Dr. Ernest Bai Koroma v. Attorney-General & Minister of Justice
Court of Appeal held that Presidential immunity does not extend indefinitely and that former Presidents can be held accountable for actions taken while in office
Case Name: Dr. Ernest Bai Koroma v. Attorney-General & Minister of Justice
Court: Court of Appeal of Sierra Leone
Date: 14 December 2023
Citation: 2023 SLCA 4
Bench: Hon. Mrs. Justice Fatmatta Bintu Alhadi J.A. (Presiding), Hon. Mr. Justice Komba Kamanda J.A., Hon. Mrs. Justice Tonia Barnett J.A.
Keywords: Constitutional Law, Commission of Inquiry, Presidential Immunity, Judicial Review, Adverse Findings, Procedural Fairness
Facts:
The appellant, Dr. Ernest Bai Koroma, former President of Sierra Leone, appealed against adverse findings made by the Commission of Inquiry (COI), chaired by Hon. Justice Biobele Georgewill, established by Constitutional Instrument No. 64 of 2018. The COI was mandated to investigate alleged corruption and abuse of public office during Koroma's presidency from November 2007 to April 2018. The COI's report made several adverse findings against Koroma, including abuse of office and misuse of public funds. Koroma appealed on several grounds, arguing that the COI violated his constitutional immunity as a former head of state, usurped the functions of the Supreme Court, and acted without proper procedural rules.
Holdings:
Presidential Immunity (Section 48(4)):
Principle of Law: The immunity provided under Section 48(4) of the Constitution protects sitting Presidents from civil or criminal proceedings during their tenure. However, this immunity does not extend to actions taken after leaving office or to inquiries into the legality of actions taken while in office.
Applied: The court held that the COI did not violate Section 48(4) as it was investigating the legality of Koroma’s actions during his presidency, which is permissible after he left office. The court affirmed that the investigation into whether the former President's actions were lawful was within the COI's remit.
Comment on Trump Case: The court referenced the ongoing trials of former U.S. President Donald J. Trump, and former African leaders like Jacob Zuma and Frederick Chiluba, to illustrate that presidential immunity does not extend indefinitely and that former presidents can be held accountable for actions taken while in office.
Disposition: Ground 1 of the appeal was dismissed.
Interpretation of the Constitution (Section 62 and Section 53):
Principle of Law: The Supreme Court has exclusive jurisdiction to interpret the Constitution. However, referencing or discussing constitutional provisions during judicial or quasi-judicial proceedings does not amount to interpretation.
Distinguished: The court distinguished between interpretation and reference, holding that the COI did not usurp the Supreme Court's functions as it merely referenced constitutional provisions relevant to its inquiry.
Disposition: Grounds 2 and 3 of the appeal were dismissed.
Procedural Fairness and Validity of the COI:
Principle of Law: Commissions of Inquiry must follow established procedural rules, but in the absence of specific rules, existing legal frameworks can be adapted. The Rules of Court Committee has the authority to establish procedural rules, but failure to do so does not invalidate a COI's proceedings.
Applied: The court held that the COI’s reliance on existing laws, including Chapter 54 of the Laws of Sierra Leone and the High Court Rules of 2007, was valid. The COI's procedures were therefore lawful, and the absence of specific rules did not invalidate its findings.
Disposition: Ground 4 of the appeal was dismissed.
Allegation of Indictment:
Principle of Law: An indictment is a formal criminal charge that must be made by a competent authority, such as a Law Officer. A Commission of Inquiry is not a criminal court and does not have the authority to indict individuals for criminal offenses.
Applied: The court found that the COI did not formally indict Koroma but rather made adverse findings and recommendations, which are distinct from criminal indictments. The COI's use of the term "indictment" was deemed inappropriate but did not amount to a legal indictment.
Disposition: Ground 5 of the appeal was dismissed.
Evidentiary Support for Adverse Findings:
Principle of Law: Findings of fact by a commission must be supported by credible evidence. The standard of proof in civil inquiries differs from criminal trials, and adverse findings must be based on a preponderance of the evidence.
Applied: The court upheld the COI’s findings, stating that they were supported by sufficient evidence, including testimony and documentary evidence. The challenge to the evidentiary basis of the COI's findings was rejected.
Disposition: Ground 6 of the appeal was dismissed.
Incomplete Report:
Principle of Law: A commission’s report must be complete and transparent, but the right to appeal is based on adverse findings, not on the completeness of the report. Any missing parts of the report do not invalidate the adverse findings that have been published and relied upon.
Applied: The court dismissed the argument that the incomplete publication of the COI’s report invalidated the findings. The appellant’s right to appeal was based on the published findings, which were complete for the purposes of the appeal.
Disposition: Ground 7 of the appeal was dismissed.
Disposition:
The appeal was dismissed in its entirety, and the adverse findings of the Commission of Inquiry against Dr. Ernest Bai Koroma were upheld.
Legislation and Regulations Referred to:
Constitution of Sierra Leone, 1991
Sections 48(4), 53(3), 62, 124(1), 149(2), 149(4), 150, 171(15)
Constitutional Instrument No. 64 of 2018 (Hon. Justice Biobelle Georgewill Commission of Inquiry)
Public Financial Management Act, 2016
Petroleum (Exploration and Production) Act, 2011
Anti-Corruption Act, 2008
Criminal Procedure Act, 1965 (Act No. 32 of 1965)
Chapter 54 of the Laws of Sierra Leone, 1960
High Court Rules, 2007 (Constitutional Instrument No. 7 of 2007)
Cases Referred to:
O'Reilly v. Mackman [1982] 3 All ER 680 – Distinguished
Chiluba v. Attorney General (Appeal No. 125 of 2002) [2003 IMSCS3] – Distinguished
Onagoruwa v. The State (1993) 7 NWLR (Pt 303) 49 – Applied
The State v. Bello (1989) CLRN 370 – Applied
Attorney General v Dr. Peter Tucker (1994) – Applied
Attorney General for the Gambia v Jobe (1985) LRC (CONST) 556 – Applied
Ajidagba v Inspector-General of Police (1958) 3 FSC 5 – Applied
Counsel:
For the Appellant: Joseph F. Kamara Esq., Africanus S. Sesay Esq., Brima Koroma Esq., Ibrahim I. Mansaray Esq., Ady Macauley Esq.
For the Respondent: R.B. Kowa Esq., A. Suwu-Kendoh (Mrs), M.P. Bangura Esq., T.J. Freeman Esq., P. Williams Esq.
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