Sierra Leone has continuously called on government to separate Office of Attorney-General (AG) from that of Minister of Justice.
The call for separation has been a loud one considering the strategic nature of the post to the country’s judicial processes.
The office offer advice to the government in respect of any policy, programme or government to be undertaken by government that has legal implications.
Many members of the public including legal luminaries have argued that although the post is important it lacks security of tenure that would enable the occupier to act independently.
As it stands, the Attorney-General enjoys no security of tenure like judges of the superior court of judicature.
The Office is treated like any other minister who holds a post in the government to the pleasure of the President.
In such a situation, the argument goes; it would be extremely difficult and almost impossible for the Attorney-General to offer fair, credible and independent advice to the government.
It is incontrovertible that it is costly than anything when wrong advice is offered to government in respect of any issue of national interest.
The case of Alfred Paolo Conteh is one of the brightest examples in Sierra Leone where government spent huge government resources owing to the treason advice offered by the erstwhile Attorney-General, Dr Priscillia Schwartz.
It goes without saying that financial and material resources spent in the treason trial is difficult to quantify in monetary terms.
It has also been argued that the April 29 riots at the country’s central correctional facility was brutal and lethal because it was the opinion of government that treason suspect was about to escape.
The lethal nature of the response from security operatives is anchored on the death toll of 31 inmates as media reports indicate.
Other sources indicate that the death toll is higher than figures announced by official sources although no investigation has been launched to find out what went wrong.
The terrific response by the state to the attempted jail break has become an albatross that hangs on the neck of government.
The hottest public opinion is that such a catastrophe would have been avoided had the AG offered the right advice on the treason case.
The all-important and sensitive nature of the Office of Attorney-General and Minster of justice would be explored in provisions entrenched in the country’s supreme law.
Section 64 (1) of the Constitution of Sierra Leone, 1991 provides for the office of Attorney-General and Minister of Justice who shall be principal legal adviser to government and a minster.
Subsection-2 says the AG shall be appointed from persons qualified to hold office as a justice of the Supreme Court and must have a seat in the cabinet.
Subsection-3 shows that all offences prosecuted in the name of the republic of Sierra Leone are at the suit of the AG.
This means the AG is the complainant for any offence prosecuted in any court in Sierra Leone except local court.
Therefore, subsequent provisions in the country’s supreme law make it imperative for the AG to enjoy audience in all courts in Sierra Leone also except local court.
The AG exclusively exercises the Nolle Prosequi which means the power to stop any prosecution at any time in any court of record before judgement is delivered.
All these fine provisions unreservedly carved a cult of high personality for the office of the AG so that the occupier can execute their duty with fear or favour.
The provisions, no doubt, put the AG in a class of his own and make him distinct from any other government minster.
What is virtually absent in the constitution and has become a contentious issue is a provision that immunises the AG from dismissal at will by a President.
It is a preponderant public opinion that if the AG is secure from any at-will dismissal from government, the tendency to offer wrong advice will be thin.
An old adage says no one is ready to bite a finger that feeds them.
Joining the call for separation of the office of the AG and Minister of Justice is the former President of the Sierra Leone Bar Association (SLBA), Basita Michael.
The SLBA president argues strongly for the separation in a four-page article titled: ‘Holding the Office of AG Accountable for Wrongful Prosecution.’
In the article, Madam Michael claims that is a meaningful way to address the issue of wrongful prosecution caused by partisan political interference regardless of who occupies the office at any given time.
“As the principal legal adviser to the government, the Attorney-General is expected to be the guardian of the public interest. He does not and should not represent the Presidency or a political party,” she argues.
Madam Michael also posits that the AG must act independently of partisan interest in the exercise of their functions to initiate, continue or terminate prosecutions.
To enhance the independence of the office, the AG’s office should be separated from that of the Minister of Justice consistent with a recommendation of the Truth and Reconciliation Commission (TRC), a body set up after the country’s civil war to create an impartial historical record of the war and make recommendations to prevent another war.
“The AG should be the chief law officer of the state and should enjoy security of tenure,” Madam Michael quotes the TRC report.
In its final report, the SLBA president went on, the TRC recommended the prosecuting authority must exercise its functions without fear or favour or prejudice.
The rule of law, she said, required that prosecutions on behalf of the state be conducted fairly and reasonably.
“The decision to prosecute or not must not be motivated by improper and political considerations, but by the public interest and the need for justice,” she stressed.
The former SLBA president sums up her argument by reminding the state that the AG acts as the ‘Guardian of Public Interest’ and has extensive powers with regards the initiation, prosecution and discontinuance of criminal proceedings.
Governments have come and gone with promises of separating the Office of AG from the Minister of Justice, but remained unfulfilled.
President Koroma made the same promise after he won the 2007 elections, but failed to honour the promise.
President Julius Maada Bio is here again with the same promise with no sign of fulfilling the promise after close to three years in state governance.
But, solid and unyielding hope exists that the promise of separation and creating security of tenure for the office of the AG would be honoured by the ‘New Direction’ government.