Examining the Right to Legal Representation: a reflection on the case of the Inspector General v.Steven Harvey Perez and the Others

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

The current development in the case of the IG v. Steven Harvey Perez and Others is exposing the judiciary in Sierra Leone to risk of loosing the gains already made in the post-conflict era. In July this year, a plane alleged to have been carrying substances believed to be cocaine unlawfully landed at Sierra Leone’s international airport. Following the incident, 19 people including Sierra Leoneans and foreign nationals were arrested and charged to court. The main problem has been adherence to the basic rights of the accused persons. In the court of public opinion presided mainly by a section of the media and general public, the accused persons are already guilty. The media and the general public have been mounting barrages of insinuations, vitriolic attacks, and unsolicited criticism on the legal practitioners representing the accused persons. Even before the trial phase of the case started, counsel of the first accused had to terminate his service citing “harassments, intimidation and other uncivil conduct”, [i] as reasons for his decision. Counsels have also complaint of alleged lack of unfettered access to their clients by imposing undue restrictions to communicate with their clients in private and/or restricted access to the court proceedings. It is alleged that the order came from the Attorney-General and Minister of Justice which required the issuance of a certificate of representation in order to facilitate an “orderly representation” of the various counsels representing the large number of accused persons.

This unsavory development in these trials is symptomatic of the heaps of surmountable problems that have continue to encumber the judiciary in post-conflict Sierra Leone, where lack of access to justice was identified as one of the underlying causes of conflict. It is important to note therefore that although the institution of trial “makes justice possible, it is the fairness of the process that makes it justice.” [ii] This is also a pointer to the dire need of general basic education on the treatment of accused persons; that anyone accused of a crime has the right to fair trial including the right to legal representation, irrespective of one’s race, colour, nationality, ethnicity, sex, religion etc. The trial should not be a mere charade that circumvents those basic human rights it will not in anyway enhance the justice and the administration of the rule of law.

Section 23 of the Constitution of Sierra Leone, 1991 (herein the Constitution) provides for all persons charged with a criminal offence to be afforded a fair hearing in public, within a reasonable time before an independent and impartial court established by law; to be presumed innocent until proved guilty; to be informed of the nature of the offence at the time he is charged in the language he understands; be given adequate time and facilities for the preparation of his defence; be allowed to defend himself in person or by a lawyer of his choice; to call on a witness to testify on his behalf or examine or instruct his counsel to examine a witness of the prosecution; to have the assistant of an interpreter; to be protected from a retroactive application of criminal law; to be protected from double jeopardy etc. All these rights are fundamental elements in ensuring fair trial of accused persons. This article will therefore examine the basic rights to fair trial of all persons accused of committing a crime under the laws of Sierra Leone . It will specifically look at the right of the accused person to defend him/herself or through a legal representation of his/her choosing; right to adequate time and facilities for the preparation of his or her defence. In discussing the right to legal representation, the article will emphasized the importance of the accused person’s right to the services at both pre-trial detention and trial stages.

The Accused Persons Right to Legal Representation

The accused person’s right to an “adequate time and facilities for the preparation of his defence” and his right to “defend himself in person or by a legal practitioner of his own choice” can be found expressis verbis in the Sections 23 (5)b and 23(5)c of the Constitution. Whilst the former is meant to serve in situations after arrest and during pre-trial detention, the latter is more applicable in trial period. However, both scenarios require the services of a legal representation. Though section 23 (5)b only provides for an ‘adequate time and facilities’, but stopping short of providing for the accused person’s right to ‘communicate with the counsel of his own choice’ provided for in Article 14 (3)(b) of the ICCPR, the Human Rights Committee, in explaining Art.14 indicates that the adequate ‘facilities’ must not be limited only to access to documents and other evidences which the accused person should want to prepare his defence, but it includes the opportunity accorded to him to communicate and consult with his counsel. [iii]The counsel should be allowed to communicate with the accused in conditions given “full respect for their confidentiality of their communications.” Lawyers should be able to “counsel and represent their clients…without any restrictions, influences, pressures, or undue interference from any quarter.” [iv]

Section 23 (5) (c) of the Constitution provides that every person charged with a criminal offence has the right to “defend himself in person or by a legal practitioner of his own choice”. There are two elements to the first bit of this safeguard that is, ‘defend himself in person’. Firstly, it requires the accused person to be tried in his own presence, which should be a matter of must. Trials are only held in the accused person’s absence for “exceptionally justified reasons” and for such reasons; “the strict observance of the rights of the defence is all the more necessary” [v] Secondly, it requires the accused to represent himself in person. However, this right is rarely accorded to accused persons in most jurisdictions. The seriousness of the offence would always require the presiding judge to assign a court appointed counsel in the interest of justice.

The second prong of Section 23 (5) (c), that is, the accused person’s rights to be defended ‘by a legal practitioner of his own choice’ underscores the fact that for counsel’s assistance to be effective, it shall be by a counsel of the accused person’s own choosing. Mutual trust and confidence is an indispensable factor in a lawyer-client relationship. The European Court of Human Rights’ decision in Pelladoah v. The Netherlands was authoritative on this when it emphasized that “everyone charged with a criminal offence has the right to be defended by a counsel” but for “this right to be practical and effective, and not merely theoretical, it exercise should not be made dependent on the fulfillment of unduly formalistic conditions…”[vi] The issuance of a certificate of representation in the ongoing trial, is not only unduly formalistic, but it would, given the negative press coverage it had attracted, serve as an intimidating tool to the defence counsels, which hinders the fair trial of the accused.

The right of the accused person to legal representation is such a fundamental element to fair trial that legislations in most jurisdictions provide for assigning of a free legal assistance to an accused person if he is unable to meet the cost of hiring a counsel for his defence. Sierra Leone is no exception as Section 28b(5) (a & b) provides that Parliament shall make provision for rendering of financial assistance to an indigent Sierra Leonean if his right under Chapter III of the Constitution has been infringed to enable him engage the services of a legal practitioner. The allegation of infringement of such rights shall be substantial and require the need for financial or legal aid.

However, it is not in all cases of indigence that free legal assistance is extended to the accused person concerned. Under the European system and in most international tribunals including the Special Court ,[vii] two conditions are usually laid down for free legal assistant.  They are (i) ‘insufficient means’ and (ii) ‘the interest of justice’. The criteria set out to satisfy the latter condition are: the seriousness of the offence and the severity of the punishment being risked; the complexity of the crime which includes the facts, the law and the outcome; and the personal situation of the accused . [viii]

Why is the right to legal representation important?

Right to legal representation is universally acknowledged as a fundamental right. Trials in many jurisdictions are considered unfair and fatally irregular if the presiding judge or magistrate fails to inform the accused person his or her right to be assisted by a counsel; if he or she denies the accused his right to appoint a counsel of his or her choosing; if he or she fails to facilitate the effective and full participation of a counsel or if he does any thing that would impede the counsel of the performance of his duty.

A legal representation plays a crucial role in the pre-trial phase in any matter. At the time of arrest, theMiranda warning must be read to arrested person informing him of the reasons for his arrest and his rights including rights to remain silent and to a legal counsel. Once in contact with his client, it is the responsibility of the counsel to seek a bail from the police if the offence for which the accused is charged is a non-felonious offence. Where deprived of his liberty, the counsel always sees to it that the accused is not kept in detention for more than the required period (72 hours in cases of misdemeanor and 10 days in case of capital offenses). During the accused person’s first court appearance, it is the counsel’s duty to apply for a bail for his client as of right.

It is noteworthy that 90 percent of detainees in the 13 prisons across Sierra Leone are either suspects or accused persons, most of which are indegent and without legal representation. [ix] In addition to the fact that counsel protect the rights of the accused when in detention, it most importantly enhances his physical and mental integrity. For this reason the detainee should have unhindered access and communication with his lawyer.

The counsel’s role at the trial stage is most vital. This is because of his knowledge of the applicable laws and rules of procedure in the matter before the court, and his ability to relate them to the fact, sieve relevant, admissible and sometimes complex evidences from what is irrelevant and inadmissible. A layperson may not have the ability to effectively do so and hence the need to hire the service of a legal representative. The importance of a counsel’s participation was succinctly articulated by Lord Denning in his decision in Pett v. Greyhound Racing Association. He had this to say:

“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task?” [x]

The right to legal representation is almost axiomatic in an adversarial system like in Sierra Leone. Under the adversarial system, court proceedings are left between the two parties to fight it out. The bench serves as the umpire and intervenes only to enforce compliance with the rules and ensure fairness of the proceedings. Where it is applied in criminal matters, the adversarial system may result in an incalculable prejudice to the accused person whose liberty or life may be at stake. It is for this reason that accused persons are accorded the right to appoint a legal representation of their own choosing.

Strongly related to the adversarial system, is the principle of equality of arms which is an essential feature of a fair trial. Equality of arms is an expression of the balance that must exist between the prosecution and the defence. The Human Rights Committee in explaining the fair trial principle noted that the requirements of equality of arms and the respect for the principle of adversarial proceedings are not respected where “…the accused is denied the opportunity personally to attend the proceedings or where he is unable properly to instruct his legal representative…” [xi] The African Commission on Human and People’s Rights in its communication regarding Advocat San Frontiers v. Burundu noted that “ the right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial”. They must, in other words, be able to “argue their cases …on an equal footing”. [xii] It is therefore only lawyers who by study and experience have the knack to argue the cases intelligibly and successfully apply the applicable law to the facts of the matter. The Committee had this in mind when it concluded that the Court of Appeal in the Ngozi case “violated the right to equal treatment, one of the fundamental principles of a right to a fair trial”. The matter was a death penalty appeal in which the Burundi Appeal Court had refused the accused person’s plea for adjournment of the proceedings in the absence of his legal counsel, even though it had earlier accepted the same plea from the prosecution.

Finally, the importance of a legal practitioner is not only restricted to disproving the allegations levied in the charges against his client, but once he is in the well of the court, he is considered as an official of that court. He is also there to assist the presiding officials in the effective and fair administration of justice. The Trial Chamber I of the Special Court for Sierra Leone in its decision on the application of the 1^st Accused in the CDF trial, Samuel Hinga Norman for self-representation, gave an insightful opinion on the role of the defence counsel. The Chamber, in determining whether to grant the said accused’s application for self-representation, noted that, “the role of a defence counsel is institutional and is meant to serve, not only his client, but also those of the Court and the overall interests of justice”. [xiii] It further noted firstly that the right of counsel is predicated upon the notion that representation by counsel is an essential and necessary component of a fair trial. Secondly, that the right to counsel “relieves trial Judges of the burden to explain and enforce basic rules of courtroom protocol and to assist the accused in overcoming routine and regular legal obstacles which the accused may encounter if he represents himself, for, the Court, to our mind, is supposed, in the adversarial context, to remain the arbiter and not a pro-active participant in the proceedings”. [xiv]

Conclusion

Given the importance of the right to legal representation in ensuring fair trial in court already discussed, the intimidations, harassments, and vitriolic attacks from some members of the public and the fourth estate on counsels who have opted to represent accused persons in this trial is a worrying development in our justice system.  There is the propensity of the slippery slope tendency of compromising the rights to a fair trial to occur in other cases if it is allowed in the current case of the IG v. Steven Harvey Perez and Others. Allowing undue interference with the application of legal procedure is a bad precedence that may not be applied impartially and therefore destroys anybody it affects. If Sierra Leoneans are to prevent the country relapsing into conflict, it is but necessary that all facet of our society including the Press, Civil Society Organizations including colleagues in the Human Rights field, play prominent roles in ensuring effective and efficient delivery of justice through fair trial practices by our justice system. It doesn’t matter who is involved in an alleged crime or how serious the offence may be. What is important is ensuring that whoever is charged with an offence and brought before the court is tried according to the safeguards enunciated in the Constitution and other international instruments. An accused person is presumed innocent until proven guilty according to law before a competent court. The observance of fair trial principles including the accused person’s right to legal representation in the justice system of any country is a sine qua nom to the promotion and protection of the administration of the rule of law.

[i] Awoko Newspaper, Monday August 11 2003

[ii] Gary Jonathan Bass (Author, Stay the Hands of vengeance: The Politics of Crimes Tribunals)

[iii] Ibid,   para. 34

[iv] Ibid

[v] Huma Paul Mahoney, Fair Trial Rights   in Criminal Matters under Article 6 E.C.H.R, Judicial Studies Institute Journal p.126n Rights Committee, General Comment No. 13

[vi] European Court of Human Rights, Case of Pelladoah v. the Netherlands, 1994 Series A,   No. 297B p. 35, para. 41

[vii] Article 17 (4) of the Statute of the Special Court for Sierra Leone provides the right of the accused to have a legal assistant assigned to him or her, “in any case where the interests of justice so require and without payment by him of her in any such case if he or she does not have sufficient means to pay for it.”

[ix] Letter to H.E. Ernest Bai Koroma of Sierra Leone, Recommendations following the presidential elactions of 2007, available at: http://hrw.org/english/docs/2007/11/13/sierra17321_txt.htm

[x] Pett v. Greyhound Racing Association (1968) 2 All E.R 545, at 549

[xi] Communication No.289/1988, D. Wolf v. Panama (Views adopted in 1992), in UN Doc GAOR, A/47/40 p. 289-290, para. 6.6

[xii] ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No. 231/99, decision adopted during the 28thOrdinary session, 23 October – 6 November 2000 , paras. 26-27 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/231-99.html

[xiii] Prosecution v. Sam Hinga Norman, Moinina Fofanah and Alieu Kondowa, Case No. SCSL-04-14-T, June 2004 p.9, para. 23

[xiv] Ibid, p.10, para 26.

Some Reflections on Ex Post Facto Legislation

by ibakarr | Aug 11, 2016 | Uncategorized

A Cessna plane alleged to have been carrying substances believed to be cocaine landed at Sierra Leone’s international airport at Lungi in July this year. Many people including foreign nationals have been arrested in connection with the incident. Following their arrest, 19 people including two women have already been charged to court with offences ranging from unlawful landing and entry; unlawful possession of arms; malicious damage to government property; to conspiracy to pervert the cause of justice among others, all contrary to law. This event probably expedited the enactment of The National Drug Control Act (2008) under a certificate of emergency from the President. In addition, Parliament by Statutory Instrument No. 10 of 31 July 2008 also amended The Pharmacy Drugs Act by including cocaine among the narcotic substances. These legislations have effected public discussion as to whether or not the accused are going to be charged under the new laws; no drug-related charge has been proffered so far, and the current law on drug is outdated in many respects-it does not meet the needs of present-day realities.

With the Cessna plane episode, both proponents and opponents of ex post facto legislation point to national as well as international instruments and case law precedents as sources of reference in making their case. Thus, it has come time to examine the essential question involved in the issue, the relation of justice to ex post facto legislation: Can ex post facto laws ever be just? This is what this piece will seek to examine.

The essentiality of a right to protection from ex post facto criminal law has generally been accepted without argument. Ex post facto generally means “done or made after the fact; having retroactive force or effect.” [i] Loosely put, it means a law cannot be created tomorrow which will hold a person responsible for something he or she does today. Laws are binding only from the date of their creation or from some future date at which they are specified as taking effect.

The principle has been enunciated in various national and international declarations of human rights. For instance, the Constitution of Sierra Leone, 1991 states in section 23(7) that: “No person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence”. Article 15 of the International Covenant on Civil and Political Rights (ICCPR) which includes a proviso identical to that in sec. 23(7) of the Sierra Leone Constitution states, inter alia: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

The prohibition on ex post facto laws is also found in the Constitution of the United States. It forbids both the Federal Government (Article 1 sec. 9(3)) and the states (Article 1 sec.10(1)) from passing any ex post facto laws or bills of attainder, and many state constitutions contain similar restriction upon their legislatures. On account of these clear and total prohibitions, Americans have the tendency to see all ex post facto laws as the veritable work of the devil-iniquitous, oppressive, devoid of justice, the plaything of tyrants. [ii]

One of the most serious complaints against ex post facto law is that it must necessarily fail to possess one essential element of law-a proper promulgation-since men cannot know the law before it has been made law. This principle is closely linked to the principle that ignorance of the law is no excuse, because that principle relies upon the accessibility of the law for its justification. Ex post facto laws are inaccessible in the sense that they are not knowable at the time when the erstwhile legal acts or omissions occur. Clearly, application of the maxim ignorantia juris non excusat (ignorance of the law is no excuse) to such a situation is unfair as that ignorance is beyond the control of the person in question.

In one aspect, of course, ex post facto criminal laws must clearly be unjust: if the law criminalises acts which are mala prohibita, that is, acts morally neutral in themselves, but wrong because forbidden by just authority, then any degree of retroactivity would, on its very face, necessarily be unjust. As early as 1651, Hobbes wrote: “No law, made after a fact done, can make it a crime…For before the law, there is no transgression of the law” [iii]

The principle of non-retroactivity is manifested in the Missouri Supreme Court ruling in the case of RL v State of Missouri Department of Corrections. In the said case, RL pled guilty in 2005 to a sex crime; specifically to the crime of attempted enticement of a child -Missouri Revised Statutes, sec 556. His sentence was “suspended” and he was put on probation. In 2006, Missouri General Assembly passed a law that states in part: “Any person who, since July 1, 1979, has been or hereafter has pleaded…or been convicted of, or been found guilty of violating…any of the provisions of this chapter…shall not reside within one thousand feet of any public school…” RL lived 1,000 feet from a school that was built in 1988; he had lived in this place since 1997. After the 2006 law was passed, the Department of Corrections informed RL that he needed to move or he would be guilty of a felony and his probation would be revoked.

The Circuit Court of Cole County ruled that the 2006 law is an unconstitutional retrospective law as it applies to RL and anyone in a situation like his. The Supreme Court of Missouri agreed with (affirmed) the Cole County Circuit Court. In another example, in Doe v Philips, the Supreme Court of Missouri ruled that requiring someone convicted of a sex offence crime to register as a sexual offender when the crime had occurred prior to requiring registration was a retrospective law and, therefore, unconstitutional.

Intuitively, one recognises that it is ethically wrong to impose punishment for morally neutral acts before just authority has forbidden them.

For apologists against the principle of non-retroactivity, they claim that it is associated with the retributive theory of punishment, as opposed to the deterrent theory. A new law is always enacted in the persuasion that it is better than the former one. Its efficacy, therefore, must be extended as far as possible, in order to communicate the expected improvement in the widest sphere. [iv]

Proponents of retrospectivity only argue for the making of retroactive laws in ‘exceptional circumstances’: in situations where the wrongdoer’s acts or omissions were morally wrong, though legal at the time that they were committed, that is, where the wrongdoer has transgressed the “natural law”.

The right to protection from retroactive criminal law is well recognised throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been ignored or (at the very least) circumvented. In some case, accused persons are punished for committing acts which were not criminal at the time that they committed those acts: they are found guilty retrospectively. Clearly, then, the right to protection from retroactive criminal law is not an absolute human right.

The Nuremberg trials were undoubtedly an imposition of ex post facto law. Despite protestations, most jurists rationalised the behaviour of the Nuremberg court by claiming that the actions of the Nazis were so immoral as to be an exception to the principle of non-retroactivity. It is at least arguable that finding Nazis guilty of war crimes “in the traditional sense” is as much the application of an ex post facto law as the punishing of people who deserve punishment according to the “sound feelings of the people”.

One landmark case in which retroactivity was employed is Shaw v Director of Public Prosecutions (1961).Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959. He was convicted on a charge of “conspiracy to corrupt public morals” on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes “…to debauch and corrupt the morals of youth and other subjects of the Queen”. Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown or innominate. All five law lords upheld the conviction. The majority built their argument upon the notion, put forward by Lord Mansfield almost two hundred years earlier, that the courts are “guardians of public morals” and that they ought to restrain and punish.

In another case, R v Manley, the accused (Manley) made false allegations of robbery to the police. Before the Court of Criminal Appeal, she was found guilty of “unlawfully effecting a public mischief”. This decision was widely attacked as being an example of ex post facto punishment, as no such crime existed before the case.

The fact of the matter is that both Manley and Shaw were found guilty of having committed crimes that were not recognised as such when they committed the acts in question. They remain as examples of how the principle of non-retroactivity has not been universally applied in British courts.

The American constitutional framers, despite their ban on retroactivity on both the federal and state level, did not completely foreclose that option, for the amendment process can still enact, or allow to be enacted by lesser bodies, ex post facto laws.

The case in question has the propensity to be landmark. The question is: Are the acts or omissions of the accused so immoral as to be exception to the principle of non-retroactivity? One important thing to note is that section 106(5) of the Constitution of Sierra Leone, 1991 gives power to Parliament to make laws with retrospective effect. The said sec. states that: “No law made by Parliament shall come into operation until it has been published in the Gazette, but Parliament may postpone the coming into operation of any such law and may make laws with retroactive effect”. Thus whilst sec. 23(7) ensures protection from retroactivity, sec. 106(5) seem to state otherwise. However, if Parliament invokes the power of the said section to be applicable to the case under consideration, it is very likely that it will warrant a serious contention on the part of the defence that such application contravenes an earlier provision of the Constitution- that is sec. 23(7). Such contention can only be determined by the Supreme Court pursuant to sec. 124(1)(a) which states “The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all other Courts-in all matters relating to the enforcement or interpretation of any provision of this Constitution”. Aside from that, in spite of Parliament having the power to “make laws with retroactive effect”, if such law(s) run contrary to the Constitution, it automatically becomes null and void. This is in accordance with sec. 171(15) of the Constitution: “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”.

Also, although Parliament may alter the Constitution pursuant to sec. 108(1) which states “Subject to the provisions of this section, Parliament may alter this Constitution”, subsection 3 of same states that “A Bill for an Act of Parliament enacting a new Constitution or altering any of the following provisions of this Constitution, that is to say-(a),(b), and (c) shall not be submitted to the President for his assent and shall not become law unless the Bill, after it has been passed by Parliament and in the form in which it was so passed, has, in accordance with the provisions of any law in that behalf, been submitted to and been approved at a referendum”. That is to say, the paragraphs of subsection 3 which covers Chapter III where sec. 23(7) is rooted are entrenched clauses of the Constitution; they can only be amended or altered after a vote in a referendum.

In a resume therefore, the unending rambling as to whether or not the accused are going to be put on trial under the new laws is largely left with the court, in particular the Supreme Court, and the people of Sierra Leone to decide, if, and only if ever it comes up for determination. Be that as it may, however, ex post facto laws can be a recipe for abuse of individual liberties. Clearly, people would feel uneasy, for the use of devices of ex post facto law and bills of attainder always carries with it great practical risks. Carelessly or wilfully misused, these devices are a blood-drenched sword in the hand of a despot.

[i] Black’s Law Dictionary; Seventh Edition

[ii] Free Life; The Journal of the Libertarian Alliance, Vol. 7: No.1

[iii] Criminal Law Journal, vol. 13, no.4, August 1989, pp1

[iv] Ibid, pp3

The Need for Implementation of Major Provisions of the Child Rights Act of 2007 in Juvenile Justice in Sierra Leone

by ibakarr | Aug 11, 2016 | Uncategorized

The enactment of the Child Rights Act (CRA) in June 2007 provides for a marked improvement in the administration of juvenile justice in Sierra Leone that is consistent with international standards. The Act provides for the promotion of the rights of the child compatible with the Convention on the Rights of the Child (CRC) which was adopted by the General Assembly of the United Nations on 20^th November, 1989 and its Optional Protocols of 8^th September, 2000; and the African Charter on the Rights and Welfare of the Child and for other related matters.

Prior to the passing of the Act, children in conflict with the law were tried under the Children and Young Persons Act of 1945. The passing of the Child Rights Act has however brought arguments in the courts in deciding which takes precedence as it makes amendments to certain sections of the Children and Young Persons Act, commonly referred to as Cap 44. This article is therefore set to carefully look at the major provisions made in the CRA as opposed to Cap 44 while also examining the legality of both, and proffers recommendations.

Under Cap 44, there is a distinction between a child and a young person which is in contrast with the provision made in the Child Rights Act. In Cap 44, (Part 1 Sec II) a child is defined as any person below the age of fourteen years and a young person as some one “…who is 14 years of age or upwards and under the age of 17 years”. The Child Rights Act defines a child as any person below the age of eighteen years which is in line with international standards. Even though the age criterion is clearly defined here, the court is finding it very difficult to ascertain the age of persons brought before them as some people outgrow their age whilst others appear younger than their actual age. There are several of such cases in court pending investigations. The process is very slow as there is only one police doctor dealing with age assessment for juveniles. In addition, police prosecutors have to ask for several adjournments to the annoyance of the sitting magistrate and sometimes also the defence. Most of these juveniles in question are sent to the Pademba Road Maximum Prisons mostly when the court finds it impossible to determine their correct age whilst awaiting their results. At the time of writing, at least four ‘juveniles’ are remanded at Pademba Road awaiting their fate.

The age of criminal responsibility is another distinction between the Child Rights Act and Cap 44. Under Cap 44, the age of criminal responsibility is ten years but the CRA has increased it to fourteen years. At present, there is a case pending in the juvenile court in Freetown in which the defense has applied for charges to be dropped against his client whom he claimed to be below the age of criminal responsibility. The prosecution objected to this claim on the grounds that the CRA is not the only document dealing with juvenile justice and asked for the case to be adjourned to a later date to allow him the opportunity to go through Cap 44. This controversy does not only hinder the speedy trial of the young offenders concerned, but has led to their persistent detention pending trial which contravenes international human rights law which states that the deprivation of liberty of the juvenile shall be used only as a measure of last resort (Art. 37 b). The Committee on the Right of the Child’s recent General Comment No. 10 was in fact very insightful on controversies resulting from the determination of the minimum age of criminal responsibility. It stated “… in case of conflict or inconclusive evidence, the child shall have the right to the rule of benefit of doubt (CRC/C/GC/10: Children’s Rights and Juvenile Justice, 2007, para. 22)

In addition to this, under Cap 44, a juvenile is only tried in a juvenile court for crimes committed.   Part 5 of the Child Rights Act however makes provision for the establishment of a Child Panel and a Family Court. The Act establishes a Child Panel in each district which shall have non-judicial functions to meditate in criminal and civil matters and shall comprise of a Chairman, a member of a women’s organisation, two citizens from the community, a district social welfare officer, etc and one of its functions is to facilitate reconciliation between the child and any person offended by the child.

The establishment of the child panel to perform mediatory role in both criminal and civil matters involving the child offender and the offended is quite a laudable one as it formally introduces some form of a restorative justice method- a diversionary measure consistent with international human rights standards (Article 40 (3) of the CRC), which obliges state parties to promote measures that will deal with children in conflict the law without resorting to judicial proceedings. Whether or not it was practiced within communities, it was merely done in a legislative vacuum. Enacting the practice in legislation aimed at promoting the rights of children in the country goes a long way in making it enforceable and binding.

Section 17 makes provision for the establishment of a family court consisting of a panel with a chairman, who shall be a magistrate and not less than two and not more than four other members who are appointed because of their wealth of knowledge in child right issues.  Its composition shall include a social welfare officer appointed by the Chief Justice on the recommendation of the Chief social welfare officer. It shall have jurisdiction over a number of cases including custody, parentage, access, etc and shall sit in a’… different building or room from that in which other sittings are held, or on different days from those on which other courts are held…’[Sec 79 {1}]. The Family Court shall not be open to the public and it shall be as informal as possible in which the child shall have a right to give an account and express his/her opinion freely and shall have a right to privacy and be respected through out the proceedings. The identity of the child in the Family Court shall not be made known to the public and any one who contravenes this shall be liable to pay a fine not exceeding two million Leone or a jail term of one year or both.

Apart from the Family Court’s main function of adjudicating in child custodial and maintenance matters, it may commit the child to an approved residential home or to the care of a probation officer, social welfare officer or other suitable person’ for a maximum period of three years or until the child attains the age of eighteen’ having determined that a child referred to it by the Child Panel established under Sec. 71, is a victim of child abuse and/or in dire need of care and protection. A child is in need of care and protection if he/she is an orphan or deserted by his/her parents, neglected or ill treated by the person in whose care and custody s/he is in, is a destitute, a street urchin, found begging or receiving alms etc.

The Child Rights Act categorically repeals part 4 of the Children and Young Persons Act which states in Sec 27 [1] that ‘Any administrative officer, police officer above the rank of sub-inspector or authorized person may bring before a juvenile court any child or young person…’ who is found begging, wandering, exposed to moral danger, persistently ill-treated or neglected by his parents, etc. After examining the matter, the court can order him/her to be sent to an approved school or  ‘commit him to the care of a fit person, whether a relative or not, or any institution willing to undertake the care of him until the child or young person attains the age of 18 years or for any shorter period”.

The important contrast here is that, while Cap 44 criminalizes a social problem as mentioned above by taking the juvenile to court, whose mere appearance in a formal court room (as there has been no separate building for juveniles) has the potential of impeding his/her harmonious development, Sec 62[1] of the CRA takes much more of a welfare approach by channeling the child through the Family Court where proceedings takes the form of an informal business, without the child feeling an iota of a threat, but allowed to freely express his/her views and opinions without fear.

The Child Rights Act also repealed the Corporal Punishment Act, which was used partly in the dispensation of justice in juvenile matters. Convicted offenders were either publicly flogged in court or were sent to the Approved School or remanded at the Remand Home in Kingtom where they were flogged for failing to comply with the rules.

From the above discourse, the issue of concern is which of the two Acts should be accepted with regards the changes made in the Child Rights Act as opposed to Cap 44.   A lot of arguments are on going in court especially with regard to the age of criminal responsibility. According to the statutory interpretation in Sierra Leone, if two Acts are in conflict the latter takes precedence. Therefore if this statutory interpretation should hold sway in this situation, the Child Rights Act, which came into existence in 2007 should take precedence over CAP 44 which was enacted in 1945, and provisions made contrary to the latter should be acceptable in the juvenile justice system.

In conclusion, it is clear that the Child Rights Act is geared towards improving the status of the juvenile justice system in Sierra Leone to some extent even though most of its provisions are yet to be implemented. The court should endeavour to create harmony between the two Acts i.e. the Child Rights Act and CAP 44, so that justice can be seen to be done. In order to achieve this objective, those dealing with juvenile issues should be well grounded in both Acts. Also certain changes introduced by the Child Rights Act should be effected such as the establishment of the Family Court and the Child Panel in every district, increase in the number of doctors dealing with age assessment of juveniles to expedite the process and lastly regular training exercises to be carried out for those dealing with juvenile justice as the key condition for a proper and effective implementation of the rights or guarantees enshrined to protect children in conflict with the law.

1.         Child Rights Act, June 2007

2.         Cap 44, Children and Young Persons Act, 1945

Right to a Fair Trial in Criminal Matters: The IG v Harvey Steven Perez & Others

by ibakarr | Aug 11, 2016 | Uncategorized

“Injustice anywhere is a threat to justice everywhere” Martin Luther King

The case of The Inspector General of Police v Harvey Steven Perez & Others commenced on Friday, 1^stAugust 2008 at Magistrate Court No. 1(a) in Freetown before Principal Magistrate Tarawallie Deen. The accused including two women are standing trial for various offences ranging from unlawful possession of small arms; unlawful entry; malicious damage to the perimeter fence valued at Le 20million; unlawful landing; conspiracy for unlawful landing; conspiracy to pervert the cause of justice; to conspiracy to aid the escape of fugitive offenders with the aim of perverting justice; all against the laws of Sierra Leone. Since the inception of the said matter, a plethora of concerns have surfaced which borders on a range of issues relating to fair trial rights.

This piece will attempt to discuss some fair trial provisions as entrenched in both national and international instruments insofar as they relate to the issues raised therein.

One foremost pre-trial right is the right to be brought promptly before a judge or other judicial officer for the determination of any criminal charge against him. This right was flouted in the matter in question. The accused were charged to court on 1 August 2008; over two weeks after they were arrested in contravention of an entrenched provision in the Constitution of Sierra Leone 1991, which states in sec. 17(3) that “Any person who is arrested or detained…shall be brought before a court of law-(a) within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences; and (b) within seventy-two hours of his arrest in case of other offences;” It also violates sec. 10 of the Criminal Procedure Act 1965 which reads “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”. This violation was brought to the attention of the Court by the defence during the first hearing. Premised on the right to be presumed innocent, and treated as innocent, until and unless they are convicted according to law in the course of proceedings which meet at least the minimum prescribed requirements of fairness, their right as enshrined in legislations should be respected.

The presumption of release pending trial, a pre-trial right guarantee, is also a concern in this trial. Relying on the presumption of innocence, accused in criminal matters should normally be granted release pending trial. Articulating this principle, sec. 79(4) of the Criminal Procedure Act, 1965 provides that: “A person may be admitted to bail at any time, and thereupon shall be discharged from custody or prison if he is not detained for any other cause”. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. In interpreting this provision, the UN Human Rights Committee has ruled that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Bail is often refused “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” Roland SV Wright, defence counsel for the 10^th Accused, in his submission for the Magistrate to reconsider his application for bail had this to say: “I implore you, Your Worship, to peruse the charges my client is facing-breaking a fence. I am sure your Worship has readily granted bail to more serious offences than breaking a fence. He is locked up in solitary confinement for breaking a fence. And for that allegation, his entire future is in jeopardy”. He further stated that “we are ready to meet whatever stiff bail conditions Your Worship will be inclined to give”. In replying to the application, state counsel, Gerard Soyei, on behalf of the prosecution urged the Magistrate to refuse bail and adopted the reasons submitted earlier by the Director of Public Prosecutions in the proceedings. The defence’s application for bail was refused. However, juxtaposing bail conditions in general and the offences charged in particular, the refusal to grant bail can probably be a misnomer.

At the trial, an essential criterion of a fair hearing is the principle of “equality of arms” between the parties in a case. Equality of arms, which must be observed throughout the trial process, means that both parties are treated in a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an equal position to make their case. In the context of criminal proceedings, what the principle of equality of arms means is that the defendant must have “a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage viz-a-viz the prosecution”. In the said case however, this provision seem to be compromised. The defence have complained of limited access to their clients at Pademba Road Maximum Prison where the accused are held in custody. They claim that the prison authorities have imposed an excess of unnecessary, unreasonable, and discriminatory restrictions that are not applicable to other detainees facing similar, or if not, more serious offences than their clients. They further allege that they need to have a pass, signed by the Attorney-General and Minister of Justice, who is also a party to the case under consideration, before they can be granted access to see their clients at the Pademba Roads prison. This practice by and large undermines the principle of equality of arms.

Another trial right that is under threat in the current matter is the right to confidential communications with counsel. Some counsel have alleged that their clients’ privilege consultations, that is, lawyer-client confidentiality, have been subjected to gratuitous bureaucratic bottleneck and interference. A defence counsel in the said trial, Easmon Ngakui, who is Secretary General of the Sierra Leone Bar Association, said that a prison officer was within hearing distance when he was talking with his client; thus undermining the right in question. Communications between the accused and their counsel are confidential. The Human Rights Committee has explained that Article 14(3)(b) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to communicate with counsel, requires “counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications”. For people in custody, the authorities must provide adequate time and facilities for the accused to meet and have confidential communications with their lawyers, whether face to face, on telephone, or written. Such meetings or telephone calls may take place within the sight but not within the hearing, of others.

The conditions in which persons detained must not violate international standards. Rule 60(1) of the Standard Minimum Rules states that “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”. This said right is being seriously violated as alleged by the defence. Solomon A.J Jamiru, defence counsel for the 6^th Accused, noted in Court that his client is being subjected to excessive hours of confinement for over twenty-three hours a day; he is only taking out of his room for about quarter an hour a day. Another defence counsel, J. Fornah-Sesay, maintained that his client was made to take an intra-venous medication whilst laying on the floor of his cell. Such practice violates sec. 20(1) of the Constitution of Sierra Leone 1991, which reads “No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading”. The collapse of the 15^th Accused in Court on 22 August instant perhaps underscores the abovementioned allegations.

Justice is based on respect for the rights of every individual. As the Universal Declaration of Human Rights puts it, “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. How a person is treated when accused of a crime provides a concrete demonstration of how far that state respects individual human rights. Every criminal trial tests the state’s commitment to respect for human rights. Every government has the duty to bring to justice those responsible for crimes. However, when people are subjected to unfair trials, justice cannot be served.

The current case before the Court is a litmus test for the judiciary: if managed well, it will show that indeed it is the “temple of justice”; if not, it will make concrete the overwhelming consensus among legal practitioners, politicians, journalists, professionals and the lay public that the Sierra Leone judiciary is failing to deliver fair and impartial justice. It therefore behoves everyone connected with the matter in question to work assiduously to ensure that justice is seen to being done.