by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
It has been noted by several war researchers that judicial inertia during the pre-war years was one of the major causes in fuelling the decade long war that engulfed Sierra Leone from 1991 to 2002. Constitutional rights such as the right to a fair trial by a competent body recognized by law as provided for in sec. 23 (1) of the 1991 Constitution of Sierra Leone were violated with impunity. After the war, the Government together with its partners is making genuine strides to ensure that such violations are made history. However, in spite of these reforms, there is still more to be done in ensuring judicial accountability, needed now more than ever before. One such area that has continued to plague the judiciary is the lack of an interpretation unit; a necessary component in ensuring fair trial rights.
Consequently, this article seeks to examine the impact of the lack of an interpretation unit and the need to establish it if the judiciary is to live up to the expectations of the public as an institution that administers justice to all.
Practice in the National Courts
In Sierra Leone, the working language of the court is English. That is, all matters brought before the court are conducted in English. Whilst legal practitioners, Judges, Magistrates and Justices of the Peace are thoroughly equipped with the said language, on the contrary, the bulk of the litigants, particular accused persons, can hardly understand the language of the court. In the Magistrates’ Court, for example, the court clerks usually take the unavoidable task of translating from English to the dialect of the litigant vice versa testimonies of various parties brought before the court in order to have a comprehensive record of evidence. In the event wherein the clerk does not understand the language of the party testifying, the prosecution at times provides an interpreter. In cases where the prosecution cannot promptly produce one, the matter is very likely to be adjourned until one is found. The Magistrate, in rare instances to expedite the case, will ask for another witness to take the stand. By mutual consent, however, both the prosecution and defence can agree to lead evidence in the language that the parties understand better provided they are well grounded in such language. This does not however preclude the Magistrate or Judge from carrying out the daunting task of transcribing evidence adduced in court into English, the official language of the court for the records.
International Standards
Competent interpretation has been recognized by other national and international tribunals. This provisions is enshrined in some international instruments such as Art 14(3)(f) of the International Covenant on Civil and Political Rights (ICCPR), Art 6(3)(e) of the European Convention (EC), among others. The Special Court for Sierra Leone (SCSL) in adhering to international standards also provides for an interpretation unit consisting of national and international interpreters to interpret indigenous and international languages into the working language of the Court. This unit was established primarily to assist stenographers in producing transcripts in English and to enable the Judges to record evidence as they are adduced in court. The unit has also assisted trial Attorneys to make corrections on evidence being adduced when they were wrongly translated as they together with accused persons have the opportunity to hear the translations.
A case for Sierra Leone
The general practice in courts in Sierra Leone is that when an accused or other witnesses do not understand the language of the court, the prosecution usually gets someone to do the interpretation. In fact in some instances, they police prosecutors especially in the provinces doubles as interpreters. While they should be credited for wanting to expedite proceedings on the one hand, on the other hand, such practice violates fair trial provision as some of these interpreters would not be au fait with some legal vocabularies needed to execute the task of interpreting properly. As such, their effort can be complimented and made meaningful if there is an interpretation unit with trained and competent interpreters that the court can rely on when there is need. Suffice it to say that this right to interpretation is entrenched in the Constitution. Section 23 (5) (e) provides that an accused “shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language of the court”. [1] Simply put, the provision makes it obligatory for an accused to be provided an interpreter if he/she cannot understand the language of the court. Since the prosecution has the burden to prove the guilt of the accused, there is the tendency that they are likely to engage the services of such interpreters who may be sympathetic to their cause. In most cases, the defence hardly provides interpreters; as such, they appear to be moving away from their responsibility of proving the impartiality or otherwise of the interpreters provided by the prosecution. Also, in some cases, the court does not test their veracity in terms of confidentiality for the judicial process where applicable. Cases relating to sexual offences usually require close sessions or in chamber testimony, contracted interpreters in such cases if required may not necessarily posses the expertise required for confidentiality and there will be the risk of releasing what is been said during private sessions.
The right to a competent interpreter should be an integral part for the defence of an accused rather than just a privilege. The ICCPR and the EC as mentioned inter alia, provide for the right to an interpreter during criminal trial. This suggests that if an accused cannot speak or understand the language of a court, he/she should be provided with one in order to ensure the fairness of the trial. In July, this problem of interpretation arose in the case of The Inspector General of Police v Harvey Steven Perez et al in Magistrate’s Courts 1(a) presided over by Tarawallie Deen in Freetown. Most of the accused persons hardly understood the language of the court and the Prosecution had to contract an independent interpreter for the purpose of interpreting for the Court. While this has been lauded by human right activists, they are however, concerned with the impartiality of the interpreter as he is not trained for the sole purpose of court room interpretation. Also, the validity of the interpretation cannot be contested by the defence as he translates from English to Spanish and vice versa. The need for judicial interpreters should be limited only to cases of such, but particularly to all others that come before the courts on a daily basis.
The establishment of an interpretation unit would, no doubt, fast track the move towards creating a comprehensive data base for transcript and subsequent law reporting in Sierra Leone. This can be done when there are clear and concise transcripts of every trial proceeding and such documents are made available to both the prosecution and defence and the public where applicable.
Conclusion
Amidst the fact that the judiciary is moving on despite the absence of an official interpretation unit, such an inadequacy undermines the effort of Government and other organizations working on judicial reforms. Creating an interpretation unit in the national judiciary will not only compliment strides taken but will also demonstrate respect for constitutional provisions relating to fair trial rights in tandem with international standards. Establishing an official interpretation unit will lessen the unavoidable burden given to Magistrates and Judges to transcribe cases hence reduce the propensity of having backlog cases as more cases will be heard daily. The task has been made easier by the interpretation unit of the SCSL having already created a comprehensive list of accepted translated words from some of our indigenous languages which can be used in our national Courts. The expertise of these professionals can be utilized by the national judiciary instead of training new interpreters. Utilizing the services of such trained personnel will combat the struggle of finding translators or interpreters during proceedings.
It should also be noted that both prosecution and defence counsels heavily depend on notes taken during Examinations-in-Chief, Cross-Examinations, and Re-Examinations. During Cross-examination however, opposing parties usually contend with accepting certain pieces of evidence thereby giving rise to long, drawn-out debate; the problem is usually exacerbated when the Magistrate or Judge gives his/her own recorded evidence. To avoid such, there is the need for interpreters to ensure that every party records the same evidence or transcripts which are been produced by the unit. This will not only lead to accountability, but will bolster the reformed judicial process.
[1] Ibid
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction [1]
The Bill that was enacted into the criminal libel law was introduced in Parliament in 1965 by Sir Albert Margai, the second Prime Minister of Sierra Leone. He, however, faced serious opposition from within and without Sierra Leone People’s Party (SLPP). In view of the foregoing, he influenced parliament to enact a law that would serve as a sledge hammer to silent his critics and members of the opposition. Parliament, nonetheless, enacted the Bill despite the serious opposition. When the APC took power in 1968, it was expected that it would decriminalize libel. However, the APC retained the law it had strongly opposed in its entirety. Furthermore, this has been the case of successive governments over the years despite the fact that the said law negates Sec 25 of the 1991 Constitution and contravenes the right to freedom of speech. Additionally, succeeding governments have been using it to silent the opposition in the name of maintaining law and order and/or preventing threat to public safety and security.
Definition of Libel
Libel, according to Black’s Law Dictionary (Seventh Edition), is “[a] defamatory statement expressed in a fixed medium, especially written but also a picture, sign, or electronic broadcast.” This means that libel does not only include mere writing but may also include symbols and caricature. There are two types of libel under the Public Order Act of 1965 of Sierra Leone; defamatory libel and seditious libel. Defamatory libel is basically the publication of a statement in a static form against a person, which is likely to expose the individual to public hatred, contempt or ridicule or to damage him in his trade, business, profession, calling or office. The most common form being written and printed words contained in newspapers, books, magazines etc. It can also be in a recorded form such as film, speech or effigy.
Seditious libel is defined as any attempt made by individual(s) in meetings, speeches or by publications to disturb the tranquility of the state by way of bringing hatred, contempt, or excite disaffection against the government or public authority. This means that a statement can only be deemed seditious libel when the complainant is disparaged in the estimation of right thinking members in the society and not merely in the minds of a particular section of the public. According to Lord Reid, “the ordinary citizen is neither usually suspicious nor usually naïve and does not interpret the meaning of a word as with a lawyer for he is not inhibited by knowledge of rules or construction.” Louise V Daily Telegraph [1937] 1KB 818.
The distinction between defamatory and seditious libel ( inter alia) is that, whilst defamation may be against ordinary citizens, sedition is said to be committed against public authority. That said, the rest of this article focuses on seditious libel since it has been the main cause of public concern.
Standard of Proof
A libelous statement must contain three elements before they are considered actionable. Firstly, it must be proved that the statement is false and defamatory. Secondly, the statement must refer to a particular person, even if it is an innuendo and thirdly, the statement must be published to at least one person excluding the plaintiff.
That said, the burden of proof rests solely on the prosecution. In addition, to prove seditious libel, the prosecution must prove a seditious intention in the published material. The interpretation text (Sec 37 of the Public Order Act) defines seditious intention as an intention to bring into hatred or contempt or to excite disaffection against a public authority. Furthermore, the prosecution also needs to establish how much public disaffection or chaos the publication is likely to cause. This simply means that, no matter how much truth there is in the published material, it will not be considered as a defence for the accused. To this end, and given the circumstances under which the law was promulgated, one can only conclude that the primary purpose of the law is to provide undue shield for public officials from public scrutiny. Seditious libel, like the death penalty, are two of the most notorious laws Sierra Leonean authorities have continued to keep in the statute books for their personal safeguards contrary to the public good. In fact, the continued existence of these laws is only symptomatic of how Sierra Leone is swimming against the current tide in the international sphere, meaning while leaders of other countries are spearheading reform processes, Sierra Leonean authorities are much more enthusiastic about keeping bad laws, especially those that entrench them in power.
The Defence in Seditious Libel
As already stated, contrary to other jurisdictions, under Sierra Leonean laws the fact of the published material is not a defence for seditious libel. As long as the prosecution has proven that the material caused or is likely to cause public disaffection or chaos, the accused may be found guilty and thrown behind bars.
The question is, even if disaffection is the standard, how can the prosecution establish it? The prosecution can only depend on presumptions and assumptions in establishing disaffection. In law, a counsel cannot base his/her entire arguments on suppositions. There has to be evidence to prove or disprove a legal or evidential burden. Therefore, for one to be arrested or convicted of seditious libel, there must be evidence of something that actually causes disaffection among the people or causes the people to demonstrate violently and in extreme cases, rebel because of the hatred they bear for it based on what they have read or listened to the radio. In truth, it is very unlawful to prosecute and convict based on suppositions.
Moreover, in law it is also a defence in a libel suit that the statement is a fair comment on matters that have to do with the legitimate concern of the public. However, what is in the public interest is a question of law for the judge. Fair comment is inclusive of a comment that covers the conduct of government, public interest, works of art and literature produced for public consumption. The comment must not be activated by express malice which could be defined as corrupt/wrong motive or making use of the information for indirect purposes. The comment even if biased, wrong, exaggerated or prejudiced must be honestly made. In a decided case Christopher Miller v the Mail Newspaper [1991] All ER, it was decided that a press house cannot be convicted of libel for publication made in the interest of the public. However, in practice in the Sierra Leone Judiciary, fair comment is not a defence to seditious libel as was seen in the case of President Ahmed Tejan Kabbah V Paul Kamara.
Reasons for the Proposed Amendments of the Criminal Laws
The current seditious libel law contain too many lacunas and therefore needs to be expunged. To start with, the law itself is draconian in the sense that it requires imprisonment for people expressing their views. Sec33 provided that persons guilty of seditious libel will be imprisoned to a term up to 3 years or a fine or both that is, for first time offenders, for habitual offenders to a term not exceeding 7 years. Imprisoning persons who chose to express their views about public officials does not only undermine democracy, it amounts to cowering the press from speaking the truth about public officials, especially so when the facts will not be enough to serve as a defence in an event an action is brought against them.
Unlike Sierra Leone, leading jurisdictions such as the United States and Britain give the utmost protection to speech and little protection to public officials. In a landmark case, New York Times & Co. v. Sullivan. 376. US 254 (1964) it was decided that the United States of America cannot award damages under the First and Fourteen Amendments to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice.” Actual malice was defined as a statement made with knowledge of its falsity or with reckless disregard of whether it was true or false. The ratio decidendi was that, in order to ensure a democratic society the Government must not protect public officials as against the press. In the alternative the Government must always protect the publication of all statements, even false ones about the conduct of officials except when the statement is made with actual malice. The reason being that, in measuring the performance or deficiencies of an office, praise or criticism is usually attached to the official in complete control of the institution. Besides, it would also ensure transparency and accountability.
To illustrate that seditious libel is more for the protection of politicians than the public good, Sec 34 provided that action for seditious libel may only commence after the Attorney General (AG) have issued a written consent. The AG, by virtue of Sec 64 of Act No 6 of the Constitution of Sierra Leone 1991, is not only the legal adviser to the state, nor is he only the person with power to prosecute on behalf of the state, but he is also a cabinet minister in the Government’s administration. That being the case, the matter becomes a political one. There is, therefore, every possibility to bring an action for seditious libel against persons that are only not in the good books of the Government.
To also illustrate that the law itself is unfair and prejudicial against the press; and it purpose is to cower the press, Sec 36 states that where a person convicted of an offence or attempt to commit or conspire to commit any offence under Secs 26, 27, 32 or 33, is a publisher, the court shall send the report of such a case to the president. Why inform the President? Why not handle it in a competent court of law? This clearly undermines the independence of the judiciary.
Furthermore, Sec 36(2) of the Act also granted power on the Governor-General now the president, either in his opinion or due to a court recommendation the right to prohibit the publication of the newspaper in which the defamation, sedition, or false statement was published for a term not exceeding 6 months. It further states that any person who refuses to comply with that order shall be guilty of an offence and liable on conviction to imprisonment for 18 months. This provision accords too much power on the president and thus undermines the rule of law and the doctrine of separation of powers. Instead of the president, the court or the Independent Media Commission should have been given the authority to determine, in the interest of public safety, public order or morality whether or not to prohibit the newspaper. Moreover, giving the president such powers will make the matter one with political undertone as it has always been.
The Public Order Act of 1965 is inconsistent with and contravenes the Constitution of Sierra Leone, 1991 which is the grundnorm of the country. It is an outright violation of Sec 25 of same, which guarantees the rights of individuals and organizations to hold opinions, impart ideas and information without interference. It further hinders the enjoyment of a person’s right to freedom of expression.
In Conclusion
Candidly speaking, no one is canvassing for the total repeal of the Public Order Act of 1965. Every civilized nation needs a set of laws that will regulate public order in the interest of public good and not against it. Therefore, all civil society have been asking for is an amendment of the obnoxious sections of the Public Order Act of 1965. As it stands now, the Public Order Act of 1965 does not only contravenes the spirit and letters of sections of the 1991 Constitution of Sierra Leone but also international and regional human rights instruments including the International Covenant on Civil and Political Rights, the Universal Declaration of Human and Peoples Right and the African Charter on Human and Peoples Right to which Sierra Leone has an obligation.
Some people at the helm have been asking for the alternative to seditious libel. The SLCMP believes that there is substantial remedy in civil suit. This is premised on the fact that there is distinction between saying, for instance: “Public Official X has stolen x amount of millions of Dollars of public fund and therefore should be sacked” and “let’s overthrow the government by forceful means and take over the reigns of power”. Whilst the latter statement may constitute an incitement that may lead to public disorder which is a crime punishable by law, the former does not in any way warrant criminal charges against the individual who may be safeguarding public interest. If, however, Public Official X feels aggrieved of the statement, he may as well file a civil suit.
That said, the Sierra Leone Association of Journalists (SLAJ) has the responsibility to regulate the conduct of its membership. It must institute regulations that will minimize and even help eradicate members caught in the act of prostituting the good image of the press. [] SLAJ can only succeed in doing so when it works as a team. Remember, a divided house cannot protect itself!!!
[1] This article was first published in the 15th bi-monthly edition (July-Aug 2006) of The Monitor. The current Minister of Information, Alhaji IbrahimBen Kargbo, was then President of the Sierra Leone Association of Journalists and one of the lead advocates for the abolition of seditious libel. As the Minister of Information, a position he has held for the last fourteen months, he is now in a better position to effective the abolition. However, we are yet to see any clear indication to make the necessary changes.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
One of the growing encumbrances faced in the adjudication of matters in courts involving children in conflict with the law is the issue of age determination. This situation has resulted since the enactment of the Child Rights Act 2007 whose provision regarding the definition of a child, and the minimum age of criminal responsibility clearly contrasts those provided for or practiced under the Children and Young Persons Act (Cap 44 of the Laws of Sierra Leone), the already existing legislation that specifically govern the situation of those children in conflict with the law. While the Child Rights Act 2007 defines a child as a person below the age of 18, and set the minimum age of criminal responsibility at 14; under the Children and Young Persons Act, a child is defined as any person below the age of 14, while the age of criminal responsibility was determined under the common law concept of doli incapax; that is, the rebuttable presumption that a child at aged 10 but not yet fourteen is incapable of forming a guilty mind on a statutory footing. The rule effectively put the minimum age of criminal responsibility at 10 years. Though legal practice dictates that the former that is, the Child Rights Act 2007 is to take precedence over the latter that is Cap 44, yet is has not prevented the fiery debates and arguments with regards to ascertaining the ages of children which have become the hallmark of juvenile proceedings in courts.
Several cases are pending in the juvenile court which the prosecution and in some instances the defence challenges the ages of certain ‘juveniles’ brought before the court on the grounds that they are not eligible to be tried there because they are adult. It is alleged that people even bribe their way to be tried at the juvenile court with the hope of receiving lighter sentences or being committed to the approved school specifically designed to reforming its inmates other than the more hazardous prison cell of Pademba Road. Additionally, police personnel at police stations which serves as the first places of contact when a juvenile comes in conflict with the law have also often shown an inability to determine whether suspects are juveniles or adults given the variations in physical maturity and physiognomy of certain persons. While some people outgrow their ages, others have stunted growth. Consequently, courts have been finding it difficult to ascertain the ages of juveniles arraigned before them. This article therefore seeks to highlight some of the many factors that have hindered the process of age determination in the courts. It will also examine how these problems have impacted on the juvenile justice system.
Problems
One of the greatest problems facing the court in determining the ages of ‘juveniles’ is the non availability original birth certificates for most of the accused juveniles facing trials before the court. Accused juveniles have often failed to tender their birth certificate to the court when it is requested. They more often than not claim to have lost it during the conflict in Sierra Leone during which properties of most were destroyed. What is usually produce instead, is a sworn affidavit whose validity is sometimes questioned by the court as it is normally acquired after the crime is committed. A case in point is a matter involving a juvenile charged with larceny, whose counsel applied for a no case submission on the ground that the child was below the age of 14, the stipulated minimum age of criminal responsibility pursuant to Section 70 of the Child Rights Act 2007. Even though a birth certificate was presented by the defence counsel before the court to drum up support for his application, the prosecution had to challenge it on the grounds that the birth certificate was acquired only after the crime was committed, and demanded an administration of a medical test by a practitioner or the Registrar of birth and deaths be summoned to validate the age. The process has however proven to be slow, and has consequently led to the adjournment of matter severally. The age of this accused person is yet to be determined up to the time of writing.
Whereas some juvenile offenders have purported a missing birth certificate before the court, others have in some occasions claimed to have been born in the provinces where their birth registers can only be traced. In such cases, since the juvenile cannot produce evidence confirming his or her age, the Registrar has sometimes demanded the provision of logistics including transportation fare, cost of accommodation, and per diem to facilitate his travel to the provinces for a retrieval of the birth registration certificate or to confirm the age of the accused. In another matter involving a juvenile charged with murder, the prosecutor challenged the age of the accused which was 16 even though her birth certificate presented before the court indicated same. This objection was made the grounds that the age shown by the prison doctor, that is between 17 and the half and 18 contrasted that indicated on the birth certificate. The prosecution further applied for the matter to be tried in an ordinary court, as under Cap 44, persons of the age of 17 and above are considered adults and therefore matters of such persons do not fall under the jurisdiction of the juvenile court. [i] The accused juvenile was consequently detained at the maximum prisons at Pademba Road for few months before the court finally ruled that she was a juvenile and was subsequently sent to the remand home while awaiting trial.
Though Cap 44 makes provision for courts to make inquiries as they may consider it necessary to ascertain the age of persons before them who may appear to such courts as a child or young person; and to record a finding of the age, it however fell short of stating how such inquiry may be conducted. Nevertheless, normal practice which is consistent with international standard has been the use of a medical practitioner. This has however been a slow process as there is only a single police doctor in the Western Area ( Freetown) who is charged with the responsibility of determining the ages of juveniles. This, coupled with the fact there are limited number of staff available to the doctor to type the result of age determination test has further engendered frequent adjournments which are often requested by the police prosecution, much to the detriment of the juvenile who will be kept in detention centers; and to the chagrin of the presiding magistrates and even the defence. A case in point was the detention of four juveniles at the Pademba Road prison whilst awaiting their ages to be ascertained. Their matter was adjourned severally for the age determination process to be completed. This has been a cause of embarrassment to even the police prosecution who can not produce the age determination result even where they would promise to do so.
Impact
The slow process of determining the ages of ‘juveniles’ has had lots of negative impact on the adjudication of matters before the juvenile court in the country, and hence on the juvenile’s fair trial. In the first place, it undermines the very aim which underpins every juvenile justice system which is the reformation and rehabilitation of the juvenile on one hand and the desirability of promoting their reintegration and their assumption of a constructive role in their society on the other. The practice has been that as long as the age of the juvenile is in contention, he is sent to the adult prison at Pademba Road amongst hardened criminals while the process of age determination is carried; which often takes a long time. Even where that person may have been declared a juvenile after the process, the fact that he has spent a long time with hardcore adult criminal inmate, would impact negatively on his harmonious development. Instead of been rehabilitated and prepared for his reintegration into his community, he will be faced with the unfortunate consequence of becoming a career criminal and hence a recidivist. This practice contravenes the Children and Young Persons Act which prohibits the detention of juveniles together with adults criminal.
Besides the negative impact the lengthy detention of juveniles together with adult prisoners would have on the juveniles, delays as a result of age determination has also had wider ramifications on the fair trial of the accused juvenile. It has often led to prolonged trials of juveniles thus undermining the principle of expeditious trial enshrined in both domestic and international human rights laws governing the trial proceedings involving not only children but adults as well.
It is a general consensus internationally that for an accused juvenile, the time between the commission of the offence and the final response to the act should be as short as possible. This is because the longer the period, the more likely it will be that the response will lose it desired pedagogical impact and the more likely the child will be stigmatized. Unfortunately, the juvenile court and its administrators in Freetown loses sight of this, as there are several matters involving juvenile with contentious age, that has been adjourned with an undisturbed frequency, and which takes months before the actual commencement of trials, for merely waiting for ages of such juveniles to be determined.
There are instances in which the delays in these proceedings can be squarely imputed to the court officials including the presiding magistrate who accords the prosecution an unfettered opportunity to drag the matter further even when the age of the juvenile has been ascertained by legally assigned medical personnel in the person of the police doctor. This begs the question as to whether court seeks to adequately protect the fair trial rights of the child in conflict with the law. A glaring example of this is a case involving a boy who was accused of wounding with intent. In spite of the presentation of medical report after a long delay from the police doctor, as requested through an application from the prosecution; which indicated that the accused was between the age of 16 and 17, and therefore eligible to be tried in the juvenile court, the prosecution requested for a second medical report ascertaining the age of same. This again took a long time and when it was clear to the magistrate that the report was not forth coming, he ruled that the accused was eligible for trial at the juvenile court.
The presiding magistrate granting of another application from the prosecutor to have the age of the juvenile determined for the second time, even when the first one has been done by a legally assigned personnel clearly justifies any assertion that the juvenile’s right to a speedy trial is sacrificed in this occasion for merely an unwarranted procedural consideration. It is worse even when one considers Cap 44’s provision regarding the process; which clearly accords discretion to the court to make an inquiry into the child or young person’s age if it “considers [it] necessary”. [ii] In essence, the presiding magistrate had the discretion to have even ruled at the instant that the accused juvenile was eligible to be tried in the juvenile court without resorting to an age determination process. Therefore, allowing another age determination exercise after a presentation of the first medical report is not only superfluous, but also abrogates the child’s best interest principle as the juvenile continued pre-trial detention and attendance of court proceedings would have had a deleterious effect on his wellbeing.
Child rights activists have also maintained that delay in the adjudication and disposition processes impact negatively more on juveniles than their adult counterparts because of their unique developmental characteristics. [iii] Children and young persons have different sense of time from that of adults and also they have a more reduced ability to foresee the future and cope with delays than adult. Hence they have the propensity to easily miss the connection between a crime and the sanction as time between the two elapses. Therefore any punishment they may receive after a lengthy delay in the trial process would not have any meaningful changes in their behaviour for the better
Additionally, the fact that juveniles awaiting results of their age determination are detained in the maximum prison where there hardly exist educational or treatment programme for them, such children, if they are school going children, risks losing very valuable time from their formal education which in itself is a violation of the crucial rights of education, survival and development.
Conclusion
It is evident from the above analyses that the slow process of age determination of juveniles is impacting the justice system greatly. In order to remedy this situation, measures should be put in place to speed up the process which includes; an increase in the number of police doctors to deal with age determination; compulsory registration of children after birth be enforced and/or a policy of providing children with birth certificate free of charge;, a proper networking between the office of Births and Deaths in Freetown and those in the provinces so that originals of births certificate be provided on demand. Finally, a legislative amendment ensuring providing the child a right to the rule of the benefit of the doubt in the case of a conflict or inconclusiveness in ascertaining his age should be made. Should all of these are adhered to; it will greatly improve the juvenile justice system in the country.
[i] Children and Young Persons Act (Cap 44), Section 18 (1)
[ii] Ibid
[iii] Rankin Mahoney, Time and Process in Juvenile Cour, t10 THE JUSTICE SYSTEM J. 37 (1985)
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
Over the past decade, the fight against corruption has attracted international attention and has encouraged the international community to tackle the issue as a global phenomenon. Many countries in a bid to comprehensively meet the challenges of fighting corruption within the context of globalization, have adopted the method of co-opting certain clauses from international anti corruption instruments. Notable among these instruments are the UN Convention against Corruption, the Council of the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, African Union Convention on Prevention and Combating Corruption (AU-CPCC), Council of Europe (CoE) Criminal Law Convention on Corruption etc. These documents present international consensus about what states should do in the areas of corruption prevention and criminalization, as well as international cooperation and asset recovery. Sierra Leone enacted a new anti corruption bill in September 2008 which as the ACC Chairman puts it: “is in line with international standards”. This article seeks to analyze the commonalities in these conventions and see how the Sierra Leone ACC Act of 2008 reflects these international instruments.
International and Regional Anti Corruption Conventions
Corruption is no longer an issue for national governments alone. The issue of globalization has factored into the effort and activities of national governments to curb this menace in societies. Like national anti corruption documents, international anti corruption conventions focus on both public and private sector corruptions with some variation. The reasons for the variations are understandable, amongst these conventions, only the UN Convention against Corruption seem to be more international in nature. It recognizes the Commonality and complexity of Corruption as a problem among all nations and shares responsibilities in case of cross border corruption activities. The others like the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, AU-CPCC, CoE Criminal Law Convention on Corruption etc. tend to be more regional in nature. The major reason being the similarities of problems between such countries in the same region. A major commonality among these conventions is on the coverage of offences. Bribery, domestic and foreign embezzlement, diversion of property by public officials, illicit enrichment, concealment of property, trading influence and money laundering seem to cuts across all of them. The Convention on Combating Bribery of Foreign Public Officials in International Business Transaction however, specifically covers bribery of foreign public officials giving a broad definition of “Bribery” and “foreign Public Officials”. Another commonality amongst these conventions is the level of obligation amongst member states with regards implementation. Though member states are to a large extent obligated to implement provisions in these conventions, yet not all provisions are mandatory. In the Convention on Combating Bribery of Foreign Public Officials in International Business transactions for instance, the level of obligation is mandatory for the implementation of all the provisions, while for the Inter American Convention Against Corruption on the other instance, the level of obligation for implementation is a mixture of mandatory and discretionary provisions. One of the most significant issues which guarantee the effectiveness of documents whether local or international is their implementation and this can be directly linked with the process of monitoring. Monitoring encourages and enhances compliance by state parties without which an instrument becomes “a white elephant” or farfetched. Not all the international anti-corruption conventions provide for monitoring within their text. The UN Convention against Corruption for instance, does not provide for monitoring in its text, rather, responsibility for reviewing implementation of the Convention lies with the Conference of State Parties. Formal review mechanisms maybe put in place to assess measures taken by state parties to implement the Convention. On the other hand, article 12 under the OECD Convention provides for state parties the requirement to monitor the implementation and promote the Convention. In the AU-CPCC, the monitoring mechanism is provided for in article 22 and calls for an Advisory Board of eleven members elected by the AU Executive Council and serving for a period of two years.
Sierra Leone Anti Corruption Act
The Anti Corruption Act, 2008 (ACC Act 2008) is an embodiment of both international and local standards and is generally considered a potent document in tackling the hydra headed monster that has persistently buffeted Sierra Leone with serious socio-economic problems. Unlike the previous Act, The ACC Act 2008 provided for independence in the investigation and prosecution of corruption, protection of whistle blowers, entering into international cooperation for the purpose of combating corruption, and most importantly the declaration of assets by public servants.
As the issue of corruption gain momentum within the international arena, the notion of giving the ACC Act 2008 an international flavour was welcomed for several reasons. Firstly, it sends a signal that no individual can escape or dodge the cause of justice when found wanting. This will limit the likelihood of siphoning funds through corrupt means from one country to another and from one region to the other since the principle of entering into international cooperation guarantees access to trace both individuals and funds for possible extradition and retrieval. Secondly, it guarantees Sierra Leone a status in it effort to fight corruption and foster development thus putting the country ahead of many African Countries. This is directly linked with the renewed ability of the ACC to assert it authority through it independence to investigate matters and also prosecute those found wanting.
The question however is, where does the ACC of Sierra Leone stand in terms of the provisions that reflect the required international Standards? Part VII of the Act under the broad heading “Mutual Assistance” guarantees the Commission to seek for international assistance. Such assistance can be predicated upon either a request to a foreign state or vice versa. With regards request to a foreign state, section 109 subsection (1) (a) and (b) provides that: “The Commissioner may, after consultation with the Minister responsible for Foreign Affairs and the Attorney-General and Minister of Justice, make a request to a foreign state- (a) which he considers maybe able to provide evidence or information relating to corruption offence; or (b) for freezing and forfeiture of property located in that state and which is liable to be forfeited by reason of it being the proceeds of a corruption offence.” In the same vein, Section 103 under cooperation with Foreign State provides for assistance to a foreign state upon request from such regarding execution, delay or refusal in executing such request. It reads thus: “Subject to section 108, where a foreign state makes a request for assistance in the investigation or prosecution of a corrupt offence, the Commissioner shall, after consultation with the minister responsible for Foreign Affairs and the Attorney-General and Minister of justice, (a) execute the request; (b) inform the foreign state making the request of any reason- (1) for not executing the request forthwith; or (2) for the delaying the execution of the request.” The significance of these provisions hinges on the interdependency of states for a realistic and effective approach in combating cross border crimes. Section 106 is a very significant provision because it enhances the Commission’s ability to influence the forfeiture and freezing of property in a foreign state. Under the heading “Freezing and Forfeiture of Property in International Co-operation”, subsection (1a) of section 106 prescribes the process and states: “Subject to section 108, the Commissioner upon application to the High Court and upon production to the High Court of a request for a freezing or forfeiture of property of or in the possession or under the control of a person named in the request, may obtain an order- (a) freezing the property of or in the possession or under the control of the person named in the request for such period as is indicated in the order;…”. Section 103 provides for property tracking in foreign states and significantly ensures that where applicable, identification, qualifying and locating of property and documentation are done. Another major provision in the ACC Act, 2008 which is significantly present in the international conventions is the protection of whistleblowers as provided for in section 81 of the Act. Subsection (3) of same goes further to provide incentive for the whistle blower where such information results to a conviction. This will to a certain degree encourage citizens to provide credible and reliable information where the need may arise thus fostering the war on corruption. Unlike international conventions where adherence to such requires the commitment of member states, national legislation requires the commitment of the constituent body such as the ACC to actualize such provisions. However, the ACC need to be more vigilant and robust in addressing acts constituting corruption.
Conclusion
While it is relevant for a document such as the Anti Corruption Act, 2008 to be in line with international standards, it is also important that the Commission, armed with this weapon, assume a pro-active disposition to actualize its mandate. Battling corruption is not as simple as monitoring projects and improving documentation. It is a deep cultural phenomenon that will entail revolutionizing approaches and social norms. Corruption is not only a contributor to poverty but a hindrance to anti-poverty initiatives and is in itself borne out of poverty.
by ibakarr | Aug 11, 2016 | Uncategorized
Since the concurrent assent to the Anti-Corruption Bill 2008 and the declaration of assets and liabilities to the Commissioner of the Anti-corruption Commission (ACC) by the president, Ernest Bai Koroma, on Monday 1st [i] over the years-an indictment on our body polity. Although the declaration of assets and liabilities by public officials is not a maiden phenomenon as public authorities are mandated to declare such for Parliamentary vetting, nonetheless, the President is going on record as the first to have done so to the Anti-Corruption Commission- a no mean electoral accomplishment; albeit almost a year after he made the pronouncement. September instant, it has been public discussion that a new era has dawn in the fight against corruption-a vicious enemy of our society. This public discussion is borne out of the fact that the preponderance of corrupt practices by public functionaries in our country is widely acknowledged as a principal factor for the socio-economic decay, poverty and instability in Sierra Leone
The Anti-Corruption Act 2008 is modern and unique in Africa particularly in the sub-region in many respects as it is in tandem with an imperative recommendation of the Truth and Reconciliation Commission issued in 2005, and international standards such as the United Nations Convention Against Corruption (UNCAC), which Sierra Leone has ratified, and the African Union Convention on Preventing and Combating Corruption and Related Offences. The Act mandates all public officers to declare their assets and liabilities to the ACC “…thereafter not later than 31st March in each succeeding year that he is a public officer, he shall deposit further declarations of his income, assets and liabilities and also while leaving office”; grants prosecutorial power to the commission; increases the number of corrupt offences; protect whistle blowers and informants of corrupt practices and fosters international cooperation in the fight against corruption. The President’s actions definitely exudes accountable leadership and, to an extent, a translation of his rhetoric of “zero tolerance” on corruption to reality.
However, the public should not be hoodwinked into believing that with asset declaration now in vogue, corruption is certainly going to be a relic; that a rejuvenated specialized statutory institution that has the expertise and wherewithal to checkmate the excesses of public functionaries who handle public resources, the fight against this scourge is a battle that has already been won. The disillusionment and despondency of many Sierra Leonean is premised on the fact that the secrecy and confidentiality which surrounds the declaration of assets by public officials undermines the very essence of public probity – a cornerstone in the fight against this menace. In addition, the lack of express procedure regarding re-appointment of Commissioners after the end of the first five-year term is a cause of concern; as it undermines integrity, impartiality and independence thereby unwittingly providing succour for those who thrive on corruption. It is what this piece will seek to examine.
As stated earlier, it is a laudable achievement for the President to declare his assets and liabilities to the ACC; a novelty in the country’s political history since the enactment of the Anti-Corruption Act 2000. However, the euphoria that accompanied the news of the President having declared his assets is rapidly dissipating. The disturbing reality about the President’s asset declaration is the secrecy and confidentiality that surrounded the entire process. It was done in a sealed envelop and bequeathed to the Commissioner of the ACC to the exclusion of the general public pursuant to Sec 119 (13) of the Anti-Corruption Act 2008 which provides that “subject to this Act, the Commissioner, Deputy Commissioner, Directors and other persons having an official duty under this Act shall deal with all documents and information and all other matters relating to declaration x under this Pact, as secret and confidential,…” That practice has engendered discussion as to the relevance of declaration of assets by public officials if the public is not informed about what a public officer may have declared in the first place. That aside, the ACC by keeping discreet the asset declaration process contravenes Sec 120 (2) of the ACC Act which states that “where upon an examination under Sub Sec (1), the Commission is satisfied that a declaration has been fully made, it shall publish or cause to be published a certificate in the gazette in the form prescribed by the Commission”.
It is important to note that a greater percentage of the population considered the prevalence of corrupt practices by public officials as a major stumbling block in the establishment of an effective and modern state in Sierra Leone. It is against this backdrop that people clamour for asset declaration- to ensure that public officials live within the limits of what they lawfully acquire; thus the essence of asset declaration. Although the ACC may have the technical expertise to detect false declaration, pursuant to Sec. 120 (1) of the said Act which state that “the Commission shall examine every declaration furnished to it and may request from the declarant any information or explanation relevant to a declaration made by him, which in his opinion, would assist it in it examination”, however, its task of unearthing deceitful declarations is likely to be quicker, effective and relatively easier with the public knowledge pursuant to sec 121 (1)(b) which provides “after a certificate has been published in the Gazette under section 121 any person makes a written complaint to the Commission in relation to the certificate, the commission, after consideration of the complaint, may decide that the complaint should be investigated” and by stretch enhancing public probity. In the instant case, what the President declared, in his own words, is worth hundreds of thousands of dollars; not withstanding the fact that his pay-package is less than two thousand dollars a month. Also worthy of note is that unlike his Liberian counterpart who declared her assets publicly immediately she ascended the presidency, our President declared his in secret to the ACC Commissioner, almost a year into his term of office. What assets were declared and when were they acquired can be anybody’s guess.
Also, like the Commissioners of the Human Rights Commission of Sierra Leone, the independence of the Commissioners of the ACC is permeable by the lack of express procedure regarding their re-appointment after the end of the first five-year term. The Act provides in sec. 4(1) that “The Commissioner and Deputy Commissioner shall hold office for a term of five years and shall be eligible for re-appointment for another term of five years only”. The Commissioners shall be appointed by the President subject to approval of Parliament and can be remove from office by the President subject to a recommendation from a tribunal appointed by the President; and if such removal has been approved by a two-third majority in Parliament. In actuality, while the removal of the Commissioners warrants, beside the recommendation of the tribunal, a two-third majority in Parliament, the said Act is conspicuously quiet about re-appointment for another term of office; it is solely at the discretion of the President. The uneasiness that beclouds such an unlimited exercise of authority is the likelihood of compromise on the part of the Commissioner; they may be under latent pressure during their first term in office. That is, if the re-appointment of the Commissioner is the unfettered prerogative of the President, and if a Commissioner wants to retain his or her job, there is the possibility of him or her compromising “integrity, impartiality and independence” in the execution of his or her duty. In simple terms, express procedure regarding re-appointment is the cornerstone of independence, and that such independence could be threatened not by interference, in some instances, but also by a Commissioner being influenced consciously or unconsciously, by his or her hopes and fears about possible marginalization by the President in re-appointing him or her. Like in the case of contract judges, a shrewd chief executive will be more predisposed to re-appoint Commissioners who would be inclined to cover up his amass of ill-gotten wealth whilst in office.
Conclusively, laudable though the enactment of the improved Anti-Corruption Act 2008 and the subsequent declaration of the President’s asset might be, the existence of the two sections discussed above paints a gloomy prospect in the effective fight against corruption. However sophisticated the Commission’s information gathering mechanism may be, it still has to rely heavily on the public and particularly the media for leads to abuse of public offices and ill-gotten enrichment by public officials. The public though can not supply this information when it is not privy to the public official’s asset. Similarly, the Commissioners’ lack of security of tenure undermines the integrity, independence and impartiality- all of which necessary ethos of the Commissioner’s office, especially where he is required to look into the dealings of the President. In such cases, the African adage which goes that “one can not bite the finger that feeds you” naturally applies. The fight against corruption in a country that is still grappling with the dastardly effects of conflict deserves all seriousness. This is because it is immoral, unjust and repugnant to the very ideals of humanity enshrined in the Universal Declaration of Human Rights as it undermines development which is an inalienable human right. If this undesirable phenomenon is to be eliminated from our society, then it imperative that all normative flaws in the Anti-Corruption Act 2008 be corrected.
[i] Fredrick Konteh, Abdulai Jalloh and Andrew Allieu, Governance and Corruption Study 2002 Conflict Management and Development Associates, Freetown 2002 p.30
