by ibakarr | Aug 11, 2016 | Uncategorized
Following the long drawn out investigations by the police in connection to the alleged illegal landing of a Cessna plane at Sierra Leone’s international airport at Lungi in July 2008 suspected to have been carrying substances believed to be cocaine, a warrant of arrest was finally issued by Judge Nicholas Browne Marke on Tuesday, 9 December 2008 and was instantly executed by the police, albeit almost five months since the incident took place. The accused were all arrested at the Central Maximum prison at Pademba Road, having been held in custody whilst standing trial for offences of Unlawful possession of small arms; Unlawful entry; Malicious damage to the perimeter fence; Unlawful landing; Conspiracy for unlawful landing; Conspiracy to pervert the cause of justice; and Conspiracy to aid the escape of fugitive offenders with the aim of perverting justice; all contrary to the laws of Sierra Leone.
After their arrest, a seven-count indictment was proffered and include the following: Importation of a prohibited drug without lawful authority contrary to Section 7(b) of the National Drugs Control Act No. 10 of 2008 (as amended); Accessory before and after the fact to importation of a prohibited drug without lawful authority contrary to law; Misprision of felony contrary to law; Possession of a prohibited drug without lawful authority contrary to Section 8(a) of the National Drugs Control Act No. 10 of 2008 (as amended); Conspiracy to import a prohibited drug without lawful authority contrary to law; and Knowingly and wilfully displaying a false mark on an aircraft contrary to Section 57(1)(b) of the Civil Aviation Act No. 2 of 2008. However, although all the accused are being prosecuted in connection with the same incident, they are charged separately on different counts.
Appearing in Court on Wednesday, 10 December 2008, the lead prosecuting counsel, Principal State Counsel, Gerald Soyei, made an application for leave to the Presiding Judge in order for the prosecution to be allowed to call formal witnesses, all police officers, for the identification of accused persons pursuant to Rule 10 on Indictment. His Application was granted and he called three witnesses who took to the witness stand one after the other where they were sworn on oath. After the usual protocols – name of witness, address, profession, designation, etc – they were led in evidence by the prosecution.
The First Accused, George Aritstizabel Archilla, was charged with importing a prohibited drug; conspiring to import drug without lawful authority; importing and possessing a prohibited drug; misprision of felony; and knowingly and wilfully displaying a false map on an aircraft; all contrary to the laws of Sierra Leone. After responding to questions from the prosecution about the warrant of arrest, the Prosecution Witness, Detective Police Constable 5927 Ibrahim Kamara, attached to the Criminal Investigations Department Headquarters in Freetown was asked: “Is the person, George Aritstizabel Archilla, whose name appear on the warrant of arrest, having been tendered as an exhibit, and whose name appear in the Indictment, now before this Honourable Court?” He answered in the affirmative and went on to identify the accused in the dock. The same charges were also proffered for the Second and Third Accused, Victor Manuel Araujo Lastreto (Jr) and Julio Cesar Morales-Cruz respectively; and the same protocols observed.
A different indictment was however, proffered for the Fourth Accused, Mohamed Bashil Sesay, (aka.) Ahmed Sesay. He was arrested at the Pademba Road Prison on Tuesday, 9 December 2008. The Statement of Offence for the said accused read: Conspiracy to import a prohibited drug; and Accessory before the fact of importing a prohibited drug. An accessory before the fact, according to Black’s Law Dictionary Seventh Edition, is a person who assists or encourages another to commit a crime but who is not present when the offence is actually committed. The same charges were proffered for the Fifth, Sixth and Seventh Accused, Hassan Karim Sesay, Patrick Moriba Johnson, and Chernoh Momodu Bah respectively and the usual protocols in the preceding paragraphs were observed.
The Eighth Accused, Harvez Steven Perez, who was the First Accused while standing trial for offences relating to the current indictments in the Magistrates’ Court presided over by Tarawallie Deen, was also arrested at the Pademba Road Maximum Prison at around 17:40hrs on Tuesday, 9 December 2008. He stands charged on two counts: Conspiracy to import a prohibited drug; and Accessory after the fact of importing a prohibited drug. Black’s Law Dictionary Seventh Edition defines Accessory after the fact as an accessory who knows that a crime has been committed and who helps the offender try to escape arrest or punishment. The Ninth Accused, Gerardo Quistana Perez, was also charged with the same offence and the same protocols observed.
Another Prosecution Witness, Detective Police Constable 5644 Claude Brima, attached to the Criminal Investigations Department Headquarters in Freetown was the next to take the witness stand. After answering to questions from the prosecuting Principal State Counsel, Gerald Soyei, about the warrant of arrest, he identified the Tenth Accused, Yeimy Fernadezleandro, who was indicted on two counts: Conspiracy to import a prohibited drug; and Accessory after the fact for the importation of a prohibited. As in the preceding cases, same protocols were observed.
The Eleventh, Twelveth, Thirteenth, Fourteenth, Fifteenth, and Sixteenth Accused, Alex Romeo, Ibrahim Mohamed Manley, Badara Allieu Tarawallie, Ebenezer Adetunji Macauley, Alimamy Kabia, and Sajoh Sarr respectively, were all charged for: Conspiracy to import a prohibited drug; and Accessory after the fact for the importation of a prohibited drug. They were all arrested on Tuesday, 9 December 2008, at the Pademba Road Prison on warrants of arrest signed by the Presiding Judge Nicholas Browne Marke and executed and endorsed by Detective Police Constable 5644 Claude Brima attached to the Criminal Investigations Department Headquarters, Government Wharf in Freetown. They warrants were all tendered as exhibits in Court.
The Seventeenth and Eighteenth Accused, Martha Pinieres and Mohamed Musa Kamara respectively were indicted on different counts. The former, the only female amongst the accused, had only one charge proffered against her: Conspiracy to import prohibited drug; while the latter was charged on two counts: Conspiracy to import prohibited drug; and Accessory before the fact to import a prohibited drug. The Third Prosecution Witness was Detective Police Constable 7964 Adama Kanu, attached to the Criminal Investigations Department Headquarters. From the witness stand, she identified the Seventeenth Accused as the person whose name appeared in both the warrant of arrest and the Indictment. She then, before being released from the stand, tendered the warrant of arrest as an exhibit. The Eighteenth Accused was identified by Detective Police Constable 5644 Claude Brima, attached to the Criminal Investigations Department Headquarters, Government Wharf in Freetown. He also tendered the warrant of arrest as exhibit before the Court.
The defence comprised of Crispin F. Edwards representing the First, Thirteenth, and Fourteenth Accused; James Fornah-Sesay representing the Second, and Eleventh Accused; S.K. Koroma representing the Fifth, Tenth, and Seventeenth Accused; Roland S. V. Wright representing the Fourth Accused; Solomon A. J. Jamiru representing the Third Accused; David B. Quee representing the Seventh Accused; A. Manley-Spaine representing the Sixth Accused; Easmon Ngakui representing the Twelveth Accused; M. S. Turay representing the Eighth, Ninth, Fifteenth, and Sixteenth Accused; and M. Sesay representing the Eighteenth Accused.
The lead prosecuting counsel, after consulting with the Director of Public Prosecutions, Oladipo Robin-Mason, respectfully requested for an adjournment; a date to be set by the Court for the commencement of the actual trial. The Application was granted; they presiding Judge ordered that copies of Indictment should be served on the defence seven days before the date of trial.
The defence counsel for the Sixth Accused, A. Manley-Spaine, most respectfully asked for the sitting Judge to give considerations for bail applications on the adjourned date which the Judge promised to give. He however, cautioned the defence, especially those representing foreign nationals to adequately substantiate their applications for bail. He went on to state that it should go more than merely stating that they had very reliable sureties that were prepared to meet whatever bail conditions that the Court might be predisposed to impose. Such applications were very likely not to be successful. He concluded by adjourning the said matter for Monday 22 December, 2008.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The 10th December 2008, marked the 60th Anniversary of the Universal Declaration of Human Rights (UDHR) with the theme: “Dignity and Justice for All”. This landmark document was the first to articulate the rights of all peoples. It was adopted without a dissenting opinion in 1948 as “a common standard of achievement for all peoples and nations”. It has over the years served as an inspirational source for numerous international treaties, declarations; conventions as well as national constitutions.
Sierra Leone is a beneficiary of the Declaration as Chapter Three of the 1991 Constitution espouses most of the rights enshrined in the Declaration particularly civil and political rights. However, while the adoption of the rights enshrined in the UDHR in our constitution, and the ratification of subsequent human rights treaties and conventions emanating from the ideals of the Declaration could have taken the country into the fold of the international human rights community, the realization of these rights by its citizenry especially in the area of justice delivery has remained most undesirable.
Sierra Leone operates a dual legal system which incorporates customary law defined under Section 170 (3) of the Constitution of Sierra Leone 1991, as “… the rules of law which by custom are applicable to particular communities in Sierra Leone”, and the general law system which is based on statutes and English Common Law. Customary Law is mainly practiced in rural Sierra Leone, while the general law is concentrated in the nation’s capital, Freetown; albeit it mere existence in regional and district headquarter towns. This article examines the justice system in the provinces, highlighting the barriers faced by its users in accessing justice in the formal courts.
Problems
Undue Delays in Trials
Pivotal to the rights to fair trial set forth in the Declaration is the right of the accused person to expeditious trial. Section 23 (1) of the Constitution of Sierra Leone Act No. 6 of 1991 replicates this when it accords persons charged with a criminal offence the right to a “fair hearing within a reasonable time” by a competent court However, this provision still remains a myth in the justice system of Sierra Leone. While several initiatives aimed at reforming the justice system have been instituted, trials continue to be marred by excessive delays in the provinces. The cases of the IG v. Saffie Koroma and The State vs. Patrick Sankoh Sesay, both of which were murder cases before the High Court in Makeni, Nothern Sierra Leone, lends credence to this. The former, being recently thrown out of court for lack of evidence lasted for more than forty-two months; while the latter matter was first brought to court in 2006 and stills remains in the court’s docket. The situation is the same in the Southern Regional Headquarter town of Bo. In the IG vs. SLP Sergeants Abdul Kamara and Idrissa Sesay and IG vs. Ifeanyi Nwadialor, the accused persons, charged with unlawful possession of drugs, have spent five and four months respectively in detention with little progress in prosecuting their matters. Worst even is the fact that a plea has not even been entered for the accused in the latter case in spite of the matter being charged to court and several appearances being made.
The right to a speedy trial, especially of persons in detention is an entrenched clause in the Constitution of Sierra Leone, meaning it should not be derogated. Aside from the fact that the safeguard prevents undue delays and prolong detention during trial, the right to a speedy trial is also designed to minimize anxiety and uncertainty accused persons usually encounter in the face of public accusations of criminal act. It also limits the possibility that long delay will impair the ability of an accused to defend himself. The passage of time may lead to the loss of key witnesses through death or other reasons and the blurring of memories of available witnesses. Over and above, “there is a society interest in providing a speedy trial which exists separate from and at times in opposition to the interest of the accused.” [i]
The UN Human Rights Committee provides an insightful guidance in determining the reasonableness of the length of proceedings, which according to the Committee has to be assessed based on the circumstances of the case. It must take into account the complexity of the matter, the accused’s conduct and the manner in which the matter is dealt with by the administrative or judicial authority. [ii] While it cannot be disputed that courts in the provinces are occasionally faced with matters of a complex nature, most matters found in the court’s dockets are straight forward in nature; and hence delays in such trials usually fall within the scope of the third condition mentioned above, that is the conduct of the administrative or judicial authority, which will include structural deficiencies within the judiciary.
The role of the Police
The police have the responsibility of investigating crimes in order to be able to determine the appropriate charges. Their failure to properly investigate crime before issuing charges to suspects has often affected the effective adjudication of cases. Though the police in some instances are equal to the task, in other instances, they have failed to investigate properly, thus leading to the arrest, detention and arraignment of the wrong person before the court. In the case of the IG vs. saffie Koroma in the Makeni High Court for example, the accused was arrested and charged for the alleged murder of her child, and after having spent over two years in detention, was acquitted for the lack of evidence.
Even where the police may proffer the appropriate charge to an alleged perpetrator, it has been very difficult for the police, who are usually the sole prosecutors in magistrate courts in the provinces to effectively prosecute of cases in courts. Mostly handicapped in prosecutorial skills, police officers have sometimes been sources of frustration to presiding Magistrates. The recent lambasting of the police prosecutors by the resident Magistrate in Bo, describing them as not ‘vibrant’ in prosecuting cases lends credence to this claim. [iii] This has led to the frequent adjournment of matters in the provinces.
Shortage of Lawyers
The increased role of the police in prosecuting cases in courts notwithstanding their shortcomings is an evidence of the scarcity of trained lawyers. Of the measly trained lawyers in the country, very few of them work for the government, mainly due to poor working conditions. Currently, only three lawyers are assigned to the provincial headquarter towns of Makeni in the North, Bo in the South and Kenema in the East. They also double as Customary Law Officers performing supervisory role over the Local Courts and reviewing their decisions as and when necessary. Besides the fact that the enormous workload carried by these two offices often stretches their time thin, also serving as a customary law officer- a position under the executive arm of government; beclouds his independence as a judicial officer..
There are also very few lawyers resident in the provinces. As a result, many accused persons, sometimes charged with serious offences, appear before the court without a counsel. The situation of indigent accused persons is exacerbated by the lack of effective legal aid scheme which undermines the accused right to fair trial including the rights to a bail, expeditious trial, right to an interpretation service etc. The case of the I.G v. Safie, Koroma, was expedited and eventually thrown out of court for lack of evidence only after the accused was provided with a pro bono legal aid services by a local civil society group.
The importance of legal representation
The International Covenant on Civil and Political Rights (ICCPR) requires states to provide “legal assistance [indegent accused] in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it” [iv] Section 28 (a & b) of the Constitution of Sierra Leone 1991 also provides for legal aid. The process of making this a reality in Sierra Leone is painfully slow. These provisions are to ensure that persons accused of serious offences are given fair trial and are not persecuted or victimized. However, the process of making this a reality in Sierra Leone is painfully slow. It is important that the authorities expedite the establishment of the legal aid scheme.
Attitude of Presiding Official of the Courts
Another problem undermining the administration of justice in the provinces is the attitude of court officials. Court sittings commence late and close early with a day’s session amounting to merely few hours of actual hearings of matters before the court. While court officials may be encountering logistical constraints to function effectively, it is important that conscience effort is made to increase the amount of time spent in court to adjudicate matters. Furthermore, the judiciary should continue the drive of recruiting more people to the bench.
Problems in the Local Courts
Most people in the provinces have been using the local courts because the proceedings are often conducted in the languages the users understand, the length of trial is most times short and they can also represent themselves. However, customary courts are still bias against women despite the conscious effort made by authorities to stop it. Women are still discriminated against both procedurally and substantively. Furthermore, customary courts frequently levy excessive fines on its users contrary to section 41(1) of the Local Courts Act of 1963 For example, in a slander case in Local Court No. 1 in the Wara Wara Yagala Chiefdom, Koinadugu District, the court officials fined the guilty party an assortment of items including money, rice, palm oil, and salt, all estimated at six hundred and five thousand Leones (Le. 605,000), an equivalent to $ 200 USD. Ridiculous to note however, is that when a sexual abuse matter, involving a minor, was brought before the same court, it could only impose a fine of fifty thousand Leones (Le.50, 000), an equivalent of about $18 USD. Whiles the former punishment was exploitative thereby negating the court’s role in prioritizing restitution and restorative justice, the latter undermines the rationale of the criminal justice system.
Effects
A major effect highlighted in both the formal and informal justice system has been the lack of access to justice to the overwhelming majority litigants in the provinces. International human rights demand that people have access and use the law in the determination of their rights. This does not only relate to access to a court of law, but it incorporates inter alia, factors including the speedy determination of cases before the court; the right to a legal representation or a legal aid in case where the accused is an indigent; the right to appeal; compensation in the event of a mistrial; the rights to an interpreter etc. The continued denial of these rights by courts has negatively impacted peoples’ confidence in the justice system.
Denial of access to justice resulting from the lack of legal representation often generates the feeling of marginalization of the poor by the justice system. Since our justice system has its basis in English law and legal procedure, it becomes difficult for the layman to successfully defend him/herself of the charges proffered in a court of law. Being an indigent, and with the absence of a legal aid, he stands at the mercy of the court even where he may have strong grounds for acquittal.
Conclusion
Access to justice including both institutional (the independence and impartially of the tribunal) and the procedural (the fairness of the hearing) clearly goes to the heart of human dignity. How a man is treated in the justice system clearly demonstrates the country’s commitment to the protection of human rights and hence human dignity. The Preamble of the Universal Declaration aptly articulates this when it recognizes “inherent dignity and …the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world”. The problems highlighted above points to the fact that the country still has a long way to go if ever it is to achieve the theme of this year’s Human Rights Day celebration “dignity and justice for all”
[i] Barker v. Wingo, 407 U.S.514, 519 (1972). Para. II
[ii] Human Rights Committee General Comment No. 32, CCPR/C/GC/32, 2007, Para. 35
[iii] Premier Media Newspaper,e Tuesday December 16th Edition
[iv] Article 14 (3) ICCPR
by ibakarr | Aug 11, 2016 | Uncategorized
Access to justice has been a major concern in Sierra Leone and a central theme for justice sector reform since the end of the decade long internecine war. This is so because it was one of the underlying causes of the armed conflict that virtually wrecked every institution in the country. On the eve of the war, only the few political elites, their cohorts and the wealthy had access to justice. The vast majority of Sierra Leoneans, especially the poor and less privileged, were denied actual access to justice. As a result, individuals who had been marginalized by the justice system whether overtly or covertly had very little or no confidence in the judiciary as the temple of justice. The rest can be left to history.
Recently though, international sensitivity to the imperatives of access to justice is gradually gathering momentum. Of the several roads to justice, the provision of legal aid, an important avenue through which the poor can access justice in civilised societies and acknowledge the same to meet their protective obligation and maintain peoples’ continued surrender of individual will to that of the common will, is fundamental and applied as a general tool at combating social exclusion in most jurisdictions. In fact it has been contended that the level of civility of any society is measured by her treatment of the disadvantaged groups in the society together with her efforts at narrowing down the social exclusion gap.
The concept of access to justice is today common to all civilised societies. It is a very broad term seldom used by international human rights instruments. There seem to be no obligation regarding access to justice as such under customary international law, but it is required in respect of specific human rights treaties which accords it considerable attention as being of paramount importance among the individual rights and freedoms. Access to justice is not only necessary for the continued maintenance of law and order but also to discourage people from succumbing to the temptation of self-help.
This work will not delve into the contentious debate of the definition and meaning of justice, nor navigate the unending discuss of the multifarious theories. It will be narrowed on the clinical examination of actual access to justice as it relates to access to courts through the provision of legal aid.
The term access to justice has been subjected to intense jurisprudential debate. For the purposes of this work, access to justice as a necessary condition for the rule of law implies the right to be dealt with fairly and obtain redress according to law in the event of injury. Put quite simply, it is the right to access an independent and impartial court and the opportunity to receive a fair and just trial when one’s liberty or property is at stake. This is provided under section 23(1) of the Constitution of Sierra Leone, 199. It states “Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. This provision is also akin to Article 7 of the African Charter on Human and Peoples’ Rights, which provides inter alia that “every individual shall have the right to have his case heard.” It is amplified to extend to the right to petition to a competent national court against acts in violation of one’s fundamental rights; to presumption of innocence until otherwise proved; right of defence which may entail right to be represented by a counsel of his choice and right to speedy and impartial trial. Consequently, an accused standing trial obtains justice if he is availed of all these rights prescribed by law. Neither the state nor an individual is permitted in the absence of just cause to derogate from the enjoyment of these rights. It follows therefore that access to justice presupposes that litigants should have reasonable reach to rights prescribed by law whether as a defendant or a plaintiff.
The need for a legal aid scheme in Sierra Leone, as prescribed and implemented in Nigeria by the Legal Aid Council, the South African Legal Aid Board, and the Legal Services Commission Board of England and Wales, cannot be overstated. In fact there exists a range of international norms and standards that are relevant to the question of a state’s responsibility to provide legal aid. The International Covenant on Civil and Political Rights (ICCPR) sets out specific obligations of states to provide state-funded counsel for indigent persons. Article 14(3) of the ICCPR requires that an accused offender is entitled “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it”. This provision sets out among the minimum guarantees to which everyone is entitled, in full equality, in the determination of any criminal charge. This article is in tandem with Section 28(5)(a & b) of the Constitution of Sierra Leone 1991, which provides that Parliament shall make provision “for the rendering of financial assistance to any indigent citizen of Sierra Leone where his right under this Chapter has been infringed, or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim; and for ensuring that allegations of infringements of such rights are substantial and the requirement or need for financial or legal aid is real.” With respect specifically to the situation of young persons charged with a crime, the Convention on the Rights of the Child requires states to ensure that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”
Also, there is a strong proposition of a fundamental right of an innocent person not to be convicted. To do otherwise is a serious moral harm and the height of injustice. It is bad enough and fundamentally wrong to be convicted of an offence when one did not do the acts alleged or did not satisfy the fault element required. This is because the consequence of miscarriage of justice to the individual and the society is enormous particularly in a criminal proceeding where the police and the prosecutors have at their disposal immense public resources. In view of this, it could be contended that the immense resources of the law enforcement agencies should not be allowed to result to prejudice to defendant’s rights in the criminal justice system.
Moreover, for an accused to be tried without legal representation negates the principle of equality before the law. The ability to defend oneself adequately against a criminal charge should depend on ones’ financial resources. That aside, where the judiciary stands overwhelmed with gratuitous technicalities especially in the area of court procedure, access to justice is progressively more difficult for the poor, illiterate and powerless. Hence, it is important that the assistance of a lawyer is required to help navigate an often-complex labyrinth of legal norms and court procedures. That is, a lawyer’s assistance is indispensable for effective access to justice, particularly where legal representation was either compulsory or because of the complexity of the procedure or of the case.
Furthermore, to allow for free representation for the less privileged would be to respect the right of the innocent not to be convicted unjustly. In adversarial systems like Sierra Leone, legal services are necessary to provide ‘equal access to justice’ especially when the state has summoned its legal resources to prosecute an individual. The ultimate policy aim must be that any one with a legal problem has equal access to its just conclusion so that disputes are determined by the intrinsic merits of the arguments of either party and not by the inequalities of wealth and power. It is therefore axiomatic to customise legal aid from what it is usually seen around the world to wit Sierra Leone’s local circumstances, considering its level of illiteracy, and poverty prevalence.
Justice no doubt, is not static but a dynamic phenomenon, moving with the socio-economic and political conditions prevailing in the society. A society with maximum access to justice is a society in which the fair determination of rights and duties is not dependent and affected by the respective social, economic, political status or other inequalities of the parties in dispute. Since pervading poverty and illiteracy is plaguing Sierra Leone, its circumstance demand not only that justice is brought to the doorsteps of the people; but also that they are assisted by all means to obtain it.
by ibakarr | Aug 11, 2016 | Uncategorized
This piece is from one of our monitors in the Northern part of Sierra Leone. It tells a story of one Saffie Koroma, a young mother, who was maliciously prosecuted on trump up indictments by the police for allegedly murdering her son. The reason behind this publication is twofold: on the one hand, it gives a prelude to the thousands of untold stories of injustices meted out by the police in performing their statutory duty of maintaining law and order. On the other, it helps bring to the fore, for the attention of the public, the myriad challenges faced by thousands of our less fortunate compatriots who can hardly access justice primarily because of their social conditions.
Saffie has lived most of her life in Tonkolili and speaks only Themne her native language. She does not speak even the unofficial lingua franca, Krio, let alone read or write English, the official language of the court. Her knowledge about human rights and the rule of law is very limited, if any; her knowledge about the world does not stretch beyond her immediate environment. In the morning of December 19 2005, Saffie was arraigned before the Magistrate Court in Magburuka, the district headquarter town of Tonkolili on a murder charge contrary to law. As a background to this case, Safie’s son was discovered dead with his right eye gorged out and his tongue cut off- apparently indications of a ritual murder.
While in court, Saffie stood dumb as the charge was being read out to her by the court clerk. After the charge had been read, she entered a plea of not guilty. It was the exercise of that right that opened a floodgate of her debilitating ordeal. She was refused bail without good reason and was remanded in custody, whilst incessantly appearing in court. She had no legal counsel which was a violation of her right as provided for in sec. 28(5)(a&b) of the Constitution of Sierra Leone 1991; and her case frequently frivolously adjourned for very long periods, almost becoming a routine procedure for about two years ten months in detention, contrary to sec. 23(1) of same. She was finally acquitted and discharged on October 10, 2008 for lack of sufficient evidence to prosecute the case. During the acquittal, the presiding Judge Justice Alusine Sesay lambasted the police for its ineptitude and lack of thoroughness in carrying out the investigation in the said case.
Saffie’s ordeal started right from the time of her arrest- her rights were never adhered to as provided for under sec. 22(5) of the Constitution of Sierra Leone, 1991. Furthermore, she was kept in detention in police cell for more than three weeks before her first appearance in the Magistrate Court in Magburaka for preliminary investigation contrary to sec. 17(3)a of same which states that “any person who is arrested or detained…shall be brought before the court of law within ten days from the date of arrest in case of capital offences, offences carrying life imprisonment and economic and environmental offences”, The Criminal Procedure Act of 1965, sec. 10 also reinforces this provision; stating thus: “subject to the provisions of section 80, all arrested persons shall be brought as soon as possible before the court having jurisdiction in the case or the court within the local limits of whose jurisdiction any such person was arrested.”
Also, Saffie’s detention for more than ten days before any charge was brought against her in court was an outright violation of her rights under the law. As an accused person, the laws provide that she must be brought under a judicial control without undue delay and her rights must be protected therein which include the right to be presumed innocent until proven guilty. After her initial charge in the magistrate’s court for Preliminary Investigation, it took twelve months before the matter was committed to the appropriate court (High Court) with jurisdiction to hear the matter. During the Preliminary Investigations, key prosecution witnesses were frequently absent and the Court was not forthcoming in throwing the matter out of court for want of prosecution witnesses to testify in the matter. Hardly, if any, bench warrant was served on the witnesses for the sake of expeditiousness. Although the CPA has no time limit on Preliminary Investigations, section 113 (3) of the Act underscores the importance of an expeditious process. It provides that where a Magistrate who starts a Preliminary Investigation is for any reason unable to continue the process, it shall not be necessary for his successor to re-commence such investigation except were the succeeding Magistrate thinks that the matter can be adjudicated by himself.
For a Preliminary Investigation to take up to one year was not only a breach of the accused’s right to liberty and security of persons as she was kept in detention whilst her matter was continually been adjourned, but it also violated her right to trial within a reasonable time or to release pending trial articulated in Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR). Even a thorough Preliminary Investigation to obtain evidence that is substantial enough to try her will not require a whole year and therefore will not justify the one year delay, especially when the prosecutors and their witnesses often did not show up. The Human Rights Committee was very clear on this when in its Communication in the case N. Fillastre v. Bolivia noted that “… investigation into a criminal case, [even if] in their essence, is carried out by way of a written proceeding” does not justify such delays. [i]
When the case was finally committed to the High Court, Saffie could not contract the service of a lawyer because of lack of money. The state also failed to provide her one. Consequently, she was left at the mercy of a court that is fraught with administrative or logistic problems. Her matter was worsened by the language difficulty. Saffie could not understand any other language except Themne, her native language. As a result, her case was frequently adjourned for the lack of an interpreter. The court’s interpreter had ceased to go to court because of lack of payment for services rendered.
The right to an interpreter is a fundamental right to fair trial and particularly important in Saffie’s case as she cannot speak any other language except Themne. In fact it was indispensable in the matter under consideration because of the seriousness of the said case. It is very essential for the accused to be able to follow or understand the proceedings especially in situations like the instant case in which the accused conviction may lead to a life sentence or death penalty. While it was correct for the matter to be adjourned because of the absence of an interpreter; the frequent adjournment of the matter as result of a lack of an interpreter prolonged the case and Saffie’s agony in detention.
In addition to the absence of an interpreter and the lack of legal representation, the prosecution also often came to court unprepared. Furthermore, its witnesses either showed up late or did not show up at all. The prosecution therefore frequently asked for adjournments of the trial on grounds of absence of prosecution witnesses or the non-preparedness of the prosecution. With no defence counsel to raise an objection, Safie was left at the mercy of God and the bench.
However, things took a positive turn when a paralegal group, Timap for Justice, decided to provide legal aid for the accused. Once Saffie had a legal representation, her matter was no longer adjourned unnecessarily and subsequently regained her liberty and freedom on the 10 October 2008, after a no case submission had been made by the defence.
What is worth commenting about is the length the trial took- an alarming two years plus! It contravenes both domestic and international human rights laws which provides for the trial of an accused person “without undue delay” or “within a reasonable time” [ii] . This provision is important as it “ is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice.” [iii] The Human Rights Committee in its general Comment No. 13 provided an explanation of “without undue delay” as a guarantee that “ relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered; all stages must take place ‘without undue delay’ .[iv] There has been a delay from the inception of the instant case to the final day the accused was discharged.
However happy the ending was for this long-drawn ordeal for the accused person after she was discharged, she had already suffered immensely in a judicial system that is suppose to protect the rights of every Sierra Leonean before it, irrespective of sex, race, ethnic or other social backgrounds. Spending more than two years behind bars for allegedly committing an offence that she was acquitted and discharged of is a facade of justice especially in a jurisdiction where compensation for acquitted persons is a myth.
Few lessons could be drawn from above story. It firstly paints a gloomy picture about our judiciary- that in spite of the efforts in its reform, it is yet to rid itself from the myriads of problems that beset it during the pre-conflict periods. Secondly, it underscores the importance of a legal representation, and hence the need for a national legal aid scheme for the provision of legal representation for indigent Sierra Leoneans like Saffie whose rights were abused with impunity by the very system that is suppose to protect it. Finally, it clearly shows the ineptitude of the police, a crucial arm – gate-keepers – of the justice system who has the primary function of investigating crimes.
[i] Communication No. 336/1988, N. Fillastre v. Bolivia (Views adopted on 5 November 1991), in UN doc.GAOR, A/47/40, p. 306, para. 6.5
[ii] Section 23 (1) of the Constitution of Sierra Leone 1991, Article 14 (3) (C) of the ICCPR
[iii] Human Rights Committee, General Comment No. 32, CCPR/C/GC/32, para 35
[iv] Human Rights Committee, General Comment No. 13
by ibakarr | Aug 11, 2016 | Uncategorized
The introduction of the three ‘gender laws’ relating to intestate succession, domestic violence and registration of customary marriages in 2007 is seen as a major step towards improving the status of women and girls in post-conflict Sierra Leone. Prior to the enactment of these legislations, women suffered discrimination in almost every sphere of life including marriage, adoption, cultural practices and beliefs, and distribution of property. During the war, women and girls were uniquely targeted by the different fighting factions. In addition, they became frequent victims of domestic violence and other related problems despite the fact that they make up 51% of the population in the country. As a result, the ‘gender acts’ were enacted to address these problems and to consolidate respect for human rights and the rule of law. These Acts provide for dialogue, security and safety for all irrespective of sex thereby upholding human dignity at all times.
The Ministry of Social Welfare, Gender and Children’s Affairs recently launched the National Strategic roll-out plan on the ‘gender acts’ which clearly defines the role of major stakeholders and the National Committee on Gender Based Violence to help in the implementation process. During the 16 days of activism launched on 25th November instant, the Ministry together with INGO’s, NGO’s,etc will work together to reflect on the real issues of Gender Based Violence and to prepare a data of all incidence of domestic violence in the country. Already, implementation of the gender laws has been integrated into the justice sector’s three year strategy and it has also been prioritize in the UN Peacebuilding Commission Framework for engagement in Sierra Leone. However, in spite of all these efforts having been made so far, there is still a lot to be done in order to implement key provisions as enshrined in the Acts. This article will examine some of the major challenges in the implementation process and the need to implement its key provisions.
One of the greatest obstacles in the implementation of the ‘gender laws’ is that some of the provisions are contrary to some entrenched provisions as provided for in the 1991 Constitution. For instance, where as the ‘gender laws’ of 2007 makes provision for non discrimination, the Constitution of Sierra Leone, with particular reference to section 27(4)(d) provides otherwise. And where there is such contention, the Constitution takes precedence pursuant to section 171(15) which state that “This Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect”. The point being made here is that unless section 27 of the Constitution is amended, the implementation of the ‘gender laws’ in respect to discrimination will be seriously undermined.
Another problem is the duplication of efforts by various organizations working on sensitizing communities about these laws. That is, since these organizations do not work under an umbrella organization, there exists the tendency for their efforts to be duplicated in their sensitization strides. Thus, there is a need to harmonise efforts so as to make sure that they are not duplicated and that the messages disseminated are correct. As such, coordinating sessions need to be organized where different organizations participate to map out strategies and formulate a common training programme and answer to some of the frequently asked questions posed by communities in relation to implementing the laws. In addition, journalists should also be trained in order to help them properly disseminate the contents of the ‘gender acts’. Also, the implementation process seems not to be a priority of Government insofar as it relates to improving the status of women and girls in the country. The Ministry of Social Welfare, Gender and Children’s Affairs, which is the lead agency in the implementation process, is seriously underfunded. Although the said Ministry has the largest portfolio of all government departments, yet it has the smallest budget. In 2006, for example, its budget was 500,000 USD, the bulk of which covered staff cost. Even though the Ministry has offices in the provinces, it lacks the capacity to carry out significant projects. It is therefore utterly necessary for steps to be taken to strengthen the Ministry so that they will be able to carry out their work efficiently.
Strengthening the formal and informal justice systems is another major challenge in the implementation process. In order for the Acts to be meaningful, individuals must be able to claim their rights in both formal and informal courts. Currently, the formal court system is inaccessible to a large proportion of the population due to high costs, distance, complexity, delay in proceedings etc. In the informal courts (local court), used by a greater percentage of the population, these laws are hardly recognized, let alone implemented. It should be noted that the ‘gender laws’ were enacted to protect primarily vulnerable members of society when they are most in need. This purpose will not be achieved if such persons are unable to access justice when alternative means of dispute resolution fail. Therefore, steps should be taken to ensure that such persons are protected by the law in their time of need. This can be achieved to some extent through the full implementation of the ‘gender laws’. One way to ensure this is to provide trainings for court officials on the provisions of the laws.
One of the major aims of the enactment of the Registration of Customary Marriage and Divorce Act 2007 is to prevent forced and early marriages. However, section 2 of the said Act states that if “…either of the prospective spouses are under 18 years of age, the parents should give their consent and if they are dead, the consent of the guardians may be sought.” Section 3 of same states that “[i]f the consent of the parents or guardians cannot be obtained or unreasonably with held, a Magistrate or local government Chief Administrator of the locality in which the marriage is to take place may give his consent.” In short, the consent of the child is not necessary which is in contravention with the Child Rights Act. This provision has been vehemently contested by child rights organizations as well as activists as it does not prevent a child to be forced into early marriage. It is therefore incumbent on the Ministry of Social Welfare, Gender and Children’s Affairs to robustly advocate an amended or repeal of the said sections in question.
Provision is also made under this Act for all customary marriages to be registered in order to protect spouses who contract marriages under customary law. Section 2 says, “The application for the registration of a marriage entered into before the date of the coming into operation of this act shall be made within six months of that date and in the case of a marriage entered into that date, the application shall be made within six months after the marriage’. However, it is over a year since this law was passed and the registration process of such marriages is yet to be set up in the local councils, charged with that responsibility. It is essential that the setting up of registration process is expedited so that spouses will be able to register and keep their certificates in case of death or divorce for the administration of estates. Most women in customary marriages still continue to suffer in the hands of their husbands and their families. Hence, the Ministry of Local Government and Community Development should fast-track the setting up these centres as quickly as possible to help women seek redress in an event of abuse of their rights.
Under the Domestic Violence Act of 2007, the Ministry of Social Welfare is supposed to provide or make available safe homes for victims of domestic violence. Section 15(2)(g) states that “ [a] provision ordering the relocation of the applicant to a safe house to be provided by the Minister and compelling the respondent to pay rent for the period the applicant resides in such a safe house if the court is satisfied that that is reasonably necessary for the safety of the applicant or any child or person in the care of the applicant.” These homes are yet to be provided and as such, women continue to suffer domestic violence. Making matters worse, most of them refuse to prosecute because of fear of reprisals from the perpetrators. Some do not even have options so they prefer to endure. In a report issued by Physicians for Human Rights just after the war in 2002, It is reported that 67% of urban Sierra Leonean women suffer domestic violence. If these homes are not set up, the problem will continue unabated. The UN Peacebuilding Funds has donated the sum of 200 thousand dollars for the setting up of these homes; but sad to note that the work is yet to be done.
The implementation of the ‘gender laws’ is still far from becoming a reality. In order for it to be actualized, all hands must be on deck-stakeholders-to sincerely commit themselves to the realization of this goal. Put simply, all must be ready to walk their talk; or else the purpose of enacting the laws-to improve the status of women and girls, will be defeated.
