PROTECT THE RIGHTS OF EX-SERVICE MEN: CARL URGES SIERRA LEONE’S MINISTER OF JUSTICE

by ibakarr | Aug 11, 2016 | Blog

The degree of silence and seeming secrecy surrounding the six RSLAF and other service personnel, namely; Private Tamba Sheku 18177830, Private Momoh Kargbo 18180259, Private Gbessay Koroma 18178603, Private Alpha Mansaray 18182001, Warrant Officer 2 Frederick Wallace Johnson and Private Mustapha Quee 18180146, having been apprehended for an alleged mutiny attempt, creates an obscure image on the minds of Sierra Leoneans who are now concerned about the fate of the detainees, who were arrested and detained in August 2013, in relation to an allegedly foiled mutiny attempt in Teko Barracks in Makeni.

The government of Sierra Leone, through a press release, had earlier informed the public that: “findings have now been submitted to the Office of the Attorney-General and Minister of Justice for necessary action.” Since then, one may not be wrong to say that the matter has been treated with laxity. This has left the public awe-struck, given the complexion of the matter as an issue of national security and a concern for the state’s stability. It is therefore afflicting to see the government drag its feet on a matter as grave as this.

We are not oblivious of the fact that the peace and security of the wider majority of Sierra Leoneans should not be risked for the interest whatsoever of a few, and that such an issue should be treated with utmost care. That does not however remove the assumption of innocence until proof of guilt; neither does it negate the need for a conventionally timely trial where the rule of law operates.

There is some legitimate apprehensiveness about the fact that for almost three (3) months now, no charges have been brought against the detainees, leaving room for doubt as to whether the prosecution in fact has enough evidence to bring charges against them. And that they are being held, since 12^th September 2013, in what seems to be a secret location, begs the question of whether the constitution of Sierra Leone applies to the rights of military personnel?

We are also concerned that such procrastination in delivering justice to military personnel has the odd potential of undermining the peace and security of this nation, in the sense that it might sometimes provoke an ill-conceived esprit de corps. This is said in consideration of the fact that the military all over the world, is known for a peculiar sense of fraternity. It is hoped that without being verbose on this front, our concerns would be taken heed of.

Col. Michael Samura, Director of Public Relations and Information at the Ministry of Defence, is quoted in Vol. 17 of the Concord Times newspaper, Oct. 17^th 2013 edition, to have said that the military was not in a hurry to charge the men to court “because this has to do with their lives”. On the contrary, I believe that is the more reason they should have been standing trial by now, otherwise the situation would only leave the public with a classic Catch-22: namely, what if the men are actually guilty and the government is shoving the matter under the carpet; or perhaps there is no genuine ground on which to establish their culpability, and someone is just holding another down because he is on top? By the doctrine of the rule of law, the constitution is the ultimate law of the land. The military have their own set disciplinary standards. Agreed. That should not however make anyone forget the indisputable fact that no other law or set of rules supersedes the 1991 Constitution of Sierra Leone.

My biggest gripe is that public officials, who should be concerned in one way or the other, seem either not to know or not want to say anything about an issue of such importance. This does not auger well for our justice system.

A classic example of the incomprehensible reluctance on the part of public officials to comment on the issue was demonstrated in the encounter between CARL’s monitors and Principal State Counsel, Monfred Sesay Esq., at the Law Officers Department when, in September 2013, in the absence of the Acting Director of Public Prosecution, Mr. Sesay was approached on the matter with a number of questions regarding the current status of the case. He refused to comment further than a dismissive comment: “I can see that you are very ambitious; unfortunately the Freedom of Information Bill has not been passed. On that note, I advise that you see the Attorney-General himself.” On leaving the office disenchanted, I couldn’t help but despondently ask my colleague: “is there any degree of irresponsibility or incompetence in giving out information such as relates to how many men were arrested, whether they have had the opportunity to speak to lawyers or family members, whether they have been charged of any particular offence, or whether they have ever been arraigned in any court since their arrest in mid-August, or is there anything so classified about any of the questions?” Not likely, I think.

Then there was an additional layer of disappointment when I asked the same questions of the Director of the Legal Directorate, Ministry of Defence, Col. I. M. Koroma, on an earlier visit. He also declined to comment further than stating that the men had been initially held by the military and that their case was now being handled by the CID, adding that he was sure they were not being held unlawfully because “ a Delay Report is being filed since investigation is still not completed”. A Delay Report is a sanction in military legal penal practice that justifies why the military still holds in detention an accused person without initiating legal action, pursuant to the Armed Forces of the Republic of Sierra Leone Act 1961, Section 77 (2). We do not however know how strictly this requirement is being adhered to or whether it has any limitation so as to prevent the use of the said authority ultra vires, and to ensure that it does not run repugnant to the constitutional provision on the fundamental human rights and freedoms of the individual as upheld in Section (17) of the Constitution of Sierra Leone, Act N^o 6 of 1991. After all, it is universally believed that a bylaw must not be repugnant to the general law of the country.

This disinclination on the part of public officials to make the public reasonably au fait with their work has grossly frustrated efforts to get relevant information and guidance on the said matter. Consequently, an issue of national interest has been rendered esoteric, if one cannot say it has degenerated into a mystery.

It is therefore judicious for the prosecution to proffer charges against the men and have them arraigned in the relevant court if there are indeed sufficient grounds to do so.  Otherwise, it will only be proper to release them, if justice is to be had.

Beyond Borders: Community-based Monitors Extend Services to neighbouring Communities in Bombali District

by ibakarr | Aug 11, 2016 | Blog

For most women and girls in the Bombali District, northern Sierra Leone, accessing justice has been far more arduous than manually tilling acres of farm land in a day. This assertion illustrates the near impossibility of most victims, particularly of sexual and gender-based violence (SGBV), to access justice. For many, it has been not only about the absence of a complaints mechanism, it has been about a feeling of lack of protection to even file a complaint as it would expose them to community ridicule and discrimination. This, naturally, only encouraged perpetrators to revel in impunity. Little wonder incidents of SGBV occurred more in the Norther Province in 2010 and 20122 than in all the other regions of the country.

Reducing the prevalence of SGBV and enhancing access to justice for victims was the main reason  TROCAIRE partnered with the Centre for Accountability and Rule of Law (CARL) in 2011. At the inception of the project, CARL carried out a number of activities aimed at ascertaining the level of prevalence, public attitude towards women’s rights and access to justice, traditional beliefs and practices, as well as the capacity and reach of accountability mechanisms such as the police and the courts. The outcomes of these efforts showed that there was need to transform social and cultural norms, rebuild family and community structures and support systems, strengthen the capacity of existing justice service providers, and work with the informal justice mechanisms to ensure their practices conform to international human rights standards. In addition to the other limbs of the strategy, there was need to also employ a beneficiary-ownership approach through local participation or activism.

This was why 37 persons from 12 communities in the Bombali District, were encouraged to serve as community-based monitors in their respective communities. The volunteers immediately received training in different skills that relate to preventing and responding to SGBV. These skills include advocacy, mediation and intervention. They also received training regarding the gender laws and human rights. Their participation has helped transform practices and attitudes in many respects.   In communities like Makeni Lol, Makump Bana and Mabolleh, for instance, there was such a culture of secrecy that victims of SGBV never dared to report to either chiefs or the police (where there was police presence). That ‘culture of secrecy’ is slowly ebbing away, thanks to the sustained efforts of community-based monitors. Their ability to mobilize and coordinate large community meetings to discuss SGBV-related issues has been phenomenal. The fact that these sessions have been led fearlessly by women and men of the same community has inspired other members to step up and speak out.

Before the project commenced in 2011, the acceptability level for domestic violence, particularly wife battery and economic violence, was embarrassingly high. Most community members thought, for instance, that wife battery was a ‘private’ affair between husband and wife, and that it would be rude or sheer “busy body” to intervene. This perception has changed since community-based monitors started intervening and educating the community about its role in protecting the rights of not only women, but vulnerable members of the society.

Even when SGBV-related offences fell outside the jurisdiction of local courts and traditional leaders, perhaps out of ignorance or limited options, victims had to seek justice through traditional authorities or local courts. Unfortunately, the outcome was mostly disastrous for the victims.

Today, more victims turn to community-based monitors for support in terms of accessing justice. They have been helpful in mediating between disputing couples, and have also helped victims file complaints with the police. Part of the reason is that the volunteers are more proactive and less likely to be influenced by cultural and traditional beliefs. Community-based monitors are simply performing a complementary role rather than competing with local authorities.  They’re willing to go to far-flung communities where there is no police or local court, regardless of the time.

There were reports of police officers asking for bribe, court personnel and witnesses unduly influenced, and sometimes family members paid to resolve such cases out of court. Physical access to justice has also been a challenge. This frustration is sometimes worsened by the time and cost it attracts. There are still challenges, of course, but the monitors have helped reduce some of the unhealthy practices both by local court personnel as well as traditional authorities.

The monitors are currently based out of 12 communities in the Bombali Shebura, Makarie Gbanti, Paki Masagbo and Safroko Limba chiefdoms. There are many more communities within these chiefdoms which do not benefit from the services of community monitors.  Since these communities are in many ways connected, victims in neighbouring communities are now turning to community-based monitors for help – not only for access to justice for SGBV-related issues but human rights related problems. Isatu Kamara, a resident of Gbarie village (3 miles from Yelisanda – one of CARL’s project communities), is married to Pa Sorie Kamara with 3 kids. For several years, Isatu believed that physical violence was wrong but a victim had no right to report it unless there was evidence of physical injury. This was how Isatu lived in a violent, abusive relationship waiting for that “opportunity” to sustain injury from her husband’s cycle violence before she could file a complaint with the police. During an outreach event organised by CARL’s community-based monitors in Yelisanda, this erroneous perception was cleared up by them. She spoke about how she had repeatedly suffered violence in the hands of her husband, but in light of whae she had learnt, vowed to report all future acts of violence on her. Indeed, she did contact the community-based monitors for help after her husband beat her up. The alleged perpetrator was invited to the Family Support Unit of the police, which dealt with the matter professionally.

The HANCI Child Adoption Case: Unnecessary delays and ‘Technicalities’ Undermining the ends of justice?

by ibakarr | Aug 11, 2016 | Blog

The long preliminary investigation (PI) into the matter of the State V. Dr. Roland Foday Kargbo, John Kapri Gbla, Henry Abu, Peter Lamin Dumbuya and Peter Brima Kargbo which commenced before Magistrate Komba Kamanda in Magistrate court No.2 Freetown on July 10, 2012 is winding up. The case is against former officials of the defunct Help a Needy Child International (HANCI) who had worked with a U-S-based adoption agency , Main Adoption Placement Service (MAPS) to pull off a number of alleged illegal adoption agreements. . Each of the accused faces 22 counts of conspiracy to traffic, 2 counts of trafficking, and 7 counts of perjury. During the extensive preliminary inquiry which has spanned over a year, the prosecution called 17 witnesses, including twelve (12) affected parents and five (5) police officers. The prosecution concluded its case on May 17, 2013. On the same day, the defence applied for an adjournment so that they could make an oral address on July 5, 2013.  Again, on July 5, the matter was adjourned to July 26, 2013 so that the defence could “summit a written address” to the court. On the said date neither the prosecuting lawyers nor the defence counsel were present in court, but some junior barristers who represented them asked for the matter to be adjourned to August 1. The serenity that surrounded the overcrowded court room and corridors of Magistrate Court No.2 on August 1st with the affected parents and journalists was remarkable. Finally, an address came down from the defence. The victims looked dejected after the defence’s address, and their sense of despair might have been compounded by the conspicuous absence of the prosecuting tem head by Law Officers Department’s Gerard Soyei. In his address, which was read in open court, Roland WrightEsq. highlighted the following points:

• That the accused persons face 22 counts of conspiracy to traffic, 2 counts of trafficking, and 7 counts of perjury.
• Regarding the charge of perjury, the defence told the court that no evidence was led by the prosecution as to which court proceedings the accused persons lied under oath. He said though the prosecution alleged that the perjury was committed in proceedings before a high court, certified true copies of the proceedings ought to have been tendered in the absence of which no foundation was laid to establish the 7 count charge of perjury.
• He asked the court to peruse a number of exhibits, bundles of documents tendered by the prosecution comprising High Court orders, legally and officially granting the rights of adoption to HANCI. It was his submission that the children allegedly trafficked were officially adopted by HANCI at the time in question. He said the witnesses who testified claiming to be parents, guardians or relatives may continue to be the biological parents of the kids for the rest of their lives but in the eyes of the law, they seized to be their legal parents by virtue of the adoption orders granted by the High Court. He said the adoption orders have never been questioned in any forum, which is why HANCI is still the legal parents of the children, adding “You cannot be accused of trafficking your own child”.
• He submitted that the 22 counts of conspiracy will also fail as one cannot conspire to traffic his/her own child. He said no evidence was led as to conspiracy, how it took place, and when it took place. He said the prosecution ought to have shown the meeting of minds and determination to commit an offence.
• Finally, he submitted that the charges were fundamentally flawed. He said section 2(2) of the Anti-Human Trafficking Act gives various ways the offence can be committed and what the prosecution did was to simply reproduce the entire section by giving all the ways the offence can be committed. He said they are not before the court for a lottery as the prosecution ought to have stated the specific ways the offence was committed – hence the accused persons don’t know the manner in which the offence was committed.
• He submitted that there is a definition of the word “exploitation” which he called the “purpose test”. He said for the accused persons to be guilty, it must be shown they did the act for a specific purpose, adding that the following are some of the purposes included in the Act: keeping a person in a state of slavery, compelling a person to carry out false slavery, among others. It was his contention that the prosecution must show that the accused acted for any of these purposes hence the charges are fundamentally flawed on two grounds. He said there is no mens rea and there is no reason for the accused to have been brought before the court.
• He said no witnesses testified as to where the children are, and how they got there, and so how can trafficking be established? He said the exercise conducted by the prosecution is a complete nullity because it was brought by people who have no legal locus to be before the court. He said all the accused persons have no case to answer as even the foundation was not laid to establish the prima facie case.

It is shocking that it took the defence exactly two months and a half (three adjournments) to address the court. This has had serious psychological and financial implications for the victims who are ordinarily resident in the North as they had to travel about hundred and ten miles to attend the court sessions. In fact, it would have made a lot of sense to investigate the matter by a Magistrate in Makeni, the region where most of the victims reside. On July 26, some of the victims expressed their dissatisfaction with the unnecessary delays accompanying their case. Some of them also expressed a genuine concerned that some of the witnesses who testified before the Commission of Enquiry, which recommended the ongoing preliminary investigation, were not brought before the court to testify. They fear it could undermine the strength of their case.

On two separate occasions, there was no representation from the prosecuting team.  CARL spoke to a very dejected victim about why there was no representative from the Law Officers Department in the last two sessions of the matter. Strangely, the victim said the prosecuting attorney told him that he wasn’t aware that the matter had been scheduled for that day. Even after being advised about the scheduled date for the defence’s address, the prosecuting attorney was still absent from court. This is simply unbelievable! This is a case which involves over 50 affected victims in which over 200 children were allegedly trafficked. This may just undermine the victims’ hope of getting justice. No client is inspired by such attitude from a lawyer. This is a matter that has spanned years of controversy and massive local and media coverage. Just when the victims feel like justice is about to be done, their hopes are beginning to fade by the undue delays and the somewhat “unhelpful” attitude of their lawyer.

In 2004, this same matter was reported to Interpol Sierra Leone, which investigated the matter and charged three HANCI officials with twenty three (23) counts of conspiracy to commit a felony contrary to law and child stealing contrary to section 56 of the Offences against the Persons Act 1861. The matter was discharged for want of prosecution.