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Sierra Leone News: The rule of consistency of evidence is germane to the justice process -Justice Thompson

Lawyer Kowa leading CAO in evidence

Commissioner Bankole Thompson has informed Counsel for the State and persons of interest (POI) that the Commission of Inquiry (COI) is not likely to adopt any flexibility, stressing that, “the rule of consistency of evidence is germane to the justice process”. Otherwise, he noted people will come and stand as witness and say one thing different from what they have told somebody else out of court, which may be directly in contradiction to what they say at the Commissions, in “other words that will undermine the integrity of the fact finding process.” The Judge was reacting to Lawyer Lansana Dumbuya’s concern in which he expressed dissatisfaction during the testimony of State witness Amara H. Sheriff, Chief Agriculture Officer (CAO) at the Ministry of Agriculture, Forestry and food Security (MAFFS). Sheriff had stated that vital information in the testimony he was giving was left out of the statement that was read before the Commission on Friday 15th February, 2019. “What he is explaining is not in his statement, especially with enquiries done with certain officials, which looks like when he was giving his statement he never knew about what he is now testifying to, away from the written statement.” The CAO was testifying on the fertilizer scheme that was purchased by his ministry and was supplied by Balsam Enterprises between 2014 and 2016, of which the Auditor General undertook a specialised audit into the management of the scheme. Led in evidence by Lawyer Kowa, the CAO was asked whether he is comfortable to stop at page 10 of his statement in respect of the fertilizer testimony and if he does wish to tell the Commission anything with respect to the fertiliser project in his Ministry? CAO Sheriff said yes and continued his testimony. He said that apart from being a professional agriculturist with over 30 years standing he is also a practicing farmer. With regards the fertiliser, he remembered that sometime around 2014 or 2015 a fertiliser contract was taken to his office for his signature at which time his Boss who was the then CAO was out of the country. “I went through the contract and I realise that the contract was asking for one 50 kg bag to be bought around something above Le500,000” he said. At this point of his testimony, Lawyer Dumbuya interrupted his testimony saying “I agree with the flexibility of the Commission, but he was reading the statement and now he is not, so what is he doing? Lawyer Dumbuya queried.

Justice Thompson then responded by saying the witness is in a way adding to his statement or amplifying his testimony as contained in the statement he submitted to the Secretariat. “I am not saying that it is necessarily proper, but I thought that was what he was doing by making some additions to what is contained in exhibit Y” the Judge said. Lawyer Dumbuya then asked the Judge whether that is fair?, Justice Thompson Judge Thompson then enquired from him if he wants to take an objection, “I can rule on it, the fairness of it is of course.” The contentious issue for the Judge he said can be “the question of whether Commissions with investigating powers are a fair way of proceeding in some of these matters? The alternative way of proceeding in matters of this nature are the criminal or civil courts” he said. In addition, he said that he cannot now question the wisdom of Parliament or the President in deciding to proceed the way they decided to proceed. Courts and Commissions are not supposed to question the executive or legislative wisdom, when certain actions are taken in the interest of the Commissions, particularly as they are authorised to do so by the fundamental law of the land namely the Constitution. Lawyer Dumbuya then responded by saying “in that vein when they contradict or exceed their power, that is where the checks and balances comes in by the courts system to tell the legislature that the Constitution says this and you have done otherwise” he said. He further told the Commissioner that, it is a Commission of Inquiry, but that the Sierra Leone Commissions of Inquiry (SLCOI) is more than an investigative body, “if it is having the kind of powers equal to the High Court and you cannot go to the High Court to question any matter that may have happened in the Commission, but you may go to the Court of Appeal” he explained. He added, “I think the SLCOI must move a bit further than other normal COI’s who are only investigative bodies, which decisions might be challenged in the High Court. If the COI has been elevated to a certain status that elevation should come with certain responsibilities” he hoped. Responsibility he said is for the COI to behave in the category in which it has been placed. “That is why this witness as you say is now amplifying on his testimony, testifying on certain matters that are not in his statement that was previously taken.” The Judge informed the Counsel for the POI that his argument could be a good point for cross examination. On the general point on how Commissions evolve in terms of their roles as agent and instruments of justice, he thinks the Counsel make some good points which could be an ideal subject for scholarly articles or academic publication to ask very pertinent question on Commissions of this nature whether they are able to reconcile their investigative role in the context of an adversarial paradigm. “We are called upon to be inquisitors, which means that we are not to bother too much about strict rules of admissibility but we are to be guardians of due process, and not supposed to allow any presumption of guilt to crawl in to the process. We should go strictly by the presumption of innocence” the Judge said. Lawyer Dumbuya then drew the attention of the Judge, saying in case it is repeated, once materials have been submitted to them stating that it is what the witness will be coming to testify on, he can amplify on certain aspects within the realm of that particular subject matter. “But when he brings a new subject matter whilst he is in court, I want the Commission to take it seriously” he requested.  The Judge replied saying that there will come a time when the presiding Commissioner will say “look what we now have here is entirely new material and we will not let it go without giving the right to the other side a chance of rebuttal, the safeguards are there, I am eminently aware of them that this safeguard must not be entirely ignored” he assured. State Counsel Kowa referenced Section 6 of the Instrument which he says did indicate that the Practice and Procedures in the High Court may be modified, adopted, adapted to suit the purpose of this Commissions. “But I am confident to state that Order 30 of the High Court Rules especially Rule 1 sub-rule 9 (a & b) are very instructive and very clear about the procedures on how you tender in your witness statement as part of the evidence in chief. That does not stop you from leading your witness further, and that is exactly what is obtaining here, I have not departed from the rule” he told the Commission. At this point the Judge then asked the witness to continue his oral statement. The CAO said that the cost was more than two times the prevailing market value at that time, “I refused to sign the contract and I think it was the procurement or accounting officer that I asked to keep the document until the arrival of my boss. As a practicing farmer, I was also buying fertiliser from the open market, so I knew the market price at that time” he testified. Lawyer Kowa then enquired further by saying as a farmer and with his experience whether he highlighted the issue regarding the NPK 20-20-20 fertiliser that was supplied with the Storekeeper?  CAO Sheriff told the Commission that when he came to the Secretariat and was given the contract that was signed for the supply for NPK 20-20-20,” initially I thought was a mistake but when I went through the contract document right from the clearance to the signing of the document it was 20-20-20.” He went on to say that he took his phone and called the Storekeeper and asked him if at any time he received a supply of NPK 20-20-20, and he said no, “and I also informed the council that I thought it was a mistake but it was not” CAO testified. He swore that he also had discussion with the internal auditor regarding the supply and the information he had obtained from the Storekeeper, and asked him if at any time he has been privy to that information. “He told me that in actual fact they have written an internal memo with respect to that, as they discovered that when they went for the verification during the arrival of the fertiliser. A minute was raised to that effect informing the ministry that the wrong fertiliser was brought in, I also informed the Council that they may need to talk to the internal auditor and the storekeeper” he said under oath. The above oral evidence was what brought the issue of inconsistency as raised by Lawyer Dumbuya, but Lawyer Kowa was quick to cite Article 6 of the Practice Directions which says ‘…with respect to each subject matter of any proceedings before the Commission, witnesses to the Commission shall be led by Counsel to the Commission to adopt and make oral presentation in line with their written statement already submitted to the Secretariat to the commission…’ Lawyer Kowa says he relied on that. According to Justice Thompson, the issue really is not whether that particular article is not relevant. But that was a question he was going to put to the witness by way of judicial intervention whether “we are kind of entering a legal terrain where the witness is now making a statement which might turn out to be inconsistent with exhibit Y. “He made a statement to the Secretariat which was in the form of an interrogatory question and answer and now he is giving us some extra testimony which may, when consider alongside his written statement exhibit Y, may well reflect inconsistency that are so material that may well put his statement to the Secretariat or both his testimony in some kind of legal jeopardy” the Judge said. He directed his reply to the Counsel for the POI, saying that is a very appropriate subject matter for cross examination, “I am not suggesting that you are being premature in raising now, you have a right this Commission has flexibility and I am not prepared to apply the strict rules of the evidence just to foreclose evidence on him, everything must come in. At the end of the day the probative value will determine what the truth is and what is not.  Lawyer Kowa assured the Judge that there is no inconsistency, the witness he said stated that he is not aware that NPK 20-20-20 was supplied, now extensively he is substantiating by referring to persons he spoke with, “it is clearly further stated, we should try as best as possible to be thorough with our rules that are before the court” he said. What the rule is demanding. Lawyer Kowa added is to serve the concise statement “I will not venture to bring extraneous evidence which are not in his statement, I am only expanding what is in the statement  particular with respect to the supply of NPK 20-20-20.”

By Zainab Iyamide Joaque

Friday February 15, 2019.

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