We must hold the office of the Attorney General accountable for wrongful prosecutions

Basita Michael: Sierra Leone Telegraph: 12 July 2020:

“Not Guilty.” Two powerful words spoken by the foreman of the jury that brought a sense of relief and feelings of vindication to three accused persons in the recently concluded treason trial. In the case of the first accused, Alfred Palo Conteh, those words were uttered fourteen times. He was found guilty on two counts, viz keeping a greater number of small arms than is specified in a licence and having a loaded small arm in a public place.

Although he was sentenced to 24 months in prison, this was a stunning victory for the defence team. In a country where the government rarely lose any cases, the jury’s verdict left many shocked and flabbergasted. The decision made many lawyers who were critical of jury trials rethink their position.

From the onset, it was clear to many that charging Palo Conteh for treason was an overkill. Many felt that partisan political considerations tainted the prosecution. This is by no means new in Sierra Leone. One only needs to read Aminata Forna’s ‘The Devil That Danced on the Water’ to get a first-hand account of how her father, Mohamed Sorie Forna, was framed, tried and executed on trumped up charges of treason.

Our history is littered with many highly questionable convictions for treason. Many continue to ask and deliberate upon what needs to be done to prevent a recurrence of this sad, unfortunate and tragic practice.

A question posed to me the other day by a layman was whether the two accused persons, Saa Anthony Sinah and Prince George Hughes, who were found not guilty on all counts would be compensated.

Article 9(5) of the International Covenant on Civil and Political Rights (“ICCPR”) provides, “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Article 14(6) of the ICCPR confers a right on victims of wrongful conviction, which is subsequently reversed or pardoned on the discovery of facts establishing conclusively that there has been a miscarriage of justice, to be compensated according to law.

Sierra Leone ratified the ICCPR in August 1996, yet we have failed to provide any domestic legislation for rehabilitation and compensation of victims of wrongful/ malicious prosecution and incarceration. Instead, we still have in force the Law Officers Act 1965 as amended in 1972 deems that the Attorney-General and Minister of Justice and all Law Officers are deemed to be acting in good faith unless the contrary is proved.

There are a number of key questions that need to be considered. What principles guide the discretionary powers to prosecute a case? What measures can be put in place to ensure accountability in the use of prosecutorial discretion?

Should the exercise of prosecutorial discretion be subject to judicial review to protect it from abuse and political interference? What checks and balances can be put in place to avoid abuse by the office of the Attorney-General and Minister of Justice?

It is clear that the Attorney-General and the DPP need to enjoy prosecutorial discretion. It is necessary and important. However, such discretion must be exercised judiciously and not in an arbitrary, fanciful, oppressive, malicious or vexatious manner.

Separation of the office of the Attorney-General from the Minister of Justice 

A meaningful way to address the issue regardless of who occupies the office is to ensure that the Attorney-General is insulated from partisan political interference. As the principal legal adviser to the Government, the Attorney-General is expected to be the guardian of the public interest. He does not and should not represent the Presidency or a political party. He should be independent. He must act independently of partisan interest in the exercise of their functions to initiate, continue or terminate prosecutions.

In addition, section 66(6) provides that the Director of Public Prosecutions shall, in all matters including his powers under this Constitution or any other law, be subject to the general or special direction of the Attorney-General and Minister of Justice.

The DPP institutes, conducts and supervises criminal prosecutions and related proceedings. S/he must always act with fairness with the objectives of establishing the whole truth and ensuring a fair trial. He prosecutes and not persecute.

In other jurisdictions, the DPP is completely independent, but in Sierra Leone, since the office of the DPP is subject to the direction and control of the Attorney-General and Minister of Justice, this could be a source of political control that interferes with the office’s independence and undermines its impartiality.

To enhance the independence of the office, the Attorney-General’s Office should be separated from that of the Minister of Justice consistent with the recommendation of the Truth and Reconciliation Commission (TRC) and the Constitutional Review Commission (CRC).

As the TRC notes, ‘the Attorney General should be the Chief Law Officer of the state and should enjoy security of tenure of office.” In its final report, the TRC recommended that ‘the prosecuting authority must exercise its functions without fear, favour or prejudice.

The rule of law requires that prosecutions on behalf of the state be conducted fairly and reasonably. The decision to prosecute or not must not be motivated by improper and political considerations, but by the public interest and the need for justice.

The Attorney General acts as the “guardian of the public interest” and has extensive powers with regard to the initiation, prosecution and discontinuance of criminal proceedings.

The Attorney General must also provide legal advice on matters of public administration and government to the executive. Clearly, the Attorney General must exercise his or her functions impartially and be free from political influences.

While the Office of the Attorney General and that of the Ministry of Justice remains merged, the incumbent can never be expected to act independently.’

Nothing could be more dangerous to our democracy and bring greater disrepute to the administration of criminal justice than to see politics playing a dominant role in the handling of criminal prosecutions. In addition, the appointment of the Attorney-General must also be depoliticized.

Judicial Review

Subjecting prosecutorial discretion and the Attorney-General’s nolle prosequi power to judicial review could also be another reliable safeguard against abuse and even mistakes by the Attorney-General and the DPP.

Many ordinary citizens caught up in the criminal justice system, and who become victims of negligent or deliberate decisions by the Prosecution must be protected from abuse and deserve to seek redress in court to hold those responsible for the abuse and arbitrary exercise of their powers if they can prove that it was done in bad faith.

Vesting the courts with such power will serve not just the interests of the individual affected but also the public interest to ensure that cases are appropriately instituted and prosecuted. No one is and must be above the law.

The Attorney-General, the DPP and all other Prosecutors are no exception. The continuous lack of accountability for their actions or inactions must end if the office is to regain public trust and confidence in their impartiality. Shielding them from accountability and liability for abuse strikes at the very fundamental principle of equality under the law.

Adoption and Publication of Guidelines

Currently, the prosecutorial function by the office of the Attorney-General and Minister of Justice and other Law Officers and the Police is shrouded with secrecy lack of transparency and accountability.

We are, however, leaving in an era where secrecy in public affairs is no longer the vogue. Greater transparency and accountability are the order of the day. The adoption and publication of the rules and regulations that guide discretion will be a valuable step to render the exercise of prosecutorial discretion open transparent and accountable.

The UN Guidelines on the Role of Prosecutors provides that ‘In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency in taking decisions, including institution or waiver of prosecution.’ The current code of conduct for law officers must also be reviewed and brought in line with the UN Guidelines.

Conclusion

As the principal legal adviser to the Government, the Attorney General and Minister of Justice plays a critical role in ensuring impartiality and fairness of the administration of criminal justice. The UN Guidelines urges them to “perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” It is high time that the State stopped disregarding the plight of such victims of wrongful prosecution. (Photo: Basita Michael).

An important legal maxim is ‘Ubi jus, ibi remedium’ – where there is a right, there is a remedy. In other words, there is no wrong without a remedy. The State must provide compensation and rehabilitative measures for victims of wrongful or malicious prosecution.

Although the new Attorney-General and Minister of Justice has his work cut out for him, he should institute the constitutional, legal and institutional reforms needed to make this happen. Fīat jūstitia ruat cælum (Let justice be done though the heavens fall.)

About the author

Basita Michael is a practising Barrister-at-Law (LLM, BL) in Sierra Leone and the former President of the country’s Bar Association.