COUNTRY REVIEW OF LEGAL AND POLITICAL

CHALLENGES TO THE DOMESTICATION OF THE

ANTI-CORRUPTION CONVENTIONS IN SIERRA
LEONE

Sonkita Conteh
Barrister and Solicitor of the High Court of Sierra Leone

Freetown March 2006

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© 2007 Transparency International

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2
SUMMARY OF COUNTRY REVIEW

This work is a review of Sierra Leone’s legal and socio-political framework

and how well it can accommodate the Country’s international obligations
with reference to the fight against corruption as enshrined in the United
Nations Convention against Corruption and the African Union Convention
on Preventing and Combating Corruption. It starts of with a short
description of Sierra Leone’s political, economic and social development in
three phases namely pre-colonial, colonial and post colonial and looks at
Sierra Leone’s system of government and legal system. The Review
proceeds to consider the status of ratification in Sierra Leone by looking at
the relevant statute and case law. The main body of the Review is devoted
to a detailed analysis of the legal changes required to implement the said
Conventions in Sierra Leone. This is carried out firstly by highlighting legal
provisions dealing with corruption in Sierra Leone. The provisions of both
Conventions are then considered rounding off with a consideration of the
required changes to the laws of Sierra Leone for the Conventions to be
implemented. The Review then looks at practical obstacles to the
implementation process and concludes with recommendations.
Various themes emerge from this review. The major ones include the
structure of Sierra Leone’s Legal System, the issue of ratification within
the laws of Sierra Leone and domestic efforts against corruption.
The Review makes certain conclusions. First of these is that before the
signing of the Conventions, Sierra Leone had already taken steps in the
fight against corruption within its territory. Second, these steps were local
in nature and scope. The Conventions provide an opportunity to fight
against corruption in a concerted global manner. States Parties must be
fully committed to the fight against corruption.

3
SHORT DESCRIPTION OF SIERRA LEONE’S POLITICAL,
ECONOMIC AND SOCIAL DEVELOPMENT

Sierra Leone is a small country on the west coast of Africa, totaling 27,925
square miles (73326 sq. km) in area. It is bounded on the west and south- west
by the Atlantic Ocean and on the north-west, north and north- east by the
Republic of Guinea and on the east and south-east by the Republic of Liberia.1 It
has a population of about 5, 700,000 people 2 spread across four major
geographical zones namely, Northern, Southern, Eastern Provinces and Western
Area, which hosts the capital city. There are twelve districts in addition to the
capital city and as many languages and tribes.

Sierra Leone’s political, economic and social development could be divided into
three different phases namely, pre-colonial, colonial and post-colonial.

PRE-COLONIAL

Politically, pre-colonial political organization was on a tribal or ethnic basis. Each

ethnic group had its own unique system of government and control although
certain similarities existed among them. By the second half of the 19th century
these ethnic groups had created large states with highly developed political
systems. Traditional rulers were not autocratic as they, like the people they
governed were subject to the same law. No ruler could exempt himself from the
rules of customary law simply because he was King. 3 Subjects could appeal
against their King, who was bound to consult with his principal advisers or elders
before acting. For instance, the King could not declare war without first holding
talks with his advisers, who were free to air out their opinions. If they felt war was
unjust or the enemy was just too strong, they could withhold their support and
give orders for peace in spite of the King’s position on the issue.4

Economy of pre-colonial communities was either agro-based or marine-based

depending on the location. Coastal communities depended on fishing for their
livelihood whilst inland communities did farming and reared cattle. “Industrial
production” of salt, oil and soap was done on a small scale. They also learned to
mine and utilize gold and iron. Most of the gold was alluvial and was obtained by
panning. Some of this gold was used for the manufacture of jewelry and
ornaments. Carving and weaving also formed part of their economic activities.5

Basic social unit amongst these communities was the household. It comprised a
man, his wife or wives and children. Descent and inheritance was largely
patrilineal. In traditional law, women were treated as property. Consequently,

1
Joe A D Alie ‘A New History of Sierra Leone 1990, 1.
2
National Census 2004.
3
n 1 above 14.
4
n 3 above.
5
n 1 above 28.

4
they were never allowed to hold supreme political positions. Politics and
government were the business of men. Women could however become town and
village heads in certain ethnic groups.6

COLONIAL

On the 1st January 1808, what is now Freetown, the capital city of Sierra Leone
became a British Crown Colony. This was the culmination of a series of events
involving the then Sierra Leone Company which, in addition to trade and
investment was in charge of the territory. The system of direct rule was
established by the British, with the Governor at the helm of affairs, assisted by a
few white officials. No African was included in the administration of the colony.7
English law was applied in the colony.

By the mid 19th century, however, the inhabitants of the colony were becoming
anxious and determined to have a say in the government. This resulted in the
passage of the 1863 Constitution. It established two councils- the Executive
council and the Legislative council to replace the Governor’s Advisory council.
Sadly, for the inhabitants, there was no provision for popular representation. This
was to continue for some time.

In 1896, the British government declared the hinterland of Sierra Leone a

protectorate and established the system of indirect rule. This system made use of
existing traditional structures with colonial officials supervising. Thus within the
same country two distinct and separate systems of government were in
existence. Traces of this legacy still subsist today. Gradually, the colony and the
hinterland were united under one political system and popular representation
steadily gained momentum culminating in the 1961 independence constitution.

In discussing the economic and social development during the colonial era, two
points must be borne in mind. First, the British colonialists, (like their other
European counterparts) were not interested in promoting internal economic
development in their colonies. Their economic policy was guided by two main
factors: the desire to encourage the production and export of raw materials for
their home industries and the need to create in the colonies an ever expanding
market for British manufactured goods. It was the attempt to meet these two
demands-raw materials and markets- that largely dictated the nature and pace of
Sierra Leone’s economic development during the colonial era.8

Secondly, the colonial era in Sierra Leone began at different times for the two
parts of the dependency. For the colony this period started in the 1790s with the
advent of company administration which later gave way to British colonial rule in

6
n 1 above 21.
7
n 1 above 165.
8
n 3 above.

5
1808. Formal British rule in the hinterland commenced in 1896 when a
protectorate was declared.9

The natural harbor of the colony facilitated trade between the colony and Britain.
Import-export trade flourished through out the 19th century giving rise to a
prosperous trading and professional class among its krio inhabitants. These built
solid, well- furnished houses and gave their children quality education in mission
schools and in British universities. The colony by far out-paced the hinterland in
trade and infrastructure.

In 1908, a 355km railway line was built across the country connecting the colony
to Pendembu in the east. A branch line measuring 103 km was constructed in
1916 linking Bauya and Makeni. This was a cheap and efficient form of
transportation. One of its major effects was a boost in trade between the colony
and the hinterland and a general increase in export. Krio, European, Syrian and
Lebanese traders were quick to seize the opportunity of the railway to establish
branches in the hinterland.

Even with the railway, the protectorate could still not catch up with the colony in
terms of infrastructure and trade. During the colonial period there were also
developments in areas such as aviation, mining, banking and manufacturing
industry and education.

POST-COLONIAL

Sierra Leone achieved independence on 27th April 1961. In the following years
this achievement was affected by certain developments, namely, growing tension
between the political parties and among the major ethnic groups, corruption and
lavish display of wealth by the ruling elite, involvement of the military in politics
and moves towards republicanism and one- partyism.10

Arguably, the transition to self rule and the period afterwards saw a general
decline in almost every facet of Sierra Leone. There was very little infrastructural
addition. The railway folded up, export declined, popular representation became
almost non-existent and in 1978 Sierra Leone constitutionally became a one-
party State. For the next twenty years the country was to remain in this state, a
period characterized by bad governance, economic mismanagement and
pilfering of public funds, judicial interference and intimidation,

In 1990 a debilitating civil war that was to last for over a decade broke out. This
was the last straw that broke the camel’s back. Whatever little developments
there were, were swept away by the brutal war. Sierra Leone’s present position
in the UNDP Human Development index is not surprising (176th), but belies the

9
n 3 above.
10
n 6 above.

6
strides currently being made in areas such as governance, the rule of law, the
economy, judicial independence, and the fight against corruption.

In 1991, a legal and political milestone was achieved in the form of a new
constitution. The Constitution of Sierra Leone, 1991 (the Constitution)11 brought
the one-party state to an end and formally established Sierra Leone as a multi-
party democracy. This Constitution provides inter_alia, for the rule of law,
recognition and protection of fundamental human rights, political participation,
judicial independence and the establishment of the various arms of government
and agencies. It is the supreme law of Sierra Leone.12

OVERVIEW OF SIERRA LEONE’S SYSTEM OF GOVERNMENT

AND LEGAL SYSTEM

Section 5(1) of the Constitution provides as follows: “The Republic of Sierra

Leone shall be a State based on the principles of Freedom, Democracy and
Justice.” Accordingly, Section 5(2) declares that “(a) sovereignty belongs to the
people of Sierra Leone from whom the Government through this Constitution
derives all its powers, authority and legitimacy;(b) the security, peace and welfare
of the people of Sierra Leone shall be the primary purpose and responsibility of
Government, and to this end it shall be the duty of the Armed Forces, the Police,
Public Officers and all security agents to protect and safe guard the people of
Sierra Leone; and (c) the participation of the people in the governance of the
State shall be ensured in accordance with the provisions of this Constitution.” It is
clear from the above quote that Sierra Leone is a Constitutional democracy, at
least in theory.

The system of government can best be described as a hybrid of Parliamentary

and Presidential systems.13 The doctrine of separation of powers and checks and
balances is clearly discernible. There is however some overlap to provide against
strict rigidity and its consequences and to foster cooperation amongst the various
arms of government.

Section 105 of the Constitution establishes the Legislature. It provides that,

“Subject to the provisions of this Constitution, Parliament shall be the supreme
legislative authority for Sierra Leone.” Section 106(1) provides that “the power of
Parliament to make laws shall be exercised by Bills passed by Parliament and
signed by the President.” Parliament may make laws for the peace, security,
order and good government of Sierra Leone.14

11
Act No 6, 1991.
12
n 11 above, sec 171(15).
13
It is sometimes also referred to as a quasi presidential system.
14
n 11 above, sec 73(3).

7
Public officers, including officers of the Judiciary, members of the armed forces
or employees of Public Corporations cannot, while they are such, become
members of Parliament.

By virtue of section 53(1) of the Constitution, executive power in Sierra Leone is

vested in the President and may be exercised by him directly or indirectly through
members of the Cabinet, Ministers or their deputies or public officers. The
proviso to section 56(1) of the Constitution declares that, “…no Member of
Parliament shall be appointed a Minister or Deputy Minister.”

The Judicial power of Sierra Leone is vested in the Judiciary which is headed by
the Chief Justice.15 This organ has power to hear and determine all civil and
criminal matters, including matters relating to the Constitution and such others as
Parliament may confer power upon it.

SIERRA LEONE’S LEGAL SYSTEM

LAWS OF SIERRA LEONE

According to section 170(1) of the Constitution, the laws of Sierra Leone shall
comprise-(a) this Constitution; (b laws made by or under the authority of
Parliament as established by this Constitution; (c) any orders, rules, regulations
and other statutory instruments made by any person or authority pursuant to a
power conferred in that behalf by this Constitution or any other law; (d) the
existing law; and (e) the common law.

The common law as stated in the above section is by definition wider than the
common law as is generally known. The common law of Sierra Leone is made up
of “the rules of law generally known as the common law, the rules of law
generally known as the doctrines of equity and the rules of customary law….”16

JUDICIAL STRUCTURE

The Constitution vests the judicial power of Sierra Leone in the Judiciary as an
independent third arm of government. It can hear and determine both civil and
criminal matters, matters relating to the Constitution and such other matters as
Parliament may determine.
Most importantly, the Judiciary is not subject to the control or direction of any
person or authority, it is subject only to the Constitution.

The Judiciary of Sierra Leone is pyramidal in structure. It consists of the

Supreme Court of Sierra Leone, the Court of Appeal and the High Court of

15
n 11 above, sec 120(1).
16
n 11 above, sec 170(2).

8
Justice which are superior courts of record and constitute one Superior Court of
Judicature and such other inferior and traditional courts as Parliament may
establish.17

SUPREME COURT

The Supreme Court consists of the Chief Justice, not less than four other
Justices and such other Justices of the Superior Court or of Superior Courts in
countries with laws analogous to Sierra Leone as the Chief Justice may
determine.

The Supreme Court is the final court of appeal in and for Sierra Leone and
though it may depart from its previous decisions, all other courts below it are
bound to follow its decisions on points of law. It has original jurisdiction to the
exclusion of all other courts in all matters relating to the enforcement and
interpretation of the Constitution and in determining whether a law made by
Parliament or a person or authority is “ultra vires” the Constitution.

The Supreme Court also has supervisory jurisdiction over all other courts and
adjudicating authorities in Sierra Leone and in this respect can issue directions,
orders and writs to such bodies. These orders or writs may include writs of
habeas corpus, orders of certiorari, mandamus, and prohibition.18

COURT OF APPEAL

The Court of Appeal comprises the Chief Justice, not less than seven Justices
and such other Justices of the Superior Court as the Chief Justice may request to
sit in the Court of Appeal.

The Court of Appeal has power to hear and determine appeals from any
judgment decree or order of the High Court or a Justice. This court is bound by
its own previous decisions and all other courts below it are bound to follow its
decision.

HIGH COURT

The High Court of Sierra Leone is constituted by the Chief Justice, not less than
nine High Court Judges and such other Justices of the Superior Court as the
Chief Justice may determine. This Court has power to hear and determine civil
and criminal matters. It has both original and appellate jurisdiction and can also
hear and determine any matter relating to industrial and labour disputes and
administrative complaints.19

17
n 11 above, sec 120(4).
18
n 11 above, sec 125.
19
n 11 above, sec 132(2).

9
The High Court has supervisory jurisdiction over all inferior and traditional courts
and any adjudicating authority in Sierra Leone and can issue directions, writs and
orders in exercise of this power.

All other courts below the High Court are referred to as “inferior courts” and are
established by Acts of Parliament. These courts comprise the Magistrates’
Courts, which exist throughout Sierra Leone in every judicial district, and the
Local Courts, the traditional courts operating in various communities in the
provinces, administering customary law.

STATUS OF RATIFICATION IN SIERRA LEONE

One of the Constitutional functions of the President of the Republic of Sierra

Leone is “the execution of treaties, agreements or conventions in the name of
Sierra Leone.” 20 This function is however qualified by a proviso which reads
“Provided that any Treaty, Agreement, or Convention executed by or under the
authority of the President which relates to any matter within the legislative
competence of Parliament, or which in any way alters the law of Sierra Leone or
imposes any charge on, or authorizes any expenditure out of the Consolidated
fund or any other fund of Sierra Leone, and any declaration of war made by the
President shall be subject to ratification by Parliament- (i) by an enactment of
Parliament; or (ii) by a resolution supported by
the votes of not less than one-half of the Members of Parliament.”21

In the case of Issa Hassan Sesay aka Issa Sesay and Others v The President of
the Special Court and Others, 22 the Supreme Court of Sierra Leone interalia
interpreted the above section and its proviso. Delivering the Judgment, the
Honourable Chief Justice said,

What then is the legal meaning of this provision? To fully appreciate the
legal meaning of the provision in section 40(4) of the Constitution the section
should be read as a whole. The section establishes the office of the President of
Sierra Leone as interalia the supreme executive authority in the country. The
section then goes on to outline some of the powers vested in the President in his
capacity as such executive leader. The provision then lays down certain
limitations on the manner of exercise of the executive power where the action
taken involves the execution of treaties, agreements and convention in the name
of Sierra Leone. The limitation on the exercise by the President of the executive
powers listed in the main provision of section 40(4) consists in the requirement to
have the action taken by the President ratified by Parliament if the treaty,
agreement or convention relates to:-

20
n 11 above, sec 40(4)(d).
21
n 11 above, proviso to sec 40(4).
22
SC No 1/2003 unreported. Judgment delivered on 14 October 2005.

10
 a. any matter within the legislative competence of parliament;
b. any matter which in any way alters the laws of Sierra Leone;
c. any matter which imposes any charge on; or authorizes any
expenditure out of the Consolidated Fund or any other fund in Sierra
Leone; and
d. the declaration of war by the President.

The process of ratification by Parliament involves the enactment of a

ratification statute (as happened in this case) or the passing of resolution
supported by the votes of not less than one-half of the members of Parliament.

The question that arises for determination flowing from the legal meaning
I have ascribed to the provision in section 40(4) is whether the procedure for
ratification is to be read subject to the provisions of section 108(3) to 108(6)
inclusive of the Constitution.
Counsel for the Plaintiffs contend that where treaty, agreement or
convention executed by the President in any way alters the law of Sierra Leone,
and more particularly where the law that is altered happens to be one of the so-
called entrenched clauses listed in section 108(3) of the Constitution then the
procedure for ratification laid down in section 40(4) should be read subject to the
provisions of section 108(3) to 108(6) inclusive.

On the other hand, the learned Attorney-General submitted that there is

no such requirement to be gleaned from the provision of section 40(4). He
contends that as long as one or other of the procedures for obtaining
Parliament’s ratification laid down in the proviso to section 40(4) is followed there
is nothing more to be done.

With the greatest respect to Counsel for the Plaintiffs, I cannot accept this
contention for several reasons. First, there is nothing in the wording of the main
provision of section 40(4) of the Constitution or in the proviso thereto which
suggests that either is to be read subject to section 108.

Secondly, section 108(3) deals with a bill for an Act of Parliament

enacting a new Constitution or altering certain provisions of the Constitution. In
the case of the ratification envisaged by the proviso to section 40(4) of the
Constitution there is no such restriction. The ratification envisaged could be done
either by means of an enactment or by means of a simple resolution.

Thirdly, where ratification is done by means of a resolution it is expressly

stated in the provision that what is required for the resolution to be deemed
validly passed. All that is needed is the vote of not less than one-half of the
members of Parliament. This is in stark contrast to the provision of section
108(2)(b) which requires a bill for an Act of Parliament under this section of the
Constitution to be supported on the second and third reading by the votes of not
less than two-thirds of the Members of Parliament.

11
 For all the above reasons, I hold that for the purposes of ratification
required under the provision of section 40(4) of the Constitution an enactment
referred to in the said provision is to be deemed duly passed if it complies with
the mode of exercising legislative power set out in section 106 of the Constitution
rather than that laid down in section 108(3) to (6) inclusive.

The procedure for exercising legislative power laid down in section 106 of the
Constitution is the usual procedure for the passage of an ordinary bill into law. It
starts with the drafting of the bill and ends with the Presidential signature/assent.
The procedure laid down in section 108 is special as it deals with bills enacting a
new Constitution or altering certain provisions of the Constitution referred to as
entrenched clauses. Under this procedure there is a requirement for the conduct
of a referendum.

Thus, the process of ratification of a treaty, agreement or convention under the

1991 Constitution is by either the ordinary process of enactment or by resolution
of not less than half of the members of Parliament.

12
PART I:
LEGISLATIVE CHANGES NEEDED TO IMPLEMENT THE
CONVENTIONS

In the year 2000, Sierra Leone’s Parliament passed the Anti-Corruption Act 2000
(the Act) “to provide for the prevention of corrupt practices and for related
matters.”23
The Act for the first time in the country’s history established “a body to be known
as the Anti-Corruption Commission….”24

The Act provides that the Commission shall consist of 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 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.”25

The raison d’etre of the Commission is 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 and to take such steps as may
be necessary for the eradication or suppression of corrupt practices.”26

In addition to the above, the Commission can examine practices and procedures
of Government Ministries, departments and public bodies, determine whether
such practices or procedures may lead to corrupt practices and advise the heads
of such bodies to ensure the revision of such practices and procedures.27

Another function of the Commission is to educate the public against the evils of
corruption and to enlist and foster public support in combating corruption.

The Commission may decide not to conduct an investigation into any complaint
of corruption if it thinks that the complaint is frivolous or vexatious or investigation
would be unnecessary or pointless.

Apart from establishing the Anti-Corruption Commission, the Act also lays down
practices that are regarded as corrupt and hence, offences against the Act
punishable by fine or imprisonment. Part IV of the Act headed “Corrupt Practices”
creates a number of offences.

Section 7(1) creates the offence of corrupt acquisition of wealth. A public officer
who is found to be in possession or control of any resources or property or has
received the benefit of any advantage which he is reasonably suspected of

23
Act no 1, 2000.
24
n 23 above, sec 2(1).
25
n 23 above, sec 2(3).
26
n 23 above, sec 5(1).
27
n 23 above, sec 5(2)(c)&(d).

13
having acquired or received corruptly is guilty of this offence, and on conviction
liable to be sentenced in accordance with section 40, to a term of imprisonment
not exceeding seven years. In addition to the punishment, he shall pay twice the
amount or value of the resources or property acquired or advantage received to
the Accountant-General. Such sum is to be regarded as a debt due to the
Government from the person convicted.

By section 8(1) any public officer who solicits or accepts any advantage as an
inducement or reward for performing or abstaining from performing or having
performed or abstained from performing any act in his capacity as a public
servant or expedites, delays, hinders or prevent, or having expedited delayed or
hindered or prevented the performance of an act by himself or any other public
officer in his capacity as a public officer or assists, favors, hinders or delays, or
having assisted, favored, hindered or delayed any person in transacting any
business with a public body is guilty of an offence punishable by a fine not
exceeding one million leones or imprisonment for a term not exceeding one year
or to both.

It is instructive to note that a public officer who solicits or accepts an advantage

with the special or general permission of the President does not commit an
offence.28 The President is deemed to have given his general permission in the
case of gifts of a customary nature accepted by Paramount Chiefs.29

Any person in Sierra Leone or elsewhere who offers an advantage to a public

officer as an inducement or reward for that officer giving assistance or using
influence or having given assistance or used influence in promoting, executing,
or procuring any contract or subcontract with a public body for the provision of
any service, supplying any material or substance or the doing of any thing or the
payment of the price, consideration or money stipulated or provided for in any
contract or subcontract is guilty of an offence. In like manner, any public officer
who solicits or accepts such an advantage as an inducement is guilty of an
offence.30

Section 10 creates the offence of corrupting public officer. Any person who,
whiles dealing with a public body, gives an advantage to a public officer or any
other person to influence any public officer or any other person to influence any
public officer is guilty of an offence.

Any person who solicits or accepts any advantage for and on behalf of a public
officer is guilty of an offence.31

28
n 23 above, sec 8(2).
29
n 23 above, sec 8(3).
30
n 23 above, sec 9.
31
n 23 above, sec 11.

14
Section 12(1) creates the offence of misappropriation of public funds. Any person
who misappropriates public revenue, public funds or property is guilty of an
offence. “A person misappropriates public funds or property if he willfully commits
an act, whether by himself, with or through another person, by which the
Government, a public corporation or a local authority is deprived of any revenue,
funds or other financial interest or property belonging or due to the Government,
the public corporation or local authority.”32

It is also an offence for a person who being a member, officer or person involved
in the management of any organization which is a public body dishonestly
appropriates anything, which has been donated to such body in the name, or for
the benefit of the people of Sierra Leone or a section.33

According to section 14 a public officer who impedes foreign investment by

knowingly performing or abstaining from performing any act as a public officer or
expedites, delays, hinders or prevent the performance of any act by himself or
another public officer or assists, favours, hinders or delay any person in the
transaction of any business with a public body so that a non-citizen investor or
potential investor is coerced, compelled or induced to abandon his investment or
prevented from proceeding with his initial investment to the advantage of any
other person is guilty of corruption and liable on conviction to a fine not
exceeding Thirty Million Leones or to imprisonment for a term not exceeding ten
years or to both.

An agent who without lawful authority or reasonable excuse solicits or accepts

any advantage as an inducement or reward for performing or abstaining from
performing or having performed or abstained from performing any act relating to
his principal’s affairs or business is guilty of an offence.34 For the purposes of this
offence “agent” includes a public officer and any person employed by or acting
for another and “principal” includes an employer.

The Act, in addition to creating offences also confers powers of investigation on

the Commission. For the purposes of investigation, the Commission enjoys the
powers, right and privileges of the High Court in respect of enforcing witness
attendance, compelling the production of documents and to request the
examination of witnesses abroad. 35 In the exercise of such power, the
Commission may inspect and investigate any account or company book, require
the production of any account, books, documents or other articles relating to the
investigation and the disclosure of any relevant information. It is an offence under
the Act for a person to fail to produce any of such documents when so required
by the Commission or to obstruct an investigating officer of the Commission.

32
n 23 above, sec 12(2).
33
n 23 above, sec 13.
34
n 23 above, sec 15.
35
n 23 above, sec 16(1).

15
The Commission may in the course of investigations, by writing request any
person who, is being investigated, related to a person being investigated or is
suspected to have had business or other dealings with a person under
investigation to furnish the investigating officer with a declaration or statement of
any real or personal property belonging to or in the possession of such person,
his agents or trustees, as the case may be, all expenditure of such person, for
himself and family during any period, all liabilities of such person, his agents or
trustees, all income earned and tax paid, during a specified period, all moneys
and other personality kept in his home and all moneys or other personal property
sent abroad by him or on his behalf.36
The Commission may request a head of Government Ministry, department, office
or establishment or person in charge of any statutory or public body to produce,
in spite of any law to the contrary any document or copy of such document under
his control.37 The Commission may also apply to the High Court (ex parte) for an
order to be served on any officer of a bank to produce any bankers books, safe
deposit boxes, copies of bank accounts or documents relating to a person under
investigation or his family members regarding business or other transactions with
the bank.38

By virtue of section 22 of the Act, the Commission may direct any person under
investigation not to dispose of deal with any property specified by the
Commission without its consent in writing. Such property may include moneys in
any bank account. Any person who violates such directive commits an offence
and on conviction liable to a fine not exceeding thirty million leones or
imprisonment for a term not exceeding five years or both. The Commission may
also apply to the High Court for an order in similar terms to be served on a third
party.

Section 28 confers on the Commission the power to arrest any person without
warrant upon reasonable suspicion of his having committed or being about to
commit an offence under this Act.
The Commission may take photographs, finger prints and weight and height
measurements of any person arrested under section 28 of the Act.39

Where the Commission suspects that there is evidence of the commission of an

offence under this Act in any place or premises which is not a residential
property, the Commission may issue a warrant to enter and search such
premises by force if necessary.40

Part VI of the Act deals with prosecution of offences. Section 36 provides for the
Commissioner to, at the end of an investigation, send a report to the Attorney-

36
n 23 above, sec 17.
37
n 23 above, sec 19.
38
n 23 above, sec 19(2).
39
n 23 above, sec 30.
40
n 23 above, sec 33.

16
General and Minister of Justice of his findings, who may consider whether or not
to institute criminal proceedings. If after considering such report the Attorney-
General and Minister of Justice decides that there are sufficient grounds to
prosecute the public officer concerned he shall do so in the High Court or
Magistrates’ Court.41 No prosecution shall be instituted under this Act without the
written consent of the Attorney-General and Minister of Justice, except where he
himself institutes it.42 The trial of any offence under this Act has priority of hearing
over any other offence except treason, murder or other capital offences.

Section 42 of the Act provides for the protection of the identity of informers.

In the performance of its functions, the Commission is not subject to the direction
or control of any person or authority except as provided in the Act43 and by virtue
of section 4(2) the Commissioner “shall account to the people of Sierra Leone for
the conduct of the national campaign against corruption.”

A brief juxtaposition of the United Nations Convention against Corruption and or

the African Union Convention on Preventing and Combating Corruption with the
Anti-Corruption Act 2000 will reveal a glaring disparity in scope and object. Both
Conventions treat corruption as a global malaise and seek to galvanize
international action and cooperation against it. The Act though is Sierra Leone’s
individual effort to tackle an endemic domestic problem which was and still
remains a real threat to its economic prosperity. This very basic difference
underscores the need for domestication of the Conventions if Sierra Leone is to
benefit from their detailed and distinctively global provisions. Such an act would
necessitate the passage of a ratification Act which in my view should incorporate
the provisions of both Conventions as they are similar in their object although
they call for international cooperation at different levels.
To determine the legal or administrative changes that might be necessary to fully
incorporate the provisions of the conventions into its municipal law, it is
instructive to first search out these provisions and the scope of their obligations
and secondly, consider whether the Anti-Corruption Act 2000 or any other law in
Sierra Leone already provide for such obligations. If there are no such provisions
in the Laws of Sierra Leone then the extent of the changes needed to
synchronize the country’s domestic laws with the Conventions would be
highlighted.

THE UNITED NATIONS CONVENTION AGAINST CORRUPTION44

This Convention has seventy-one articles (excluding its preamble) grouped into
eight chapters. Each chapter deals with a range of related issues.

41
n 23 above, sec 37.
42
n 23 above, sec 48(1).
43
n 23 above, sec 53.
44
Adopted in Merida, Mexico in Dec 2003. It was signed by Sierra Leone on 9 Dec 2003 and
ratified on 30 Sept 2004.

17
The preamble explains the serious concerns of the International community
about, and its determination to deal with, the issue of corruption which has
transcended borders and evolved into “a transnational phenomenon that affects
all societies and economies….”

Chapter I (article 1to 4) deals with four issues namely, statement of the purpose
or object of the Convention, definition of key terms used in the Convention, the
scope of application of the Convention and the maintenance and or protection of
the Sovereignty of the parties.
The Convention aims “to promote and strengthen” effective preventive and
combative measures against corruption, galvanize international cooperation in
the fight against corruption and to promote honesty and openness in the handling
of public property or affairs.

Chapter II spans from article 5 to 14 and contains measures necessary to deter

corrupt practices in the domain of State Party.

Article 5 urges the development and maintenance of an effective and coordinated

anti-corruption policy in each State. This policy should have respect for the rule
of law, promote public participation and reflect best practices in the management
of public affairs and property, engender transparency, integrity and
accountability. It also urges collaboration of States inter se and with other
pertinent international and regional organs to ensure effective and uniform
practices aimed at preventing corruption.

Article 6 most importantly calls for the establishment by States of an independent

body or bodies responsible for preventing corruption. Such entity or entities
would have the duty of implementing, overseeing and coordinating the anti-
corruption policy referred to in article and increasing public awareness of
corruption and the ways in which it can be prevented.

In article 7, the Convention calls for the adoption and maintenance, in

accordance with their respective legal systems, of sound recruitment and
promotion and retirement framework of civil servants and non-elected public
officials. This frame work should be transparent and efficient and based on merit,
fairness and aptitude. It should provide for the selection and training of persons
for public positions which are by their nature susceptible to corruption and the
rotation of such persons. It should also promote adequate remuneration and fair
pay scales taking into cognizance the economic development of the State. There
must also be continuous education and training programmes to bring them up to
par with the job requirements and enhance their awareness of the risk of
corruption inherent in the performance of their duties.

18
The article also urges appropriate legislative or administrative action to establish
criteria regarding candidature for and election to public office, funding for such
candidature and generally and appropriately funding political parties.

Article 8 calls for the establishment and application of Codes of conduct for public
officials to ensure proper, correct and honorable performance of their public
functions in each State party. This would include measures to discipline public
officials who violate the Code of conduct. It urges where appropriate reference to
the International Code of Conduct for Public Officials. The article also calls for the
setting up of complaints mechanisms whereby public officials could report acts of
corruption that come to their notice.

Again, the article urges the development of measures that require public officials
to make declarations, where appropriate, of their assets, liabilities, investments,
etc.

Article 9 deals with public procurement and management of public finances. It

urges States parties to inter alia establish appropriate systems of procurement
based on transparency, competition and objectivity in decision making, effective
in preventing corruption, distribute information regarding procurement procedures
and contracts to the public.

In article 10, the need to report to the public on matters that touch and concern
them is underscored. Periodic publications on the risk of corruption in public
administration, among others are desirable.

Article 11 concerns measures relating to the Judiciary and prosecution services

in each State Party. It urges States Parties to take such measures as are
necessary to strengthen judicial integrity and to prevent opportunities for
corruption among its members, without prejudice to judicial independence. The
same is also urged for the prosecution service where it does not form part of the
judicial service.

States Parties are also obliged by virtue of article 12 to take measures to prevent
corruption within the private sector, to enhance best practices in accounting and
auditing standards and to provide effective remedies for noncompliance.

Article 13 calls for the effective inclusion of all sectors of the public in the
prevention of and fight against corruption and to raise public awareness of the
cause, gravity and threat posed by corruption.

In article 13, States Parties are urged to take measures to prevent money-
laundering. These may include a comprehensive domestic regulatory and
supervisory regime for banks and non-bank financial institutions.

19
Chapter III (article 15 to 42) headed criminalization and law enforcement deals
with a wide range of corrupt practices that should be criminalized by States
parties.

Article 15 deals with bribery of national public officials. It provides that States
parties should adopt legislative and other measures to criminalize the promise,
offering or giving of an undue advantage to a public official in order that he acts
or refrains from acting in his official capacity as well as the solicitation or
acceptance of such undue advantage by the public official.

Article 16 deals with bribery of foreign public officials and officials of public
international organizations. It urges States Parties to establish as a criminal
offence the intentional promise, offering or giving to such officials an undue
advantage for himself, or others in order that the official acts or refrains from
acting in his official capacity in order to obtain or retain business or other undue
advantage in relation to international business. Conversely, the intentional
solicitation or acceptance of such undue advantage by a foreign public official or
an official of a public international organization should also be criminalized.

Article 17 creates the offence of embezzlement, misappropriation or other

diversion of property by a public official.

Article 18 urges the criminalization of the trade in influence by public officials.

This includes the promise, offering or giving of undue advantage to the public
official for this purpose and the solicitation or acceptance by such public official of
such advantage.

In article 19 States are urged to criminalize the intentional abuse of functions or

position by public officials for the purpose of obtaining an undue advantage.

Article 20 urges the criminalization of intentional illicit enrichment by public

officials. It describes illicit enrichment as a significant increase in the assets of a
public official which cannot be explained in relation to his or her lawful
remuneration.

Article 21 is novel in the sense that it extends the offence of bribery to the private
sector.

Article 22 deals with the offence of embezzlement in the private sector.

In article 23, the Convention urges States to criminalize the laundering of

proceeds of crime. It provides inter alia that when committed with intent, the
conversion or transfer of property which proceeds from the commission of a
crime, with the object of concealing its illegal origin or any assistance rendered
pursuant to this objective should be a criminal offence.

20
Article 24 creates the offence of concealment “ex post facto”.

Article 25 calls on States to criminalize obstruction of justice by the use of

physical force, threats, etc, to induce false testimony or interfere in any way with
the giving of testimony or production of evidence in relation to an offence
established under the Convention.

In article 26 the Convention urges parties to make provisions in their laws

establishing the criminal, civil or administrative liability of juridical or non-natural
persons, without prejudice to the liability of the biological persons who may have
committed it.

Article 27 urges parties to establishment as offences, participation in the

commission of an offence under this Act

Article 28 describes how the mental element of an offence under this Act may be
proved.

States are urged in article 29 to either establish a longer limitation period or

suspend the application of their Limitation Acts in relation to offences established
under the Convention.

Article 30 deals in some length with the prosecution adjudication and sanctioning
of offences established under the Convention. It covers issues like bail, exercise
of discretion to parole or pardon offenders and disqualification orders.

The Convention provides in article 31 for parties to take measures that would
empower them to freeze, seize or confiscate property which is the proceeds of an
offence created by the Convention. The said article also deals with how such
property could be traced.

Articles 32 and 33 deal with the establishment by States of a mechanism for the
protection of witnesses, experts, victims and persons who report any fact relating
to the commission of an offence established under this Convention.

Article 34 urges States to consider corruption a germane factor in legal

proceedings in determining whether to annul or rescind a contract or apply any
other remedy.

Article 35 calls on parties to provide for the payment of compensation to victims

of corruption, by those responsible for the commission of such corrupt practices.

States are urged in article 36 to establish an independent body or bodies capable

of combating corruption through the enforcement of the law.

21
Article 37 provides that States should encourage persons who participate or have
participated in the Commission of offences under the Convention to provide
information that would lead to the recovery of proceeds of crime in exchange for
some sort of plea bargaining arrangement. In addition, it urges States to consider
non-prosecution of persons who cooperate substantially with the authorities in
the investigation or prosecution of offences under the Convention.

States are encouraged to foster cooperation between public authorities and

officials on the one hand and authorities responsible for investigating and
prosecuting criminal offences in article 38 on the other.

Article 39 calls on Parties to take measures that would encourage cooperation

between national investigating and prosecuting authorities and institutions of the
private sector, especially financial institutions on matters relating to the
commission of offences under the Convention. Further, it urges States Parties to
encourage their nationals and other persons ordinarily resident in their territories
to report to such investigating and prosecuting authorities the commission of
offences established by this Convention.

In article 40 States are urged to ensure that there are mechanisms within their
domestic legal systems capable of overcoming obstacles created by banking
secrecy laws.

Article 41 urges the adoption of legislative or other measures to allow for the use
in proceedings relating to an offence under this Convention, any previous
conviction of an alleged offender in another State.

States Parties are obliged in article 42 to establish jurisdiction over offences

established under this Convention when committed within their territories or on
board a vessel flying their flag or an aircraft registered under their laws at the
time of commission of the offence. In addition, they should establish jurisdiction
when the offence is committed against their nationals or by their nationals or a
stateless person ordinarily resident in their territory.

Chapter IV (articles 43 to 50) headed International cooperation provides the

basis and mechanism for inter-state collaboration.

Article 43 obliges States Parties to inter alia cooperate with each other in criminal
matters and urges mutual assistance in investigations of and proceedings in
matters relating to corruption.
Article 44 deals in extenso with the issue of extradition of persons who are the
subject of an investigation or prosecution for offences established under this
Convention. In the absence of an extradition treaty between and or amongst
States and where this is a fundamental requirement, the said article seeks to
make this Convention the legal basis for cooperation on extradition.

22
In article 45 States Parties are urged to conclude bilateral or multilateral
arrangements relating to the transfer of sentenced persons.

Article 46 calls for greater international cooperation in relation to legal assistance.

This article, which is the most detailed in the Convention, obliges States Parties
to afford each other “the widest measure of mutual legal assistance in
investigations, prosecutions and judicial proceedings in relation to the offences
covered by this Convention.” It provides the basis and mechanism for such
extensive cooperation. The areas for assistance include, but are not limited to,
the taking of evidence or statements from persons, service of judicial documents,
execution of searches and seizures, freezing of assets, identifying, freezing and
tracing proceeds of crime, recovery of assets, etc.

Article 47 urges States to consider transferring criminal proceedings from one to

another where it is in the interest of proper administration of justice.

Article 48 provides for close cooperation among States to enhance effective law
enforcement action to combat offences covered by this Convention.

States parties are obliged by virtue of article 49 to consider concluding bilateral

or multilateral arrangements establishing joint investigative bodies or at least by
agreement undertake joint investigations on a case by case basis.

In article 50, States are encouraged to use special investigative techniques such
as controlled delivery, electronic and other forms of surveillance within their
territory and to allow for the admissibility in court of any evidence derived from
such investigation. It also calls for international cooperation in this area.

Chapter V (articles 51 to 59) deals with asset recovery.

Article 51 establishes return of assets as a fundamental principle of the

Convention and calls on States Parties to afford one another the widest measure
of cooperation and assistance in this regard.

In article 52 States are urged to take measures that would require financial
institutions within their jurisdiction to inter alia verify the identity of customers,
beneficial owners of funds deposited with them, increase scrutiny of accounts
operated by or on behalf of persons entrusted with prominent public functions,
etc, to enable the detection of suspicious transactions.

Article 53 deals with measures for the direct recovery of property. It urges States
to take measures that would permit other States to initiate civil action within their
jurisdiction for the purpose of determining ownership of property acquired
through the commission of an offence covered by this Convention.

23
Article 54 provides the mechanism for the recovery of property acquired through
or involved in the commission of an offence under this Convention, through
international cooperation.

Article 55 provides the basis and mechanism for international cooperation for the
purpose of confiscation of proceeds of crime, property, equipment or other
instrumentalities.

Article 56 calls for the free exchange of information on proceeds of offences by

States Parties.

In article 57 the mechanism for the disposal of confiscated property, including

returning it to its previous legal owner, by States parties is laid down.

Article 58 urges States to cooperate in preventing and combating the transfer of

proceeds of offences and provides for the establishment by States Parties of a
financial intelligence unit responsible for receiving, analyzing and disseminating
reports of suspicious financial transactions.

States are urged in article 59 to conclude agreements to enhance the

effectiveness of international cooperation.

Chapter VI (articles 60 to 62) deals with mutual technical assistance and

information exchange by States Parties.

Chapter VII (article 63 to 64) establishes a Conference of States Parties to

improve the capacity of and cooperation between States to achieve the
objectives of this Convention and to promote and review its implementation.

Chapter VIII (articles 65 to 71) contains the final provisions of the Convention. It
deals with issues such as implementation of the Convention, settlement of
disputes among States Parties, signature, ratification, acceptance, etc of the
Convention, entry into force, amendment and denunciation of the Convention.

AFRICAN UNION CONVENTION ON PREVENTING AND

COMBATTING CORRUPTION45

There are twenty eight articles in this Convention. Its preamble reveals the
perspective of the members of the AU to corruption. It comes out clearly that
corruption undermines accountability and transparency in the management of
public affairs as well as socio economic development on the continent. States
Parties are concerned about the negative effect of corruption and impunity on the
political, economic, social and cultural stability of African States and its

45
Adopted in Maputo on 11 July 2003.

24
devastating effects on the economic and social development of African people.
This precipitated the “setting up of a coordinated mechanism to combat
corruption effectively.”

Article 1 contains the definitions of certain key terms used in the Convention.

Article 2 states the objectives of the Convention which include inter_alia, to

promote and strengthen the development in Africa by each State Party, of
mechanisms required to prevent, detect, punish and eradicate corruption and
related offences in the public and private sectors, to promote, facilitate and
regulate cooperation among State Parties to ensure the effectiveness of
measures and actions to prevent, detect, punish and eradicate corruption and
related offences in Africa.

In article 3, the abiding principles of the Convention are laid down. These include
respect for democratic principles and institutions, popular participation, the rule of
law and good governance.

Article 4 establishes offences of corruption proscribed by this Convention. These

range from the solicitation or acceptance of an advantage or the offering or
granting of an advantage to the participation after the fact in any of the acts
prohibited.

In article 5 States Parties undertake inter alia to adopt the necessary legislative,
administrative or other measures to establish as offences the acts mentioned in
article 4.

Article 6 deals with the laundering of proceeds of corruption and urges States
Parties to establish this as a criminal offence under their laws.

Article 7 headed “fight against corruption and related offences in the public
service” urges States Parties to inter alia, require their public officials to declare
their assets before, during and after their term of office, establish a code of
conduct and monitor its implementation, and sensitize and train public officials on
matters of ethics.

Article 8 deals with illicit enrichment and urges States Parties to establish this as
a criminal offence under their laws.

In article 9 States Parties are encouraged to give effect to the right of access to
information required to fight against corruption.

Article 10 deals with funding of political parties. It urges States Parties to declare
unlawful the use of funds acquired through illegal and corrupt practices to finance
political parties and include transparency in the funding of political parties.

25
In article 11 States Parties undertake inter alia to prevent and combat acts of
corruption in the private sector.

States Parties undertake in article 12 to fight corruption fully, popularize this

Convention and allow full participation of the Media and Civil Society.

Article 13 determines when a State Party has jurisdiction over acts of corruption.

Article 14 guarantees the right of a fair trial in the prosecution of an alleged

offender.

The issue of extradition is dealt with in article 15. Most importantly, it provides
that where extradition is predicated on the existence of a treaty between the
relevant States, in the absence of such treaty, this Convention shall form the
legal basis for extradition of offenders against the offences established by this
Convention.

Article 16 lays down a broad outline for the confiscation and seizure of the
proceeds and instrumentalities of corruption.

Article 17 urges States Parties to adopt measures empowering their courts or

other bodies to order confiscation or seizure of banking, financial or commercial
documents with a view to implementing this Convention. In addition, it urges
States Parties not to apply the principle of banking secrecy with regard to acts of
corruption.

In article 18 States Parties are urged to cooperate and render mutual legal
assistance to prevent, detect, investigate and punish acts of corruption.

Article 19 calls inter alia for general international cooperation to criminalize and
publish the practice of secret commissions and other forms of corrupt practices
during international trade transactions.

Article 20 calls on States Parties to establish independent national authorities to

deal with offences established under article 4(1) of this Convention. These
authorities shall inter alia deal with requests for assistance and cooperation
referred to in this Convention.

Article 21 makes this Convention, with reference to those States Parties to which
it applies, superior to any treaty or bilateral agreement governing corruption and
related offences between any two or more States Parties.

Article 22 establishes an Advisory Board on Corruption within the AU, which shall
inter alia promote and encourage adoption and application of anti-corruption
measures, develop methodologies for analyzing the nature and extent of
corruption in Africa and submit a report to the Executive Council on a regular

26
basis on the progress made by each State Party in complying with the provisions
of this Convention.

Articles 23 to 28 are the final clauses of the Convention. These deal with formal
issues such as signature, ratification, reservations, amendment, denunciation,
etc.

Having considered the provisions of both Conventions in some depth it is now

relevant to determine what legal changes, if any, ought to be adopted in Sierra
Leone to meet the requirements of both Conventions.

However, before embarking on such an exercise it is worth pointing out that even
before the signing of both Conventions, Sierra Leone had already taken steps to
deal with corruption within its borders, as is evidenced by the Anti-Corruption Act
2000 and other related legislations.

A “quick fix” way to effect legal changes to meet the requirements of both
Conventions is by Parliament simply passing a ratification act or two, pursuant to
the proviso of section 40(4) of the 1991 Constitution to adopt them wholesale and
incorporate them into the Laws of Sierra Leone.

This method is not however recommended for the simple reason that it would
lead to duplication because as already stated the Laws of Sierra Leone as they
currently are already cover some of the areas dealt with by the Conventions and
secondly, the Conventions are only outlines dependent on further legislative or
administrative acts by States Parties to give full effect to their provisions.

What is recommended therefore is a deliberate process of upgrading of the

existing laws by the process of amendment to reflect the changes envisaged by
the Conventions and the passage of new laws where necessary. This segment
would look at the changes necessary to bring the existing laws “up to speed” with
the provisions of both Conventions and the necessity if any of new laws.

Chapter 1 of the United Nations Convention which corresponds with article 1 to 4

of the African Union Convention deals with inter alia the definition of terms
associated with corruption. Section 1(Part 1) of the Anti Corruption Act 2000 is
the interpretation section of the said Act. Some of the terms defined in the
Conventions are also found in section 1 of the Act. However this section of the
Act has to be expanded to make room for other key terms in the Convention
which are clearly of an international nature. Such terms include, “foreign public
official,” “official of a public international organization,” “controlled delivery” etc.

Chapter II of the UN Convention headed “Preventive measures” is akin to article

5 of the AU Convention but wider, and covers inter alia issues such as
preventive anti-corruption policies and practices, preventive anti-corruption body

27
or bodies, code of conduct for public officials, public procurement, measures
relating to the judiciary and prosecution services, money laundering, etc.
States parties are urged to adopt measures to give effect to these issues.

With reference to the requirement for an anti-corruption policy, it is instructive to

state that the Anti-Corruption Commission established by the Anti-Corruption Act
2000 published a National Anti-Corruption Strategy on the 15th February 2005.
According to its Senior Editor Donald Bowser, the Strategy “will show the way
forward in combating corruption and assist the ACC in its noble fight.” He also
pledged that “it will not be a static document but will continuously be updated and
adjusted in the course of its implementation.”

The Chairman of the National Anti-Corruption Strategy Steering Committee46 the

body responsible for the drafting and production of the Strategy, summarized it
thus, “…the Strategy has three main components. The first component examines
the face of corruption in Sierra Leone and focuses on the root causes of
corruption, what Sierra Leoneans think about corruption and what are the costs
to the nation. Component two covers the priority areas that need to be tackled in
combating corruption and which institutions are most at risk from corruption. The
third component lists the policy recommendations that are necessary for each
sector to reduce the risks of corruption in the system. The Strategy is not a
document aimed at naming and shaming corrupt institutions but is focused on
identifying and mitigating the opportunities for corruption within society.”

In Chapter II also, States Parties are urged to establish a body or bodies “that
prevent corruption” and enable it or them carry out their functions “effectively and
free from any undue influence.” By section 2, the Anti-Corruption Act established
the Anti-Corruption Commission which shall consist of a Commissioner and a
Deputy Commissioner “both of whom shall be appointed by the President with
the approval of Parliament,” and can only be removed from office for inability to
perform their functions or for stated misconduct. Section 53 guarantees the
independence of the Commission. It stipulates that except as provided in the Act,
the Commission shall not, in the performance of its functions, be subject to the
direction or control of any person or authority.

Chapter II again requires States Parties to adopt an effective system, based on

transparency, efficiency, merit, fairness and skill for the selection, retention and
promotion of civil servants and other non elected public officials.

It should be pointed out that currently in Sierra Leone the selection, retention, etc
of civil servants is based on the Government of Sierra Leone Civil Service Code,
Regulations and Rules of the Civil Service (the Code) established in April 2003.
This Code replaces the General Orders which, since colonial period, governed
the conduct of civil servants.

46
J B Dauda, former Minister of Finance.

28
This Code provides inter alia that “civil servants are accountable to their
supervisors, Ministers and ultimately the President in the performance of their
assigned duties. All civil servants are required to discharge their duties
reasonably and in compliance with the laws of Sierra Leone. It is the duty of all
civil servants to comply with the law at all times, including international law and
treaty obligations, and to uphold the administration of justice. Civil servants who
are members of professions with codes of conduct or rules governing the
profession should respect the ethical standards of their professions.”

In addition, they must deal with matters concerning the public “sympathetically,
efficiently, promptly and without bias” and at all times act with “integrity, honesty,
impartiality and objectivity.” Civil servants must also ensure the “proper, effective
and efficient use of public money and other resources. Public money and other
resources should never be used for political purposes.”

In chapter 1 of the Code, the structure and grading positions of the civil service is
established. It provides in 1.1 that all positions within the civil service shall be
classified in a grading structure based on “the principles of simplicity, equity and
clarity.”

With reference to recruitment and appointment, the Code provides that “the
paramount consideration in the appointment of members of the civil service is the
highest standards of efficiency, competence and integrity.” This process is “on
the basis of competitive examination and interview.”

The Code also makes provision for “performance appraisal and training of civil
servants.” Regulation 8.1 provides that “Civil Servants shall be evaluated for their
efficiency, competence and integrity through performance appraisal procedures
that shall assess the officer’s compliance with the standards set out in the
Regulations and Rules of the Civil Service of Sierra Leone, for purposes of
accountability.” This appraisal shall be on an annual basis for officers of the civil
service.

According to the Code, promotion “must be based on considered decisions as to

the fitness of an officer to undertake duties at the higher level. In assessing
officers for promotion the criteria of merit shall be the over-riding consideration.
Other factors that may be taken into consideration are the official qualifications,
seniority and experience of an officer.” The Code also stipulates that “promotion
procedures and criteria shall be made known to staff, including the grounds for
appeal and appeal rights.”

Regulations 8.7 and 8.8 provide that “Government shall establish a Civil Service
training policy to enhance the skills of officers” and provide “the management and
funding mechanisms necessary for the effective implementation of the Civil
Service training policy.”

29
The Code provides certain penalties for proven misconduct or misbehavior of
civil servants. These penalties include “dismissal from the civil service,
termination of appointment, reduction in rank or salary and verbal or written
reprimand.” A civil servant convicted of an offence other than a traffic violation,
by a Court of Law may be dismissed from the civil service without emoluments
from the date of such judgment. If the conviction is overturned on appeal and
sentence quashed, “the officer shall be reinstated... the whole of the salary,
allowances and benefits withheld shall be restored.”

Of importance, is the stipulation of “standards of propriety in awarding contracts”

in the Code. Rule 13.3 for instance provides that “no officer shall give a contract,
or play any role whatsoever, whether formal or informal, in awarding a contract to
a company, partnership or firm in which the officer, or any member of the officer’s
family, has a financial interest, or of which the officer is a Director.”

It is thus clear that the Code provides for most if not all of the issues envisaged
by the Conventions. Whether these provisions have been translated into action is
another matter entirely.

Further, Chapter II urges States Parties to take the necessary steps to establish
appropriate systems of procurement based on transparency, competition and
objective criteria in decision making in order to prevent corruption.

In 2004, the Public Procurement Act was passed in order “to establish the
National Public Procurement Authority, to regulate and harmonise public
procurement processes in the public service, to decentralize public procurement
to procuring entities, to promote economic development, including capacity
building in the field of public procurement by ensuring value for money in public
expenditures and the participation in public procurement by qualified suppliers,
contractors, consultants and other qualified providers of goods, works and
service and to provide for other related matters.”

Prior to the passage of this Act, there was no definite, transparent procurement
process. Every Ministry, Government Department, Public Corporation, etc had its
own brand of procedure, which became the hot bed for corrupt practices.

This Act established the National Public Procurement Authority to “regulate and
monitor public procurement in Sierra Leone and to advise the Government on
issues relating to public procurement.” The Authority shall also inter alia
“formulate policies and standards on public procurement and to ensure
compliance therewith by all parties to procurement contracts, assess the
operations of the public procurement processes and submit proposals for the
improvement of the processes, including the introduction of information and
communications technology, and the development of modalities for appropriate
collaboration among procuring entities, ensure capacity building and human
resource development for public procurement including development, promoting

30
and supporting training and professional development of persons engaged in
public procurement and disseminate information about, and promote awareness
of the public procurement system.”

In Part IV, the Act stipulates some general provisions on procurement

proceedings as well as methods of procurement for national and international
competitive bidding. It lays down the criteria that bidders participating in the
procurement proceedings must meet. This includes, professional and technical
qualifications, equipment availability, past performance, financial resources and
condition. The Act also provides that public officers involved in procurement
process must discharge their duties “impartially so as to assure fair competitive
access to public procurement bidders,” act in the interest of the public and in
accordance with the Act and to avoid conflict of interest at all times.

Importantly, the Act makes provision for complaints and grants the right of appeal
to unsuccessful bidders.

It is thus fair to say that with respect to public procurement in Sierra Leone, there
has been a transparent and competitive system in existence since 2004, at least
in theory.

Chapter II also urges States Parties to take measures to strengthen integrity and
prevent opportunities for corruption among members of the Judiciary.

The Judiciary of Sierra Leone has already taken steps, in the form of Codes of
Conduct to address this issue. In September 2005 a new Code of Conduct for
Judicial Officers of the Republic of Sierra Leone was launched under the
distinguished direction of the Chief Justice of Sierra Leone. In its preface, the
Learned Chief Justice said that the objectives for the establishment of the Code
of Conduct are threefold: “(i) To restore public confidence in the administration of
justice; (ii) To enhance public respect for the institution of the Judiciary; and (iii)
To protect the reputation of individual Judicial Officers and of the Judiciary as a
whole.”

The Code obliges a Judicial Officer to “reject any attempt to influence his
decision in any matter before him for decision where such attempt arises outside
the proper performance of judicial duties and to exhibit and promote high
standards of judicial conduct in order to reinforce public confidence in the
judiciary which is fundamental to the maintenance of judicial independence.”

Also, in October 2005 the Judiciary published a Code of Conduct for Judicial
Support Staff of the Republic of Sierra Leone, which provides inter alia for the
general comportment and propriety of judicial support staff. Article 2.4.1 for
instance stipulates that “a member of the judicial support staff shall not use or
accept to use his position or office to secure unwarranted privileges, gratify or
confer any corrupt or unfair advantage upon himself or any relation or associate.”

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In article 2.4.2 a member of the judicial support staff is prohibited from soliciting,
requesting or accepting any compensation or fee beyond that received from his
employer in the course of his duties.

Chapter II further urges States Parties to prevent corruption in the private sector
by enhancing proper accounting and auditing standards and providing penalties
for non-compliance.

There are various Acts in Sierra Leone that regulate private sector activity. Chief
among these are, the Companies Act Chapter 249 of the Laws of Sierra Leone
1960, the Business Registration Act No. 13 of 1963, the Business Name
Registration Act Chapter 257 of the Laws of Sierra Leone 1957, the Audit Act
No.7 of 1962, the Institute of Chartered Accountants of Sierra Leone Act No.5 of
1988, the Architects Act No. 7 of 1987, the Legal Practitioners Act No. 15 of 2000
and the Banking Act No.10 of 2000.

These laws deal with specific areas of the private sector and none of them
actually address the issue of corruption. With the exception of the Legal
Practitioners and the Banking Acts 2000, all of the above-mentioned Acts
predate the Anti-Corruption Act No. 1 of 2000. The Anti-Corruption Act was
passed to prevent corrupt practices in the public sector and its provisions bear
this out.

Section 15 of the said Act however nominally establishes an offence that touches
and concerns the private sector. It provides inter alia that “any agent who, without
lawful authority or reasonable excuse, solicits or accepts any advantage as an
inducement to or reward for or otherwise on account of his- (a) performing or
abstaining from performing or having performed or abstained from performing
any act in relation to his principal’s affairs or business (b) showing or abstaining
from showing, or having shown or abstained from showing, favour or disfavour to
any person in relation to his principal’s affairs or business, is guilty of an offence.”

To comply with the Chapter II requirement of addressing corruption in the private

sector, a new and comprehensive Act is needed. Thus, an exclusive “Anti-
Corruption (Private Sector) Act” would adequately address corruption and
standards in this sector.

Chapter II also requires States Parties to adopt measures which would promote
the active participation of civil society and NGOs in the fight against corruption.

In section 5 of the Anti-Corruption Act, the Anti-Corruption Commission is

empowered to “enlist and foster public support in combating corruption.” In
furtherance of this, the Commission has since its inception, striven to enlist and
foster public support against corruption by forming partnerships with the print and
electronic media, conducting regular community-based sensitization campaigns,

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advertising in local languages, offering rewards for information and establishing
integrity clubs in educational institutions. In a report carried on the “Peep”
Magazine of the 18th November 2005, the Public Relations Officer of the Anti-
Corruption Commission, Ms. Koloneh Sankoh is reported to have said in a Press
Conference held on the 16th November 2005 that “the partnership between the
ACC and the press was a logical one” and that “the media is our ally in the fight
against corruption.” At the same conference the Anti-Corruption Commission co-
coordinator Nabila Musa Kamara is reported to have said that “the Commission
would continue to focus on sensitization and that ‘we [the Commission] are
opening integrity clubs in schools. We’ve conducted sensitization programmes in
many chiefdoms. Sixty-six community theatre performances have been mounted
this year alone.’” He also reportedly stressed that the fundamental goal of the
Commission was to stamp out corruption and build a better society.

In this respect, the Commission seems to be on course, but more could be done
in relation to partnering with NGOs.

Finally, Chapter II urges States Parties to adopt measures to prevent money-

laundering.

On the 21st June 2005, the President of the Republic of Sierra Leone signed the
bill entitled “The Anti-Money Laundering Act 2005” into law. This Act took effect
from the 21st July 2005. It was passed to “suppress money laundering and to
provide for other related matters.

The Act inter alia provides measures to combat money laundering by

establishing offences and prohibiting certain cash transactions. It also provides
for special monitoring of certain transactions involving amounts in excess of
Twenty-Five Million Leones.

The Act further provides for anti-money laundering supervision and appoints the
Governor of the Bank of Sierra Leone as the Anti-money Laundering Authority.
His functions include receiving reports issued by financial institutions, compile
statistics and records on money laundering and disseminate information both
within and outside Sierra Leone, issue guidelines to financial institutions and
advise the Minister responsible for finance with regard to matters relating to
money laundering.

In addition, the Act imposes certain obligations on financial institutions. These

include, keeping record of business transactions of any new or unrelated
business transaction exceeding Twenty-Five Million Leones for a period of five
years after the termination of the business transaction, report to the Authority any
business transaction where the identity of the persons involved, the transaction
or any other circumstances concerning that business transaction gives any
officer or employee of the financial institution reasonable grounds to believe that
the transaction involves the proceeds of crime, complying with instructions,

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guidelines and training requirements from the Authority, developing procedures
and controls to combat money laundering and developing audit functions to
evaluate such policies, procedures and control. It has also removed banking or
professional secrecy.

The Act also establishes a financial intelligence unit in the Bank of Sierra Leone
for the expert analysis and processing of reports sent to the Authority by financial
institutions.
Part IV of the Act provides measures for freezing and forfeiture of assets in
relation to money laundering.

Part V of the Act, most importantly provides for mutual international assistance in
relation to money laundering. It lays down the basis for international cooperation
with respect to investigation and prosecution of money laundering offences,
extradition, property tracking, freezing and forfeiture of property, etc. It also
stipulates the manner in which requests could be made and executed. W ith
reference to extradition, the Act provides that “any request for extradition of an
offender shall be subject to the Extradition Act 1974 which shall be applied as if
money laundering is an offence for which extradition may be granted.”

The Extradition Act 1974 amended and consolidated the Law relating to the
extradition of criminals. Section 1(3) of the Act provides that the “Act shall apply
to the States listed in the First Second and Third Schedules subject to and in
accordance with the various treaties and arrangements (including all such
obligations and arrangements as were in force between Commonwealth
countries or former Commonwealth countries immediately before the
commencement of this Act whether embodied in a treaty, in legislation or any
other form) existing from time to time between those states and Sierra Leone and
subject to the provisions of Parts II, III and IV of this Act and any special terms of
limitations which may be specified in the said schedules.”

The First Schedule covers Commonwealth Countries, the Second Schedule

covers the Republic of Guinea and the Third Schedule covers other African,
American, European and Middle East States, totaling forty-four in number.

Section 1 (5) of the said Act provides that “the schedules to this Act may be
varied or amended by the Attorney-General by Order published in the Gazette.
Any such Order shall be laid before Parliament as soon as shall be practicable
after it has been made and shall not come into operation or be published until the
expiration of fourteen days after it has first been laid before Parliament.”

It is clear from the foregoing that there is an anti-money laundering mechanism in

Sierra Leone.

Chapter III of the UN Convention incorporates article 6 to 8 of the AU

Convention. The said chapter headed “criminalization and law enforcement”

34
urges States Parties to inter alia adopt legislative and other measures to
establish the acts mentioned therein as criminal offences.

The Anti Corruption Act 2000 has already established a number of these corrupt
practices as criminal offences. These can be found in Part IV (sections 7 to 15) of
the said Act.

It should however be pointed out that the Act does not cover all the corrupt
practices mentioned in the said chapter. The Act does not deal with bribery of
foreign public officials and officials of public international organizations, abuse of
functions, and bribery in the private sector, etc. It should also be pointed out that
the offence of embezzlement is not covered by the Act as that offence is covered
in section 13 of the Larceny Act 1916.

There is thus a need for an amendment of Part IV of the Act by the addition of
the offences not already provided for, if the Conventions are to be complied with.

With reference to the other matters dealt with in articles 23 to 36 of Chapter III,
the Anti-Money Laundering Act 2005, the Anti-Corruption Act 2000 and the Law
Officers (Prosecution of Anti-Corruption Cases) Instructions 2005 pretty much
cover all of them.

In relation to the issues in articles 37 and 42, the Anti-Money Laundering Act
2005 at least provides for cooperation between the Anti-Money Laundering
Authority and the Central Intelligence and Security Unit established under the
National Security and Central Intelligence Act 2002 and the Anti-Corruption Act
2000 empowers the Anti-Corruption Commission to enlist the support of the
public in combating corruption.

Chapters IV, V and VI of the UN Convention tally with articles 15 to 19 of the AU

Convention and they broadly deal with international cooperation in the fight
against corruption.

The Anti-Money Laundering Act 2005, the Extradition Act 1974 and the Anti-
Corruption Act in a limited way, provide the basis for international cooperation
with regard to the fight against corruption. To broaden the scope of cooperation
and increase the number of countries with whom Sierra Leone can relate, the
Attorney-General would have to exercise his powers under section 1(5) of the
Extradition Act 1974.

The two Conventions are generally similar as they deal with more or less the
same themes. The UN Convention is much more detailed than the AU
Convention and its scope is universal, as opposed to the regional dimension of
the AU Convention. Both Conventions urge States Parties to adopt legislative,
administrative or other measures within their respective jurisdictions to give effect

35
to the anti-corruption measures contained therein and call on States Parties to
cooperate closely in a bid to prevent, contain and ultimately extinguish this raging
inferno of corruption, which is currently devastating economies and livelihoods
the world over.
Both Conventions are subject to the provisions of the proviso to section 40(4) of
the 1991 Constitution of Sierra Leone.

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PART II

PRACTICAL OBSTACLES TO THE IMPLEMENTATION OF THE

CONVENTIONS

The Conventions are a laudable attempt by the international community to deal

decisively with the issue of corruption. Not only do they formulate obligations that
States Parties should comply with, but most importantly they provide a
mechanism for monitoring, follow up and evaluation of State action against
corruption. This is of prime significance, as State commitment to any given
project normally ends at the signing ceremony. The Advisory Board on
Corruption within the African Union and the Conference of States Parties to the
UN Convention can, with the cooperation of States Parties, potentially guaranty
the success of both Conventions.

Obstacles to the successful implementation of the Conventions would

necessarily come from the States Parties themselves, who have agreed to be
bound by them. The obvious differences in their socio-political make up and
economic strength may well provide the first challenges to a successful global or
regional, as the case may be, implementation of the Conventions.

For Sierra Leone, obstacles to the implementation of the Conventions may not be
difficult to uncover. From lack of political will to deal with corruption decisively, to
acceptance by the populace of corruption as a way of life, the list is seemingly
endless.

The view among members of the Fourth Estate is that the present government
condones corruption among its functionaries and as a result is always reluctant
to proceed against them or adopt measures that would hold them strictly
accountable. The Anti-Corruption Act 2000, they maintain, was only passed as a
result of donor pressure and the threat of withdrawal of international financial
support. Newspapers carry regular reports of corrupt activities among public
officials or political interference in the anti-corruption drive.

For instance, the Friday 18th November 2005 edition of the “Peep Magazine”
carried a front page headline, “Billions in aid for agriculture may be slashed as
corrupt cabal edges out British born Director.” The report claimed that Cabinet
had approved the transfer of the Director of Agriculture Patrick Hammer to the
Forestry Commission. The report claimed that “Mr. Hammer’s attempt to
rationalize and improve efficiency in the ministry had put him on a collision
course with Dr. Mondeh.” “‘For example, Patrick frequently complained about
misuse of tractors provided by the ministry. I can recall that he said that a tractor
should plough at least 200 acres a day- while in most cases the tractors did only
100 acres and then were used for other, non-official duties,’” the report went on.

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A clear evidence of lack of political will to proceed against public officers is
evident in the manner in which local government officials have manifestly violated
section 104 of the Local Government Act 2004 which is in similar terms with
articles 8(5) and 7(1) of the UN and AU Conventions respectively. The section
provides that “Every Councillor, appointed or assigned member of staff of each
local council shall, not later than thirty days after assuming or leaving office make
a declaration of assets in such for as the Anti-Corruption Commission may
determine.” Local government elections were conducted in 2004 but the
provision has not been complied with, though local governments have
commenced operations. Even at a higher level, declaration of assets is an
unknown practice.

Another obstacle to the implementation of the Convention may be the potential

for interference, by the Government in the decision to prosecute persons
accused of corrupt offences. The Anti-Corruption Act 2000 confers on the
Attorney-General and Minister of Justice the power to consider “whether criminal
proceedings may be instituted” on the findings of the Commission on any
investigation. This invariably puts the decision to prosecute squarely on those
who control the Attorney-General and Minister of Justice. The probability of
political interference in such an important way has generated lots of criticism
which has not gone unnoticed. In September 2005, the Attorney-General and
Minister of Justice issued “the Law Officers (Prosecution of Anti-Corruption
Cases) Instructions 2005. These instructions inter alia establish the Anti-
Corruption Prosecution Committee consisting of “two Anti-Corruption
Commission of Sierra Leone Special Prosecutors and a Law Officer designated
by the Attorney-General.” This Committee has power to consider reports
submitted to the Attorney-General under section 36 of the Anti-Corruption Act
2000, determine on behalf of the Attorney-General whether there are sufficient
grounds for prosecution and which court prosecution ought to be brought. This
has effectively transferred the power to prosecute to the Anti-Corruption
Commission. It should be pointed out however that the Sierra Leone Bar
Association has in a letter to the Attorney-General raised serious concerns about
the power of the Attorney-General to issue such instructions.

The decision to prosecute may have been depoliticized, but more remains to be
done to guaranty the independence of the Anti-Corruption Commission and
dispel suspicions of political interference in, or manipulations of, the Commission.
The Commissioner and his deputy do not enjoy security of tenure of office. They
are appointed by the President subject to the approval of Parliament for a term of
five years which may be renewed as and when necessary. This insecurity was
underscored by the “non-renewal of appointment” of the first Anti-Corruption
Commissioner in November 2005 for alleged financial misappropriation. The new
appointee is the husband of the deceased First Lady’s sister.

A further obstacle that might prevent a timely implementation of the Conventions

is the delay in drafting legislative, administrative or other measures to give effect

38
to the said Conventions. The drafting section of Law Officer’s Department is
currently understaffed. Bills take inordinately long periods before they are drafted
and sent to Parliament. Added to this is the fact that as a result of the wholesale
law reform programme currently taking place in Sierra Leone, the Drafting
section finds itself unable to cope with the massive workload.

Another key obstacle to the successful implementation of the provisions of the

Conventions in Sierra Leone is the “culture of corruption” borne out of years of
economic disempowerment. Since independence, the average Sierra Leonean
has been progressively reduced to the state of near penury. Public Officers
stopped earning living wages decades ago, but yet still “manage” to meet heavy
obligations at home and in society. The phenomenon of “living by magic” is wide
spread and is a mind set that cannot be easily changed. This culture is found in
every facet of the Sierra Leonean society and has attained the status of an
acceptable standard of behaviour. Indeed, it is regarded as abnormal if money
does not change hands in the course of an activity.

Public Servants are so grossly underpaid (and often not on time) that they feel
justified to request for an inducement for them to perform their duties. Judges
earn less than US$ 500 a month but they adjudicate on matters the value of
which are over a thousand times in excess of their pay. Judicial infrastructure has
not improved since independence; in fact senior practitioners believe that
comparatively the Judiciary is at its lowest now. Realistically, the Codes of
Conduct will not make a dent on the problem of corruption in the public service if
the issue of conditions of service for public officers is not addressed. Indeed,
after the launching of the Code of Conduct for Judicial support staff in October
2005, the consensus among them was to be more discreet “in the way they do
things.”

Sensitization campaigns, advertisements, integrity clubs and even the threat of

prosecution cannot deal with this mindset. If this is not addressed satisfactorily,
the effective and successful implementation of the Conventions will remain a
dream as the institutions and bodies capable of enforcing the provisions of the
Conventions are themselves steeped in corrupt practices.

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Part III

CONCLUSION AND RECOMMENDATIONS

The Conventions represent an acknowledgement that corruption is indeed a
global threat which requires a concerted international effort to subdue and
eventually extinguish it. Its link with organized crime and terrorism is clear. Much
more dangerous is the fact that corruption accounts for the death of thousands of
people especially in Africa and the reduction of millions to a life of penury and
misery.

The Conventions should be seen as the first shots in the global war against
corruption and not as guarantees of victory. They should be working documents
capable of being adapted to meet changing circumstances.

Having looked at the Conventions and the legal and socio-political landscape of
Sierra Leone it is evident that there are certain key areas that must be given
priority in order to effectively implement the provisions of the Conventions and
deal decisively with corruption.

First, Governments must be urged to be more accountable to their peoples and

the process of governance made more transparent. A system of regular and
accurate reporting of governmental activities to the civil society should be
established. This is pertinent for Sierra Leone because the role of Parliament as
a watchdog is being seriously undermined by party politics. Added to this is the
fact that Parliamentarians are too busy wooing Ministers, Heads of parastatals or
government departments for contracts for them to be in a position to ask really
serious questions. Indeed, in recent times, MPs have been embroiled in disputes
over contracts.

Further, States parties should be tied down to a realistic but specific time frame
for the achievement of certain benchmarks in the fight against corruption. The
usual tendency for Governments is to sign Conventions and conveniently forget
about their obligations under the excuse of “running a country.” Once States
Parties are aware that they are time bound in fulfilling their obligations, the
thought of a deadline would necessarily elicit some activity. Linked to this should
be the practice of naming and shaming non-performers or under performers at
international level and providing incentives to those who perform.

Also, States parties should be urged to de-emphasize “red tapism” and simplify
procedures for the acquisition of rights, interests, title, licence, permission, etc,
from any ministry, department, parastatal or other government agencies.

In addition, States Parties should be urged to lay down in clear terms the specific
duties and or functions of Public Officers and the scope of their powers and to
make such information available to the public.

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There should also be rigorous regular monitoring and evaluation of State activity
in relation to the fight against corruption. States should not be encouraged to just
report the progress or lack of it within their territory, but physical assessments of
the actual situation should be carried out.

Heads of States should be encouraged to take the lead in the declaration of

assets before and after the assumption of office and States Parties should be
urged to enforce provisions of their laws requiring such declarations with more
seriousness.

States Parties should be urged to insist on full and frank disclosure by Public
officers of any interest in a contract or other transaction that may conflict with
their duties.

Generally, States Parties should be urged to fully commit themselves to the fight
against corruption and not just pay lip service to it.

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