“Injustice anywhere is a threat to justice everywhere” Martin Luther King
The case of The Inspector General of Police v Harvey Steven Perez & Others commenced on Friday, 1stAugust 2008 at Magistrate Court No. 1(a) in Freetown before Principal Magistrate Tarawallie Deen. The accused including two women are standing trial for various offences ranging from unlawful possession of small arms; unlawful entry; malicious damage to the perimeter fence valued at Le 20million; unlawful landing; conspiracy for unlawful landing; conspiracy to pervert the cause of justice; to conspiracy to aid the escape of fugitive offenders with the aim of perverting justice; all against the laws of Sierra Leone. Since the inception of the said matter, a plethora of concerns have surfaced which borders on a range of issues relating to fair trial rights.
This piece will attempt to discuss some fair trial provisions as entrenched in both national and international instruments insofar as they relate to the issues raised therein.
One foremost pre-trial right is the right to be brought promptly before a judge or other judicial officer for the determination of any criminal charge against him. This right was flouted in the matter in question. The accused were charged to court on 1 August 2008; over two weeks after they were arrested in contravention of an entrenched provision in the Constitution of Sierra Leone 1991, which states in sec. 17(3) that “Any person who is arrested or detained…shall be brought before a court of law-(a) within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences; and (b) within seventy-two hours of his arrest in case of other offences;” It also violates sec. 10 of the Criminal Procedure Act 1965 which reads “Subject to the provisions of section 80, all arrested persons shall be brought as soon as possible before the Court having jurisdiction in the case, or the Court within the local limits of whose jurisdiction any such person was arrested”. This violation was brought to the attention of the Court by the defence during the first hearing. Premised on the right to be presumed innocent, and treated as innocent, until and unless they are convicted according to law in the course of proceedings which meet at least the minimum prescribed requirements of fairness, their right as enshrined in legislations should be respected.
The presumption of release pending trial, a pre-trial right guarantee, is also a concern in this trial. Relying on the presumption of innocence, accused in criminal matters should normally be granted release pending trial. Articulating this principle, sec. 79(4) of the Criminal Procedure Act, 1965 provides that: “A person may be admitted to bail at any time, and thereupon shall be discharged from custody or prison if he is not detained for any other cause”. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. In interpreting this provision, the UN Human Rights Committee has ruled that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Bail is often refused “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” Roland SV Wright, defence counsel for the 10th Accused, in his submission for the Magistrate to reconsider his application for bail had this to say: “I implore you, Your Worship, to peruse the charges my client is facing-breaking a fence. I am sure your Worship has readily granted bail to more serious offences than breaking a fence. He is locked up in solitary confinement for breaking a fence. And for that allegation, his entire future is in jeopardy”. He further stated that “we are ready to meet whatever stiff bail conditions Your Worship will be inclined to give”. In replying to the application, state counsel, Gerard Soyei, on behalf of the prosecution urged the Magistrate to refuse bail and adopted the reasons submitted earlier by the Director of Public Prosecutions in the proceedings. The defence’s application for bail was refused. However, juxtaposing bail conditions in general and the offences charged in particular, the refusal to grant bail can probably be a misnomer.
At the trial, an essential criterion of a fair hearing is the principle of “equality of arms” between the parties in a case. Equality of arms, which must be observed throughout the trial process, means that both parties are treated in a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an equal position to make their case. In the context of criminal proceedings, what the principle of equality of arms means is that the defendant must have “a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage viz-a-viz the prosecution”. In the said case however, this provision seem to be compromised. The defence have complained of limited access to their clients at Pademba Road Maximum Prison where the accused are held in custody. They claim that the prison authorities have imposed an excess of unnecessary, unreasonable, and discriminatory restrictions that are not applicable to other detainees facing similar, or if not, more serious offences than their clients. They further allege that they need to have a pass, signed by the Attorney-General and Minister of Justice, who is also a party to the case under consideration, before they can be granted access to see their clients at the Pademba Roads prison. This practice by and large undermines the principle of equality of arms.
Another trial right that is under threat in the current matter is the right to confidential communications with counsel. Some counsel have alleged that their clients’ privilege consultations, that is, lawyer-client confidentiality, have been subjected to gratuitous bureaucratic bottleneck and interference. A defence counsel in the said trial, Easmon Ngakui, who is Secretary General of the Sierra Leone Bar Association, said that a prison officer was within hearing distance when he was talking with his client; thus undermining the right in question. Communications between the accused and their counsel are confidential. The Human Rights Committee has explained that Article 14(3)(b) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to communicate with counsel, requires “counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications”. For people in custody, the authorities must provide adequate time and facilities for the accused to meet and have confidential communications with their lawyers, whether face to face, on telephone, or written. Such meetings or telephone calls may take place within the sight but not within the hearing, of others.
The conditions in which persons detained must not violate international standards. Rule 60(1) of the Standard Minimum Rules states that “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”. This said right is being seriously violated as alleged by the defence. Solomon A.J Jamiru, defence counsel for the 6th Accused, noted in Court that his client is being subjected to excessive hours of confinement for over twenty-three hours a day; he is only taking out of his room for about quarter an hour a day. Another defence counsel, J. Fornah-Sesay, maintained that his client was made to take an intra-venous medication whilst laying on the floor of his cell. Such practice violates sec. 20(1) of the Constitution of Sierra Leone 1991, which reads “No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading”. The collapse of the 15th Accused in Court on 22 August instant perhaps underscores the abovementioned allegations.
Justice is based on respect for the rights of every individual. As the Universal Declaration of Human Rights puts it, “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. How a person is treated when accused of a crime provides a concrete demonstration of how far that state respects individual human rights. Every criminal trial tests the state’s commitment to respect for human rights. Every government has the duty to bring to justice those responsible for crimes. However, when people are subjected to unfair trials, justice cannot be served.
The current case before the Court is a litmus test for the judiciary: if managed well, it will show that indeed it is the “temple of justice”; if not, it will make concrete the overwhelming consensus among legal practitioners, politicians, journalists, professionals and the lay public that the Sierra Leone judiciary is failing to deliver fair and impartial justice. It therefore behoves everyone connected with the matter in question to work assiduously to ensure that justice is seen to being done.