JUSTICE SHOULD MANIFESTLY AND UNDOUBTEDLY BE SEEN TO BE DONE

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BY: Winstanley. R.Bankole Johnson

I am reliably informed that within the context of criminal procedures and practices it is trite law that the moment a single indictee or accused person becomes decedent (which in law means “dies”) all proceedings and prosecutions against that person should cease – or again as the  law puts it “are abeted”, and the case closed forthwith. The case is completely different in actions involving multiple accused persons for the same criminal offense(s), and in which case trial of the other living accused persons would continue.

Doctrine

The rational (or “ratio decidendi” as the law would put it) for that is because the main objective or intention of all criminal prosecutions being to punish for offenses proven beyond all reasonable doubts, there must be an accused person (or persons) or someone to prosecute. In the absence of anyone to prosecute the law then presumes that there is no further case to continue, as it will be tantamount to dragging the name and reputation of someone who is not alive to the mud. To continue prosecuting a single decedent accused person will be fractious and meaningless, because it will neither be lawful nor expedient. Hence the Latin legal maxim: “Actio Personalis Moritur Cum Persona”, and the direct English translation for that is: “Personal Action Dies With The Person”.

That doctrine (Personal action dies with the person) I am given to understand is applicable to all criminal actions within all jurisdictions with laws analogous to within the Commonwealth and its interpretation and application should be disjunctive of an accused person’s ethnic, tribal, political or other social orientations or his/her constitutional rights, freedoms and protection as are guaranteed under Part three (3) of our National Constitution.

I suppose it was all of such legal considerations that guided the Hon. Lady justice Manuella Harding when in delivering her stellar ruling in a matter against a decedent defendant (Morlai Kargbo) that had been standing trial for sexual penetration offenses contrary to various extant laws she was quoted to have said that: “I cannot try a dead person and have therefore closed the case against the accuse person Morlai Kargbo, on information from the Chief Prosecutor that the accused had died in prison”. (Ref: Standard Times Publication July 19th 2023).

Contrast

Now if Hon. Lady Justice’s ruling in the matter of the State V Morlai Kargbo, a decedent Sexual Harassment accused was trite law, contrast that with the matters of two former prominent APC Party stalwarts during the Ernest Bai Koroma administration to wit: Mr. Mommoh Konteh and Dr. Minkailu Bah. The former was Chairman of the Party in Koinadugu and also Chairman of what was formerly National Telecommunications Commission (NATCOM) now the National Communications Authority (NatCA), whilst the latter who also managed two positions, was a Cabinet Minister responsible for Education and at the same time the APC Party Chairperson of Tonkolili District.

Both men whose alleged criminal matters were in the appellate stages died in clearly publicized circumstances. So the facts about their transitions required no further proofs – not even by any Court Prosecutor. Yet even in the abundance of such evidences, the State proceeded with Court and or other legal proceedings tantamount to figuratively dragging their names to the mud. The Courts allegedly did not only order sequestration of their landed properties, but also physically vacated their family members and dependents from those estates to effect their seizures using armed security personnel, much in apparent contravention of the time-honoured legal maxim that: “Personal action dies with the person”.  

For the records, the decision for forfeiture of their assets to the State allegedly emanated from recommendations from various Commissions of Inquiries (COIs). But like I said those recommendations were being actively challenged at judicial appellate levels when they both died suddenly, without their guilt having been proven beyond all reasonable doubts. So as in the case of late Samuel Hingha Norman, they died as innocent and honourable men.

Questions

So a number of legitimate questions are arising from those developments to us laymen such as:

  1. Could the decision to have proceeded to sequestering the properties of Minkailu Bah and Mommoh Konteh (both alleged as criminals per COI recommendations, but innocent unto their deaths) have been applied out of hatred and discrimination because they were APC loyalists?
  2. Both late honourable men were charged separately – not jointly – which was an ideal situation for application of the laws about their actions dying with them and for their respective matter to have been closed their cases immediately, but that would not appear to have been the case. So what could have necessitated the variances in the interpretation of the extant legal provisions? Could those reasons be among the many others why suspicions abound about the Judiciary not being consistent and objective?
  3. Why the variance of interpretation of the laws for the same situation, when the baseline are the same to wit: closure and discharge of matter on the death of an accused person on criminal matters whether during trials or at the appellate stages? 

Even as you read this, the family members of the late duo under reference are still distrained. Homeless. Evicted from their deceased benefactors’ bona-fide estates without satisfactory conclusion of the allegations against them by the COIs beyond reasonable doubts (before their deaths) as required by law, and in which instances their cases ought to have been closed and discharged. But they were not! So as in a situation where justice must not only have been done, but must also have been seen to be done (Ref. Lord Justice Hewart as in Rex V Justices 1924) an impression or suspicion is created that there could have been an improper interference with the administration of Justice. That impression or suspicion has left me in particular to conclude that the deceased persons and their surviving relations have not been fairly treated under the law.

Flagging

As at this time when our political atmosphere is still polarized and pernicious, I do not expect any Superior Court Registrar to muster the courage of conviction to draw the attention of the Honourable Chief Justice to the pertinent matters I have raised herein for redress, that is if he (The Hon. Chief Justice) is not already giving the idea a thought. But at a time when as a nation we are so desperate about forging national cohesion as would eradicate the propensity for revenge at every change of political dispensation, these are some of the critical issues and areas for redresses that the Independent National Commission for Peace (ICPNC), the Center for Accountability and Rule of Law (CARL), The Human Rights Commission Sierra Leone (HRCSL) and all other State and Non-State Actors committed to upholding Part three (3) of our National Constitution should be pro-actively flagging.

With recent peace overtures by the government in returning passports of APC stalwarts and removing their names from a Travel Ban Lists since 2018, it is my wish that surviving family members of the late Mommoh Konteh and Dr. Minkailu Bah reading this may muster the courage to leverage from the government’s mood of clemency, and to dare challenge the Courts to reverse their rulings, especially with reports that most of the COI exhibits at the Judiciary have disappeared. It could well be that whatever exhibits the SLPP COI Reports had against the two deceased honourable men – as well as against the SLPP government’s presumptive “A-No.1 Enemy” former President Ernest Bai Koroma – could also have been among those exhibits that have allegedly disappeared from Judicial Custody. So what’s wrong in every COI “indictee” giving an appeal for restitution of their properties a go?

If it is possible for late former President Alhaji Dr. Ahmad Tejan Kabbah and the Rt.Hon. Speaker of Parliament Dr. Abass Bundu to have celebrated restitution of all properties seized from them after decades by the APC (and in much the same way we have also witnessed how properties once sequestered under previous SLPP regime were restituted to their former APC owners in perpetuity), no one should ever rule out the possibility that unless the correct things are done, all those whose properties have been seized by this SLPP/Bio administration will not also one day recover theirs, using much more vengeful channels than we have witnessed in the last five years.

We need to dispense with this vengeful and retributive cultural medley of “Seizures and Restitutions of Assets” at every change of political dispensation.

Lonta!! 

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