Judiciary’s Impartiality Could Be At Risk

By Issa Francis Kamara, Esq.

When a Presidential candidate is announced, a momentary upsurge in support grows with the choice of running mate, before it starts to decline and stabilize. However, the nomination of Samura Kamara as the APC Presidential candidate was greeted with skepticism by some ardent APC supporters, who were also befuddled by his choice of running mate, Chernor Bah. Given that they both lost to the current administration. It has left many political analysts wondering about any possible net gain from such a choice. Some dubbed it a déjà vu of 2018. The President has quipped about giving them an “uppercut.” Although the case against Samura Kamara and others has been in court for a while, the prosecution should cease after his nomination, this close to the elections. While his prosecution may not be politically motivated, the timing is off, and prudence should have counseled the prosecutors to wait until after the elections.

Although legally permissible, the prosecution of a Presidential nominee raises substantial questions of impartiality. While it is almost universally accepted that a sitting President must not be prosecuted, there are considerable debates over whether a Presidential nominee should also not be tried, close to the election. Criminal trials involve a lot of preparation and can be emotionally and physically draining. Therefore, the prosecuted nominee must take time off from campaigning to help with his legal defense. Also, although innocent until proven guilty, the prosecuted nominee must deal with the stigma of being a potential lawbreaker.

Moreover, the possibility of conviction would diminish the enthusiasm of the prosecuted nominee to campaign vigorously. Furthermore, the prosecuted nominee would be spending funds that could have been used to campaign, on his legal defense. While all criminal defendants face similar disadvantages, a Presidential nominee is peculiarly disadvantaged, because his opponents would have an inverse proportional gain. Therefore, the prosecutors would intentionally or unintentionally hurt the prosecuted nominee’s electoral chances, while helping his opponents.

In the United States, there appears to be a settled understanding that a Presidential nominee should not be prosecuted 60 days before the election, as the current Department of Justice puts it, to maintain the Department’s “reputation for fairness, neutrality, and non-partisanship.” I am sure the prosecution of Samura Kamara is done in good faith, but prosecutors should also try to avoid the appearance of impartiality and partisanship. Law enforcement should not be seen as affecting the outcome of an election. The perception that the prosecutors are influencing—directly or indirectly—the election, would do grave reputational harm to the institution of justice.

The prosecution of Samura Kamara close to the election would invariably affect the outcome of the Presidential election. Scenario #1: Samura Kamara is convicted and cannot run. Depending on whether the APC constitution has a provision for this scenario, they would have to nominate someone else as their Presidential candidate or a Vice Presidential candidate, within a short period of the election. Scenario 2: Samura Kamara is acquitted, but the damning evidence adduced at trial by the prosecution is used during the election to campaign against him. Or it might garner him protest and sympathy votes, if the case is perceived as political. When prosecuting a powerful politician, you must shoot to kill, or you will make him appear invincible.

In either scenario, the prosecutors will affect the election outcome. This close to the June election, the prosecutors need to preserve the evidence and stop the clock on the statute of limitation (time to bring the case), because of the peculiar nature of the case, until after the elections. If Samura loses the election, the prosecution could go forward with it, inspiring confidence in the judicial system in Sierra Leone. If Samura wins the election, his case could go forward after he leaves office.

If the door is open to prosecuting a Presidential nominee close to the election, it may be used by a crooked politician hoping to game the electoral system by weaponizing the ACC against his political opponents. Prosecutors must have a solicitude to balance their fidelity to the law with the fiduciary duty to the public, to ensure that justice is served fairly and impartially. There is no need to rush the case now, especially when the consequences are enormous.