ACC has jurisdiction over private persons
In a landmark ruling, Justice Samba agrees that ACC has jurisdiction over private persons.
In the matter between the State vs. Mohamed Osman Sesay, Justice Miatta Samba, on 8th July 2016, ruled that the country’s anti-graft body, the Anti-Corruption Commission (ACC), has proper jurisdiction, and the legal powers, to intervene in corrupt transactions involving non-state actors.
The ACC indicted Mohamed Osman Sesay, alias Assassin, on an eight-count charge; one count for conspiracy to Commit a Corruption Offence and seven counts of Deceiving a Principal contrary to sections 128(1) and 40(2) of the Anti Corruption Act 2008 respectively. The trial was presided over by Justice Miatta Samba at the High Court in Freetown. In the particulars of offence on the conspiracy count, the ACC accused persons, Mohamed Osman Sesay and Denis Jones, a journalist, of conspiring to deceive Dominic Beary, a British Telecommunications Investor, into paying the amount of USD 100, 000 purportedly as fees for an international gateway license which he claimed he had secured for Mr. Beary’s company, Network Proximity (SL) Limited knowing that the gateway was still under the monopoly of NATCOM.
Mr. Beary was releasing funds in excess of GBP 600,000 from a parent company in the UK to secure the licence for the gateway, following receipts of letters and documents Sesay purported to have been authored by ministers, deputy ministers, and senior civil servants.
Contesting the indictment, defence lawyer, Emmanuel Abdulai, based his arguments on the grounds that the prosecution lacks subject matter jurisdiction in that both the Mr. Beary and Sesay are not public officials; further that the monies alleged to have been fraudulently obtained by Sesay are not public funds. The main object of Mr. Abdulai was to throw the case out of court on the grounds that the ACC has no jurisdiction on the subject matter. During the prosecution’s case, witnesses denied in their testimonies that they have had transactions with Sesay or authoring the documents which Sesay represented to have come from them.
In her ruling on the No Case Submission made by the Defence Counsel Abdulai, Justice Samba agreed with the prosecution’s submission that the ACC has jurisdiction over private citizens and public officials who contravene provisions of the act. She agrees that the prosecution has established that Sesay has a case to answer in five of the eight counts. However, Justice Samba did not allow counts 4, 7, and 8 to stand because of the unavoidable absence of a key ACC witness. But on the key question whether the ACC has power to intervene in purely private transaction rather than dealing with public affairs, under the arm bit of the law, the judge ruled a categorical YES.
Justice Samba ruled that a private citizen could contravene section 40(2) of the Act, which makes it an offence for an agent to deceive a principal. Sections 39(5) of the AC Act 2008 defines “agent” and “principal” as follows; “agent” means a person who, in any capacity, and whether in the public or private sector, is employed by or acts for or on behalf of another person; (b) “principal” means a person, whether in the public or private sector, who employs an agent or for whom or on whose behalf an agent acts.
By the provisions of this section, the ACC is mandated to intervene in purely private transactions between private persons. The law also imposes an obligation on agents, making them duty-bound, to give full and frank disclosure to the principal in their dealings as it relates to the principals; and the absence of which risks prosecution.
Speaking on the ground breaking ruling, the ACC Commissioner, Ady Macaulay, remarked: “Justice Samba’s ruling has clearly “put on notice” all those involved in deceiving foreign investors and the other categories of 419ers, that the long arm of the ACC can reach them.” Issuing a stern warning to the public, the Commissioner did not mince his words: “The ACC has declared war on all those who frustrate Direct Foreign Investment, and anyone found wanton, shall face the full penalty of the law,” he stressed.
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