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HE WHO SEEKS EQUITY MUST COME WITH CLEAN HANDS.

January 15, 2019

By: Winstanley. R. Bankole. Johnson

I can discern mischief from even the slightest of innuendos and utterances in an instant, and was able to identify same from statements by the Deputy Minister of Information in a recent Radio AM talk show. If I heard him well, the Commissions of Inquiries (COIs) are not witch hunting exercises, but that “they will be free fair and credible in all their deliberations. And after the Commissioners would have submitted their findings to government, Cabinet will thereafter review them and then decide on what punishments to mete out to those found culpable”.

Such condescending sentiments have been echoed by a number of other government functionaries obviously either relishing their incumbencies or oblivious of the long term consequences, especially their political ramifications in undermining the overall cohesiveness of the country, as is being envisaged by no less a person than our incumbent Fountain of Honour President Bio himself, who appears anxious about preserving same.

Partisan

If it were in more politically energized environments like Nigeria, Ghana or Kenya that an issue like the setting up of Commissions of Inquiries to probe such a target-specific group of immediate past government functionaries without adherence to the Rules of Evidence had sprung up, it would have engendered far more civil society interest than we are seeing in this country now. Their universities – particularly the Language and Law departments – would have dissected and re-calibrated every line of those Constitutional Instruments setting up the proposed COIs to such an extent that would not only have ensured that the rules agreed ultimately mirror a conformity to our National Constitution and the Rules of a High Court for their purpose, but also that their ratification in the Well of Parliament would probably not have been necessary. But this is Sierra Leone. Our Civil Societies are disingenuously partisan, whereas in our universities many are either too scared to publicly contribute to debates on national issues, or would prefer to shrink away from it in order not to ruin their political potentials. But as far as I’m concerned the subject is still debatable by freeborns – well at least until the Commissions commence sittings to avoid being held contemptible.

Obligatory

Most government functionaries including the Deputy Ministers of Information and Justice have spared no effort to justify the legality of the proposed Commissions by periodic references to the Constitutional Instruments enacted by Parliament, with an accompanying caveat that to disrespect them would constitute serious breaches of the law which is true. And to reinforce that point I will add here that as the laws stand, appearance before the Commissions if one is subpoenaed is obligatory: not optional. No matter how defective a Law, a disobedience to it will incur the wrath of, rather than pacify its administrators. Accordingly the thrust of this piece is couched on Equity and the Rules of Natural Justice. Those who stand accused of corruption are as entitled to both virtues as are those whose responsibility it will become to dispense justice because as the Law demands, “He who seeks equity must come with clean hands”.

The fact that that same law was enacted without a majority the votes cast that discarded the need to comply with the Rules of Evidence is exactly what has prompted other right thinkers like Charles Francis Margai Esq; the Sierra Leone Bar Association, the Chairperson of Campaign for Good Governance (CGG), the Hon. Dr. Kandeh kolleh Yumkella (to name a few albeit they spoke much tardily) to suspect government’s intentions and implicitly question what in tarnation is motivating them away from the established legal traditions this time round. How I wished many such enlightened minds had come out much earlier and louder with their aversions.

But one fact must be clarified. Do I condone corruption? Hell No!! I support that anyone found culpable of corrupt practices must face must – irrespective of whatever sentiments – be made to pay the appropriate penalty under the law. It has to be noted that people are appointed into offices to serve – not to loot – and if by default they are found wanting in the discharge of their duties then they must be made to pay the price because as the Hon. Kandeh Kolleh Yumkella put it, at the time of committing the dubious acts, they were not doing so on behalf of any organization, tribe or political party. So it will be disingenuous for any one indicted to pretend to be seeking comfort or solace from them.

In her latest input, the CGG Chairperson implored the government to be “magnanimous at least”, to ensure that the Rules of Evidence are incorporated. I would defer in that regard because when it comes to determining one’s fate I would rather that Law- not magnanimity – prevails.

Gripe

To buoy up traditional support, Tribal Heads in the Western Area – a body whose un-elected and malleable leadership is handpicked by successive incumbent governments and cannot therefore be said to reflect consensual thinking – have been enlisted for good measure, to justify what has been enacted outside compliance with the National Constitution. And this is where I believe the government would seem to be missing the point.

The issue at stake is bigger than pro-party endorsements and pre-paid solidarity marches. The Commissions are intended to inquire into the stewardship of former APC government agents, which mandate no one on the side of probity and accountability is against – not even the APC as a political organ and I have heard our Secretary General reiterate that several times over. My gripe – or rather the gripe of thousands of law-abiding citizens – is that for something hinging on the hard-earned reputation and integrity of individuals still presumed to be innocent (which in fact is why there is the need to inquire), the overall reputation of Sierra Leone as a Nation State committed to a rigid adherence of democratic best practices and the rules of its own Constitutional laws stand threatened, if government were to insist on setting aside the Rules of Courts as enshrined in our own Constitution which in fact is our Volume of our Sacred Laws.

Our reputation as a nation equally stands threatened if for every time we wish to rein in our errant administrators, we have to carve out fresh rules, which would suggest that all our years as an independent nation notwithstanding, our laws are either archaic and or too lax to address contemporary offenses that will serve as deterrents? Sidestepping major constitutional provisos just because we want to make sure we deal with our political opponents might have a tendency to send the wrong signals of national instability, open our arbitration parameters to serious scrutiny and frighten away potential investors. And with a judicial precedent for removing a constitutionally elected Vice President under questionable circumstances still looming on our immediate political past, who will blame them for that? So the only reason why I am urging government to ensure that due process is followed is because it was this same kind of dogged, vengeful determination to apply “blind-folded” laws to persecute one individual (former VP Samsumana) that has left our Judiciary gaping for massive confidence restructuring boost.

Beyond the fact that his singular action underscores why at least three opinions are required in his own profession to arrive at a verdict, I will ignore the letter of 7th January signed-off by Barrister Charles Abass Bangura and its connotations, because there is no recognized and legally registered body of Barristers known as “Concerned Members of the Bar Association”.  The only thing I admire about Mr. Charles Abass Bangura in the Social Media is his relaxed and leisurely photo-pose taken with H.E. President Bio in an ambient location and with a black carry-case in between them on the floor. Read my lips: “black carry case in between them on the floor”.

Prejudices

The arguments put forward by the government so far is that the Commissions will not be operating in a vacuum but will be guided by set rules.  But wouldn’t it be advisable for those guidelines or set rules to be publicized well in advance of the commencement of sittings to verify they are indeed compliant with Rules of a High Court of Justice, so that legal counsels of those to be probed can be sufficiently apprised of the modus operandi of the Commissions? If not of what use will legal representations be to those to be probed when as things stand, whatever evidence adduced against them cannot be instantly challenged? My fear stems directly from summations heard so far that the ultimate decider of the fate of those to be probed will be left with the Cabinet to present “White Papers” – a Cabinet comprised only of political antagonists with much pre-conceived notions indicating that everyone in the APC is a rogue.

So what if personal prejudices stand in the way of justice (as is often the case here) and such Cabinet Conclusions reflected in the ensuing “White Papers” impute on their human fundamental rights? To whom, where and how can reprieve or redresses be sought or appeals to superior Courts lodged? God knew man to man can be so unjust that He laid down Commandments for their guidance. And if combatants in the fiercest theatre of war can have guidelines to follow under the Geneva Convention, why should anyone be deprived of his/her fundamental rights and privileges to a fair hearing under normal circumstances by clearly defining the rule of his trial before the trial?

Access to justice (fair hearings) is a fundamental right and no one should be deprived of it under the law.

Avalanche

From several ongoing discussions on the matter, I am given to understand that all of the foreign Judges will be funded through external support (possibly the UNDP or DFID) to demonstrate their tacit support for the present government’s efforts to eradicate corruption. I applaud that. But given the government’s determination to proceed with the Commissions without application of the Rules of Evidence, would it be too much implore them to, as a demonstration of their commitment to fair play to arrange for those same external supporters to also fund permanent representations from both the United Nations’ Human Rights Committee in Geneva and the ECOWAS Community Court of Justice on those COIs as well, so as to provide much comfort to suspects and “Indictees” that their fundamental human rights would not be trampled upon – neither throughout the sittings of the Commissions (operating outside the Rules of a High Court), nor via the recommendations emanating from the Cabinet “White Papers”?  If the government is able to influence that recommendation President Bio will be shocked to see the avalanche of support that will be pouring his way to prosecute offenders from across the political divide. At least he has been bolder enough to translate into action what had all along remained a dormant dream in the slumber of past political dispensations. A level playing field is all that is required and the only guarantee people want is that malice should not influence the recommendations in the ensuing Cabinet “White Papers”.

Ambivalence

I will not close this piece without a comment or two about what I see as government ambivalence in expediting commencement of the COIs as we’re already past two weeks into the New Year. Given my passion for accountability, I would hate to credit a statement attributable to Charles F Margai Esq to wit-: “ I am at a loss as to how the State will proceed with the process………….I am not convinced the State has sufficient materials to proceed on (the COIs)”.

Already there are glaring evidences of inactions and contradictions that would seem to suggest that these COI matters if not resolutely and circumspectly managed might just create serious distractions that could be easily negate the enthusiasm of President Bio. As things stand the reality is that it isn’t the opposition that would seem to be derailing commencement of the Inquiries, but in-house SLPP machinations suggestive of facts that had discretion prevailed, a much better option of Criminal Prosecutions for those bearing the greatest responsibility etc. should have been pursued.  As things stand and even as we continue to anxiously await commencement of the COIs under any terms and conditions, the Anti-Corruption Commission (ACC) is busy applying alternative Anti-corruption resolution methodologies through funds recoveries from people who by all indications might be potential “Indictees”. Does it mean then that those category of people will addition to concluding settlement arrangements with the ACC still have to face the COIs again if they are named and be made to suffer double jeopardy?

May be the statement attributable to Lawyer Charles Margai that the State might not have sufficient materials to proceed could jolly well be true. Ideally I suspect the delay to begin the Inquiries could well be that no Judge of international repute is prepared expose to risk his/her hard-earned reputation by presiding over Commissions of Inquiries where the Rules of Evidence do not apply.

But I wait to see.