Practical Challenges and Effective Measures to Detecting, Investigating and Prosecuting High-Profile Transnational Organised Crime in Sierra Leone. Case Study: Detection and Investigation of the Cessna Plane in Sierra Leone
Practical Challenges and Effective Measures to Detecting, Investigating and Prosecuting High-Profile Transnational Organised Crime in Sierra Leone. Case Study: Detection and Investigation of the Cessna Plane in Sierra Leone
JOAN M.S BULL
Sierra Leone has been in political turmoil which climaxed to a civil war that lasted from 1991-2001. The devastating war left the country not only politically unstable as a result of the millions of people who were killed, raped and amputated but left the people impoverished and vulnerable. The economic and political instability in the country made it become more attractive to Organised criminals who used corrupt government officials including the vulnerability and susceptibility of the people to enhance their ill-gotten gains. The Truth and Reconciliation report clearly points at corruption as one of the major reasons for the ten year rebel war that the nation encountered for 10 years and this still serve as the greatest threat to the nation’s democracy. The rippling effect of corruption in the country, necessitated the establishment of the Anti-Corruption Commission (ACC) by an Act of Parliament in February 2000 with the prime mandate to provide for the prevention of corruption and other related matters. Unlike other Investigative Agencies and Departments like the Sierra Leone Police (SLP) and the Financial Intelligence Unit (FIU), the ACC’s sole responsibility was geared towards the prevention, public sensitisation and the Investigations of corruption matters. The 2000 Act was eventually repealed and replaced by the Anti-Corruption Act 2008 which gives the commission the wide latitude of prevention, investigation, prosecution and punishment of corruption and corrupt practices and to provide for other related matters. Along with other government Agencies and Department, the ACC made strides in its investigation and prosecution powers. There were however several challenges it faced in the dispensation of its duties especially with the issues of handling corrupt public officials.
A landmark case I intend to discuss to bring out these challenges is The State v Archilla & Others. Also referred to a as the Cessna Plane matter, this case was the biggest Organised crime case in the history of the country which served as an eye opener to the issue of drugs trafficking and corruption in Sierra Leone. The matter exposed the organised nature of drugs trafficking and the involvement of key personnel in the public and private sector including the government and law enforcement agencies. The eventual conviction of 15 accused persons demonstrated the positive step the nation was seen to be taking to combat illicit trafficking of drugs in the country. With the co-ordination of law enforcement bodies, security sector, enforcement agencies in the U.S.A and the U.K including the establishment of the Joint Drugs Interdiction Task Force (JDITF) created in 2008, the country was seen to be making a huge impact. The revelations of various issues during the investigation and trial create a question as to whether the nation was capacitated to handle Organised Crime involving corruption matters in the country. Therefore, analysis in this presentation will feature the investigation and trial of an organised crime including practical challenges to its detection, investigation and prosecution. Effective measures to overcome political interference and ensure the integrity of criminal justice authorities will also be discussed using the case study of the Cessna plane and other related corruption matters.
Cessna plane captured in 2008 in Sierra Leone.
THE CESSNA PLANE MATTER
In July 2008, a 12-seater Cessna Plane loaded with 710kg of cocaine worth an estimated amount of $54m was abandoned on the runway at the then Lungi Airport in Freetown, Sierra Leone, now the Freetown International Airport (FNA). The plane was both a cargo and commercial airline with about four crew members and the cocaine substances. Through intelligence and with the aid of the security sectors, the pilot, his assistant and two other members who landed in Sierra Leone including the flight were arrested and investigated. Whilst Sierra Leone relied exclusively on the police for the investigation of criminal activities, there was no substantive law that regulates the trafficking of illicit drugs in Sierra Leone. The Pharmacy and Drugs Act No. 12 of 2001 could not be sufficiently used to regulate the illicit drugs trade as specific provision for the regulation of drugs trafficking was not created in the Act. The capture of the Cessna plane incited an emergency enactment of the National Drugs Control Act No. 10 of 2008, which makes provision for the control, and prevention of narcotic drug abuse and other related matters. The investigation of the matter was done in collaboration with Federal Bureau of Investigations (FBI), United States of America (USA) and the Serious Organised Crime Agency (SOCA) of the United Kingdom, which eventually led to the extradition of two American citizens from Sierra Leone to the USA. Eighteen persons were charged to court in Sierra Leone in a Six Counts Indictment which includes the Importation of Cocaine, a prohibited drug without lawful authority contrary to Section 7(b) of the National Drugs Control Act No.10 of 2008 (as amended); Accessory before the fact to the offence; Accessory after the fact to the Importation of Cocaine, a prohibited drug, without Lawful Authority; Misprison of Felony; Possession of Cocaine, a prohibited drug without Lawful Authority, contrary to Section 8(a) of the National Drugs Control Act, no 10 of 2008 (as amended); Conspiracy to Import Prohibited Drug without Lawful Authority, contrary to law; Knowingly and Wilfully Displaying a False Mark on an Aircraft, contrary to Section 57(1)(b) of the Civil Aviation Act, No 2 of 2008. These persons were tried before the Hon. Mr Justice N.C Browne Marke. With the exception of the 13th, 14th and 17th accused persons who were acquitted and discharged, all accused persons were found guilty of various counts charge and sentenced to various fines and imprisonments. The incident with the Cessna Plane exposed the weak security and the vulnerability of the citizens to organized traffic dealers. It also exposed the prevalent corruption of high placed politicians and law enforcement officials in the public sector and the weak system in operation then towards the enforcement of laws to regulate drugs trafficking and the need for the creation of a partnership in the fight against the drug Organised Crime.
CORRUPTION BY PUBLIC OFFICIALS
The notion of corruption amongst public officials has actually been subjected to varying debate as to what marshalls the blame: poverty or bad governce? Rowe et al (2012) established a close connection between corruption and organised crime. Using Australia as an example, they illustrate how the pattern of offending by organised criminals can be altered by inducing public officials to facilitate criminal action. The identification of stringent measures like legislations and effective law enforcement normally turn their attention to other means through which their criminal act can be forstered. As such they identify public officials who are seen as ‘gatekeepers’ of crucial information that would assist organised criminals to carrying out their illegal act. Their studies identified officials who are engaged in the trade not because they are poor but because of bad governance. Poor governance has always been closely linked to the corruption of officials. This major challenge was also identified by Brown (2013). He attributed the increase in drugs trafffiking in the West Africa to low standard of governance, and high levels of corruption backed up by the low enforcement capacity.
Governance in Sierra Leone is plagued by corruption at all levels and regulation of these corrupt practices by donors is still a challenge. The formation of the Anti-Corruption Commission brought a ray of hope to hold government officials accountable for corrupt practice. However, the success of its formation is only now being realised with the appointment of the New Commssioner Francis Ben Kelfala who handed over a recovered sum of Sixteen Billion Leones from corrupt public officials to the president of Sierra Leone just a year after his appointment and still resilient in the fight against corruption. This has been seen as an immense stride since the establishment of the Commission. Prior to his appointment, the former Vice President of Sierra Leone, Alhaji Samsumana, was insinuated to being involved in a number of illicit activities including the 2009 cocaine scandal but was not investigated nor prosecuted. Most of the political exposed persons in the country who served as a motivating force to drugs trafficking and Organised Crime are not poor. However, they use the poor officials to speed up the corruptive act. So it can be a blend of the two: corruption revolving in poor governance and poverty.
Several challenges were identified in the study of the Cessna Plane matter. The first was the organised nature of drug trafficking and the involvement of officials in the illicit drug trade. The cocaine saga has exposed the collusion of the organised nature of drugs trafficking involving the nationals of the country who collaborate with foreigners to achieve their criminal goal. It is very difficult if not impossible to effect organised crime without corruption and the illicit drugs trafficking has been identified as one of the lucrative forms of organised crime, which requires systemic corruption for it to flourish in any society. The collusion of corrupt officials and criminal gangs facilitate the execution of the criminal act. A major challenge is the fight against corrupt officials in the varying sectors in Sierra Leone who are bribed and used as agents to foster drugs trafficking which hampers the effectiveness of public service delivery and destabilizes self-confidence in public institutions.
Graycar and Villa (2011) identifies four major public stakeholders to corruption used by private actors to foster criminal act and thereby undermining governance and causing loss to the nation’s economy. They identified the politicians (including members of their families) and high level officials who coordinates directly with drug traffickers in initiating the criminal act in the country. Their initiation of the crime filters down to the inspectors and low level public officers who are corrupted to disregard policies and regulations to foster the criminal act. Whilst inspectors and low level officers contribute to governance loss, high level officials and politicians contribute to economic loss to the state.
There is no doubt that the West African governments have been battling with governance issue and Sierra Leone is no exception. The involvement of government officials, state actors, law enforcement officials and agencies is not a novel issue in Organised Criminal Act especially drugs trade in Sierra Leone. Allen (1999) argues that the involvement of Africans in the drugs trafficking organised trade is a direct result of globalisation due to factors like easy movement of people within borders, the gradual decline of language barriers, relationship between African states and international communities. Corruption for him is a secondary issue. However, this case reveals the primary level of corruption facilitated by government officials in undermining the security and health of the state. In the investigation of the Cessna Plane matter, a key government official who was then the Minister of Transport and Aviation, Kemoh Sesay was implicated. He gave permission for clearance to be issued by the 13th accused for the Cessna Plane to land without going through the right procedure. He bypassed established regulations and invoked his ministerial authority and high level discretion to create an opportunity to foster the trafficking of the drugs through the Sierra Leone. During the conduct of investigations, Kemor Sesay was identified as a key figure in the organised crime and should have been charged. However, the final case file, which came from the Law Officers Department (after being sent for legal advice), exonerated the minister. Final directives on whom to charge rest with the Director of Public Prosecutions. This authority is accorded him by section 46 of the Criminal Procedure Act No 32 of 1965 (as amended). Therefore, though the conduct of investigation revealed that he (the minister) should be charged yet the Director of Prosecution exonerated him in his advice to the police. His protection was so carved that other people would have been implicated for him to be freed but for the intelligence of the judge. His involvement in the trafficking was kept discrete by prosecutors and only revealed by the 13th accused during the trial. When asked why he never stated that in evidence in court, 13th accused stated that “…the minister, and another brother Hamza and two lawyers from 4th accused (the brother of the minister) lawyer’s chambers had asked him not to do so” This was quite baffling and frustrating and the judge in his judgement made it quite clear that:
…13th accused was here being suborned to commit perjury. This was not an instance of someone invoking the defence of Superior Authority. It was simply a case of an accused person saying that I did not commit the offences with which I am charged. If as I accept, the minister had made it clear that no permit should be issued without his say-so, and this was known to the prosecution before these proceedings were brought I find it hard to believe that the prosecution seriously believed it had a case against 13th and 14th accused persons respectively and not the minister. I must also express my strong disapproval of the strategy employed by the prosecution. This statement was not in the bundle of proofs of evidence filed and served pursuant to the order I made on 10th December 2008. It means the prosecution were deliberately holding back vital evidence supportive of their case for a reason which was not hard to find. They were prepared to jeopardise their case to save perhaps one person from perdition.
This incident served as one of the major challenges in the investigation and prosecution of political exposed persons. The aspect of high discretion as an opportunity for corruption and as seen exercised in the case study, was identified by Graycar and Sidebottom (2012). There was no one to monitor the activities and decisions of the minister leading to illegal orders being passed unchecked. This creates possibilities for corruption to be often individualised and civil servants and politicians exploit a situation where their position is used to collect illegal income for themselves. When he was about to be charged, he was protected by the system. This for Graycar and Sidebottom (2011) is an example of a corrupt society where nepotism and patronage are accepted. Members of the same political party receive undue advantage not merited and serving as a loss to the state.
It is no secret in the whole of the West African region of the involvement of key government officials and the protection accorded to these drug traffickers. For instance, a report from Liberia revealed how drug traffickers attempted to bribe the Director of the Republic of Liberian National Security Agency and his deputy for easy access and protection of their cocaine inside the country. In Guinea Bissau, the Military Interior Minister and Head of Judicial Police was accused of running the drugs trade. In fact, in 2008, both the Attorney General and Minister of Justice made a report of a death threat because of their investigation into a drug matter. The involvement of key state officials led to the eventual death of both the President and the Interior minister. In Guinea, the son of the President was also involved in drugs trafficking together with a number of high-ranking security officials who used their diplomatic passport to traffic drugs. What is quite challenge is the protection accorded to these criminals by the state. But for the wit of the judge both 13th and 14th accused would have been sentenced whilst the minister will be moving freely arranging for the trafficking of more drugs. If this fight should produce a good dividend, the collaborative effort of all state actors against all criminals, no matter the political connection, should be fostered. There should be the utilisation of control measure that will subject the decision making process in these institutions to regular check for transparency and accountability (Graycar and Villa 2012).
Another challenge identified during the conduct of investigation and prosecution of the matter is the inadequate support offered by the state to enforcement bodies. The government departments and offices established for the fight against organised crime and corrupt officials are most times under-resourced and understaffed. The Anti-Corruption Commission has made significant strides in the past years but that cannot be said of other law enforcement agencies. During the investigation of the Cessna Plane matter, mobility for the commencement of the investigation was difficult. Colleagues who were part of the investigation team recalled that when they were informed about the plane and the escape of the pilots and other suspects who were part of the organised deal, there was no vehicle for them to move. As a result, most of the suspects fled the country and the police was unable to secure their arrest. Also, police officers who did the investigations were untrained and unqualified to handle organised drug trafficking matter at that time. The Organised criminal act met enforcement officers unprepared as it was the first major transnational organised crime investigation done by the police. “We were not trained to handle such major incidence so there was no trained senior investigating officer”. They also lacked forensic capacity and capability to address forensic exhibits and had to rely on British and American partnerships, which enabled most of the exhibits to be taken to England for analysis. However, this slowed down the process of investigations. Most of these challenges are never reported in researches and articles but they are quite important, challenging and frustrating the effort of investigation. These obstacle in investigations serve as opportunities which criminals use to identify suitable target to perpetrate their acts and eventually cannot be properly investigated and prosecuted. But for the vigilance of the law enforcement officers, the traffickers would not have been caught as there was poor system in place to help in the identification and tracking of the drug criminals. These challenges can forestall a whole criminal investigation and prosecution process.
Most importantly, the matter of the Cesna plane reveals that for an effective fight to be instituted against Organised Criminals, corrupt officials and politically protected persons, there is the need for training on capacity enhancement and collaboration to enable proper investigation and prosecution with a goal to securing conviction. To enable successful investigation and prosecution of Transnational Organised crime, several issues can emerge like Asset recovery and Money Laundering related issues which necessitate the collaboration of multidisciplinary team or unit involving Public Prosecutors, Financial Investigators, Forensic Accountant, Asset Managers, Law Enforcement Officers etc. These sets of officials can come from a range of sectors of State Departments. The Cessna Plane matter reveals a high level of corruption and abuse of office which would have warranted the investigation of corrupt officials and the trail of the proceeds of crime. The investigation should also have precipitated the analysis of financial transactions to have linked the criminals with corruption, money laundering and/or its predicate offences. At the initiation of investigation, there would have been need to trace the assets of the suspects in line with the investigation. The investigation revealed that no proper checklist for the collection of basic information in line with the charge of Money Laundering and its predicate offences was done. Aside basic information for investigation then, there were no investigations on criminal records, no records of public source, no proper searches on targets and associates, no adequate cross border declarations, no immigration records, no real estate records which might have included purchase agreement, loan applications, no information identifying banks or bank accounts etc. These issues and many others might have limited them to prefer the charges only preferred. One might argue that in 2008, adequate provisions were not available for the investigation of corruption dealings with Transnational Organised Crime, Money Laundering and its predicate offences etc. However, can that also be said of the Isha Johannsen’s case where the accused persons were all acquitted and discharged by the court? The Isha Johannsen’s case is a recent case investigated and prosecuted at the High Court of Sierra Leone by Ant-Corruption officials. Aside the poorly drafted section under which the conspiracy charge was drafted and which in the opinion of the judge “creates much room for doubt as to whether it does create an offence at all”, the burden of proof to prove its case by bringing sufficient evidence and establish the guilt of the accused which rest solely with the prosecution was not satisfactorily utilised to secure a conviction. Following the trial and studying the judgment of the case, I see a lot of investigative flaws and will attribute that mainly to the lack of collaboration with other investigative agencies to neatly tie up the investigation before a charge was preferred. My point however will be reiterated that no agency has monopoly over investigative procedures and knowledge. Collaboration and cooperation will enhance adequate investigation and eventual successful conviction.
There is also the challenge of securing convictions after organised criminals have been identified and charged by the police which seems to frustrate the effort of law enforcement officials. Law Enforcement officials most times reiterate that ‘every now and then we tell ourselves that if we don’t get successful prosecutions, all the resources and expertise that we spend in intelligence and investigations area will be wasted. When we find out about criminals and we successfully interdict and investigate them, if they cannot successfully try them and bring them to justice then we have not completed the full cycle of fighting the threat posed by these criminals”. A typical case in point is the Timbergate case involving Political Exposed Persons. A former Chief of Staff to the President of Sierra Leone, Dr Richard Conteh, Timber Tycoon, Alie Suma who was the Managing Director of Timber Harvesters, Processers and Exporters Sierra Leone Limited and Leslie Peter Crosby were committed to stand trial in the High Court on various allegations of Conspiracy to Defraud the state, the sum of Four Billon, Forty Five Million, Eighty Two Thousand and Twenty Leones. The press release issued from State House before the investigation and prosecution of Dr Richard Conteh were thus:
It has come to the attention of His Excellency the President that Dr. Richard Konteh, Chief of Staff in the Office of the President was not open and transparent in the conduct of official negotiations for a mining agreement with a private sector operator, thereby violating established policy, undermining existing institutional arrangements and exposing government to potential loss of revenue. In another matter involving the illegal export of timber from Sierra Leone, the Sierra Leone Police are investigating an unauthorised executive order allegedly issued by Dr. Konteh granting an open-ended mandate to the timber harvesters, processors and exporters (SL) LTD to undertake the export of an unlimited quantity of value-added processed timber in direct contravention of the approval granted by His Excellency for a fixed quantity of 30 containers only. Against this background, His Excellency the President has decided to relieve Dr. Konteh of his duties with immediate effect while the police continue their investigation.
The Preliminary Investigations started in 2014. Alie Suma was charged on 17 counts of Conspiracy, Altering Documents and Wilful Evasion of Export Duties contrary to the Forgery Act of 1913 and the Evasion of Custom Act 2011. Dr Richard Konteh was charged on two counts of Conspiracy and Forgery while Leslie Peter Coslie was charged on one count of Conspiracy. They were committed to the High Court for trial by the sitting magistrate who ruled that there is sufficient evidence to put them on trial at the High Court. Interestingly, few months into the hearing of the matter at the High Court, the Director of Public Prosecution made an application to the court offering no evidence against all accused persons which was granted by the court, discharging all accused persons on Tuesday the 11th of April 2017. Several questions including why the President had not handed over all the evidence of corruption and fraud he had collected on Dr Richard Conteh to the Anti-Corruption Commission in 2014 instead of calling on the police to investigate, were left unanswered? Speculations, however, that their prosecution might have opened a Pandora’s box into the amassing of ill-gotten wealth by corrupt public officials, which might have created further investigations into alleged corruption, remained unaddressed. Whatever precipitated the actions of the Director of Public Prosecution is still a debate but these actions served as a demotivating factors in the investigation and prosecution of allegedly corrupt officials using political power to entrench themselves in governance. However, several of these matters involving allegations of poor governance and corruption of officials precipitated the establishment of a Commission of Enquiry by the present government into allegations of corruption by public officers.
On Tuesday the 29th of January 2019, His Excellency President Julius Maada Bio by a Constitutional Instrument officially launched the Commission of Inquiry (COI) with the mandate to investigate allegations of corruptions involving government officials. The launching of the COI has in no way eroded the Powers of the Anti-Corruption in their mandate to investigate corruption offences or any other Investigative Authority but reinforces the aspect of collaboration and co-ordination in the fight against corruption of Politically Exposed Persons. The president speech in launching ceremony of the COI reiterate a war against corruption. He stated “When monies meant for educating our children and youth population is stolen by just few people that is a threat to our national development. When monies meant for providing basic social services for every citizen are stolen by just few people to build mansions and buy luxury cars, that is also a threat to our national development”. He also affirmed that:
As a people, the Commissions of Inquiry give an opportunity to hold accountable those we once entrusted with public offices. We owe it to our country; we owe it to our compatriots and generations yet unborn to get it right once and for all. This is democratic accountability and our collective determination to win the war on corruption.
The composition of the COI included Judges from Foreign Jurisdictions, State Counsels from Private Sector and the Ministry of Justice and Investigating Officers from the Sierra Leone Police. The COI ended culminating into reports and recommendations. Many government officers are found culpable by the COI investigations with the white paper endorsing recommendations by the COI including various fines, seizure of property and/or further investigations inciting various forms of appeals. Sierra Leoneans await the outcome of these appeals and to see whether the intent behind the establishment of the COI will be realised.
RECOMMENDATION AND CONCLUSION
Organised Criminal Activities pose serious threat to not only the nation but sub regions and undermine state institutions, with corruption now established as a significant opportunity used by public officials and politically exposed persons to wield control of a nation in fostering their criminal act. Intervention for their control should be geared towards the implementation of policies that would increase the risk and lower the rewards in the acquisition of ill-gotten wealth by corrupt officials. One of such interventions should be the enactment of strong legislations against corruption in both the private as well as the public sector and the cooperation and collaboration of investigative agencies. This will enhance active investigation utilising various investigative expert skills that will help the investigative process before charges are preferred. Also the decision making process must be subjected to regular checks in ministries and department to avoid abuse of offices. The implementation of strong supervision and oversight should not be neglected. The lack of supervision can cause a lot of problem. It should be noted that in the African culture, the acceptance of gift has nothing to do with corruption. In fact, in Sierra Leone, the chief accepts gift as a welcome gift to strangers. As such, a nation-wide sensitization on aspect of corruption and integrity should be utilized. The media has to be very instrumental by educating the people on the importance of integrity. There should also be empowerment of Anti-Corruption Commission for ongoing review and reformation of the law to criminalize, investigate and prevent corrupt individuals. The Anti-corruption unit in Sierra Leone has been well armed legislatively to fight corruption. The Anti-Corruption Act 2008 as amended, the National Anti-Corruption Strategy and the structural challenges which have to some extent been overcome have placed the unit in a position to fight corruption. However, as Glaycer and Villa pointed out, there has to be a blend of the law and culture. “Legislation [alone] is less useful when dealing with issues such as patronage, abuse of discretion, nepotism, clientelism and favouritism, and conflict of interest”. Moreover, the empowerment of the various investigative departments with adequate resources and the recruitment of staff to ensure effective service delivery have to be the government prime concern. There should be regular trainings for investigators to keep abreast contemporary investigation skills. Adequate remuneration should be made available to investigators who are tasked with investigating corrupt officials to ensure integrity and professionalism.
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