Introduction
The 10th December 2008, marked the 60th Anniversary of the Universal Declaration of Human Rights (UDHR) with the theme: “Dignity and Justice for All”. This landmark document was the first to articulate the rights of all peoples. It was adopted without a dissenting opinion in 1948 as “a common standard of achievement for all peoples and nations”. It has over the years served as an inspirational source for numerous international treaties, declarations; conventions as well as national constitutions.
Sierra Leone is a beneficiary of the Declaration as Chapter Three of the 1991 Constitution espouses most of the rights enshrined in the Declaration particularly civil and political rights. However, while the adoption of the rights enshrined in the UDHR in our constitution, and the ratification of subsequent human rights treaties and conventions emanating from the ideals of the Declaration could have taken the country into the fold of the international human rights community, the realization of these rights by its citizenry especially in the area of justice delivery has remained most undesirable.
Sierra Leone operates a dual legal system which incorporates customary law defined under Section 170 (3) of the Constitution of Sierra Leone 1991, as “… the rules of law which by custom are applicable to particular communities in Sierra Leone”, and the general law system which is based on statutes and English Common Law. Customary Law is mainly practiced in rural Sierra Leone, while the general law is concentrated in the nation’s capital, Freetown; albeit it mere existence in regional and district headquarter towns. This article examines the justice system in the provinces, highlighting the barriers faced by its users in accessing justice in the formal courts.
Problems
Undue Delays in Trials
Pivotal to the rights to fair trial set forth in the Declaration is the right of the accused person to expeditious trial. Section 23 (1) of the Constitution of Sierra Leone Act No. 6 of 1991 replicates this when it accords persons charged with a criminal offence the right to a “fair hearing within a reasonable time” by a competent court However, this provision still remains a myth in the justice system of Sierra Leone. While several initiatives aimed at reforming the justice system have been instituted, trials continue to be marred by excessive delays in the provinces. The cases of the IG v. Saffie Koroma and The State vs. Patrick Sankoh Sesay, both of which were murder cases before the High Court in Makeni, Nothern Sierra Leone, lends credence to this. The former, being recently thrown out of court for lack of evidence lasted for more than forty-two months; while the latter matter was first brought to court in 2006 and stills remains in the court’s docket. The situation is the same in the Southern Regional Headquarter town of Bo. In the IG vs. SLP Sergeants Abdul Kamara and Idrissa Sesay and IG vs. Ifeanyi Nwadialor, the accused persons, charged with unlawful possession of drugs, have spent five and four months respectively in detention with little progress in prosecuting their matters. Worst even is the fact that a plea has not even been entered for the accused in the latter case in spite of the matter being charged to court and several appearances being made.
The right to a speedy trial, especially of persons in detention is an entrenched clause in the Constitution of Sierra Leone, meaning it should not be derogated. Aside from the fact that the safeguard prevents undue delays and prolong detention during trial, the right to a speedy trial is also designed to minimize anxiety and uncertainty accused persons usually encounter in the face of public accusations of criminal act. It also limits the possibility that long delay will impair the ability of an accused to defend himself. The passage of time may lead to the loss of key witnesses through death or other reasons and the blurring of memories of available witnesses. Over and above, “there is a society interest in providing a speedy trial which exists separate from and at times in opposition to the interest of the accused.” [i]
The UN Human Rights Committee provides an insightful guidance in determining the reasonableness of the length of proceedings, which according to the Committee has to be assessed based on the circumstances of the case. It must take into account the complexity of the matter, the accused’s conduct and the manner in which the matter is dealt with by the administrative or judicial authority. [ii] While it cannot be disputed that courts in the provinces are occasionally faced with matters of a complex nature, most matters found in the court’s dockets are straight forward in nature; and hence delays in such trials usually fall within the scope of the third condition mentioned above, that is the conduct of the administrative or judicial authority, which will include structural deficiencies within the judiciary.
The role of the Police
The police have the responsibility of investigating crimes in order to be able to determine the appropriate charges. Their failure to properly investigate crime before issuing charges to suspects has often affected the effective adjudication of cases. Though the police in some instances are equal to the task, in other instances, they have failed to investigate properly, thus leading to the arrest, detention and arraignment of the wrong person before the court. In the case of the IG vs. saffie Koroma in the Makeni High Court for example, the accused was arrested and charged for the alleged murder of her child, and after having spent over two years in detention, was acquitted for the lack of evidence.
Even where the police may proffer the appropriate charge to an alleged perpetrator, it has been very difficult for the police, who are usually the sole prosecutors in magistrate courts in the provinces to effectively prosecute of cases in courts. Mostly handicapped in prosecutorial skills, police officers have sometimes been sources of frustration to presiding Magistrates. The recent lambasting of the police prosecutors by the resident Magistrate in Bo, describing them as not ‘vibrant’ in prosecuting cases lends credence to this claim. [iii] This has led to the frequent adjournment of matters in the provinces.
Shortage of Lawyers
The increased role of the police in prosecuting cases in courts notwithstanding their shortcomings is an evidence of the scarcity of trained lawyers. Of the measly trained lawyers in the country, very few of them work for the government, mainly due to poor working conditions. Currently, only three lawyers are assigned to the provincial headquarter towns of Makeni in the North, Bo in the South and Kenema in the East. They also double as Customary Law Officers performing supervisory role over the Local Courts and reviewing their decisions as and when necessary. Besides the fact that the enormous workload carried by these two offices often stretches their time thin, also serving as a customary law officer- a position under the executive arm of government; beclouds his independence as a judicial officer..
There are also very few lawyers resident in the provinces. As a result, many accused persons, sometimes charged with serious offences, appear before the court without a counsel. The situation of indigent accused persons is exacerbated by the lack of effective legal aid scheme which undermines the accused right to fair trial including the rights to a bail, expeditious trial, right to an interpretation service etc. The case of the I.G v. Safie, Koroma, was expedited and eventually thrown out of court for lack of evidence only after the accused was provided with a pro bono legal aid services by a local civil society group.
The importance of legal representation
The International Covenant on Civil and Political Rights (ICCPR) requires states to provide “legal assistance [indegent accused] in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it” [iv] Section 28 (a & b) of the Constitution of Sierra Leone 1991 also provides for legal aid. The process of making this a reality in Sierra Leone is painfully slow. These provisions are to ensure that persons accused of serious offences are given fair trial and are not persecuted or victimized. However, the process of making this a reality in Sierra Leone is painfully slow. It is important that the authorities expedite the establishment of the legal aid scheme.
Attitude of Presiding Official of the Courts
Another problem undermining the administration of justice in the provinces is the attitude of court officials. Court sittings commence late and close early with a day’s session amounting to merely few hours of actual hearings of matters before the court. While court officials may be encountering logistical constraints to function effectively, it is important that conscience effort is made to increase the amount of time spent in court to adjudicate matters. Furthermore, the judiciary should continue the drive of recruiting more people to the bench.
Problems in the Local Courts
Most people in the provinces have been using the local courts because the proceedings are often conducted in the languages the users understand, the length of trial is most times short and they can also represent themselves. However, customary courts are still bias against women despite the conscious effort made by authorities to stop it. Women are still discriminated against both procedurally and substantively. Furthermore, customary courts frequently levy excessive fines on its users contrary to section 41(1) of the Local Courts Act of 1963 For example, in a slander case in Local Court No. 1 in the Wara Wara Yagala Chiefdom, Koinadugu District, the court officials fined the guilty party an assortment of items including money, rice, palm oil, and salt, all estimated at six hundred and five thousand Leones (Le. 605,000), an equivalent to $ 200 USD. Ridiculous to note however, is that when a sexual abuse matter, involving a minor, was brought before the same court, it could only impose a fine of fifty thousand Leones (Le.50, 000), an equivalent of about $18 USD. Whiles the former punishment was exploitative thereby negating the court’s role in prioritizing restitution and restorative justice, the latter undermines the rationale of the criminal justice system.
Effects
A major effect highlighted in both the formal and informal justice system has been the lack of access to justice to the overwhelming majority litigants in the provinces. International human rights demand that people have access and use the law in the determination of their rights. This does not only relate to access to a court of law, but it incorporates inter alia, factors including the speedy determination of cases before the court; the right to a legal representation or a legal aid in case where the accused is an indigent; the right to appeal; compensation in the event of a mistrial; the rights to an interpreter etc. The continued denial of these rights by courts has negatively impacted peoples’ confidence in the justice system.
Denial of access to justice resulting from the lack of legal representation often generates the feeling of marginalization of the poor by the justice system. Since our justice system has its basis in English law and legal procedure, it becomes difficult for the layman to successfully defend him/herself of the charges proffered in a court of law. Being an indigent, and with the absence of a legal aid, he stands at the mercy of the court even where he may have strong grounds for acquittal.
Conclusion
Access to justice including both institutional (the independence and impartially of the tribunal) and the procedural (the fairness of the hearing) clearly goes to the heart of human dignity. How a man is treated in the justice system clearly demonstrates the country’s commitment to the protection of human rights and hence human dignity. The Preamble of the Universal Declaration aptly articulates this when it recognizes “inherent dignity and …the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world”. The problems highlighted above points to the fact that the country still has a long way to go if ever it is to achieve the theme of this year’s Human Rights Day celebration “dignity and justice for all”
[i] Barker v. Wingo, 407 U.S.514, 519 (1972). Para. II
[ii] Human Rights Committee General Comment No. 32, CCPR/C/GC/32, 2007, Para. 35
[iii] Premier Media Newspaper,e Tuesday December 16th Edition
[iv] Article 14 (3) ICCPR