by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The Child Rights bill is a bill that aims at protecting and promoting the rights of the child. The SLCMP is writing a series of articles on this bill to familiarize and sensitize the populace in order to prepare them for this bill which, when passed to law, will greatly enhance the rights of children and improve on juvenile justice. This article forms the start of a series of articles discussing the child rights bill, which will be published in forthcoming editions of the SLCMP Monitor. It is currently before Parliament, and on the 23rd and 24th of April, 2007, the public was invited to make statements on issues of the bill in a Parliament legislative committee. Pa Momoh Fofanah made a statement on which certain issues and definitions were clarified and some definitions and clause added to the bill.
History to the Child Rights Bill
The civil war is Sierra Leone (1991-2002) is universally described as a brutal conflict in which there were unprecedented acts of violence, bloodshed, destruction and human rights abuses virtually unparalleled anywhere in the world. The Truth and Reconciliation Commission which developed out of it was established in order to provide a forum for the victims and perpetrators of human rights violations, since the beginning of the conflict, to tell their story, get a clear picture of the past, and to recommend measures to be taken for national reconciliation. In its report in 2004, one of the Commission’s major findings was that the exclusion and marginalisation of key social groups such as women and children was one of the key factors responsible for the conflict. Accordingly, it recommended that in the area of children’s rights in Sierra Leone , a Child Rights Act needed to be made part of the country’s legislation.
In addition, Sierra Leone is a signatory to a number of international and regional human rights instruments, the most relevant of which under the present topic are the Convention on the Rights of the Child (CRC) (which sets out the civil, political, economic, social and cultural rights of children), together with the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. At regional level, Sierra Leone is a signatory to the African Charter on the Rights and Welfare of the Child (ACRWC)
Against this background, a Child Rights Bill has been drafted, but is yet to become law, and the said bill, if crystallised into law, will consolidate the national law relating to children, in addition to domesticating the principles set out in the aforementioned international and regional instruments.
Object of the Child Rights Bill
The short title of the Bill (and hopefully Act) describes it as one to provide for the promotion of the rights of the child compatible with the aforementioned international regional instruments. Thus it could be seen as an attempt to consolidate the law relating to children in Sierra Leone , as well as a domestication of the principles set out in the international instruments in so far as they relate to the rights and welfare of the child.
Raising age of ‘child’ and emphasizing their welfare
The Bill defines a “child” as a person below the age of 18, bringing to an end the ambiguity and uncertainty caused by the divergent definitions of what constitutes a child in Sierra Leone ’s existent legislation. 18 becomes the age at which a person is allowed to marry, and also the age at which they are able to enter the armed forces.
Therefore this is the age of consent. This is simply so, because the child would know what is good and what is bad at this age.
The overriding principle to be applied in the interpretation of the Bill is that the short and long-term best interest of the child shall be a primary consideration in any decision or action that may affect the child or children as a group. Factors to be taken into consideration in relation to this include following the general principles of the CRC, non-discrimination with respect to children in the enjoyment of their rights and respect for the views of the child.
Child Rights
The Bill sets out a series of key rights for the child to enjoy. A child has the right to live and grow up with his or her parent (unless it is proved in court that living with the parent would be inimical to the interest of the child e.g. in cases of child abuse). Under the Bill children also have the right to welfare and health care including immunization against disease, and the right to be protected from involvement in armed or any other kind of violent conflict. The Bill provides for the right not to be deprived from the estate of a parent whether or not that child was born in wed lock. Disabled children are accorded the right to special care education and training so as to develop their maximum potential and make them self-reliant.
Further rights include the right to express an opinion which said opinion should be given due weight in accordance with the age and maturity of the child. Children are also given the right to be protected from exploitative labor.
It is important to note that physical punishment of a child is justifiable where it is ‘reasonable’ and the child ‘understands’ why he is being punished. This runs contrary to most countries’ law relating to physical punishment of children, which has gradually moved towards prohibiting physical chastisement under any circumstances.
Early Marriage/ Female Genital Cutting
Under the Bill, no person shall force a child to be betrothed, to be the subject of a dowry transaction or to be married. Moreover, no person or association shall subject a child to an initiation ceremony, and it shall be an offence to so subject a child. This provision has caused a great deal of controversy within Parliament and across the country as a whole. Even within the Ministry of Social Welfare, Gender and Childrens Affairs there are conflicting views on whether such a provision should be included. However, emphasis is deliberately placed on the age at which a person may be initiated into a society, so that once a person is of an age when they can fully consent, at 18, initiation shall not be prohibited. It is hoped that this compromise shall be acceptable to Parliamentarians and that this provision will not hinder the progress of the Bill into law.
Parental Responsibilities
The Bills also sets out the responsibilities of parents in relation to children. Under the Bill it is the primary responsibility of parents to provide support to their children, but the State also has this responsibility if the child is in need. Parents have a duty to protect their children from neglect, discrimination, violence and exposure to physical and moral hazards and oppression; to provide good guidance care assistance and maintenance for the child; to ensure that in the temporary absence of the parent the child shall be cared for by a competent person and that a child under 18 months of age shall only be cared for by a person age 15 and above.
Parental Rights
Subject to the best interest of the child parents also have certain rights in relation to their children, amongst which are the right to have the child live with them, to control and guide the child’s upbringing and to act as the child’s legal representative regarding the child’s property or other interests.
Under the new law, parents will have the right to maintain relations with children with whom they are not living. This provision relates to the sad cases when parents separate in circumstances of animosity, and the parent with whom the children live prevent the other parent from seeing the children. In other countries, such as the UK , there are many high profile cases of fathers publicly demonstrating in complaint that their former partners prevent them from seeing their children. Interestingly, in Sierra Leone the situation is normally reversed. Here it is very common for women leaving a marriage to leave their children with their former husbands because they have no financial means of supporting their family on their own. It is thus normally women who are often prevented from seeing their children. In both circumstances this is most often to the detriment of the children concerned.
State Responsibility and the Establishment of the National Commission for Children
In addition to setting out parental responsibilities, the Bill establishes a National Commission for Children, a provision which recognizes that the State too has an obligation to protect and promote the rights of children.
The Commission shall be based in Freetown and shall be comprised of a Chairman to be appointed by the President and 12 other members, representing a cross-section of representatives from bodies interested in the welfare of children, each for a term of three years and, in order to accumulate experience, shall be eligible for re-appointment. The object of the Commission is to monitor and co-ordinate the implementation of the CRC and the ACRWC, to oversee the implementation of children’s rights and to advise the Government on policies aimed at improving the conditions or welfare of children in Sierra Leone . The Commission will be required to review legislation and customary law practices relating to children, and advise government and other state institutions on the application of the principle of the best interest of the child. It should contribute to the process of decentralization of authority to the districts and other local levels with a view to ensuring that every child is registered at birth and has access to health care and free basic education, and should issue reports including recommendations on child rights in Sierra Leone.
The secretariat for the Commission shall be located in Freetown but the Commission may establish other provincial offices. It will be funded by monies appropriated by Parliament for the purposes of the Commission, gifts or grants of donor and income from any investments by the Commission.
Conclusion
The main concern of the Sierra Leone Court Monitoring Programme (SLCMP) is to see this bill passed into law quickly before Parliaments disbands. This is why sensitization has already started by the SLCMP in order to make children aware of their rights that are supposed to be accorded them.
In the next edition of the Monitor newsletter, Child Rights Bill issues like parentage and custody, institutionalized care and child employment will be discussed.
by ibakarr | Aug 11, 2016 | Uncategorized
The police enjoy considerable powers in the investigation of crime. These include powers to stop and search individuals and vehicles, to arrest and to search premises. Some of these operations may be conducted on their own authority; others require the authorization of a court. This is because the primary responsibility of the police is to maintain law and order in the state.
Arrest is the beginning of imprisonment. An arrest occurs when a police officer states in terms that a person is arrested, when he uses force to restrain the individual concerned, or when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he wants to go. Individuals can be arrested for preventative purposes, that is, in order to terminate a breach of the peace; punitive purposes, for example, to take a person before a magistrate to answer for an offence or to be bound over, and protective purposes, as where inebriated or mentally ill persons are arrested for their own protection. There is no necessary assumption that arrest will be followed by a charge; a police officer who reasonably suspects a person of involvement in an offence may arrest that person with a view to interrogating him in the more formal atmosphere of a police station. The power to arrest must however be exercised for a lawful purpose.
It is proper for the police to arrest on a holding charge provided that they have reasonable grounds for suspecting the person arrested to have committed that offence. The fact that such an arrest is motivated by a desire to investigate another, more serious offence, does not render it invalid. An arrest will, however, be unlawful, even though made on the basis of reasonable suspicion, where the arrester knows at the time of arrest that there is no possibility of a charge made.
Arrest must be justified by some rule of positive law. A police officer who cannot justify his actions by reference to lawful authority is said not to act in the execution of his duty. In determining whether conduct is an unlawful interference with a person’s liberty the court must consider whether such conduct falls within the general scope of any duty imposed by statute or recognized at common law, and whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Many, albeit not all, powers of arrest, are premised upon the police having reasonable cause to believe that the suspect has committed, is committing or about to commit an offence. The term ‘reasonable cause’ relates to the existence of facts and not to the state of the law. An officer who reasonably but mistakenly, proceeds on a particular view of the law, and thus exercises his power of arrest, does not have reasonable suspicion.
In Sierra Leone, the law provides that every person arresting another must inform the person arrested of the reason for the arrest, either at the time or as soon as practicable thereafter pursuant to the Miranda rule which provides that a criminal suspect in police custody must be informed of certain constitutional rights before being interrogated. Section 17(2)(a) of the Constitution 1991, states that “any person who is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twenty-four hours, of the facts and grounds for his arrest or detention.” He also has the responsibility under (b) of same to inform the arrested person of “his right of access to a legal practitioner or any person of his choice, and shall be permitted at his own expense to instruct without delay a legal practitioner of his own choice and communicate with him confidently.” Unless this information is given, the arrest is not lawful.
Where a person is arrested for an offence, whether without a warrant or under a warrant not endorsed for bail, the custody officer at the station where he is detained is to determine whether he has sufficient evidence to charge the suspect with the offence for which he is arrested “(a) within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences; and (b) within seventy-two hours of his arrest in case of other offences;” pursuant to section 17(3) of the Constitution, 1991. If, at the expiry of that time, he has not been charged; “then without prejudice to any further proceedings which may be brought against him shall be released either unconditionally or upon reasonable conditions, including in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.”
The custody officer who considers that there are grounds for holding the suspect, but who determines that he does not have sufficient evidence to charge him, is to release him with or without bail unless he reasonably believes that detention of the suspect is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain evidence by questioning him.
Detention beyond the provisions of the Constitution of Sierra Leone 1991 may be ordered by a court. However, the police must prove to the court that a warrant of further detention is justified. Furthermore, the detainee must be given the reasons why further detention is sought. Any information submitted in support of an application must state the nature of the offence involved, the general nature of the evidence upon which his arrest was based, what inquiries have been made by the police, what further inquiries they propose to make, and the reasons for believing the continued detention of the suspect to be necessary for the purpose of such further inquiries. If the court is not satisfied that a case for further detention has been made out, it may either dismiss the application or adjourn the hearing of it as soon as practicable.
These elaborate provisions as entrenched in our Constitution are being violated with perfect impunity in the north. Law enforcement officials have little regard for the protection of human rights and the rule of law. They take advantage of the mass illiteracy amongst the people to trample on their rights without restrain. One such example is in an alleged larceny case involving a nineteen year old Alieu Tarawallie as the accused. The accused, who was reportedly arrested on the 26th January 2007 at NP roundabout along Azzolini Highway in Makeni, spent three (3) days in a police cell without the police obtaining statement from him neither telling him the reason for his arrest. A statement was only obtained from him on the third day of his arrest contrary to his rights under the Miranda rule.
After the statement had been taken from him, he was again incarcerated for eighteen (18) days in contravention of section 17(3)(b) of the Constitution of Sierra Leone, 1991 before he finally made his first appearance in Magistrate Court No. 1 in Makeni presided over by Magistrate Fanday. In the court, the police prosecutor sent almost every one present aback when he failed to bring charges against the accused for crime he allegedly committed and for which he was arrested and being tried. Compounding the unfair treatment meted out to the accused all the more was that when the police prosecutor fumbled before the presiding Magistrate in court, it was the accused who was at the receiving end as he was again handcuffed and taken to prison without any recourse to the violation of his right as embedded in section 17(3) of our Constitution.
From the foregoing, it is clear that section 17(1) of the Constitution of Sierra Leone 1991, which protects individuals from arbitrary arrest or detention by providing that “no person shall be deprived of his personal liberty,” was flouted with negligence by failure to comply with established standards.
Justice, it should be remembered is a two way street: justice for the prosecution as well as justice for the accused. Premised on the presumption of innocence until proved guilty in the court of law, accused persons in detention should be charged to court and tried without delay. Also important to note is that no person shall be deprived of his personal liberty without due process of the law. Therefore, indigent accused persons should not be made to suffer as a result of the inefficiency of law enforcement officials to execute their responsibilities responsibly. Their lack of competence to handle such matters should not in any way compromise the rights of persons presumed to be in conflict with the law.
In our quest to create a more civilized society rooted deep on the foundations of human rights and the rule of law where individuals can enjoy their rights irrespective of age, sex, colour, region, religion, political inclination, status etc., cases like these are definitely an affront to our democratic aspirations and should be nipped in the bud.
by ibakarr | Aug 11, 2016 | Uncategorized
The right of an accused to bail in criminal proceedings is worth examination of recent times. In March 2007, the Sierra Leone Court Monitoring Programme (SLCMP) carried out a study of 20 cases before different Magistrates in various Magistrates Courts in Freetown dealing with criminal matters. We acknowledge the fact that it is of limited scope. However, it provides an insight into the practice of bail applications on a day to day level. The ensuing discuss is an assessment of what we saw, and a more general discussion of the strengths and weaknesses of the current system, and suggestions on how improvements could be made. In Sierra Leone , the right to bail in criminal proceedings is guaranteed under Admission to Bail in the Criminal Procedure Act of 1965. Bail is the process by which a court releases a person pending appearance at a future court hearing. It also refers to any security which the court may demand such as cash or a bond required by the court for the release of a prisoner in order to ensure that they appear at a future time. Under the 1991 Constitution, an accused person must be brought before a court within 72 hours of his arrest or detention in the case of misdemeanours and 10 days in felonious offences.
At the first occasion when he is brought to court the accused person listens to the charges against him and is asked to enter a plea of guilty or not guilty. If the accused enters a plea of guilty, he is convicted, sentenced, and the issue of bail would never arise. On the hand, if the accused enters a plea of not guilty, and if the offence is one for which bail may by law be granted, at this stage the issue of bail usually arises. The defense counsel or the accused person himself, if he has no representation, makes an application for bail. The prosecution has the opportunity to give counter arguments, and bail is granted or denied by the judge or magistrate as the case may be.
Bail is not usually a complicated matter of law, but almost always depends on the particular circumstances of the case. However, in certain cases, the court has discretion. When a person is charged with any felony other than murder or treason, such as rape, malicious damage, fraudulent conversion etc., the Court may, if it thinks fit, admit him to bail. Subsection 3 of section 79 of the Criminal Procedure Act of 1965 states that when a person is charged with any offence other than those referred to in subsections (1) and (2), (murder or treason), the Court shall admit him to bail, unless it sees good reason to the contrary.
International conventions and protocols make parallel provisions for the granting and refusal of bail in criminal proceedings. Article 9 (3) of the International Covenant on Civil and Political Rights (ICCPR) provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantee to appear for trial.” In line with the principle of fair trial, international instruments require the granting of bail where bail conditions are fulfilled. In fact while bail is a right in other national jurisdictions, in Sierra Leone bail is not a constitutional right of the accused. For example, bail is a right according to the European Court of Human Rights, and as such all the countries in Europe contain a provision in their national law that there is a right to bail, and Judges must explain why that right needs to be breached in the particular circumstances of the case.
Grounds for Bail
The Defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the Defendant, if released on bail, would: (a) Fail to surrender to custody (eg. run away);or (b) Commit an offence while on bail; or (c) Interfere with witnesses or otherwise obstruct the course of justice. When considering these, the court should consider: (a) The nature and seriousness of the offence and probable method of dealing with the offender for it (eg. if the defendant was convicted, what would the punishment be? If a long sentence is likely, the defendant may be more likely to run away); (b) The character, community ties, employment, previous convictions of the accused; (c) Whether he has returned to court when given bail previously (or whether he’s run away) (d) The strength of the evidence against him ( if it is strong the accused may be more likely to run away).
Other reasons for refusal of bail: (a) Defendant’s own protection (eg. where community anger might mean the defendant is at risk of revenge/ mob action). (b) Already in custody (for another offence). (c) Absconded previously in the same proceedings (eg. defendants who have already escaped from prison and are caught).
If the defendant is charged with an offence for which he would not receive a prison sentence even if he were convicted, the defendant should always be granted bail unless: (1) for his own protection (as in (a) above). (2) he is serving a sentence for another offence (3) he failed to appear after being granted bail on a previous occasion.
Conditions for Bail
The Court may decide that they will grant bail but only with certain conditions: (a)
The Defendant provides a ‘surety’. Where there is a risk of the defendant running away, the court may require that the Defendant provides a ‘surety’. This is when another person comes to court to promise the court that if the Defendant runs away, that other person will pay the court a certain sum of money. (b) The defendant must stay, live and sleep at a certain address. (c) The defendant must report to a local police station several times a week. (d) The defendant must not go out at certain time, usually at night (curfew). (e) The defendant must not enter a particular area/ address. (f) The defendant must not contact any victim or witness. (g) The defendant must give his passport to the court or police.
In local criminal proceedings the arguments for and against bail have often resulted in legal battle between the prosecution and the defense. In their arguments they make claims and counter claims for the granting and refusal of bail using citizenship, family and property ownership as their lead arguments for bail.
The grounds for which bail can be granted are not always addressed appropriately by defense counsel. For example, some defense counsel use trivial arguments such as “he is a Sierra Leonean citizen” as a reason for granting bail. This type of argument shows that the lawyer has not spoken properly to his client about the case, and has not dedicated the necessary time and research into the case, and overall lack of respect for the client. Alternatively it suggests s/he does not understand the grounds for granting bail, which is a worrying indictment on lawyers who often charge large fees for their services. This argument was used in six cases out of those studied where there was representation. Other arguments used which were inadequate were “the accused is married and has children.” This argument was used in four cases. Exaggeration of offence was used in four other arguments and one for the accused being a foreigner. However, in seven cases good arguments such as the accused being a worker with a fixed resident and weakness of evidence were used.
Discussion of Legal Representation and how it relates to Granting of Bail
Overall, of defendants who were represented by counsel, 55% were granted bail.
Of defendants who were not represented by counsel, 55% were granted bail. This underscores the fact that defendants who are not legally represented are not adequately able to represent themselves in bail applications, whether that is because they do not know on what grounds they can be granted bail or what conditions they could seek bail on, do not understand the language properly or what is going on. Consequently, out of nine accused persons who were not represented in our case study, two were granted bail and seven refused. It was also recorded that among the unrepresented accused persons one application was listened to and another not listened. It may also be that those persons who are so poor as to not be able to afford counsel may not be able to assure the court that they have adequate reasons not to flee but to remain in their place of abode. For example, if an accused don’t have a property/employment. In this case the Judge may be justified in refusing bail.
In all the cases the level of surety demanded was reasonable. The bench in some cases requested property ownership in the city and reasonable amount for the granting of bail in bailable offences. To this extent the judiciary has done a great job as it reflects in the cases we observed.
On the side of the bench, bail is denied if there are substantial grounds for believing that the accused if released on bail would: fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice. All of these are grounds for the refusal of bail and should be discussed earlier as mentioned. These conditions (grounds) apply to both capital and minor offences in which case bail can only be determined by the bench base on due consideration of the prevailing circumstance. (In all cases bail depends on the particular circumstances of the case). Additionally, the bench has denied bail to defendants in cases where they lack representation to make possible bail requests. This situation has in recent times delayed the process of speedy trial in our judicial system as recommended by international standards of the principle of fair trial and it is difficult to lay blame on the bench because if the accused cannot afford the cost of legal representation what are the possibilities of getting a qualified surety and his appearance in court when demanded? It is however, worth mentioning that there is a difference between refusing to listen to applications for bail and not having satisfied bail conditions because there is no surety. Be that as it may, the lack of representation has presented a much more volatile situation in the granting and refusal of bail in criminal proceedings.
In compendium, therefore, bail granted and bail refused should be determined by the grounds for bail and conditions of bail. The granting and refusal of bail is solely the duty of the bench to look into the grounds and conditions for bail. As stated earlier, the bench can only grant bail where bail conditions have been fulfilled and the accused has no intention of running away, committing an offence while on bail or interfering with witnesses thereby obstructing the course of justice. The protection of the accused has also been counted among the reasons for withholding the accused person’s right to bail. Beyond the law, bailing an accused person in a criminal proceeding presents a complexity of circumstance rather than law. We should, however, note with interest that by international standards the law provides for the right of the accused to bail in criminal proceedings which only requires the good judgment of the bench to look into the situation under which bail should be granted or not.
In Sierra Leone , there is no such right (right to bail) in our law books. The Criminal Procedure Act of 1965 only provides for ‘Admission to Bail’ and the Constitution 1991, makes no mention of bail as a right. It is therefore worth recommending that the right to bail be entrenched in our reviewed Constitution.
The SLCMP will be producing a Guide to Bail for persons seeking to bring applications themselves, which will be distributed at the magistrate courts and in the courts in Bo and Makeni.
by ibakarr | Aug 11, 2016 | Uncategorized
The Sierra Leone Police (SLP) is largely responsible for prosecuting criminal cases on behalf of the State in the Magistrate Courts. In order for the police to successfully prosecute cases, they should present tenable evidence in accordance with the law. They must prove by admissible evidence every element of the charge(s) against an accused. That is to say, he who affirms must produce the burden of proof. On the other hand, suffice it to say that the accused does not have the responsibility of proving his/her innocence; rather the law stipulates presumption of innocence until proved guilty. However, in most criminal cases in our Magistrate Courts, Defence Counsel, by virtue of their legal expertise, usually put up stronger arguments to disprove accusations especially in cases involving police personnel as prosecutors.
Usually, when a case is charged to court, the Prosecution is given the opportunity to prove beyond reasonable doubt that the accused is guilty of the offence(s) alleged. It starts with a brief statement, setting out what they intend to prove and calling on their witnesses, if any, to testify . The practice of leading witnesses in evidence is known
as Examination-in-Chief. This practice is very important as it enables the Prosecution to guide witnesses in identifying the facts in their evidence. As such, if the Prosecutors are not legally experienced, it would be difficult for them to establish a prima facie case (at first sight). However, the Defence also has the opportunity to cross-examine Prosecution Witnesses. This cross-examination is considered as the main weapon of the Defence.
During cross-examinations, the aim of the Defence is to discredit any evidence of the Prosecution that would help convict their client. With their legal expertise, the Defence can, with dexterity, easily discredit tenable evidence of Prosecution Witnesses. The Prosecution is, however, given the opportunity to make reparations to any damage that may have been done by the Defence during cross-examination. This is known as re-examination. The importance of this ‘damage management’ is to clear any doubt that might have arisen during cross-examination. The Court does not rely on the general experience of the police in adjudicating cases, rather the credibility of evidence tendered in court are used to convict or acquit an accused. If police prosecutors do not have the legal expertise, it would be difficult for them to repair damages done to their evidence.
The unprofessional way in which police officers prosecute cases, starting with the manner in which statements are obtained at police stations, seriously undermines the confidence reposed in the police as a force for good with its attendant effects on the overall administration of justice in the country. Section 17(2)(a) of the Constitution of Sierra Leone, 1991, states that in the determination of any criminal charge, any person who “is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twenty-four hours, of the facts and grounds for his arrest or detention.” Contrary to this provision by the supreme law of the land, police officers whether advertently or inadvertently hardly follow this standard procedure. As a result of this, most statements made by litigants are wrongly translated by police officers, which give rise to contention when they are read in court. An example of such was seen at Magistrate Court No 3 on 12th January, 2007 when an accused, who claimed to be an illiterate, was unable to identify the statement he had made at the police station. With limited measures put in place to ensure the authenticity of statements obtained by police officers, these contentions definitely has the likelihood of being a cog in the wheel of justice.
The Constitution of Sierra Leone, 1991, protects the personal liberties of individuals. This liberty is however, subjected to limitations as it empowers the police to effect arrest and thereby deprived the individual from his personal freedom. Nevertheless, there are reasonable considerations as to how these arrests are enforced. Despite these provisions, the police are usually found wanting of abusing the right to liberty of individuals. Section 17 of same provides against unreasonable delays relating to pretrial especially when the accused is being held in remand. It guarantees for persons who have a case to answer from the police to be brought before a court of law within ten days for felonious crimes and three days for misdemeanours.
On the contrary, most accused persons are held longer than the stipulated time as enshrined in the Constitution because the police officers after having hastily charged the accused persons to court without obtaining the necessary evidence to prosecute the matter also fail to procure witnesses to testify. An example of this practice was vividly manifested in Magistrate Court No. 1, presided over by Sam Margai. In that case, two Nigerian nationals were arraigned before the court on two count charges: fraudulent conversion and obtaining money by false pretence contrary to law. The accused persons, while in detention at the Pademba Road prison, made three appearances without the police Prosecutor starting the proceedings. His reason for the delay was that he was waiting for a man called Alhaji, a key Prosecution Witness, to come from Kono to assist the police in their investigations. Also, in a murder case involving a lady as the accused, the police failed to subpoena Prosecution Witnesses on four adjourned dates to come testify while the accused continued to languish in prison. Even after having failed to start proceedings and procure witnesses to give evidence in both cases respectively, the accused persons were not granted bail.
Also, where police officers are faced with the task of corroborating their allegations against accused persons, they have performed far below expectations. Although it is not unlawful to convict an accused without corroboration, it should, however, be proven beyond reasonable doubt. For such proof to be made devoid of any ambiguity, the prosecutors need to have the technical expertise in guiding witnesses through Examination-in-Chief and Re-examination. However, because police officers are hardly present at scenes at particular times when crimes are actually committed, when they appear as witnesses, they most often fumble in the witness box; hence leading to uncorroborated evidences. In instances where they fail to produce witnesses after series of adjournments, there is the tendency for the Magistrate to throw the matter out of court.
The adjudication of justice in Sierra Leone is very much challenging. If the police can not rise up to these challenges, they can have far reaching ramifications. To surmount this obstacle, legal expertise is required on the part of the police to guarantee that measures for successful prosecution and subsequent judgment are correctly implemented.
With legal assistance/expertise, the police can uphold the integrity of not only the force but also the justice sector- the corner stone of a modern state.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The essence of the existence of laws is to protect the people it is enacted to serve. Those laws can be more effective if they are reviewed at regular intervals to meet contemporary challenges. Post-conflict Sierra Leone still operates on laws that it inherited from its colonial master, Britain. It also has many laws that were enacted under dictatorship and whose framers intention was to suppress and not protect the citizenry. The conservative interpretation of some of these laws has led to the breach of human rights and limited the channels ordinary Sierra Leone could used to address their grievances. Consequently, it led to the decade long civil war costing Sierra Leoneans lives and properties.
Reform in the justice sector is supposed to be one of the priority areas of the government. Despite the fact that there exists a parliament, the Law Reform Commission, the recently established Constitutional Review Committee, and the efforts of partners and organizations such as the Law Reform Initiative, Justice Sector Development Programme, United Nations Development Programme, reform in the justice sector has been too slow in the face of the urgency the situation deserves. Given the challenges facing the sector, , it is important that the Sierra Leone Judiciary explore the possibility of adopting more progressive and liberal ways of interpreting the laws, thus the need for judicial activism.
This article will examine the concept of judicial activism in the context of post-conflict Sierra Leone, and how it will enhance the administration of justice and the integrity of the judiciary. Sierra Leone being an adherer to the Common law tradition, judges’ decisions are largely guided by precedent. Sceptics of the concept would imply that the adoption of judicial activism is a shift from the Common law tradition. The article will therefore, analyse the views of some sceptics of the concept and will make a case for the contrary.
The Concept of Judicial Activism
Judicial activism as a concept generally refers to the tendency of judges to be flexible in using their powers in relation to their decisions. For instance, an activist judge may tend to give a decision that reflects the changing situation devoid of the fact that it may be a departure from a particular precedent and the intention of the framers of the affected law or policy. According to Black’s Law Dictionary , judicial activism is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” The Merriam-Webster’s Dictionary of Law defines judicial activism as “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent”. Various legal scholars and judges may have different definitions.
However, what is important is that the judge being refered to as an activist may not necessarily adhere to the restraint of the appellate judges, meaning may decide not to strictly abide by judicial precedence. Additonally, most activist Judges guide cases through, taking a more active part in order to ensure the smooth running of the case; and when there is no specific decision on a particular point of law the judge may sometimes use their discretion to apply broader concepts from the constitution or human rights law. In view of the fact that there is no law reporting, the scope for judicial activism should be much greater than elsewhere.
In Sierra Leone, the role of the judiciary is set out in the Constitution, and so also are the other branches of government, the legislature and the executive. By virtue of the principles of separation of power, one arm of government may not interfere with the function of the other, without prejudice to the doctrine of checks and balances. Furthermore, the various arms have an obligation to abide by the Constitution. However, section 124 of the Constitution of Sierra Leone, 1991 granted the Supreme Court the power to interpret the Constitution. Additionally, they have the power of judicial review, meaning they may declare a legislative decision ultra vires if it is repugnant to the Constitution. Nonetheless, judges are not expected to go beyond their jurisdiction i.e. interpretation. Skeptics of the concept have posited that law making role is exclusively the prerogative of parliament and not of judges. As such when judges interpret legislation in a progressive manner, they have been accused of usurping the functions of parliament.
The phrase “judicial activist” was first introduced by Arthur Schlesinger Jr. when he wrote an article, The Supreme Court: 1947, in the Fortune magazine in 1947. Other people have traced the start of judicial activism to the ruling in the landmark case, Marbury v. Madison (1803). Although the decision itself was not a show of activism, it however sets the stage for activism in the United States when Justice John Marshall who wrote for the Court said “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
The Judiciary in Sierra Leone is much more familiar with the opposite view of judicial activism, judicial restraint since they have been confined more to interpreting legislations in a narrow and conservative way instead of progressive interpretation as judicial activists do. This is as a result of the fact that, Judges in Sierra Leone have inherited their judicial caution from the traditional English law system whereby Judges were wary of interfering with politics, and unlike their European counterparts, shied away from guiding cases through the courts and applying larger principles in their decisions. Since the time when Sierra Leone gained independence however, English judges have moved far from this lack of intervention.
Today, while abiding by the law, judges act as a balance against the government when it introduces changes for example in anti-terrorism legislation. Judicial review has also expanded rapidly, and many judges take it on themselves to guid cases through, although this tends to rely on the personality of the judge. Sierra Leone’s judges have largely remained as inactive as English Judges were back in the 60s.
Why Judicial Activism in Sierra Leone?
Sierra Leone is currently recovering from a decade long civil of which the lack of the rule of law was one of its root causes. O n the eve of the war, the once reputable judiciary was more renowned for rendering justice to the few political elites and their wealthy friends than the poor Sierra Leoneans. “Lack of courage on the lawyers and judges over the years paved the way for the desecration of the constitution, the perpetuation of injustice…” [i] People became disgruntled with the justice system and some of them decided to use extra-judicial means to seek recourse, thus the decade long civil war.
The Judicial system had become infamous not only for its ramshackle application of laws, but was also for the obnoxious and archaic character of the laws themselves. Given the centrality of the judiciary to the balance of powers, the lack of a functioning judiciary will certainly have ripple effects on the proper functioning state institutions, and it is thus important that more attention is accorded to the reform of the judiciary including the laws. The judiciary has been able to record some considerable success in the reform process.
However, law reform has nevertheless been slow. Parliament has been too slow in effecting changes to the laws especially those that will guarantee protection to the country’s citizens. For instance, a group of civil society organizations sponsored the drafting of an omnibus bill comprising of important elements of the TRC recommendations. This bill was presented to Parliament in a public ceremony in 2005. Parliament took no action to ensure that the bill was passed; not even a first reading done. Other bills relating to women and children drafted at a similar time are yet to be passed into law.
The Law Reform Commission on its part, while quick to respond to issues brought to its attention by the Government, rarely initiates issues on its own. The Government on its part is less than mesmerized by human rights issues despite the hue and cry by right groups and civil society organizations to repeal certain laws such as the death penalty and seditious libel. Moreover, in the absence of a law reporting mechanism, there is no recent formal precedent on many issues.
Amidst all this, it is a pity that the Judiciary has only been interpreting the available laws in a restrictive fashion. The judiciary need to grasp the opportunity to adopt a judicially active approach by interpreting the laws in a progressive manner to protect rights instead of continuing to restrain itself. Some judges may report that they are already referring to other commonwealth cases and human rights law when considering their decisions: this needs to be embraced more widely, and, in a system when many indigents go unrepresented, not only when cases are drawn to their attention by defence lawyers. This will not only help protect rights but will also enhance the integrity of the judiciary in post-
conflict Sierra Leone. In its Report, the TRC suggested legal activism by calling on members of the Sierra Leone Bar to initiate pro bono service for indigent persons. Much as the Sierra Leone Bar was encouraged to partake in legal activism by offering pro bono services, so too should the judiciary contribute what it can to the enhancement of human rights protection in the country.
Judicial Activism Towards What?
Generally, apologists of the concept posit that the activist judges engage in judicial activism in the following:
· Decide to adhere to more forward looking precedent when there is an option between conservative and progressive precedent;
· Declaring legislative decisions unconstitutional by way of judicial review as provided for under section 124(1)b of the Constitution. “…whether an enactment was made in excess of the power conferred on Parliament or any other authority or person by law or under this Constitution.” Following this, activist judges could refer cases to the Supreme Court for such review.
· Ruling against the framers intention of certain legislations where the intent was not for but against the interest of public good. This often happened in the United States.
· Judges using their powers to make orders providing for the close management of cases, so as to ensure their smooth running through the system. For example refusing to adjourn on the request of one of the parties unless there are exceptional reasons.
In Sierra Leone, judges may need to apply activism in all three scenarios because there are certain verdicts of certain courts whose ratio decidendi (reasoning) are too weak to be compelling precedents, albeit the fact that they are superior courts. In some countries such as the United States, the Bench expressly compel the legislators to amend a particular law within a specific timeframe. For instance, the Massachusetts Supreme Court in Goodridge v. Department of Health (2004) compelled the legislators to rewrite their gay
marriage law to be consistent with the Court’s decision within six.
Sceptics of Judicial Activism
For the sceptics, the court’s work is to take negative action, meaning it jurisdiction stops at where it strikes down a particular law and must not extend to taking a positive action by way of directing the legislature to amend the laws. Furthermore, sceptics believe that legislation from the Bench is gross abuse of authority and usurpation of the authority of the other arms of government.
However, in Sierra Leone the balance of power between the executive and the judiciary is unclear. For instance, subsections 3 and 5 of section 136 of the Constitution of Sierra Leone, 1991 empowers the President to fire judges who are hired on contract basis after retirement as stipulated in section 137 of same. The security of tenure of office for judges hired under sub sections 2 and 4 of same may not be guaranteed, which in effect undermines their independence. By adopting judicial activism, therefore, this may show that in fact they are not controlled by the executive.
Conclusions
The main contention between judicial activism and judicial restraint, especially in a country which is in urgent need of reform lies in the institutional mandate with the discretional power to effect those changes. Not that judges should exert their power to legislate, but that they should take advantage of a time when there are forward-looking precedents, and try to manage cases more closely so as to speed up trials and ensure that people’s rights are protected throughout. As being vital that Judges take on this responsibility in a system where there the chances of a person being legally represented before court is so slim.
[i] Sierra Leone TRC Report Vol. 2 pp 145
