by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The judicial power in Sierra Leone is vested in the judiciary of which the Chief Justice is the Head. The judiciary have jurisdiction in all civil and criminal matters. In previous articles we have discussed a lot about the judiciary. This article however, will be looking at the inadequacies of the Judiciary with more emphasis on cases dealing with child/juvenile, women, fair trials, speedy trials and police prosecution.
Child/Juvenile
A child is defined under the Children and Young Persons Act as a person under the age of 14 years and a juvenile is defined as a person between the ages of 14 and 17.However under the Child Rights Act which was passed in March 2007, the age of the child/juvenile was harmonized. Now, a child/Juvenile is anyone under the age of 18. Because of the vulnerability of anyone who is under the age of 18, it is the responsibility of a state according the Article 14 of the International Covenant on Civil and Political Right, to recognize the rights of every child accused of a criminal offence to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, taking into account the age of the child, desirability of promoting the child’s reintegration and assumption of a constructive role in society. This means that the best interests of the child should be the primary consideration in all actions including those undertaken by courts of law
However, juvenile cases are not treated with the seriousness they deserve. They are listened to only once every week, Wednesdays. A Magistrate and two Justices of the Peace listen to these cases. However, in the case where one is absent, that is either of the justices of the Peace or the magistrate, a verdict cannot be reached. In essence, instead of these juveniles being reformed they end up being more decayed and troublesome than ever. Furthermore, the fact that these cases are listened to only on Wednesday’s shows that they are not dealt with speedily. All cases dealing with juveniles should be dealt with expeditiously. To ensure that cases are dealt with expeditiously, Section 71(2) of the Child Rights Act makes provision for a number of child panels to mediate in civil and criminal matters of a child /juvenile and a Family Court which will look at matters concerning parentage, custody and access and maintenance of children
Privacy and Confidentiality
Also there should be privacy in dealing with juvenile cases. Section 81(3) and (1) of the Child Rights Act respectively states that these cases should be held behind closed doors and in relaxed settings to prevent intimidation and stigmatization of the child. . This is not currently what is happening. A typical example is seen in a sexual abuse case in court No.3 where the victim was ridiculed by the defence lawyer. Rule 8.1 of the Beijing Rules states that “The juveniles’ right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling”. Rule 8.2 further states that no information leading to the identification of the juvenile offender should be published.
Children/Juvenile’s Right to Fair Trials
Fair trials are basic human rights accorded to any individual in conflict with the law, which when violated makes innocent people of any crime face conviction, imprisonment and even execution. Some of these rights are the right to privacy, the right to legal aid and so on. However, there are special cases with special rights because of their vulnerability. One of such cases is that of Juvenile/children. Juveniles are accorded rights like, the right to be separated from adults in detention . Children in prison should be separated from adults and must be afforded treatment which is appropriate to their age and legal status. There is the case of a boy who has been imprisoned for years because he stole logs of wood. This boy was arrested on the streets and taken straight to Pademba Prisons without the police taking any statement from him or informing his parents about his arrest. This boy has never been taken to court,. consequently, the boy has started showing signs of insanity. This contradicts article 14(4) of the ICCPR which talks about the promotion of physical well being and mental health of the child and this is a serious flaw in the judicial system.
Most times the police do not contact the parents of the juveniles when they are arrested thereby contradicting the juvenile’s right. These juveniles are kept at the police stations for very long period without contacting their parents or guardians. Under article 9(4) of the Convention of the Rights of the Child and Rule 0.1 of the Beijing Rules, they have the right to inform their parents so long as it is not detrimental to the best interests of the child. Both national and international standards allow children to be arrested, detained or imprisoned only as a last resort and for a short period of time.
Women
One issue that should be taken seriously that does not happen in the judiciary is that of women.. Even though women are vulnerable, they are often subjected to embarrassment disgrace and stigmatization. A case in point was a matter which was before court about a girl that was gang raped after her school’s prize giving. When the case was brought to the magistrate court the appropriate charges were not levied. The case was however taken up by a group called LAWYERS who applied that the case be brought to High Court. At the High Court level the judge, when passing verdict said the most gulling of things, that the girl was a “wayward girl”. This case shows how women continue to be vulnerable despite the enactment of the three gender parity acts in 2007. That girl could be ruined maybe even for life as she came from a very poor family who cannot afford the expensive medical treatment. She was hospitalized for about three months in a hospital where much was not done to help her. This is the reason why most women when raped, don’t take their cases to court because they are afraid of being stigmatized and embarrassed. They are not even sure of having their privacy respected as it should be under the Domestic Violence act
General Fair Trial Provisions
Section 23(5) e of the Sierra Leone Constitution makes provision for the right to the assistance of a competent interpreter, free of charge if the person does not understand or speak the language used in court. They also have the right to have documents translated to them. This is very crucial to the right to adequate facilities to prepare a defense and the right to fair trial. Without such assistance an accused may not be able to understand and participate fully and effectively in the preparation of their defense and at trial. The possibility of an accused or witness being questioned about the contents of the documents makes the right to translation a necessary prerequisite of the right to a fair trial. This is one flaw in the law Court as they do not have interpreters. The clerks in the different courts serve as interpreters. As it frequently happens, just from nowhere, the court will ask individuals to volunteer to interprete for a case without the requisite understanding of basic rules of translation. Given that court clerks and the people from the audience are not trained interpreters, it leads to people losing their cases.
Right to Speedy Trial
There is also the problem of the lack of expeditious trial in the courts.. They make several adjournments either because there is no evidence, or the witness is absent, or the prosecutor or defence counsel is absent contrary to Section 23(1and2) of the Constitution of Sierra Leone, 1991. Furthermore, it contradicts article 14(3) c of the ICCPR, article 7(1) d of the African Charter, which states that criminal proceedings must be started and completed “without undue delay. Quite recently in a case between the state and a juvenile, the charge being unlawful possession of small arms, the police prosecutor wanted the magistrate to adjourn the case but the defense council, Yada Williams insisted that the case should go on as the police had no valid reason why the case should be adjourned . He pointed out that this is why people do not receive speedy trials in the Court of law in Sierra Leone.
Right to Legal Aid
Section 17(2) of the Sierra Leone 1991 Constitution, states that everyone in detention or facing a possible criminal charge has the right to the assistance of a lawyer of their choice to protect their rights and to assist in their defense. Also, the person must be given adequate time and facilities to communicate with their lawyer. Under international standards, if a person cannot afford to hire a lawyer, effective and qualified counsel must be assigned.. The National laws make provision for free legal aid depending on the seriousness of the case otherwise if the defender does not have legal counsel he defends himself in court.. The assistance of a counsel is a primary means of ensuring the protection of the human rights of people accused of criminal offences and in particular their right to a fair trial. Most times people who do not have legal counsel or legal advice end up losing their case.
The Incompetence of Police Prosecutors
In Sierra Leone we have shortage of state lawyers that normally works in the Law Officers Department. Hence the police step in their place to prosecute cases in the National Courts. However, these Police prosecutors because they lack adequate and up to date training on how to prosecute matters, they most times do not do their job well. They often come to court either unprepared and give excuses such as forgoting the files at their office. Most times the victims end up losing their cases as a result of their incompetence. It also leads to delay in trial proceedings. I remember a case in court No. III wherein magistrate Shyllon had to adjourn the case to another date because the police prosecutor did not come with the bench warrant file. What they need is intense and proper training inorder for them to be qualified to prosecute cases…
Conclusion
The above observed inadequacies in the judicial system in Sierra Leone is cause for concern and should be looked at and remedied immediately, otherwise this will continuously lead the Judiciary to derailment.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
Delay in criminal justice administration, especially in the trials of juveniles, has been a subject of long debate. In adjudicating matters involving children in conflict with the law, international laws lay down specific requirements to which states should adhere to. Rule 20 of the Beijing Rules states that ‘each case shall from the outset be handled expeditiously without unnecessary delay.’ Further, Article 40 (2) (iii) of the Convention on the Rights of the Child states that any child in conflict with the law shall ‘… have the matter determined without delay by a competent, independent and impartial authority’. Sad to note, however, that in Sierra Leone, these international provisions are not being strictly followed. It is disheartening to note that juveniles are held in custody for a long time before any charge(s) are brought against them. That aside, when they are charged, they are most often held in detention together with their adult counterparts for periods longer than they would have served if they were found guilty as charged. This article therefore seeks to examine the reasons responsible for delay and its impact on juvenile justice in the country. It will conclude by proffering tenable recommendations that will help avoid delay in juvenile trials.
Who is a Juvenile?
There are several definitions put forward to explain the meaning of a juvenile. According to the ‘Beijing Rules’, a juvenile is defined as ‘a child or young person, who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult’. There is however no age criterion here unlike the Convention on the Rights of the Child which defines a juvenile as ‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. Also, the Children and Young Persons Act (Chapter 44 of the Laws of Sierra Leone 1960), which govern the treatment of juveniles in conflict with the law generally apply to any one below the age of 17. It contains both welfare principles and punitive methods for reforming and rehabilitating child offenders. As a result, it lays stronger emphasis on welfare approach rather than punishment in the treatment of child offenders. Section 24 of same provides that no child shall be sentenced to imprisonment; instead convicted children should be given other forms of punishment such as remittance to an Approved School for a specific period of time or repatriation to the child’s district of origin.
Delay in Trials
There are several factors which contribute to delay in juvenile trials with its attendant impact on the administration of juvenile justice in Sierra Leone. However, a few of the notorious ones will be discussed.
Lack of transportation to convey juvenile offenders to court is amongst the greatest factors contributing to delay in the trials of juveniles. Many a time, court officials including magistrates, Justices of the Peace, and court clerks together with counsel will appear in court only to be told by the Officer-in Charge of juveniles from the Ministry of Social Welfare, Gender and children’s Affairs that the juvenile offenders cannot come to court because of lack of transportation. For example, on the 6th February 2008, juvenile offenders who were to make an appearance in court did not show up because, according to the Officer-in Charge, there was no vehicle to take juvenile offenders to court. This happens too often to the annoyance of not only members of the judiciary and the Bar, but also those of the public who have an interest in the case. The only option left with the presiding magistrate during such situation is to adjourn.
Another notable factor for delay is that the time allocated for juvenile trials is insufficient. In Freetown, for example, juvenile cases are heard only for about four hours per week. That is, from about 10:00am to 1:30pm on every Wednesday. Further compounding the problem is that there is only one juvenile court ( Magistrate Court no.3) in Freetown responsible for trials involving juvenile offenders. Considering the volume of juvenile cases to be heard, it is practically impossible for Magistrate Shyllon together with the two Justices of the Peace who arbitrate juvenile cases to fully exhaust all matters before them in such a limited time. As such, they (arbitrators) on several occasions have to adjourn those they cannot attend to the next sitting.
Also coupled with the above is the absence of Justices of the Peace to sit on juvenile matters. Since the Magistrate alone cannot adjudicate on matters involving juveniles, but does so together with two Justices of the Peace, any absence by any one invariably leads to an adjournment. This helps to slow down the trial progress. In addition, absence of complainants/victims/witnesses to help in the prosecution of juvenile offenders hinders the speedy trial of cases. When they are not in court, the prosecution usually asks for a date mostly to the chagrin of both the offenders and public. On the 13th February 2008, for instance, the Justices of the Peace were absent for reasons that were not explained in court. Such practice is gradually becoming frequent with juvenile offenders bearing the brunt of this malaise.
Lack of legal representation for offenders is another cause of delay in trying juveniles. In many cases, juvenile offenders are not represented even in alleged felonies. Since they (juvenile offenders) lack the technical expertise to adequately represent themselves, they are hardly treated seriously by court officials. Also, magistrates are more likely to hear cases in which offenders are represented. Thus, their cases are frivolously adjourned time and time again leaving them at the mercy of God and the Court.
Impact on Juvenile Justice
Delay in juvenile trials has appalling consequences and undermines the integrity of the justice system as a whole in the country. The snail-pace manner in which most juvenile cases are heard makes room for juvenile offenders to be falsely imprisoned and under inhumane conditions. This situation has brought in its wake a number of other problems that the juvenile justice sector has had to grapple with. Most Remand Homes in the country are badly in need of reforms. These include lack of security, insufficient food, poor sanitary facilities, aggression and violence among inmates, high rate of illness and other health threats and organized rehabilitation programs for inmates.
Also, there is increased likelihood of recidivism and re-offending as some juveniles are cramped in cells at the Maximum Pademba Road prison with their adult counterparts as there are no separate cells for first time offenders and hardened adult criminals. This practice contravenes section 85(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners. The said section states that ‘young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions’. Thus, juvenile offenders come out of detention centres as hardened criminals contrary to the aim of juvenile justice- reforming and rehabilitating of juveniles. An example of juveniles transforming themselves into hardened criminals was demonstrated in February this year when inmates at the Remand Home at Kingtom went on the rampage and escaped after their trials had been persistently adjourned due to the absence of the Justices of the Peace. The Officer-in-Charge, noted that majority of those that escaped from the centre were instigated by inmates brought in from the Pademba Road Maximum Prison.
Also, the Remand Home is made up of three dormitories for boys and two for girls and each is supposed to house ten inmates. This structuring of the detention centre has the unfortunate consequence of providing offenders with the opportunity to hatch dangerous plots such as taking a consensus decision to escape from the centre or to cause unusual alarm in a bid to attract the attention of the Officer-in-Charge. In addition, the centre lacks appropriate systems to creatively engage the minds of inmates such as training facilities for skills development. Most of the time inmates loiter about the centre with hardly anything creative to do. In the provinces, (with the exception of Bo) the situation is even worse as there are no separate detention facilities for juveniles. Juvenile offenders are detained with adults for very long periods of time mostly in unfavorable conditions. This directly contravenes the provision of Chapter 44 of the Laws of Sierra Leone of 1960 which states: ‘it shall be the duty of the Commission of police to make arrangements for preventing so far as practicable, a child or young person while in custody from associating with an adult, other than a relative, charged with an offence’
In addition these juveniles are not safe with their adult counterparts whilst in custody as they are very vulnerable. They can be sexually abused by adult detainees. Also, the lack of basic health care is a major challenge that offenders have to contend with. Many are exposed to dangerous diseases and other health hazards whilst in custody due to over crowding in cells.
Detention of juvenile offenders can also lead to distortion of their developmental potentialities. Many end their careers in detention as there are no forms of rehabilitation processes at present in the detention centres where they are kept.
Conclusion
From the foregoing, it is evident that delay negatively impacts juvenile justice with far reaching consequences on criminal justice administration in the country as a whole. In order to help remedy the situation, certain structures should be put in place.
Remand Homes should be provided vehicles as it is in the case of the Maximum Pademba Road prison with adequate logistics such as provision of fuel to be transporting offenders to and from the courtroom on a daily basis. This will help eradicate too many adjournments as a result of offenders not being in court.
There should be a separate court that is charged with the sole responsibility of trying juvenile offenders. This is so because juvenile cases are most often prejudiced against when dealt with along side adult matters. Alternatively, there should be an increase in the trial time and the number of days juvenile cases are heard in court. A minimum six hours of three days per week would help speed up the trial process considerably.
Furthermore, the code of conduct for judicial officers should be implemented to the letter. In cases where Justices of the Peace or magistrates do not proffer convincing reasons for not showing up in court, disciplinary measures should be taken against them. Also, they bench should issue out bench warrants for witnesses/complainants/victims who persistently fail to turn up for trials. Such a measure will definitely help in expediting the trial process.
There is the ever present need for legal representation to be provided for juvenile offenders whenever they are in conflict with the law. They justice system should not be bias against them simply because they are children. They have rights too, and those rights need to be equally protected as in the case of adult offenders.
by ibakarr | Aug 11, 2016 | Uncategorized
The year 2007 will go down as one of the most significant in Sierra Leone’s legal history, with the enactment of what are collectively referred to as the “Gender Acts’. After intense lobbying, campaigning and demonstrations the Domestic Violence Act 2007, the Devolution of Estate Act 2007, and the Registration of Customary Marriages and Divorce Act 2007 were passed into law. The outlines of the provisions of these three Acts have been dealt with exhaustively in previous articles. However a brief recap is provided in this article for those who have not been privileged to read it.
Previously, customary laws were largely unwritten.
With the enactment of the Registration of Customary Marriage and Divorce Act, all customary laws have been harmonized. This Act also introduces the age of consent and also that both spouses should consent to marriage. Another important thing is that all customary marriages and divorces are registered in order to prove the validity of marriages and divorce. In essence any one who has contracted customary marriage cannot afterwards contract another type of marriage with another person, until both of them are divorced. A woman now has the right to obtain and dispose of her property as and when she likes. In addition, a woman will not be required to return her dowry at the end of a marriage, or any gifts made to her during the course of the marriage, and will as such not be forced to stay in a marriage merely because her family cannot repay.
The law on succession of property at death where there is no will, which previously varied considerably according to the different type of marriages one contracted, is now harmonized, in the Devolution of Estate Act. The new law makes provision for inheritance by spouses which includes people who have cohabited for more than 5 years and children which includes those born with people other than legal spouse during the marriage but is accepted and recognized by the spouse.
The Domestic Violence Act, outlaws sexual violence, physical, emotional, economical and verbal violence, and makes provision also for mediation or prosecution. It also provides for protection orders as a preventative rather than just punitive measure, to regulate the parties’ behaviour.
That said, I will now focus on examining the implications of the Acts on Sierra Leone’s legal framework in particular and the national society in general.
Enhancement of women’s rights
One of the most obvious implications of these Acts is the enhancement and/or improvement of women’s right in Sierra Leone. The previous state of the national law was open to scathing criticism in that it left a lot to be desired in relation to women’s enjoyment of certain basic rights on an equal footing with men. For example laws on inheritance, contained in Cap 45 of the Laws of Sierra Leone 1960, was glaringly lopsided when addressing the right of a woman to her deceased husbands estate, when compared to the right of the husband in a similar situation.
The new Acts aim to establish equality for men and women in the enjoyment of certain rights. They also work towards fulfilling the obligation by the State to protect all within its borders from violence. The Domestic Violence Act comes as great relief to women who are attacked and persecuted within the home, and previously had little or no protection from the law. The Registration of Customary Marriage and Divorce Act comes in aid of women who are married under customary law and previously had no concrete evidence to prove it, leaving them at the mercy of unscrupulous husbands who may seek to ditch them on the basis that their marriage is not documented.
Domestication of International Obligations
Sierra Leone is a signatory to a number of international and regional human rights instruments. Most particularly for the purposes of this article is the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Of significance is article 3 of the Convention, which obliges State Parties, among other things, to undertake appropriate measures in all fields, including introducing some legislation, to ensure the equal rights of women. The previous state of the law exposed Sierra Leone to a lot of criticism in international circles. The provisions contained in the Gender Acts are indicative of Sierra Leone’s leap towards bringing its legislations in line with its international obligations. Despite this development, it is important to note that there are few more laws the government needs to enact. Examples of these laws include the Sexual Offences Act and a Matrimonial Causes Act, both of which have already been drafted by the Law Reform Commission and await enactment. Having said that, it is important to note at this junction that, sections 27 (4)(d) and (e) of the 1991 Constitution of Sierra Leone which gave deference to laws and customs that discriminate against women has been recommended for repeal by the Constitutional Review Commission in the report presented to the president.
Education Drive on the Gender Acts
Now that the Gender Acts are part of Sierra Leone’s legislation, it is essential that concerted efforts be geared towards educating the populace on the provisions of this Act and the rights they confer on the previously under-privileged. Civil society and women’s groups should not relent in their drive, which they have already started to sensitize and train communities. This need is particularly pressing in light of the low level of literacy in Sierra Leone, coupled with the social and cultural attitudes towards the role and rights of women in society. Furthermore, administrators of justice such as lawyers, judges, magistrates and even customary court chairmen need to familiarize themselves with the provisions of the laws.
Implementation Mechanisms
Throughout the Gender Acts references are made to entities and/or individuals whose roles are central to their implementation. For example under the Domestic Violence Act the police are empowered to receive complaints relating to Domestic Violence and are required to assist the victim to obtain medical treatment and report where necessary and assist the victim to a place of safety in circumstances where the victims life is under threat. Further, the Magistrate Courts are empowered to grant protection orders to the victim of domestic violence and or related persons. The Minister for Social Welfare is empowered to make regulations to give further efficacy to the Act. Under the Registration of Customary Marriage and Divorce Act the Local Councils have responsibility for registration of customary marriages and divorces. Under the Devolution of Estate Act the High Court is granted powers to adjudicate disputes under the Act order the sale of proceeds of an estate and appoint receivers. In all of the above cases, the bodies/institutions mentioned are given powers, which must be exercised carefully, efficiently and consistently in order to protect the rights of those whom the Acts seek to protect.
In this vain it is necessary that personnel in these institutions be properly and adequately trained on the provisions of the Act, the scope and ambit of their powers and the need for effective implementation, if the Acts in question are to carry any meaningful value in practice.
Conclusions
In conclusion it is one thing to have these laws enacted into the Sierra Leone statute books, but it is quite another to ensure that the provisions are strictly implemented. It is with this in mind that the relevant authorities must consider how the Gender Acts are to make a serious impact upon the rights of those whom it seeks to guard and protect.
I will endeavour to in the next article to suggest some of the steps that need to be taken to ensure full implementation.
by ibakarr | Aug 11, 2016 | Uncategorized
The Constitutional Review Commission, appointed by the President “to review the Sierra Leone Constitution of 1991 with a view to recommending amendments that might bring it up to date with economic, social and political developments that have taken place nationally and internationally since 1991,” published its preliminary report in April 2007 with recommendations for alterations to the current Constitution of Sierra Leone. During the nationwide consultative meetings, a number of concerns were raised regarding the proposed amendments. These concerns are too complex and serious to be discussed in a single article. There are going to be discussions on them in successive publications of this newsletter, The Monitor. However, one prominent issue that raised the most dust during the consultative meetings and which shall be the subject of discussion in this piece is the issue of the proposed Senate discussed in Chapter VII of the report, titled: ‘The Legislature.’
Since independence, Sierra Leone has had a unicameral legislative system – a single house where bills are enacted into law. It is wholly elected through universal adult suffrage, save for 12 Paramount Chiefs who represent the 12 administrative districts in the country. However, the Constitutional Review Committee proposes that there should be two legislative houses, one being the Senate and the other, the House of Representatives (whose members shall be referred to as Members of Parliament). The reasons for this proposition, according to the Committee, are that they consider the position of Paramount Chiefs in Parliament as “undesirable and unusual in a modern democracy”; that they wish to expand the legislature so that people who might not be in Parliament but whose knowledge and experience would be desirable may be appointed; and also to enable minority groups to win representation in the legislature.
The Committee proposes that the Senate shall have “limited involvement in the legislative process and in the vetting of executive appointees in so far as this is provided for in the Constitution.” It shall consist of 44 members, 31 of whom shall be appointed by the President in consultation with the House of Representatives. These appointees would include people who had formerly held senior positions in the country, such as a former President of the Republic, a former Vice President, a former Chief Justice, a former Speaker of the House of Parliament, a former Vice Chancellor, a former Governor of the Bank of Sierra Leone, a former Commander of the Armed Forces, a former Inspector-General of Police, etc. However, appointees could also include people who have ‘distinguished themselves in business or politics or in their professions and have made significant contributions to the development of the nation’. The President shall also appoint six persons from a pool of candidates elected by recognised Professional Associations. Four persons would be appointed by Civil Society Organisations. The Mayor of the Municipality of the City of Freetown and two persons who are high ranking clerics in the Inter-religious Council shall also be members of the Senate. It shall also include 12 Paramount Chiefs, each representing the 12 districts, elected by the Paramount Chiefs in the district. Hence, Paramount Chiefs would no longer be Members of Parliament.
The Senate shall have the power to: “review all Bills passed by the House of Representatives within a month and forward them to the House of Representatives with their comments; consider and approve or otherwise matters referred to it by the House of Representatives; and consider and approve or otherwise, in a joint committee of both houses, in respect of any appointment which is required by this Constitution or any other relating to the same to be made with their approval or on their advice, which decision shall be given not later than thirty days after the receipt of the request from the President or other authority.”
Larger countries tend to have bicameral legislature because they enable a diverse range of opinions to be voiced in the legislature. The idea is to secure the highest possible quality of legislation. A Second Chamber is a suitable place to provide it, and it has additional advantages in terms of the other functions it can perform. For example, it examines the effectiveness of the executive through questions and committees; it provides a forum for debate, and represents different views and interests from the primary chamber. Thus, the primary function of a Second Chamber is to revise and scrutinise proposed legislation; in essence, to provide a second opinion. It is important in large countries like Nigeria, the US, the UK etc., and helps Parliament maintain public confidence that the political process is representative of different interests and viewpoints.
However, looking at the roles and responsibilities of Senates elsewhere, the same could not be said of the proposed Senate in Sierra Leone. The role would be limited only to reviewing and commenting on laws proposed by the House of Representatives. These comments are not binding on the ‘lower house’. Even if the Senate disagrees with the final version of a bill authored by the House of Representatives, the Bill could still be passed into law. This is unlike the Senate found in the United States for example. No law can be passed in the United States without the approval of both chambers of Congress. Furthermore, Congress can override a presidential veto by a two-thirds majority vote in both chambers, thus creating law even against the will of the President. The proposed Senate is more like the House of Lords in the United Kingdom, which has no such power to veto laws enacted by the House of Commons. Like the House of Lords in the UK, the idea of having a Senate in Sierra Leone is to ensure that the issues can be considered more thoroughly, and with more input from respected members of our society. However, if the Senate (the name itself a misnomer) has no power to veto laws proposed by the House of Representatives, and if it fails to add anything in terms of additional impartial expertise, then it may be said that the Chamber is merely slowing down the legislative process, providing another bureaucratic hurdle for legislative developments. As the mandate of the Senate currently stands, this is a very real possibility.
The composition of the Senate is also a matter of concern considering the country’s recent past. The President has the power to appoint 31 out of the 44 members which is about 65% of the general membership. Appointment by the President in the Senate brings the chamber’s legitimacy into question from the outset. If the argument of the Committee is to remove 12 Paramount Chiefs from Parliament because they are elected by a narrowly based electoral college and therefore “undesirable and unusual”, by the same stretch it is an affront to our democratic aspirations to create a legislative chamber of 44 unelected representatives, 31 of whom would be appointed by the President to sit in the Second Chamber. Although some contend that politicians should obey their consciences rather than their constituents, that popular will can be expressed in other ways than by voting, and that it is possible for an unelected assembly to represent the wishes of the people as there are implications that sometimes it is more responsive to public opinion than the demagogues who put their names on ballot papers, however, in a free society, it is necessary for the people to possess the power to change their rulers. Democracy resides as much in the right to dismiss as in the right to elect; hence elections are necessary. The proposed Senate allows neither: it represents a charade of a democratic society. The Constitution, instead of restraining some of the powers of the President, instead gives him too much power. By appointing 31 out of the 44 ‘Senators’, political patronage would be greater in the Senate, which would potentially increase the government’s ability to impose its will on the people. Also, for some of the positions, there are definitely not many persons to choose from and as such, it implies a continuation of political power for some people; forming them into a compact impenetrable phalanx. Take the case of one of the persons who have held the office of President of the Republic of Sierra Leone. If this proposed Constitution is passed into law, probably the only surviving President we will have is former President of the Republic, Ahmed Tejan Kabbah. That is, he will get an automatic membership into the Senate-a continuation of political power. Further, even if it could be argued that the President is only formally appointing members, and that they will be nominated by other bodies, it has not been set out clearly in the proposed amendments to the Constitution who those bodies will be. There are by no means enough safeguards provided for to ensure that the President does not use his power to exert influence over who the nominees should be, and it is arguable that given the way political power works in this country, no such safeguards would in practice be effective.
Another issue that is worth bringing to the attention of the general public is that the proposed amendments to the Constitution are silent on a number issues relating to the Senate. Chapter VI of the Constitution of Sierra Leone, 1991 clearly states the composition of the House of Parliament including qualifications for membership; disqualification for membership; tenure and remunerations. The same could not be said of the proposed Senate. The proposed amendments make no mention of the length of tenure of Senate members; they are silent on what grounds a member of Senate can be dismissed; it is quiet as to how a vacancy can be filled in a case of death or dismissal; and also nothing is said of remunerations. It does not say anything on how to fill a seat or whether there would be fewer people sitting in the Senate if there is no surviving person for a particular post mentioned in the Constitution. In other words, what happens if there is no surviving former President of the Republic? This needs to be spelled out more explicitly. Moreover, there is currently no provision stating the minimum proportion of Senators who must be female: in fact the way the nominations are currently proposed, very few women would in practice qualify for a seat in the Senate. A Senate with so little female representation would not add to diversity of views in the legislative process. The SLCMP understands that the Constitutional Review Committee intends to clarify and specify some of these issues after consultation, but it would emphasise that these are all central issues when discussing whether or not a Senate should be established at all, and cannot be considered in any sense as an afterthought. They should be stated in clear terms well before any referendum is conducted.
In addition, with the current Parliament constantly and vociferously agitating for better working conditions, the Senate in Sierra Leone, unlike its counterpart in the UK where members of the House of Lords are not paid salaries, is also likely to make similar claims in the future. With the country struggling to maintain a single legislative chamber, the introduction of another is likely to compound the problems for an ailing economy like ours. This is so because it would mean providing healthy working conditions of service for 44 people. However, in juxtaposing their would-be entitlements such as salaries, allowances, gratuities, pensions and other such benefits as may be prescribed viz-a-viztheir roles and responsibilities, it would not be far-fetched to say, as one contributor put it during the consultative meeting at the British Council hall in Freetown, that the proposed Senate risks being “nothing more than a retirement rendezvous for the rich and powerful to continue to dominate the state of affairs in the country”. Also, the cost of constructing the Second Chamber itself, paying for their staff members and the general administrative cost of running it will undoubtedly be too hard for our current economic situation.
Length of tenure is another vital concern. The Constitutional Review Committee has indicated orally that it is recommending a term length of five years, with appointments directly after a general election. This raises two issues. First, if members only hold their positions for five years it is arguable that they will have little more acquired experience than ordinary MPs to offer the legislative process. In the UK for example, Members of the House of Lords sit for life. This is itself highly controversial, and it looks as though in the next few years this will be changed to a period of 15 years. Again, this may be considered too long for Sierra Leone, but acquired experience is a central consideration. Moreover, in the proposed changes to the House of Lords, it looks likely that the House will be replaced piecemeal – only one third of the House will be elected on each occasion, so that new members learn from the acquired experience of longer-standing Members. This overlapping approach could be followed in Sierra Leone. The second issue that a short term length raises is whether Senators will feel more beholden to the President if they have the opportunity to be reappointed or expelled by the President in only a few years as a result of their performance. Much like ordinary MPs, they may come to focus on their reappointment, at the cost of objectively considering the matters at hand.
Furthermore, when considering the Senate’s potential scrutiny and revision functions, well-developed unicameral Parliaments elsewhere build in other procedures and mechanisms to ensure that proper scrutiny is provided somewhere in the legislative process, and often have voting systems which provide for a diversity of views to be represented in the sole chamber. For example in New Zealand, which abolished its Second Chamber in 1950, a special select committee stage between first and second reading of the Bill is specifically charged with detailed scrutiny of legislative proposals.
Given the fact that the proposed Senate’s current design appears to be based largely on the House of Lords in the UK, it would be only sensible to look to the reforms which they are currently proposing to bring their Upper Chamber in line with a modern democratic State. It makes little sense to model it on an archaic structure, which is already widely critiqued for being out of touch with the modern world. It would be far wiser to look at the reformist arguments in the UK and see what lessons can be learnt. This to a large extent will help us in determining whether there is need to have a Senate or not.
The SLCMP is of the opinion that given the way the Second Chamber has currently been set out, it would add little to the legislative process, and presents more potential risks and burdens than it does benefits. Also given the current state of our Parliament, there should more focus on providing logistical support and training for the administrative and support staff of Parliament. That said, the SLCMP will refrain from taking a final position until it can analyse the revised proposals to be set before the people. Nevertheless, there is the dictum that says “what touches us all must be agreed by us all”. Whatever our personal views are, we frankly recognise that these proposals must be put before the country and that the people of this country, with full knowledge of the proposals, should vote on them.
by ibakarr | Aug 11, 2016 | Uncategorized
“ The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.” [i]
This article will examine the need to update the rules of evidence in Sierra Leone ’s courts, specifically the hearsay rule and exceptions thereto, to bring it into line with the practicalities of an electronic age. It will explain the terms, consider the law as it currently stands, discuss the problems those rules are currently raising and make suggestions for change. The Terms and the Law as it Stands
In criminal proceedings, the facts in a case comprise the facts which the prosecution bear the burden of proving in order to establish the guilt of the accused and the facts which the accused can present convincingly in his defence. The party which bears the burden of proof must prove those facts up to a certain level (known as the ‘standard of proof’). In civil trials, that level is ‘on the balance of probabilities’, that is, if one side can convince the court that they are probably right, that there is more than a 50% chance that they are right, then that side will win the case. In criminal trials, the standard of proof is higher.
The Prosecution must prove ‘beyond a reasonable doubt’ that the Accused is guilty. Whenever there is plea of not guilty, everything is in issue and the prosecution has to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent. Any fact which is formally admitted must be proved.
Aside from the need to prove guilt beyond reasonable doubt, however, the Prosecution must also show the court that any evidence it wants to adduce before the court is acceptable according to rules of court (this is known as satisfying the ‘evidential burden’). Rules of court on the admission of evidence are there to protect parties (and particularly the Accused) from an unfair trial, by ensuring that any evidence that is brought to the court is reliable and that the court should give weight to it when considering guilt or innocence. The cardinal rule of evidence is that, subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all which is irrelevant or insufficiently relevant to the facts in issue should be excluded.
However, another important rule, with which we are concerned here, is the hearsay rule. The hearsay rule says that evidence can only be admitted to the court if the court is able to verify the truth of that evidence itself by cross examining the author of the evidence in court. By asking critical questions and forming an impression of the witness, the court should be able to assess whether the author or witness is telling the truth or not. The idea is essentially to stop rumours or second-hand information from being tendered as fact, both to prevent distortion of the facts and to prevent a lie from being taken as fact. Ideally then, any evidence should come by word of mouth from a witness testifying in court. However, in an electronic age this is not always possible. There are also many exceptions to the hearsay rule.
Evidence from a computer or mechanical or other device may or may not be hearsay, and may be hearsay and yet fall under one of the exclusionary rules. To the extent to which a computer is used merely to perform functions of sophisticated calculation which could have been done manually, no question of hearsay but an item of real evidence, the proof and relevance of which depends on the evidence of those using the device. However, where a computer is used to record information which is supplied by a person, the hearsay rule will come into play if it is sought to use a printout from the computer to prove that what the person said was true. Once classified as hearsay, the admissibility would depend, not on its authenticity, but simply upon whether it falls within the exception to the rule.
When the admissibility of a particular item of evidence is in dispute, the burden of admission lies on the party seeking to admit that evidence. When this burden is borne by the prosecution, they must prove the admission ‘beyond reasonable doubt’ while the defence must only prove the admission of any evidence they want to adduce ‘on a balance of probabilities’. In addition, if the inclusion of evidence would be prejudicial to the fairness of the trial, the judge has discretion to exclude it.
In Sierra Leone , the issue of admitting electronic evidence as real evidence has come under serious contention by both the prosecution and defence viz-a-viz the hearsay rule. The crucial distinction is between computer printouts containing information implanted by human hand, and printouts containing records produced without human intervention. The former falls under the hearsay rule while the latter is not hearsay.
In other jurisdictions, such as in England and Wales , where the hearsay rule originated, many exceptions to the hearsay rules have developed over the years through case law and in statute on a piecemeal basis. One such exception is that a document made in the course of business can be admitted, as long as it was not made specifically for the purpose of the criminal proceedings. [ii] If it was made specifically for the criminal proceedings, the document can be admitted, but only if the maker is unavailable to give evidence in court, or it is not reasonably practicable to secure their attendance at court.
Rules of procedure and evidence have not been developed recently in Sierra Leone to keep up to date with modern electronic and business realities, and so no similar exception exists in Sierra Leone . As such, business documents, containing records produced with human input, are not admissible in the courts in Sierra Leone .
A Case Before the Courts
Exactly this issue has arisen in a current matter before Adrian Fischer in Freetown’s Magistrate Court No.1(a) involving one Hindowa Saidu, a former Celtel S/L employee as the Accused, who was charged to court for allegedly threatening via SMS to kill the Human Resource Director of same. The main legal tussle, which has almost grounded the trial for over six months since it was first heard, is the admissibility of a printout information from a Celtel electronic device to be admitted as real evidence against the Accused. The prosecution’s argument is that the evidence, a computer printout document, should be admitted as real evidence since the device was not ‘interfered’ with but only commanded to perform a function which did not specifically relate to the Accused.
The defence on the other hand is objecting to that piece of evidence on the grounds that it is hearsay and should not be admitted as real evidence since an individual ‘interfered’ with the device by inserting figures in order to obtain the printed information; thus documentary records stored on computer are hearsay. According to the defence, weight should not be given to a document where the person who programmed the electronic device is not subject to cross-examination in front of the court by counsel for the defence. This holds real weight, as the rules of procedure have not been updated to encompass such situations. As such, if the evidence in the document is false, and yet it is accepted as fact, the defendant will be unfairly prejudiced against and will have his right to a fair trial abused.
Although there is no authority to suggest that a criminal court has any power to admit as matter of discretion evidence which is inadmissible under an exclusionary rule of law, it is, however, well established that a trial judge, as part of his inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to refuse to admit prosecution evidence if, in his opinion, its prejudicial effect outweighs its true probative value. He also has a general discretion to exclude otherwise admissible prosecution evidence which has been obtained by improper or unfair means.
As the current rules stand, the only alternative for the court, in order to ensure a fair trial, is that the programmer of the Celtel device be identified and cross-examined in court. Only that person can describe the function and operation of the device and the data upon which the document was produced. At the same time however, this affects other rights of the Accused. Such a procedure would seriously delay his trial, contravening the right to trial without undue delay. Unfortunately, because the defence counsel in this case is offering pro bono services, there is in practice a strong likelihood that he will withdraw representation if the matter does not make progress. Thus the Accused is under pressure to concede to the prosecution’s application for submission of the evidence, even though it is to his own detriment. This is yet another example of the failure of the current legal system to uphold the rights of the Accused by failing to provide free legal representation to the defence. The Accused should not be made to suffer because of the inadequacies in our legal system.
If the presiding Magistrate, however, gives verdict in favour of the prosecution by admitting the evidence, it would probably have been the first time for such evidence to be admitted in our legal system. Equally, the power of discretion would not have been in the interest of the Accused.
The Need for Legislative Reform
This matter definitely brings to light the urgent need for the rules of procedure and evidence of Sierra Leone to be reviewed and updated. Such significant matters are not for Judges to decide case by case, but should be decided by Parliament in legislation. It is essential to introduce reform of the laws in order to correspond with today’s more complex litigations in Sierra Leone . The current body of criminal laws and rules in Sierra Leone no longer meets the needs of present-day Sierra Leone society. The country is much more sophisticated than it was two centuries ago when a large body of English legislation was enacted into the Laws of Sierra Leone.
Accordingly the SLCMP calls on the government to order the drafting of legislation to amend the criminal rules of procedure and evidence in an effort to protect human rights and bring the law up to date with modern realities.
[ i] See Lord Hardwicke, Omychund v Barker (1745)
[ii] See the UK Statute, Criminal Justice Act 1988, section 24
