There have been increasing reports of incidents of sexual and gender-based violence across the country. Fortunately, many of the cases reported to the police nowadays wind up in court. Unfortunately, there has been a number of snags that characterize the preliminary investigation and trial of these cases. One of the most recent and high profile cases relate to former Deputy Education Minister (II) Mahmoud Tarawallie. The alleged incident involving the former deputy minister generated intense debate among members of the public. While some have given credit to the young girl for being so brave to have spoken out and contacted the police for help, others think it was made up as part of a political witch hunt against the accused. Some of the arguments have been clearly based on errant ignorance about the elements of the offence (rape).
It is important to note that rape is a statutory crime punishable by the Sexual Offences Act 2012, and hence would be dealt with accordingly.
First of all, the Centre for Accountability and Rule of Law (CARL) would like to commend the effort of the Family Support Unit (FSU) in professionally handling the investigation of the allegations against the minister. In spite of the status of the accused, the police still pursued him. The action of the FSU shows that as far as they are concerned, no man is above the law and offenders are to be punished. We will also like to commend other human rights organizations like LAWYERS, DON BOSCO for their tremendous efforts in helping to protect the rights of the alleged victim.
During the course of CARL’s court monitoring exercise, however, Monitors observed that Section (40) of the Sexual Offences Act 2012 which states, inter alia, that special measures should be provided for vulnerable victims and witnesses, was completely ignored when the alleged victim was testifying. The Court clearly failed to provide a witness protection mechanism either by shielding the identity of the witness or asking members of the public to leave the room, among the various modes of witness protection provided by law. Was it deliberate or a genuine mistake? If it was a mistake, it was one that had potentially life-threatening consequences because CARL further observed that while giving her testimony in the full view of the public, unprintable invectives were not only hurled at her mother, but there were clear statements of threat against her person. In fact, CARL was reliably informed that had she not been whisked away to the Family Support Unit after she had finished testifying, she might have been lynched by the angry supporters of the accused. This, in our view, amounted to a clear violation of the law and of the right of the alleged victim. Following concerns expressed by some human rights organisations, including CARL, which was later picked up by the prosecuting team, the court introduced a witness protection mechanism for the other witnesses. There were also instances of flagrant violation of the law by media institutions which published the name and photographs of the alleged victim, contrary to Section 41 of the Sexual Offences Act. It states that “No person shall make information that has the effect of identifying a person who is a victim of the offence and there would be a punishment for such persons”. It is the primary responsibility of the Law Officers’ Department to bring an action against anyone who is deemed to have breached the law. Of course, private organisations or citizens can also undertake private criminal prosecutions. So far, no legal/judicial consequences have followed those alleged violations. Well, how would you address the fact that the court itself was in breach of the law? When such violations go unpunished, they do not embolden victims of sexual offences to come forward and cooperate with law enforcement and justice institutions. It also seems to create the impression that the alleged victims are the perpetrators, thus helping to shield the perpetrators from facing justice.
Another unfortunate lesson that emerged from this particular matter is the apparent negative public attitude against alleged victims of rape. It is also a fact that there is massive knowledge gap in terms of the statutory definition of rape with respect to the giving and withdrawal of consent. Section 6 of the Sexual Offences Act defines rape as an act of sexual penetration with another person without the consent of the other person. It is also important to add that consent can even be withdrawn right before or even during intercourse. Many people seem to think that consent is irreversible. Section (2) of the Act defines the circumstances in which a person does not consent to an act. Such circumstances include where the accused induces the person to engage in the activity by abusing a position of trust, power or authority, or where the person having consented to engage in the sexual activity expresses by words or conduct a lack of agreement to continue to engage in the activity, or where the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely consenting, etc. There are also circumstances determining whether or not a person consented. Basically, there are clear ways by which a person can say or indicate consent to a sexual act and that a person is not to be regarded as having consented just because the person did not physically resist, did not sustain physical injury, or that on an earlier occasion the person freely agreed to engage in another sexual act with that person or some other person.
Going forward, CARL would like law enforcement officers and the judiciary to put mechanisms in place to protect victims and witnesses in cases relating to sexual violence in order to avert the incident that took place during the preliminary investigation involving the former deputy Minister.
At the moment, CARL is not sure whether any professional counselling is provided to victims of rape. There is need for intense counselling before they are allowed to testify because CARL has observed that many victims of rape appear to be psychologically disturbed during their testimony, and tend to give testimonies that conflict with their statements to the police. Even during cross examination, they do not seem to recollect some vital aspects of their statement or testimony. Such apparent inconsistency plays into the hands of the defence, and in a matter where the prosecution is led by untrained police officers, as is often the case, it only helps the defence’s case.
CARL would also like to draw the attention of government to the issue of Safe Homes for victims of sexual and gender-based violence. The Domestic Violence Act 2007 provides for the establishment of Safe Homes for the protection of victims of sexual and gender-based violence across the country. Nearly six years after the law was passed, only one Safe Home has been established in Makeni. Even so, it is not functional. This is grossly unfortunate because it doesn’t help our collective efforts at combating impunity for sexual offences as victims might be reluctant to come forward and complain if they are not sure that they can be protected, especially during the investigation and prosecution of SGBV-related cases. There should be operating Safe Homes across the country that victims can reside in. In the absence or scarcity of Safe Homes, victims who need protection are left with no other option but to go back to the society and face the possibility of being abused. During the preliminary investigation of the matter relating to the former deputy minister, the alleged victim was kept in the facility of Don Bosco, a private charity based in Freetown. It would have been extremely difficult, if not impossible, for her to have gone back home in light of the gravity of the matter. Once victims are allowed to return home, it could create the possibility for them to bulge under pressure from family and change their story or agree to an out-of-court settlement, thus undermining justice and accountability for such crimes. The need to establish a Safe Home is long overdue, but it is still the proper thing to do. It is absolutely needed across the country. The Ministry of Gender Affairs must back up their words with action. It is time to act!