The High court of Sierra Leone on 28th June 2011 delivered its judgement in the case of the State versus Allieu Sesay, Samuel Cole, Franklyn Pratt, Gloria Gabisi and Fatmata Ojubara Sesay (first, second, third, fourth and fifth accused, respectively). The judgement, prepared by Honourable Justice Ademosu and delivered by Honourable Justice E.E Roberts, acquitted and discharged all five accused persons on the grounds that the prosecution failed to prove the charges in the indictments.
Hon. Justice S. Ademosu
Joseph F Kamara, Commissioner ACC Allieu Sesay, erstwhile NRA Commission General
They were acquitted on all of the charges, including wilful failure to comply with procedures and guidelines relating to procurement, conspiracy to commit a corruption offence, knowingly misleading the Anti-Corruption Commission, abuse of office, abuse of position, peddling influence, offering and accepting an advantage, and conflict of interest, contrary to the Anti-Corruption Act 2008. The trial lasted for more than six months, in which the Prosecution called twenty-two witnesses. At the close of the prosecution’s case, all the accused elected to rely on their statements made to the Anti Corruption Commission (ACC), although the first accused chose to testify in his own defence. First Accused Allieu Sesay was the Commissioner-General (CG) of the National Revenue Authority (NRA) between January 2008 and December 2009. The fifth accused was the wife of the first accused, but throughout the trial, the prosecution focused on her business relationship with the NRA. The ACC alleged that she, together with the second, third and fourth accused were senior officers of various companies or enterprises who breached procurement procedures.In terms of applicable law and factual findings, the judgement stated that the prosecution had not discharged the evidential burden of proving that any of the accused was involved in the crimes for which they were indicted. In a criminal matter, the standard of proof requires the prosecution to prove its case beyond reasonable doubt; otherwise, the court cannot enter conviction as the accused persons do not have any responsibility to establish their innocence. The Defence only needed to satisfy a balance of probability requirement by creating doubt in the mind of the judge, where as the prosecution had a standard of proof which required them to prove ‘beyond reasonable doubt’. Despite the relatively low threshold for the defence, the fact that the judge did not place more weight on the prosecution’s numerous pieces of evidence may suggests that there were flaws in the prosecution’s case. This is partly what the following analysis seeks to establish
The prosecution had argued that, as the head of NRA, the first accused ought to have known that his subordinates were violating procurement procedures. Also, the prosecution argued that such knowledge amounted to conspiracy, as it might have been done in concert with the other NRA employees responsible for tendering of contracts and procurement. The prosecution’s assertions were rejected by the judge. In his verdict, Justice Ademosu rejected the prosecution’s theory of superior liability. Superior liability is the idea that supervisors, in some situations, should be culpable for the acts of their subordinates. Instead, the defence’s submissions relating to the individual circumstances of each accused were given more weight. The court agreed with the prosecution that the CG is a superior position in the NRA, but concluded that a person in such a position may only be convicted if he or she showed direct or indirect responsibility in situations where he is charged with the offence of misappropriation of public or donor funds, or unexplained wealth.
The judgement also noted that while the NRA was allegedly transacting business with Fatmata Allie enterprises, that piece of evidence alone could not prove that Mrs. Fatmata Sesay (the fifth accused) is the owner or has any interest in the business. This was why the ACC found it difficult to show that the CG misled the ACC by saying that there was no service provider in the NRA database by the name of Fatmata Sesay. The judgement said the Prosecution had the onus to have established that Fatmata Sesay was transacting business with NRA or had an interest in Fatma Allie enterprises, rather than relying on the supposition that there is Fatmata Allie enterprise in the database and the said enterprise belongs to the fifth accused.
On the issue of abuse of office and position, the first accused was acquitted and discharged on all related charges because, according to the court, he cannot be culpable for the actions of his subordinate, who allegedly awarded contracts to his wife.[1] Furthermore, according to Mr. Charm (PW3), contracts that were allegedly awarded to Fatmata Allie enterprises fall below the ‘threshold’ of the public procurement procedure and thus did not warrant the intervention of the CG. As a result, he could not have been said to have abused his position or office by awarding contracts to his wife. After describing the consideration surrounding the court’s deliberations, the judgement acquitted and discharged the first accused.
Another significant finding was that statements and evidence adduced must be consistent with the particulars of offence. The judgement noted that the statement of offence in each of the charges was at variance with the particulars of the offences and the evidence led by the prosecution.[2] “Wilfully failing to comply with procedures and guidelines,” as provided in section 48(2), is meant to apply to specific public officer whose duty is to inter alia administer and manage public funds. Being the CG does not, however, put the first accused in the position of determining procurement and offering contracts, as alleged by the prosecution. Furthermore, the words of Section 48 (2) do not apply to private companies or enterprises, as they cannot be culpable for any inefficiency of public officers.
While the judgement acquitted all the accused, it further suggested that it will not consider vicarious liability as a mode of criminal responsibility on the grounds that it has ‘no place in criminal law’ and the prosecution should prove both the mental state of the accused and the forbidden act for which he stands indicted. This decision could prove significant in other ACC cases especially where the Commission has alleged that superiors are bound by the acts of their subordinates. Also, the judgement noted that conspiracy as a mode of criminal responsibility is not merely a concurrence of wills, but a ‘concurrence resulting from agreement’. In other words, there has to be an agreement and an intention to carry out the unlawful act as agreed by the parties. However, section 28 (1) of the Anti-Corruption Act 2008 provides that acts of aiding, abetting and procuring a corrupt practice amount to an offence even in situations where the offence had not been completed. While private companies may not be governed by the provision of section 48 (2), they can, however, conspire to commit a corrupt offence. A company, not being a public body, is no bar for conviction if he conspires to procure aid or abet the commission of a corrupt offence. Finally, the ruling said the fifth accused’s name was not in the NRA data base, so the first accused could not have misled the ACC by telling investigators that the NRA was not doing business with the fifth accused. But, the veil of incorporation can be lifted in situations of fraud or illegal act. This veil protects members of a corporation not to be culpable for actions or transaction conducted with the company or business enterprises. In a trial of business owners, the prosecution may have a strong case for lifting the veil if they can establish that such owner is unjustifiably hiding under the corporate cloak.
In concluding, while the prosecution had a demanding standard of proof to establish the guilt of each accused person, it still preserves that the prosecutor may overcome that hurdle with the right evidence. Pursuant to section 39 and 40 of the Court of Appeal Rules, both defence and prosecution may appeal a decision on a point of law or question of fact invalidating the decision. The prosecution has indicated that it is planning to file an appeal, which may or may not determine the final outcome of the trial.
[1] Ibid pg71-72
[2] See judgment in the State v. Allieu Sesay and Others, 28th June, 2011. pg 64
