THE INDISPENSABILITY OF NON-CONVICTION BASED FORFEITURE AND ASSET RECOVERY IN THE FIGHT AGAINST GRAFT: DELINEATING SIERRA LEONE’S ANTI-CORRUPTION LEGAL REGIME FOR INTERDICTING THE GAINS OF CORRUPTION
By: Joel Tejan Deen-Tarawally Esq.
LL.M, B.L, LL.B, B.A
Bearing the similitude of many African countries that are limping under the bondage of corruption, Sierra Leone was not long ago infamously known as one of the most corrupt countries in the world; and indeed, ‘Salone’ was a state where kleptomaniacs were celebrated as champions because of their ill-gotten wealth. The sad reality is that the anti-corruption fight at the time was not tenacious and visionary enough to interrogate the source and acquisition of apparently ill-gotten wealth, nor did it create a legal regime that was poised to interdict the gains of corruption. Not even an investigation on failure to declare assets, income and liabilities was ever conducted. In fact, the very first anti-corruption case on failure to declare assets, income and liabilities was investigated and prosecuted in 2021. It has been said that one of the major reasons for Sierra Leone’s initial failures in the fight against corruption was the Anti-Corruption Commission’s lack of prosecutorial power to independently enforce the laws on corruption, and it was primarily this lacuna in our legal regime that paved the way for the enactment of the Anti-Corruption Act of 2008 that repealed and replaced the Anti-Corruption Act (No.7) of 2000.
However, even after the 2008 Anti-Corruption Act was eventually enacted, which vested prosecutorial and other ancillary powers in the Commission, Sierra Leone nonetheless continued to fail in fighting corruption. Global and regional indices on corruption point to the immutable fact that the fight against corruption was failing until 2018 when a socio-legal revolution in the fight against corruption began. For example, the reports of Transparency International indicated a failing 49% in 2017 and a leapfrogging 84% in 2022, and the Afro barometer report similarly indicates a drastic reduction of corruption in Sierra Leone from 70% in 2015 to less than 40% in 2022. The current trajectory shows that Sierra Leone is presently winning the fight against corruption but we must nonetheless be intentional about guarding against the possibility of complacency that sometimes comes with the euphoria of winning. Corruption itself is like a living organism that has the ability to become chameleonic and perfectly adapt to the legal dispensation of the jurisdiction within which it exits. Therefore, it is now more than ever that we must accelerate and diversify the fight against corruption in order to consolidate and improve on the gains we have made as a nation. This is why, in addition to a tenacious political will, constant and periodic reviews of our anti-corruption laws and general legal regime are quintessential.
As an anti-graft Prosecutor, the more I continue to serve Sierra Leone in the fight against graft, the more I become increasingly convinced that there cannot be a more patriotic duty than our collective fight against corruption. I believe that it is in recognition of this timeless reality and the realization that fighting corruption is a collective duty that Commissioner Francis Ben Kaifala has been very intentional about “peoplelizing” the fight against corruption since he assumed office in 2018.However, the current unprecedented gains in the fight against corruption have been made possible due to not just a people-centered anti-graft campaign but mainly as a result of an anti-corruption revolution that is inspired and driven by three factors: A tenacious political will, visionary leadership of the Anti-Corruption Commission and a radically transformed anti-corruption legal regime. The gravamen of this article is predicated on the later and it is articulated with a view to delineating our anti-corruption legal regime and making a case for a clear demarcation for and operationalization of non-conviction based forfeiture and asset recovery in Sierra Leone as a blueprint for consolidating and building on our current achievements in the fight against graft.
Corruption in Sierra Leone has mostly been fought by the conventional means of criminal prosecution, which is an action in persona (against the person) and not in rem (against the property). Inasmuch as criminal prosecution and conviction serve the purposes of deterrence in the fight against graft, the process of criminal prosecution is nonetheless replete with limitations that sometimes clog the wheels of justice and impede the fight against corruption. The very high standard of proof beyond reasonable doubt is one of the limitations in criminal prosecution, and it is a limitation because unlike other offences, corruption as an act is usually done in secret and the perpetuators will almost always try as best as possible to clean their criminal tracks, thereby making it difficult to gather the requisite evidence to satisfy such a very high standard of proof. Another limitation of criminal prosecution emanates from its subject; the accused. Since a criminal action or indictment is against the accused person, the death of the accused will consequently lead to the death or natural end of the indictment against him because an accused dies with his case. The case, including all potential penalties, will automatically be extinguished upon the production of a death certificate. Therefore, the death of an accused in a corruption case will also mean that the Anti-Corruption Commission will not be able to ask for any restitution since he was not convicted before his demise, and this is so even if the Commission has, for example, more than sufficient evidence to prove that the deceased accused actually misappropriated public funds. Also, the general posture of certain judges who are more inclined to impose the minimum fines as alternative to imprisonment equally impedes criminal prosecution in serving as a deterrent mechanism against corruption. For example, in the recent case of The State v. Abdul Karim Kargbo and Others, H.C. Cr. 2023, Abdul Karim Kargbo was found guilty on two counts of Misappropriation of Public Revenue contrary to Section 36(2) and two counts of Conspiracy to Commit a Corruption Offence contrary to Section 128(1) of the Anti-Corruption Act (No. 12) of 2008 and he was only sentenced to pay the minimum fine of Le30,000 (Thirty Thousand Leones) and the fine was also ordered to run concurrently for all counts or serve a term of imprisonment for three years. Similar to the above is the case of The State v. Mustapha Senesie H.C Crim., 2023, in which the accused was convicted of misappropriating 30 (thirty) bags of fertilizers that were meant for the people of Gendema in the Southern Province of Sierra Leone and he was only sentenced to pay the current minimum fine of Le50,000 (Fifty thousand Leones) or serve a term of five years imprisonment. These meager fines in most of our anti-corruption cases constitute a clear indication that some of our judges are unwilling to impose tough punishments that will send a strong message of deterrence to the corrupt.
The aforesaid submissions certainly do not mean that criminal convictions in themselves are not meant to serve the purposes of deterrence. In fact, convictions, especially in public sector corruption, constitute a critical deterrent mechanism in curbing graft. However, overcoming the dynamics and vicissitudes of modern-day corruption in a society like Sierra Leone demands more than mere convictions and fines of comparatively infinitesimal value, especially if we intend to continue our current posture and winning trajectory. This is why in addition to increasing the punishment for corruption offences in Section 13 of the Anti-Corruption (Amendment) Act No. 9 of 2019,Section 7(1) of the said Act repealed and replaced Section 89(1) of the Anti-Corruption Act No. 12 of 2008 and vests the Commission with both prosecutorial power and the authority to enter into settlement agreements with suspects and demand refund, where applicable, plus an interest of not less than10% of the amount involved in the corruption allegation. However, the models of the fight against corruption are not limited to prosecution and settlements alone, non-conviction based forfeiture and asset recovery also play an indispensable role in the modern dispensation of the fight against graft because they complement criminal prosecution by preventing those who engage in corrupt practices from benefiting from the gains of corruption. My previous experience as a Defence Counsel has taught me that there are accused persons who do not mind serving a certain term of imprisonment and enjoying the gains of their criminal conduct afterwards. I believe this is also one of the reasons why the mechanisms of non-conviction based forfeiture and asset recovery were articulated and propagated in both the United Nations Convention against Corruption and the African Union Convention on Preventing and Combating Corruption as mechanisms that are meant to interdict the corrupt from enjoying the gains of corruption.
So what then are non-conviction based forfeiture and asset recovery and how can they aid and augment the recent gains in the fight against corruption in Sierra Leone? In simple terms, non-conviction based forfeiture and asset recovery in the fight against corruption constitute the methods by which the proceeds of corruption can be confiscated without the need for a criminal conviction. Criminals generally do not mind the financial penalties of conviction, what they normally dread is losing tangible assets that will paralyze the capital of their criminal enterprise. It is generally said that in the fight against corruption, corruption will always fight back, and to this I make bold to say that corruption will have the tenacity to fight back only when it has the strength and capital to do so, not when it is considerably weakened; and this is where non-conviction based forfeiture and asset recovery become indispensable to the bolstering of Sierra Leone’s current gains in the fight against graft. In spite of the apparent similitude between non-conviction based forfeiture and asset recovery, they are not the same. Non-conviction based forfeiture constitute actions for recovery that are brought in connection with criminal proceedings but are not contingent on a criminal conviction, which is why the Financial Action Taskforce (FATF 2022) defines it as a “means of confiscation through judicial procedures related to a criminal offence of which a criminal conviction is not required.” On the other hand, asset recovery involves actions that are independently brought against the corruptly acquired property itself without any connection to criminal proceedings. Also, inasmuch as the process of asset recovery may sometimes take place only within a single country, it is one that often has a cross-border implication due to its relevance to cases of transnational corruption as articulated in Article 15 of the United Nations Convention against Corruption.
Unlike criminal prosecutions, the use of non-conviction based forfeiture and asset recovery can be likened to a joint ballistic missile that is potent enough to demolish the economic base of corruption. They both constitute a vital tool for circumventing the limitations of criminal prosecution and the uncertainty of criminal trials, hence the need to incorporate them into the arsenal of our civil recovery mechanisms. They entail a speedy way of recovering ill-gotten gains than post-conviction confiscation, as there is no need to wait for a successful prosecution before commencing proceedings and they also have a lower standard of proof which is on a balance of probabilities. They can also particularly prove advantageous in situations where criminal proceedings are not viable due to evidential or public interest reasons. In addendum, another unique advantage of this non-conviction based recovery mechanism is presented when its legal provisions shift the burden of proof to the defendant. Such an approach to anti-corruption litigation is extremely helpful especially in cases of fraud and financial crimes in which suspects usually invest immense effort into concealing their illicit transactions.
There are a number of provisions dealing with forfeiture in Sierra Leone’s anti-corruption legal regime but they generally deal with conviction-based forfeiture as seen in Section 98 (1) of the Anti-Corruption Act (No. 12) of 2008 and the rendering of mutual assistance between Sierra Leone and foreign states as provided in Sections 103 and 109(1) of the said Act. Section 98(1) provides that “[U]pon application by the Commission to the court, any property of or in the possession or under the control of any person who is convicted of an offence under Part IV and any property of that person, subject of a restriction notice shall, unless proved to the contrary, be deemed to be derived from corruption and forfeited by order of the court.”Section 109 (1) on the other hand, provides that“[T]he Commissioner may, after consultation with the Minister responsible for Foreign Affairs and the Attorney-General and Minister of Justice, make a request to a foreign State…”for evidence or information or for the freezing or forfeiture of property located in that foreign state. The issue with these provisions is that they do not address or remedy the limitations of criminal prosecution in the fight against corruption, nor do they speak to the conundrum of interdicting the gains of corruption in our jurisdiction. The forfeiture provision in Section 98 (1) is completely predicated on criminal conviction and the provisions for mutual assistance in Sections 103 and 109 of the Anti-Corruption Act of 2008, albeit dealing with forfeiture, are also based on criminal investigations or prosecutions. Section 144 (a) of the Anti-Corruption Act aforesaid states that the content of a request to a foreign state shall “confirm either that an investigation or prosecution is being conducted in respect of a suspected corruption offence or that a person has been convicted of any such offence.”Additionally, the provisions on Corrupt Acquisition of Wealth in Section 26 and Possession of Unexplained Wealth in Section 27 of the Anti-Corruption Act of 2008, inasmuch as they relate to property, do not constitute mechanisms for non-conviction based recovery because they are both predicted on criminal prosecution.
An attempt was however made by the drafters of the Ant-Corruption Act of 2008 to interdict the gains of corruption pursuant to Section 133 of the Act, which makes provision for the commencement of civil proceedings. Section 133 aforesaid states that “[W]here the Commission is satisfied that a person has been a party to corruption and has benefited from it, the Commission shall institute civil proceedings for damages in respect of the corruption.”My view is that, inasmuch as Section 133 does not expressly indicate prosecution or conviction as a prerequisite, it nonetheless fails to address the question of non-conviction based forfeiture and asset recovery; it is rather a legal provision for only damages. Indeed, the significance of the provision of Section 133 to the fight against corruption is without question, but it still does not translate into a provision for non-conviction based forfeiture and asset recovery. Apart from its limitation to only damages, Section 133 is also circumscribed by certain legal ramifications that are worthy of consideration. The first is the fact that its application clearly extends to individuals who may be related to or acquainted with and have therefore benefited from the corrupt conduct of a person who has been indicted or who is under investigation. The second is related to the threshold for instituting such a civil action which, in my view and based on the provision itself, is twofold; the satisfaction of the Anti-Corruption Commission that a person has been a party to a corrupt conduct and proof of his benefit from the corrupt conduct. Inasmuch as the phraseologies “has been a party to corruption” and “has benefited from it” seem unambiguous, their legal interpretations may not be so simple depending on the nature of the matter in question. Hence, in addition to benefit, the Court will also very likely require the establishment of not just a nexus between the corrupt conduct and the person but also of the participation of the person in question, which then raises a concern for awarding damages against innocent beneficiaries of corruption. It is my view that the Court’s interpretation of Section 133 will include an element of participation aforesaid because of the use of the conjunction “and” in the provision of the said section, and this has the proclivity of undermining the intention of the very provision of Section 133. Similarly, Section 7 (2) (q), which speaks to the recovery of public property, is limited in scope because it applies only to public property.
Consequently, and in spite of the seeming insufficiency of legal provisions on non-conviction based forfeiture and asset recovery, the present visionary leadership of the Anti-Corruption Commission has ensured the Commission’s incorporation of non-conviction based forfeiture and asset recovery in its anti-corruption campaign since 2018. For example, a two-story building in Kono with no apparent owner was forfeited to the state as bona vacantia in 2019 while two Toyota Landcruiser Prado vehicles were also recovered as property belonging to the state in the same year. A total of forty-seven laptop computers were similarly recovered from some NACOVAC (National Covid-19 Emergency Response Centre) officers as state property in 2020, while a total of eight motorbikes, eleven iPads and eleven power banks were recovered in 2022 and one motorbike recovered in July 2023. Such recoveries have, hitherto, never been done in the history of the fight against corruption in Sierra Leone and the ingenuity of their innovation is without question. However, I am of the view that the procedures for such ‘administrative recoveries’ can be perfectly articulated, by way of a statutory instrument, as regulations pursuant to Section 140 of the Anti-Corruption Act (No. 12) of 2008.
Notwithstanding the above strides by the Anti-Corruption, I strongly believe that if we must consolidate our gains and build on Sierra Leone’s current success in the fight against corruption then we must endeavor to recalibrate the operation of our legal regime in order to incorporate clear and robust provisions that specifically target the gains of corruption regardless of criminal investigations and prosecutions or the satisfaction of Court that a corruption offence has been committed (Section 88 of the Anti-Corruption Act 2008), as could be seen in the jurisdictions of other African states such as Kenya and Zambia. In Kenya, for example, Section 55 of the Anti-Corruption and Economics Crimes Act (No. 3) of 2003makes provision for the forfeiture of unexplained asset through civil action that is commenced by Originating Summons and Section 55 (9) makes the application of the said provision retroactive. Similarly, in Zambia, Section 31 (1) of the Forfeiture of Proceeds of Crime Act (No. 19) of 2010states that “[S]ubject to subsection (2), where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the state.”These are the kinds of clear-cut legal provisions on non-conviction based forfeiture and asset recovery that Sierra Leone needs in order to continue wining the fight against corruption on all fronts. In contrast, even though Section 88 of the Anti-Corruption Act No. 12 of 2008 makes provision for a similar forfeiture, the forfeiture in the said Section 88 is nonetheless predicated on the criminal investigation of a suspect who absconds from the jurisdiction. Section 88 of the Anti-Corruption Act 2008 states as follows: “Notwithstanding any other enactment to the contrary, where a court, on an ex parte application by the Commission, is satisfied that having regard to the evidence before the court the suspect has committed an offence under Part IV, and on the balance of probabilities, that the person has absconded from Sierra Leone in order to evade prosecution under this Act, it may make an order for forfeiture of property due or owing or belonging to or held on behalf of the suspect.”Section 88 can only be invoked where, during or after the conduct of a criminal investigation, there is evidence that a suspect, who has absconded, has committed a corruption offence. It seems, in principle, that the provision in Section 88 aforesaid has been rendered moribund by the provision on trial in absentia in Section 7 (2) of the Anti-Corruption (Amendment) Act No. 9 of 2019, even though the application of both is nowhere prohibited by law.
In conclusion, apart from filing the gaps of criminal prosecution, one major benefit of non-conviction based forfeiture and asset recovery is that they can be used to target the property of persons who are at the very top of the corruption chain, against whom it is ordinarily difficult to gather sufficient evidence to institute a criminal prosecution. The nature of financial crimes sometimes presents a laboriously difficult task in identifying the individual involved and gathering sufficient evidence that will prove that a property was corruptly acquired. As Jennifer Hendry and Colin King, academics in the field of non-conviction based confiscation, have observed,“[T]he main difficulty facing law enforcement agencies appears to be the disconnected or cumulative nature of the criminal activity, which provides the ‘organizers’ with a degree of distance from the ‘coalface’, as it were, and thus a certain level of immunity…”.
The reality of our current legal regime vis-à-vis the ramifications and complexities of modern-day corruption, especially financial crimes, is that we most times end up prosecuting easily replaceable foot soldiers, while those at the upper echelons of the criminal enterprise remain protected against criminal liability, with their property beyond the reach of the criminal justice system. The current trajectory of Sierra Leone’s anti-corruption campaign cannot and should not allow this state of affairs to continue if we must maintain our winning posture and continue our incremental gains in the fight against graft; the time to review and recalibrate our legal regime with a view to including non-conviction based forfeiture and asset recovery is now. However, the articulation and drafting of the same must be done with due consideration of the rights of innocent third parties and in fairness and justice.