Justice, Reconciliation and the Discontinuance of Ernest Bai Koroma’s Treason Proceedings: Beyond Legal Formalism and Partisan Inference
by Chernor M. Jalloh
The discontinuance of the treason-related proceedings against former President Dr Ernest Bai Koroma under Section 45 of the Criminal Procedure Act, 2024, presents one of the most significant constitutional and political questions in Sierra Leone’s recent history: how can the State pursue national reconciliation without compromising criminal accountability, the rule of law, or public confidence in the administration of justice?
The decision has generated sharply contrasting interpretations. Saidu Koroma Esq. approaches the issue through the doctrine of nolle prosequi, arguing that the Attorney-General acted within the authority conferred by Section 45. Dr Sylvia Olayinka Blyden, by contrast, advances a broader political narrative centred on the convictions of security personnel attached to the former President and questions the propriety of discontinuing the proceedings against him. Read together, both contributions enrich the public discourse but also reveal important legal, institutional, and evidential gaps.
The legal position itself is relatively straightforward. Section 45 empowers the Attorney-General and Minister of Justice to discontinue criminal proceedings at any stage before judgment. Such discontinuance terminates the pending prosecution and discharges the accused, but it neither constitutes an acquittal nor necessarily precludes future proceedings arising from the same facts. Saidu Koroma is therefore correct in emphasising that the discontinuance neither establishes guilt nor confers judicial exoneration. The determination of criminal responsibility remains the exclusive function of a competent court.
This distinction reflects a fundamental constitutional principle: prosecutorial discretion and judicial adjudication perform separate but complementary functions. The Attorney-General decides whether the State should institute or continue criminal proceedings; only the judiciary may determine guilt or innocence. Consequently, Ernest Bai Koroma presently stands in neither category. He has not been convicted, but neither has he been acquitted. Any assertion that the discontinuance conclusively proves either innocence or culpability is therefore inconsistent with established criminal law.
Beyond Legal Authority: The Limits of Formalism
While Saidu Koroma’s legal analysis is doctrinally sound, it remains institutionally incomplete. It explains what the Attorney-General was empowered to do but pays insufficient attention to why that discretion was exercised in a prosecution of such constitutional and political significance.
The existence of statutory discretion does not remove the obligation to exercise it transparently and rationally. Constitutional democracy requires that public power be exercised not merely within the confines of legality but in a manner capable of sustaining public confidence. As James Madison famously observed, “If men were angels, no government would be necessary.” The enduring relevance of that observation lies in its reminder that discretionary authority must always be tempered by institutional accountability.
The Attorney-General may well have concluded that the available evidence no longer offered a realistic prospect of conviction. Witnesses may have become unavailable, crucial evidence may have been inadmissible, or broader considerations of public interest, humanitarian concern, diplomacy, or national reconciliation may have influenced the decision. None of these possibilities would, in themselves, be constitutionally objectionable. The concern lies not in the existence of discretion but in the absence of a sufficiently clear public explanation for its exercise.
Where proceedings concern allegations of treason, loss of life, and a former Head of State, reliance on statutory authority alone is inadequate. Even where sensitive evidence cannot be disclosed, the public is entitled to understand, in broad terms, the evidential and public-interest considerations that informed the decision. As Lord Hewart’s enduring maxim reminds us, justice must not only be done; it must also be seen to be done. Public confidence depends as much upon transparent reasoning as upon legal authority itself.
Victims, Accountability and the Limits of Inference
Dr Sylvia Blyden’s article makes several important contributions to the debate. Most notably, she insists that any meaningful process of national reconciliation must include the families of the soldiers, police officers and civilians who lost their lives or suffered during the events of November 26, 2023. Reconciliation cannot be reduced to an accommodation among political elites while those most directly affected remain unheard. Where victims are excluded, reconciliation risks becoming political expediency rather than moral restoration.
She also challenges the indiscriminate characterisation of the convicted security personnel as violent former combatants. By identifying serving police and military officers officially assigned to former President Koroma—including ASP Ibrahim Batetewor Sesay, Sergeant Emmanuel Salifu Kamara and Staff Sergeant Ibrahim Thorlu Bangura—she raises legitimate questions about security-sector discipline, institutional accountability and the consistency of the State’s response.
These concerns deserve careful consideration. If junior officers connected to the same episode received lengthy custodial sentences while proceedings against a former Head of State were discontinued, the Government owes the public a principled explanation for the apparent disparity. Equality before the law does not require identical outcomes in every prosecution, since different accused persons may face different evidence. It does, however, require that distinctions in prosecutorial treatment be objectively justified and capable of public scrutiny.
Where the Argument Exceeds the Evidence
Notwithstanding these legitimate concerns, Dr Blyden’s analysis becomes less persuasive where it moves beyond established facts and enters the realm of inference.
The central weakness is the implicit transformation of association into culpability. The conviction of security personnel attached to Ernest Bai Koroma may constitute relevant circumstantial evidence, but it does not establish that he planned, authorised, encouraged or concealed their conduct. Criminal responsibility is individual, not derivative. It cannot be inferred solely from political relationships, official appointments or personal proximity.
The common law principle actus non facit reum nisi mens sit rea[1] remains fundamental. Liability for treason or misprision of treason requires proof of the accused’s own conduct, knowledge and intention. To conclude that Koroma must have been complicit because persons assigned to his security detail were convicted substitutes political suspicion for legal proof and risks legitimizing guilt by association—a doctrine fundamentally inconsistent with due process.
Nor does reliance upon the personal character of the convicted officers materially advance the legal analysis. Describing them as educated, disciplined or loyal may humanise them, but it neither establishes their innocence nor demonstrates that they acted under Koroma’s direction. Character evidence cannot substitute for proof of criminal participation.
Equally unpersuasive is the suggestion that Koroma’s failure publicly to proclaim his innocence amounts to an implied admission of guilt. An accused person bears no legal obligation to defend himself through public statements. Silence may reflect legal advice, diplomatic restraint, ill health or a desire to avoid exacerbating political tensions. The presumption of innocence places the burden of proof squarely upon the prosecution, not upon the accused to prove innocence in the court of public opinion. As Blackstone famously observed, it is preferable that guilty persons escape punishment than that one innocent person be wrongly condemned.
The Proper Construction of Section 46
Dr Blyden further argues that the Attorney-General could have relied upon Section 46 of the Criminal Procedure Act to secure Koroma’s permanent acquittal, and that the decision to proceed under Section 45 was intended to preserve political leverage over him. While her broader observation—that an acquittal provides greater legal finality than a nolle prosequi—is correct, her interpretation of Section 46 is difficult to sustain.
Section 46 principally codifies the common law protection against double jeopardy, embodied in the pleas of autrefois acquit (“previously acquitted”) and autrefois convict (“previously convicted”). It protects persons who have already been lawfully acquitted or convicted from being prosecuted again for substantially the same offence. It does not confer an independent prosecutorial power to secure an acquittal outside the ordinary judicial process.
A lawful acquittal can arise only through a recognised judicial determination. Although the prosecution may elect to offer no evidence, it is ultimately the court—not the Executive—that determines the legal consequence. Section 46 therefore cannot be treated as an alternative mechanism through which the Attorney-General may permanently terminate proceedings at will.
Similarly, the assertion that Section 45 was deliberately chosen because the Government wished to retain a “stick behind the door” remains speculative. It is a conceivable political interpretation, but it has not been established by verifiable evidence. In constitutional discourse, conjecture should be acknowledged as conjecture. Political intuition, however sincerely held, cannot substitute for demonstrable fact.
The Missing Question
Ultimately, both articles leave unanswered the question that matters most: why was the prosecution discontinued?
Neither author establishes what admissible evidence existed against Koroma personally, whether witnesses directly implicated him, whether the prosecution still considered there to be a realistic prospect of conviction, or whether the decision resulted primarily from evidential weakness, humanitarian considerations, public-interest concerns or political negotiation. Nor do either of them examine whether victims or convicted defendants formed part of the reconciliation process that may have informed the Attorney-General’s decision.
Without answers to these questions, public debate risks oscillating between legal formalism and political speculation. Comparative prosecutorial practice generally requires two complementary inquiries: whether the available evidence justifies prosecution and whether continuing the prosecution serves the public interest. In a case of this constitutional significance, the public is entitled—at least in broad terms—to understand how those considerations were assessed.
Reconciliation Without Impunity
Sierra Leone undoubtedly needs reconciliation, but reconciliation cannot be built upon historical amnesia or selective accountability. Equally, it should not be assumed that prosecuting a former President necessarily advances justice, nor that discontinuing such proceedings necessarily promotes peace. Either course may serve—or undermine—the national interest depending on the strength of the evidence, the integrity of the process, and the transparency of the decision-making.
Political accommodation may, in exceptional circumstances, contribute to national stability. However, where reconciliation appears to benefit political elites while convicted subordinates remain imprisoned and victims feel excluded, it risks deepening public distrust rather than healing national divisions.
Justice and reconciliation should not be viewed as competing objectives but as mutually reinforcing constitutional values. Peace without truth is fragile; truth without due process becomes accusation; justice without mercy risks vengeance, while mercy without principle degenerates into impunity. The challenge for constitutional democracies is to reconcile these competing imperatives within a framework of legality, fairness and public accountability.
A Principled Way Forward
To strengthen confidence in the administration of justice, the Attorney-General should publish a concise statement explaining whether the discontinuance was principally informed by evidential insufficiency, public-interest considerations, humanitarian concerns, national reconciliation, or a combination of these factors. Such transparency would enhance public confidence without compromising legitimate prosecutorial independence.
The Government should also make clear that Ernest Bai Koroma remains legally unconvicted and therefore continues to enjoy the full presumption of innocence, while emphasising that a nolle prosequi is not equivalent to a judicial acquittal.
Equally important, the families of those who lost their lives or suffered injury during the events of November 26, 2023 should be meaningfully consulted and incorporated into any reconciliation initiative. Lasting peace cannot be achieved if those who bore the greatest human cost perceive themselves as excluded from the process.
An independent, time-bound commission of inquiry should be established to produce a comprehensive and impartial account of the events of November 26, 2023. Its mandate should extend to examining the security failures, command structures, institutional shortcomings and circumstances surrounding the loss of life. Such an inquiry must remain firmly anchored in due process, ensuring that no individual is prejudged or presumed culpable in the absence of lawful judicial determination.
Finally, Sierra Leone should adopt publicly accessible prosecutorial guidelines governing politically sensitive prosecutions. Decisions to initiate, discontinue or revive criminal proceedings should be guided by clearly articulated evidential and public-interest standards rather than opaque executive discretion. Transparent prosecutorial policies would strengthen institutional credibility while reducing perceptions of political selectivity.
Conclusion
The discontinuance of Ernest Bai Koroma’s treason proceedings was unquestionably lawful under Section 45 of the Criminal Procedure Act, 2024. Whether it was institutionally justified, however, depends upon considerations that extend beyond the mere existence of statutory authority.
Saidu Koroma correctly explains that a nolle prosequi is neither a conviction nor an acquittal and that only the judiciary can determine criminal liability. His analysis, however, pays insufficient attention to the broader institutional, political and victim-centred implications of exercising prosecutorial discretion in a matter of exceptional national importance.
Conversely, Dr Sylvia Blyden rightly insists that reconciliation must neither overlook victims nor ignore the apparent disparity between the treatment of convicted security personnel and the discontinuance of proceedings against a former President. Yet her analysis becomes legally vulnerable where it permits association to substitute for proof, silence to imply guilt, and political conjecture to assume the status of established fact.
Both perspectives therefore illuminate important dimensions of the debate while leaving unresolved the central question: what evidential and public-interest considerations persuaded the Attorney-General that discontinuance best served justice? Until that question is addressed with greater transparency, public discourse is likely to remain divided between legal formalism and political inference.
The constitutional challenge confronting Sierra Leone is therefore not simply whether Ernest Bai Koroma should or should not have remained on trial. Rather, it is whether the institutions entrusted with administering justice can demonstrate that decisions of profound national consequence are guided by law, evidence, transparency and equal treatment rather than by political expediency or public pressure.
Fiat justitia ruat caelum—let justice be done though the heavens fall—remains a noble constitutional ideal. Yet justice is not achieved by prosecution alone, nor peace by discontinuance alone. Justice requires credible evidence, impartial institutions and transparent decision-making; reconciliation requires truth, inclusion and moral courage.
History will judge this episode not by the political fortunes of any individual, party or administration, but by whether Sierra Leone strengthened the rule of law, preserved public confidence in its institutions, and advanced a model of reconciliation founded upon justice, accountability and constitutional fidelity. That—and not transient political advantage—is the enduring legacy worthy of a constitutional democracy.
The author, *Chernor M. Jalloh is Lecturer of Governance, Public Policy & Development Studies
IPAM – University of Sierra Leone
[1] “An act does not make a person guilty unless the mind is also guilty.” In other words, “a person cannot be held criminally liable merely for committing an act; the act must be accompanied by a guilty mind (criminal intent).”
Copyright –Published in Expo Times News on Monday, 20th July 2026 (ExpoTimes News – Expo Media Group (expomediasl.com)
