by Kemeh Kamara

Sierra Leone’s Anti-Corruption Commission’s legal framework has changed significantly since the 2000 Act was passed. It was revised and superseded by the 2008 Act. The latter was revised in 2019. Part VI of the Act operationalizes the prosecutorial authority vested in the Commission by the Constitution of Sierra Leone (Amendment) Act No.9, 2008. This constitutional amendment divested the Attorney-General and Director of Public Prosecutions of their prosecutorial jurisdiction concerning Anti-Corruption offences, thereby conferring exclusive power upon the Commission to initiate and prosecute criminal proceedings against any individual in relation to any offence under the Anti-Corruption Act.

The 2019 Amendment Act brought along significant amendments including increasing the fines imposed on convicted persons under the Principal Act; ordering a convict to pay the total amount adjudged into the consolidated fund in addition to the penalties imposed; increasing fines as low as 5 million (old leones) to a minimum of 30 million (old Leones); increasing the minimum fines of 30 million (old Leones) to a minimum of 50 million (old Leones); and increasing terms of imprisonment from terms of ‘not less than six months’ to terms’ not less than three years’.

Furthermore, with the Amendment Act of 2019, section 7 repeals and replaces section 89 of the Principal Act of 2008 by giving alternative measures to the Commission instead of prosecution, which usually takes a lot of time and resources on the part of the state. The alternative route provided is as follows:

“(1) Where the Commissioner is of the opinion that the findings of the Commission on any investigation warrant a prosecution under this Act, the Commissioner may– (a) institute proceedings in Court; or (b) enter into an agreement with a suspect to – (i) refund the amount involved plus an interest of not less than 10% and;” (ii) preclude himself from holding public office for a period not less than three years.”

This provision gives a viable alternative to the ACC to effectively recover funds while avoiding cumbersome court proceedings and loss of expenditure on the part of the state. This provision in itself is a positive development. However, the wording of the final line of this amendment raises several questions: who enforces the agreement between the ACC and a suspect under section 7(1)(b)(ii) of the Amendment Act in relation to the suspect being precluded from holding public office for not less than three years? Who ensures compliance with the agreement? Is it incumbent upon the Commission to oversee adherence to this provision? These questions necessitate clarification through judicial interpretation or legislative refinement.

Following the signing of a non-prosecution agreement on February 16, 2024, the ACC publicly banned two former employees of the Sierra Leone Roads Authority (SLRA) and the Accountant General’s office from holding public office for three years. In addition, the ACC ordered the payment of 10% interest on misappropriated funds. These actions were taken in accordance with section 7(1)(b) of the 2019 Amendment Act.

Although this is a pragmatic solution, the selective enactment of public prohibitions raises questions regarding the uniformity of their implementation. This begs the question of whether other individuals who signed comparable agreements followed the clause barring them from holding public office. The evaluation of compliance is made more difficult by the lack of public notifications about violations of these agreements.

The validity of the Anti-Corruption Commission (ACC) signing an agreement with a suspect to avoid prosecution and instead imposing a ban on holding public office without court approval depends on the legal framework governing such agreements and the extent of the ACC’s authority. In many jurisdictions, including Sierra Leone, prosecutorial discretion allows law enforcement agencies, like the ACC, to negotiate agreements with suspects, such as plea bargains or settlement agreements, to resolve cases without going to trial. However, the terms and conditions of such agreements typically require court approval to ensure fairness and legality.

In the context of the ACC’s authority, it cannot serve as both prosecutor and judge simultaneously. The principle of separation of powers, fundamental to the rule of law, dictates that the prosecution of criminal cases should be distinct from adjudication by the judiciary. Therefore, while the ACC may have prosecutorial powers to negotiate agreements with suspects, any resolution reached would need to be ratified by the court to ensure that it complies with legal standards and safeguards the rights of all parties involved.

If the ACC were to impose a ban on holding public office as part of an agreement without court approval, it could raise concerns regarding the separation of powers and due process. Such actions might be seen as overstepping the ACC’s authority and undermining the role of the judiciary in adjudicating matters of law. Therefore, the ACC needs to adhere to legal procedures and seek judicial validation for any agreements that involve significant consequences for suspects, such as restrictions on holding public office.

The validity of the ACC’s engagement in agreements to avert prosecution and imposition of bans on holding public office without court approval hinges on adherence to legal frameworks and respect for institutional boundaries. While prosecutorial discretion empowers the ACC to negotiate agreements, the principle of separation of powers precludes it from assuming adjudicatory roles. Any resolutions reached must undergo judicial scrutiny to ensure conformity with legal standards and safeguard due process.

Overreliance on extrajudicial measures, such as public office bans without judicial oversight, risks eroding the integrity of the legal process and impinging upon the rule of law. Thus, it behoves the ACC to adhere to established legal procedures and seek judicial validation for agreements entailing significant ramifications for suspects. In pursuing the fight against corruption, legal clarity and institutional integrity remain paramount, ensuring equitable and transparent dispensation of justice.

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