Sierra Leone. Anti-corruption Commission

Transcription

1 Sierra Leone Anti-corruption Commission 1. History Sierra Leone is a small West African country (27,925 square miles/73,362 square kilometers) with an estimated population of 4.5 million people before the war. However the situation of the country is ironical; small, beautiful, tremendously rich in natural resources, but characterize by an extremely high state of poverty, physical under-development and marginalization of its people. This is reflected in her consistence ranking on the lowest scale of UNDP Human Development Index (H.D.I) since the 1990s. In the light of this situation, the Government of Sierra Leone has been concerned with the alarming rate of corruption and its adverse effect on nation building, and has been consulting with various donors and seeking technical assistance to reduce the scale of corruption. Steps were taken to formulate an Anti-Corruption bill, whose provisions were discussed on a nationwide basis and eventually enacted by Parliament on 3 rd February Following the setting up of the Anti-Corruption Commission to implement the Act, a national perception survey was conducted to know the awareness level of corruption in the country. Ninety-five (95%) of the respondents said that corruption is rampant in most Government Departments. 2. Structure (1) There is hereby established a body to be known as the Anti-Corruption Commission, hereinafter referred to as "the Commission". (2) The Commission shall consist of the following members: a Commissioner who shall be the head; and a Deputy Commissioner, both of whom shall be appointed by the President with the approval of Parliament. (3) The President shall appoint the Commissioner and Deputy Commissioner from among persons of conspicuous probity and with proven knowledge and ability in accounting or other profession or in the investigation of offences involving dishonesty. (4) An appointment under subsection (3) shall be for a term of five years which may be renewed as and when necessary. (5) A member of the Commission may resign his office by written notice to the

2 President and may be removed from office but only for inability to perform the functions of his office, whether arising from infirmity of body or mind or for stated misconduct. (6) The statement of misconduct referred to in subsection (5) shall be addressed to a tribunal appointed by the President, adapting for that purpose, the provisions of paragraphs (a) and (b) of subsection (5) of section 137 of the Constitution; and subsections (6) and (7) of that section shall apply, with the necessary modifications, to the removal of any member of the Commission. (7) In the absence of the Commissioner, the Deputy Commissioner shall have power to perform all the functions of the Commissioner. There are: The Commission Office of the Commissioner Office of the Deputy Commissioner The Directorate Corruption Prevention Department Community Relations Department Investigation Department Research and Development Department Administration and Finance Department 3. Function (1)Functions of Commissioner ⅰ The Commissioner, as head of the Commission is responsible for the effective performance of the duties and the proper exercise of the powers of the Commission set out in this Act; the implementation of the national anti-corruption strategy; the management of the Commission and for the conduct of the staff of the Commission, and may in relation thereto, make standing orders, not inconsistent with this Act. ⅱSubject to section 54, the Commissioner shall account to the people of Sierra Leone for the conduct of the national campaign against corruption. (2)Functions of commission ⅰThe Commission shall provide every protection for the sources of its information but any person who willfully makes or causes to be made to the Commission a false complaint or report that an offence has been committed under this Act; or misleads the Commission by giving false information or making any false statement

3 or accusation; commits an offence and shall be liable on conviction, to a fine not exceeding one million leones or to imprisonment for a term not exceeding one year or to both such fine and imprisonment. ⅱWhere an alleged or suspected case of corruption by a public officer is referred to the Commission by any member of the public or by another public officer such reference shall be accompanied by sufficient particulars of the basis of the allegation or suspicion, including, where possible, documents, papers and other things connected with the matter alleged or suspected. (3)Powers of Commission and servants to request information ⅰFor the purposes of any investigation under this Act, the Commission shall have such powers, rights and privileges as are vested in the High Court of Justice or a judge thereof in a trial in respect of enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise; and compelling the production of documents; and the issue of a commission or request to examine witnesses abroad; and the Rules of Court shall, with the necessary modification, apply to the exercise of the powers, rights and privileges of the Commission conferred by this section. ⅱA person under investigation or any witness summoned to appear in any hearing before the Commission, may, with the leave of the Commissioner, be assisted by counsel of his own choice at such hearing. ⅲ Pursuant to subsection (1), the Commissioner may authorize in writing an investigating officer to exercise the following powers upon production by him of such authorization to inspect and investigate any share account, subscription account, investment account, expense account or other account of any description and any company books relating to any person named in the authorization; to require from any person the production of any accounts, books, documents or other article of or relating to, any person named in such authorization which may be required for the purpose of the investigation and the disclosure of all or any information relating thereto, and to take copies of such accounts and books or any relevant entry therein. ⅳAn investigating officer authorized under subsection (3) shall be empowered by such authorization to require from any person information as to whether or not there is any account, book, document or other article at any company or any other place which is to be produced, inspected or investigated. ⅴAny requirement made under subsection (3) shall be in writing.

4 ⅵany person who is required under this section to disclose any information or to produce any accounts, books, documents or articles shall, notwithstanding the provision of any law to the contrary, comply with such requirement. ⅶAny person who fails or neglects, without reasonable excuse, the proof of which shall be upon him, to comply with any requirement under this section; or obstructs any investigating officer in the execution of the authorization given under this section, is guilty of an offence and shall be liable on conviction to a fine not exceeding two million leones or to a term of imprisonment not exceeding two years or to both such fine and imprisonment. (4)Information relating to property ⅰThe Commission may, by writing under the hand of the Commissioner, request any person who is under investigation; or is related to any person who is under investigation; or is suspected to have or to have had any business or other dealings with any person who is under investigation, under this Act to furnish to the investigating officer a statutory declaration or statement in writing enumerating any property, moveable or immoveable, as may be specified by the Commission being property belonging to or possessed by or which at any time belonged to or was possessed by such person, his agents or trustees; all expenditure incurred by such person in respect of himself, his spouse of spouses, parents, or children with regard to living expenses and other private expenditure during any period specified by the Commission; all liabilities incurred by such person, his agents or trustees during the period specified by the Commission and specifying in respect of each such liability whether it was incurred jointly (and if so, with whom) or severally. ⅱThe Commission may also request such person or persons as may be specified by it to furnish the investigating officer with a statutory declaration or a statement in writing of all income earned during a specified period; and the tax paid on such income. ⅲAny person specified in paragraph (a) or (b) or (c) of subsection (1) may be requested to furnish to the investigating officer a statutory declaration or statement in writing of all moneys or other movable property or properties kept in his home; and

5 of all moneys or other moveable property or properties sent out of Sierra Leone by him or on his behalf during the period specified by the Commission. ⅳany person requested under subsection (1) to furnish information in respect of his movable or immovable property shall specify in respect of each such property whether it is or was possessed jointly (and, if so, with whom) or severally; and specify the dates upon which each such property was acquired and whether by purchase, gift, bequest, inheritance or otherwise, and where it was acquired by purchase, specifying the consideration paid therefore. (5)Summoning witnesses ⅰThe Commission may, by notice in writing under the hand of the Commissioner, summon any person whom the Commission believes to be acquainted with any facts relevant to the affairs of any person who is under investigation to appear before it and to arrange orally on oath or affirmation any question relevant thereto; and to produce the original or copy of any document in his possession or under his control which may be relevant to such investigation. ⅱFor the purposes of subsection (1), the Commissioner shall administer any oath or affirmation. (6)Heads of Department and bank managers to produce statements, etc. ⅰThe Commission may, by notice in writing under the hand of the Commissioner, request the head of any government Ministry, department, office or establishment, or the person in charge of any statutory or public body to produce to the Commission, notwithstanding any law to the contrary, any document or copy thereof, certified by the person in charge of any such document, which is in his possession or under his control ⅱThe Commission may also apply ex parte to the High Court for an order to be served on any officer of a bank to produce any banker's books, safe-deposit boxes, copies of any bank accounts or any documents relating to any person who is under investigation or of his spouse, parent or child or any other person who has or has had dealings (business or otherwise) with such person at the bank as shall be named in the order. (7)Restriction on disposal of property ⅰThe Commission may, in writing under the hand of the Commissioner, serve a notice on any person who is under investigation directing that such person shall not dispose of or otherwise deal with any property specified in such notice, including moneys in any bank account, without the written consent of the Commission. ⅱThe Commission may attach such terms and conditions as it thinks fit to its consent for the disposal of, or other dealings with, any property specified in a notice under subsection (1).

6 ⅲA notice under subsection (1) shall have effect from the time of service upon the person to whom it is addressed and shall continue in force for a period of six months unless cancelled by the Commission. ⅳNothing in subsection (3) shall prevent the Commission from making a further order in respect of the same property. ⅴFor the purposes of this section, "property" includes any money deposit, share account, club account, subscription account, investment account, bank account or any other property, whether movable or immovable. (8)Restraining order against third parties ⅰWhere the Commission has reason to believe that a third party is holding any property, including moneys in any bank account, for or on behalf of or to the order of a person who is under investigation, it many apply ex parte to the High Court for a restraining order to be made against such person. ⅱA restraining order shall be served on the third party to whom it is directed and on the person being investigated and the Court may, in making a restraining order impose such condition; or exempt such property from the operation thereof, as it thinks fit, but subject to paragraphs (a) and (b), the third party on whom a restraining order is served shall not dispose of or otherwise deal with any property specified in the restraining order except in accordance with the direction of the Court. ⅲA restraining order made under this section shall continue in force for twelve months from the making thereof but on application by or on behalf of the Commission, the Court may cancel or extend the order for a further period of six months. (9)Suspect to surrender travel document ⅰWhere the Commission has reason to believe that any person who is under investigation under this Act is about to leave Sierra Leone, the Commission may apply to a Magistrate for an order requiring such person to surrender any travel document or documents in his possession. ⅱA Magistrate may, after hearing the application, order such person by written notice to surrender his travel documents forthwith to the Commissioner and to find two persons who are owners of property in Sierra Leone, the value of which is not less than fifty million leones each, to stand surety for him. ⅲA travel document which is surrendered to the Commissioner under this section may be held for a period of three months fro the date on which the Magistrate issues the notice. ⅳWhere it appears that the investigation may not be completed before the expiry of the period of three months, the Commission may apply again to the Magistrate for renewal of the order for such longer period as may be reasonably required.

7 ⅴWhere a person who possesses a travel document fails to comply with the order forthwith, he may thereupon be arrested and taken before a Magistrate and unless such person complies with the order, the Magistrate shall by warrant commit him to prison for thirty days and thereafter, until the Commission completes the investigation in respect of him. (10)Powers of arrest An investigating officer authorized in that behalf by the Commissioner may, without warrant, arrest any person upon reasonable suspicion of his having committed or of being about to commit an offence under this Act. (11)Power to finger-print and photograph arrested person ⅰAn investigating officer may, if so directed by the Commissioner, take or cause to be taken under the supervision of another officer, photographs, finger-prints and the weight and height measurements of any person arrested under section 28. ⅱThe identifying particulars of a person taken under subsection (1) may be retained by the Commissioner, except that if a decision is taken not to charge the person with any offence; or the person is charged but discharged by a Court before conviction or acquitted at his trial or on appeal, the identifying particulars, together with any negatives or copies thereof, shall as soon as reasonably practicable, be destroyed or, if the person concerned so prefers, delivered to him. ⅲNotwithstanding subsection (2), the Commissioner may retain the identifying particulars of a person who has been previously convicted of an offence under this Act or an offence involving dishonesty. ⅳIn this section, "identifying particulars" in relation to a person, means photographs, finger-prints and the weight and height measurement, of that person. (12)Arrest of persons granted bail by Commission ⅰAn investigating officer authorized in that behalf by the Commissioner may arrest without warrant any person who has been released on bail under section 29 if that officer has reasonable grounds for believing that any condition upon which the person was so released or otherwise admitted to bail has been or is likely to be broken; or on being notified in writing by any surety for that person that the surety believes that that person is likely to break the condition that he will appear at the time and place required and for that reason the surety wishes to be relieved of his obligation as surety. ⅱAny person arrested under subsection (1) shall be brought before a Magistrate within twenty-four hours after his arrest or as soon as practicable thereafter.

8 ⅲIf it appears to the Magistrate before whom a person is brought under subsection (2) that any condition upon which the person was released or otherwise admitted to bail has been or is likely to be broken, he may remand that person in custody; or admit that person to bail on the same or on such other conditions as he thinks fit. (13)Search and seizure ⅰAn investigating officer authorized in that behalf by the Commissioner may search any person, if he reasonably suspects that such person is guilty of an offence under this Act. ⅱA person shall not be searched under subsection (1) except by a person of the same sex. (14)Search of premises Where the Commissioner has reasonable cause to believe that there is in any place or premises, other than a residential property, anything which is or contains evidence of the commission of an offence under this Act, he may by warrant directed to an investigating officer empower such officer to enter such place or premises, by force, if necessary, and search it: Provided that, in the case of a residential property, he may be information on oath to a Magistrate, obtain a warrant for the purpose of the entry and search of that property. 4. Achievement The Sierra Leone Court Monitoring Program remains daringly committed to monitoring key government institutions that have indispensable stakes in the transition process. Since the Anti-Corruption Commission is the institution has the statutory mandate for holding to account all government functionaries, it has not been an exemption to our monitoring activities. Principally, corruption is a compelling and fundamental threat to good governance and development in any society. With Sierra Leone now at the cross-road, there is not only the need for the existence of an independent institution to fight corruption, but there is also the cardinal prerequisite to monitor such an institution and give independent accounts to the public and stakeholders so as to collectively stifle corruption, the practice that continues to rob the country of good governance and social justice. In the January edition of our publication, the works of the Anti-Corruption Commission viz a viz investigation, prosecution and conviction, from its inception to 31st December, 2005 was manifestly examined. The year 2006 is half way through, and it has been a crucial period for the ACC particularly so when it now has a new Commissioner. This article is therefore going to look at the ACC s activities since

9 2006. (1)Investigation By December 2005, the ACC had investigated five hundred and fifty one cases. In addition to this, from the start of 2006 to date, the ACC has carried out eighteen investigations. As a result, since the inception of the ACC in July 2000 to present day, they have done up to five hundred and sixty nine investigations so far. (2)Prosecution From the eighteen cases that have been investigated since January 2006, only three have been charged to court-one to the High Court and two to the Magistrate Court. By December 2006, ACC had charged fifty one cases to court. Giving the current situation, out of the five hundred and sixty nine cases investigated since the inception of the ACC, a total of fifty four cases have been charged to court. At present, there are six anti-corruption cases in the High Court because there are five backlog cases ( ) that elapsed into the New Year. Unlike the Magistrate Court, there are only two cases currently with no backlog from At the moment, there are thirteen cases with the Attorney General and Minister of Justice to make a decision on their justifiability, meaning, for the Attorney General to determine whether the cases worth it to be charged to court. Out of the thirteen cases that are with him, seven of which have been in 2006, whist the remaining six are backlogs from (3)Conviction On the matter pertaining conviction, this year has seen the convictions of three accused persons. By the end of 2005, the Anti-Corruption Commission had had a total of twenty one convictions. In accumulation therefore, the ACC has arrived at a sum of twenty four convictions out of the fifty four cases charged to court. Additionally, eight cases are pending completion in both Magistrate and High Courts. However, since the year began, there has been no incident of discharges or cases been thrown out of court either for want of evidence, death or ill-health. (4)Comments The first thing the SLCMP thinks that is of primary impediment to the noble course of fighting corruption is that of the provision for the Attorney General alone to determine the justifiability of all anti-corruption cases. This largely discounts the strength of the independence of the ACC. In respect of this, whilst the Attorney General still has thirteen cases with him for opinion, six of those cases are backlogs from This shows how the Attorney General alone can hold back the judicial process of anti-corruption cases and by extension an outright discredit to the system of one man determining which case merits prosecution especially for the Attorney General whose Office is conspicuously under-staffed and under-resourced with an additional tendency of been politically influenced.

10 Furthermore, the idea of the statutory document for the establishment of a three man committee to be determining justifiability has spent too long a time to take effect. With an independent committee determining justifiability, the ACC will be guaranteed of some more independence. I have said some more independence because even at this, it is the Director of Public Prosecution s office that will still be prosecuting anti-corruption cases. This will offer the opportunity for the state to influence to a large extent the outcome of anti-corruption cases because the prosecution might refuse to adduce overwhelming evidence against an accused person the government wants to protect. The point I am trying to make here is that, whilst it is important for an independent body to be determining justifiability, it is even more important for the Anti-Corruption Commission to be independently prosecuting their own cases in the name of the Republic of Sierra Leone. By the look of things, the ACC seems to be merely doing the same things that have not offered enough to hit the heart of corruption in Sierra Leone. It is the same myriad investigations and few prosecutions, less investigations and no hearings in the provinces, whilst the implementation of the National Anti-Corruption Strategy that should serve as catalyst for corruption prevention remains a silent matter. The reason for which I am stating these issues now is that the Commission had a new leadership since sometime in October This news brought unsullied hopes and expectations in the fight corruption in this country, and from that time to now, the new Commissioner should have had enough time to kick-off with very potent initiatives. But feasibly speaking, the status quo keeps on being almost the same with virtually no significant changes from the policies of the previous Commissioner. However, whilst the SLCMP believes in the capacity of the new Commissioner, we would also want to urge that the success of the ACC largely rests on the authority of the head. 5. Contact The Sierra Leonf anti-corruption Commission 3 Gloucester Street, Freetown Sierra Leone. 14a Lightfoot Boston Street, Freetown, Sierra Leone. 37 Kissy Town Road, Bo, Southern Province, Sierra Leone Independence Square, Rogbaneh Road, Makeni, Sierra Leone (operational in Jan. 2005) Tel: or or Fax: acc@sierratel.sl info@anticorruptionsl.org website:

11 6. Resources