by ibakarr | Aug 11, 2016 | Uncategorized
Sexual violence is an act of forced, unwanted or unlawful behavior which is conducted in an aggressive and domineering manner in order to exercise power and control over the victim/survivor; thus degrading and humiliating him/her. There are a number of acts that comprise sexual violence, namely, rape, indecent assault, unlawful canal knowledge, sexual slavery, forced marriage and forced impregnation. Men can also be victims of sexual violence. However this article will focus on women and girls, whose cases are reported, investigated and are in the majority in Sierra Leone.
The effect of the assault or abuse on the victim may largely depend on the magnitude of the incident, the victims coping mechanisms and the support administered to the victim following the incident. Generally such acts of violence may cause physical injury with serious medical effects which in some cases may result to death, unwanted pregnancy, infertility, chronic and life threatening diseases as well as a host of other mental and behavioral consequences, such as trauma, depression, anxiety and sexual dysfunction. It also has some social effect on the victim, ranging from withdrawal, guilt, fear, loss of self-esteem and promiscuity.
The cause of sexual violence is rooted in our country’s stereotypical beliefs, attitude and acceptance of gender disparity. Sexual violence has always existed in Sierra Leone even before the war but was grossly under reported due to the culture of silence and the stigmatization surrounding rape and other sexual offences. However, it reached alarming proportion during the eleven years civil conflict when it became a common practice to abduct women and use them as ‘bush wives’ and sex slaves. Prior to the war, life time prevalence of sexual assault was 9% but increased to 17% during the war. [1] It was stated in a Human Right Watch report published 2003 that as many as 275,000 women and girls were sexually violated during the war. This lends credence to the fact that the outbreak of the conflict resulted in increase of sexual violence in the country.
Subsequently, the reported rate of sexual violence continues to increase which is accredited to the massive sensitization campaigns by women groups and human rights organisations for the cases to be reported so that perpetrators will be brought to justice. Currently, the problem lies in the fact that even though these cases are reported, perpetrators continue to go largely unpunished. This is manifested in the nationwide statistics report from 2001-2005 carried out by the Family Support Unit(FSU) which shows 3,919 reported cases of sexual violence of which there were only 22 convictions. The limited conviction is attributed to the challenges the FSU and other stakeholders encounter in investigating and prosecuting such cases.
To this end, this article discusses both municipal and international laws that prohibit the act of sexual violence and further looks at the role of the Government in curbing sexual violence. In addition, it highlights the problems in investigating and prosecuting sexual violence and concludes with possible recommendations.
Legal Framework for Curbing Sexual Violence in Sierra Leone
Sierra Leone has enacted a number of laws that prohibit sexual violence. For example Sec 20 of the 1991 Constitution states that a person should be protected from cruel, inhuman and degrading treatment. This section unlike other sections in the Bill of Rights guarantees full protection. Furthermore, rape is also a common law offence which is punishable for up to life imprisonment under Sec 48 of the Offences Against the Persons Act of 1861. In addition to that, the Prevention of Cruelty to Children’s Act, Cap 31 of the Laws of Sierra Leone 1960 prohibits indecent assault and unlawful canal knowledge by laying down specific punishment for offenders.
The FSU is established as a unit within the Sierra Leone Police to investigate and take pro-active measures to identify and prosecute the offenders of domestic, sexual violence and child cruelty. Furthermore, the Government has also granted authority to concerned women and child protection organisations to operate in Sierra Leone.
In addition to the municipal laws and institutions, Sierra Leone has signed and ratified major human rights instruments protecting women from violence such as International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Discrimination against Women, the Convention on the Right of the Child and the African Charter on Human Rights. These instruments contain (either specific or general) provisions that oblige states to eliminate discrimination against women and to implement policies that will protect the rights of women and children. However, the Government has failed to a very large extent to ensure the domestication of these instruments. The Sierra Leone Government has also failed to report on the progress made in the implementation of these instruments.
Problems in Investigating Sexual Violence
Investigators of sexual violence cases often encounter problems in gathering evidence for prosecution, especially when the victim is a child. Children make up the bulk of victims of sexual violence cases in Sierra Leone. The decision whether or not to prosecute sexual violence involving a child are most times made by the parents or guardian of the child. Some parents and guardians refuse to cooperate with investigators for fear that if the case goes to court, the image of the family will be dented. They are also likely not to help with investigation when the offence is perpetrated by a family member or somebody known to the victim, such as the bread winner of the family, the landlord or other close relations of the victim. In such a scenario, the family may assume the role of the court rather than reporting the matter for prosecution. The case is therefore settled out of court not only because they want to protect the family’s name but also because violence in the family is regarded as a private matter and it is therefore considered an aberration to include outsiders.
In an event where the victim is an adult, she may refuse to report because of fear of stigmatisation. Survivors assaulted by their parents, guardians, custodians or care-givers are intimidated to report because there is no temporary placement centre to accommodate them. Poverty and the lack of incentive to pursue an onerous prosecution in a judicial system that is not conducive to just outcome makes the victim and their family decide to deal with sexual offences by recourse to out of court settlement. The situation is more obvious when the perpetrator is rich and can afford to bribe his way with the parents or guardian. In such a case, the parent or guardian often fails to report the matter and fail to cooperate where the matter has already reached the police.
Another problem impeding sexual violence investigations is the lack of capacity for investigators in terms of adequate personnel, training and resources to handle the complexities that are involved. Victims of sexual violence require confidentiality, support and protection. These facilities are often lacking especially at the FSU. In terms of personnel, there is only one competent police doctor dealing with sexual violence cases. Although the establishment of the rainbow centre in 2003 has tremendously helped to salvage the situation, there is still need to recruit more medical doctors.
Problems in Prosecuting Sexual Violence
There are so many problems responsible for the low conviction of perpetrators. One of such is the standard of proof under the Sierra Leone jurisdiction which requires the prosecution to provide corroborative evidence in addition to others. Corroboration is defined as independent, credible, relevant evidence that confirms or supports the case in a material particular time. This makes it difficult to convict perpetrators as it is extremely unlikely to get eye witnesses for this crime considering the nature and circumstances in which they are typically committed.
The hostile environment in the court is another reason that forces victims to boycott legal proceedings. Victims are re-victimised by the rigorous cross-examination of certain defence lawyers especially when they do not have adequate legal representation from the prosecution
Witnesses are central in criminal trials as they help to clarify issues. However, some witnesses are afraid to come forward due to the lack of witness protection mechanisms in the municipal court system. They also fear victimisation or creating lasting hostility with perpetrators.
Law enforcement and judicial officers could also be a problem to the prosecution of such cases. By all intents and purposes, their attitude towards rape suggests that they regard rape and other gender-based cases as lesser crimes not worth prosecuting. In some cases, the police themselves settle cases without referral to court. Even the prosecutors sometimes prevail on the victims to settle matters out of court.
In addition, the lack of associate legal representation for victims could also amount to a problem, especially when such cases are prosecuted by incompetent prosecutors. The prosecution may loss a very good case if they are against a learned and skilled defence counsel because unlike legal practitioners they are not au fait with the evidential requirements of proof.
The undue delays in the trials results in lack of dispensation of justice as the adage goes “justice delayed is justice denied”. Mostly, cases are subsequently adjourned until it dies an unnaturally. It becomes even shoddier when such cases are commuted for trials in the High Court which could take years before the commencement of its proceedings. In such events, cases are reported and investigated but the problem lies in getting the perpetrators convicted or completing the matter, thereby frustrating the victim and family.
Recommendations
Looking at the various problems in investigating and prosecuting sexual violence, it is deemed a phenomenal task to bring perpetrators to justice and accurately compensate traumatized victims. To maintain a decent society the following salient points are streamlined to help remove the bitter pains and distorted memories of sexual violence against women and children.
The SLCMP recommends that government should enhance capacity building for the FSU by improving personnel training and logistics support. An interim care with appropriate schooling/skills training and psycho-social therapy should be established for victims abused by closed relations. Also, an exclusive court to try all juvenile (sexual offences) cases should be established to ensure speedy trial and prevent its delivery in the High Court.
Parliament should ensure that traditional practices are brought in line with the general law as they are gender stereotyped. In addition, they should enact a unified sexual offences act which should criminalize marital rape and further provide adequate health care facilities and appropriate compensation for victims. It should also make provision for severe sentencing of offenders in conjunction with parents/guardians or anyone caught conniving with perpetrators to infringe on the right of the victim/survivor.
Civil society groups should embark on a series of sensitization campaigns including workshops and
seminars to educate the Sierra Leonean populace on the right of women and children and the dangers of not prosecuting sexual offences.
In conclusion, the SLCMP sensed it will be difficult to curb this act especially in cases of incest, when a child’s protector like her uncle becomes the abuser, who then can you trust your child with? Nonetheless it urges every citizen to join hands to expunge this inhuman act that is eating the whims and caprices of the entire nation.
by ibakarr | Aug 11, 2016 | Uncategorized
On 20 June 2007, Trial Chamber II of the Special Court for Sierra Leone handed down the Court’s first judgment in the trial of the alleged leaders of the Armed Forces Revolution Council (AFRC), Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu. While the Trial Chamber found all three defendants guilty on eleven of the fourteen charges, it announced that “the Trial Chamber [would] not consider joint criminal enterprise as a mode of criminal responsibility” on the grounds that Prosecutor had “defectively pleaded” it. This decision could prove significant in other Special Court cases where Prosecutor has similarly pleaded joint criminal enterprise (JCE) and the Prosecution case relies heavily on JCE as a mode of criminal responsibility. A close analysis of the decision, however, reveals that while it creates a high hurdle to establish JCE as pleaded, it still preserves the possibility that the Prosecutor may overcome that hurdle with the right evidence.
“Joint criminal enterprise” is a mode of criminal responsibility or way that a court may find an individual responsible for a crime. In a JCE, an accused is held responsible not based on his personally committing the crime, but based on his participation in a common plan that leads to the commission of that crime. This mode of criminal responsibility was first articulated in the International Criminal Tribunal for the former Yugoslavia Appeals Chamber decision inProsecutor v. Dusko Tadic. [i] The ICTY Appeals Chamber articulated the mode’s elements, or what the Prosecutor must prove in order to convict the accused using that mode of responsibility: 1) “[a] plurality of persons; 2) the existence of a common plan, design or purpose that involves the commission of a crime provided for in the Statute; and 3) the participation of the accused in the common plan involving the perpetration of the crime provided for in the Statute.” [ii]
The Tadic Court also described three forms of JCE, named in the SCSL’s AFRC decision: basic, systemic and extended. In the basic form, all members of the common criminal enterprise, including the accused, intend to commit a given crime and all are responsible for forming and carrying out the plan to commit that crime. The systemic form refers to so-called “concentration camp” cases; under this form, an accused may be found guilty for participating in an institution where human rights abuses occur if he or she knew of abuses, willingly participated in the institution and implicitly or explicitly expressed the intent for the abuses to continue. Thus under this form of JCE, an administrator at a concentration camp may be held criminally responsible for acts of torture that occurred there, even if he or she did not personally commit acts of torture provided he knew about them and continued to work there. Finally the extended form of JCE holds an accused responsible for crimes committed by another member of the enterprise that the accused did not intend but that were a foreseeable consequence of common criminal plan in which he willingly participated. Note that for the extended form the Prosecutor need not show that the accused intended the crime with which he is charged; the Prosecutor must only show that the crime was as a foreseeable consequence of the common plan and that the accused willingly took part in that plan.
JCE has been subject to a number of criticisms. First, it was not explicitly stated as a mode of criminal responsibility in the statutes for either the ICTY or the SCSL. The Chamber in Tadic asserted that the ICTY statute implied JCE as a mode of criminal responsibility because Article 1 extended ICTY jurisdiction to “ all those ‘responsible for serious violations of international humanitarian law’ committed in the former Yugoslavia.” [iii] Reasoning that holding criminally liable “only the person who materially performs the criminal act would disregard the role of co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out the criminal act,” [iv] the Court concluded that the Statute implicitly allowed joint criminal enterprise as a mode of responsibility that already existed in customary international law. [v] Critics argue that this kind of “judicial creativity” overreaches. [vi] The Tadic decision has been further criticised on the grounds that the cases the Chamber cited to establish JCE was customary international law ““provide almost no support for the most controversial aspects of contemporary joint criminal enterprise doctrine.” [vii] In other words, JCE as articulated by the ICTY may not have been customary international law at all. Other critics argue that JCE effectively functions to find a defendant defendants guilty by association or becomes a kind of organization liability, where an individual is found criminally responsible for others’ action simply because he associated with them. [viii] Finally, the “extended” form has been criticised on the grounds that it does not require either a causal link between either the defendant’s action or his intention and the resulting crime. [ix]
In the AFRC judgment, however, Trial Chamber II does not criticise in general, but only as pleaded in this particular case. The Trial Chamber first asserts that a JCE must be “inherently criminal,” usually because it has the aim of committing a substantive crime under the statute, and cites a series of ICTY cases as support. Paragraphs 33 and 34 of the AFRC indictment charge that the AFRC accused formed a common plan with the RUF “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas.” As the Trial Chamber points out, however, such a goal does not constitute a crime under international law.” Since the indictment fails to plead the necessary element that the common plan exist for the purposes of committing a crime under the Statute, the Trial Chamber reasons, the indictment is defective.
The Trial Chamber then, however, expands on the ways that a Prosecutor may charge that a common plan was criminal when it agrees with the Prosecution’s assertion that “a JCE only needs to ‘involve’ the commission of the crime,” rather than be formed with the goal of committing a crime. The Trial Chamber clarifies, however, that if the Prosecutor charges that a plan “involved” crimes, then the “fundamental question” becomes “whether the agreement involved international crimes at the inception of JCE.” As stated the reasoning is circular: the JCE must have involved crimes from the inception of the JCE because before it involved crimes it was, by definition, not a JCE. Trial Chamber seems to mean that if the common plan “involved” crimes, presumably meaning that the commission of crimes constituted an agreed-upon action or was an inherent and inevitable result of the goal of the common plan, then the plan must have involved committing such crimes from the beginning of the agreement. This does not seem to logically follow because an initially lawful agreement may transform over time to “involve” crimes. In reasoning, the Trial Chamber may have anticipated its own further criticism of the Indictment: that it fails to specify the time period over which the alleged JCE existed. Since the Prosecutor has asserted that accused were charged with a JCE at “all times relevant to the indictment,” and the alleged JCE developed during the Indictment period, then the Prosecution must show the JCE was inherently criminal from its inception. Ultimately the Trial Chamber concludes that the indictment is defective in part because “[f]rom the evidence” presdented in the case the Prosecutor has not established the alleged JCE was criminal from its inception.
While the Trial Chamber presents the issue as a defective pleading, it can be reframed as an evidentiary problem. While the Trial Chamber asserts that the indictment was pleaded incorrectly because it pleaded charges in a way that that Prosecutor could not prove, one could instead present the problem as a lack of evidence to prove the charges in the Indictment. This distinction affects the judgment’s implications for other Special Court cases, particularly those of Charles Taylor and the RUF accused, which rely heavily on JCE as a mode of criminal responsibility. Since the cases are being argued and the evidence presented separately, the Prosecutor could theoretically produce new or alternative evidence that proves beyond a reasonable doubt that the common plan “involved” crimes at its inception. Thus while this case creates strict requirements for what the Prosecutor must prove beyond a reasonable doubt in those cases in order to use JCE as a mode of criminal responsibility, it has still left the door open for the Prosecutor to meet those requirements by presenting more or different evidence to establish that the agreement in question “involved” crimes from its inception.
If the Prosecutor were successful, however, it could create an odd situation in which, for example, the RUF defendants are convicted of having formed a JCE with the AFRC, but the AFRC defendants had not received any finding about whether it formed a JCE with the AFRC. Indeed, this outcome is more than just a possibility; while Charles Taylor will be tried by Trial Chamber II in the Hague, Trial Chamber I will resume trying the RUF accused in September. Since Trial Chamber I is not bound by Trial Chamber II’s decisions, and, indeed, had already concluded that JCE was not defectively pleaded in the AFRC case, it could draw its own, contradictory conclusions about the pleading of JCE. Ultimately, this decision may not be settled unless it is appealed the issue is appealed and decided as a matter of law by the Appeals Chamber of the SCSL.
[i] See Prosecutor v. Tadic, Judgement, ICTY Appeals Chamber, at paras. 185-229, Case No. IT-94-1-A (July 15, 1999).
[ii] Tadic Appeals Judgement, at para. 227.
[iii] Tadic Appeals Judgement, at paras. 189.
[iv] Tadic Appeals Judgement, at paras. 192.
[v] Tadic Appeals Judgement, at paras. 193 (the Chamber also cited the collective nature of many crimes against humanity and war crimes to support its position that JCE must be a recognized form of criminal responsibility).
[vi] See Antonio Cassese, “The Proper Limits of Individual Responsibility Under the Doctrine of Joint Criminal Enterprise,” 5 J. Int’l Crim. Just. 109, 114 (outlining such criticism before disputing it).
[vii] See Allison Marston Danner and Jenny S. Martinez, “Guilty by Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,” 93 Cal. L. Rev. 75, 110.
[viii] See Prosecutor v. Multinovic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber, at para. 24, Case No. IT-99-37-AR72 (May 21, 2003).
[ix] Cassese at 117.
by ibakarr | Aug 11, 2016 | Uncategorized
The treason trial of Omrie Golley and two others resumed on Thursday, 28th June 2007 at High Court No.2 presided over by Justice Mary Sey from the Republic of the Gambia, eighteen months after the Prosecution opened its case. It could be recalled that Omrie Golley together with Mohamed Bah and David Kai Tongi were arrested in January last year on allegations of planning to overthrow the Government of Sierra Leone and to assassinate Vice President Solomon Berewa. Since the inception of the case in February 2006, there had been series of motions/applications bordering on a wide range of issues including the eligibility of the then presiding Judge, Justice Samuel Ademusu, a contract judge to preside over the matter which temporarily grounded the trial. These procedural difficulties were only settled very recently thus starting the trial again. However, the euphoria that accompanied the restart of proceedings is fast dissipating as the case continues to be adjourned for trivial reasons. The problem is multi-faceted and cannot be laid at the door step of the judiciary alone. The prisons department and the police cannot be exonerated; they all stand to be implicated in the current derailment in the course of justice in this all important trial.
It is gradually becoming a norm for the accused persons not to be brought for trial for preventable reasons principal amongst which are the lack of security forces to convey prisoners to and from the courtroom and the non availability of fuel for prison vehicles. Since the resumption of the case four weeks ago, there have been no less than five adjournments for such reasons. The presiding Magistrate in Freetown’s Court No.3, Bankole Shyllon, on Friday 6thJuly 2007 said in open court that the Master and Registrar had to plead with the Inspector General of Police to provide fuel for vehicles to bring prisoners to court. According to the Magistrate, “Mr. Acha promised to provide a gallon of petrol for prisoners to be brought to court”. What confounds the SLCMP is how those responsible for the provision of fuel for prison vehicles could continuously fail to provide for such basic and essential requirement and by the same token why do the police fail to provide security for conveying of prisoners to and from the court on daily basis? This administrative malaise only exposes the ineptitude of very important state institutions with its attendant effect on the expeditious administration of justice. Although I must state that these excuses are not peculiar in the case of Golley and the two others alone, however, taking into account the seriousness of the allegations, this matter should be prioritised without prejudice to other cases in the interests of justice.
The disorganisation plaguing the judiciary is sometimes exposed when the accused succeeds to make it to the court. There one problem trails another: the presiding judge is either out of jurisdiction or one of the parties is not present in court. For instance, although the accused did not come to court on the 10th July this year because of, according to the prison officials, lack of police personnel to escort them, even if they had made it, there was not going to be a trial since the judge was, according to court officials, busy making arrangements at the British High Commission to travel abroad. When the accused made an appearance in court on the 17th of same, the presiding judge was out of jurisdiction reportedly attending to family affairs.
The parties to the case do share their own part of the blame in undermining expeditiousness. On the part of the Defence, the lead counsel, Charles Margai, is a politician running for the Presidency in the August 11 elections. He is currently busy traversing the country seeking votes hence giving him little time to concentrate on his lawyer-client responsibilities. For example, when an important issue of screening jurors in the matter came up earlier this month, Mr. Margai, who had applied for the trial to be conducted without a jury but was rejected, was not in court. He was however represented by his colleague. The accused persons were not represented when a medical letter issued by the prison’s doctor concerning their deteriorating health was rejected. The Prosecution on its part is most often overwhelmed by the numerous cases it has to prosecute. Since the lead prosecutor, Oladipo Robin-Mason, cannot be at two places simultaneously, he frequently asks for an adjournment in the most serious of cases where it is judged that he cannot send a representative. Consequently, over 30 adjournments have been sought as a result of judicial inertia.
Judicial expediency has been greatly undermined in the trial under review. Premised on the maxim of innocent until proved guilty by a competent court of law, an accused should be tried within a reasonable time. This right is firmly entrenched in both national and international legislations and suffers no exemptions. According to the European Convention on Human Rights, the reasonable time guarantee runs from the moment that an individual is subject to a charge; but in a case where the charge is delayed, or subsequent charges are added it may be the date of a person’s initial arrest, or the date on which the accused becomes aware that he is being “seriously investigated”. In certain situations, the operative date will be the date of the first interview. In the said case, this entrenched principle is yet to be adhered to. Eighteen months after their arrest and subsequent detention, substantive trial is still far from beginning. The matter has not been treated with the robustness that is characteristic of an all important case like a treason trial. In fact, with the current political atmosphere overshadowing almost all other issues both in the public and private domain and the looming judicial recess, the case risks being left unattended to until after the election dust has settled which would probably be sometime in September.
It must be noted that whatever the allegations are, the accused persons should not be prejudiced against and their rights as embodied in national legislation must be safeguarded. The accused persons, particularly the First Accused, have been constantly complaining about suffering from life threatening conditions with little done to ameliorate their predicaments. In fact on the 23rd July, 2007 the presiding judge rejected a medical letter from Dr. Conte-Coker, the prison’s medical officer, on behalf of the First and Third Accused persons for want of detail explanation on the specifics of ailments. Moreover, with over a dozen prisoners reported to have died in the past eight weeks, the medical complaints by accused persons should be a particular cause for concern.
Justice, it should be remembered is a two-way street: justice for the victim as well as for the accused. Premised on the recognition of protection of human rights, it behoves everyone connected with the justice sector to work assiduously to ensure that justice is done. So far in this trial, all those involved have failed to prove their dedication to the task of upholding justice. If this is the case for such a high profile case, tracked avidly by the media, then the prospect for the vast impoverished and nameless majority is bleak indeed. The SLCMP urges all, particularly the judiciary, the prisons and police to properly network and exert all efforts, to ensure that the justice system live up to its name and that the rule of law at last be solidly embedded in our society.
by ibakarr | Aug 11, 2016 | Uncategorized
The Anti Corruption Commission (ACC) is seriously being criticized by the Sierra Leonean society as well as international organizations about its lame duck attitude in the fight to combat corruption in post-war Sierra Leone. In fact many people accuse it to be a toothless bull-dog considering the fact that since its establishment, it has to a large extent failed to robustly prosecute cases involving corrupt officials in our society. This article highlights some of the reasons why the Commission is yet to make the necessary impact in its fight against corruption and the consequences. It proffers recommendations that are worth considering if stakeholders are serious in making corruption history in Sierra Leone.
Established by an Act of Parliament in 2000, the ACC is charged with the sole responsibility to curb corruption in both public and private sectors in Sierra Leone. Since 2000, the Commission has found difficulty in efficiently carrying out the task of fighting corruption. Going through a chain of Commissioners, the ACC has achieved very little in eradicating corruption in the country. The mandate of the Commission is two fold: first, to enforce the law on corruption. It does this by investigating cases of corruption that comes to its notice, and takes suspects to court. Secondly, to take steps to prevent corruption. It does this by examining the practices and procedures in the public and private bodies in order to secure revision of procedures and practices that are prone or conducive to corrupt practices and by disseminating information on the evils of corrupt practices and enlisting public support against them. However, a closer look at the ACC Act itself and the procedure involve in prosecuting cases of corruption largely inhibit the crusade on wiping out this menace in our society.
The Act provides that all ACC cases after preliminary investigation should be sent to the Attorney-General’s office who will have to certify the findings of the Commission and determine whether the said case is worthy of prosecution or not. This has not only impeded the work of the ACC, but it has seriously damaged the independence of the Commission, taking into account the fact that the Attorney-General is also the Minister of Justice caught between both the executive and judicial arms of government. In a current matter being investigated by the ACC involving the former Minister of Transport, Dr. Prince Harding, the ACC has no mandate to charge the minister but have to seek the consent of the Attorney-General before the matter would be charged to court. The implication is that the work of the ACC is under the direct supervision of the Attorney-General’s office in terms of prosecuting corruption cases because he determines which cases are charged to court and which are not. This flaw in the ACC Act itself seriously undermines the work of the Commission as there is the possibility for the Attorney-General and Minister of Justice to be selective in prosecuting corruption cases; targeting those out of favour with the status quo and ignoring those who wine and dine with them. Even when corruption cases have been successfully prosecuted and verdicts delivered, in most cases the culprits are junior officials. A pointer to this fact is among some of the convictions secured so far is a caterer of a hospital and an account officer of a library. When senior officials are involved in corrupt practices, only the minor crimes are exposed for prosecution.
The way and manner in which ACC cases are prosecuted in the courts do not leave much to be revered. The judiciary which is suppose to be the lead institution in championing the cause of fighting corruption is hardly mesmerized by ACC cases. Consequently,
ACC cases take too long in court before judgments are made. An example was in a case in the High Court that was presided over by Justice Hamilton involving a former Magistrate who was accused of corruption. That matter dragged on for over a year before the court acquitted and discharged him. In some cases, they are thrown out for want of evidence. Between 2006 and 2007, a total number of 27 corruption cases have so far been prosecuted in both Magistrate and High Courts. With 22 backlog cases from the previous year, one is tempted to acknowledge that these trial proceedings at any rate have exceeded their normal duration. In almost two years, the Commission is only prosecuting 27 cases some dating as far back as 2005.
The failure to robustly tackle the menace of corruption, the most destructive force responsible for our underdevelopment, has had severe consequences for the country. Aside from the country’s image being dented, it has succeeded in bringing about loss of trust and confidence in state institutions by both the citizens and the international community. This lackluster attitude on the path of government to vigorously prosecute corruption has seen DFID recommending that funding be stopped to the ACC after it discovered financial malpractices. Furthermore, the British Government is on the verge of withholding huge money meant for the consolidated fund for the payment of public servants in Sierra Leone.
Therefore, in order to unremittingly tackle this disease of corruption, government should unreservedly implement the recommendations of the Truth and Reconciliation Commission ( TRC) relating to curbing corruption. The TRC in its 2004 Report recommended among other things the disclosure of assets by ‘ powerful public position holders’ including members of cabinet, judges, parliamentarians, heads of parastatal and members of district and city councils, before and after assumption of office to enhance accountability and transparency. Most importantly, it recommended that the ACC be mandated to pursue its own prosecution in the name of the Republic of Sierra Leone. The latter recommendation if implemented will give the Commission the legal mandate to proceed with its own prosecution after preliminary investigations without having to forward findings to the Attorney-General; thus making it autonomous.
In addition, the courts should device ways to expeditiously dispense with cases from the ACC. They should, for example, allocate special days in specific courts, as it is the case for juveniles, for ACC cases to be heard. This move will not only help to fast-track the trial process but it will also help restore faith in the workings of the Commission by both locals and the outside world.
The SLCMP believes that corruption is an abuse of people’s human rights and should be treated in parallel with other human rights abuses such as the diminution of civil liberties.
by ibakarr | Aug 11, 2016 | Uncategorized
Children in Sierra Leone suffered immeasurably during the armed conflict that engulfed the country from 1991 to 2002. They were forced into assuming “dual identities” of both victim and perpetrator. Children witnessed the perpetration of violations during the armed conflict and in turn perpetrated appalling human rights violations against others.
Consequently, the end of the war in Sierra Leone saw the prevalence of orphaned, abandoned, unaccompanied and separated children, which has resulted in the dramatic rise in the number of street children in the country. Thousands more live with their families but spend a large portion of their time on the streets. Life on the streets has led to children being engaged in other forms of destructive behaviour, such as drug and substance abuse, criminal activity and confrontation with law enforcement officials.
In Sierra Leone , the laws relating to the definition of child are significantly inconsistent. There is no uniform age of majority throughout the country. In Chapter 31 of the Prevention of Cruelty to Children Act 1960, for example, a child is defined as being “a person under the age of sixteen years.” In the Ordinance to Regulate the infliction of Corporal Punishment defines a child as aged 15 years or below. Chapter 44 of The Laws of Sierra Leone defines a “child” as “a person under the age of fourteen years” and a “young person” as “a person who is fourteen years of age or upwards and under the age of seventeen years.” Notwithstanding the distinction, the minimum age of criminal responsibility for juvenile offenders in Sierra Leone is, according to common law, ten years.
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 no age criterion contained here. The Child Rights Bill in Sierra Leone , however, defines a child as being “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” The Beijing Rules nonetheless provides that states should establish ‘a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.’ That is ‘ doli incapax.’ In guidance of this, the Beijing Rules provide that the minimum age of criminal responsibility ‘shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity’ of the offender.
Juvenile justice from a common and known perspective is essentially associated with children and young persons in conflict with the law. That is to say, it touches on the way and manner in which justice is rendered to juvenile offenders, considering the weight of their unlawful conducts and their special circumstances. International standards use the terms “juvenile justice” and “juvenile justice systems” to refer to the treatment of the children accused or convicted of breaches in the law, whether in justice systems specifically for children or in justice systems that deal with adults as well.
When a juvenile offender, after understanding the content of the charges brought against him, enters a plea of “guilty,” or where the Court is satisfied that his offence has satisfactorily been established, section 24 of The Laws of Sierra Leone indicates that the penalty of imprisonment does not apply if he is below 14 years of age; and to those between 14 to 17 years of age, it applies only when other methods of dealing with the offender are manifestly inadequate.
This provision in Cap 44 is flagrantly being abused in northern Sierra Leone . Juvenile offenders are often imprisoned not after having exhausted all other possibilities. Making matters worse, they are most times held in maximum prisons and police detention centres with adult convicts as there are no Remand Homes and Approved Schools for child offenders. Moreover, the Probation Officers who are charged with the responsibility of safeguarding and promoting the welfare of juvenile offenders against abuse and neglect are themselves ill motivated to follow up on such matters. One such example is in the case of a fifteen year old boy from Bat Kanu in the Leibayseigahun Chiefdom in the Bombali district who was accused of abuse of young girl aged fourteen. When the boy made his first appearance in the Magistrate Court in Makeni, the Probation Officer, who should be there to protect him, was absent in court. The presiding Magistrate had to send the boy back to the maximum prison to co-habit with adults contrary to Article 10(2)(b) of the International Covenant on Civil and Political Rights (ICCPR) which states that children detained pending trial must be segregated from adults, except where this would not be in the best interests of the child.
In trying juvenile offenders within the limits of what Chapter 44 and any other related law permit, it is expected that the basic consideration of the courts shall be to protect, preserve, and promote the rights of the juvenile offender in relation to the offence with which he stands charged and that of his personal circumstances. This point is emphasized with lucidity in Rule 1(4) of the Beijing Rules, which states that “juvenile justice shall be conceived as an integral part of the national development process of each country, within the comprehensive framework of social justice for all juveniles.”
Rules 5/17 of The Beijing Rules state that the juvenile justice system must emphasize the well-being of the juvenile and ensure that any reaction to juvenile offenders is always in proportion to the circumstances of both the offender and the offence. Article 40(1) of the CRC posit that states should recognize the right 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 child’s age and the desirability of promoting the child’s reintegration and assumption of a constructive role in society.
Chapter 44 of The Laws of Sierra Leone expressly states what the Juvenile Magistrate Courts can do in the exercise of jurisdiction over matters involving juvenile offenders. When a child or young person is in conflict with the law, the Act provides for such offender to be put under the care of a Probation Officer as a first step. Where this is not possible, the offender is then sent to a Remand Home, except where the offender holds himself out to be of bad behaviour during trial.
However, the absence of Approved Schools and Remand Homes has greatly affected the proper and effective administration of juvenile justice in the northern part of the country with serious consequences on the future of the children. When the Court in Makeni, after hearing juvenile cases, acts in conformity with Article 14(4) ICCPR which states that juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles and take into account the desirability of rehabilitating the young person by handing over offenders to the Probation Officer, the Probation Officer, because of the lack of Remand Homes in entire region, take the children to a ‘Bail Home’ in care of one Helen Sesay at Azzolini Highway in Makeni for them to be ‘rehabilitated.’ This ‘rehabilitation’ process in that makeshift home has greatly undermined the whole process of promoting the child’s reintegration and assumption of a constructive role in society as it lacks the necessary structures like security for the children.
Consequently, since the close of last year to date, a number of children under the care of Helen Sesay, with ages 13, 14, 15 and 16 have reportedly ‘escaped’ from the home at Azzolini Highway with there whereabouts still not known. What is more frustrating is that the Probation Officer is not treating the matter vigorously. Each time he is asked by the Magistrate to give an up date on the ‘escaped boys,’ he responds by saying that they are yet to be apprehended. However, section 20(1) of the Prevention of Cruelty to Children Act provides that “Any person to whose care a child is committed under this Ordinance shall, whilst the order is in force, have the like control over the child as if he were his parent, and shall be responsible for his maintenance…”
International standards set out some guiding principles relating to juvenile justice. These are found on the duty of the state to secure the best interest of each child and the corresponding duty to ensure that measures affecting children who have broken the law are proportional to the gravity of the offence and take into consideration the personal circumstance of the juvenile.
With the increase in child trafficking, these concerns definitely make room for suspicion. We must remember that these children are going to be charged with the responsibility of administering the nation tomorrow. Therefore, a primary consideration in all actions concerning them, including those undertaken by courts of law, administrative or legislative bodies must be in the best interests of the child.
