By Joseph Fitzgerald Kamara :
In a landmark judgment delivered by the Hon. Justice M.A. Paul, in the case of The State vs. Solomon Katta and Four Others, the Anti Corruption Commission successfully secured conviction for the offence of Unexplained Wealth for the first time in the history of Sierra Leone.
Prosecution for the offence of unexplained wealth has been sparingly applied in corruption cases the world over due to difficulties in the investigative process and proof of the elements constituting the offence. More importantly however, the greatest obstacle has been political interference in the successful prosecutions of such cases. Despite the challenges, the ACC braved the odds and presented evidenced acceptable by the Court to meet the burden of proof beyond reasonable doubt.
Unexplained wealth is defined as where ‘any person who, being or having been a public officer maintains a standard of living above that which is commensurate with his present or past official emoluments; or;
‘is in control of pecuniary resources or property disproportionate to his present or past official emoluments, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, commits an offence.
Recent high-profile cases have focused attention on the transfer of assets abroad by heads of state and other senior officials from developing countries in amounts that far exceed their legitimate sources of income. Article 20 of the United Nations Convention against Corruption, (UNCAC) criminalizing illicit enrichment, was drafted to address this issue. However, very few of the states parties to the UNCAC have introduced this offence in their legal systems, largely because of due process concerns. The challenge is to find ways to implement Article 20 that balance the rights of the accused with the right of society to recover illicitly acquired national wealth.
The nature of evidence in cases of unexplained wealth is typified where an accused is either in possession or in control of pecuniary resources disproportionate to his earnings. It is not unusual for public servants to lavishly display wealth for which they cannot give account of its sources. Take a drive to Hill Station, Regent, Goderich, Sussex, and other affluent areas of the City of Freetown, where eye-catching evidence is in abundance as Public Servants build estates in lavish splendor far in excess of their earnings. Justice Paul’s judgment it is hoped will stop the reprehensible acts and reverse the shameful trend.
In one of the cases being prosecuted, an Accused, a Customs Officer, employed with the National Revenue Authority is charged with being in control of pecuniary resources disproportionate to his present emoluments. The Accused’s monthly emoluments is in the sum of Le1,746,295.48.
The evidence further suggests that for the period of 1st September 2009 to 1st day of March 2013 the Accused’s bank accounts deposits in his favor are in the sum total of Le.160,426,479.42.
The Accused’s personal current bank accounts are in the sum total of Le.91,248,000. The question that raises its head for resolution is how did that Accused acquire all that amount of money under his control?
Similarly, in Manila, The Philippines, the Office of the Ombudsman charged, former Supreme Court Chief Justice Renato Corona with 8 counts of perjury and violation of the Code of Conduct and Ethical Standards for Public Officials and Employees for allegedly misdeclaring his wealth. Ombudsman Conchita Carpio Morales has asked the Court to immediately freeze the assets of Corona and his wife, Cristina.
Having such an offence established by law can ease the work of the prosecution, since it avoids the requirement to establish guilt for a criminal offence giving rise to the assets. The Organization for Security and Co-operation in Europe considers the existence of such an offence to be one of the best practices for combating corruption (OSCE 2004).
The offence of Unexplained Wealth or Illicit Enrichment has existed for nearly 40 years in Hong Kong, where the Court of Appeal found that it has “proved its effectiveness in the fight against corruption” (Attorney General v. Hui Kin-hong, 1995). The World Bank in a recent study under the StAR Initiative notes that some jurisdictions were able to recover large sums of money thanks to the offence of illicit enrichment (Muzila et al. 2011). The UNODC (2006) has also cited the offence as a useful deterrent to corruption among public officials.
It is noteworthy, that concerns have been expressed by some jurists that such an offence may conflict with the fundamental rights of the accused, as recognized by national and international law. Since the offence establishes a presumption of liability upon proof of excessive wealth, it may infringe on the right of persons charged with a criminal offence to be presumed innocent until proved guilty.
However, according to the European Court of Human Rights, resort to presumptions is compatible with the presumption of innocence as long as (a) the primary responsibility for proving matters of criminal substance against the accused rests with the prosecution (i.e., there is no reversal of the burden of proof onto the defendant), and (b) the presumptions are rebuttable (Salabiaku v. France, European Court of Human Rights, 1988).
Similarly, the Hong Kong Court of Appeal ruled that the offence did not trigger any reversal of the burden of proof since the burden of proving the “ingredients” for the establishment of the crime remained upon the prosecution..
Coming back home to Africa, the Liberia Anti Corruption Commission (LACC) has released the second in a series of Assets Declaration findings in which three officials of the Liberian government have been found to have ‘unexplained’ wealth. The LACC Chairperson Frances Johnson Alison booked Mr. Stephen Yekeson, former Deputy Minister for Administration, Ministry of Public Works for unexplained wealth and material omission in his asset declaration process. The LACC states that its asset verification team uncovered US$303,590.00 paid to three separate bank accounts of Mr. Yekeson outside of his official monthly salary of L$14,137.50 and special allowance of US$2250.
At this point, one may sound a note of caution for practitioners that the offence of Unexplained Wealth cannot be used in an oppressive manner, such as for the purpose of obtaining incriminating information from the defendant.
In the final analysis, the use of the offence of Unexplained Wealth is to strengthen anti-corruption efforts and recover stolen funds without infringing individual rights. For this to happen, however, it is essential to continue to develop other anti- corruption efforts so that prosecution for Unexplained Wealth is only used, and seen to be used, in the presence of overwhelming evidence. This has been the strategy adopted by the ACC in prosecuting offences of Unexplained Wealth and we acknowledge the strength of character and quality of legal analysis espoused by the
Hon. Justice M.A. Paul, in that seminal judgment in the case of The State vs. Solomon Katta & Four Others. It is hoped that the jurisprudence will develop along the fine footprints laid bare by this Judgment.