Commentary

“Since the Commission of Inquiry is an administrative body and not a judicial or quasi-judicial tribunal, it is not bound by the rules of evidence. It is not trying any cause between contesting parties and its proceedings are not as formal as in a judicial inquiry” - From: Academike - Lawctopus.

The Government hopes that the three Commissions of Inquiry will help to change Sierra Leone’s political and development narratives from non-accountability by persons entrusted with public offices and corruption which has held back the country’s growth out of poverty since the 1970s.
Commissions are often confused with courts of law. This isn’t surprising given that they seem to function like courts. For example, they’re often chaired by judges, affected parties are often represented by lawyers and witnesses take oaths to tell the truth. But they aren’t courts. And it’s important to understand the difference between the two when it comes to their functions, powers, and procedures.

The differences
A court judgment is binding and has direct legal effect on the parties involved. The court will determine that the accused goes to prison, for example, or that the defendant pays damages. The only way affected parties can escape the court order is by getting it overturned on appeal or review by a higher court. Commissions of inquiry, on the other hand, make non-binding recommendations to the person who set them up - In the case of the three commissions, President Bio.

Technically, all commissions do is offer the person who set them up advice. And they’re required to stick to the issues on which advice was requested. These are set out in the terms of reference which establish what questions the commission must answer, who will head it up and what its powers are. Commissions of inquiry are completely different from courts when it comes to procedures too. Courts are adversarial. The judge sits as an outside observer while the two teams before her attempt to establish their version of events.

Commissions of inquiry, on the other hand, are inquisitorial. This makes the commission the driver of the investigation itself. It seeks out the facts rather than waiting for two opposing parties to choose and present their evidence. In an inquisitorial process, the witnesses and their lawyers are merely assisting the commission’s investigation.

An important consequence of the inquisitorial process is that a commission is not bound by the same rules of evidence as in a court. Thus evidence will never be “inadmissible”, as the commission enjoys discretion to consider all evidence that it finds relevant to its inquiry.
Why the confusion?
With these important distinctions in mind, why have some commissions become “judicialised” and lawyer-driven? Why was the first day of the Commission taken up with technicalities? Why have postponements been built into the process so that “implicated parties” can study the allegations made against them?
It’s not just to stave off the threat of a court challenge to any findings. Such a threat is, in fact, not much of a threat at all. Commissions of inquiry will not be subject to the (higher) standards of so-called “administrative” review unless their findings have a direct effect on the persons who might want to challenge them. But the direct effect would arise only when the president acts on the findings.
The president wouldn’t be subject to administrative review in many of these cases either. Instead, the president and the commission will be subject to review for “rationality”. A rationality review asks only whether there is a rational connection between the conduct challenged before the court and a legitimate governmental objective.
Commissions have another, equally crucial function – to educate the public and ensuring its buy-in for important processes of change and renewal.
“Since the Commission of Inquiry is an administrative body and not a judicial or quasi-judicial tribunal, it is not bound by the rules of evidence. It is not trying any cause between contesting parties and its proceedings are not as formal as in a judicial inquiry” - From: Academike - Lawctopus
The Government hopes that the three Commissions of Inquiry will help to change Sierra Leone’s political and development narratives from non-accountability by persons entrusted with public offices and corruption which has held back the country’s growth out of poverty since the 1970s.
Commissions are often confused with courts of law. This isn’t surprising given that they seem to function like courts. For example, they’re often chaired by judges, affected parties are often represented by lawyers and witnesses take oaths to tell the truth. But they aren’t courts. And it’s important to understand the difference between the two when it comes to their functions, powers, and procedures.
The differences

A court judgment is binding and has direct legal effect on the parties involved. The court will determine that the accused goes to prison, for example, or that the defendant pays damages. The only way affected parties can escape the court order is by getting it overturned on appeal or review by a higher court. Commissions of inquiry, on the other hand, make non-binding recommendations to the person who set them up - In the case of the three commissions, President Bio.

Technically, all commissions do is offer the person who set them up advice. And they’re required to stick to the issues on which advice was requested. These are set out in the terms of reference which establish what questions the commission must answer, who will head it up and what its powers are. Commissions of inquiry are completely different from courts when it comes to procedures too. Courts are adversarial. The judge sits as an outside observer while the two teams before her attempt to establish their version of events.

Commissions of inquiry, on the other hand, are inquisitorial. This makes the commission the driver of the investigation itself. It seeks out the facts rather than waiting for two opposing parties to choose and present their evidence. In an inquisitorial process, the witnesses and their lawyers are merely assisting the commission’s investigation.

An important consequence of the inquisitorial process is that a commission is not bound by the same rules of evidence as in a court. Thus evidence will never be “inadmissible”, as the commission enjoys discretion to consider all evidence that it finds relevant to its inquiry.
Why the confusion?

With these important distinctions in mind, why have some commissions become “judicialised” and lawyer-driven? Why was the first day of the Commission taken up with technicalities? Why have postponements been built into the process so that “implicated parties” can study the allegations made against them?
It’s not just to stave off the threat of a court challenge to any findings. Such a threat is, in fact, not much of a threat at all. Commissions of inquiry will not be subject to the (higher) standards of so-called “administrative” review unless their findings have a direct effect on the persons who might want to challenge them. But the direct effect would arise only when the president acts on the findings.

The president wouldn’t be subject to administrative review in many of these cases either. Instead, the president and the commission will be subject to review for “rationality”. A rationality review asks only whether there is a rational connection between the conduct challenged before the court and a legitimate governmental objective.
Commissions have another, equally crucial function – to educate the public and ensuring its buy-in for important processes of change and renewal.