Introduction *
Sierra Leone is still in a period of transition, meaning, it still has the opportunity of initiating reforms that will inhibit the relapse into another deadly civil conflict. The last war was not only notorious for its egregious abuses of human rights but also for degenerating further the already ramshackled status of the justice sector. It has been argued that, on the eve of the war the once reputable judiciary was renowned for rendering justice only to the few political elites and the wealthy. Poor Sierra Leoneans could not enjoy similar opportunities. People became disgruntled with the justice system and this contributed tremendously to the outbreak of the war. [i]
The Sierra Leone Court Monitoring Programme deems the Government established Law Reform Commission essential to the transition process.
This article is therefore arguing a case for the establishment of a Public Defender System, parallel to the Directorate of the Public Prosecution, within the Sierra Leone legal system. It specifically argues for the establishment of a mixed system, a combination of the generally two systems: ‘Office of Public Defender’ and the ‘List’ systems. The idea for the mixed system stemmed from our experience in monitoring the Special Court for Sierra Leone (SCSL) for the past years. The SCSL is currently using the mixed system, designed to provide for judicial economy, effective representation and cost effectiveness.
The List System
The list system provides for indigents to be assigned counsels from a list of lawyers provided by the State. This system is said to be cost effective as the State would not have to employ permanent lawyers but hire them as the need arises and on contractual basis. This will also speed up the trial process since lawyers will not be overburdened with cases. The task of supervising the counsels hired is that of the State. It is difficult for the State to perform this function as they seldom establish bodies to supervise the counsels hired.
An Office of the Public Defender
In the second system, government establishes the Office of the Public Defender from which counsels, employed on permanent basis by the State, are assigned to indigent defendants. This system is said to be more expensive as the Government will not only have to incur the cost of paying for the employment of these lawyers since it retains them on an open-ended contract, but also the lawyers will be overburdened with cases. Sometimes, there may even be conflicts of interest in defending more than one client at trials. Consequently, the very essence of having a defence counsel i.e. to ensure effective representation will be undermined.
The Mixed System
The third is the mixed system mentioned above and it is a novelty. It is the combination of the two systems already discussed. In the mixed system, the Government establishes an Office of a Public Defender with few duty lawyers and administrative staff. The office in turn maintains a list of qualified defence lawyers who will be contracted only after an indigent defendant chooses them. This system should not only be cost effective but should also ensure that counsels focus on a particular client avoiding conflict of interest. It also enhances speedy trial.
Example: in the US
In countries such as the United States where the Public Defender System has long been in existence, its root is grounded not only in law but also in “the principles of a civilized society”. [ii] As early as in 1853 the Indiana Supreme Court rule noted the centrality of a robust defence to the whole trial process. Justice Sutherland further elaborated on the right of the indigent defendant to a counsel. Speaking for the majority in Powell v. Alabama, he stated that:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with rules of evidence. Left without the aid of counsel he may be put on trial without charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue, or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepared his defense, even though he [has] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know to establish his innocence.” [iii]
In 1914, the first Public Defender Office was opened in United States when the Board of Supervisors of the County of Los Angeles appointed Walton J. Woods Public Defender pursuant to the County Charter of 1913. [iv] [v] it is today implemented mainly by the states through the Office of the Public Defender which provides representations for indigents accused or convicted of criminal offences. They are responsible to ensure the constitutional rights of the defendants are fully protected; a right accorded to all indigents fairly, and on equal basis regardless of race, creed, nationality or socio-economic status. Although the right to be assigned a defence counsel is a right enshrined in the Federal constitution,
Examples elsewhere
Recently, countries in transition in Central and Eastern Europe after the Cold War made provisions for the Office of a Public Defender in their constitutions. [vi] In Sierra Leone however, this has not been the case despite the fact that we are still in transition. The commonest reason is that the Office of a Public Defender system is not part of our colonial heritage. Sierra Leone inherited the loose and ad hoc system from its British colonial masters in 1961. In this system, the State does provide indigent defendants with counsel in criminal cases but not necessarily one of their choosing. In other words, they are arguably left with no option but to accept the Government’s chosen lawyer. After over four decades of independence, Sierra Leone laws are expected to continue to develop. Even the British system that was copied adopted a Legal Aid Scheme as early as in 1949, well before Sierra Leone gained independence. British legal system has continued to evolve since then and has resulted in the enactment of the ‘Access to Justice Act 1999’ by the British parliament. [vii] This Act transferred the administration of legal aid to an independent statutory body, the Legal Service Commission. The Commission works in partnership with the Government Minister. While the Government Minister is charged with the responsibility of making the overall Legal Aid Policy, the commission is responsible for its administration, including payment and monitoring of the practitioners who render services to indigent accused or convicts to ensure quality service.
The current situation in Sierra Leone
However, developments in the Sierra Leone legal system have not only been few but far between: new legislations are promulgated but at snail pace and archaic ones are rarely repealed to meet the changing situation. The lack of corresponding office of a Public Defender, like that of the Director of public Prosecution (notwithstanding the fact that it is not part of our colonial heritage) underscores this but largely undermines the effort in dispensing justice, especially for the indigent. It gives the state undue advantage over the indigent accused persons. Inequality of arms breeds unfairness and subsequently undermines respect for the rights of the accused as enshrined in the 1991 Constitution of Sierra Leone.[viii]
As aforementioned, Sierra Leone has been practicing an ad hoc system where a State counsel is assigned to defend a particular indigent accused. This system is already inundated with myriad of problems. The lawyers on many occasions are so overburdened with cases that they sometimes cannot respond adequately to the task of providing adequate defence. The Constitution of Sierra Leone 1991 guarantees the right to a lawyer. [ix] The question here is not about the need to provide a lawyer for the indigent defendant but how to make the best use of the lawyers whose services may be available with limited funds and how to ensure the provision of similar facilities to those that are accorded the prosecution. Under the current system, the indigent is likely to have to just accept any lawyer imposed on him by the State because of his indigent status. This should however not be the case as it does not create competition, and encourage more productivity to attract clients.
Furthermore, in an event the State has to hire a private counsel, the Registry often has difficulty in getting lawyers that are willing to take cases. Most times, only newly qualified lawyers respond. Lawyers that have been in practice for long are often attracted by high profile cases. The main reason for this is that, remuneration is small and slow to get payment from the State. However, it is essential that the accused or convicted indigent is assigned a counsel in the earliest stages of a trial or appeal not just for prestigious court appearance as many abuses occur in the very beginning of a case.
The mixed system, the system currently practiced by the Special Court for Sierra Leone is designed to trim down the difficulties that accompany the two systems already discussed. These difficulties include the high cost of legal operation, counsel assigned to more than one accused, potential conflicts of interest and delays in the trial process. However, it is not without its own challenges. Some of the challenges are similar to the ones already discussed in the two systems. For instance, some of the private practitioners whose names are maintained by the Office of the Principal Defender may be engaged in other cases at the time a client chooses them and there may even be extensive bureaucracy in hiring and paying counsels. Furthermore, the role of the Office of the Public Defender may sometimes be unclear: whether it is simply to administer defence generally, which includes staffing and payment of salaries or is involved in defending i.e. investigating and representing indigent accused persons, at least at the initial stage. [x] These challenges are not insurmountable. Sierra Leone has the golden opportunity to learn from and remedy some of the shortcomings of the system as applied by the Special Court.
Now that we are still in transition, this is an opportunity to prove that ipso jure , right to an effective legal counsel is not a privilege but a constitutional right.
* This article was first published in the 6th Edition of the Monitor in August-September 2005. Three years since then, no adequate structure has been put in place to establish an office of a public defender. Recent development at the national court regarding inequality of arms, especially in the case of the IG v Harvey Steven Perez & Others has necessitated the republication of this article. The defence has alleged that the Attorney General has restricted them access to their clients. The establishment of an office of a Public Defender with similar political clout as that of the office of the Attorney General will enhance equality of arms in post-conflict Sierra Leone.
1. See In Pursuit of Justice: A Report on the Judiciary in Sierra Leone, Niobe Thompson, Commonwealth Human Rights Initiative, 2002, p.5. See also Vol. 2 Chapter 2 Findings of the Sierra Leone Truth and Reconciliation Commission Report.
2. Webb v. Baird 6 Ind 13, 18
3. Powell v. Alabama. 287 US 45 (1932).
4. See http://pd.co.la.ca.us/History.html.
5. See Sixth Amendment of the US Constitution .
6. The State of Georgia is the latest to open an office of the Public Defender. Seehttp://www.justiceinitiative.org
7. See Roger Smith, Legal Aids in England and Wales: Current Issues and Lessons. http://www.justiceinitiative.org/activities/ncjr/atj/atjresource.
8. S.23(5).
9. S.23(5)c.
[x] See Interim Report on the Special Court for Sierra Leone, War Crimes Studies Center, University of California, Berkeley , 2005.