of the South African Constitutional Court held that a reverse burden provision in respect of handling recently stolen goods was incompatible with a constitutional presumption of innocence. On the other hand, an evidential burden requiring the accused to explain his possession of the goods would not have amounted to a violation of the constitutional right of silence.
Simply put, a shift of a legal burden of proof will contravene sections of the Constitution, such as Section 23(4) on the presumption of innocence and the right to remain silent. On the contrary, a shift of the evidential burden will not undermine or contravene the said constitutional provisions.
In concluding therefore, it is my considered opinion that section 97 of the Amendment Bill attempts to shift only the evidential burden and not the legal burden, and so does not contravene the Constitution.
To support this position, though of persuasive weighting, are the recent cases of R v. Lambert (2002) AC and R v. Matthews (2003)AC, albeit not related to corruption, have indicated that the provisions using language similar to that adopted in section 97 merely impose an evidential burden.
However, the problem may be avoided by charging conspiracy to commit a corruption offence under section 128 of the Anti-Corruption Act, which is an offence separate and distinct from the ulterior offence and to which the presumption does not apply.
The ACC may also wish to redraft Section 128, to clearly create the offence of conspiracy. The Courts have differently interpreted that section. One school of thought upholding, that it creates the offence, and another concluding that it does not. A redraft could settle the argument permanently.
About the author
Mr Joseph F. Kamara is the former Attorney General in the Koroma led APC government and also a former Head of Sierra Leone’s Anti-Corruption Commission. He is currently running his own private law firm in Sierra Leone.