The establishment of the COIs has generated unprecedented public interest and debate, especially on the questions of purpose, legality and upholding due process. This article provides an abridged legal analysis addressing the questions on the COIs' purpose, legality and due process adherence. This article asserts that the argument that the COIs Constitutional Instruments are legally flawed and unconstitutional is unsupported in law. The COIs Constitutional Instruments indeed pass the tests of legality and political legitimacy.
This section addresses the political basis for the establishment of the COIs, providing justification not only for their establishment, but also the overall current fight against corruption, being a legitimate political mandate from the people of Sierra Leone.
H.E. President Julius Maada Bio, then presidential candidate, acknowledged in his manifesto that corruption “has been the main governance Achilles-heel for successive governments in Sierra Leone and the greatest threat to national progress and development as well as posing the biggest threat to our national stability and security”. This acknowledgment is rooted in the findings of the Truth and Reconciliation Commission (TRC), in that, corruption was part of the central causes of the civil war in Sierra Leone from 1991-2002. Then, presidential candidate Julius Maada Bio promised that his “government will treat corruption not only as a governance issue but as a national security threat. It will therefore leave no stone unturned in its fight against corruption”.
On his election, President Bio in the State Opening of Parliament Address reiterated his campaign promise; and in his Inauguration Address, he further outlined his resolve to fight corruption by stating “that this is not going to be the Business-as-Usual Politics and Governance of the state. My new Government is therefore launching 3 peaceful democratic wars: First, a War on Indiscipline; Second, a War on Corruption; and Third, a War on Poverty. These Peaceful democratic wars on Indiscipline, Corruption and Poverty will define my tenure of Office and I am determined to deliver on my promises”.
The Report of the Governance Transition Team 2018
The Governance Transition Team (“GTT”) was mandated by President Bio to “conduct an immediate stocktaking of the state of affairs of Government Ministries, Departments, and Agencies”. The GTT, in its report, found an “astonishing level of fiscal indiscipline and rampant corruption” in the political administration led by former President Ernest Bai Koroma. The GTT Report recommended, inter alia, that the Government: “Immediately institute a Judge-led Special Commission of Inquiry”.
On receipt of the GTT Report, the public was informed of further actions by Government, including President Bio convening “an Emergency Cabinet Meeting on Friday 6th July 2018 to discuss and adopt the Report, and on a basis for further action: [… 1] Cabinet, as the highest decision making body of the Government, endorsed the [GTT] Report” and the President “directed the Attorney-General and Minister of Justice to immediately lead on the establishment of a judge-led Commission of Inquiry […] The Commission will consist of a Chairman who will be a judge of international repute and another renowned judge of national repute”.
It is, therefore, submitted that the zero tolerance to corruption and the treatment of corruption as a threat to national security is rooted in the political campaigns for the 2018 Presidential Elections and by his election, President Bio secured the legitimate mandate to fight corruption from the people of Sierra Leone. This mandate is reinforced by the political objectives of the State, which includes the obligation to “take all steps to eradicate all corrupt practices and the abuse of power”; a fundamental principle of state policy which underpins the fight against corruption. The above puts to rest all suggestions of arbitrariness and targeting of political opponent.
Law on Commission of Inquiry
This section provides an analysis of the law on the COIs in Sierra Leone, in order to address the issue of their legality.
In the common preambular paragraphs of the COIs Constitutional Instruments, reference is made to the advice of Cabinet to the President that in the public interest, COIs be appointed to inquire into matters of public interest, and the President acting on the advice and in exercise of his powers under section 147(1) (a) of the Constitution of Sierra Leone 1991 (hereinafter the “Constitution”) gave Notices, of the appointment of Justice Biobele Georgewill (Nigerian), Justice Bankole Thompson (Sierra Leonean) and Justice William Annan Atuguba (Ghanaian), as Chairmen and Sole Commissioners of the COIs respectively.
Section 147 (1) (a) of the Constitution states: “Save as otherwise provided in subsection (2), the President shall, by Constitutional Instrument, appoint a Commission of Inquiry into any matter of public interest where— a. the Cabinet advises that it is in the public interest so to do. The Constitution specifies the type of legislative instruments by which the COIs are established, i.e., “by Constitutional instrument”, which means “an instrument made under a power conferred in that behalf by this Constitution” as per section 171 (1); and which for the purposes of the laws of Sierra Leone are classified as an instrument “made by any person or authority pursuant to a power conferred in that behalf by […the] Constitution or any other law” [sec 170 (1) (c)].
Constitutional instruments, under section 170 (7) of the Constitution, become law when: “a. […] laid before Parliament; b. […] published in the Gazette on or before the day they are so laid before Parliament; c. […] come into force at the expiration of a period of twenty-one days of being so laid unless Parliament, before the expiration of the said period of twenty-one days, annuls any such orders, rules or regulations by the votes of not less than two-thirds of the Members of Parliament”. Notwithstanding the public debate that ensued after the COIs Constitutional Instruments were laid before Parliament, the parliamentary debate and vote before the Constitutional Instruments subsequently became law, it is the case that the Constitution was complied with insofar sections 147 (1) (a) and 170 (7) of the Constitution are concerned.
Although the constitutional provisions have been explained, and compliance established, it is important to examine, albeit at a glance, the statutory provision based on the need to clarify the due process question, the pith of the emotive public debate.
The Constitution, in section 170 (1) (d) and (4), defines the laws of Sierra Leone to include the existing law, which “comprise the written and unwritten laws of Sierra Leone as they existed “Immediately before the date of the coming into force of […the] Constitution”. The existing law on commissions of inquiry include Commission of Inquiry Act, Cap 54 of the Laws of Sierra Leone 1960 and amendments (“Cap 54”). Whilst Cap 54 provides for a different legal regime for the establishment of a commission of inquiry, through the appointment of one or more commissioners, suffice it to note the Constitution is the “supreme law of Sierra Leone and any other law found to be inconsistent with any provision of [...the] Constitution shall, to the extent of the inconsistency, be void and of no effect” [sec 171(15)].
It must be underscored that on the basis of supremacy of the Constitution, any statutory provision (or any law) inconsistent with the Constitution ought to be view as unconstitutional and void and of no legal effect. This includes the conflicting section(s) of Cap 54.
CIOs Public Challenges on Constitutional Compliance
At the heart of the intense public debate on the COIs are common paragraphs 6 (1) and (2) of the Constitutional Instruments on the rules of practice and procedure and the rules of evidence respectively. Press releases from the main opposition party, the All People’s Congress (“APC”), and the Sierra Leone Bar Association (“Bar Association”) dated 28th and 29th December 2018 respectively resonate with the main public challenges on the basis of constitutional non-compliance. The APC argued in their press release that, inter alia, the Constitutional Instruments are “legally flawed and clearly unconstitutional, deliberately setting aside the rules of evidence”. The Bar Association press release also argues that section 150 of the Constitution was breached by reason of the provisions of common paragraph 6 (1) and (2) of the CIOs Constitutional Instruments.
Rules of Procedure – Common Paragraph (1) of the Constitutional Instruments
Section 150 of the Constitution states that: “Subject to the provisions of this Chapter, the Rules of Court Committee shall, by Constitutional instrument, make rules regulating the practice and procedure of all Commissions of Inquiry”. The provision when read within the lens of literal rule of interpretation seems to authorize only the Rules of Court Committee (“RCC”) to firstly make rules regulating practice and procedure for all Commissions of Inquiry; and secondly make the rules by means of Constitutional Instrument. This power by the RCC is only applicable to rules regulating practice and procedure, excluding rules of evidence.
Common paragraph 6 of the COIs Constitutional Instruments states:
“(1) The proceedings of the Commission shall be regulated by the practice and procedure in force in the High Court with such modification, adaptation and exception as are necessary to enable the Commission to elicit all such information as may be necessary for the performance of the functions of the Commission.
(2) For the purposes of sub-paragraph (1), the Commission shall not be bound by the rules of evidence in civil or criminal proceedings”.
The Bar Association, or rather its “Executive”, followed-up on the press release with the filing of an application to the Supreme Court (S.C. No. 1/2019) to determine whether the RCC is the “sole authority” to make rules for the practice and procedure for all COIs; whether this authority is automatic upon the appointment and establishment of any commission of inquiry; and whether the “sole authority” power is limited by the powers of President to establish a COI, and Parliament's legislative authority in adopting the rules for practice and procedure for the COIs without reference to section 150 of the Constitution.
Whilst the orders prayed for by the Bar Association consistently refer to the rules regulating “practice and procedure” of the COIs, it sought as a relief a “declaration that paragraph 6 [in toto] of Constitutional Instrument No. 64, 65 and 67 […] violates, offends and contravenes section 150 of the 1991 Constitution […] and therefore null and void. Without even addressing the merit of the orders sought, it is clear that the relief and declaration prayed for by the Bar Association went beyond the scope of the orders prayed for (pleaded); thereby treating sub-paragraphs (1) and (2) of common paragraph 6 as one and the same. This means the Bar Association is surreptitiously impugning common paragraph 6(2) without pleading for same. It also means the Bar Association is seeking a declaratory relief outside the bounds of section 150 of the Constitution, suggesting that the RCC is also authorized to make rules regulating the rules of evidence in COIs.
It has to be made clear at this stage that the common paragraph 6 (1) submission of the Bar Association is really a plain-meaning/textual understanding of section 150 of the Constitution, excluding completely other legal doctrines in constitutional interpretation/construction. From a purposeful interpretation lens, it may be seen that the President and Parliament opted to import the practice and procedure in force in the High Court to regulate the practice and procedure of the COIs. The said rules are the High Court Rules 2007 made by the RCC, and therefore, creating no injustice with respect to the list of interested parties contained in common paragraph 4 of the COIs Constitutional Instruments.
It is clear that the RCC has not executed its mandate under section 150 of the Constitution since the Constitution came into force in 1991. There have been a number of commissions of inquiry post-1991, established under section 147(1) of the Constitution, with common paragraph 6 (1) and (2) adopted and applied, including the Constitutional Instruments Nos. 1 and 8 of 2009, No. 16 of 2010, establishing the Shears-Moses, Bankole Thompson and Adeliza Showers COIs respectively. The practice thus far has been for the constitutional instruments to stipulate the rules of practice and procedure; or the commissions to be self-regulating within the context of section 9 of Cap 54 until the RCC performs its function as mandated by the Constitution.
With the above said, it is noteworthy to state the present High Court Rules 2007 are quite extensive and instructive on civil proceedings, and also the said rules are embedded with due process principles. Thus, it appears the major complaint of the Bar Association rests with the 'apparent usurpation' of the function of the RCC, a pure textualist concern. The legitimacy of this concern is dampened, however, by the failure of the RCC to make the rules as authorized by section 150 of the Constitution since 1991.
In regards to the failure of the RCC to act, it is clear at this stage that a gap exists, but one that may not need another constitutional construction by the Supreme Court vis-à-vis the powers of the President (relative to section 147 and the whole of the Constitution), since the Supreme Court has ascribed the gap-filing function to the President, in his role as 'Guardian of the Constitution' and in the exercise of the President’s 'Supreme Executive Authority'. (See S.C. 4/2015 Alhaji Sam Sumana v The Attorney General and Victor Bockarie Foh  SLSC 1203 delivered on 9th September 2015). When the ratio in the Alhaji Sam Sumana case, which has not been limited by the Supreme Court is read together with the guiding framework of the High Court Rules 2007, there seem to be no injustice in the application of the High Court Rules 2007 to regulate “the practice and procedure in force in the High Court with such modification, adaptation and exception as are necessary to enable the Commission to elicit all such information as may be necessary for the performance of the functions of the Commission”. The High Court Rules 2007 are clear, certain and predictable.
It is submitted, therefore, that the textualist’s concern of the Bar Association and others on common paragraph 6 (1) of the COIs Constitutional Instruments appears to be exaggerated and unsupported by the present statement of the law in Sierra Leone and the post-1991 COIs practice. The section 150 of the Constitution gap that exists by reason of the inaction of the RCC can be remedied by the gap-filing role which the Supreme Court has ascribed to the President in the Alhaji Sam Sumana case, the existing law and law-making supremacy of Parliament.
Rules of Evidence – Common Paragraph (2) of the Constitutional Instruments
The second part of the constitutional compliance question rests on sub-paragraph (2) of common paragraph 6 of the COIs Constitutional Instruments, dealing with the rules of evidence. The said common paragraph 6(2) provides that the Commissions will not bound by the rules of evidence in civil or criminal proceedings in eliciting such information necessary for the performance of their functions. This presents a major concern for the APC, which in its 28th December 2018 press release announced that the party will not subject itself to the COIs since the “instruments establishing the Commissions of Inquiry are legally flawed and clearly unconstitutional, deliberately setting aside the rules of evidence and established legal principle”.
On this contentious issue, the key question to be answered is whether the common paragraph 6(2) approach, to elicit information, is accepted in law, or arbitrary and selective, given the fact-finding role of COIs in the overall fight against corruption. Even before addressing the main issue noted above, it must be underscored that the COIs Constitutional Instruments are now law, and has passed the constitutional legality test, whether by reason of section 147 (1) (a) powers of the President acting on the advice of cabinet, the section 170 (7) provision on Constitutional Instrument, and the law-making supremacy of Parliament in section 105 of the Constitution.
As a preliminary matter, the law of evidence in Sierra Leone is a composite of statute law (example the Documentary Evidence Act, Cap 26 of the Laws of Sierra Leone 1960) and the English common law adopted in Sierra Leone. The statute law on evidence is quite limited and this area of law is still dominated by the common law (also referred to as judge-made law). The common law rules are often seen as cumbersome, outdated and in need of reform.
It has already been established that previous post-1991 commissions of inquiry have employed the same provisions in common paragraph 6, including 4 established by former President Ernest Bai Koroma acting under section 147 (1) of the Constitution. No injustice seem to have been occasioned by the previous post-1991 commissions of inquiry employing the flexible approach to eliciting information. So the charge of arbitrariness and selectivity appear to be unsupported and disingenuous.
In addition, it is of importance to note that the approach taken in common paragraph 6 (2) with respect to the rules of evidence is not novel in the fight against corruption, especially in investigations and prosecutions. In section 73 of the Anti-Corruption Act 2008 (as amended), the settled law on the admissibility of evidence was dislodged for a more flexible, pro-prosecution of corruption approach. Section 73 of the Anti-Corruption Act 2008 provides that anything that has come into the possession of the Anti-Corruption Commission is admissible in evidence in the prosecution of any person. This is a major shift from the general criminal evidence law with respect to rules on originality, custody, possession for the admissibility of evidence.
This pro-prosecution of corruption approach has also found support in the decisions of the courts of Superior Judicature in Sierra Leone. Shuster J. in the State vs. Fatmata Marrah [(2006) I SLHC 1], appears to have suggested that corruption offenses are sui generis (unique), and therefore, the court must not be tied by the rigid rules of general criminal law and evidence in adjudicating corruption cases. Shuster J in the Fatmata Marrah Case although agreeing with the defence that proving a particular fund in a commingled account is impossible, he noted that modern law only requires the prosecution to show the accused stole one of the funds. The Court of Appeal in Alimu Bah v the State [52/2010 SLCA], also rejected the rigid rules on commingling of funds defense to uphold the appellant's conviction for corruption.
The flexible approach in corruption cases has even moved beyond matters of adducing evidence and has tackled the holy grail of the shifting of the evidential burden and presumptions of law in prosecuting corruption cases under the Anti-Corruption Act 2008 (Anti-Corruption Act 2008, sections 26 (2), 27, 28(4) (5), 39 (6) (7), 44 (2), 92 (2), 93, 97, 98 (1) and 127). This has and must be interpreted as a deliberate step by Parliament to reverse the burden to aid the fight against corruption.
Corruption and related offences are often particularly difficult to prove, in that, given the "victimless" nature of the crime, direct evidence may well be unavailable. Indeed as the cases of R v Sole (CRI/T/111/99 )and R v Acres International (CRI/T/2/2002) illustrate, the perpetrators of the offences may well go to extreme lengths in an attempt to cover-up their wrongdoings. Therefore, adherence to strict rules will severely undermine any anti-corruption criminal deterrence drive.
In all the public debate, nothing has been said of the constitutional duty imposed on the COIs to “make a full, faithful and an impartial inquiry into any matter specified in the [...] appointment” [section 149 (1) (a)]. The Sole Chairmen and Commissioners are expected to be of good repute both nationally and internationally, and fortuitously the qualifications, fairness and track records of the 2 foreign and 1 Sierra Leone (non-resident) Chairmen and Commissioners have not been impugned. Further, the right to appeal where an adverse finding has been made is guaranteed by the Constitution in section 149(4).
From the above, it must now be clear that common paragraph 6(2) approach to elicit information has historical precedent, and it is supported by accepted judicial reasoning, weighing the interest of the individual accused of corruption against the collective public interest in controlling corruption. The establishment of the COIs is predicated on the policy of the Government to wage a 'peaceful war on corruption'. Therefore it makes legal and common sense to employ existing tools that are helpful in the fight against corruption. It must be seen therefore that common paragraph 6 (2) does not only pass the legality test, it also passes the political legitimacy test.
The Supreme Court in the State vs. Francis A. Gabbidon [(2008) SLSC 2) has unequivocally held that ‘in all circumstances, the public interest outweighs that of the Applicant’ in consideration of corruption cases. The highest judicial court famously made this determination having in mind the pervasive and corrosive nature of corruption. This should be the overriding litmus test in the fight against corruption, whether through the Anti-Corruption Commission prosecution or in the use of Commissions of Inquiry. Looking at the Constitutional Instruments, the interests are primarily those who held offices as “President, Vice-President, Ministers, Ministers of State and Deputy Ministers; and ii. Heads and Chairmen of Boards of Parastatals, Departments and Agencies within the period from November 2007 to April 2018”, and therefore individual/private in nature and secondary to the collective public interest. Any fairness consideration with respect to common paragraph 6 (1) and (2) of the COIs Constitutional Instruments Nos. 64, 65 and 67 must be viewed within the collective public interest lens as set out by the Supreme Court in the Francis A. Gabbidon ruling.
In this article, it has been argued that the COIs Constitutional Instruments Nos. 64, 65 and 67 pass the constitutional legality test, by complying with sections 147 (1) (a) and 170 (7) of the Constitution. The contentions regarding legitimacy and due process have been addressed to the extent of noting the gap created by the inaction of the RCC. However, based on the current statement of the law, common paragraph 6 of the said Constitutional Instruments also passes the due process test. Common paragraph 6 also finds support in the post-1991 practice, and modern approach to corruption deterrence. It is therefore submitted that the argument, that the COIs Constitutional Instruments are “legally flawed and clearly unconstitutional, deliberately setting aside the rules of evidence”, is unsupported in law.
About the Author
Dr. Michael Imran Kanu is presently Ambassador/Deputy Permanent Representative for Legal Affairs, Permanent Mission of the Republic of Sierra Leone to the United Nations in New York. He was Managing Partners of Cole, Kanu and Partners a law firm in Freetown and former Prosecutor at the Anti-Corruption Commission in Sierra Leone (2011-2015). He holds a Doctor of Juridical Science (SJD) degree from Central European University. This article reflects his personal opinion and has been written in his personal capacity. Note that the author has opted not to address the issue of whether the Rules of Court Committee established by section 145 of the Constitution is a juridical person, and therefore, can/cannot be sued