The Special Court for Sierra Leone (SCSL) on 24th May 2011 instructed two independent counsel to issue indictments and subsequently prosecute individuals for contempt of the Special court. In its order, the Court directs Robert C Herbst and William L Gardener to prosecute Hassan Papa Bangura (aka Bomblast), Samuel Kargbo (aka Sammy Ragga), Santigie Borbor Kanu, Brima Bazzy Kamara and Eric Senessie for allegedly interfering with the Court’s administration of justice by offering bribes to witnesses to recant earlier evidence presented to the court.
Brima Bazzy Kamara
Santigie Borbor Kanu
In the first set of indictments, Bangura, Kargbo, Kanu are separately charged with 2 counts of offering bribes and influencing witnesses to recant earlier evidence given to the SCSL. Kamara faces a three-count indictment for influencing witnesses by offering bribes and disclosing confidential information regarding the identity of a protected witness.
Hon. Justice Teresa Doherty
In the second set of indictments, Senessie is charged with 9 counts for attempting to influence witnesses to recant evidence earlier given to the court. While the first set of indictments relates to the concluded trial between the Prosecutor against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, the second set relates to matters arising from the trial of former Liberian president Charles Taylor.
On 25th February 2011, SCSL Prosecutors filed a motion requesting the Court to conduct investigations for Eric Senessie or Prince Taylor for acts allegedly amounting to contempt of court.[1] The prosecution submitted that the Court appoints an independent counsel pursuant to Rule 77 (C)(iii) of the Court’s Rules of Evidence and Procedure (The Rules), to investigate possible contempt of the SCSL in relation to four prosecution witnesses; TF1-568, TF1–330, TF1–585 and TF1–516. It is alleged that in January 2011, TF1-568, TF1–330 and TF1–585 were contacted through telephone and in person first by Eric Senessie, a former Revolutionary United Front (RUF) combatant, and subsequently by Prince Taylor, a former employee of the Defence Office. In their statements, the witnesses alleged that Mr. Senessie told them that he was sent by Charles Taylor’s defence team to persuade them to recant their previous sworn testimony and testify that their previous testimony before the SCSL was given based on prosecution’s promise of financial benefits and relocation. The witness further recalled that Mr. Senessie promised a huge financial reward if they agreed to corporate.
Judges of Trial Chamber II granted the prosecution’s urgent interim measure for the court to conduct an investigation of contempt of the SCSL. The Chamber thus directed the Registrar of the Court to appoint an experienced independent counsel to investigate the allegation that a person or persons including Senessie and Taylor are in contempt of court pursuant to Rule 77 (A) (ii), (iv) and (B) of the court’s Rules by disclosing information relating to proceedings thereby revealing the identities of protected witnesses, interfering with witnesses by offering bribes, requiring them to recant the earlier evidence. Rule 77 provides inter alia that the court may punish for contempt of person who wilfully interferes with the court’s administration of justice by disclosing information relating to proceedings, offers a bribe, threaten or intimidate a witness who has given evidence before the court.[2] The Registrar appointed William L. Gardner as an experienced independent counsel on March 18 2011 to conduct investigations relating to prosecutions allegations.
Following a further direction by the Chamber that the independent counsel submitting a report as to whether there are sufficient grounds for instigating contempt proceedings, Mr. Gardner submitted a report of his findings on 21st April 2011 in which he concluded that while there was insufficient evidence to proceed in contempt against Prince Taylor, “there are sufficient grounds to proceed against Eric Senessie for contempt of Court.” Following the submission of the report which was kept under seal, the Chamber ordered that an “Order in lieu of Indictment” be issued against Mr. Senessie and directed the independent counsel to prosecute Mr. Senessie pursuant to said indictment.[3]
In the order in lieu of indictment, the independent counsel charged Mr. Senessie with 5 counts of interfering with witnesses who earlier testified before the court by attempting to influence them, 4 counts of offering bribes to witnesses who have testified before the Special Court in return for them to recant their previous evidence. Specifically, the allegations relate to alleged bribes and relocation being offered to Dauda Aruna Fornie, Mohamed Kabba, TF–516 and TF1-585, all of whom have testified in the prosecution’s case against Charles Taylor.
In a separate direction, the Registrar appointed Robert L. Herbst as another experienced independent counsel on 23rd March 2011, to investigate the prosecution’s allegations of contempt brought against Santigie Borbor Kanu and Brima Bazzy Kamara who were convicted by the SCSL in the trial involving former commanders of the Armed Forces Revolutionary Council (AFRC) and are currently serving prison sentences in Rwanda, together with former AFRC members Hassan Papa Bangura (aka Bomblast), Samuel Kargbo (aka Sammy Ragga). On the 11th May 2011, the independent counsel submitted his report to the Judges stating that there are sufficient grounds to believe that all four persons had indeed breached protective measures for witnesses by contacting a protected witness asking him to recant his evidence earlier given to SCSL. The Judges subsequently ordered that an Order in lieu of indictment for contempt be issued against all four persons and that the independent Counsel prosecutes them pursuant to said indictment.
Mr Herbst has accused all four persons of trying to bribe and influence Protected Witness TF1-334 who earlier testified against the AFRC accused (now convicts) before SCSL and an additional charge of disclosing confidential information for Bazzy Kamara, who it is alleged, revealed the identity of protected witness TF1-033 to Samuel Kargbo.[4] The Trial Chamber has further assigned both contempt proceedings to Justice Teresa Doherty, currently serving as a trial judge with Trial Chamber II.
It is a matter for the Chamber to determine the method/or mode of adjudication once they have reason to believe that there is a ground for contempt. The Chamber can either deal with the matter summarily, or refer it to an appropriate authority in Sierra Leone or as they did with these situations, request the Registrar to appoint an independent counsel to investigate and subsequently prosecute. Maximum penalty to be imposed had the matter been tried summarily would have been a term of imprisonment not exceeding six (6) months or a fine not exceeding Two Million Leones (Le 2,000,000) or both. However, with the current situations, a person upon conviction may serve a maximum term of imprisonment of Seven (7) years or a fine not exceeding Two Million Leones (Le 2,000,000) or both. All accused persons will be provided with legal assistance as provided in Rule 45 of the Court’s Rules.
While it is not yet clear where the contempt proceedings will be held, there is a possibility that the AFRC convicts Kamara and Kanu will have their prison terms suspended and be made to leave their Mpanga prison in Rwanda for a temporary period to attend the aforementioned proceedings if they are held at a place outside Rwanda. This leaves open the question of the real purpose of the contempt proceedings. it is still not clear whether it is a means of deterrence aiming to send a strong message that intimidation or other means of influence will not have a place even when the court would have wound up, or just a check on convicted persons and people who have participated in any of SCSL’s trials, to continue to respect principles of confidentiality.
In Sierra Leone, allegations of contempt are mostly dealt with summarily by Members of the Bench. While this is understandable in light of the numerous logistics challenges that confront the justice system, it is hoped that the judiciary may learn from the Special Court precedent and start instituting full-scale proceedings regarding allegations of contempt. This may be particularly useful in cases where the accused strenuously denies such allegations. CARL believes, though, that the impending contempt proceedings will have implications particularly for the Court’s budget and the time table for the Taylor trial. In terms of the Court’s funding, funds will have to be disbursed to pay the independent counsel (both prosecution and defence) and support the transfer of the accused, regardless of where the proceedings will be held. In terms of its implication for the schedule of the Taylor trial, there is likelihood of a slight delay in handing down a verdict.
Justice Teresa Doherty, who has been designated to preside over the proceedings, may be required to split her time between the Taylor trial and the contempt proceedings. Even if the Honourable Justice is to deal with both the Taylor deliberations and the contempt proceedings consecutively, there might still be a delay in concluding the trial, especially if the proceedings commence before Trial Chamber II concludes its deliberations.
From a Special Court point of view, the contempt proceedings may help deter convicts, Court employees as well as members of the public from attempting to unduly influence the outcome of its trials. Regardless of the likely implications, proceedings of this nature clearly tend to strengthen the rule of law and protect the integrity of the judicial process. Our national judicial system and other International Criminal tribunals can continue to strengthen the respect for the rule of law by emulating such practices or adapting it where necessary.
[1] See SCSL-03-01-T-1218, Decision on Public with Confidential Annexes A to E and Public Annex F Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone and Public with confidential Annex A & B Urgent Prosecution Motion for an Investigation into contempt of the Special Court for Sierra Leone.
[2] See SCSL Rules of Procedure and Evidence as amended on 28 May 2010 (Rule 77 (A) (i)(iv), (B)
[3] See Decision on the report of the Independent Counsel, SCSL-03-1-T, May 24, 2011
[4] See Decision on the report of the Independent Counsel, SCSL-04-16-ES, May 24 2011.
