By Lansana Kotor-Kamara Esq.
Introduction
The enactment of the Criminal Procedure Act, 2024 (CPA) has been hailed as one of the most comprehensive reforms of Sierra Leone’s criminal justice system since independence. It seeks to modernise criminal procedure, codify practices that had long been guided by colonial-era statutes, and introduce mechanisms designed to improve efficiency, fairness, and consistency in criminal trials. Yet, beneath its progressive aspirations lies a profound constitutional dilemma that has sparked heated legal debate.
At the heart of this dilemma is the question of prosecutorial authority. The CPA reaffirms the constitutional powers of the Attorney-General and Minister of Justice, consistent with Section 66 of the 1991 Constitution of Sierra Leone, to institute and discontinue criminal proceedings. At the same time, the Act recognises the statutory independence of the Anti-Corruption Commission (ACC), which under the Anti-Corruption Act, 2008 as amended in 2019 (ACA) enjoys prosecutorial autonomy in corruption-related cases without recourse to the Attorney-General. The CPA therefore embodies a dual framework that has been described as both progressive and contradictory.
It has been argued that this coexistence reflects a pragmatic attempt to balance constitutional orthodoxy with the urgent need for an independent anti-corruption mechanism. In the alternative, critics contend that the CPA undermines the very independence of the ACC, effectively re-subordinating its prosecutorial powers to the Attorney-General’s constitutional prerogative. Considering this perspective, the CPA may be seen not as a harmonising instrument but as a statute that reopens longstanding conflicts between executive control and institutional independence.
This article critically examines this tension. It explores the constitutional and statutory frameworks, interrogates the overlaps created by the CPA, analyses the risks posed by the dual system, and offers possible pathways for harmonisation. Drawing on comparative experience from other common law jurisdictions, it argues that while prosecutorial pluralism is not inherently unworkable, Sierra Leone’s current arrangement risks paralysing anti-corruption enforcement unless constitutional, legislative, and judicial reforms are pursued.
The Constitutional Framework of Prosecutorial Powers
The starting point for any discussion of prosecutorial authority in Sierra Leone is Section 66 of the 1991 Constitution. This provision vests in the Attorney-General and Minister of Justice the power to institute and undertake criminal proceedings against any person before any court in respect of offences under the laws of Sierra Leone, and to discontinue such proceedings at any stage before judgment is delivered. The discontinuance power reflects the ancient common law prerogative of nolle prosequi, which grants the Attorney-General an unfettered discretion to bring prosecutions to an end.
It has been argued that this centralisation of authority was intended to achieve uniformity in criminal prosecutions, ensuring that one constitutional office bore ultimate responsibility for decisions that could affect the liberty of citizens and the interests of the State. Another perspective, however, considers that such concentration of power is inherently problematic in a political system where the Attorney-General is both the chief legal adviser to the government and a member of the Cabinet. Critics contend that vesting such powers in a political appointee risks subordinating justice to political expediency.
Judicial interpretation of analogous provisions in other common law jurisdictions provides useful insight. In State v Ilori (1983) 1 SCNLR 94, the Supreme Court of Nigeria recognised the Attorney-General’s discretion as wide but subject to the overriding requirement that it be exercised in the interest of justice. Similarly, in Ghana, the Court of Appeal in Republic v Mensa-Bonsu [1995-96] 1 GLR 377 affirmed that the Attorney-General’s discretion cannot be deployed arbitrarily or in a manner contrary to the public interest. Considering this perspective, Sierra Leonean courts, if confronted with the issue, may be persuaded to develop jurisprudence limiting the seemingly absolute nature of Section 66 powers by subjecting them to constitutional values such as accountability, the rule of law, and the right to a fair trial.
In the alternative, some have argued that because the Constitution expressly grants these powers, no ordinary legislation can abridge them. From this view, the Attorney-General’s authority under Section 66 is supreme, and any statutory provisions granting parallel powers, such as those in the Anti-Corruption Act, must yield. This position, though doctrinally defensible, risks undermining the statutory intent to create an independent anti-corruption regime.
The Statutory Framework of the Anti-Corruption Act
The Anti-Corruption Act of 2008, particularly as amended in 2019, represented a watershed moment in Sierra Leone’s governance reform. Section 7 confers on the Commissioner of the Anti-Corruption Commission the power to prosecute corruption-related offences independently, without recourse to the Attorney-General. It has been argued that this statutory independence was not merely a procedural reform but a structural necessity, given the history of executive interference in politically sensitive corruption cases.
Considering this perspective, the independence of the ACC reflects a deliberate legislative effort to remove corruption prosecutions from the realm of executive discretion. Critics of the old regime noted that corruption prosecutions were often withdrawn or stalled whenever they implicated senior government officials, thereby eroding public trust and perpetuating impunity. By empowering the ACC Commissioner directly, Parliament sought to align Sierra Leone’s domestic law with Article 36 of the United Nations Convention Against Corruption (UNCAC), which obligates states to establish specialised anti-corruption bodies with the necessary independence to carry out their functions effectively.
Another perspective, however, questions whether statutory independence can truly override constitutional prerogatives. If Section 66 of the Constitution grants the Attorney-General the power to discontinue prosecutions, can an ordinary statute deprive that office of such authority in corruption cases? Some commentators have argued that the statutory independence of the ACC exists only at the sufferance of the Constitution, and in the event of conflict, the Constitution must prevail. Others argue, in the alternative, that statutory independence and constitutional authority can coexist if the courts interpret Section 66 purposively to respect Parliament’s intent to carve out a special domain for anti-corruption enforcement.
The Criminal Procedure Act and Its Overlaps
The Criminal Procedure Act of 2024 introduces further complexity to this debate. By defining a “prosecutor” to include the Attorney-General, State Counsels, and the Anti-Corruption Commissioner, the Act appears to accommodate the dual framework. On one reading, this reflects an effort at integration, acknowledging both the constitutional authority of the Attorney-General and the statutory independence of the Commission.
Another perspective, however, emphasises that the Act preserves the Attorney-General’s prerogative of nolle prosequi. This retention effectively re-establishes the Attorney-General as the ultimate arbiter of all prosecutions, including those initiated by the Commission. Critics contend that this undermines the legislative intent of the 2019 amendment to the Anti-Corruption Act, which was to insulate corruption prosecutions from precisely such interference. Considering this perspective, the CPA may be seen not as a harmonising instrument but as one that subtly reasserts executive dominance.
It has been argued that such overlap creates not only legal uncertainty but also institutional tension. Prosecutors within the ACC may find their cases discontinued for reasons unrelated to law or evidence, while the Attorney-General may perceive the ACC’s independence as encroaching upon constitutional prerogatives. In the alternative, it might be suggested that the CPA simply reflects the unavoidable reality of constitutional supremacy: any statutory independence must ultimately operate within the constitutional framework. Yet this interpretation risks rendering the ACC’s independence illusory.
Reconciling Section 66 and the Anti-Corruption Act
The key to resolving these tensions lies in the interpretative principles of constitutional supremacy and harmonious construction. It is trite law that the Constitution is the supreme law of Sierra Leone, and any statute inconsistent with it is void to the extent of the inconsistency. From this perspective, the Attorney-General’s powers under Section 66 cannot be ousted by the Anti-Corruption Act.
Yet, another perspective emphasises that the Constitution does not explicitly prohibit Parliament from conferring prosecutorial powers on other bodies. Section 66 grants the Attorney-General powers but does not declare them exclusive. Considering this perspective, it is possible to interpret the Constitution as establishing the Attorney-General’s authority while permitting concurrent prosecutorial powers to be exercised by statutory bodies in specialised contexts.
Comparative jurisprudence supports this more flexible interpretation. In Nigeria, specialised agencies such as the Economic and Financial Crimes Commission exercise independent prosecutorial powers despite the Attorney-General’s constitutional mandate. Courts have generally tolerated this coexistence, intervening only where prosecutorial conflicts arise. In Kenya, constitutional reform in 2010 resolved the ambiguity by creating a distinct Office of the Director of Public Prosecutions, independent of the Attorney-General. In Ghana, although the Attorney-General retains central authority, specialised prosecutorial units operate under statutory mandates with relative autonomy.
It may therefore be suggested that Sierra Leone’s courts could adopt a purposive approach, construing Section 66 as permitting concurrent powers, provided that the Attorney-General’s discretion is exercised in a manner consistent with the statutory independence of the ACC and the broader constitutional principles of accountability and the rule of law.
Risks of the Current Dual System
Leaving the present ambiguities unresolved poses significant risks. One risk is political interference. It has been argued that the Attorney-General’s dual role as a Cabinet member and chief prosecutor creates an inevitable conflict of interest. If the Attorney-General exercises nolle prosequi to discontinue ACC prosecutions against politically connected individuals, public trust in the anti-corruption regime will be irreparably damaged.
Another risk lies in constitutional litigation. Defendants prosecuted by the ACC may challenge the legality of such proceedings on the ground that only the Attorney-General has constitutional authority to prosecute. Conversely, civil society organisations may seek judicial review of Attorney-General interventions in ACC cases, arguing that such interference undermines statutory independence. Considering this perspective, the courts may find themselves forced to mediate a constitutional conflict that Parliament has failed to address.
A further risk is enforcement paralysis. Corruption prosecutions are often complex and politically sensitive. If every such prosecution is vulnerable to challenge on jurisdictional grounds, the fight against corruption will be delayed, weakened, or altogether defeated. This would not only undermine domestic governance but also breach Sierra Leone’s obligations under UNCAC to maintain an effective and independent anti-corruption framework.
Towards Harmonisation
Several solutions have been proposed to harmonise these tensions. One proposal is constitutional amendment. It has been argued that the only definitive solution is to amend Section 66 to expressly recognise the prosecutorial independence of specialised bodies such as the ACC. Such a reform would mirror Kenya’s approach and remove ambiguity by entrenching independence at the constitutional level.
In the alternative, legislative clarification could provide a more immediate remedy. The CPA could be amended to state expressly that the Attorney-General’s nolle prosequi power does not extend to prosecutions undertaken by the ACC, except where a court determines that discontinuance is necessary in the public interest. This would preserve constitutional supremacy while protecting statutory independence through judicial oversight.
Another perspective emphasises the role of judicial development. Courts could interpret Section 66 purposively, recognising that while the Attorney-General possesses wide discretion, that discretion must be exercised in harmony with Parliament’s intent to create an independent anti-corruption agency. In this perspective, judicial review would serve as the check against abuse of nolle prosequi.
Practical cooperation should also be considered. A memorandum of understanding between the Attorney-General’s office and the ACC could establish protocols for managing overlapping jurisdictions, coordinating investigations, and respecting institutional independence. While such an arrangement would not resolve the constitutional question, it could mitigate conflict in practice and promote mutual respect between institutions.
Conclusion
The Criminal Procedure Act, 2024 is a landmark in Sierra Leone’s legal reform. Yet in reaffirming the Attorney-General’s constitutional prerogatives while also recognising the statutory independence of the Anti-Corruption Commission, it has created an unstable dual system of prosecutorial authority. Some argue that this reflects an inevitable accommodation between constitutional supremacy and statutory innovation. Others contend that it undermines the very independence Parliament sought to secure for the fight against corruption.
Considering these perspectives, it is clear that unless harmonisation is pursued, Sierra Leone risks political interference, constitutional litigation, and paralysis of anti-corruption enforcement. The path forward must involve constitutional reform to entrench independence, legislative clarification to limit arbitrary interference, judicial development to enforce accountability, and inter-institutional cooperation to manage overlaps. Only through such measures can Sierra Leone secure the integrity of its criminal justice system and fulfil its national and international obligations to combat corruption effectively.
Lansana Kotor-Kamara, Esq., is a Sierra Leonean lawyer with 15+ years’ practice, multiple postgraduate degrees, a PhD in Law Fellow at ESLG Athens, a law tutor and a dedicated legal researcher.