by ibakarr | Aug 11, 2016 | Blog
Introduction
The Constitution of Sierra Leone (1991) contains several provisions which are meant to guarantee accused persons a fair trial in criminal court. These clauses protect against arbitrary arrest or detention and guarantee legal representation for the indigent, as well as providing the right to a trial within a reasonable time. However, in practice, these Constitutional rights are frequently unenforced, or even flouted, within the criminal justice system, and several challenges still face Sierra Leone as it seeks to build a fair, transparent and rights-protecting criminal justice process. This article will examine five particularly critical problems which were identified in the course of two months of research and interviews with judges, magistrates, police, civil society activists, and lawyers across the country as hindering the pursuit of justice for accused persons, namely, the right to legal representation, the use of interpreters, trial delays, juvenile justice, and sentencing reform.
I. Right to Legal Representation
The International Covenant on Civil and Political Rights (ICCPR) exhorts all states to provide legal assistance to all indigent defendants “in any case where the interests of justice so require.” Sierra Leone incorporated this provision into its 1991 Constitution, requiring that Parliament establish a legal aid scheme for indigent persons. However, as of 2009, Parliament has failed to establish a Legal Aid Board, and thus, a large percentage of criminal defendants are still without representation. In May 2009, the Sierra Leone Bar Association launched a Legal Aid Scheme, funded by UNDP, which as of July 2009, had represented 193 clients countrywide and managed to have 88 people released from detention. Even amidst this success, however, the Legal Aid Scheme faces serious problems in attracting attorneys (it currently only employs 15 lawyers, each at 5 cases per month, for a population of 5 million persons) and securing permanent funding to ensure its long-term viability, as its UNDP funding is set to expire by the end of 2009.[i] The Bar Association has noted that the Scheme has been effective at reducing overcrowding in jails and prisons and clearing many cases at the magistrate level, thereby reducing backlogs in the higher level courts.[ii]
II. Interpretation
Section 23 (5) e of the 1991 Constitution guarantees an interpreter, to be provided free of charge, for all charged persons who cannot understand the language used at Court. Because the official language in Sierra Leone’s courts is English, a language not spoken by the majority of the country’s population, interpreters are essential to guaranteeing that the defendant can understand the case against him and participate fully in his own defence. There is a critical shortage of qualified interpreters at all levels of the Superior and Magistrate courts. For example, on several visits to the magistrate court in Freetown in July, there were few interpreters at some of the proceedings. Instead, most witnesses testified in Krio, and lawyers and magistrates communicated with each other in English. As a result of these practices, many defendants cannot understand the communications between their legal team, the prosecution, and the judge, and in cases where the defendant is unrepresented, misunderstandings can prove fatal to the accused’s attempts at preparing his defence. Even where interpreters are provided, there is little training according to interviews with officials within the judicial sector; interpreters lack training in the law and thus can encounter difficulty in explaining legal proceedings. There are also serious ethical issues raised when interpreters are employed on an ad hoc basis, which is common in the courts; for example, in some areas, the prosecutor—or even other accused persons—have served as interpreters. In some instances, in which the defendant spoke neither English nor Krio, the court experienced considerable difficulty in locating interpreters, such as occurred during the high profile 2008 cocaine trafficking case.
To provide defendants with the ability to understand the case against them and prepare their defence, the judiciary must uphold the Constitutional guarantee to an interpreter, and thus commit resources to train a cadre of professional interpreters of the law, skilled in all the languages of Sierra Leone, and should also make an effort to have interpreters in other languages available on retainer if the need arises.
III. Trial Delays
Section 23 (1) of the 1991 Constitution guarantees an accused person the right to a fair hearing, within a “reasonable time.”[iii] However, even those few citizens who have access to the formal courts often cannot realize this right, as delays are rampant at all levels of the court system. There have been reports that some persons have been detained without an indictment for as long as 10 years, and courts have failed to issue a judgment even four years after closing arguments had finished.[iv] Though the past several years have seen the advent of major justice-sector reforms, there still remain several critical obstacles to reducing trial delays, including long preliminary investigations, high court fees, lack of legal representation, poor remuneration for judges and magistrates, and problems bringing witnesses to court. The Preliminary Investigations (PI) system, provided for by Section 108 of the Criminal Procedure Act (CPA) of 1965, allows magistrates to investigate most criminal cases (barring serious felonies such as murder), to determine if there is sufficient evidence to commit the case to the High Court for trial. Though created largely to block frivolous or weak cases in the higher courts, the PI system has produced serious delays in the openings of trials, as well as creating duplication of proceedings, as witnesses must repeat testimony and evidence must be re-presented in the High Court. Most magistrates interviewed during this research have expressed dismay with the delays produced by the PI system but cite several reforms that should be implemented before PI can be abolished successfully. First, and most critically, the police must improve their capacity to conduct investigations and collect evidence, and police prosecutors must be trained in the law in order to reduce the incidence of improper charges. The capacity of the High Court must also be enhanced to handle the increased caseload. There are several options that could currently be employed to speed up the prosecution of criminal cases. One option could be an increase in the number of summary trials, authorized by the CPA, which allow the magistrate to try certain offences (those with a sentence of less than 7 years) instead of committing them to the High Court, as long as the accused consents. Sierra Leone could also follow the example of Ghana, in creating fast track courts which could try certain criminal cases which may be of special public concern. Increasing funding for witness’ transportation and remuneration for days missed at work could also reduce the incidence of no-shows and delays in testimony.
IV. Juvenile Justice
The conditions for juveniles within Sierra Leone’s criminal justice system are dire, as there are major problems in the trial, sentencing and detention phases for juveniles. Article 40 of the Convention on the Rights of the Child urges states to formulate diversion procedures for offences punishable for less than seven years, in an effort to avoid judicial proceedings. Measures included in the CRC include discharge, transfer of the child to a suitable caretaker, or repatriation to the child’s home district. However, Sierra Leone has yet to provide substantial alternatives to traditional incarceration. Sierra Leonean law allows courts to sentence children under 18 years of age to an “Approved School” until the child reaches 18; however, the Human Rights Commission of Sierra Leone (HRCSL) reported in 2008 that courts have violated this rule, sentencing children to terms which would continue even after their 18th birthday. The Child Rights Act of 2007 does include promising provisions expanding the powers of police and court to use diversion options; however, implementation of the Child Rights Act has been extremely slow and these measures are not yet in place.
Sierra Leone has a critical need to construct more juvenile facilities, in Freetown and in the provinces, in order to reduce delays for juvenile trials and to ensure that juvenile offenders are treated in an age-appropriate manner. There has been some notable progress in this area; for example, JSDP recently renovated a courtroom within the Law Courts Building in Freetown to serve as a “Child Friendly Court.” However, there needs to be more focus on recruiting magistrates who focus specifically on juvenile cases (as of July 2009, there was only one magistrate who was dealing full-time with juvenile cases and none in the provinces).[v] Sierra Leone’s juvenile facilities fall short when compared to other West African countries; for example, Ghana in 2007 had 91 juvenile courts.[vi]
Greater focus should be directed towards abuses of juveniles in the local courts as well. Numerous reports across the country indicate that juveniles are often tried in these courts in direct violation of the law. Local Court Chairmen often conduct juvenile proceedings in open court, even in sensitive proceedings, and court monitors have reported cases of harassment of juvenile sexual assault victims in open court by Local Court Chairman, even as the chairmen had no authority to even hear this type of case. Children are also subject to discriminatory double standards in some locales: for example, children often cannot bring an action against an adult for a violation of the law but adults can bring actions against children. In Makeni, Kenema and Bo, court monitors report that children are often asked to pay the same fees as adults; for example, in Kabala, a child was recently sent to the local courts to answer a charge of simple larceny, even though the law required him to be taken to the police, and was subsequently fined 200,000 leones ($58).[vii] When children cannot afford the fines, they are sometimes put into police cells, and some are even sent to state prison for minor offences because of overcrowding.[viii] Conditions are often abysmal; one 14-year-old girl in Makeni was held behind the police counter in a local station, which was unsecured, because of a lack of facilities.[ix] Though there have been reforms, such as the renovation of an Approved School and Remand Home for juvenile offenders, and the removal of all children from Pademba Road Prison in Freetown, there are still reports of children in provincial prisons.
V. Sentencing Reform
Sierra Leone urgently requires sentencing reform, as problems with sentencing contribute heavily to prison overcrowding and hinder access to fair trials for defendants. Many of the sentencing guidelines within Sierra Leone’s criminal laws are seriously outdated, as they are based on British colonial law. For example, Sierra Leone still uses Britain’s Larceny Act of 1916 and the sweeping Offences Against the Persons Act of 1861, which provides a maximum life sentence for rape and for homosexuality among men and imprisonment for abortion providers and women who undergo the procedure. Research at Pademba Road Prison in Freetown revealed that many convicted persons were given long sentences for minor crimes such as loitering and unpaid debts. For example, one female inmate was sentenced to four-and-a-half years in prison for failure to pay a debt 3 million leones ($870 U.S.), while a male inmate interviewed was arrested and sentenced on the same day to 18 months in prison for loitering with intent.
There are also charges that judges routinely violate CPA Section 230:3, which mandates that judges should take into consideration time served on remand. Officials interviewed for this research claimed that judges often ignore this provision, forcing offenders to serve their full sentence after conviction, even if they have spent months, even years in detention.[x]
The criminalization of libel within the Public Order Act of 1965 is also a controversial aspect of sentencing law within Sierra Leone. Part V of the Act contains a provision that criminalizes the publication or distribution of false materials that are likely to “disturb the public peace” or which are “calculated to bring into disrepute” government officials.[xi] Violations are punishable by imprisonment of up to seven years,[xii] and potential bans on publications for convicted newspaper publishers. Recently, there have been arrests of prominent journalists and publishers at the Independent Observer and the Awareness Times, among others, for publishing unfavorable articles about the government. Many civil society groups, including HRCSL, have called for Parliament to repeal the seditious libel provisions, and institute civil remedies in their place.[xiii]
Sentencing in local courts varies dramatically in different jurisdictions and reports of legal violations, including levying of excessive fines, are common. Local courts have legal jurisdiction over criminal cases with sentences of less than six months in prison or up to 50,000 leones.[xiv] However, fines surpassing 300,000 leones for divorces, martial disputes and juvenile crimes are commonly reported. There are also frequent complaints that sentencing in customary courts is discriminatory towards women and juveniles.
To alleviate disparate and illegal treatment in the local courts, the government and civil society groups have been working on increasing the number of paralegals outside of Freetown, who can assist customary officers on matters of formal law. More emphasis should be on continuing to educate both the chairmen of the local courts and chiefs operating illegal kangaroo courts about their proper jurisdictions and enforcing penalties against the illegal exercise of judicial powers.
There is currently a lack of viable alternative sentences in Sierra Leone’s courts, as fines and incarceration are the only remedies available to judges at this time. Because of the prevalence of fines for all but the most serious crimes (i.e., murder, treason), most of those incarcerated are among the poorest citizens. For minor crimes such as petty larceny and unpaid debts, the courts should consider the implementation of community service programs and mandatory educational workshops.
Though there has been a de facto moratorium on executions since 1998, Section 16 of the Sierra Leone’s Constitution still requires the death penalty for crimes of murder, treason, mutiny and robbery with aggravation. There are currently 13 inmates on death row, 3 of whom are women. Thus far, civil society’s attempts to have the death penalty overturned have proven unsuccessful. In fact, in May 2008, new death sentences were handed down to three men convicted of murder.[xv] In December 2008, civil society condemned Sierra Leone’s abstention from a UN General Assembly resolution advocating for a global moratorium on executions.[xvi]
[i] In an interview with Easmond Ngakui, Secretary General of Bar Association, it was learned that after the termination of UNDP funding, the Scheme hopes to receive funding from JSDP for five years until the government can take over control of the program financially.[i]
[ii] 69 of the 193 cases handled by the Scheme were settled at the magistrate level while only 15 were committed to the High Court
[iii] Section 23(1), 1991 Constitution
[iv] Interview with Director of Prison Watch, Freetown, June 15, 2009
[v] Interview with magistrates, Freetown, June 2009
[vi] Afrimap and OSIWA Report on Justice Sector and Rule of Law in Ghana, 2007
[vii] After DCI intervened, it was reduced to 50,000.
[viii] For example, 3 children, aged 9-15, in Kenema accused of verbal harassment were sent to state prison by Local Court 1 before trial because there were no facilities available.
[ix] Afrimap Focus group, Makeni, July 27, 2009
[x] Interviews with civil society activists in Freetown, June-July 2009
[xi] Public Order Act of 1965, Section 32.
[xii] The 7-year maximum sentence is for a repeat offense. Publication of defamatory materials against government officials is punishable by up to 2 years in prison or a 500 leone fine, while dissemination of materials that disturb public order has only a maximum one-year sentence and a fine of up to 300 leones.
[xiii] HRCSL Report: 2008, July 2009
[xiv] Local Courts Act of 1963, Section 13 (3)
[xv] “In August of 2008, civil society groups unsuccessfully lobbied the Constitutional Review Commission to abolish the death penalty.
[xvi] Death Penalty Sierra Leone: Successful Appeal Strengthens Case For Abolition, IPS News, December 12, 2008, Available at http://ipsnews.net/news.asp?idnews=45088
by ibakarr | Aug 11, 2016 | Uncategorized
Court proceedings in both civil matters and criminal cases are mostly laid to rest with the passing of judgement. Once the court has reached its decision, it is mandatory for the court officials to ensure the enforcement of those decisions for fair dispensation of justice. The litigants are also obliged under the law to respect the judgment made by honouring whatever fine or punishment imposed by the court. Yet what most often occurs in the local courts of Bo is contrary to best practise: it is fast becoming habit for court officials in the Native Administrative (NA) Courts I and II in Bo to fail in the enforcement of judgments passed in court. This article will examine specific instances of enforced judgments in the courts of Bo, with specific attention paid to the statutory powers of these courts over litigants. Finally recommendations will be proffered to remedy situations of this sort.
Statutory provisions on the jurisdiction and powers of enforcement by Native Administrative (NA) courts are specifically enshrined in the Amended Local Court Acts of 1965, 1966, 1974 and 1975. On the jurisdiction and powers of the Local Courts, Section 19 (1) states: “A Local Court, acting within the limit of its jurisdiction, may make the like orders and impose the like punishments as may be made or imposed in a magistrate court.” In other words, when a Local Court is exercising duties within its prescribed limits, it may give orders and impose punishments just as a magistrate court. Despite this, on a number of occasions, court officials in the NA courts in Bo have failed to enforce decisions taken even though they have the power to do so.
A case which illustrates this scenario is the civil case of insult brought before the NA Court II in Bo by Mr. Swaray (Plaintiff) against Bobor A. Kaitibie (Defendant). In this case judgment was passed in favour of the plaintiff in May 2007. The court imposed a fine of Le 150,000 which was to be paid by the defendant. To date, the amount has yet to be paid, yet the court has failed to enforce the judgment at the expense of the complainant. Likewise, the civil suit in NA Court I regarding alleged lying by Ibrahim Jalloh (Plaintiff) against Mr. Momodu (Defendant) was reported in July and judgement passed in November 2006. A total fine of Le 135,000 was imposed on the plaintiff by the court, but the fine has not been paid in spite of every effort made by the defendant.
A more serious example can be found in the civil case of trespass (viz., building on family land) brought by Mr. Kamanda (plaintiff) against Mr. Kamara (Defendant) before the NA Court. This case was reported in June and the verdict was given in July 2008. The court ordered the eviction of the defendant and payment of a fine, yet the defendant both refused the payment of the fine and refused to adhere to the court’s eviction order. These unfortunate instances in this part of the country hinder the smooth dispensation of justice and create animosity within the community.
The key issue at play here is that in spite of the powers of these courts to pass judgment in cases and their authority to impose fines and punishments, these powers are not being used effectively. Take the case of the powers of the courts to impose the expenses incurred by the successful party. Section 19 (6) (1) states that the Local Court may in civil cases order the payment of money due, damages, compensation and reasonable costs and expenses incurred by the successful party and his witnesses. This means that a local court may give directives for the payment of money due to the winning party, or for damages, compensation, costs and expenses lost by the latter and his witnesses, and yet this fails to happen in some of the cases before these courts.
The passing of judgment in civil and criminal cases alone is not sufficient to ensure justice. The legal system must also ensure that the decisions arrived at in the courts are followed to the letter. The courts have the authority and power to enforce their decisions, and it is only by the neglect of this duty that these court officials fail to enforce the judgments of the courts and thus prevent the dispensation of justice. The issue of enforced judgment in the Native Administrative courts in Bo is a serious issue of concern to all well meaning Sierra Leoneans who care about the dispensation of justice.
In order to ensure that judgments passed in Native Administrative courts are enforced, thereby ensuring fair delivery of justice, senior judicial officers are to start conducting capacity building training for local court authorities. The interpretation of the Act for local authorities should be offered, and, if possible, a reader friendly version of the Act should be provided for the use of authorities in the local courts. There should be full enforcement of the Act upon all persons found wanting, irrespective of status and affiliation.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
Diversion, in simple terms, refers to a measure for dealing with a child offender other than taking that child to court. Over the years, it has been observed that the police and juvenile courts make very little use of diversionary methods in dealing with children who come into conflict with the law. This has resulted in children being incarcerated for minor offences that could have been settled at home or even at the police station. This practice of incarcerating children without resorting to other forms of corrective measures is now a growing concern among civil society organizations, especially the Sierra Leone Court Monitoring Programme, which has been monitoring and advocating for the rights of juveniles in the country. The formal justice system can be traumatic and can stigmatize the child, and it should therefore be avoided whenever the matter can be adequately handled with an out of court settlement in a less formal way. Article 40 of the Convention on the Rights of the Child urges states to “seek to promote…measures for dealing with such children without resorting to judicial proceedings.”
Diversion is one such way of avoiding judicial proceedings. It can take the form of a warning that future offences will have serious consequences, voluntary acceptance of some form of supervision or counseling, a commitment to attend school or to avoid persons or places associated with the offences, community service, or restitution to and reconciliation with the victim. Of course, alternatives to formal adjudication must be compatible with the rights of the child, which precludes measures such as corporal punishment. On 2nd February 2007, the Committee on the Rights of the Child issued general comment No. 10 on children’s rights in juvenile justice, interpreting the human rights provision for children in conflict with the law. It states, among other things, that for diversion to be effective and fulfill the rights of the child, the Committee recommends that; (a) The child must be allowed to choose in writing whether he or she wishes his/her matter to be handled with an out of court settlement; (b) The child’s parents must also be informed especially when the child is under 16 years of age; and (c) The law should clearly state which cases should be diverted and which ones are not to be diverted. Also, persons involved in making decisions for cases to be diverted, such as the police, prosecutors and other officials, should be controlled and reviewed.
Towards this goal, the Children and Young Persons Act (CAP 44) makes provision for the use of diversion in section 25, which states that,
“Where a child or young person is charged with any offence other than homicide or other than an offence punishable with imprisonment for a term exceeding seven years, and the court is satisfied that the offence is proved, the court may, in addition or alternatively to any other order which may be made, under this ordinance in its discretion either: (a) discharge the child or young person without making any order; (b) order the child or young person to be repatriated at the expense of government to his home district or origin or (c) order the child or young person to be handed over to the care of a fit person or institution being ready to undertake such care.”
But despite the strong legal basis for the use of diversion, these provisions are rarely applied in court except in the few cases where juveniles are repatriated to their homes of origin, mostly at the expense of non-governmental organizations. The detention facilities for juveniles cannot meet their mandate as a result of the lack of basic facilities needed for rehabilitation. While the necessary structures are present, the instruction being given is ineffective, and thus incarcerating children for minor crimes does little to alleviate, and in fact may raise the risk of, recidivism. For instance, the Defense for Children International Report of 2009 states that 4 out of every 15 juveniles charged to court are repeat offenders. This article therefore seeks to explore the relevance of diversion in the juvenile justice system, and thus examines the role of the police, the courts, and informal justice structures and proffers recommendations.
The Role of the Police and Family in Diversion
The police have a very significant and important role to play in diversion. For instance, the Child Rights Act of 2007 makes provision for the strengthening of the Family Support Unit (FSU) within the Sierra Leone police and gives it the mandate to fully deal with juvenile cases. Together with the probation officers, police officers can initiate diversion after informing the parents or guardians of juveniles. They are also mandated to delve into the background of the child to see whether diversion especially ought to be used, for example, when the crime is less serious and the juvenile is a first time offender. This power conferred upon them has created conflict between the FSU and the usual crime officers, as the latter wish to take over certain juvenile cases, especially those of a serious nature. It is unfortunate that some juveniles are charged to court without the knowledge of their parents, as this practice to a large extent hinders diversion as the parents or guardians also have a substantial role to play in the process. Section 23 of CAP 44 states that,
“Where a child or young person has been found guilty of an offence for the commission of which a fine, compensation of costs may be imposed, and the court is of the opinion that the case would be best met by the imposition of a fine, compensation or costs, whether with or without any other punishment, the court may in any case and shall if the offender is a child, order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person unless the court is satisfied that the parent or guardian cannot be found or that he has not conduced to the commission of the offence by neglecting to exercise due care of the child or young person.”
The parent may, however, appeal against such an order in the Supreme Court. However, this responsibility clearly shows that it should be mandatory for parents to be informed of the arrest of their children.
Of course, in some cases, complainants refuse to accept diversion because of a family feud, and prefer going to court. The FSU and Probation officers should probe into such matters and find a way of settling the dispute rather than allowing the child to be charged to court. As an example, in one case a boy was charged with stealing a small amount of money and was taken to the police station. The parents of the boy wanted to pay the said amount, but the complainant refused on the grounds that she wanted to teach them a bitter lesson, and the case was sent to court. This was a less serious matter that should have been settled at the police station but was not because of grudge between the two families. The police can play a powerful role in mediating such disputes, and thus also help prevent the court from overflowing with cases, causing delay in the juvenile justice system.
The Role of the Court
The court too can be instrumental in promoting diversion in cases involving juveniles, yet it makes very little use of such provisions prescribed under CAP 44, most likely because the structures are not present to promote such practices. The Magistrates are left with no option but to send the children to the Approved School after conviction. The Ministry of Social Welfare, Gender and Children’s Affairs responsible for providing such funds cannot meet their obligations as a result of underfunding. At times, the parents or guardians are not present during court proceedings, often because they are unaware, and it becomes very difficult for the magistrate to institute diversion in such cases. A case in point is that of a boy who was charged to court for assaulting a lady. He pleaded guilty to the offence, and none of his relatives were present in court that day, so he was automatically sentenced to the Approved School for six months. The boy was a first time offender and, according to his statement, it was the lady who first slapped him. After the sentencing, the lady was jubilant as if it was the outcome she had desired.
The Establishment of the Child Panel
The Child Rights Act makes provision in section 71 (1) for the establishment of the Child Panel in each district in the country, and it shall have non-judicial powers to mediate in civil and criminal matters concerning children. The Child Panel shall give the child the permission to express his or her views freely and shall seek to promote reconciliation between the child and the offended person. A child appearing before the child panel can be warned that if such offences are repeated that he or she can face the juvenile court. They are mandated to impose a community guidance order on the child with the consent of both parties by placing the child under the supervision of a person of good standing within the community, as well as making the child propose an apology, make restitution to the offended person or offer service to the offended person. But the establishment of these structures is yet to be materialized, and the only means of trying juveniles at present is the juvenile court. It is therefore incumbent upon the Ministry of Social Welfare, Gender and Children’s Affairs to see to it that these panels are set up in every district to aid diversion. Were these structures present, minor cases such as the ones outlined above could have been dealt with in a less formal way, giving the child the right to express his or her views openly and without fear. There are many cases of such nature where diversion would likely be the best option.
The Setting up of Village and Chiefdom Welfare Committees
The Act also makes provision for the setting up of Village Welfare Committees and Chiefdom Welfare Committees, which are informal courts set up to deal with offences other than homicide, treason, armed robbery, and similar crimes. The Child Welfare Committee, when unable to handle some cases, can transfer them to the Chiefdom Welfare Committee. These institutions cannot incarcerate juveniles and do not have the mandate to punish, imprison, impose a fine, or order damages. Their mandate is to issue advice or instruction to the parties involved. Since they are informal courts, the child is also given the opportunity to express his or her views openly. These institutions are also yet to be set up. Village Welfare Committees are present in some parts of the country, but lack of finance and trained personnel are rendering them useless and incapacitated. It is our view that if these committees are properly established, they could greatly assist in promoting the use of diversion and thus better serve the interests of justice for juvenile offenders.
Conclusion
It is evident that the promotion of the use of diversion in the juvenile justice system should be a priority. Allowing children to be charged to court for reasons such as parental lack of awareness, personal conflicts, and inadequate training or resources is not only unfair to the child, but does little to promote the welfare of society by helping the child to become a law-abiding citizen rather than a recidivist offender. The Ministry of Social Welfare, Gender and Children’s Affairs must ensure that these structures are put in place to aid the process of diversion by enabling the appropriate officials and committees who can help the diversion process.
by ibakarr | Aug 11, 2016 | Blog
Corruption has proven to be a major stumbling block in establishing an effective and modern state in Sierra Leone and constitutes a primary reason for Sierra Leone’s low development when compared to other states. However, an attempt to provide a single definition for corruption will encounter legal, criminological and political problems. Therefore, it is more effective to focus first on identifying the broad categories of corruption one is likely to encounter. Then one can then more easily spot commonalities and thus place other, more specific types of corruption into the larger categories. For example ‘’Grand’’ and ‘’Petty’’ corruption can be seen as two umbrella terms under which other forms of corruption can fall. Grand corruption is that type that pervades the highest levels of a national government, leading to a broad erosion of confidence in good governance, the rule of law, and economic stability. Petty corruption, on the other hand, can involve the exchange of very small amounts of money, the granting of minor favours by those seeking preferential treatment, or the employment of friends and relatives in minor positions. Using these broad terms, one can then identify specific forms of each category which are of serious concern to our community. Bribery, embezzlement, fraud, extortion, abuse of discretion, favouritism, nepotism, clientism, and improper political interest are all forms of corruption that fall under those two broad categories.
Though Sierra Leone ranks at the bottom of the United Nations Human Development Index, with a majority of its inhabitants living in squalor below the poverty line, the government has made significant gains over the years by shattering the taboo that barred the discussion of the types of corruption mentioned above, particularly in diplomatic circles and in government institutions. Today, corruption is topical and is openly discussed in various circles in society, even amongst those who are widely criticized as corrupt. The development of the National Anti-Corruption Strategy (NACS) and the promulgation of the Anti-Corruption Act in February 2000—which eventually led to the establishment of the Anti-Corruption Commission (ACC)—represented significant strides by government in the fight against this menace in Sierra Leone. In the years since, the ACC has won several battles in the fight against corruption, foremost of which is the enactment of the 2008 Anti-Corruption Act, which endows the ACC with the power to independently prosecute and punish corrupt persons. Sierra Leoneans now witness instances of public officials being charged for alleged corruption and some even being punished after a guilty verdict in a court of law. It thus appears clear that in the ongoing battle against corruption, the Anti- Corruption Commission has achieved significant victories since its inception.
Because corruption affects every facet of the country’s socio-economic, political and cultural landscape, there has naturally been a realisation that government alone cannot fight this battle. The need exists for a very powerful coalition comprised of interest groups and civil society organizations, which focuses on augmenting the work of the Anti-Corruption Commission.
This article explains the significance attached to having auxiliaries to the Anti-Corruption Commission work together to fight corruption in Sierra Leone. The work will require that civil society become deeply involved in this fight, as anti-corruption policies and practical measures are most likely to succeed if they enjoy the full support, participation and “ownership” of civil society. Specifically, these measures will be effective only if civil society plays a critical role in assessing the extent of corruption and its harmful effects.
Over the years, civil society has made tremendous efforts to raise awareness about corruption and the damaging effects it has on the welfare of Sierra Leoneans. Corruption not only distorts economic decision-making, but also deters investment, undermines competitiveness and weakens economic growth. It is a fact that economic, political, social and legal aspects of every country are linked together and corruption in any of these will impede development in them all. Without vigilance and countermeasures, corruption can occur anywhere. Although civil society has been engaged over the years in this fight, a strong and unified coalition of civil society organisations would better utilise this important sector. Specifically, it would allow prompt action on corruption related issues through press releases and publication of articles for the attention of both the Anti-Corruption Commission and the population, both nationally and internationally.
Systems in which individual offices, departments or agencies operate in isolation from one another tend to be more susceptible to corruption. The reason may be that in more coordinated systems, individual elements tend to communicate regularly with one another and carry out ‘’monitoring’’ both of activities and individuals. As civil society often assume the role of a watchdog for institutions in Sierra Leone, it is important that it works together to critically monitor the activities of government institutions. Take, for example, the Local Councils; the Local Government Act of 2004 requires that the councils display their incomes and expenditures for every month for public consumption. There are several important questions regarding implementation whose answers can likely only be supplied by a unified civil society. For instance, how many of the nineteen councils are disclosing this information monthly? Also, what actions have been taken by civil society when councils breach this arrangement? By having knowledge of these issues, civil society organizations can provoke the councils’ compliance with the law and thus promote transparency and accountability. A well coordinated, apolitical civil society coalition will not only unearth corrupt practises but will also act as a catalyst for finding and achieving solutions.
The critical goal of transparency is created by such elements as access to information and the activities of a healthy independent media. A free media is a powerful instrument, not only for exposing corruption and holding those responsible legally and politically accountable but also for educating the public and instilling high expectations for those in public office to act with integrity. A transparent, healthy and responsive media will coordinate with a meaningful civil society coalition to educate the public and instil high expectations of integrity, which will help the fight against corruption.
It is important to involve victims in any plan aimed at reducing corruption. Anti-corruption initiatives, and the interest of donors who support such efforts, tend to be more focused on those paid to fight corruption rather than those victimized by it. Victims are often socially marginalized individuals and groups who are harder to reach, but they have an important role to play, particularly in areas such as demonstrating the true nature and extent of the harm caused by corruption. As victims are often the strongest critics of anti-corruption efforts, securing their support and intervention can also assist greatly in establishing the credibility of the Anti-Corruption Commission and forcing public officials to be mindful of their activities.
In order to deter illicit enrichment, civil society organisations should work in concert with the Anti-Corruption Commission to increase transparency with respect to assets declaration and liabilities of public officials This can be done by ensuring that public officials not only declare their assets but that they do so with transparency. A well coordinated civil society coalition will assist the Anti-Corruption Commission in ensuring that disclosure with respect to associates and relatives of officials is achieved, as it is not unusual for officials to use family members as a conduit for ill-gotten gains.
The main purpose of whistleblower laws is to provide protection for those who in good faith report cases of maladministration, corruption and other illicit behaviour within their organizations. Experience shows, however, that the existence of a law alone is not enough to instil trust in would-be whistleblowers. Thus, protection should be accorded, as well as compensation should victimization or retaliation occur. It is critical that civil society organisations work to protect whistleblowers to prevent marginalisation of these individuals by superior authorities for reporting corrupt practises.
Yet another way by which civil society can be involved in the fight against corruption is to promote the idea of “integrity pacts” and maintain a presence at the signing of these agreements. These pacts should focus on specific contracts or transactions rather than ongoing institutional arrangements. Those involved in a specific process, such as bidding for a government contract, should be asked to enter into an integrity pact in which everyone involved agrees to observe specified standards of behaviour not to engage in corrupt practices. Such pacts can be of a contractual nature and could be linked to the contract, permitting litigation if one of the parties to it is found to be in breach. This strategy results in lower public costs, and the transparency of the process reassures participants and the public that neither the process nor the outcome has been tainted by corruption.
To ensure effective contract monitoring, it is important to maintain transparency throughout the entire bidding and contract execution process, as corruption can occur at any stage of contracting. An atmosphere should be created in which transparency is presumed and expected and in which confidentiality must be justified. Much of the most effective monitoring of the bidding process and the awarding of contracts should be done by competitors and civil society organizations, and all relevant documentation and information should be made available or, where feasible, posted for public consumption. Documentation should include all decisions regarding the bidding process, including the evaluation criteria utilized, the reasons for the decision, the identities of bidders and a list of unsuccessful bids. Similar standards should apply to the execution of the contract, with particular attention to any changes in performance criteria or remuneration provisions.
In conclusion, it is evident that responsibility for the fight against corruption should not lie only with the government through the Anti-Corruption Commission; it is a national priority that ought to include by civil society organisations who can better entrench it in the hearts and minds of Sierra Leoneans. If we are to raise this country from where it is today, at the nadir of the UNDP index, to greater heights, there should be concerted efforts on the part of all civil society organisations to effectively augment the activities of the Anti-Corruption Commission and foster a strong fight against this pandemic through several key strategies, including coalition-building, increased transparency, involvement of victims, and integrity pacts, among other initiatives discussed above.
by ibakarr | Aug 11, 2016 | Uncategorized
T he lack of effective justice delivery system has always been one of the major concerns for Sierra Leoneans as it contributed significant to the decade long civil conflict. During the war years, almost every state institution was virtually crippled with the justice sector, particularly in the provinces least spared from the wanton destruction. Seven years after the war was officially declared over, inhabitants of the northern region still continue to face this malaise despite the genuine effort of the Government and its partners to reform the system Those efforts are being systematically undermined by the activities of certain individuals in positions of authority as chiefs in the northern part of the country. The chiefs have continue to set up the technically illegal courts all over, which has become inimical to enhancing the administration of the rule of law in that part of the country. The setting up of illegal courts known as chief’s courts or kangaroo courts in almost every community has created an unhealthy competition with the statutorily established local courts in clear contravention to section 40(1) a & b of the Local Court Act, 1963. The said section states that any person who shall “(a) within the area of jurisdiction of any duly constituted local court exercise or attempt to exercise judicial powers, otherwise in accordance with the provisions of any act or (b) sit as a member of such court without due authority shall be guilty of an offence…” This practice has become the vogue in particularly the rural areas with negative consequences on the poor, illiterate, and unsuspecting populace as will be discussed in this piece.
Section 13(1)(b) of the Local Court Act, 1963 states that the local court shall have jurisdiction to hear and determine “ all civil cases governed by customary law other than cases between Paramount Chiefs or tribal authority involving a question of title to land”. This provides for the local courts to have authority to hear and determine disputed questions of law in all civil matters as sanctioned by the customary law of the realm, save for matters between Paramount Chiefs and those involving title to land. There is no provision in the Act that mandates the setting up of courts that are analogous to the local courts in the various chiefdoms in the provinces. Yet, in spite of this unambiguous provision, there has been a proliferation of parallel courts being referred to as kangaroo courts in the northern part of the country that are purely administered by the chiefs in the locality. Most unfortunately, perhaps, is the fact that these kangaroo courts have not only usurped the powers of the local courts, but have unlimited jurisdiction in both civil and criminal matters, contrary to the Courts Act, 1965.
There have been spurious arguments by some local authorities for the growing number of such courts in the region. Some hold it that the language and procedures used in the kangaroo courts is friendlier to litigants than those used in the local courts thus making justice more easily accessible. A presiding chief at a kangaroo court can, with audacity, order the arrest and subsequent prosecution of any person suspected to have committed an offence in the community without recourse to the technicalities of the penal code of the land. Moreover, in the case of civil wrongs, the presiding chief can, with alacrity, setting all formal procedures aside, invite parties in dispute and expeditiously, most often the same day in fact, settle the matter. This they claim is hardly the practice in the local courts. Furthermore, because of the clout the chiefs enjoy, as custodians of the laws and customs of their respective domains, in the rural settings, the majority of kangaroo court users are more inclined to respect the judgments of the chiefs as compared to that of the local courts.
The arguments advanced in the preceding paragraph are absurd in every respect as it relates to the administration of justice in civilized societies. The establishment of illegal courts for specious reasons as discussed is adverse for an emerging democracy like ours that is still grappling with the tenets of the rule of law. It runs contrary to both the grain and spirit of the Local Court Act, 1963 and the Constitution of Sierra Leone , Act No.6, 1991. Such courts have no jurisdictions in both civil and criminal cases and therefore their decisions do not have the force of law as they have not been statutorily established by an act of parliament. That aside, the language and procedure; and expediting cases are all hallmarks of the administration of justice in local courts thus defeating the arguments put forward earlier.
The dangers of having kangaroo courts operate in the rural areas cannot be overstated. An established rule in almost all judicial systems is that they must have an appellate system. That is, if a party is aggrieved about a verdict of a court, that party is given an opportunity to challenge such verdict in a higher court of law until it reaches the highest court of the land which decision is then final. This rule is markedly provided for in section 30(1) of the Local Court Act, 1963 which states that “any person aggrieved by any order or decision of a local court may, instead of appealing to the District appeal court, appeal to the Group local appeal court within fifteen days from the decision of the local court…” But unlike the local court, such ingrained provision is not applicable in the case of decisions in kangaroo courts. A decision or order from a kangaroo court cannot be challenged nor overturn; affected persons do not have the opportunity to appeal. Such a practice has the tendency to make aggrieved parties predisposed to the use of extra-judicial means to settle disputes thereby putting the hard-won peace imperil.
The kangaroo courts have, on a number of occasions, come in direct conflict with the local courts in the administration of ‘justice’. Any time such is the case, the local court officials are made a foolery. The question then is; why do we need the local courts, whose officials are recognized by the Government, when their decisions do not hold water whenever it conflicts with those of the chiefs’ courts (kangaroo court)? Let us retrospect a case between the Chairman of Local Court No.1 in Bombali and one Pa Kaprr Bana, a local chief. The matter involved a debt dispute between one John Koroma and a Mary Sesay; the former reported the case to the said local court to reclaim his money from the latter. No sooner had the case reached the Court than the chief, Pa Kaprr Bana, requested that the Court Chairman should transfer the case to his kangaroo court. The Chairman, for unexplained reasons, immediately did at the chief’s behest. The complainant was not happy with the transfer as he claimed that the said chief had an affair with the accused thus the likely of justice not being done in the matter; and that beside the said case was not within the jurisdiction of the said chief. The matter was heard with the ends of justice not been served.
Furthermore, whereas section 34(2) of the Local Court Act, 1963 states that the “functions of the judicial adviser shall include the advising of the local court in matters of law and organizations, the training of court personal and the exercise of the power of review …”, the same could not be said of kangaroo courts in the region. With no checks and balances put in place to address issues such as gross dereliction of duty, kangaroo courts have been to a business-like enterprise. Most of the chiefs that preside in these courts use them as a means to cater for their families and other relations. As such, they most often impose exorbitant fines on the poor, unsuspecting masses in order to meet their growing responsibilities. This is mostly the case when ‘strangers’, that is, people who are not descendants of the chiefdom where the case is being heard are involved. Where one of the parties is a ‘stranger’ and financially comfortable, exorbitant fines are deliberately imposed in order to exploit the wealthier ‘stranger’ client with the indigent indigene made not to pay the amount that has been imposed. The fines collected during such sittings are neither accounted for, nor are they used for the development of the chiefdom. The chief has unlimited control over how the money is spent; the bulk of which is expensed to cushion the hard economic realities faced by the overwhelming majority of people in this country. In addition, kangaroo court officials do not have opportunities for trainings in human rights and the rule of law, perhaps partly the reason for the appalling violations of human rights.
The rule of law and not the rule of man should prevail all over the country with the north being no exemption. Therefore, the issues highlighted in the above paragraphs need to be given the utmost attention for the consolidation of peace in particularly the northern region. The chiefs should be made to understand their roles in this modern-era of democratic governance. Judicial duties, they must be told, is purely the business of the constitutionally-established courts and not that of the chiefs. The Government should emphatically discourage the setting up of such courts with stringent measures to be taken against defaulters. Moreover, the number of local courts should be increased as where there is none, the people have no alternative but to go to a kangaroo court. Finally, the public also needs to be sensitized on the fact that ‘chief’s courts’/kangaroo courts have no jurisdiction to hear and determine any disputed questions of law. It is hoped that these measures, if implemented, will help entrenched the rule of law in the north and by extension consolidate the hard-earned peace in the region and the country at large.
