By Retired Col. SIM Turay
Following the establishment of the Transnational Organized Crime Unit (TOCU) in Sierra Leone as a cornerstone of the West Africa Coast Initiative (WACI), which is an ECOWAS Regional Action Plan to address the growing problem of illicit drug trafficking, organized crime and drug abuse in West Africa, the Transnational Organized Crime Unit has signed a domestic Memorandum of Understanding with a number of institutions/bodies in Sierra Leone. On the basis of some of the provisions contained in its Memorandum of Understanding, TOCU has carried out and continues to carry out drug law enforcement activities within the jurisdiction of Sierra Leone, and has investigated and prosecuted offenders who have allegedly committed drug offences and drug-related offences in the courts of this country, and continues to do so.
With regard to TOCU’s actions on drug law enforcement within the jurisdiction of Sierra Leone, I wish to express this Agency’s grave concern over the fact that the Transnational Organized Crime Unit has usurped the Parliamentary mandate of the National Drug Law Enforcement Agency (NDLEA), and continues to do so to date. In order to address the matter, this paper shall concentrate on four basic issues, namely, the legal status and role of TOCU in Sierra Leone; the legal meaning of a domestic Memorandum of Understanding; the legal status and role of the NDLEA with regard to its Parliamentary mandate and; TOCU’s violation of the National Drugs Control Act, 2008 and its ramifications.
(a) The legal status and role of TOCU in Sierra Leone
As earlier explained, TOCU is a cornerstone of the West Africa Coast Initiative (WACI), which is an ECOWAS Regional Action Plan to address the growing problem of illicit drug trafficking, organized crime and drug abuse in West Africa. Sierra Leone is one of the four pilot countries in West Africa in the initial phase of WACI’s programme of assistance.
Three significant features about Transnational Crime Units (TCUs) are: firstly, TCUs are “manned with staff seconded from national drug law enforcement agencies, trained and equipped to fight transnational organized crime.” Secondly, “In order to coordinate their activities within an international framework, TCUs act as national focal points for international cooperation in the fight against transnational organized crime.” Thirdly, the “WACI strategy is to strengthen human and institutional capacity of law enforcement officials to combat organized crime and drug trafficking more effectively.” Fourthly, so as to achieve this strategy, WACI “provides advisory, equipment, technical assistance and specialized training. National efforts will also be enhanced through increased and efficient regional and international cooperation building on existing law enforcement networks and structures.”
(b) The legal meaning of a domestic Memorandum of Understanding
In accordance with the law, a domestic Memorandum of Understanding is a non-legally binding agreement, which regardless of its title simply describes or outlines basic policies and procedures governing collaboration on matters of mutual concern or interest between a party and another entity or entities in order to optimise the benefits from each party’s efforts. Such cooperation may take the form of cooperation relating to the exchange of information; cooperation between one entity and another entity or entities; and/or cooperation between entities that have similar goals and statutory mandates and are implementing the same law.
The main distinguishing characteristic of a Memorandum of Understanding, as opposed to legally binding agreements, is that an MoU only describes general cooperation procedures. It does not in any way provide authority to enter into any form of legally binding agreements, for example, contracts or inter-Agency agreements, and can therefore not be used as the basis for justifying a contractual or other binding obligation.
(c) The legal status and role of the NDLEA with regard to its Parliamentary mandate
The legal status and role of the NDLEA with regard to its Parliamentary mandate are clear and unambiguous as they are stipulated in the provisions of the National Drugs Control Act, 2008, which is a statutory Act of Parliament. For the purpose of this paper, pertinent provisions as contained in Articles 3 and 24 of this Act are summarised below:
(i) The National Drugs Control Act, 2008 stipulates, inter alia, that the Agency shall be the focal point and shall take a lead in all investigations concerning drugs, coordinating all drug-related regulatory, enforcement and prosecution functions conferred on any person or authority by any enactment; and shall provide leadership in and coordinate all issues relating to drug control, eradicate drug abuse and the primary causes of drug abuse, illicit drug supply and drug-related crimes.
(ii) The Agency shall encourage and strengthen cooperation between the office of the Attorney-General, the Sierra Leone Police, National Revenue Authority, Immigration Department, Ministers of Social Welfare, Health, Transport and Aviation, and Internal Affairs, Local Councils, Prisons Department, other law enforcement agencies and Non-governmental organisations, in addressing issues of drug control, reducing drug abuse and its primary causes, and combating illicit drug supply and drug-related crimes.
(iii) The Agency shall collect, collate and disseminate information on drug and drug-related issues to public and private sector agencies and organisations and the wider community, and have responsibility for the conduct of research, analysis and education geared towards the prevention and eradication of drug abuse.
(iv) The Agency shall institute and take charge of the conduct of proceedings against any person in respect of any offence under this Act before any court in Sierra Leone with a view to the restraint, confiscation or forfeiture of any property being the proceeds or instrumentality of any offence under this Act, and shall in addition to any other functions conferred on it by this Act also have responsibility for improving international cooperation against drug trafficking and precursor trafficking by land, sea and air.
Ironically, however, the NDLEA which is the principal institution with the Parliamentary mandate in the fight against the illegal drugs trade in this country has never functioned or become operational since it was established in January 2003. As a result, the Agency has found itself in the periphery of Sierra Leone’s intelligence community over the past 10 years, and has never had the basis to foster any form of effective or meaningful collaborative working relationships with other agencies with complementary mandates. It is therefore inconceivable to expect the National Drug Law Enforcement Agency with only ten (10) administrative staff at its disposal and no operational infrastructure in place to deploy its personnel in Freetown, at Lungi Airport, at the Queen Elizabeth II Quay, in Bo, in Kenema, in Makeni, in Kambia, in Kabala, in Koidu, in Tongo Field, in Moyamba, in Pujehun, in Kailahun, and the border towns of Gbalamuya, Koindu, Sainya, Koindukura and Mano River so as to enable it win the fight against the illegal drugs trade in Sierra Leone with a population of close to six million inhabitants with a drugs culture.
It is this shocking development explained above which gave the Transnational Organized Crime Unit a glorious opportunity to illegally usurp the functions and Parliamentary mandate of a defunct National Drug Law Enforcement Agency that was rendered unfit for purpose by the very system that created it.
d) TOCU’s violation of the National Drugs Control Act, 2008 and its ramifications
In accordance with the National Drugs Control Act, 2008, TOCU cannot by law assume legal responsibility for drug law enforcement within the jurisdiction of Sierra Leone as it does not have a Parliamentary mandate to do so. This means that TOCU cannot conduct drug law enforcement within the jurisdiction of Sierra Leone. It also cannot legally investigate and prosecute offenders who have allegedly committed drug offences and drug-related offences within the jurisdiction of Sierra Leone.
It is an indisputable fact that TOCU’s Memorandum of Understanding is not a legally binding document. Most importantly, TOCU’s Memorandum of Understanding is not derived from an Act of Parliament and cannot therefore avail as a statutory instrument. In essence, the provisions contained in TOCU’s Memorandum of Understanding cannot avail in a court of law in this country.
It is also essential to point out that there are certain problematic aspects of TOCU’s Memorandum of Understanding which warrant critical examination.
(i) The Executive Director of the NDLEA has been appointed a member of the TOCU Management Board, and TOCU claims the NDLEA is a participating entity to its Memorandum of Understanding. However, the Executive Director wishes to emphasise that the NDLEA is not a participating entity to TOCU’s Memorandum of Understanding.
(ii) TOCU’s Memorandum of Understanding stipulates its mission is “to collect intelligence, investigate and apprehend persons who without lawful authority are involved in any form of Transnational Organized Crime.” This clearly means that TOCU is established on the premise of combating transnational organized crime.
(iii) The Memorandum of Understanding also stipulates that “the capabilities of intelligence law enforcement agencies to investigate Transnational and Organized Crime are enhanced in a multi-agency setting involving the sharing of resources and expertise.” This means that TOCU seeks collaboration with other law enforcement agencies.
(iv) The Memorandum of Understanding further stipulates that matters designed to be handled by TOCU will not knowingly be subject to separate and/or independent outside law enforcement efforts by any of the participating or referring agencies. This provision is so far reaching it clearly amounts to TOCU having precedence over the NDLEA on such matters as drug law enforcement within the jurisdiction of Sierra Leone, which TOCU has illegally usurped.
(v) In spite of the fact that TOCU’s Memorandum of Understanding does not avail as a statutory instrument, there is undeniable evidence it is actively engaged in drug law enforcement within the jurisdiction of Sierra Leone. Some of TOCU’s drug law enforcement operations, which are very prevalent upcountry include but not limited to, the burning of cannabis farms; the arrest and prosecution of offenders who have allegedly committed drug offences and drug-related offences in the courts of this country; the indiscriminate and unlawful detention of innocent civilians accused of drug crimes; the unlawful destruction of homes and properties of innocent civilians suspected of drug crimes; and the forceful seizure of domesticated animals, including goats, sheep and chicken, which are so central to traditional African society.
Apart from the fact that TOCU’s drug law enforcement is a usurpation of the Parliamentary mandate of the National Drug Law Enforcement Agency, its operations upcountry are unlawful and may amount to serious human rights violations. The actions of TOCU therefore fly in the face of applicable statutory and regulatory requirements and are thus a violation of the National Drugs Control Act, 2008 and the fundamental human rights of innocent citizens of this country.
(vi) Considering that TOCU is carrying our drug law enforcement activities and investigating and prosecuting offenders of drug offences and drug-related offences within the jurisdiction of Sierra Leone without a Parliamentary mandate, its investigative exclusivity also clearly amounts to a usurpation of the Parliamentary functions of the NDLEA. As a result, TOCU is in serious breach of the provisions of the National Drugs Control Act, 2008.
What is fundamental to my case is that regardless of the resource problems of the NDLEA, the will of Parliament must remain supreme at all times and must therefore not be fettered by TOCU’s role or actions. In other words, the provisions of the National Drugs Control Act, 2008 have legal supremacy over TOCU’s Memorandum of Understanding, which as we are aware does not even avail as a Statutory instrument. TOCU must therefore carry out its mission within the framework of the National Drugs Control Act, 2008.
TOCU may quest for media sensation in order to justify its existence and effectiveness in the fight against the illegal drugs trade in Sierra Leone. But the fact of the matter is that firstly, there is indisputable evidence that the illegal drugs trade in Sierra Leone is getting worse by the day and that cocaine trafficking in Sierra Leone has increased dramatically. And this is against the backdrop of Sierra Leone being one of the key distribution/transit zones along the West African Coast for South American trafficking organisations establishing safe havens for the receipt, storage and trans-shipment of large consignments of cocaine destined for European and north American markets. Secondly, there are presently more cocaine dealers in Sierra Leone than ever before. Thirdly, the cultivation, consumption and trafficking of cannabis sativa has risen to such an extent it has now become a new phenomenon; and fourthly, the entire drug law enforcement system in Sierra Leone remains weak and prone to corruption.
What is now clear is that TOCU’s role and integrity in the fight against the illegal drugs trade in Sierra Leone have become highly questionable. But so as to draw attention away from this revelation, TOCU has embarked on a media sensation that paints an entirely different picture far removed from the reality of what is really happening.
What is more, as a result of the absence of the NDLEA at international drugs conferences abroad, Mr. Solomon Caulker of the Transnational Organized Crime Unit has seized the opportunity to disingenuously portray a glossy picture to the United Nations Office on Drugs and Crime (UNODC) and other international institutions of how the Transnational Organized Crime Unit is on top of the illegal drugs trade in Sierra Leone, and that the drugs problem in this country is being effectively addressed by TOCU.
At this juncture, it is important to point out that the implementation of the West Africa Coast Initiative (WACI) programme involving four project pilot countries, namely, Cote D’Ivoire, Guinea Bissau, Liberia and Sierra Leone has seen the governments of Austria, the Netherlands, USA and the UK set aside the sum of US$3,071,789 (three million and seventy one thousand seven hundred and eighty nine dollars) to sponsor project activities in Sierra Leone until 2014. However, even though TOCU has benefited from this programme, the National Drug Law Enforcement Agency has been completely excluded from the programme, in spite of the fact that WACI has made a commitment to enhance national efforts by building on existing law enforcement networks and structures.
It is also significant to point out that international organisations and foreign governments concerned with the fight against the illegal drugs trade have put in place measures to build the capacity of particularly Third world countries whose drug law enforcement agencies are experiencing resource difficulties. In this regard, international drugs conferences/sessions would prove invaluable to a NDLEA which is experiencing severe budgetary constraints at home and is desperately in need of domestic and international funding.
It should be borne in mind that international drugs conferences/sessions organised by the UNODC are meant to directly benefit the government of Sierra Leone. And in accordance with the National Drugs Control Act, 2008 such conferences should be attended by the Executive Director of the National Drug Law Enforcement Agency and not a member of TOCU surreptitiously appointed or confirmed by certain officials of the Ministry of Foreign Affairs and International Cooperation as the sole representative of the government of Sierra Leone. In this regard, the Executive Director has been made to understand that the Deputy Director General, Mr. James Sawi has contrived with Mr. Solomon Caulker of the Transnational Organized Crime Unit to the effect that the Ministry has been submitting the name of Mr. Solomon Caulker as the official government representative to attend international drug conferences/sessions abroad instead of the Executive Director of the National Drug Law Enforcement Agency.
Without belabouring the point, Mr. James Sawi who was at some point in time the Acting Director General of the Ministry of Foreign Affairs and International Cooperation has refused to offer an explanation to the Executive Director of the NDLEA for what clearly amounts to a violation of the National Drugs Control Act, 2008. I must emphasise that officials of the Ministry of Foreign Affairs and International Cooperation and the Ministry of Internal Affairs concerned with overseas conferences/sessions are well aware of the status quo.
I wish to point out that there is sufficient evidence relating to the concerted actions of the previous Minister of Internal Affairs and his then Permanent Secretary, Mr. Paul M. Sandi, together with Mr. James Sawi and Mr. Solomon Caulker with regard to the Executive Director of the National Drug Law Enforcement Agency being deliberately denied the opportunity to attend international drug conferences/sessions abroad over the past two years to warrant an investigation of the matter so as to determine whether or not the offence of corruption has been committed.
Considering the fact that TOCU is deliberately deceiving the UNODC and other international institutions and foreign governments about the seriousness of the illegal drugs trade in Sierra Leone, and that TOCU’s role and integrity are highly questionable, why then should the NDLEA’s Parliamentary role be sacrificed while the illegal drugs trade in Sierra Leone continues unabated? Is this really the answer to the illegal drugs problem in this country?
It is also disturbing to note that the NDLEA’s non-operationalisation has deteriorated to such an extent it has given rise to a misguided notion that the Agency’s Parliamentary mandate and role should be subjugated under TOCU’s Memorandum of Understanding simply because TOCU has some form of operational capacity which the NDLEA lacks. This notion clearly explains the NDLEA’s hopeless situation. But such a development not only stems from faulty reasoning, it also highlights the total ignorance of the provisions of the National Drugs Control Act, 2008 and the deceit of what really goes on in the illegal drugs business in Sierra Leone.
For the NDLEA, the principal law enforcement government institution with the Parliamentary mandate in the fight against the illegal drugs trade to be compelled to subjugate its Parliamentary status under TOCU, a non-statutory entity operating on the basis of a non-legally binding Memorandum of Understanding simply defies commonsense judgment. Most importantly, it amounts to a dangerous disregard for the provisions of the National Drugs Control Act, 2008.
It is essential for all parties with a stake in this issue to remember that Parliament established the NDLEA for a purpose, and this purpose is to win the fight against the notorious illegal drugs trade in Sierra Leone, which is now threatening the credibility of the state. So my appeal is for government to give the NDLEA the capacity to fulfil its Parliamentary mandate. This means that the NDLEA as an institution of government should be provided with relevant operational capacity, in terms of its financial, human and material resources to ensure the Agency can deliver on its Parliamentary mandate.
Finally, it is the considered view of the Executive Director of the National Drug Law Enforcement Agency that the operations of the Transnational Organized Crime Unit, especially those conducted upcountry against suspected drug offenders are seriously violating the fundamental human rights of many innocent citizens who are simply trying to make a living in peaceful and law abiding communities up and down the country. Once again, I must reiterate that the Transnational Organized Crime Unit does not have a Parliamentary mandate to conduct these operations, so its actions clearly abrogate the 1991 Constitution of this country and should therefore be investigated with a view to putting a stop to its illegal operations.
Editor's note
The author is the Executive Director of the National Drugs Law Enforcement Agency. This paper was written in June 2013 and addressed to key government institutions.
(C) Politico 10/04/14
