by ibakarr | Aug 11, 2016 | Blog
Introduction
The Hon. Chief Justice, Umu Hawa Tejan-Jalloh, on Friday 2nd October 2009 launched the long-awaited “Bail Policy” at a well attended ceremony which comprised major stakeholders in the justice sector at the High Court No.1 at the Law Courts in Freetown. This document, “The Bail Policy”, came about as a result of the hard work by the Bail Committee that was established pursuant to the consensus adopted at the Judicial Oriental and Refreshers Workshop held at the Kimbima Hotel in 2007 by the former Chief Justice, Hon. Dr. Ade Renner-Thomas, with specific reference: “To look into all aspects of the grant and processing of bail in Magistrate’s Court and High Court respectively… and submit recommendations to be embodied into a policy,” with the Hon. Justice ME Tolla-Thompson as Chairman[i].
This outcome, “The Bail Policy,” has been a step in the right direction especially as it relates to upholding the rights of accused persons and has therefore been applauded in many quarters especially amongst human rights organisations who continue to advocate unflinchingly for holistic reforms in every facet of the judiciary.
The “Bail Policy” reiterates in many respects the provisions under the title: “Admission to Bail” as provided for in the Criminal Procedure Act of 1965. As an addition, it introduces good practices by playing the balancing act of making the country safer whilst at the same time guaranteeing the rights of persons suspected of being in conflict with the law as provided for in our legislations and other international instruments. This judicial masterstroke will be a cornerstone in helping the judiciary achieve
its vision: “quality and accessible justice for all”. This piece aims at doing no more than examining the major issues addressed in the bail policy, and where necessary draw attention to certain areas of concern. It will start by looking at bail as a right; what has been the general practice by the courts in relation to the granting and processing of bail; some of the issues addressed in the Policy itself, and a conclusion.
Bail is a Right!
Bail, according to Black’s Law Dictionary 7th Edition, is to obtain the release of (oneself or another) by providing security for future appearance. Also, it refers to a security such as cash or a bond; especially security required by a court for the release of a prisoner who must appear at a future time. The Criminal Procedure Act (CPA) of 1965 and the International Covenant on Civil and Political Right (ICCPR) in Sec. 79 and Article 9(3) respectively guarantee the right to bail of accused persons in line with the principles of fair trial. In fact, it is a constitutional right in most jurisdictions and as such, Judges must explain why that right needs to be derogated in the particular circumstances of the case. However, important to point out is that although bail is a right, in certain cases, to be granted or refused bail is a matter of judicial discretion to be exercised judiciously taking constitutional, statutory provisions and all surrounding circumstances into consideration.[ii] For instance, a Judge in granting bail under Sec. 79(2) of the CPA should take into consideration the nature of the offence, gravity of the punishment, the possibility of the accused turning up to take his trial, and the possibility of the accused interfering with witnesses[iii]. Generally, however, bail is imperative for minor offences unless the Judge “sees good reason to the contrary”.[iv]
Bail Practice in Courts
The practice of granting and processing of bail has been marred by inconsistencies and in some instances bureaucratic bottlenecks invariably leaving the accused at the mercy of the court. Although an established principle is that every case on its own merit, many a time, accused persons with similar criminal records, facing similar charges in different courts, have been given different bail conditions; in fact some have been granted bail whilst others have not, the majority for unexplained reasons for the significant difference. In some cases, bail conditions are unreasonably too cumbersome to be satisfied by the average accused person thus making it more or less a privilege and not a right. Where they are satisfied, getting the authorities to effect it is another challenge. There are instances where accused whose bail applications have been granted are taken back to prison because their bail bonds have not been processed accordingly. In order for such to be processed in time, some accused persons resort to use of personal contacts with the officers responsible. Also, Magistrates are seldom predisposed to give guidelines for self bail to the accused even when the alleged crime is a misdemeanour thus adding to the growing number of remand prisoners with its attendant effects.
Moreover, some Magistrates are usually not enthusiastic in the effective use of sec. 79 of the CPA especially in felonious matters. As such, they are more likely to grant the prosecution’s objection to bail than upholding the defence’s bail application. This is often the case even where there are reasonable grounds for the accused to be admitted to bail; and the defence has advance strong arguments for such admittance. In the “Poachers’ Case” for instance, several bail applications have been refused with the prosecution’s objection primarily based on the fact that the accused persons are non-nationals and therefore have the tendency to jump bail. Such a counter argument is some how deficient in substance as Sec 15 of the Constitution of Sierra Leone guarantees the human rights and freedoms of the individual irrespective of place of origin amongst others. Furthermore, some use such as a way of punishing the accused even before guilt is determined. Hence, they are less incline to invoke Sec. 113 of the CPA-which deals with remanding of accused persons in custody for not more than eight days during adjournments.
The Bail Policy
The Policy reiterates amongst others that the issue of granting bail is in principle left to the discretion of the Presiding Judge. Nevertheless, one good practice that the bail policy introduces is for the Judicial Officer to provide an explanation where bail is refused. There are primarily two benefits to derive from such practice. One such is that it implicitly encourages the Judicial Officer to make good use of sec 79 of CPA more often than not and that where a contrary intention appears, the Officer should formulate sound reason(s) for such refusal rather than relying on the usual refrain of “Bail application refused; accused to be remanded in custody until the adjourned date”. It also helps the accused to know the reason(s) for his continued incarceration. This will help him to adjudge whether or not he has strong reasons to make an application under Sec 79(5) of the CPA. And where such application is made, the files should be sent to the Judge to know the reason why bail was refused as it will help the said Judge assess whether the Magistrate had good reason(s) for denying bail. If he finds it to the contrary, then bail is granted by the Judge if he thinks fit to do so. This practice is consistent with that in other jurisdictions around the world.
Another important practice introduced by the Policy is that fresh files be dealt with first each day. This will enable bail applications and processing to be done in time. It will help ease the congestion at the lock-up at the Law Courts as those who will be granted bail will be released immediately. Also, the tendency of taking back to the maximum prison of accused who have been granted bail but whose bail documents have not been prepared in time for the close of the day will be greatly reduced. Moreover, the policy also recommends that sureties should no longer be interviewed by Magistrates and where sureties are found after adjournment, accused persons should be admitted to bail. The former will help enhance court productivity as Magistrates used to spend considerable time interviewing sureties; and the latter will help reduce the rigidity that used to govern the issue of bail. Also, self bail will help reduce the burden of scouting for sureties with the relevant requirements as requested by the court.
Furthermore, the recommendation of the Committee which has to do with the setting up of a Special Magistrate’s Court (Bail Court) charged with the specific responsibility of dealing with bail matters on fresh cases is good radiance. Such innovation will help greatly to alleviate congestion, and minimize delays in the Courts as the normal courts will busy themselves only with adjourned cases. In addition, the thought of Magistrates having to grant bail in non bailable offence, eg., murder where the circumstance demands such is key in meeting the justice for all goal.
However, good as the Policy may look; there are certain areas of concern that is worth discussing. Perhaps the most important of all is that which has to do with cash deposit by accused for very serious offences such as economic crimes, as in the discretion of the Judge or Magistrate shall appear appropriate. Such practice gives one the impression that where there is the general presumption of innocence until proved guilty; that the accused is guilty as charged. Also, leaving such to the discretion of Magistrates and Judges is equally so worrisome. Some Judicial Officers will, whether consciously or unconsciously, have the tendency to go over the limit of their authority and unfairly keep the accused in custody for as long as the trial takes. More importantly, it discriminates against indigent accused who may not have the financial means to satisfy this bail requirement. Such practice is likely to undermine the rationale of the Policy as it will, instead of decongesting the prisons, more or less add to the prison population.
Conclusion
The introduction of the Bail Policy in our jurisdiction would not have come at a better time like this especially when prison congestion was gradually becoming a cog in the wheel of justice. We therefore encourage Judicial Officers to make adequate use of the Policy by playing the balancing act between the two extremes so as to help decongest prisons whilst at the same time reducing the fear of crime and making society safer. As we look forward to additional guidelines and possibly a Bail Act, we hope that introducing the Bail Policy will help restore public faith in the administration of justice.
[i] The Bail Policy, pp 6
[ii] Ibid, pp 3
[iii] Ibid, pp 11
[iv] Ibid, pp 12
by ibakarr | Aug 11, 2016 | Blog
Introduction*
The essence of the existence of laws is to protect the people it is enacted to serve. Those laws can be more effective if they are reviewed at regular intervals to meet contemporary challenges. Post-conflict Sierra Leone still operates on laws that it inherited from its colonial master, Britain. It also has many laws that were enacted under dictatorship and whose framers intention was to suppress and not protect the citizenry. The conservative interpretation of some of these laws has led to the breach of human rights and limited the channels ordinary Sierra Leoneans could used to address their grievances. Consequently, it led to the decade long civil war costing Sierra Leoneans lives and properties.
Hon. Justice Umu Hawa Tejan-Jalloh,
Chief Justice of Sierra Leone
Reform in the justice sector is supposed to be one of the priority areas of the government. Despite the fact that there exists a parliament, the Law Reform Commission, the recently established Constitutional Review Committee, and the efforts of partners and organizations such as the Law Reform Initiative, Justice Sector Development Programme, United Nations Development Programme, reform in the justice sector has been too slow in the face of the urgency the situation deserves. Given the challenges facing the sector, it is important that the Sierra Leone Judiciary explore the possibility of adopting more progressive and liberal ways of interpreting the laws, thus the need for judicial activism.
This article will examine the concept of judicial activism in the context of post-conflict Sierra Leone, how it will enhance the administration of justice and the integrity of the judiciary. Sierra Leone being an adherer to the Common law tradition, judges’ decisions are largely guided by precedent. Sceptics of the concept would imply that the adoption of judicial activism is a shift from the Common law tradition. This article will therefore, analyse the views of some sceptics of the concept and will make a case for the contrary.
The Concept of Judicial Activism
Judicial activism as a concept generally refers to the tendency of judges to be flexible in using their powers in relation to their decisions. For instance, an activist judge may tend to give a decision that reflects the changing situation devoid of the fact that it may be a departure from a particular precedent and the intention of the framers of the affected law or policy. According to Black’s Law Dictionary, judicial activism is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy among other factors to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” The Merriam-Webster’s Dictionary of Law defines judicial activism as “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent”. Various legal scholars and judges may have different definitions. However, what is important is that the judge being referred to as an activist may not necessarily adhere to the restraint of the appellate judges; meaning may decide not to strictly abide by judicial precedence. Additionally, most activist Judges guide cases by taking a more active part in order to ensure the smooth running of the case and when there is no specific decision on a particular point of law, the judges may sometimes use their discretions to apply broader concepts from the constitution or human rights law. In view of the fact that there is no law reporting, the scope for judicial activism should be much greater than elsewhere.
Separation of Powers
In Sierra Leone, the role of the judiciary is set out in the Constitution, so also are the other branches of government namely the legislature and the executive. By virtue of the principles of separation of powers, one arm of government may not interfere with the function of the other, without prejudice to the doctrine of checks and balances. Furthermore, the various arms have an obligation to abide by the Constitution. However, section 124 of the Constitution of Sierra Leone, 1991 granted the Supreme Court the power to interpret the Constitution. Additionally, they have the power of judicial review, meaning they may declare a legislative decision ultra vires if it is repugnant to the Constitution. Nonetheless, judges are not expected to go beyond their jurisdiction i.e. interpretation. Sceptics of the concept have posited that the law making role is exclusively the prerogative of parliament and not of judges. As such when judges interpret legislation in a progressive manner, they have been accused of usurping the functions of parliament.
Judicial Activism v. Judicial Restrain
The phrase “judicial activist” was first introduced by Arthur Schlesinger Jr. when he wrote an article, The Supreme Court: 1947, in the Fortune magazine in 1947. Other people have traced the start of judicial activism to the ruling in the landmark case, Marbury v. Madison (1803). Although the decision itself was not a show of activism, it however sets the stage for activism in the United States when Justice John Marshall who wrote for the Court said “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
The Judiciary in Sierra Leone is much more familiar with the opposite view of judicial activism; judicial restraint since they have been confined more to interpreting legislations in a narrow and conservative way instead of progressive interpretation as judicial activists do. This is as a result of the fact that, Judges in Sierra Leone have inherited their judicial caution from the traditional English law system whereby Judges were wary of interfering with politics and unlike their European counterparts, shielded away from guiding cases through the courts and applying larger principles in their decisions. Since the time when Sierra Leone gained independence, English judges have however moved far from this lack of intervention.
Today, while abiding by the law, judges act as a balance against the government when it introduces changes for example in anti-terrorism legislation. Judicial review has also expanded rapidly, and many judges take it on themselves to guide cases through although this tends to rely on the personality of the judge. Sierra Leone’s judges have largely remained as inactive as English Judges were back in the 60s.
Why Judicial Activism in Sierra Leone?
Sierra Leone is currently recovering from a decade long civil war of which the lack of the rule of law was one of its root causes. On the eve of the war, the once reputable judiciary was more renowned for rendering justice to the few political elites and their wealthy friends than the poor Sierra Leoneans. “Lack of courage on the lawyers and judges over the years paved the way for the desecration of the constitution, the perpetuation of injustice…”[i] People became disgruntled with the justice system and some of them decided to use extra-judicial means to seek recourse, thus the decade long civil war.
The Judicial system had become infamous not only for its ramshackle application of laws, but was also for the obnoxious and archaic character of the laws themselves. Given the centrality of the judiciary to the balance of powers, the lack of a functioning judiciary will certainly have ripple effects on the proper functioning of state institutions, and it is thus important that more attention is accorded to the reform of the judiciary including the laws. The judiciary has been able to record some considerable success in the reform process.
However, law reform has nevertheless been slow. Parliament has been too slow in effecting changes to the laws especially those that will guarantee protection to the country’s citizens. For instance, a group of civil society organizations sponsored the drafting of an omnibus bill comprising of important elements of the TRC recommendations. This bill was presented to Parliament in a public ceremony in 2005. Parliament took no action to ensure that the bill was passed; not even a first reading done. The process of passing the bills relating to women and children into law was also too long and arduous.
The Law Reform Commission on its part, while quick to respond to issues brought to its attention by the Government rarely initiates issues on its own. The Government on its part is less than mesmerized by human rights issues despite the hue and cry by human right groups and civil society organizations to repeal certain laws such as the death penalty and seditious libel. Moreover, in the absence of a law reporting mechanism, there is no recent formal precedent on many issues.
Amidst all this, it is a pity that the Judiciary has only been interpreting the available laws in a restrictive fashion. The judiciary needs to grasp the opportunity to adopt a judicially active approach by interpreting the laws in a progressive manner to protect rights instead of continuing to restrain itself. Some judges may report that they are already referring to other commonwealth cases and human rights law when considering their decisions: this needs to be embraced more widely, and in a system when many indigents go unrepresented, not only when cases are drawn to their attention by defence lawyers. This will not only help protect rights but will also enhance the integrity of the judiciary in post-conflict Sierra Leone. In its Report, the TRC suggested legal activism by calling on members of the Sierra Leone Bar to initiate pro bono service for indigent persons. Much as the Sierra Leone Bar was encouraged to partake in legal activism by offering pro bono services, so too should the judiciary contribute what it can to the enhancement of human rights protection in the country.
Judicial Activism towards What?
Generally, apologists of the concept posit that the activist judges engage in judicial activism in the following:
· Decide to adhere to more forward looking precedent when there is an option between conservative and progressive precedent;
· Declaring legislative decisions unconstitutional by way of judicial review as provided for under section 124(1)b of the Constitution. “…whether an enactment was made in excess of the power conferred on Parliament or any other authority or person by law or under this Constitution.” Following this, activist judges could refer cases to the Supreme Court for such review.
· Ruling against the framers intention of certain legislations where the intent was not for but against the interest of public good. This often happened in the United States.
· Judges using their powers to make orders providing for the close management of cases, so as to ensure their smooth running through the system. For example, refusing to adjourn on the request of one of the parties unless there are exceptional reasons.
In Sierra Leone, judges may need to apply activism in all three scenarios because there are certain verdicts of certain courts whose ratio decidendi (reasoning) are too weak to be compelling precedents, albeit the fact that they are superior courts. In some countries such as the United States, the Bench expressly compels the legislators to amend a particular law within a specific timeframe. For instance, the Massachusetts Supreme Court in Goodridge v. Department of Health (2004) compelled the legislators to rewrite their gay marriage law to be consistent with the Court’s decision within six days.
Sceptics of Judicial Activism
For the sceptics, the court’s work is to take negative action, meaning it jurisdiction stops at where it strikes down a particular law and must not extend to taking a positive action by way of directing the legislature to amend the laws. Furthermore, sceptics believe that legislation from the Bench is gross abuse of authority and usurpation of the authority of the other arms of government.
However, in Sierra Leone the balance of power between the executive and the judiciary is unclear. For instance, subsections 3 and 5 of section 136 of the Constitution of Sierra Leone, 1991 empowers the President to fire judges who are hired on contract basis after retirement as stipulated in section 137 of same. The security of tenure of office for judges hired under sub sections 2 and 4 of same may not be guaranteed, which in effect undermines their independence. By adopting judicial activism therefore may show that in fact, they are not controlled by the executive.
Conclusions
The main contention between judicial activism and judicial restraint especially in a country which is in urgent need of reform lies in the institutional mandate with the discretional power to effect those changes. Not that judges should exert their power to legislate but that they should take advantage of a time when there are not much forward-looking precedents and try to manage cases more closely so as to speed up trials and ensure that people’s rights are protected throughout. It is vital that Judges take on this responsibility in a system where legislative reform is slow and the chance of an indigent having effective legal representation in court is so slim.
* This article was first published in the 22nd Edition of the Monitor in March 2007.
[i] Sierra Leone TRC Report Vol. 2 pp 145
by ibakarr | Aug 11, 2016 | Blog
Introduction[1]
In late December 1992, the NPRC regime announced the discovery of an alleged coup involving the former Inspector General of Police, Bambay Kamara and 28 others. By the next day, the accused plotters were dead. The NPRC claimed the accused were executed after trial by military court martial; however, the Truth and Reconciliation Commission (TRC) later found that no such trial took place.
The Noose of Death
Instead, most had simply been tortured before execution, their bodies later burned and buried in unmarked graves. In his testimony before the TRC, Captain Strasser, head of the NPRC regime at the time, pointed to Colonel Mboyah as the President of the alleged pre-execution tribunal; yet, Mboyah denied ever having convened a trial. Strasser later admitted the trials were held retroactively, only after the executions had transpired. The Commission in its report held that all leaders of the NPRC responsible for the murder of these men and moved on.
Recently, the current Government of Sierra Leone (GoSL) announced the opening of an official inquest into the 1992 summary execution. While post TRC investigations are not unprecedented elsewhere in the world (e.g. Peru and other Latin American countries), this pronouncement has since fallen under immense critique. The Sierra Leone People’s Party (SLPP), currently in the opposition, claims the Commission already addressed this issue. Opening an investigation therefore violates the general amnesty granted in the Lomé Peace Agreement (LPA), and is a attempt to distract the populace from the rampant corruption of the current administration. Additionally, the SLPP contends that such an inquiry constitutes a clear witch-hunt, cloaked in the robes of transparency, aimed to tarnish the reputation of SLPP leaders who plan on running in the upcoming presidential election. Those in favor of the inquest, on the other hand, maintain that transparency is the key to good governance, and the people of Sierra Leone have a right to know what happened during the dark days of December 1992.
While such issues are of undoubted importance, the current debate fails to address the most pressing issue of all – the continued acceptance of the death penalty as an appropriate and legal means of punishment in Sierra Leone. In fact, were the death penalty illegal in Sierra Leone, this controversial inquest would be moot. Instead, the mere fact that the accused were allegedly summarily executed would constitute a crime in itself.
Accordingly, it is imperative that the GoSL take this opportunity to examine Sierra Leone’s current penal system and learn from its sordid past. For, throughout Sierra Leone’s history, many laws have been promulgated on the assumption that they would benefit and maintain the regime in power. Precisely in this way, laws such as the infamous criminal libel law (to silence the press) and the death penalty (to eliminate the opposition) came into being.
As a result, Sierra Leone has lived a sad history of continued executions. It citizens witnessed summary executions in the 1970s and 1980s, most of them based on fictitious evidence and political motivations. In 1997, during the interregnum, the AFRC/RUF regime embarked on summary killings to ‘curb’ crimes. The reinstated government of President Tejan Kabbah simply continued this process. In 1998, the Kabbah regime instituted a military tribunal whose findings resulted in the shooting of 24 military officers for their involvement in the coup of 1997. In fact, most government sanctioned executions throughout Sierra Leone’s history have been political. The events of December 1992 are thus merely one example of the many political executions perpetrated throughout Sierra Leone’s dark past.
Responding to such events, the TRC urged that human dignity and human rights thrive only when human life is inviolable. The Commission emphasized that respect for human dignity and human rights begin with respect for human rights. The Commission then called for the abolition of the death penalty in its final report in October 2004. Specifically, it recommended the amendment of section 16(1) of the 1991 Constitution authorizing capital punishment, and the inclusion of provisions to guarantee the inviolability of human life. The Commission also encouraged the introduction of a moratorium on all pending sentences.
The GoSL has yet to reform the penal laws relating to the death penalty. The current government, like the previous Government of former President Kabbah, has not given convincing reasons to continue to maintain the death penalty in our penal laws. In the White Paper, in response to the TRC report, Kabbah’s government declined to repeal the death penalty but promised a period review of their stance. The argument that the death penalty has long been part of the Sierra Leone legal system, and the fact that it is still practiced by other countries such as the United States, Japan and others in Africa is insufficient maintain such a law. Firstly, the United States in particular has a controversial record of compliance with international law, as demonstrated by its invasion of Iraq in 2003; many views US refusal to abandon the death penalty in similar light. More importantly, however, if US practice is to be the basis for continued capital punishment, the GoSL must similarly decriminalize libel; ensure the supremacy of the law and comply with other standards set by the US government. Article X of the Lomé Peace Agreement requires the GoSL to take all necessary steps to implement the Commission’s recommendations, including amending the 1991 Constitution. Therefore, the continued existence of the death penalty violates the LPA and unequivocally illustrates the government’s willingness to continue implementing bad laws.
This willingness only fuels our march backwards into doldrums of an oppressed society. The death penalty is a form of ‘punishment’ that typifies the brutish and uncivilized nature of man. Supporters of death penalty point to deterrence as their strongest argument. However, there is no proven nexus between the threat of death and the commission of crimes. Crimes continue to occur in countries that apply the death penalty. Further, the death penalty permanently deprives people of the due process of the law. Once a convict is executed, his sentence is irrevocable; in the event of new evidence that might reverse the conviction, this convict will have been killed unjustly. Therefore, the death penalty neither repairs damages nor rehabilitates individual convicts. It simply nurtures the treacherous idea that killing is an acceptable solution to our problems. In Sierra Leone particularly, the death penalty has only served as an affront to the struggle for the protection of human rights, as countless past regimes have continuously used it to their advantage. Our failure to recognize this now will only lead us down the same perilous road.
Accordingly, the GoSL should look to the Special Court of Sierra Leone as a role model. Though its framers granted the Court jurisdiction to try people for the worst of crimes, they did not include the death penalty as an acceptable punishment for those convicted. The GoSL must ask itself how those tried and convicted of far worse crimes in the Special Court currently serve prison sentences, while those convicted of relatively lesser domestic crimes can be sentenced to death.
The GoSL must also look to the international community for guidance, as most countries around the world have abolished the death penalty. On the eve of the adoption of the Universal Declaration of Human Rights in 1948, no more than seven countries had abolished the death penalty. Since then, over hundred and eleven countries have eliminated it. An article published by Amnesty International claims the trend became more evident in Africa in the 1990s, with the institution of multi-party political system and the consolidation of civil society. West Africa is part of this growing trend. Currently, over ten countries in West Africa have either de jure or de facto abolition, Senegal being the latest. On December 10, 2004 on the fifty sixth anniversary of the UDHR, the Senegalese Parliament enacted a legislation abolishing the death penalty. Sierra Leone should therefore join is West African neighbors in abolishing this outdated practice.
In sum, Sierra Leone must learn from the global community as well as its own history. While the majority of the world has abolished the death penalty, the multitude of executions that have transpired in Sierra Leone and have only further fueled the conflict here. As one writer puts it, “the death penalty is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace.” It simply destroys those it touches, diminishing the rule of law and devaluing our collective humanity.
Currently, Sierra Leone stands at cross roads. In place of arguing over the opening of a controversial inquiry, we should take this opportunity to revitalize our penal system, bringing it in line with international standards. Only in this way can we take a significant step forward, towards the culture of humanity and dignity we so desperately seek to embrace.
[1] This article was first published in the 13th Edition of the Monitor in May 2006. The Current Edition is an updated version of the 13th Edition.
by ibakarr | Aug 11, 2016 | Uncategorized
Despite the fact that Bombali District has a magistrate court, the majority of the people in the district rely on the local courts for the administration of justice in the district, mainly because of accessibility, familiarity, cost and convenience in language. Local courts are semi-formal institutions established by the Local Court Act of 1963 with powers to hear and determine all civil cases governed by law where the claim is less than Le250,000 and criminal law cases where a sentence does not exceed six months or fine does not exceed Le50,000. As such local courts have jurisdiction over issues such as marriage, divorce, debt, succession and land tenure[i]. However, the local courts in the Bambali District do not effectively execute their mandates as stated.
This is due to the many challenges they faced. This article seeks to discuss some of the fundamental challenges, which were discovered over a period of monitoring, faced by the local courts in the execution of their functions in the Bombali District. This would be followed by a number of recommendations to help address some of these challenges.
A fundamental challenge in dispensing justice in the local court has to deal with the capacity of the court officials. Most of them can neither read nor write. And even the few who do, mostly the clerks, are themselves limited in their oral and writing skills. It is even worse, where in the absence of the clerks; non-officers of the courts are called to fill the vacuum. The situation is even more pathetic with other officers of the court such as bailiffs and Native Administrative (NA) Police. As such, it has been observed that members and officers of Local Courts in the Bombali district lack the necessary skills and trainings to effectively handle cases brought before those courts. The courts are presided over by chairmen, who are mostly illiterates. In Bombali over 2/3 of the chairmen could not read nor write. The effect of this is that more often than not, cases are poorly handled thereby leading to injustice and general disillusionment with the court system. In addition proper records are not kept of cases brought before these courts and mostly the decisions or judgments of same are the only salient aspects recorded without an analysis of the reason of such judgments. The evidence of parties and witnesses is often recordedhaphazardly. All these undermine the effectiveness of the institution legal mandate to adjudicate upon a body of law that is applicable to a majority of the population in the district.
The problem of capacity largely emanates from the recruitment process of the officials. The chairmen are appointed by the Paramount Chief for a three-year term. But the appointment must be approved by the Ministry of Local government.[ii] Part II(6) of the Local Courts Act of 1963 states that “ A clerk, bailiff and such other officers as in the opinion of the minister the business of the local court may require shall be appointed to every local court by the tribal authority of the chiefdom in which the court is situated,…”. The problem is that most court officers are appointed not on the basis of competence but on the basis of political alliance, and other connections. Consequently, the confidence that was reposed in the customary law system as the temple of justice has continued to erode. Such is the situation currently in the Bombali.
Delays and in some cases the non-payment of salaries to local court officers poses another serious challenge in the dispensation of justice in Bombali District. Some court officers claim that it takes between three months and one year to receive salaries. In sparsely populated chiefdoms such as Makarie Gbanti, Biriwa, where the number of tax payers is not enough to cover the annual salaries of court officials, it is alleged that they received salaries for only two or three months. They are left on their own to fend for themselves for the rest of the year, thus the levying of heavy fines. It is in this context that some court officers are said to be sacrificing their integrity on the altar of survival.
In addition to irregular salaries is the problem of logistics and inadequate personnel which undermines speedy and fair dispensation of justice in the local courts. The court staffs are not only small in number but they also lack the basic logistics such as stationeries, uniforms, transport, furniture to enable them carry out their duties responsibly. In most chiefdoms in the Bombali district, civil and criminal summons, warrants of arrest etc. are delivered verbally either by the bailiff or through chiefdom police who in most cases have no form of identification as most of these officers have not been supplied uniforms for a very long time. This malaise seriously affects parties to a case, as they are the ones who are charged to pay the cost of the court officers. This is done by levying heavy summons fee which in some cases is beyond the reach of the average local court user in the district.
Some courts do not even have the legal document (the Local Courts Act) which gives them the statutory mandate to carry out their functions in the chiefdoms, let alone to ask about newly passed legislations such as the ‘Gender Acts’, the Child Rights Act etc.- not even the abridged versions. The absence of these legal documents in these courts has created room for all kinds of abuse in the procedures and duties and functions of the local courts. Court officials therefore adjudicate matters arbitrarily without due reference to the procedures, often to the detriment of the poor local court users.
Some court houses are used for purposes other than court session. The Local Court No. 1 in the Bombali Shebora Chiefdom for instance could not hold court for nearly ten days in February since it was hosting a workshop. This has increased the number of backlog cases with its burdensome effects particularly on litigants who in some cases have to walk for miles to make it to the court house. Sometimes complainants or accused persons come to court just to find out that the court will not be sitting because the structure is used for other purposes which it was not constructed for.
The technically illegal courts of chiefs is another major challenge with the administration of justice in the local courts in the Bombali district. In practice most customary law cases are dealt with by Chiefs (either Local or Sub Chiefs or Paramount Chiefs), despite the fact that the relevant statute prohibits Chiefs from adjudicating customary law matters. Nevertheless, chiefs preside over so-called “courts” assisted by Councils of elders and go so far as, issuing verbal summonses, imposing fines and imprisoning people. In fact some chiefs even overturn decisions made by court chairmen who are the ones statutorily charged with adjudicating on customary law matters. This is manifestly illegal and has the effect of violating fundamental human rights, particularly vulnerable groups such as young men and women who are often subjected to trumped up charges, “to extract a fine, or to teach them lessons in respect for their elders”.
Despite the newly enacted gender laws increasing the legal status of women and efforts of civil society groups advocating for gender parity, local courts in the Bombali district continue to discriminate against women in the administration of justice. Under customary law, women are restricted in holding an interest in land and inheritance laws which favor men over women means that far fewer women own land or property as compared to their male counterparts which greatly impacts upon their economic status. This is particularly hard on widows who may have to fend for the upkeep of their families. Customary laws coupled with the religious orientation of most court officers in the Bombali district continue to pose a serious challenge to the rights of women in the administration of justice in the local courts.
In the face of the many challenges highlighted above, it is therefore essential that these challenges are addressed so that justice will prevail in the local courts in the Bombali district. The capacity of court officers should be enhanced further by training them in areas such as human rights, the gender acts; their salaries and other emoluments paid on time; they should be provided with basic logistics such as stationary to carry out their statutory duties; they should be provided with basic laws such as the Local Court Act, the Constitution of Sierra Leone and the three gender acts to enhance their effectiveness; and also exert control over and reform of the technically illegal courts of the chiefs. The authorities together with other stakeholders in the justice sector should synergize their efforts in helping to ensure that these challenges are robustly addressed for the effective administration of justice in the local courts in the Bombali district of Sierra Leone.
[i] Govt. S/L Justice Sector Reform Strategy and Investment Plan, 2008-2010
[ii] Ibid pp 16
by ibakarr | Aug 11, 2016 | Blog
Ms. Afsatu Kabba
Ex-Minister of Fisheries &
Marine Resources
When President Koroma was elected to office in 2007, he immediately set himself a number of priority tasks and principal amongst which was his declared ‘zero tolerance’ on corruption. In walking his talk, he appointed a new Commissioner to head the country’s anti-graft body who sought to amend the Anti-Corruption Act with notable innovations such as an increase in corruption-related offences, declaration of assets and liabilities by public officers, and prosecutorial powers without recourse to the Attorney-General and Minister of Justice. The President’s stance in singling out for destruction arguably the greatest evil of all times in the country was lauded by many as limited transparency and accountability undermines governmental capacity for the implementation of important development policies, especially for the poor and marginalized. He even ventured far afield when he said that there would be no sacred cows, not even his family members, in his determination to make this deadly scourge history in a country that has been consistently ranked at the bottom of the UN Human Development Index- a notoriety that has been attributed mainly to high levels of corruption and the lack of integrity in organizational governance.
Since the amendment of the ACC Act (2008), a number of eventful things have been happening in the country’s fight to drastically curtail, and if possible, make extinct that vicious enemy of our society. A number of public officers have been indicted for corruption including Judges, heads of state institutions and even ministers of state. In fact there has been some high profile convictions such as the former Ombudsman, Francis Gabbidon, the former Director of the state broadcasting corporation, Kasho Wellington, and recently, Sheku Tejan Koroma, who was, before his indictment, the Minister of Health and Sanitation. In addition, quite substantial amounts in assets have been recovered from persons convicted for corrupt practices. Consequently, the country has made a modest progress in the fight against corruption by being ranked 148 of the 180 most corrupt nations surveyed according to the Transparency International Report in 2009.
In spite of the progress being made in combating this menace, some recent happenings continue to pose a severe threat to undermining the President’s rhetoric of ‘zero tolerance’ on corruption. For instance, the relieving of duty of Mr. Balogun Koroma, Minister of State in the Vice President’s Office, under suspicious circumstances leaves the public with more questions than answers. Also, there have been allegations of blatant disregard for the Public Procurement Act of 2004 which established the National Public Procurement Authority (NPPA) to regulate and monitor public procurements as an estimated 60-70% of all the country’s corruption takes place within the area of procurements.[i] These allegations, if true, will tend to make the President’s cliché, ‘zero tolerance on corruption’ meaningless, and by extension cause the public to view the ACC with a jaundiced eye. Neither the sacking of the Health Minister, a ‘neophyte’ in the scheme of politics, after his indictment, nor his conviction scored high with the public as was evident in the media courage of the story; instead, some even accused the ACC of ‘selective justice’- a view that tends to undermine public confidence in the institution to impartially combat corruption.
In a solid response to proving its doubters wrong, the ACC, in a startling move, filed a 17 count indictment against Afsatu Kabba, who, prior to her indictment and arraignment, was the Minister of Fisheries and Marine Resources in the Koroma-led administration. The Commission alleges that Afsatu Olayinka Ebishola Kabba, being a public officer, solicited and accepted an advantage from Lilian Ada Lisk contrary to Section 28(2) (a) of the Anti-Corruption Act, No. 12 of 2008; that she also abused her office by causing the employment of her two sons, Ibrahim Kabba and Abdul Wahid Kabba, and another Abdul Malik Jobe “without proper employment procedures being followed,” contrary to Section 42(1) of same; and is also jointly charged with Paul Sandi, who, before his indictment, was the Permanent Secretary in the same Ministry, on 2 counts of conspiracy to commit a corrupt offence contrary to Section 128(1) of same.
The one-time minister, was arraigned at High Court No. 1 presided over by Justice Nicholas Browne-Marke, to answer to the ACC allegations. After the charges were read, the prosecuting counsel for the ACC, Zimbabwean-born Calvin T. Mantsebo, made an application for the said matter to be adjourned for 8 weeks so that “the prosecution will decide on the line of action we will tend to take in dealing with the matter.” This application was met with stout objection from the defence team led by Foday Daboh, who termed it as ‘inconsiderate’ The learned presiding Judge, however, ruled on the application by giving the matter a 5 week adjournment.
Afsatu Kabba’s indictment has been a hot topic in public circles and amongst all walks of life with the media making the most of it. It has been regarded as probably the most contentious case in the history of the ACC and as such is likely to be the most publicised corruption trial in Sierra Leonean jurisprudence thus far. The reason for this is obvious: Afsatu Kabba is a heavyweight, an old hand in the body polity of the ruling All Peoples’ Congress (APC) party. This perhaps partly explains why, unlike Kemoh Sesay and Sheku Tejan Koroma, former Ministers of Transport and Aviation and Health and Sanitation respectively, State House was quick to have gone to her rescue by issuing a Press Release stating that she was to continue to hold her office until such a time necessary; which is at the pleasure of the President, after she was invited for questioning by the ACC.
This is not the first time though Afsatu Kabba’s name has been subject of public discourse since the coming to power of the APC. During her tenure at the Ministry of Energy and Power, she presided over the award of a controversial contract to Income Electrix Ltd. for the supply of thermal equipment for immediate and medium term supply of electricity to the capital, Freetown, which was evident in Messrs Tani Pratt and Professor Jonas AS Redwood-Sawyer’s, letter of “Concerns on recent development in respect of decisions taken by the Task Force.” Both men as members of the Presidential Energy Emergency Task Force (PEETF) set up to look at supply of power to the capital wrote a strongly worded letter stating serious concerns about certain irregularities relating to the signing of Income Electrix Ltd contract “without due consideration for the financial implications to Government”.
Following this, the ACC instituted a finding into the award of the contract. The ACCs Report titled: “Faulty Lines in a Flawed and Costly Contract” seriously incriminated Afsatu Kabba. The findings of the Commission, states that: “It is the opinion of the Commission that the Minister of Energy and Power, Haja Mrs. Hafsatu Kabba, played a key role in getting the Minister of Finance and Economic Development to make a joint financial commitment on behalf of Government to Income Electrix Limited even before the signing of the contract. In addition, the Minister, despite the caution by the Minister of Finance and Development and Development and Economic Planning about the huge financial implication to Government amounting to about US$ 65.5 M if this contract should go ahead, went ahead and signed the contract.” The Report further states that: “The arbitrary decision of Dr. Lancelot Lake and the Minister of Energy and Power, Mrs. Haja Afsatu Kabba, to overturn the professional recommendation of the Technical Committee …clearly manifests the gross abuse of executive authority resulting to loss of public funds.” In fact the ACC recommended, among others, that: “government should seriously consider terminating the contract with immediate effect within the requisite legal framework to avoid further costs and embarrassment;”
The question that was on lips of many Sierra Leoneans was why did the ACC not indict Afsatu Kabba? The ACC could not have indicted Afsatu Kabba at that time because under the previous Act (ACC Act, 2000), which was in force at the time of the award of the contract to Income Electrix Ltd., willfully failing to comply with laws and procedures and guidelines relating to procurement, tendering of contracts and management of funds, was not considered an offence. It is highly likely that this incident (breach of procedures in the award of the contract of Income Electrix Ltd.) is one of the chief reasons for making such an offence under the amended ACC Act of 2008. In fact it is under the said offence, inter alia, that the former Minister of Health and Sanitation, Sheku Tejan Koroma, was convicted for, among others, “failing to carry out the ruling of the Independent Procurement Review Committee when ordered by them to award the contract to the most responsive bidder.”[ii]
Both the indictment and arraignment of Afsatu Kabba has set tongues wagging in the public domain as to her guilt or innocence in the matter before the court. One thing is clear though, many people, including media practitioners, have already taken sides in the said legal suit. This is nothing new whenever Afsatu Kabba’s name is under the integrity microscope; it was the same during the Income Electrix Ltd. outburst. Some columnists, some real and others imagined, were garrulous in their bid to make her a superwoman whilst others even charged the public of ingratitude. Some even went as far as discrediting the report of the ACC as “lacking the basic investigative principles of hearing all sides” albeit the fact that a draft copy of the report was sent inter alia to her and she responded in writing and her comments were taken into consideration.
Unlike the Income Electrix saga, she has actually been indicted and is now standing trial for corruption-related offences. Her backers are at it again and have amassed all the deadly weaponry at their disposal in order to get her off the ACC net. The temerity demonstrated by a Mr. Edward Kallon, who wrote a letter to the Chairman of the Parliamentary Committee on Transparency and Accountability, asking the Chairman to request the ACC boss to clear the air on “numerous non transparency and non accountability” issues underscores their desperation to absolve the former Minister of any wrong-doing even if it means besmearing the ACC boss. Some have accused the ACC boss of sheer arrogance and others have insinuated corrupt practices within the Commission itself. Others have accused the President of being “totally unserious to combat true corruption in Sierra Leone” and have touted incessantly how much billions she generated whilst being Minister of Fisheries and Marine Resources; all of which undermines the public’s sincerity in the fight against corruption.
This case is definitely a litmus test for all: the ACC, the Government, the judiciary, and the general public; and as such stands the chance of heralding a new dawn in the country’s fight in eradicating what remains the foremost development challenge which has infested every level of post-colonial government in Sierra Leone.
With the matter now in court, the ACC should know that there duty is to prosecute and not to persecute; the Government should stop short at exerting undue influence, whether overtly or covertly, on the trial process, let alone enter a nolle prosequi, pursuant to Section 44(1) of the Criminal Procedure Act, 1965; the judiciary, perceived by many to be the temple of justice, should thus act accordingly; and the public should understand that the matter is now in a court of law and not a court of public opinion or sentiment.
It therefore behooves all to support the fight against corruption because of its myriad evils in our society, taking into cognizance the human dignity of the accused as provided for by law, thereby ensuring that the ends of justice is served.
[i] Interview with Abdul Tejan-Cole by Julia Szybala
A Prospective on the Anti-Corruption Commission
The Monitor, vol.28,July 2008, pp2
[ii] Summary of Evidence
The State v Sheku Tejan Koroma (unreported)
