A Cessna plane alleged to have been carrying substances believed to be cocaine landed at Sierra Leone’s international airport at Lungi in July this year. Many people including foreign nationals have been arrested in connection with the incident. Following their arrest, 19 people including two women have already been charged to court with offences ranging from unlawful landing and entry; unlawful possession of arms; malicious damage to government property; to conspiracy to pervert the cause of justice among others, all contrary to law. This event probably expedited the enactment of The National Drug Control Act (2008) under a certificate of emergency from the President. In addition, Parliament by Statutory Instrument No. 10 of 31 July 2008 also amended The Pharmacy Drugs Act by including cocaine among the narcotic substances. These legislations have effected public discussion as to whether or not the accused are going to be charged under the new laws; no drug-related charge has been proffered so far, and the current law on drug is outdated in many respects-it does not meet the needs of present-day realities.
With the Cessna plane episode, both proponents and opponents of ex post facto legislation point to national as well as international instruments and case law precedents as sources of reference in making their case. Thus, it has come time to examine the essential question involved in the issue, the relation of justice to ex post facto legislation: Can ex post facto laws ever be just? This is what this piece will seek to examine.
The essentiality of a right to protection from ex post facto criminal law has generally been accepted without argument. Ex post facto generally means “done or made after the fact; having retroactive force or effect.” [i] Loosely put, it means a law cannot be created tomorrow which will hold a person responsible for something he or she does today. Laws are binding only from the date of their creation or from some future date at which they are specified as taking effect.
The principle has been enunciated in various national and international declarations of human rights. For instance, the Constitution of Sierra Leone, 1991 states in section 23(7) that: “No person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence”. Article 15 of the International Covenant on Civil and Political Rights (ICCPR) which includes a proviso identical to that in sec. 23(7) of the Sierra Leone Constitution states, inter alia: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.
The prohibition on ex post facto laws is also found in the Constitution of the United States. It forbids both the Federal Government (Article 1 sec. 9(3)) and the states (Article 1 sec.10(1)) from passing any ex post facto laws or bills of attainder, and many state constitutions contain similar restriction upon their legislatures. On account of these clear and total prohibitions, Americans have the tendency to see all ex post facto laws as the veritable work of the devil-iniquitous, oppressive, devoid of justice, the plaything of tyrants. [ii]
One of the most serious complaints against ex post facto law is that it must necessarily fail to possess one essential element of law-a proper promulgation-since men cannot know the law before it has been made law. This principle is closely linked to the principle that ignorance of the law is no excuse, because that principle relies upon the accessibility of the law for its justification. Ex post facto laws are inaccessible in the sense that they are not knowable at the time when the erstwhile legal acts or omissions occur. Clearly, application of the maxim ignorantia juris non excusat (ignorance of the law is no excuse) to such a situation is unfair as that ignorance is beyond the control of the person in question.
In one aspect, of course, ex post facto criminal laws must clearly be unjust: if the law criminalises acts which are mala prohibita, that is, acts morally neutral in themselves, but wrong because forbidden by just authority, then any degree of retroactivity would, on its very face, necessarily be unjust. As early as 1651, Hobbes wrote: “No law, made after a fact done, can make it a crime…For before the law, there is no transgression of the law” [iii]
The principle of non-retroactivity is manifested in the Missouri Supreme Court ruling in the case of RL v State of Missouri Department of Corrections. In the said case, RL pled guilty in 2005 to a sex crime; specifically to the crime of attempted enticement of a child -Missouri Revised Statutes, sec 556. His sentence was “suspended” and he was put on probation. In 2006, Missouri General Assembly passed a law that states in part: “Any person who, since July 1, 1979, has been or hereafter has pleaded…or been convicted of, or been found guilty of violating…any of the provisions of this chapter…shall not reside within one thousand feet of any public school…” RL lived 1,000 feet from a school that was built in 1988; he had lived in this place since 1997. After the 2006 law was passed, the Department of Corrections informed RL that he needed to move or he would be guilty of a felony and his probation would be revoked.
The Circuit Court of Cole County ruled that the 2006 law is an unconstitutional retrospective law as it applies to RL and anyone in a situation like his. The Supreme Court of Missouri agreed with (affirmed) the Cole County Circuit Court. In another example, in Doe v Philips, the Supreme Court of Missouri ruled that requiring someone convicted of a sex offence crime to register as a sexual offender when the crime had occurred prior to requiring registration was a retrospective law and, therefore, unconstitutional.
Intuitively, one recognises that it is ethically wrong to impose punishment for morally neutral acts before just authority has forbidden them.
For apologists against the principle of non-retroactivity, they claim that it is associated with the retributive theory of punishment, as opposed to the deterrent theory. A new law is always enacted in the persuasion that it is better than the former one. Its efficacy, therefore, must be extended as far as possible, in order to communicate the expected improvement in the widest sphere. [iv]
Proponents of retrospectivity only argue for the making of retroactive laws in ‘exceptional circumstances’: in situations where the wrongdoer’s acts or omissions were morally wrong, though legal at the time that they were committed, that is, where the wrongdoer has transgressed the “natural law”.
The right to protection from retroactive criminal law is well recognised throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been ignored or (at the very least) circumvented. In some case, accused persons are punished for committing acts which were not criminal at the time that they committed those acts: they are found guilty retrospectively. Clearly, then, the right to protection from retroactive criminal law is not an absolute human right.
The Nuremberg trials were undoubtedly an imposition of ex post facto law. Despite protestations, most jurists rationalised the behaviour of the Nuremberg court by claiming that the actions of the Nazis were so immoral as to be an exception to the principle of non-retroactivity. It is at least arguable that finding Nazis guilty of war crimes “in the traditional sense” is as much the application of an ex post facto law as the punishing of people who deserve punishment according to the “sound feelings of the people”.
One landmark case in which retroactivity was employed is Shaw v Director of Public Prosecutions (1961).Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959. He was convicted on a charge of “conspiracy to corrupt public morals” on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes “…to debauch and corrupt the morals of youth and other subjects of the Queen”. Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown or innominate. All five law lords upheld the conviction. The majority built their argument upon the notion, put forward by Lord Mansfield almost two hundred years earlier, that the courts are “guardians of public morals” and that they ought to restrain and punish.
In another case, R v Manley, the accused (Manley) made false allegations of robbery to the police. Before the Court of Criminal Appeal, she was found guilty of “unlawfully effecting a public mischief”. This decision was widely attacked as being an example of ex post facto punishment, as no such crime existed before the case.
The fact of the matter is that both Manley and Shaw were found guilty of having committed crimes that were not recognised as such when they committed the acts in question. They remain as examples of how the principle of non-retroactivity has not been universally applied in British courts.
The American constitutional framers, despite their ban on retroactivity on both the federal and state level, did not completely foreclose that option, for the amendment process can still enact, or allow to be enacted by lesser bodies, ex post facto laws.
The case in question has the propensity to be landmark. The question is: Are the acts or omissions of the accused so immoral as to be exception to the principle of non-retroactivity? One important thing to note is that section 106(5) of the Constitution of Sierra Leone, 1991 gives power to Parliament to make laws with retrospective effect. The said sec. states that: “No law made by Parliament shall come into operation until it has been published in the Gazette, but Parliament may postpone the coming into operation of any such law and may make laws with retroactive effect”. Thus whilst sec. 23(7) ensures protection from retroactivity, sec. 106(5) seem to state otherwise. However, if Parliament invokes the power of the said section to be applicable to the case under consideration, it is very likely that it will warrant a serious contention on the part of the defence that such application contravenes an earlier provision of the Constitution- that is sec. 23(7). Such contention can only be determined by the Supreme Court pursuant to sec. 124(1)(a) which states “The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all other Courts-in all matters relating to the enforcement or interpretation of any provision of this Constitution”. Aside from that, in spite of Parliament having the power to “make laws with retroactive effect”, if such law(s) run contrary to the Constitution, it automatically becomes null and void. This is in accordance with sec. 171(15) of the Constitution: “This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect”.
Also, although Parliament may alter the Constitution pursuant to sec. 108(1) which states “Subject to the provisions of this section, Parliament may alter this Constitution”, subsection 3 of same states that “A Bill for an Act of Parliament enacting a new Constitution or altering any of the following provisions of this Constitution, that is to say-(a),(b), and (c) shall not be submitted to the President for his assent and shall not become law unless the Bill, after it has been passed by Parliament and in the form in which it was so passed, has, in accordance with the provisions of any law in that behalf, been submitted to and been approved at a referendum”. That is to say, the paragraphs of subsection 3 which covers Chapter III where sec. 23(7) is rooted are entrenched clauses of the Constitution; they can only be amended or altered after a vote in a referendum.
In a resume therefore, the unending rambling as to whether or not the accused are going to be put on trial under the new laws is largely left with the court, in particular the Supreme Court, and the people of Sierra Leone to decide, if, and only if ever it comes up for determination. Be that as it may, however, ex post facto laws can be a recipe for abuse of individual liberties. Clearly, people would feel uneasy, for the use of devices of ex post facto law and bills of attainder always carries with it great practical risks. Carelessly or wilfully misused, these devices are a blood-drenched sword in the hand of a despot.
[i] Black’s Law Dictionary; Seventh Edition
[ii] Free Life; The Journal of the Libertarian Alliance, Vol. 7: No.1
[iii] Criminal Law Journal, vol. 13, no.4, August 1989, pp1
[iv] Ibid, pp3