A Public Lecture by Francis Ben Kaifala Esq., Commissioner of the Anti-Corruption Commission of the Republic of Sierra Leone at the Njala University, Bo Campus, Bo, Sierra Leone, on 14th May, 2022.
1. All protocols observed, distinguished ladies and gentlemen.
2. Mr. Chairman, ladies and gentlemen, “We live in a society with institutions that exist and ensure their legitimacy by providing the basic needs for the people to live a happy life. Nothing harms this objective more than the absence of accountability which ultimately leads to the moral evils of corruption in the organs of these institutions.” Those are the words of Rev. Father Augustine Bangalie, Spiritan Provincial Superior in his foreword to the book ‘THE HURRICANE: The story of Corruption and Accountability in Sierra Leone’ written by our dear Rev. Fr Luseni who is here with us today to witness this lecture.
3. Mr. Chairman, ladies and gentlemen, the topic for this Public Lecture, ‘The Rule of Law Vs The Fight Against Corruption: Delineating The Jurisprudential Province of Corruption Clean-Up Campaign As The Centerpiece For Ensuring Justice And Good Governance’ is apt for this stage of Sierra Leone’s Socio-political development.
4. The purpose of Law in Society is to establish standards, maintain order, resolve disputes, and protect liberties and rightsso as to keep society peaceful. Law regulates conducts, avoids or settles disputes, sets out rights and obligations, provides remedies, maintains order & provides protection, sets up the structure of government and directs how to make laws. Without law, as Thomas Hobbes had pointed out, the life man would be continual fear of danger of violent death; and the life of man solitary, poor, nasty, brutish and short. As HLA Harte rightly observed, in his seminal work “The Concept of Law”, It is the existence of laws and sanctions for noncompliance that primarily ensure that people live with each other in an orderly communion.
5. However, laws are not always enough. There are times when policies, cultures, traditions, customs, conventions, and usages also play their role in creating a peaceful and serene society. Sierra Leone from pre-colonial era, through colonial era on to the modern day exists on two forms of laws, rooted in hard paternalism and libertarian paternalism – British based Common Law and Customary Law – some of which are contained in statutes.
6. If we choose to apply “stone age” thinking and laws to modern times’ WICKED PROBLEMS like Corruption, there is the likelihood that they will not be relevant to those issues or they are not robust enough to cover what those issues require to solve them. In light of the above, we have to ask ourselves the question whether the spheres of our laws are wide enough to cover the contemporary issues that our society is faced with? Are we prepared to challenge ourselves to expand those laws to uncover previously uncharted territories?
7. This is a problem because; while a lot has been said and done in respect of the Rule of Law, we have not been able to carefully probe into the “role of law” in our society. Focusing on achieving the “Rule of Law”, in the sense as propounded by Professor A.V Dicey, without defining the “Role of Law”, is an elusive venture and may probably remain unachievable. The role of the law is to ensure that no sphere of human relations is left unregulated lest the law will fail to serve its purpose and society likely to degenerate into chaos as each man tries to apply ad hoc rules to fill the void. It is only with this role in place that the law can be truly said to rule. Without the role of law being defined, the law would fail to provide the answers that society needs; and this is already happening. To change this, we all have to be prepared to shift the parameters of our laws into newer areas and disciplines so as to make them catch up with the changing times that befit the 21st century.
THE RULE OF LAW
8. Mr. Chairman, ladies and gentlemen, the American Bar Association defines the rule of law as a set of principles, or ideals, for ensuring an orderly and just society; where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.” This description is similar to those given by ancient political philosophers like Plato, Socrates, John Locke, among others.
9. In defining whether political leaders and kings should also be subjected to the dictates of the rule of law, Bracton, a British writer and proponent of the doctrine holds that the political powers and leaders are a creation of the law and must therefore be subject to the law. Some political commentators have however often seen the doctrine as elusive.
10. To give it meaning, British Jurist A.V. Dicey, gives three distinct characteristics of the rule of law:
11. Supremacy of the Law- This means that the law of the land should be supreme. It also means that citizens should not be subjected to the arbitrary power of the government or be punished for anything except in accordance with the law.
12. Equality before the Law- This means that, irrespective of social, political or economic status, every citizen of the state is subject to the laws of the land.
13. The third distinct characteristic of the rule of law is that ‘The Activities of Government must be conducted within the Framework of the Law.
THE FIGHT AGAINST CORRUPTION
14.On the other hand, Corruption is the abuse of entrusted position or office for private gains. According to the World Bank, it is “a form of dishonesty or criminal offence undertaken by a person or organisation entrusted with a position of authority.”
15.Transparency International describes corruption as “public servants demanding or taking money or favours in exchange for services; politicians [and people in position of trust] misusing public money or granting public jobs or contracts to their sponsors, friends and families; and corporations bribing officials to get lucrative deals.”
16. As I have stated in another public lecture before, the Anti-Corruption Act 2008 as amended in 2019 does not provide a definition of the term ‘Corruption’. However, the Act outlines a list of offences and practices which constitute an act of corruption. They include; Bribery, Misappropriation of Public/ Donor Funds/Property, Corrupt Acquisition of Wealth, Unexplained Wealth, Bid Rigging, Impersonation, Failure to declare assets, among many others.
IMPORTANCE OF FIGHTING CORRUPTION
17.Kristalina Georgieva of the World Bank once remarked that: “A lack of transparency fuels corruption, a corrosive force that hits the poor and the vulnerable the hardest. Its effects are very real. Corruption stops medicine and drugs from reaching the sick, stops schools from being built, leads to roads washing away in the rain, and empties the public coffers. breaks the trust between the citizens and the state that is critical for development to work.”
18. In Sierra Leone, we know that corruption was one of the major factors singled out by the Truth and Reconciliation Report for the decade-long civil war in this country during the 1990s that accounted for the loss of the lives of tens of thousands of Sierra Leoneans and the near collapse of social amenities and law and order.
19.According to the Bureau of International Narcotics and Law Enforcement Affairs in the US Department of State, putting a check on corruption “boosts [economic] stability, the rule of law, human rights, and democracy.”
UPHOLDING THE RULE OF LAW VERSUS THE ANTI-CORRUPTION CLEAN-UP CAMPAIGN; WHERE DO WE STAND IN ENSURING JUSTICE AND GOOD GOVERNANCE?
20. As a Commission and as a people who, more than ever before, are committed to the eradication of corruption, we could agree that we cannot afford to tilt the scale of the rule of law and the fight against corruption in such a way that we undermine the functionality and success of one over the other. If we must succeed and develop as a nation, then we must uphold the anti-corruption campaign and the rule of law on an equal pedestal.
21. When you consider the effect of corruption on our socio-economic and political development and how corruption undermines justice, the rule of law and good governance, you will agree with me that the anti-corruption campaign is as significant as the rule of law. Koffi Annan, former UN Secretary General of blessed memory, once stated in the forward of the United Nations Convention against Corruption that “Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.” Ladies and gentlemen, to my mind, there is nothing as systemically destructive than corruption.
22. Corruption is one major reason why most African countries, including Sierra Leone, are still poor and undeveloped today in spite of having plenty. Corruption hurts the poor disproportionately by diverting funds intended for development, undermines government’s ability to provide basic services, feeds inequality and injustice and discourages foreign aid and investment. Corruption is a major factor in economic underperformance and a fundamental obstacle to poverty alleviation and development.
23. Ladies and gentlemen, our country Sierra Leone just turned 61 and because of corruption we still struggle for some of the basic necessities of life in spite of the fact that nature has blessed us with plenty of resources. The chronicles of our history as a nation are engrossed with the bedeviling and gloomy realities of the menacing effects of corruption.
24.Yes, I agree with human rights activists that the rule of law must be upheld. Yes, I agree that the presumption of innocence is a cardinal principle of our criminal justice system. But corruption itself is also a human rights issue because when it occurs, for example, public funds or property that are meant for the benefit of the majority of people will be diverted to the use and benefit of an individual or a selected few, resulting in the lack of or inadequacy of access to some of the basic amenities of life. In fact, the rule of law itself will never thrive or succeed in a nation that condones corruption and celebrates the corrupt. Therefore, in as much as we have an obligation to uphold the rule of law as a means of ensuring justice and good governance, if we must indeed ensure justice and good governance then we must confront corruption with the right mindset, posture and determination and be prepared to go very hard on the corrupt. We must not keep our hands overly constrained by the law while confronting a vile and loose enemy who continues to destroy our nationhood. We must emphasis the COLLECTIVE GOAL more than even the individual right or liberty within the framework of the Rule of Law
25. Ladies and gentlemen, we are at a stage in our anti-corruption campaign where, more than ever before, we need to be smarter, poised and radical in our collective approach in order to win the fight against the corrupt. Many a time people who engage in corruption have the necessary means to evade the criminal justice system, either by way of interference with witnesses, destroying evidence or using the media to sway public opinion in their favour, using socio-political influence or sometimes as condescending as using corruption to escape the punishment for corruption. Therefore, as anti-corruption campaigners we must find ways and means of outsmarting the corrupt at their game using the very Rule of Law. This does not mean that we should not uphold the rule of law, of course we cannot circumvent respecting the rule of law because it is a cardinal principle of our legal and democratic process. Rather, what it means is that we must be contextual and pragmatic in our anti-corruption strides. There must therefore be a robust and proactive legal and institutional framework that should create the enabling environment for mounting a successful anti-corruption campaign, uphold the rule of law and ensure justice for all.
26. The fight against corruption in any context requires strategy; and a full-spectrum anti-corruption strategy should not only focus on laws and institutions alone. A key aspect of that strategy is prevention, which is also one reason why I stand before you today to get all of us to really understand that the fight against corruption is a collective fight that we must take as seriously as the need for upholding the rule of law.
27. We at the ACC are mindful of the saying in judicial corridors as earlier noted by Roscoe Pound in his article titled “The Theory of Judicial Decision”: that cases are not merely decided on the facts, but on the basis of judicially developed principles. To better understand this position, one only needs to be reminded of the statement a Nigerian Judge, Justice Awokulenhin made in delivering his judgment in the case of Agbor Ele Vs The State (2006) that: “the court of law arrives at its findings and decisions based on the evidence placed before it by the contending parties… that it must of necessity be emphasized that law should only be applied to the facts of a case. It is not for the court to manufacture such facts or move from law backwards to facts on the pretense of justice”. The rule of law is at the mercy of the judiciary and that makes it unreliable. Judges are strategic actors and not always rational decision-makers. They are therefore more of a problem than a solution. A case that has a party that a judge or the system sympathizes with for whatever reason is doomed.
28. A crucial part of anti-corruption campaign is the necessity for an uncompromising judiciary that will not only interpret and apply anti-corruption laws but also ensure fair and expeditious trials of persons who have been accused of corruption, which is also in sync with adhering to the principles of the rule of law. The Judiciary is therefore a key player in the actualization of a robust anticorruption regime as well as upholding the rule of law. While, since 2019, the Anti-Corruption Division of the High Court with specially assigned judges was established with a view to ensure speedy trials of anti-corruption matters and guarantee fairness in the trials of persons who are indicted for corruption offences, we are yet to fully yield the dividends of this bold move as old ways threaten to creep back into the fabric of judicialization.
29. As we continue to accelerate the fight against corruption through our collective efforts, Sierra Leone continues to make unprecedented gains in the fight against corruption. From 2018 to date the Afrobarometer confirms the reduction of corruption prevalence in Sierra Leone from 70% to 40%, and in these four years our Millennium Challenge Corporation Score has jumped from a failing 49% to an excellent 83% while we have also moved 15 places upwards in Transparency International’s Corruption Perception Index. The reality of this trajectory is that as we continue to expand the frontiers of our anti-corruption campaign with unmatched determination and positive results, we also continue to witness a restoration of public trust in the work of the Commission to such an extent that the Anti-Corruption Commission is now viewed by many as the entity that should handle each and every public interest complaint, and sometimes even complaints that are unrelated to our mandate.
30. However, the rule of law dictates that probing and investigations by the Anti-Corruption Commission cannot be triggered by public interest alone. Indeed, the Commission was established to fight corruption on behalf of the people of Sierra Leone to whom it is also accountable. There could also be instances in which public interest may influence the work of the Commission by way of expediting investigations, publishing reports and releasing certain information to the public in a timely and coherent manner. But public interest alone is not sufficient to trigger an action by the Commission because the jurisprudential province of Sierra Leone’s anti-corruption campaign is dictated and regulated by the rule of law as encapsulated in the Ant-Corruption Act of 2008 as amended in 2019.
31. One could imagine that because the prevalence of corruption undermines the rule of law, an anti-corruption clean-up campaign should be permitted to do “everything necessary” to eradicate corruption as per section 6(5) of the 1991 Constitution which expressly enjoins “The State shall take all steps to eradicate all corrupt practices and the abuse of power”. The reality, however, as we have it, is the reverse because even as anti-corruption campaigners, we must ensure that our work is done within the confines of the dictates of the rule of law. For instance, even if our Scorpion Squad apprehends a public officer at the height of accepting a bribe, in spite of the overwhelming nature of the evidence, the rule of law dictates that he is an innocent man until the court of law finds him guilty. However, the evidential burden in such a situation has now been shifted to the accused as a result of the presumption of corruption provision in Section 8 of the Anti-Corruption (Amendment) Act of 2019.
32. Indeed, the presumption of innocence is what makes criminal law and practice interesting but there are some other principles which could sometimes tend to put a strain on the fight against corruption. For instance, the right to a fair trial demands that an accused must be aided with an interpreter if he does not understand the language of the court, and if the accused is a Chinese then it means the court must provide someone who is able to translate from Chinese to English and vice versa, which will most times cause delay. Of course, in the interest of justice this is very essential but there have also been times when accused persons, who speak and understand English outside the courtroom, will suddenly lack any understanding of English language in an effort to evade the swiftness of criminal punishment. Also, as part of the right to a fair trial, an accused has a right to be present during his trial. This requirement sometimes poses serious challenge to the prosecution of a person who has the means being a fugitive, and also those who will sometimes flee the jurisdiction because of the enormity of the evidence against them. `However, the 2019 Amendment to the Anti-Corruption Act has helped our anti-corruption campaign in this regard by providing in Section 7 (2) that where a person who is charged with a corruption offence fails to present himself before the Court he may be tried in absentia.
33. Section 7 (1) of the Anti-Corruption Act of 2008 which deals with the functions of the Commission, provides, among other things, that the Commission should take “…all steps as may be necessary for the prevention, eradication or suppression of corruption and corrupt practices” and to also “investigate any matter that, in the opinion of the Commission, raises suspicion…” of the committal of a corruption offence. Ideally, a liberal and pragmatic interpretation of these provisions would mean that the Commission should be at liberty to take any action that it deems necessary to address the scourge of corruption, including parading the corrupt in the full view of the public, especially those against whom the Commission has very strong and compelling evidence, or naming and shaming the corrupt in addition to any criminal punishment imposed by the courts, or some other form of practical and contextual sanction or punishment that will further discourage anyone from indulging in corrupt practices. And truly, this is the kind of anti-corruption culture and posture we need to imbibe and demonstrate in order to eradicate corruption and create the enabling environment for good governance and the alleviation of poverty.
34. The reality, however, is that the dictates of the rule of law in our democratic dispensation, especially the presumption of innocence, and also the sanctity of constitutionalism and the relativity of justice[1] are forged with a view to guide not only the political governance process but also the enforcement and implementation of the law on corruption. And for good reasons, our legal and democratic governance system has been patterned in this way in order to checkmate the excesses of the exercise of power and authority and to also preserve uniformity, certainty, coherence and predictability of our justice system. Lord Acton once said that “…absolute power corrupts absolutely” but Ladies and gentlemen, the only thing that corrupts more quickly is lack of power, especially in a fight where the opponent (the corrupt) has the upper hand.
35. Therefore, as a nation we can no longer afford complacency in our anti-corruption campaign efforts because the cost of corruption is engrossingly high for us to continue to endure. We have come too far in the journey of the fight against corruption and we cannot afford to take our feet off the pedal. If we really mean well for this nation, now is the time that we must continue to develop and imbibe an anti-corruption culture that will enhance Sierra Leone in traversing the challenges of justice, governance and development, and we must continue to find ways and means of surmounting the challenges that even the rule of law presents.
CONCLUSION
36. In conclusion, there is no gainsaying the fact that the cost of corruption is so high that no society should be willing to pay its price. While it may be possible for a corrupt system to coexist with the functioning of the rule of law, in practice the worse the corruption, the more likely it is to endanger the rule of law. The anticorruption campaign which we are leading as a nation is not a one-size-fit-all campaign, rather it is a campaign and a fight that is contextual and it must therefore be shaped by our context and the tactics of the corrupt. The demand is really no longer one of applying a collection of more or less technocratic solutions, rather it is how we must develop nuanced sets of possible remedies that ‘fit’ our context.
37. There is however no doubt that the combination of the rule of law elements of equality before the law, right to fair trial, presumption of innocence and the determination of rights by the courts constructs a paradigm of accountability for the exercise of power and the realization of justice and good governance in the nuances of our anti-corruption campaign. And in reality, the rule of law performs a crucial role in ensuring not only justice and good governance but also in shaping and directing the fight against corruption, and this constitutional normative architecture concretizes the relevance of the judiciary as a ‘guardian institution’ and reinforces the need for a demarcation of our anti-corruption campaign.
38. On the other hand, combating corruption is not only a fundamental prerequisite for nourishing ongoing democratization efforts, it is also crucial to the institutionalization of the rule of law and as well as the preservation of public order and security. The rule of law and the fight against corruption are therefore not as antithetical in nature as one may think, in fact they are more reinforcing of each other than they are opposites. However, the context of warfare always determines the instruments of the fight, and if we must continue to win the fight against corruption in Sierra Leone we must think contextual rather than normative.
39. A lot has been done about the Rule of Law but not much has been done about understanding the Role of Law. It is in the Role of Law that the Rule of Law can be achieved. Our society has to develop research systems which will inform the rule of law for better success of our laws.
40. We have to break away from the abstract law-giving and conduct more research and develop laws that problem-solve rather than merely exist. We have to recognize that purely international approaches to issues like human rights protection, commerce, constitutionalism are insufficient without strong counterparts in domestic law. We have to take a proper look at our domestic institutions and mindset of our people and champion the creation of Constitutional guarantees, judicial review, greater judicial independence, and “access to justice” which will naturally lay a better path to the development of a “Sierra Leonean Rule of Law”. For this to happen, it should be understood that such a project would require substantial effort both to dismantle older systems that had buttressed under-development and backwardness and create the new culture and institutions needed to protect collective democratic freedoms. I know this new focus will create unease in traditional formalist legal reasoning and ethos but we have nothing to lose but the chains of unprogressive thinking that has held us hostage for over 60 years after attaining independence.
41. As Pratibha Patil, the 12th President of India, once put it, “Corruption is the enemy of development, and of good governance. It must be got rid of. Both the government and the people at large must come together to achieve this national objective”.
42. You the young people of this country have a huge role to play. In the words of renowned songwriter Kurt Cobain, the duty of the youth [or young people] is to challenge corruption”. I now throw that challenge to you today; and we must start by delineating the boundaries that belie both the rule of law and the campaign against corruption while prioritizing that which challenges our collective interest most!
I thank you!
Long Live Sierra Leone!
[1] Justice and rights are mere social constructions and not timeless forms; in order words justice and rights are what society says they are and nothing else. Therefore, since there are many societies and nations in the modern world, there are also many different and often conflicting concepts of justice and rights. For example, justice and rights in the United States of America are different from those in Saudi Arabia or China.
