By Dr. Ishmail Pamsm-Conteh
Our Judiciary in Sierra Leone over the years has been criticised roundly by various reports and research findings, least of which, is the quality of Judgements passed by some of our Judges. It was therefore quite refreshing when a few days ago, (16 July 2020) a certificate of discharge was issued by the High Court regarding the corruption case involving a former cabinet minister in the government.
At his confirmation hearing on 29 September 2005 for the office of Chief Justice of the United States of America, John G Robert Jr. famously said, “Judges and Justices are servants of the law, and not the other way round. Judges are like umpires. Umpires don’t make the rules; they apply them.”
This statement aptly fits into the scenario of the case: “The State v. Alpha Osman Timbo, Emily Kadiatu Gogra, Charles T Kamanda, Mamusu Massaquoi and Zainab Binta Kamara,” on 15 counts of criminal offences. It was dismissed because, “the Prosecution offered no evidence against the accused persons.” The Judge who presided over the matter, was the Honourable Justice Cosmotina Jarret.
How commendable that Judgement was? It gives some of us hope that, some Judges would give sound judgment based on the facts alone presented before the courts, applying the rules, and nothing else.
It is elementary in a criminal prosecution that a matter must be case assessed by investigators and Prosecutors before it reaches the court for an accused person to be prosecuted. The case assessment is not only meant to save the court’s time and resources, but to also follow correct rules and procedures as required by law.
Whilst I am not entirely sure about the modus operandi or the way and manner by which the Sierra Leone Police and the investigating team at the Anti-Corruption Commission conduct investigations, but as a Commonwealth country with a common law system, the process in Sierra Leone should not be too dissimilar to other such countries.
According to the general principles of the Code for Crown Prosecutors of the England and Wales, it is the duty of Prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice. This decision to prosecute must be taken fairly, impartially and with integrity to help secure justice for the victims, witnesses, suspects, defendants and the public.
Prosecutors must ensure the law is properly applied, and that relevant evidence is put before the court. Importantly, the question to be answered before a case is placed before the court, is what is the realistic prospect of securing a conviction? Prosecutors should not start or continue a prosecution where it is highly likely that a court will rule that the prosecution is an abuse of its process.
Prosecutors must again be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospect of a conviction.
A case should not go pass this point of evidential test, if it fails, no matter how serious or sensitive it may be. This was where the case of Alpha Timbo and others, should have ended, where the correct case assessment steps were followed. The matter should never have proceeded to court, based on the Judgement of Justice Cosmotina Jarret.
However, it does not mean that a prosecution will automatically take place after the evidential stage is met. A prosecution will usually take place unless the Prosecutor is satisfied that there are public interest factors tending against prosecution which outweighs those tending in favour.
The case was of public interest, without any shadow of doubt, because it was; (a) a serious offence, (b) the suspects culpability, which may mean a high level of involvement,(c) the circumstances of the harm caused by the crime, which amongst others includes the position of trust or authority which exists between the suspects and the victims. The victim here being the State (d) the age and maturity of the suspects, (e) the impact on the community.
Be it that may, the Judgement, by Honourable Cosmotina Jarret, regarding the case of Alpha Timbo and others, which states “ offering no evidence against all accused persons,” should be read as, either, there was no evidence available to the prosecutors in the first place to support a conviction, or that the evidence was available but was not tendered in court, due to admissibility issues.
Whatever the interpretation, this is a serious indictment on the Prosecutor(s) who prosecuted the matter on behalf of the State. At the same time, it is a confidence boost for our Judiciary, that indeed some Judges would do what is right, in the eyes of the law.
Well done, Justice Cosmotina Jarret.
The author is a faculty member at the Ernest Bai Koroma University in Makeni, and also at the University of Makeni. He holds a PhD (Law) degree from the University of Leeds (UK).
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