ACC publicity stunt may now prevent suspects from receiving fair trial?

Sabatu Blango: Sierra Leone Telegraph: 10 September 2019:

Corruption is the misuse of public office or position for private gains. It is one of the reasons identified by the Sierra Leone Truth and Reconciliation Commission (TRC) in its report, as the principal cause for the country’s eleven-year brutal rebel war.

It is responsible for the underdevelopment and entrenched poverty in Sierra Leone; hence the birth of the Anti-Corruption Commission (ACC) in 2000. The mandate of the ACC can be found in its short title of the Act, which reads:

‘Being an Act to provide for the establishment of an independent Anti- Corruption Commission for the prevention, investigation, prosecution and punishment of corruption and corrupt practices and to provide for other related matters’.

Without doubt, the mandate of the ACC is robust. But the events of yesterday, 9th September 2019, at the symbolic Cotton Tree where the ACC Boss, Francis Ben Kaifala, frogmarched suspects alleged to have been involved in exams malpractice with placards tied round their necks with inscriptions identifying them as suspects, has left the public in a frenzy of debate.

Most commentators on Social media, though supporting the fight against corruption, condemned the act of the ACC wholesale – a scene reminiscent of Roman conquerors marching their prisoners of war into slavery.

The ACC, it appears in seeking to justify its actions, has latched on to section 7 (1)(a) of the Anti-Corruption Act of 2008, like a sailor holding on to a helium balloon after his ship was overturned by a giant wave in shark infested waters.

Let us now examine the Human Rights argument of the public as against the much-flaunted mandate of the ACC under section 7(1)(a).

Human rights advocates have argued that parading those handcuffed suspects with placards tide round their necks to a shocked public, under the Cotton Tree which regularly rains down bombs of bat droppings, is a violation of their basic rights to human dignity as guaranteed under the 1991 Constitution. Section 20(1) of the 1991 Constitution provides that:

“No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading.”

The provision in Section 20(1) are almost identical to Article 5 of the African Charter on Human and Peoples Rights 1981 which reads:

“Every individual shall have the right to the respect of his human dignity inherent in human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

Sierra Leone is a signatory to the African Charter on Human and Peoples Rights and many other rights conventions, including the United Nations Convention on Human Rights which equally prohibit inhuman and degrading treatment.  So, the question for consideration here is whether the frogmarching, public display and shaming of persons suspected to have committed a corruption offence amounts to a punishment or treatment considered inhumane or degrading.

Rachel Schon in her article ‘what is Inhumane and Degrading Treatment’ (25th April 2017’, www.rightsinfo.org) when examining provisions of the European Convention on Human Rights 1951, defined inhuman and degrading treatment as:

“Treating other people as less than human beings; causing them fear, suffering and humiliation’… inhuman treatment causes intense physical and mental suffering. Degrading treatment arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. These are violations of human dignity.”

Going by this definition, it is evidently clear that the treatment to which these suspects were subjected to by the ACC has exposed them to shame, humiliation and in every respect, has the potential to break their mental and moral resistance; making them feel less than human.

Don’t forget the Cotton Tree has the symbolic value of the ‘village square’ where people assemble to witness important public events; and strategically located in front, is the law Courts Building and the drive to State House. They were strategically placed in a position where they were vulnerable to the bombing of bats droppings as there are several hundreds of bats nesting on that famous tree.

The ACC Commissioner – Francis Ben Kaifala was on Radio Democracy 98.1 this morning, defending his action by relying on section 7(1)(a) of the ACC Act 2008, which states that the object of the Commission is:

“To take all steps as may be necessary for the prevention, eradication or suppression of corruption and corrupt practices”.

The question is, does taking all necessary steps include treating suspects in inhuman and degrading treatment in breach of Constitutional and Rights Convention provisions to which the government, and by extension the ACC Commissioner – Francis Kaifala, is subject to?

If we accept this, then we are heading for a slippery slope, the slope where the next Commissioner will consider amputating limbs or beheading suspects, as necessary steps to curbing corruption.

Certainly, accepting this definition is wrong, not only for the slippery slope argument, but also because there are specific provisions within the ACC Act which prescribe how the ACC should deal with suspected cases of corruption. Section 7 (1) of the Act further provides that:

(b)  to investigate instances of alleged or suspected corruption referred to it by any person or authority or which has come to its attention, whether by complaint or otherwise;

(c) to investigate any matter that, in the opinion of the Commission, raises suspicion that any of the following has occurred or is about to occur –

(i)  conduct constituting corruption or an economic or related offence;
(ii)  conduct liable to allow, encourage or cause conduct constituting corruption or an economic or related offence; and

(d) to prosecute all offences committed under this Act.

It is evident that there is no provision in section 7 of the ACC Act 2008, that gives legal cover to the decision of the ACC Commissioner to parade those suspects in full glare of public ridicule.

Assuming without conceding that the misplaced interpretation of the section 7(1)(a) of the Act is correct, it can still not be lawful as it will be in breach of section 20 (1) of the 1991 Constitution and by section 171(1) of the 1991 Constitution, any law inconsistent with any part of the Constitution shall be declared null and void.  Section 171 (15) of the 1991 Constitution provides that:

‘This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect’.

The argument that the suspects consented to such treatment is neither here nor there; as a matter of public policy, one cannot consent to such human outrage and certainly, not to a violation of the Constitution.

The ACC has no legs to stand on in seeking to justify an outrageous act through a very and over stretched interpretation of its mandate.

The ACC, in seeking to execute its mandate has headed for the wrong direction of the law. The brazen violation of suspects’ rights by parading them in a public square – like a bear tied to a stake in front of baying mob, is certainly a new and dangerous direction in the fight against corruption.

And even more worrying is the very strong possibility now that, by parading the accused as guilty criminals before they are charged to court, yesterday’s action may well have jeopardised the chances of suspects receiving fair trial in the hands of a Jury in a court of law.

Has the ACC prejudiced its own case against the suspects?

Legal advisers of the suspects may now also be requesting an enquiry by the Human Rights Commission, who also agreed on Radio 98.1 this morning that the conduct of the ACC was wrong and unlawful, and is asking the ACC Commissioner to tender an apology.

Another point of law raised by yesterday’s conduct by the ACC is whether the suspects can be punished twice for the same crime, if they are found guilty by a court of law for exams malpractice.

Yesterday they were punished by public humiliation , shame and destruction of their emotional wellbeing and character.

The law says that no one shall be punished twice for the same crime. Has the ACC shot itself in the foot in its fight to stop corruption?