ISSUES OF ILLEGALITY SURROUNDING THE APPOINTMENT OF FRANCIS BEN KAIFALA AS COMMISSIONER ACC
Many questions have been asked as to whether the nominated and proposed ACC Commissioner, Francis Ben Kaifala esq is *”duly qualified”* to be nominated or appointed to or to hold the said office.
*Section 3(2) of the Anti Corruption Act No. 12 of 2008* states that: “The Commissioner shall be *a Legal Practitioner having not less than 10 years practice in his profession* with proven managerial experience and of conspicuous probity”.
The question then is how the period of *”not less than 10 years practice in his profession”* is computed or determined having regard to the manner in which, in our jurisdiction, a law student becomes a *”Legal Practitioner”*. According to the *”Interpretation Section”* (Section 1 of the Legal Practitioners Act No. 15 of 2000) : “A Legal Practitioner” means *any person “admitted and enrolled to practice law AS A BARRISTER AND SOLICITOR”* Counting years of practice starts only when you become a Legal Practitioner and upon your being admitted and enrolled to practice law. In other words, one can only start to count years of practice (subject however to certain exceptions provided for under the Act) *”when you attain the status of a Legal Practitioner”*. Equally so, one can only attain the status of a Legal Practitioner after meeting the requirements contained in Part III of the LPA which entitles a person to be admitted and enrolled. That is why Section 9 of the LPA prohibits *”PRACTICE BEFORE ENROLLMENT”*. If this is the import of Section 9 can there be *”YEAR(S) OF PRACTICE BEFORE ENROLLMENT* (i.e. before signing of Permanent Register and taking or the oath)? I think NO.
Section 9 Part III of the LPA provides thus: “Subject to this Act, no person shall engage in the practice of law in Sierra Leone *unless he has been admitted and enrolled as a Legal Practitioner* under this Act” Section 10 states: *”A person qualifies for admission as a Legal Practitioner if — … (b) he has… served a period of pupillage of not less than 12 months with a Legal Practitioner… “*. It is clear from the provision of *Section 10* that the period of 12 months served during pupillage should come PRIOR to and is part of the requirements leading up to your being ADMITTED AND ENROLLED TO PRACTICE law. The question which may then follow is: “can one count the period of pupillage *as a period of practice as a legal practitioner* when such a person was not yet a legal practitioner during the said 12 months? Can one be said to have *started PRACTICE* even BEFORE he is allowed or admitted to PRACTICE? My answer to both questions is *NO*. Practice as a legal practitioner starts when one becomes such. There was a reason why the drafters of the LPA decided to call or term the period prior to your becoming a legal practitioner as *”PUPILLAGE”* and the persons serving that period *”PUPILS”* and not *”legal practitioners”* because its only after pupillage that you can *”legally be admitted and enrolled TO PRACTICE LAW and (legally) be called a Legal Practitioner “*. The same reason why one can only take and subscribe to the oath, affirmation and declaration for legal practitioners set out in the first schedule (See Section 14 (4) of the LPA only upon becoming a Legal Practitioner; or your name be entered into the Rolls of court or the right to practice or *”appear in any court or tribunal”* in Sierra Leone or be entitled to sign correspondence, Conveyances or other instruments as a Solicitor. (See Section 20)
The few privileges accorded pupils under the LPA do not make them Legal Practitioners. Like I noted earlier, there are exceptions to the provisions or submissions above but I would limit this piece to the relevant provisions touching and concerning the facts and circumstances of Mr Kaifala who, (as I am made to understand and I stand to be corrected if I am wrong) did not do pupillage in government service and has always been a private practitioner in continuous practice since he became qualified. I also recall that he was called to the Bar around November 2007 and did his entire pupillage in a private law firm. Let us then assume that he “started pupillage” (by signing the Temporary Register) the day after the call ceremony, he could only have been admitted and enrolled to practice 12 months later which is November 2008 which is the time we could safely say that he was formally and duly admitted and enrolled to *”practice law as a legal practitioner”* and only then he became or attained the status of a legal practitioner. If this is so, then ten (10) years from November 2008 takes us to November 2018. This would mean that Mr Kaifala cannot legally or factually meet or be said to have met the qualification to be appointed as ACC boss, which is that of being *”A LEGAL PRACTITIONER having not less than TEN (10) YEARS PRACTICE” in the profession* any time before November 2018 in the very least. His appointment is premature.
My humble take.
NB: Mr Kaifala is a fine gentleman and a brilliant and able young lawyer. save for the opinion above about the timing of his appointment, I have nothing against him personally.
©️A retired Judge.