by ibakarr | Aug 11, 2016 | Uncategorized
The official language of the Magistrate’s Courts in Sierra Leone is English. That is, court proceedings are generally conducted in English: the laws are in same; statements are recorded in same; papers are filed in same; instructions from the bench are in same; the rules of court procedure are in same etc. This is the modus operandi of the Magistrate’s Courts as provided for by the laws of the land as handed down to us by our colonial master, Britian. But it is interesting to note that the overwhelming majority of the people who use this Court in the north of the country hardly understand the language of the Court. Putting it in another way, they bulk of the Magistrate’s Court users in the north are illiterates who cannot understand the language (English) of the Court. Most court users in the north are often very comfortable to speak their language one or mother tongue; and whenever this is made difficult for them, their participation in the court process becomes very much limited. This article will seek to underscore the need for court interpreters as a vital component for the effective administration of justice in northern Sierra Leone.
The need for a trained court interpreter in the Magistrate’s Court in the northern part of Sierra Leone cannot be overstated. There should be a trained court interpreter who is very much versatile with most local dialects in the region as well as the English language who will be charged with the primary responsibility of interpreting from English to the local dialects and vice versa. Many a time court proceedings in the Magistrate’s Courts in the north have been stayed because the parties to the case cannot understand each other’s dialect as well as the language of the Court. In fact some Magistrates in the north do not even understand any local dialect thus helping to compound the problem. Although section 23(5)(e) of the 1991 Constitution of Sierra Leone provides that a person charged with a criminal offence should be accorded without payment the assistance of a court interpreter if such person cannot understand the language used at the trial, this constitutional provision is very seldom being adhered to. It is mostly considered in felonious matters or cases that warrant public interest. In fact even in such cases, this provision is mostly guaranteed to the accused and not the victim. Victims are mostly victimized with regards to being provided with court interpreters in the litigation process. In applying the principle of equality before the law, both parties in the litigation process should have the same opportunity before the law to present their own side of the story with none of the parties enjoying any undue advantage over the other.
The lack of trained court interpreters limits many litigants in this part of the country from having their day in court. The ‘unfriendly’ language of the Court coupled with the ‘unfriendly’ atmosphere of the court house ranks high as the chief reasons why court users in the north are not comfortable with litigation in the Magistrate’s Court. Despite the constitutional provision for accused to be informed in the language that he understands in detail the nature of the charge against him, the lack of trained interpreters limits the application of that constitutional guarantee. Consequently, some of the accused do not even know the nature of the charge for which they have been arraigned before the Court, not to talk about their constitutional rights as provided for by law. They can hardly express their feelings, emotions, ordeals etc without the aid of a trained court interpreter. And compounding the problem further, the frequent interruptions by counsels in the language of the Court whilst the parties to the case are giving testimonies help to inhibit the causality of the trend or sequence of the evidence adduced viz-a-viz the facts of the case. Most of the court users are easily intimidated with legal jargons which they cannot fathom in the ordinary course of the proceedings. As a result of this limitation, most of them prefer to remain silent thereby impeding the course of justice being served. The long and short of it all is that the communication barrier that exists in the Magistrate’s Court in the north greatly undermines the fair dispensation of justice to the bulk of the inhabitants who are mostly illiterates.
The lack of qualified court interpreters in the northern region is partly responsible for delay in court proceedings. In most Magistrate’s Courts in the north, it is not uncommon to find court clerks doubling as interpreters at the same time during proceedings. In fact in some instances, police prosecutors also serve as court interpreters. An example of this practice was demonstrated in the case of The Inspector-General of Police v Foday Conteh in which the accused was charged with an indecent assault on a five-year old girl. The victim was a child and could not speak the language of the Court; she obviously needed an interpreter in the said matter. It was no surprise to many when the interpretation was done by one of the prosecutors in the Bombali district Magistrate’s Court. The work of the police is to represent the Inspector General of Police in prosecuting criminal cases in court rather than serving as court interpreters in the very cases they should be prosecuting. It is the responsibility of the Court to provide litigants with an interpreter when necessary. This is so because where police prosecutors are made to double as interpreters in criminal matters the likelihood that the course of justice will be perverted is high. If the prosecutor who doubles as an interpreter wants to persecute the accused by securing conviction at all cost he will interpret wrongly in order to implicate the accused all the more. On the other hand, if the prosecutor is less inclined to secure a conviction because of personal reasons or otherwise, he will wrongly interpret the testimony of the victim. And stated inter alia, in a region where some magistrates cannot understand the local dialect, corroborating what is written and said during the course of proceedings becomes a huge challenge. In addition, by court officers doubling as interpreters also affects their primary duties in court thus leading delay in trial proceedings. In some instances, court officers only double as interpreters when they have an interest in the matter; in other instances, parties to a case are left to hire the services of non court officers to serve as interpreters who are not easily available.
The implication for justice is that, cases of such nature are frequently adjourned thus violating the right of the victim to fair and speedy trial. Since court prosecutors are not court interpreters, no one can be sure of the way they do the interpretation especially if the interest of the prosecutor in the case is high. Apart from the qualified court interpreter, any other court personnel in the capacity of a court interpreter may neglect other important duties that may be equally important to fair and speedy trial. Consequently, more people will prefer to use the local courts to seek redress where they are more comfortable and allowed to express themselves in their native language.
Concluding therefore, the need for the judiciary to train people in the art of interpretation and assign them to Magistrate’s Courts in the Northern Province should be a matter of priority if justice is to prevail. This will help in guaranteeing the rights of persons who do not necessarily understand the language of the Court-English. A trained and qualified court interpreter will be better placed to interpret the legal diction of the judicial process to the litigants in courts free from prejudice. The training of such personnel should be also gender sensitive as women will be better placed to serve as interpreters in cases of sexual and gender-based violence especially where the victims are children as in the case cited above.
With the bulk of the population in the north very much limited in their understanding of the language of the Court, it therefore behooves all stakeholders working on justice sector reform issues to prioritize the need for having trained and qualified interpreters in the Magistrate’s Courts in that part of the country for the purpose of realizing the “justice for all” vision of the judiciary.
by ibakarr | Aug 11, 2016 | Uncategorized
Abdul Tejan-Cole
Commissioner of ACC
On 12th March 2010, Afsatu Olayinka Ebishola Kabba was charged alongside Paul Sandi, on 17 counts of corruption related offences by the Anti-Corruption Commission (ACC). Up until their indictments, Afsatu Kabba was Minister of Fisheries and Marine Resources, while Paul Sandi serves as Permanent Secretary of same. The Commission has alleged that Afsatu Kabba, being a public officer, solicited and accepted money as an advantage contrary to the provisions of the ACC Act 2008 in pursuance of her duties as public officer. Also she acted in concert with the Permanent Secretary together with other unknown persons to commit the alleged corrupt offences.
Afsatu stands charged with 5 counts of soliciting an advantage and 5 counts of accepting an advantage contrary to Section 28 (2)(a) of the Anti-Corruption Act No. 12 of 2008. She also stands charged with 5 counts of abuse of office contrary to Section 42 (1) and is jointly charged with Paul Sandi on 2 conspiracy counts to commit a corrupt offence contrary to Section 128(1) of the same Act. Below is a summary of the charges.
The first charge in the indictment is for soliciting an advantage contrary to Section 28(2)(a) of the Anti-Corruption Act 2008 which provides inter alia that it will be an offence for a public officer to solicit for himself without adequate lawful consideration, any advantage as an inducement to perform his public duties or reward for performing or abstaining from performing any
act in his capacity as a public officer.[1] It is alleged by the ACC that between June 2009 and October 2009, Afsatu Kabba, being a public officer serving as the Minister of Fisheries and Marine Resources asked for money which amounted to three thousand United States Dollars ($3,000) from Lilian Ade Lisk of Okeky fishing Agency as an inducement for the issuance of licenses for fishing boats operated by Lisk?s Okeky Fishing Agency.
Count 2 was for accepting money amounting to three thousand United States Dollars ($3,000) from Lilian Ade Lisk of Okeky Fishing Agency between June 2009 and October 2009, so she could issue license for fishing boats. The ACC alleged that Afsatu Kabba collected this money in the capacity as a public officer being the Minister of Fisheries and Marine Resources. The charge is brought under Section 28(2)(a) which provides inter alia that any public officer who accepts for himself any advantage as an inducement for performing any act in the capacity as a public officer commits an offence.[2]
Count 3 and 4 were for asking and accepting money from Lilian Lisk between June and October 2009 contrary to Section 28(2)(a). The Commission alleged that Afsatu Kabba requested and accepted money amounting to twelve thousand United States Dollars ($12,000) as an incentive to issue licenses for fishing boats belonging to Okeky Agency, a task which should be performed by the Minster of Fisheries and Marine Resources, who is supposed to be a public officer.
Counts 5 and 6 point to request made by Afsatu Kabba to Lilian Lisk for money as an incentive to also perform her public duties. It is alleged that between June 2009 and October 2009, Afsatu Kabba, being the Minister of Fisheries and Marine Resources and also a public officer, solicited money to the tune of ten thousand United States Dollars ($10,000) from Lilian Lisk of Okeky Agency in order to issue licenses for boat belonging to the said Agency. Similarly, counts 7 and 8 claimed that while serving as a public officer in the capacity of Minister of Fisheries and Marine Resources Afsatu Kabba took advantage of the opportunity to request and receive Five Million Leones (Le 5,000,000) from Lilian Lisk as an incentive to perform her public duty- the issuance of licenses for fishing boats. Counts 9 and 10 were also for obtaining money for the performance of a public duty. They were related to request made by Afsatu to Lilian between June and October 2009 for money amounting to three thousand United States Dollars ($3,000).
Count 11 pertains to Abuse of Office contrary to Section 42(1) of the Anti-Corruption Act 2008 which provides that any public officer who uses his office to improperly confer an advantage on himself or any other person commits an offence.[3] The Commission alleged that between October 2008 and March 2009, while the Minster of Energy and Water Resources and a Public Officer Afsatu Kabba abused her position. She did so by ordering the employment of Sorie Kabla as messenger in the Radiation Protection Board Secretariat, which is a unit of the Ministry and Water Resources, without him going through the recruitment process. Counts 14 also relates to abuse of office, noting that, between March and December 2009, Afsatu Kabba being the Minister of Fisheries and Marine Resources abused her office by ordering the employment of one Abdul Malik Jobe as Marine Protection Officer in the Fisheries Ministry without him going through the correct recruitment process. Counts 15 also points to the charge of abuse of office, alleging that between March and December 2009 Afsatu being the Minister of Fisheries and Marine
Resources ordered the employment of Abdul Wahid Kabba as Marine Protection Officer/Communication officer in the Ministry, without going through the right recruitment process.
Counts 16 and 17 relate to conspiracy; charging conspiracy to commit a corruption offence contrary to Section 128(1). The provision states that any attempt or conspiracy to commit a corruption offence or aiding, abetting, counseling, commanding or procuring the commission of a corruption offence shall be punishable as if the offence had been completed.4 Counts 16 alleges that between March and December 2009, Afsatu Kabba and Paul Sandi, with the latter serving in the capacity of Permanent Secretary of the Ministry of Fisheries and Marine Resources together with other unknown persons employed Abdul Wahid Kabba in the Ministry without going through the right recruitment procedure. Similarly, count 17 alleges that between the same date the accused persons together with other unknown persons, employed Abdul Malik in the Fisheries Ministry without going through the due recruitment process.
The erstwhile Minister and Permanent Secretary made their first appearances before Justice Nicholas Browne Mark on the 15th March 2010, where they pleaded not guilty to all counts. The matter has been adjourned for five weeks following the Prosecution?s application for an eight weeks adjournment to enable them prepare their case. Meanwhile, the Anti-Corruption Commission has presented a summary of their evidence to be adduced in court, to wit Lilian Ade Lisk, Franklin Campbell and Bashiru Konneh will serve as witnesses. Both accused persons were granted bail and the matter is to recommence on the 19th April 2010.
[1] See The Anti-Corruption Commission Act, 2008 Sec 28 (2)(a)
[2] Ibid
[3] See The Anti-Corruption Commission Act, 2008 Sec 42 (1)
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
More than half of the world?s population are not satisfactorily protected by law or the institutions established to govern them.[1] The poor are in a particularly helpless position- their rights are routinely violated, they are unable to access formal institutions and are incapable of speaking out. In Sierra Leone the vast majority of the population do not have access to the formal justice system.[2] They have to rely on informal or traditional institutions which often leave them vulnerable to exploitation and discrimination. With examples from a number of developing countries, this article briefly examines the value of the low-cost justice delivery model of community-based paralegals, in ensuring access to justice for the poor.
Poverty and law
In the Human Poverty Index (HPI)[3], Sierra Leone ranks 128 out of 135 countries.[4] The story behind the statistics makes grim reading: 31% of the population may not survive to the age of 40, 61% of all adults are illiterate, 47% do not use water from an improved source and 30% of all children under 5 are under weight for their age.[5] The vast majority of poor people live outside the protection of the law, their poverty being a reason and consequence of their lack of effective legal rights.[6] They struggle to make ends meet and are forced to devise their own solutions to the myriad socio-economic challenges they encounter daily.[7] In sub-Saharan Africa, between 65 and 90 percent of these poor live in rural areas.[8] The conditions faced by the rural poor in terms of access to education, healthcare, water and sanitation, housing, transport and communications are much worse than those faced by their urban counterpart.[9] With these formidable challenges and living on less than a dollar a day, it is not hard to imagine why accessing formal legal structures and services will always be an unattainable luxury for the rural poor particularly.
A legal system can help promote poverty if it has laws that discriminate against the poor or which simply ignore their rights, interests or concerns. It is the duty of the state to ensure that justice is promoted on the basis of equal opportunity for everyone, regardless of status and location and it will be disingenuous to pretend that because of their penury, the poor do not have legal problems. On a practical level, making the law work for the poor requires the adoption of low-cost justice delivery models which takes into account issues such as cost, the capacity and willingness of the poor to pay for legal services keeping in mind the challenges faced by formal structures.
Recognition of the link between poverty and law in Sierra Leone
The vision of the government?s Justice Sector Reform Strategy and Investment Plan 2008-2010 is to have a country „where there is safety for people, security of property and access to justice. This is essentially one of the traditional functions of governments everywhere. Without a functioning justice system to address conflicts and grievances in an impartial and efficient manner, aggrieved persons will increasingly resort to self-help methods to address their justice problems, with very serious ramifications for an open and peaceful society. Against the backdrop of a cruel civil conflict that witnessed the almost total collapse of the country?s justice system, the Strategy gives room for optimism in that it aims to take justice provision to the people, „through a number of bold reforms? which include considering the establishment of a national community based paralegal initiative to provide basic legal advice and assistance in partnership with civil society to the 70% of the population who do not have access to formal justice systems. This will be in addition to strengthening the quality of justice provided by local courts and chiefs by reinforcing supervision of these institutions. These are all very laudable goals.
Empowering the poor as a keystone of development
The adoption of a justice sector reform strategy at the local level is a reflection of a growing international awareness of the importance of access to justice in the fight against poverty.[10] Economic solutions by themselves cannot entirely tackle the problem of poverty, or deal effectively with issues such as „deprivation, insecurity, exclusion and voicelessness? which are known factors that impoverish people and keep them poor.[11] Empowering the poor legally can help address such concerns.
Legal empowerment is a process through which the poor are protected and enabled to use the law to advance their rights and interests.[12] It recognises that everyone should have to access to justice and that all the legal rights that are owed to an individual are respected without regard to that person?s status.[13] It promotes development by giving voice to individuals and communities at the grassroots level to participate in decision making processes and consolidates good governance and accountability.[14] Legal empowerment strengthens civil society and capacitates the poor to defend themselves against violations of their rights rather than helplessly waiting for someone somewhere to do something. Though legal empowerment of the poor addresses grassroots needs, its activities at community-level can impact on national laws and institutions.[15]
Across the world, legal empowerment efforts have helped to bring communities out of poverty and given them a sense of purpose and dignity. In Namibia, legal reforms in 1996 created a framework for community-based management of natural resources which gave locals legal rights to manage wild life reserves. This resulted in a rejuvenation of the ecosystem, reduction of poaching activities, substantial increase in wildlife and
new livelihood opportunities for the poor as eco-tourism took off.[16] This is just one example of the many innovative ways by which poor people can be legally empowered to effect positive changes in their lives and this might be one of the biggest advantages of legal empowerment- its ability to fit any context or level.
Previous attempts at making the law work for everyone, particularly the poor have been almost entirely focused on building the capacity of the so-called supply side of justice- government institutions, mainly courts, with little or no attention paid to building the capacity of users of justice services who are meant to access these institutions on how to efficiently utilise these institutions or find other helpful alternatives. Legal empowerment in many ways seeks to rectify this imbalance and one principally effective and inexpensive way has been through the use of community-based paralegals.[17] Paralegals can and do carry out a wide range of activities:
? Community-based paralegals can bring parties together to mediate, take witness statements and gather information, draft and deliver letters, assist citizens in navigating structures of authority, and organise communities to address their own justice problems.
? Community-based paralegals can educate communities, individuals and chiefs about laws governing a particular issue and legal processes.
? Well-trained paralegals can provide many of the basic general and criminal services that clients of legal aid programmes need.
? Community-based paralegals are appropriately located to understand the issues and the form of intervention most suitable to a specific community or case.
? Community-based paralegals can promote problem-solving and good governance at community and chiefdom level.
It is no coincidence therefore, that developing countries are increasingly adopting the paralegal approach to justice service delivery to ensure access to justice for the poor especially those in rural areas. This model has proven to be substantially effective, far-reaching and flexible and costs considerably less than for example a lawyer-based model of justice service delivery to sustain. Also, given the resource constraints of developing nations, a paralegal model might more easily attract donor support than a lawyer-based model. Further, developing countries especially in Africa tend to have a bifurcated legal landscape with mostly poor people relying on traditional or informal institutions to solve their justice problems rather than on the formal one. A paralegal model has the advantage of plasticity and can work effectively across these systems. It can enhance the substance and fair application of customary law and make traditional institutions more accessible.
Where has this worked?
In many developing countries justice services organisations (JSOs) are working with the poor to enable them gain greater power over their lives.[18][19] JSOs not only make the rule of law a reality for the poor, but also improve their material circumstances and empower them to advance their own interest.[20] These organisations, through the use of paralegals, help the poor solve basic problems and overcome administrative barriers.
Malawi
In Malawi, the Paralegal Advisory Services (PAS) has since 2000 been offering paralegal aid in criminal matters covering 84% of the prison population, 4 police stations and 4 court centres and providing basic legal education, through clinics, assistance and advice to prisoners.[21] Over 10,000 prisoners have been reached and an independent evaluation found that prisoners had become more sophisticated in their understanding of the law and court procedure.[22] The successes of PAS and other NGOs
involved in justice service provision have led to several developments: the Malawian Law Society is considering including paralegals in a review of the Legal Education and Legal Practitioners Act 1965 and the draft Legal Aid Act 2005 formally recognises the role of paralegals as competent providers of basic legal advice, legal assistance and civic education and information about the law.[23] In partnership with the University of KwaZulu Natal in South Africa, PAS has developed a two year diploma course for paralegals.
South Africa
Paralegals play a huge and significant part in providing basic legal services to poor South Africans. Through over 260 Paralegal Advice Offices countrywide, paralegals help people learn about their rights and in this way give them the confidence to try and sort out their own problems in the future. They run public education programmes and encourage people to resolve disputes through methods which do not involve the law courts, such as negotiation and mediation.[24] In certain matters, they do referrals to competent authorities for action. Several NGOs in the justice sector provide training and accreditation for paralegals. The Community Law and Rural Development Centre for example provide training and support for a network of 56 Paralegal Advice Offices in rural areas. At the end of the training, paralegals receive a diploma from the University of Natal. Currently, two draft bills on legal practice recognise the role of paralegals in the South African justice sector.[25] In addition, a consortium of NGOs across five countries in the sub-region, including Lawyers for Human Rights have formed the Southern Africa Legal Cluster Assistance Project to lobby and advocate for the legal recognition of paralegals in southern Africa.
Kenya
For over a decade NGOs have provided rural communities with access to primary justice services through community-based paralegals. The Legal Resources Foundation (LRF) for instance promotes access to justice through human rights education and empowers communities to claim and defend their rights.[26] In 2000 a coalition of over 20 civil society organisations undertaking paralegal initiatives including LRF formed the Paralegal Support Network (PASUNE) to harmonise and standardise paralegal training and coordination. PASUNE has developed a curriculum for paralegal training and a manual to accompany it. The network is currently advocating for the enactment of legislation that would recognise and institutionalise paralegals within the justice sector.[27]
Moldova
Community-based paralegals are relatively new in the Moldovan legal system although NGOs had been successfully providing some level of legal aid services in rural areas. Legal aid reform in 2008 saw the recognition of paralegals and specialised non-governmental organisations in the new legal aid law as primary justice service providers.[28]The paralegals will serve in the rural areas, solving basic legal problems in villages, implementing initiatives and teaching the inhabitants how to assert their rights.[29] The reasoning for the adoption of this mixed model of legal aid provision was to „increase quality, accessibility and ensure reasonable cost of legal aid services?.[30]
Sierra Leone
Far flung rural communities continue to benefit from the efforts of NGOs to provide basic justice services at the local level through community based paralegals or other similar mechanisms. Timap for Justice a local NGO has, since 2004, provided grassroots justice services in the Northern and Southern provinces of Sierra Leone and Freetown. Timap employs a frontline of community-based paralegals who engage in mediation, advocacy, organising, and education to address concrete instances of injustice. The paralegals are supported and supervised by two lawyers who also engage in litigation and high-level advocacy sparingly and strategically to address severe cases which the paralegals are unable to solve on their own. Timap has gained recognition from independent institutions such as the World Bank and International Crisis Group for developing a creative, effective methodology for providing justice services in the difficult and complex context of rural Sierra Leone.
The success of this method of justice service provision is also reflected in government?s desire to partner with Timap for Justice and broader civil society to make community based paralegals widely available.[31] Other non-governmental organisations are also providing justice services in rural areas through community based paralegals targeting vulnerable groups such as mine workers, women and children. There has been little effort by NGOs to harmonise, standardise or obtain formal recognition for their paralegal work in spite of its comparative maturity and resounding success. Paralegals continue to operate without any accreditation or common standard. However a golden opportunity to remedy this situation now presents itself in the form of the proposed legal aid framework for Sierra Leone and organisations involved in primary justice service provision ought to take advantage of it and canvass for a role within the proposed legal aid framework.
Of note is the fact that even developed countries utilise community based organisations for the delivery of basic legal aid services to their citizens.[32] In England, Citizen?s Advice Bureaux and Community Legal Advice Centres provide a mix of legal services including legal advice, information and representation, education and community organising. These organisations are largely staffed by volunteers and receive funding from the government. Similarly in Canada, the province of Ontario hosts scores of community legal clinics which offer primary civil legal aid services to indigent persons. Staffed by lawyers and paralegals, these clinics provide eligible individuals with free legal information, advice and representation. They also engage in legal education and community development initiatives. In addition, the law schools in Ontario operate legal clinics where law students- supervised by lawyers- provide legal help to those who do not qualify for legal aid.
Conclusion
As the government develops a legal aid law in its bid to make justice accessible particularly by the poor, it is important not to lose sight of the imperative of designing a framework that will actually work, because „…the law on paper is often not enough to change the reality on the ground?.[33] Measures to improve access to justice for the poor should concentrate on developing low-cost justice delivery models, like community-based paralegals, which have very high sustainability chances rather than intricate, costly schemes that may not be easily funded and have a short lifespan.
[1] Making the Law Work for Everyone Report of the Commission on Legal Empowerment of the Poor, Vol. 1, 2008, pg. 19
[2] Government of Sierra Leone Justice Sector Reform Strategy and Investment Plan, 2008-2010, pg vi.
[3] Human Development Report 2009. The HPI focuses on the most deprived in various dimensions of poverty and measures selected indicators of human poverty like severe deprivation in health, lack of access to improved water source and adult illiteracy among others.
[4] Ibid. This translates to a value of 47.7%.
[5] Ibid
[6] Note 1 above, pg. 25
[7] Ibid.
[8] Mahmood Hasan Khan, Rural poverty in developing countries: implications for public policy, Economic Issues No. 26, March 2001.
[9] Ibid.
[10] See the work of the United Nations Commission on Legal Empowerment of the Poor, note 1 above
[11] Irene Khan, The Unheard Truth: Poverty and Human Rights, Amnesty International 2009, pg. 8.
[12] United Nations General Assembly, Legal empowerment of the poor and eradication of poverty, Report of the Secretary-General, 13 July 2009, pg. 3.
[13] Ibid
[14] Ibid
[15] Stephen Golub, Beyond Rule of Law Orthodoxy: the Legal Empowerment Alternative, Rule of Law Series, Democracy and Rule of Law Project, Carnegie Endowment Working Paper No. 41, October 2003.
[16] Note 1 above, pg. 39.
[17] A paralegal is a person who by virtue of some training or experience has basic knowledge of the law and its procedures, knows about conflict resolution processes, is motivated to help people and communities solve their legal, human rights, administrative and developmental problems, while empowering them to tackle such problems on their own in the future. See http://www.paralegaladvice.org.za/docs/chap15/02.html.
[18] The International Bank for Reconstruction and Development/World Bank, Legal Services for the poor: best practices handbook, 2003.
[19] See 12 above.
[20] See 12 above.
[21] Index of good practices in reducing pre-trial detention [PRI] Paralegal Advisory Service Brochure and Training Manual.
[22] Adam Stapleton, Energising the criminal justice system, Malawi’s Paralegal Advisory Service Penal Reform International available at http://www.id21.org/insights/insights43/insights-iss43-art06.html.
[23] The draft law is on file with Open Society Justice Initiative.
[24] See http://www.paralegaladvice.org.za/.
[25] These are the Task Team Legal Practice Bill (2002) and the Law Society of South Africa Bill (2002).
[26] See http://www.lrf-kenya.org/.
[27] 27 See http://www.lrf-kenya.org/section.asp?ID=50.
[28] Law on State Guaranteed Legal Aid, adopted 26 July 2007, it entered into force in 2008.
[29] Nadejda Hriptievschi National Report: Moldova, International Legal Aid Group Conference, 1-3 April 2009, New Zealand, pg. 11.
[30] Ibid
[31] See 2 above, pg.18.
[32] See Eric Leikin Comparative Memorandum on Community Legal Centres 2009, on file with author
[33] See 9 above, pg. 8.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The prevalence of domestic violence in all societies is widely known and becoming increasingly acknowledged. Regardless of region, race, colour or creed, violence that occurs between people categorised as being in “domestic relationship “is something that societies have recognised cannot be ignored. In order to address this issue the legislature in Sierra Leone has enacted the Domestic Violence Act 2007 a progressive piece of legislation which states that it is an “Act to suppress domestic violence and to provide protection for victims of domestic violence.”
The legislature of Sierra Leone has made a clear statement that domestic violence will not be tolerated and that the perpetrators will be brought to justice. Statutory obligations are imposed upon the police regarding the implementation and enforcement of the law.
The discretion of the investigator has been replaced with a duty that requires a prompt response by the officer to whom the complaint is made and provides the steps that must be taken.
The context in which this legislation arises is a country which was ravaged by civil conflict for almost 10 years. The human rights of victims often the most vulnerable individuals were violated and this legislation is part of the process of rebuilding the social infrastructure of society and the confidence of those who were victimised with impunity. The duties of those who enforce the law have been clearly set out lest there be any reluctance on the part of the police to act in these often sensitive situations.
Summary of provisions
Parliament?s intention being clearly promulgated we turn to the provisions.
The Act itself is short 23 sections in three parts.
? Sections 1-9 provides a definition of domestic violence and states that it occurs when the offender and victim are in or have been in a domestic relationship and definitions are provided of what a domestic relationship can be.
? Ss 10-19 detail provisions relating to Protection orders akin to non-molestation orders in the UK and Occupation orders. These can be free standing applications or they can be made within criminal proceedings either at the request of the applicant victim or of the courts own motion.
? Ss. 20-23 Make provision for settlement of cases out of court with the consent of the complainant provided that the offence is not in its aggravated form.
What constitutes Domestic violence and a domestic relationship?
Section 2 provides that it is an offence under the Act for any person in a domestic relationship to engage in any act of domestic violence: subsection 2 indicates that domestic violence means inter alia physical or sexual abuse, economic abuse, emotional, verbal or psychological abuse, harassment and intimidation. Section 1 defines the terms “abuse,” economic abuse” and an offence in “aggravated “form. The circumstances when the offence can be committed in its aggravated form are set out and include amongst other ways when a weapon is used; there is evidence of premeditation, failures to respond to warnings by the police, the court or any official body.
Section 2 (3) provides that the maximum sentence for domestic violence is 2 years imprisonment. Interestingly and surprisingly there is no enhanced sentence for the offence in its aggravated form, it is not clear whether this was a deliberate omission or whether the legislature intended to provide the maximum latitude to the judiciary when it come to sentence.
There is no guidance given in the statute to the judiciary as to where the thresholds should be regarding the offence simpliciter and the aggravated offence.
It will be interesting to see how the courts interpret the concepts of economic and psychological abuse and what evidence will have to be adduced to establish it to the courts satisfaction.
In Sierra Leone there still exists a strict corroboration requirement for sexual offences and this will impact upon the ability to prosecute allegations of sexual abuse.
The act criminalizes sexual offences that occur in marriage and in relationships that are akin to marriage.
A pre-condition for proving the offence is the establishment that there is a domestic relationship the statutory definition is wide covering all familial and marital relationship and people who live or have lived in the same house hold. Parties who have had a child together but have never co-habited are covered as are those living in care, public or private care institutions. There is a catch all subsection whereby the court can determine that a relationship is a domestic relationship based upon the length of time the parties spend together, the place where that time is spent, the manner in which that time is spent and the duration of the relationship.
Section 4 of the act provides that Domestic violence may be result from a single act or a series of acts trivial in themselves but when looked at together amount to a pattern of behaviour.
Sections 6 provides that an officer shall respond promptly to a request for assistance and shall offer such protection as required.
Section 7 specifies the investigatory action that must be taken, including interviewing of witnesses assisting in the obtaining of medical treatment and retrieval of personal belongings where applicable.
Section 20 provides that where an offence is not in the aggravated form if the complainant expresses the desire to settle the case out of court, the court shall refer the case for alternative dispute resolution; the court can also initiate this if the complainant consents. Where a case is so referred the complainant and the offender shall be referred to counselling, the offender where necessary can receive psychiatric help and a probation officer can be appointed to provide a report.
Subsection (3) provides that if after a report is provided the offender engages in a further act of domestic violence he shall be brought before the court and prosecuted.
Conclusion
The Sierra Leone Law on domestic violence provides a comprehensive definition of domestic violence and potentially criminalizes behaviour that hitherto may have been dealt with in the course of civil proceedings.
The back drop of a break down in civil society can be seen as the driver to prescribe the actions to be taken by the police when investigating these offences which Parliament has indicated are a priority as the fabric and framework of society needs to be strengthened and capacity built in the post conflict environment.
In practice I anticipate that many cases will still be prosecuted under the established legislation which is still the 1861 Offences against the Persons Act. In serious cases the maximum sentences available there under will be heavier than that contained in the Domestic Violence Act 2007.
The availability of an out of court settlement is a useful and sensible method of resolving disputes where the offence is non aggravated and the public interest does not necessitate a trial or court proceedings.
To date there is no firm evidence that the Sierra Leone Domestic Violence Act 2007 is stemming the tidal wave of gender based violence, it is hoped that the mandatory provisions directed at investigators will act as an aide memoire and checklist for positive action. It will be interesting to see how the legislation is interpreted and applied in the forthcoming months and to assess the impact that there is on incidents of domestic violence.
Domestic Violence Act 2007 a step in the right direction or a step too far?
In my view this Act is a step in the right direction it sends a clear message to perpetrators, victims, the courts and those who are entrusted in enforcing the law that those who offend will be dealt with. However it remains to be seen what effect the legislation will have upon violence as it occurs within the domestic context and the attitudes of perpetrators and those who are entrusted in implementing the will of the legislature.
1 Antony Salmon is a Criminal Justice Advisor working for the Crown Prosecution Service UK currently attached to the Attorney General’s Office Sierra Leone.
by ibakarr | Aug 11, 2016 | Uncategorized
I Introduction
The rule against hearsay is a fundamental rule of evidence applicable in most common law jurisdictions.[1] The adhoc international criminal tribunals and the International Criminal Court are more flexible in the admissibility of evidence. It is well established that hearsay evidence is admissible in the Special Court for Sierra Leone (Special Court), the International Criminal Court, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).[2] When determining whether evidence will be admitted these courts and tribunals are concerned with the relevance of a statement, rather than its reliability which is assessed at the end of the trial.
The decision to allow hearsay into evidence has perplexed many international commentators, who argue that this compromises the right of the accused to a fair trial. This paper examines the rule against hearsay, the position taken by the Special Court, and arguments for and against the admissibility of hearsay evidence. It asks the question: Should the court continue to admit hearsay, or limit admissible evidence to direct evidence?
II The rule against hearsay
The rule against hearsay operates as follows:
An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted.[3]
Hearsay encompasses statements made by a witness that are based on what someone else has told them. Such statements are inadmissible if the object of the evidence is to prove the truth of what was said. It is not hearsay and is admissible when the object of the evidence is to establish not the truth of the statement, but the fact that the statement was made.[4]
The effect of the rule is that witnesses are only permitted to testify in relation to what they have personally seen and heard. They are not permitted to testify as to the assertions of others.
III. Admissibility of Hearsay in the Special Court
A. Statute
While the Rules of Procedure and Evidence for the Special Court for Sierra Leone (Special Court Rules) do not directly address the issue of hearsay, the Trial Chamber has discretion under Rule 89(C) to admit any relevant evidence, including hearsay.[5] Similar provisions exist in the Rules of Procedure and Evidence for the ICTY and ICTR, however they specify that the evidence must also be probative.[6] It was pointed out by the Prosecution in the Fonfana Bail Appeal Decision that while the Rules for the ICTY explicitly refer to the probative value of the evidence, and the Special Court Rules do not, the requirement that the evidence is relevant is essentially the same as the requirement that it be probative.[7]
B. Case Law
The Special Court has consistently decided in favour of admitting hearsay into evidence, finding that relevance is the only condition for the admission of evidence, and that its reliability is considered at a later stage.[8] Hearsay is admitted on the basis that the Trial Chamber consists of professional Judges who are capable of evaluating the weight to be given to it. Determinations on the admissibility of hearsay are considered to be a waste of the court’s time.[9]
On 24 May 2005 the Trial Chamber in the AFRC case[10] handed down a decision on a joint defence motion to exclude the evidence of a witness on the grounds that it was hearsay. The disputed evidence of the witness was that he was present when a man named Mr. Saj Alieu reported to his uncle that a person referred to as “55” (an alternative name given to the accused) shot a woman.
Defence counsel argued that hearsay evidence should only be admissible where there are difficulties in obtaining first-hand accounts. The Trial Chamber disagreed, stating that it is not necessary for the Prosecution to establish that the other people involved in the conversation are not available to give evidence. The Trial Chamber decided that this issue goes to the weight, rather than admissibility, of the evidence.[11]
In reaching a decision the Trial Chamber considered the decision of the Appeal Chamber in the Fonfana Bail Appeal Decision.[12] In that decision the Appeal Chamber found that the Trial Chamber erred in law in refusing to admit hearsay evidence. The Appeal Chamber interpreted Rule 89(C) as follows:
Rule 89(C) ensures that the administration of justice will not be brought into disrepute by artificial or technical rules, often devised for jury trial, which prevent judges from having access to information which is relevant. Judges sitting alone can be trusted to give second hand evidence appropriate weight, in the context of the evidence as a whole and according to well-understood forensic standards.[13]
With this in mind, the Trial Chamber found that the reliability of evidence does not affect its admissibility. The Trial Chamber confirmed that its decision to admit hearsay evidence ‘does not imply that it accepts it as reliable and probative.’ The Trial Chamber will admit evidence on the basis of its relevance, and at the end of the trial it has the responsibility of ‘evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant witness.’[14]
The Trial Chamber ruled that the evidence was relevant and therefore admissible under Rule 89(C). This decision was consistent with the Fonfana Bail Appeal Decision where the Appeal Chamber remarked that ‘[e]vidence is admissible once it is shown to be relevant: the question of its reliability is determined thereafter, and is not a condition for its admission.’[15] These decisions reflect the view taken by the Special Court that the trials are conducted by professional Judges who are capable of determining the weight to be given to hearsay evidence.
IV. Arguments for and against the admission of
hearsay evidence
The following section considers the arguments for and against the admission of hearsay evidence.
A. The reliability of hearsay
The rule against hearsay reflects the fact that hearsay evidence is not as reliable as direct evidence. This section examines factors undermining the reliability of hearsay evidence.
1. No opportunity to cross-examine the primary witness
Juries, and in international tribunals, Judges, have the onerous task of evaluating the evidence of each witness. The reliability of their testimony is affected by their honesty, perception, memory and narration.[16] These factors can be tested in cross?examination; however, in the case of hearsay evidence as the primary witness is not coming before the court this is not possible.[17] If a witness providing secondary evidence has misheard or misremembered a statement, or taken it out of context, this is not evident to the court unless the primary source of the statement is cross-examined. Cross?examination gives the court the opportunity to test the reliability of evidence and assess the credibility of a witness by observing their demeanour. The Special Court has ruled that whether or not evidence can be tested by cross-examination goes to the weight of the evidence, not its admissibility.[18]
Hearsay evidence coming before the Special Court is of an even more extraordinary nature as in many cases it is not just second-hand but third and fourth-hand accounts. In countries with a largely rural population, such as Sierra Leone, the majority of information travels by word of mouth. When a witness testifies it is impossible to test how many individuals a statement they are making has passed through before it reached them. This further compromises the reliability of such a statement.
2. Hearsay evidence is not provided under oath
The reliability of hearsay evidence is further undermined because it is not provided under oath. When evidence is provided under oath a witness is required to testify in the solemn context of proceedings in court, being instructed as to their obligation to tell the truth and the consequences for not doing so. It is common for people to mislead others, particularly when they are not aware of the implications of their statements. It is a lot less likely that someone will make misleading statements before a courtroom, while under oath.
3. Requirement of reliability
The ICTY has imposed an additional requirement that evidence be reliable. The Special Court has a lower threshold, requiring only that the evidence be relevant. The probative value of evidence is the ‘tendency of evidence to establish the proposition that it is offered to prove.’[19] It has been argued that evidence ‘may be so lacking in terms of the indicia of reliability that it is not “probative” and is therefore inadmissible.’[20] It could be argued that the approach taken by the ICTY to impose a test of reliability overcomes this issue. However, the Judges of the Special Court retain a discretion by virtue of Rule 89(C) over which relevant evidence they deem appropriate to admit, and can exclude evidence of this nature on that basis.
B. Rights of the Accused
An argument against the admission of hearsay evidence is that it compromises the right of the accused to a fair trial. Article 17(4)(e) of the Special Court Statute entitles the Accused ‘[t]o examine, or have examined, the witnesses against him…’ It could be argued that this right is compromised when hearsay evidence is admitted, as they are not given the opportunity to examine the primary source of the evidence.
The Trial Chamber in the ICTY has held that the admission of hearsay does not compromise the rights of the accused as the Defence has the opportunity to cross-examine the witness and undermine the weight of the evidence. The Tribunal made it clear that the provision in the ICTY Statute akin to Article 17(4)(e) of the Special Court Statute[21]applies ‘to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness’.[22] Cross examination of a witness providing secondary evidence cannot be used to test the truth of such a statement, but it can be used to test whether or not such a conversation took place. This is the rationale for the traditional rule against hearsay, which only allows hearsay to be admitted to demonstrate that a statement was made.
The Special Court explained how cross-examination could be used to undermine the weight of hearsay evidence, stating that:
…It was open to the defence to ask Mr White to be called and to cross-examine him or to controvert his evidence by calling their own witnesses or by arguing that it was speculative or rumour-based, in order to undermine its weight.”[23]
Cross-examination can be used to determine the identity and characteristics of the primary witness and other facts and circumstances that might assist the court in evaluating the evidence. For example, in regards to the allegation that Taylor exercised command and control over members of the Sierra Leonean rebel group the Revolutionary United Front (RUF), the Judges of the Special Court are likely to give more weight to hearsay statements made by someone who held a senior position in the RUF than statements made by an individual who had no association with the RUF.
C. Inability to evaluate hearsay evidence
A key argument against the admission of hearsay evidence in common law trials is a lack of trust in juries’ capacity to evaluate it. The Special Court is confident that its Judges can be trusted with the task of evaluating and assigning appropriate weight to hearsay evidence. Similarly, the ICTY determined that its Judges are ‘professionals capable of evaluating the probative value of testimony…’, including hearsay evidence.[24] The Special Court Rules were specifically drafted differently to that of most domestic statutes to reflect the unique fact that the court is sitting with Judges alone and not a jury.[25] In limited circumstances, hearsay is admissible before juries in common law courts. In such instances, the Judge will warn the jury of the need to exercise caution when considering the evidence and the weight to be given to it. If juries are trusted to evaluate hearsay evidence, it is reasonable to consider that a panel of professional Judges are capable of doing the same.
Contrary to this it has been argued that given the substantial amount of prejudicial hearsay evidence coming before the Court in the Prosecutor v. Charles Taylor trial, it is difficult for the Judges to remain impartial and this is affecting Charles Taylor’s right to a fair trial. It has been suggested that as a number of witnesses are repeating the same hearsay evidence to the Court this will subconsciously act on the Judges’ perception of the facts. Charles Taylor himself has expressed concern that evidence before the Court is ‘repeated and repeated and repeated until…it begins to sounds like it’s true’.[26]
D. The value of hearsay
A significant difference between domestic and international criminal courts is the nature of the alleged crimes. In international criminal courts people are generally tried for crimes that have been committed on a mass scale, in a widespread and systematic matter, over a period of time.[27] The nature of these crimes makes it difficult for the Prosecution to present a case without the use of hearsay evidence. Stephen Rapp, former Chief Prosecutor in the Prosecutor v. Charles Taylor trial, supports the admissibility of hearsay evidence in the Special Court. He commented that while direct evidence usually receives more weight, hearsay evidence does add ‘value’ to the trial. He remarked that ‘particularly when combined with other evidence [hearsay] can provide a very accurate picture of events.’ [28]
Stephen Rapp identified some examples of hearsay evidence, and explained how the admission of such evidence can be used to demonstrate a ‘pattern’ of evidence, contributing to the guilt of the accused:
… it may involve testimony from individuals who have spoken to someone who directly overheard a significant and memorable communication. Other times, it may include information imparted to a witness on a contemporaneous basis – for instance when a witness was standing next to someone who was on the line with the leader and got the relayed message, “attack that village.” There can be situations where a witness has heard reports from persons who say that they were buying arms at the direction of a leader, while others have testified that shortly thereafter groups supported by the leader were found to have arms of the kind that were being purchased. This can show a pattern that the judges can consider together with the totality of evidence.[29]
Complex political, legal, cultural and social factors affect the Prosecution processes of investigating and gathering evidence and presenting a case. Stephen Rapp referred to the difficulties in obtaining evidence for use in international criminal courts, stating that it is important to be able to use hearsay evidence ‘when you are dealing with powerful leaders who pull the strings behind the scenes’. Another example he provided is that hearsay can include the ‘results of a thorough investigation by a reliable independent human rights observer who has received the information on the strict condition that identities will remain confidential’. Rapp emphasised that by restricting admissible evidence to direct evidence, the court will not be making a decision on all available evidence. [30]
E. Trial efficiency
An argument favouring the admissibility of hearsay is in the interests of trial expediency. The Special Court Rules provide that the Trial Chamber ‘shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to…avoid the wasting of time’.[31] The Appeals Chamber in the Fonfana Appeal Bail Decision suggested that the reason for the relaxed rules regarding evidence is to ‘avoid sterile legal debate over admissibility so the court can concentrate on the pragmatic issue of whether there is a real risk that the defendant will not attend the trial or will harm others.’[32] Similarly, in the ICTY the Tribunal has noted that it does not need to be ‘hindered by technicalities’.[33]
A counter-argument is that the Court wastes a great deal of time considering evidence that is given very little weight. A commonly cited problem with hearsay is that it raises peripheral issues that are not before the Court. The rule against hearsay limits the raising of such issues, reducing the time wasted by the Court.
V. Conclusion
Considering the unique mandate, structure and nature of the cases coming before the Special Court, it is submitted that the Judges of the Special Court are capable of evaluating hearsay evidence and using their discretion to exclude evidence that is too prejudicial or unreliable. It is submitted that the Special Court Rules do not need to be amended to limit evidence to direct evidence, as this would have the effect that the Court would not be considering all relevant evidence when making its decisions.
[1] The rule against hearsay applies in criminal, but not civil trials in the United Kingdom. In most jurisdictions there are a number of exceptions to the rule against hearsay. Hearsay is generally admissible in civil law systems.
[2] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, Decision on joint Defence motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95, 24 May 2005, para. 12.
[3] Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7th edition, LexisNexis Butterworths Sydney, ch 16.
[4] Ibid.
[5] Rule 89(C), Rules of Procedure and Evidence of The Special Court for Sierra Leone.
[6] Rule 89(C), Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia; Rule 89(C), Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
[7] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 12.
[8] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, Decision on joint Defence motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95, 24 May 2005, para. 15;Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 24.
[9] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 26; Prosecutor v Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14.
[10] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, Decision on joint Defence motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95, 24 May 2005.
[11] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, Decision on joint Defence motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95, 24 May 2005, para. 19.
[12] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005.
[13] Ibid, para. 26.
[14] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, Decision on joint Defence motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95, 24 May 2005, para. 15.
[15] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 24.
[16] Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7th edition, LexisNexis Butterworths Sydney [Chapter 16, 31020].
[17] Ibid.
[18] Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Decision on Defence application to exclude the evidence of proposed Prosecution expert witness Corinne Dufka or, in the alternative, to limit its scope and on urgent Prosecution request for decision, 19 June 2008, para. 25.
[19] Charles T. McCormick, McCormick on Evidence, 4th edition, 1992, p. 339 and 340.
[20] Prosecutor v. Kordic and Cerkez, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2-AR73.5, 21 July 2000, para 24.
[21] Article 21(4)(e) Statute of the International Criminal Tribunal for the Former Yugoslavia.
[22] The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, Decision on Defence Objection to the Admission of Hearsay, 21 January 1998.
[23] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 29.
[24] Prosecutor v. Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14. This point is firmly entrenched in ICTY case law, see 15 – See for example, Brdanin Order, paras. 5-26 ; Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, Decision on the Motion of the Prosecutor for Admissibility of Evidence, 19 January 1998 (“Delalic Decision”), para. 20.
[25] Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Decision on Prosecution notice of appeal and submissions concerning the decision regarding the tender of documents, 6 February 2009, para. 36.
[26] Transcript of Proceedings, Prosecutor v. Charles Ghankay Taylor (Special Court for Sierra Leone, Lussick, Doherty, Sebutinde JJ., 7 December 2009).
[27] The indictment against Charles Taylor covers crimes committed over a period of seven years, from 1996 to 2002.
[28] Tracey Gurd, ‘Stephen Rapp, Special Court Chief Prosecutor, Answers Your Questions – Part 1’, (2009), The Trial of Charles Taylor at 2 September 2009.
[29] Ibid.
[30] Ibid.
[31] Rule 90(F) of the Rules of the Special Court for Sierra Leone.
[32] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 26.
[33] Prosecutor v Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14.
