by ibakarr | Aug 11, 2016 | Uncategorized
The draft legal aid bill is a creditable attempt at establishing a platform for the improvement of poor people?s access to justice in Sierra Leone. On the one hand, it is a fulfilment of pledges made by the government in the Justice Sector Reform Strategy and Investment Plan 2008-2010 and complies with the Government?s human rights obligations; on the other hand it is clear, practical and achievable. The bill is an effort to create a public/private partnership between government and civil society in the provision of justice services in Sierra Leone. The following are highlights of several aspects of the draft bill that are particularly relevant to civil society organisations providing justice services.
Purpose of the draft legal aid bill 2010
The draft bill aims to provide accessible, affordable, credible and sustainable legal aid services to indigent persons.
Establishment of the legal aid board and civil society representation
? The bill establishes a new legal aid board to manage and regulate provision of legal aid. (s.2)
? Two out of 7 board members will be civil society representatives, one of which must be from a rural area. (s.2)
? Board will decide what types of cases can be eligible for legal aid – and this could also include civil cases. (s.4)
? Legal aid board shall organise training about the legal aid system for all providers and police, magistrates and prisons authorities. (s.11)
Definition of paralegals and others providing legal aid services
The bill sets out a number of definitions:
? “Paralegal” means a person employed by the Board, a government department or civil society organization who provides free legal advice and
assistance and legal awareness education but is not licensed to practice as a legal practitioner.
? “Legal assistants” means law graduates who do not qualify for admission to the Sierra Leone Law School and enrolment as legal practitioners but who have completed a six months training course in practical legal skills accredited by the National Judicial Training Institute.?
? “Legal aid officer” means a person designated by the Board to provide legal advice and assistance at a magistrate?s court where there is no public defender?s office, accredited legal practitioner or accredited civil society organization or university law clinic.
? “Legal practitioner” means any person admitted and enrolled to practice as a barrister and solicitor in terms of the Legal Practitioners Act, 2000.
? “Legal aid provider” means a person employed to provide legal advice and assistance or legal representation in a public defender office, a legal practitioner in private practice accredited by the Board, or a person employed by an accredited civil society organization or an accredited university law clinic to provide legal aid advice and assistance or legal aid representation (s.1).
? “Accredited non-governmental organization” means a non-governmental organisation that has entered into a cooperation agreement with the Legal Aid Board and has been accredited by the Board.
What paralegals and legal assistants can do?
Paralegals and legal assistants (as well as law students and pupils) can provide “legal advice and assistance” which means in respect of both criminal and civil cases:
? providing information about the relevant law and legal processes;
? assistance with alternative dispute resolution;
? advice on legal issues;
? assistance with the drafting of documents other than instruments
prohibited in terms of section 24 of the Legal Practitioners Act, 2000;
? referring cases to legal practitioners;
? doing such other things that do not constitute legal representation. (s.1)
Specifically in relation to criminal cases they can also assist at police stations, prisons and courts by:
? providing defendants with information on rights and procedures;
? facilitating the tracing of sureties for bail;
? facilitating the tracing of parents or guardians of juveniles;
? by notifying witnesses of upcoming trial dates;
? assisting in any other way to ensure that accused persons receive a fair trial. (s.19(2))
What legal aid officers can do?
In minor civil or criminal cases, legal aid officers may be able to refer cases to traditional dispute resolution. (s.17) Legal aid providers can also do this.
What is the cost of legal aid services?
Legal aid is free. Legal aid officers/ organisations cannot charge fees for their services. It will be a criminal offence to demand payment for legal aid services (s.17)
What if there is no legal practitioner present in court?
Where there are no legal practitioners available, the court may allow a friend to assist an accused or civil litigant, free of charge (s.18).
Role of civil society organisations within the draft bill
Civil society organisations and law clinics can provide free legal advice and assistance (s.20) and if they are accredited by the legal aid board, by entering into a cooperation agreement with the board to be a legal aid provider, can provide it on behalf of the board. If the accredited provider fails to fulfil contractual and reporting requirements, the legal aid board may terminate the cooperation agreement with 2 months? notice. Then they may no longer advertise themselves as an accredited legal aid provider (s.15). The board will maintain a register of accredited CSOs who may be called upon to provide legal aid advice and assistance in the provinces (s. 30).
Accredited civil society organisations or law clinics may provide legal aid representation through legal practitioners and if they provide such legal aid representation from funds not supplied by the board, the organisations themselves determine the eligibility rules (s.25).
Who is eligible for legal aid?
For criminal cases, the board must provide a lawyer to all those indigent persons who qualify for legal aid at any stage of proceedings, from the moment of arrest (s.11), within the financial resources of the board. For more detail as to who qualifies see s.23. There is no such requirement for civil cases.
A nationwide approach
The draft bill also states that there should be at least one legal assistant or a paralegal appointed by the board in a neutral office in every chiefdom in the vicinity of the relevant chief?s office to provide legal advice and assistance to such chief?s subjects, public legal education for such chief and their officials and subjects, and where appropriate divert serious cases to the formal justice system. The board may enter into cooperation agreement with CSOs operating in the chiefdoms to carry out these activities (s.22).
Implications for lawyers
The bill requires mandatory pro bono work by all lawyers every year.
General impressions of the bill
? the provision for a mixed model increases the chances of success of the legal aid scheme
? public/private partnership shares responsibility for justice service provision between government and civil society
? it is important that the bill is covers both criminal and civil cases, as many of the most pressing justice needs in Sierra Leone are civil.
? the board is reasonably independent
? good definitions and clarification of roles
? accreditation makes access to public institutions easier.
by ibakarr | Aug 11, 2016 | Uncategorized
The Appeals Chamber of the Special Court for Sierra Leone (SCSL) presided over by Honourable Justice Renate Winter and George Gelaga King, Emmanuel Ayoola, Jon Kamanda and Shireen Avis Fisher being the other Justices on Monday 26th October 2009 delivers its judgment in the appeals case of The Prosecutor against Issa Hassan Sesay, Morris Kallon aka Bilai Karim and Augustine Gbao aka Augustine Bao; First, Second and Third appellant respectively of the former Revolutionary United Front (RUF). The appellants filed a total of 96 grounds of appeal, while the Prosecution filed a total of 3. The Appeals Chamber after allowing in part submissions from both parties, upheld the Trial Chamber’s sentencing judgment of 8th April this year, which sentenced Sesay to a maximum of 52 years in prison, Kallon 40 years and Gbao 25 years with credit for the time they were detained pending trial.
Many Sierra Leoneans were maimed by rebels during the civil war
Photo Courtesy of BBC World Service
The Appellants who were alleged leaders of the former RUF were separately indicted on 18 counts of alleged commission of crimes against humanity, war crimes, and other serious violations of international humanitarian law contrary to Articles 2, 3 and 4 of the Statute of the SCSL. The charges included acts of terrorism, collective punishments, extermination, murder, violence to physical well-being of persons, rape and other sexual violence including sexual slavery, attacks against personnel involved in humanitarian assistance and conscripting or enlisting children under the age of 15 years. Following the order of the Chamber on the 28th February, 2004 for the joint trial of all three Accused persons, the Prosecutor issued a consolidated indictment on the 5th of March, 2004.
The Trial Chamber convicted Sesay and Kallon on 16 of their 18 counts indictment, whilst Gbao was convicted on 14 counts which included acts of terrorism, collective punishments, extermination, murder, violence to life, rape, outrages upon personal dignity, violence to life in particular cruel treatment, conscripting of children under 15 years, enslavement and attacks on personnel involved in humanitarian assistance. The grounds of appeal noted procedural error, error on a question of fact/or law that in some way invalidated the decision of the Trial Chamber. The Appeals Chamber discussed the grounds of appeal for both the Prosecution and the Defence. The Prosecution’s grounds of appeal touched on the issue of the duration of Joint Criminal Enterprise (JCE) that existed between members of the RUF and Armed Forces Revolutionary Council (AFRC) and the total acquittal on count 18, charging taking of hostages. The Defence grounds of appeal inter alia included common elements of alleged defects in the indictment, violation of fair trial rights and participation in a JCE. While the Appeals Chamber dismissed most of the these pleadings, it agreed in part with the Prosecution’s submission among others that communication of threat to a third party is not a requirement for the offence of hostage taking.
The President of the Court, Justice Winter read the summary of the judgment, noting that submissions made by all three appellants were either made outside the scope of appeals or were vague and unsupported. As a result the appellants failed to assist the Appeals Chamber as most of the submissions were dismissed. Addressing the submissions, she noted that the Appeals Chamber dismissed the common submission of alleged defects and fair trial rights, but however stated that the Chamber accept in part Gbao’s appeal in relation to violation of fair trial rights as no notice was given for allegedly being an ideologist and an expert instructor. The Chamber also rejected the submission that members of the RUF did not share a common purpose and found that the common purpose was to exercise political control over the territory of Sierra Leone especially the diamond mining areas. Further the Chamber found that submissions relating to the nexus between AFRC and RUF were without merit and dismissed them in their entirety. Also no merit was given to submissions made by Sesay and Kallon regarding their convictions on the attacks on United Nations Peace Keepers. However, the Appeals Chamber noted that Gbao did not posses the requisite mens rea for the attacks as he remains outside the camp where the offence was committed. They however rejected Gbao’s argument that he did not participate through a JCE in relation to his conviction for collective punishment. The Appeals Chamber noted that Gbao shared the intent to execute 66 Kamajors and rejected his argument that he did not have the power to prevent the offence. They found that “not having the power” to prevent the commission of an offence is not determinative as Gbao was engaged in the investigation of the victims and was also present during the execution.
The Appeals Chamber agrees with the Prosecution and found that communicating threat to a third party should not be a determinant for the offence of taking of hostages as set out in ground 3 of their appeals brief, but dismiss the remainder of the appeal as the Prosecution failed to establish the mens rea required for the crime. By a majority, Justice Gelaga King and Jon Kamanda dissenting, the Appeals Chamber noted that the JCE that existed between members of the AFRC and RUF ended in 1998 and there were reasonable doubts to believe otherwise. They also rejected the Prosecution’s second ground of appeal which touches on Gbao’s acquittal for the use of Child Soldiers and noted that the Prosecution failed to prove Gbao’s mode of criminal liability with respect to the said offence. Concluding on cumulative convictions and sentences, the Appeals Chamber agrees that these were impermissible as all three appellants were convicted on specific offences. The appeals Chamber thus re-write the sentences for all three appellants.
During its final deposition the Appeals Chamber also considers what it referred to as additional/or individual grounds of appeals. They allowed in part all three appellants’ grounds of appeal on enslavement, Acts of terrorism and collective punishment and reverse the verdict for the killing of a limba man. In re-writing the sentences, the Appeals Chamber imposed a global sentence of 52 years in prison for Sesay, 40 years for Kallon and 25 years for Gbao. Pursuant to Rule 119, the Appeals Chamber orders that the judgment take effect at the end of the proceedings. Justice King read the summary of their dissenting opinion which agrees with the Prosecution’s ground of appeal that JCE continued up until 1999 after the Freetown invasion. He noted instances wherein leaders of the RUF where in constant communication with leaders of AFRC through out the stated period. He noted that a reasonable trier of fact would have been open to the fact that JCE continued until February 1999. The Appeals Chamber upheld that the Trial Chamber was justified in imposing lengthy jail term to reflect each convicted person’s culpability.
The RUF trial began on 5th July 2004 after the SCSL joined the cases and consolidated the indictments in early 2004. The Prosecution concludes its case on 2nd August 2006, calling 85 witnesses including 3 experts. The Defence opens its case in March 2007 with the First accused concluding on 13th March 2008, calling 59 witnesses including Sesay and former President Kabba. The Second accused concluded on the 28th March, 2008 calling 22 witnesses. Third accused closed the case for the defence in June 2008, calling 8 witnesses. 3 witnesses were common to Sesay and Kallon and 1 common to Gbao and Sesay. Closing arguments were heard on 5th August 2008 and the Trial Chamber issued its judgment on 25th February 2009, convicting Sesay and Kallon on 16 of the 18 counts charged and Gbao on 14 of his 18 counts indictment. In determining an appropriate sentence, the Chamber listened to oral submissions from all parties on the 23rd March 2009 and delivers the Chamber’s final set of judgment on 8th April this year. The judgment sentenced Sesay to a maximum of 52 years imprisonment, Kallon 40 years and Gbao 25 years with credit for the time they were detained pending trials.
by ibakarr | Aug 11, 2016 | Uncategorized
There can be no doubt that education is a crucial weapon both in the fight against corruption and poverty in Sierra Leone. It can equip people with marketable skills that enable them to find better jobs and hence climb up the social ladder. Education for all helps to reduce the discrimination faced by women. Education for girls demonstrably reduces birth rates by postponing marriage, giving them access to information about contraception, and about better health care for the family, especially for infants, thus lowering infant mortality. Needless to say, education also enables people to acquire information that is critical to the fight against corruption, including things political, stimulating debate and ultimately strengthening democracy and liberty[1].
In recognition of the above and perhaps in response to the President’s call for collective action to rebuild the schooling infrastructure and more important as part of its mandate to examine procedures of ministries, departments and agencies, that the ACC conducted a system review of the Ministry of Education with an aim of providing best practices for improvement. The review itself is a proactive intervention emanating in part from the Commission’s Strategic Plan which was developed in 2008 for a period of five years. Also the review was the outcome of a three day workshop in April 2009 organised by the Commission in collaboration with the U4- Anti-corruption Resources Centre based in Germany on enhancing transparency and accountability in the education sector of Sierra Leone and a managerial accountability workshop conducted at regional levels for senior managers in four ministries, which included the ministry of Education[2]
The intervention of the commission is indeed very timely as noted by His Excellency in his recent speech to parliament that “our country’s once proud reputation as a beacon of quality education is under serious threat”. It is for this reason the commission entitled its findings and recommendations ‘FROM THE ABYSS BACK TO THE ATHENS OF WEST AFRICA’. The report reveals several corrupt practices, anomalies and challenges that are seriously undermining the quality of education in Sierra Leone, which include among others; poor financial management (especially subsidies), cumbersome and fraudulent recruitment process of teachers and the absence of clear and coherent policy to guide key operations in the ministry. This article will discuss some very important revelations in the report and would also make some pragmatic but radical recommendations in line with the ACC’s recommendations as a way of complementing both the effort of the commission and the reform process of the Government
On payment and utilisation of fees subsidy, the ACC found out that the ministry of Finance lacks adequate and updated data on school enrolments, which are used in the calculation of fees subsidy, thus depriving most schools from receiving their required amount. Also there is no codified guideline for the utilisation of fees subsidy which has resulted in the misuse of such funds by heads of schools. It was also discovered that schools and colleges levy illegal charges, which put huge financial burdens on parents. In this regard, the commission recommends that a policy guideline on the payment and utilisation of fees subsidy must be developed, fees subsidy must be paid at the beginning of every year, and heads of schools must make returns on the use of such subsidies to their local councils before the payment of the other subsidy.
Another important issue identified as undermining the efficiency of service delivery in schools concerned the recruitment, promotion, transfer and the rampant absenteeism of teachers. It was discovered that some teachers present false documents, which do not reflect their educational qualification as certified teachers, thus not only draining the ministry’s budget but also undermining the quality of teaching in schools. Again, it was discovered that the recruitment of teachers is cumbersome and consumes a lot of time due to a centralised approvals system. Also, the report reveals that teacher transfers were effected between schools without any reflection in the salary voucher, this results in a problem controlling the transferred teacher. In this regard, the ACC recommends that all newly appointed teachers should commence teaching only when their ED forms have been approved and that the recruitment process should be decentralised at district level.
Perhaps the greatest problem with the Ministry of Education as revealed in the ACC report is the absence of clear and coherent policies to guide decision-making and to enable effective planning. It was discovered that there are no written policies on personnel and human resource development or on records and information management in the education ministry. As such the ministry is in urgent need of clear cut policies to guide its overall operation and improvement of educational service delivery.
The report is very apt in describing the problems facing our educational sector and attempts to provide practical recommendations for reform. However, if the real aim of the report is to make the system effective, efficient and with an increase in quality the report does not fully discuss some fundamental issues which are very crucial to the overall development and reform process of Sierra Leone’s education.
Going through the entire ACC report, though not explicitly written, I discovered that the use of large bureaucracies in educational service delivery in Sierra Leon is a fundamental problem undermining the quality of education. The provision of education has been entrusted to the Ministry of Education, without asking the obvious question whether such a centralised bureaucracy is the right instrument for supplying education. This has come about mainly as a result of the pressure on government after independence to ensure access to education for all. But even though we agree that this is indeed the duty of the state, it does not necessarily mean that education has to be provided through a government bureaucracy. As such, the results of centralising the provision of education in Sierra Leone have been pernicious. A pointer to this fact is the quality of education in government schools cannot be equated to that in the private schools, thus compelling parents to undergo great financial hardships to send their children to private schools which offer a significantly better education.
One problem that is glaring with the provision of education through centralised bureaucracy like that of the Ministry of Education is that it overburdens the Minister as he is responsible for designing and implementing policies, recruitment and monitoring of teachers and other supporting staffs, monitoring the management and operations of schools and colleges and a host of other tasks to name but a few. The task is so daunting that no wonder even after two years in office, the Minister is still grappling with identifying areas to address first. To start, he recognised the problem of ghost teachers and schools as an issue to be immediately tackled, without completing that, he is now working on overhauling the 6334 system. It appears that the large remit has lead to confusion. The effect of this is inefficiency and ineffectiveness in the entire system as has been identified by the ACC because it is impossible for such a large bureaucracy like the ministry of education to effectively regulate and provide such a service like education in a country like Sierra Leone
Due to the problems, it appears that separating the organisation that sets standards from the implementing organisation would be a practical step in enhancing the quality of education in Sierra Leone. That is, the Ministry of Education should be made to concentrate on setting and enforcing educational standards whilst devolving the service delivery aspect to some other bodies, possibly local councils. This separation of task would enhance the transparency of school’s financial management which is a major problem. It will also enable school management committees and parents to find it easier to control what is going on at the municipal or village level.
Another way of reducing the burden on the ministry of education and combating the fraudulent recruitment and transfer of teachers should involve the government establishing a separate body, probably a teaching service commission that would be responsible for the recruitment, promotion and transfers of teachers. Teachers should be recruited by this body and not by the school authorities as is the case now and posted to schools according to the teaching need of such schools. Such a commission will design and implement a guideline on teacher transfer that will discourage the current concentration of the most qualified teachers in the urban areas. This would be done in a cyclical manner so as to encourage teachers to go in the extreme rural areas.
Despite the fact that our educational quality has gone down the drain largely as a result of the ten years civil conflict, the educational policy adopted since independence has also contributed immensely to this down trod development. Much emphasis has been laid on increasing access to education for many with little regard to improving the quality. This is why government gives budgetary support in the form of paying teachers, providing fees subsidy, supplying learning materials, building structures, giving grants in aid to students and other forms of financial support. This tremendous government intervention has been very successful in increasing enrolments in educational institutions from the primary to tertiary level across the country, especially in the post conflict years. However, this policy has created room for the existence of massive corruption which is inhibiting its overall objective; consequently undermining quality mainly because it does not encourage competition. Basic economic theory teaches us that generation and enhancement of quality service delivery is dependent on many variables of which the existence of a healthy competition for market among service providers (in this case School) is only one- and one which actually has a positive influence if only maximising the national profit, i.e. quality education for all, is the utmost aim in our quest for reforms in the education sector. In this case, an element of competition should be injected in our education system.
The government can continue to make education accessible to all by still paying the cost of sending children to school and by also ensuring quality by adopting a more radical approach, different from the current ones. This could be done by replacing the direct budgetary support to schools in the form of the different payments to what Lambsdorff in his ‘Liberty the best remedy against Poverty’ called ‘the system of vouchers’. Under this system, government support would be based on performance. Government would set standards and would concentrate on enforcing these standards. Government assisted schools would not get budgetary support any more and would have to finance themselves. This means students would have to bear all the burdens of payments in the schools including the salary of teachers. The monies government spend on paying teachers and other expenses would be paid as school fees for students who meet the government set standards. And the amount attracted per student would be dependent on the performance of that student. These monies paid as reward for students performance to schools would be in turn use to pay teacher salaries.
As such a school earns based on its quality of service. A teacher who knows that his teaching contract is dependent on how best he performs, like what obtains in the private schools, would be dedicated to his job. A student who knows that his staying in school is dependent on his performance would work hard. A parent who knows that her child financial support from government is dependent on her child’s performance would dedicate much time to looking after her child’s schooling. Such a system would create a very healthy competition among schools, thus enhancing quality. Parents would choose schools on the basis of the quality offered, since the voucher system ensures that they could not divert money for other purposes, consequently minimising corruption. We must not forget that In a market economy, competition on open markets, guaranteed by its legal and institutional framework, improves chances to discover renewable sources and use them according to their opportunity costs. In this case, competition helps to promote best educational systems and spread the constitution of liberty
In summary, this article suggests that for Sierra Leone to move from the abyss and regain its lost glory as the Athens of Africa it needs a radical but realistic approach in its reform process in the education sector. Reform in the form of devolution of power from the centre to the local, creation of an independent body that manages the affairs of teachers and a competitive market in education. Such changes would result in a definite improvement in the quality of education and would increase access as the poor would be given opportunity to good schools not on the basis of money but on performance.
[1] Lambsdorff O. G. ‘Liberty-The Best Remedy Against Poverty’ Occasional Papers of the Liberals Institute of the Friedrich Nauman Foundation-2002
[2] ACC Report on Systems Review of Ministry of Education, July 2009
by ibakarr | Aug 11, 2016 | Blog
Introduction
The Hon. Chief Justice, Umu Hawa Tejan-Jalloh, on Friday 2nd October this year 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 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 | Uncategorized
One of the growing problems facing officials at the Remand Home is the issue of delay in trials. This situation has become too worrisome as some of the juveniles outgrow age limits while in detention awaiting trial, often incite riots.
The Child Right Act of 2007 defines a juvenile as “any human being below the age of eighteen years”. The Sierra Leone government has ratified various International instruments aimed at promoting and protecting the rights of children, including the Convention on the Right of a Child, the African Charter on the Right and Welfare of the child and the United Nations Standard Minimum Rules for the Administration of Juveniles. All of these Conventions are geared towards the promotion of Juvenile Justice and the right of the child, in particular.
Despite the ratification and domestication of some international treaties on child rights by the Government of Sierra Leone,, there are still delays in the trials of Juveniles, which is contrary to both the Convention on the Right of a Child and the Child Right Act. The law provides that juvenile matters as well as all other matter should be tried fairly and in a “reasonable period of time”. While the Sierra Leone constitution does not explain a ‘reasonable period of time , it is generally assumed, and for good reasons, that all trials should be conducted without unnecessary delays.
Article 40 (2) (iii) of the Convention on the Right of a Child states that any Child in conflict with the Law shall “have the matter determined without delay by a competent, independent and impartial authority”. In Sierra Leone, this international provision is not being strictly followed. It is disheartening to know that juveniles are remanded for long periods during trial at the Remand Home and at the end of the trial, those that are found guilty are in some cases not given any credit for time served as is usually the case of adult offenders. Therefore, juveniles serve a longer sentence at the Approved School. , There are various reasons for the delay in trial of juvenile offenders that will be discussed below.
Presently at the Remand Home, there are juvenile offenders that have been tried in different Magistrates’ courts. Preliminary investigations were done and their cases had been committed to high court for full trial since September, 2009. Some of them were charged for various crimes like robbery with aggravation, murder, burglary, and conspiracy to commit felony. Two of these offenders were to appear in court on the20th September 2009, which they did but the case was not heard. The Court Clerk told them that they did not have a judge to sit on their case and as we speak, they are still awaiting trial at the Remand Home.
Another issue is that of age assessment. There have been instances where prosecutors have to argue the defense with regards to the age of juveniles sent for trials. The magistrate will then use his or her discretion by sending the offender for age assessment which in itself is a good idea, but on the contrary helps to delay the process of the trial. Because assessing the ages of these offenders takes a long time and the results are normally delayed, the Magistrate is left with no option but to keep on adjourning the cases.
Another reason for delays could be the absence of the justices of peace. As it is clearly stated in section 4 of Cap 44 of the Laws of Sierra Leone 1960, “The juvenile court should be made up of a Magistrate, with powers to sit on such trial with at least two or more Justices of the Peace. Therefore, the absence of one automatically makes the court to be unconstituted. On many occasions, CARL has observed the absence or lateness of at least one Justice of the Peace during proceedings in juvenile trials.hus the court must stand down for maybe 30 minutes just to await their possible arrival. This in itself causes delays.
The detention centre for juveniles, also called the Remand Home, is supposed to be a place of reformation and rehabilitation of the juvenile on one hand, and of promoting their reintegration and their assumption of a constructive role in society on the other. It is not a place for the punishment of Juvenile Offenders, as stated in (section 20 (5) of cap. 44 of the Laws of Sierra Leone). Delaying their matter in court and keeping them in the detention center for years is tantamount to punishment, even before they are found guilty.
What this article seeks to achieve is to advocate for speedy trials of juvenile offenders, because the slow process of handling juvenile cases has had a huge negative impact on both the first time offenders as well as the probation officers taking care of these inmates. We recently learnt that there was serious riot at the remand home which was allegedly incited by one of the long term inmates at the centre who had spent nine months in custody without a logical conclusion of his matter.
These are just some of the many issues that the officers at the remand home and prosecutors have to cope with. If not properly handled, they will escalate to something else, because when these offenders go on rampages they target officials and use abusive languages, thus posing danger to the security of these officials.
Also, keeping offenders in custody is a waste of tax payer money, as it is costing the Government a lot of money to even take care of their basic needs like food, medication, clothing, etc.
The Center for Accountability and Rule of Law (CARL) is of the view that fair and expeditious trials for juvenile offenders would help bring sanity to the remand home, the community and the country as a whole.
This will also help in reforming the lives of these offenders, and help them to contribute to the development of the country.
