A position paper by Rashid Dumbuya for the consideration of the Constitutional Review Committee of Sierra Leone – November 2015
November 20, 2015 Author: Rashid Justice Dumbuya
The Anti- Corruption Commission (ACC) is a creation of an Act of Parliament. It came into existence pursuant to the Anti – Corruption Act of 2000. The mission of the Commission is to lead the fight against corruption through public education, prevention, enforcement and compliance for the benefit of all Sierra Leoneans. The ACC Act of 2000 has however been repealed by the ACC Act of 2008 to provide for the continuance of a more robust and independent Anti-Corruption Commission.
Section 7 of the ACC Act of 2008 lists out the functions of the Commission. Chief among many others is the responsibility to take all necessary steps to prevent, eradicate and suppress corruption in Sierra Leone. Such steps include the receiving of complaints of alleged corrupt practices and other contraventions of the Act and the investigation, prosecution and punishment of corruption and corrupt practices in Sierra Leone. By the Constitutional Amendment Act of 2008, the prosecutorial powers of the Attorney General under Sections 64 (3) and 66 (4) (a) of the 1991 constitution in respect of any offence against the laws of Sierra Leone have been limited to exclude offences dealing with corruption as prescribed under the ACC Act of 2000. By this amendment therefore, the Anti- Corruption Commission became seized with the mandate of prosecuting all corruption offences in Sierra Leone since 2008.
However, unlike other institutions such as the Office of the Ombudsman, the Auditor General and the Judicial and Legal Service Commission enshrined within the 1991 Constitution of Sierra Leone, it is vital to note that the ACC is not a constitutional creation. Nowhere in the 1991 Constitution of Sierra Leone is the institution Anti – Corruption Commission mentioned. This situation has been quite worrying for many Sierra Leoneans and international agencies who consider the Commission as an effective watchdog and accountability framework within the Sierra Leonean society. The absence of ACC within the Constitution has therefore been construed by many as a direct attack on the life span, independence and effectiveness of the Commission. Insulating the Commission into the new constitution therefore will certainly help prevent unnecessary changes from taking place.
Justifications or reasons for insulating the Anti- Corruption Commission into the new constitution of Sierra Leone
There are good and compelling reasons why the ACC must be insulated within the new Constitution of Sierra Leone.
Firstly, it is crystal clear that the ACC is a creation of Parliament and not the Constitution. Unlike the Constitution however, an Act of Parliament can be easily amended or repealed. It is therefore risky to leave such a desirable institution standing on just the foot of an Act of parliament.
Secondly, the ACC has been seen by many as the true watch dog of the people. As a matter of fact, it has been reputed both locally and internationally as the most effective accountability institution in Sierra Leone. It will therefore be in the best interest of the people of Sierra Leone to have the institution insulated within the new constitution.
Furthermore, possibility exists for a government that is uncomfortable with the work of the Commission to wake up one morning and amend the ACC Act of 2008 or the Constitution of Sierra Leone Amendment Act of 2008 in ways that might deprive the Commission of effective resources and/ or independent prosecutorial powers to carry out its work and operations.
Also, insulating the ACC into the new constitution will not only help to secure the tenure and lifespan of the commission but will further embolden the Commission to carry out its mandate without any fears from the powers that be.
Moreover, when such accountability institutions are provided for under a constitution, it becomes difficult if not impossible for the political class to dissolve them since attempting to do so will require a referendum by the people.
More important still, insulating the ACC into the new constitution will send a strong message to the international community about the seriousness of the political class and people of Sierra Leone to fight graft within their jurisdiction.
Fundamentally also, the fact that Sierra Leone is now a signatory to the UN Convention against Corruption and the African Union Convention on Preventing and Combating Corruption puts an obligation on the country to take steps that will help insulate its Anti-Corruption Commission from political interference, manipulation or control.
The work of other parallel accountability institutions created within the Constitution such as the Auditor General’s Office and the Office of the Ombudsman can be assisted greatly when the ACC is provided for under the new Constitution. For example, special Audit Reports carried out by the Auditor General or public complaints of administrative abuse investigated by the Ombudsman can be referred to the ACC for further actions.
Finally, it will also help to clear doubts in the minds of critics who maintain that the ACC is another façade institution set up by the political class to satisfy benchmarks and conditions imposed by the international community in order to secure donor funds.
The Anti – Corruption Commission like the Offices of the Ombudsman and Auditor General must be provided for under the new constitution with clear independent powers to prosecute all corruption related offences as enshrined under the 2008 ACC Act of Sierra Leone. Furthermore, clear- cut provisions relating to the recruitment, resource allocation and removal of staff of the Commission must also be set out within the new Constitution.
It is no gainsaying that the ACC, since its inception, has shown enormous strides in the fight against graft in Sierra Leone. Despite the huge oppositions, challenges and bottlenecks it has encountered from various sectors of the society, the institution has continued to thrive on irrespective. But if the Commission’s successes are to be sustained, its life span secured and its staff members emboldened in the fight against graft, then an urgent action must be taken to insulate the Commission into the new constitution of Sierra Leone.
*All Rights Reserved
Rashid Dumbuya is a practicing Barrister and Solicitor from the Republic of Sierra Leone as well as an international human rights advocate and Public Defender. He is currently a state prosecutor at the Anti- Corruption Commission and a part-time lecturer in the Department of Law, Fourah Bay College University of Sierra Leone.
For further inquiries, please contact RASHID DUMBUYA Esq. via Email: email@example.com