Chapter 3: Prosecution

3 Prosecution

 

SIERRA LEONE
A country review of crime and criminal justice, 2008

 

African Human Security Initiative



Monograph No 160, May 2009

 

Introduction


Globalisation has spawned many social, economic and political problems that are often manifested in the commissioning of crimes by felons and petty criminals. This class of people are often a threat to the peace, order and well being of society. Technological advances have also brought with them some hi-tech crimes not contemplated in the penal laws of Sierra Leone and not accommodated under the Criminal Procedures Act of 1965. Such crimes include cyber crime, economic crimes, trafficking in hard drugs, the smuggling of precious minerals and trafficking in people. Of course, not all these crimes are wholly attributable to technological developments, but they have become more sophisticated. To address these crimes, a country needs a vibrant judicial system, good prosecution services and an efficient judiciary. The laws of a nation should be evolving continually in response to changes in the crime spectrum.


The prosecution of felons and criminals is the responsibility of a state’s prosecution services. In Sierra Leone, the foremost prosecution authority of government is the Office of the Director of Public Prosecutions to which officers of the Sierra Leone Police (SLP) are attached for prosecutorial duties. The main legal/procedural instrument for the prosecution of crime is the Criminal Procedures Act of 1965.

Constitutional framework of the prosecution services


The prosecution of crime in Sierra Leone derives its validity from the provisions of the Constitution of 1991. The positions of Attorney-General, Minister of Justice and Solicitor-General and the Office of the Director of Public Prosecutions were all created under the Constitution.


Office of the Attorney-General


The Attorney-General, who also holds the position of Minister of Justice, is the principal legal adviser to government. He is appointed by the President of Sierra Leone and holds office as a justice of the Supreme Court. He is empowered to prosecute all offences committed within the territory of Sierra Leone, or to authorise some other person to do so in his stead. He has audience in all courts except local courts.


Office of the Solicitor-General


The Office of the Solicitor-General is a public office established under section 65(1) of the Constitution. The holder of the office is appointed by Sierra Leone’s President on the advice of the Judicial and Legal Service Commission and shall be a person qualified to hold office as a justice of the Court of Appeal. The Solicitor-General is the principal assistant to the Attorney-General and has audience in all courts of Sierra Leone except local courts. The Solicitor-General shall be subject to the general or special direction of the Attorney-General in all matters.


Office of the Director of Public Prosecutions


According to section 66(1) of the Constitution, the Office of the Director of Public Prosecutions is directly responsible for the prosecution of all infractions of the law in Sierra Leone, consequent upon the Director of Public Prosecutions (DPP) obtaining the authority to do so from the Attorney-General. The DPP is appointed by the President of Sierra Leone on the advice of the Judicial and Legal Service Commission and shall have the requisite qualifications to sit as a Justice of the Court of Appeal. His appointment is, however, subject to the approval of Parliament. The powers of the DPP are as follows:

  • To institute and undertake criminal proceedings against any person before any court in respect of any offence against the laws of Sierra Leone

  • To take over and continue any such criminal proceedings that may have been instituted by any other person or authority

  • To discontinue at any stage before judgment is delivered any criminal proceedings instituted, or undertaken by himself or any other person or authority

The power of the DPP under section 66(4)(c) of the Constitution is known in legal parlance as the power of nolle prosequi. This power, though a laudable constitutional provision, is susceptible to abuse, especially in politically sensitive cases. The power is often used in political matters.


The DPP is also empowered under the constitution to delegate his responsibilities to persons acting under him and in accordance with his general or special instructions. However, the exercise of this power shall be subject to the general or special direction of the Attorney-General/Minister of Justice.

Institutional arrangements of the prosecution services


Apart from the constitutional arrangements for the prosecution of crime in Sierra Leone, there are some other institutional structures in the prosecution process. These arrangements will be examined with reference to existing legal regulations (excluding the Constitution) and the personnel/infrastructural frameworks.


The Attorney General’s control over criminal proceedings


Section 64 of the Constitution outlines the Attorney-General’s powers for controlling criminal proceedings. These include the power to discontinue criminal proceedings at any time before the delivery of judgment. This power is also provided for under the provisions of sections 44 and 45 of the Criminal Procedures Act. In any criminal case and at any stage thereof, before verdict or judgement, the Attorney-General may accordingly enter a nolle prosequi by informing the court in writing that the Crown intends that the proceedings shall not continue. Where this is the case, the accused or the defendant shall at once be discharged in respect of the charge for which the nolle prosequi is entered. Where the accused has been committed to prison, he shall be released and if on bail, his recognisance shall be discharged. Discharge in this case shall not operate as an acquittal and is not a bar to subsequent prosecution of the accused on the same facts. Some of the powers vested in the Attorney-General by virtue of section 44(1) of the Criminal Procedures Act can be delegated by him to law officers. The exercise of such powers by a law officer is coterminous with its exercise by the Attorney-General. However, the power to exercise nolle prosequi is only exercisable by the Attorney-General and is non-delegable.


The prosecutorial powers of the Sierra Leone Police


Under section 24 of the Police Act of 1964, police officers are authorised to prosecute infractions of the law before any court of summary jurisdiction, i.e. inferior courts of record such as Magistrates’ Courts. The section provides that:

Any police officer may conduct in person all prosecutions before any court of summary jurisdiction whether the information or complaint be laid in his name or not and whether or not the offence was committed in his presence or that of any other police officer.

The prosecutorial power of the police is a consequence of the shortage of skilled legal manpower in Sierra Leone. However, police prosecutors can only prosecute non-indictable offences. Trials in Magistrates’ Courts involve summary trial offences and police officers can thus only prosecute summarily at Magistrates’ Courts. A condition precedent to the exercise of the power of prosecution is that the Attorney-General must have given a police officer the authority to prosecute.


However, as revealed by the survey, the capacity of police officers to carry out this function is inadequate. The effective prosecution of cases by police officers is often inhibited by poor education, paucity of legal knowledge in the areas of substantive and procedural law, and a lack of diligence on the part of prosecutors. This often leads to accused persons being discharged, to the consternation of the victims of crime.


Another serious difficulty that militates against the effective prosecution of cases by police officers is the shortage of police prosecutors. Currently Sierra Leone only has about 85 police prosecutors to service the country’s 14 districts. Given that most cases of infraction of the law fall in the non-indictable offences category, and considering the rise in the prevalence of non-indictable offences, it is abundantly clear that the number of police prosecutors in Sierra Leone is inadequate to meet the needs of effective prosecution at magisterial court level.


The lack of commitment by police prosecutors has the effect of most criminal wrongs not being redressed. It should be noted that where a police prosecutor fails to appear in court after being served with a hearing notice that stipulates the time and place of the hearing, the charge is dismissed by the court. At best, if there are cogent and compelling reasons, the case is adjourned.


A of drawback of political interference in policing has been the lowering of educational requirements for enlistment and the role this has played in the poor prosecution record of police officers. The reduction in enlistment requirements was probably intended to absorb political surrogates who had contributed to the electoral victory of particular parties.


It is evident that the prosecution of cases will remain unsatisfactory unless the following actions are implemented:

  • The educational requirements for enlistment into the force are reviewed

  • Proper and coordinated refresher courses are conducted for police prosecutors

  • Incentives are introduced to encourage police prosecutors to be more effective.

Prosecution and the shortage of State Counsels


Effective prosecution, especially at the superior court of record, is dependent on the requisite legal manpower being available. In Sierra Leone there is a dearth of State Counsels. The Law Officers’ Department has a staff compliment of only about 23 persons and they are overwhelmed by the sheer number of cases needing prosecution (Table 9).

 


One of the reasons advanced for this under-capacity is that the remuneration package for law officers is such a disincentive that legal practitioners in the private sector are reluctant to take up appointments as State Counsel. Most law officers in Sierra Leone work in the Western Area, where the majority of the cases are pending. The other three regions only have one law officer each.

Links between the Office of the Director of Public Prosecutions and other agencies


While the DPP’s office is primarily responsible for criminal prosecutions, there are other law enforcement agencies whose functions are adjunctive to that of the DPP. One is the Anti-Corruption Commission (ACC), which by virtue of the recently amended Anti-Corruption Commission Act is empowered to prosecute.

Problem areas in the prosecution services


The politics of prosecution in Sierra Leone


There is consensus of opinion among respondents that the Office of the Attorney-General, headed as it is by an Attorney-General/Minister of Justice who is a political appointee, cannot be insulated from politics. The influence of politics in the prosecution of cases is reflected by the fact that criminal allegations against members of the opposition are more likely to be prosecuted than such cases against members of the ruling party.


The need to amend the Criminal Procedures Act


All the respondents were of the opinion that the Criminal Procedures Act is in urgent need of amendment. The obsolete nature of the legislation is demonstrated by the continued use of such terms as ’Crown’ and ’Crown Counsel’. As the procedural law in regard to the prosecution of crimes, the Act’s provisions need to be reviewed and amended to reflect modern-day practices in prosecution.


Delays in the prosecution of cases


Respondents have identified some causes for delays in the dispensation of justice in criminal proceedings, as follows:

  • Insufficient State Counsel

  • Too many adjournments at the instance of either party

  • A lack of diligence in prosecution by police prosecutors

  • A lack of commitment by court personnel

  • The litigants’ fear of reprisals from perpetrators of crime

Summary of prosecutorial problems in Sierra Leone


The following are some of the prosecutorial constraints encountered in Sierra Leone:

  • Inadequate funding by government, which has resulted in low morale and a lack of commitment among judiciary staff

  • A shortage of State Counsel and a lack of incentive to attract sufficient new entrants to the public sector justice delivery system

  • The poor educational background of police prosecutors and poor or non-existent legal training

  • Poor logistical support, e.g. a shortage of vehicles to transport prisoners to court

  • Incessant adjournments in criminal prosecutions

  • A poor witness protection mechanism, with witnesses fearing reprisals and as a result being dissuaded from giving evidence in open court

  • Allegations of corruption among judiciary staff

  • The existence of an anachronistic legal regime

Recommendations

  • A periodic but regular review of the remuneration packages of judicial officers should be undertaken. This would act as an incentive to members of the bar to take up judicial appointments in the public sector.

  • Police personnel involved in prosecution should be given basic legal training to enable them to perform their judicial functions more effectively.

  • The budgetary allocations to the judiciary should be increased.

  • The Attorney-General’s Office should be separated from that of the Minister of Justice to stem the politicisation of the judiciary. While the Attorney-General should be a professional and apolitical appointment, the Minister of Justice could be political, although the position could also be held by a professional legal practitioner. The Constitution would have to be amended to accommodate this proposal.

  • Effective mechanisms should be evolved to protect witnesses from possible reprisals by accused persons.


  • The Criminal Procedures Act should be amended to accord with modern-day trends in criminal prosecution.


  • Incessant adjournments should be disallowed and prosecutors should be given incentives to encourage the effective prosecution of cases.


  • A legal aid scheme should be established to assist indigent suspects with their defence.


  • To reduce congestion at the courts, the judicial bench should conduct periodic visits to prisons to ensure that lesser infractions of the law are not brought to court. Judges should exercise their prerogative rights of mercy to decongest both the courts and prisons.