The Domestic Violence Bill: A Discussion

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

This is the third in the SLCMP series of articles on the ‘Gender Bills’ which have been awaiting enactment by Parliament since summer 2005. The domestic violence Bill is one of three Bills. The other two, discussed in previous articles, are the Registration of Customary Marriage and Divorce Bill and the Intestate Succession Bill. The SLCMP calls on the Government to prioritise this Bill so that it can be heard before Parliament before end of this Parliamentary session.

Definition of Domestic Violence

Broadly, domestic violence comprises physical, sexual, emotional, verbal, psychological and economic abuse. In the vast majority of cases domestic violence is committed by men against women, but men may also fall victim. In the UK, for example, there were an estimated 12.9 million incidents of domestic violence against women in 2003, while there were 2.5 million incidents against men.

Domestic Violence as a Problem

Domestic violence is by no means a problem exclusive to Sierra Leone. Studies by the World Heath Organization have shown that 71% of women in Ethiopia have experienced domestic violence in their lifetime, while this figure stands at 80% in Cote D’Ivoire, 30% in the UK and 22% in the US. Japan has the world’s lowest level of domestic violence, at just under 20%.

In Sierra Leone, one study found that 67% of urban women were beaten by an intimate male partner, and over 50% reported to having been forced to have sexual intercourse. In 90% of cases, a boyfriend or husband was the perpetrator. [i] While some violence does not leave the victim wounded, it often escalates, and there are regular instances of violence leading to death or permanent disability.

Impact of Domestic Violence on Society

As well as the impact such abuse has on the lives of the women in question, it also has hidden costs for everybody in the community. The cost to the economy is vast. In the US it is estimated that intimate partner violence costs the country a total of $5.8 billion a year. One study also showed that abused women in the US earn on average 20% less each year than those who were not abused. They are put in a vulnerable position where they are not able to achieve their potential or fully contribute to the economy. In Uganda, the Ministry of Finance reported in 2002 that “ gender inequality emerges as one of the main reasons for persistent poverty.” Indeed, in March 2005, the World Bank specifically recommended a Domestic Relations Bill in Uganda, on the grounds that the economic impact of violence against women and their inequality perpetuates poverty for the whole country. [ii]

The health costs are also enormous, as it is recognised internationally that there is an important link between domestic violence and the transmission of HIV/AIDs. Men who are violent to their intimate partners are more likely to refuse to use contraception, and their partners are less likely to be able to insist upon it. Studies in South Africa have shown that violent men are also more likely to have multiple partners, and thus, refusing to use contraception, contribute to the spread of sexually transmitted diseases.

The impact of intimate partner violence on children is also widely recognised. Children who grow up in households with domestic violence are not only more likely to become the subject of it themselves at the time, but seeing that violence is an acceptable part of life, they are also more likely to grow up to become the victims of it, or in the case of men to commit it. This has implications for the acceptability of violence as a means of resolving disputes in society as a whole.

The Law as it Stands

Despite this, domestic violence against wives and female relatives is in law considered normal in most communities in Sierra Leone, and acceptable up to a point. Under Customary Law, a husband has the right ‘to administer reasonable chastisement to his wife.’ [iii] According to this he can ‘beat her but not to the extent of wounding her.’ At that point outside intervention may be sought, but inevitably, that point varies from case to case.

The law as it currently stands is also very conflicted. In some chiefdoms (for example in certain areas in Bo District), if a husband beats his wife to a ‘reasonable’ extent, it is counted as a ‘fight between the spouses’ and attracts a fine levied on both parties. If the couple stay together the husband is to pay both fines, if the parties separate it is for the wife to pay both her fine and her husband’s. [iv] This may seem extraordinary by modern standards, but, without the enactment of the Domestic Violence Bill, it is how the law will continue to stand.

Currently, certain extremely serious incidents of domestic violence can in theory be prosecuted under the general common law, under offences such as grievous bodily harm under the Offences Against the Person Act 1861. However, Prosecutors are wary of undue interference into ‘private matters’ and are often reluctant to prosecute. Very few prosecutions indeed are brought, and even fewer convictions are obtained. In 2006, throughout the provinces, only one successful prosecution was brought for an offence of domestic violence.

In practice domestic violence is surrounded by a culture of silence. There is often pressure from partners and family not to report abuse and women may fear ostracism or retaliation. Even when matters are taken to outside bodies, such as the Family Support Unit (‘FSU’), women are almost always encouraged to settle the matter rather than prosecute. This is not least because FSU has little means to help the victim: all they can usually do is call the husband and try to mediate. Mediation and counselling are very important and in many situations may work, but without additional protection it can leave women even more vulnerable. The FSU has no safe houses, and very few victims have alternative accommodation or support mechanisms. Their only real alternative to the street is to return with their children to the same violent situation they just fled. Without protective mechanisms the violence can escalate because with this culture of impunity, perpetrators know there is nothing the victim can do.

The Need for Change

A survey by Physicians for Human Rights in 2000 found that 80% of women in Sierra Leone believe that there should be legal protection to protect women. Despite this, no legal reforms have yet been made to protect them.

The Government has a legal and moral obligation to protect its citizens, and as such to provide a remedy to a situation once it is reported. Section 20(1) of the 1991 Constitution states ‘ No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading.’ As such, the Government shares responsibility with the abusers if it fails to act to protect the victims. The current failure to protect women is also contrary to Sierra Leonean law, for according to s.75 of the Courts Act 1965, the application of customary law ‘… must not be repugnant to equity, natural justice and good conscience.’

Under International Law, all persons have a right to freedom from coercion and violence, the right to equality within families, and to decide freely whether they have sex. More specifically, the Convention on the Elimination of all forms of Discrimination Against Women ‘CEDAW’ [v] advocates for the enactment and enforcement of legislation to prevent and punish acts of domestic violence.

Precedent from elsewhere in the Commonwealth confirms the need for protection. In S v. Baloyi 2000 (2) SA 425 (CC), a case before the Constitutional Court in South Africa, the Court held that the Constitution imposes a direct obligation on the State to protect the right of all persons to be free from domestic violence. The UK and other Commonwealth countries have already enacted Bills similar to that under discussion, for example South Africa passed its Domestic Violence Act in 1998.

The Domestic Violence Bill

Ordinary common law needs to be supplemented by specific offences recognizing the peculiarities of domestic abuse, as well as special protective measures to help the victim. The new Bill does this.

Domestic violence is defined in the Bill to include physical and sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation, harassment and stalking; damage to property; entry into the Complainant’s residence without consent where they do not share the same address; and any other controlling, abusive or threatening behaviour. Under the Bill, a single act may amount to domestic violence, a crucial provision to ensure a victim’s life and health need not be endangered by multiple attacks. It would protect anyone in a ‘family relationship’, including married partners, cohabitees, and fiancées, parents and children. It is important to note that the Bill is gender neutral, and would protect men suffering from abuse at the hands of women as well as vice versa.

The Bill would provide an array of tools for dealing with domestic violence, including mediation, punishment of the perpetrator through criminal law and protection for the victim through civil law. Such measures would provide a vital balance so that individual cases can be dealt with in the most appropriate manner and as sensitively as possible.

As long as the case does not involve aggravated assault, the Bill provides that matters may be settled out of court, either at the Complainant’s request, or if the court is of the opinion that it can be amicably settled. If the matter is referred for settlement, the Bill provides that the court shall also refer the parties to counselling and shall appoint a probation officer to report on the Respondent’s subsequent conduct. In practice it is likely that very many cases would be dealt with in this manner.

However, if the court thinks that the matter cannot be settled amicably, and the Complainant wants to prosecute, or if it is a matter of aggravated assault, the matter would go to court.

In terms of criminal actions, under the Bill, domestic violence would constitute an offence. If found guilty, a perpetrator may be liable to a fine not exceeding Le 5,000,000 or a term of imprisonment not exceeding two years, or both.

On the civil side, a person may apply to the court for a ‘protection order’ to prevent a Respondent from carrying out a threat of domestic violence or carrying out further violence. Of course, in law this would already be prohibited, but if the court has made such an order, the police can subsequently arrest the Respondent forthwith if he is found to have breached that order. This provides protection to victims in times of emergency.

A protection order could also regulate the relationship between the victim and alleged perpetrator, thus helping to calm down potentially volatile situations by preventing the two from coming into contact with each other. As part of a protection order, the court could specify that the Respondent must not go into or near certain places frequented by the Applicant, or by her children. In certain serious circumstances and as an emergency measure, the court could direct that the Respondent leave the family home, but continue to pay rent so that the Applicant and her children can carry on living in that home. Given the shortage of safe houses for victims of domestic violence, this provision is crucial, especially for women who are caring for children, who would otherwise be forced onto the streets. The Bill also gives the courts power to order, as a temporary emergency measure only, that the Respondent provide financial support to any children for which he is liable. The court may also direct that the Respondent seeks counselling, surrenders any firearm or weapon, and restrains from taking or damaging the Applicant’s property.

The Act would endow courts with the power to issue interim protection orders without the Respondent’s presence in court, if it considers it to be in the best interests of the Applicant. This is an important provision so that victims can come to court without the risk of alerting a perpetrator who may become violent when told of the complaint. It also ensures that proceedings can go ahead even when a Respondent persistently avoids service or refuses to come to court. However, in such circumstances, the Respondent will be summoned to court, where he can seek to discharge the order. Indeed, a court may discharge orders at any time on an application made by either party.

The Bill also specifies that any person who breaches a protection order would commit an offence and be liable on conviction to a fine not exceeding Le 2,000,000 or a term of imprisonment not exceeding two years, or both.

Conclusion

The establishment of the FSU was an important step forward in taking offences within the home seriously. However, that organisation still faces enormous challenges because its powers are so restricted. The enactment of this Bill would provide the FSU with an array of tools,provide emergency means to protect women when they are at their most vulner including criminal prosecution, civil action and alternative dispute resolution. It would able. In so doing, the passage of the Bill would also bring Sierra Leonean law in line with international standards, for the ultimate benefit of the whole community.

Download PDF file of Domestic Violence Act 2007

[i] Coher and Richeter, Violence against women in Sierra Leone, 1998
[ii] Human Rights Watch
[iii] Smart p. 108
[iv] Smart p.109
[v] Ratified by Sierra Leone on 11th November 1988. See General Recommendation 19.

The Intestate Succession Bill: A Discussion

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

This is the second in a series of articles by the SLCMP dealing with the ‘Gender Bills’, which have theoretically been before Parliament since summer 2005. The SLCMP is urging the government to enact the Bills as this will lead to the empowerment of women in Sierra Leone. In taking a look at the  Intestate Succession Bill we need to define Intestate Succession, which according to Black’s Law Dictionary is the method used to distribute property owned by a person who dies without a valid will.

A look at the present laws of Inheritance in Sierra Leone

In reality, only small fractions of the Sierra Leone population actually make valid wills or even attempts to make wills. In the event that wills are not made, inheritance is governed by three laws, Mohammedan law, customary and general law, which applies to those individuals who are neither Muslim nor governed by customary law. All of the above laws discriminate against women.

The general law is covered by the second schedule of the Administration of Estates Act, Cap. 45 of the Laws of Sierra Leone 1960. It states that where neither customary nor Mohammedan laws apply, on the death of the husband, the wife is entitled to one third of the estate whilst the remaining two thirds goes to the children. If the husband has no children, the wife inherits half of the estate. The other half is divided amongst the husband’s close relatives or next of kin. This Act does not provide for unmarried couples.

Under the Mohammedan Law, the estate is distributed according to the Holy Koran. Section 9(2) of the of the Mohammedan Marriage Act Cap. 96, states that only the eldest son of age 21 and above, and the eldest brother if there is no son of the said age, can carry out letters of Administration. The wives and daughters cannot take out letters of administration. There are no rules on how the estate should be administered after the letters of Administration have been taken out, and so it is for male relatives to decide how the estate is distributed, with no protection in law for female relatives. On the other hand if the woman dies everything goes to the husband. Hence they are deprived of the right to administer, and sometimes inherit nothing at the end of the day. They may be forced out of their homes at a time when they are in mourning and most vulnerable. Some Muslim communities use the Quran-Sura-Tul Nisa which also gives more rights to men than to women. The adoption of these laws often leads to the eviction of widows regardless of their input towards acquiring the properties. This also affects the welfare of children who may consequently be deprived of proper care (in terms of food, shelter, education, medical needs and recreational facilities).

In customary law, the rules of inheritance vary from one ethnic group to another. Generally it is common practice under customary law for a woman not to inherit property after the death of the husband. Female children are also discriminated against. The Mende and Temne communities present examples of ethnic groups that do not allow women to inherit either real or personal property. In fact, under some tribal customary law, women are ‘inherited’ along with the rest of their deceased husbands’ estates, depriving a woman of the right to choose who she wishes to marry. This is repugnant to the modern standards by which we function in the rest of society. One example of this practice that SLCMP has encountered, was where a woman who had effectively brought up and mothered her husband’s young brother from infancy was told on the death of her husband that she had to marry him. Law provides that the application of customary law should not offend the principles of natural justice, fairness and equity but this practice clearly runs to the contrary to such principles.

Problems created by the present law

Needless to say, the present applicable law has grave implications for women in that its discriminatory nature has a severe impact upon their economic independence and ability to make decisions over their own lives. The above provisions are severe limitations upon a woman’s ability to own property, and by extension, her ability to obtain credit for business expansion and development. Ultimately they contribute to the feminisation of poverty in this country.

It should be noted that Art. 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (which Sierra Leone ratified on 11^th November 1988) specifically requires State parties,

“…to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”

Moreover, General Recommendation No.21 of CEDAW has this to say on such legal limitations:

“……..Any such restriction prevents her from holding property as the sole owner and precludes her from the legal management of her own business or from entering into any other form of contract. Such restrictions seriously limit the woman’s ability to provide for herself and her dependants.”

The present state of the law also contributes to the high levels of domestic violence found in our society. A recent study of eight villages in Namibia showed a fundamental link between women’s economic status in society and their experience of intimate partner violence. Women in four of the villages were given loans with which to establish small sustainable businesses over a two year period, and at the end of that period their experience was that the level of domestic violence had reduced significantly as their economic status improved. The four remaining villages were left as a control, with no loans, and by the end of the period their experience of domestic violence was still high and had not changed. This shows an evident link between women’s economic status and their experience of violence, and accordingly if women were able to inherit property, that their position in society would improve, affording them greater control over their lives and bodies.

There are also serious health implications in denying women the right to inherit property. Women lacking in economic power are far less able to exert power over their own bodies, or to insist on the use of contraception, making them more susceptible to contracting HIV/AIDS from male partners. This clearly has huge implications for the economy and society as a whole.

The Intestate Succession Bill

The object of this Bill is “ to provide for intestate succession and other inheritance related matters”. The interpretation section provides several instructive definitions. For example, the definition of child includes children born to the deceased prior to his/her marriage, children born to the deceased and his or her lawful spouse during the marriage, children born to the deceased during such marriage who were recognised by the deceased as such and accepted by the deceased’s spouse as children of the family; and any children adopted by the deceased under any applicable law. The aforementioned definition is elastic enough to include illegitimate children who under the present law are disadvantaged when it comes to succession. Likewise the definition of “spouse” encompasses persons legally married to the deceased as well as single persons who cohabited with the deceased as if they were married, for a period of not less than 10 years prior to the death of the deceased. This definition gives protection to people who though not married to the deceased are nevertheless considered to be “spouses” by virtue of cohabitation for the prescribed period of years.

When considering the distribution of the estate of the deceased person under the Bill, there is a distinction between household chattels on the one hand and houses on the other.   “Household Chattels” include all moveable objects, such as jewellery, furniture, motor vehicles, etc.   The Bill provides that where the deceased is survived by a spouse or child or both, then the said spouse or child (or both as the case may be) shall be entitled absolutely to the deceased’s household chattel.

Houses are dealt with differently. The distribution of houses depends upon the number of houses forming part of the deceased’s estate. Where there is only one house, the spouse or child (or both as the case may be) are entitled to such house. Where both a child or spouse survive the deceased they are entitled to such house as tenants-in–common that is, one or two or more tenants who hold the same land by unity of possession but by separate and distinct titles, with each person having the equal right to possess but no right to survivorship. Where the estate includes more than one house the surviving spouse or children shall determine who is entitled to which house and in the event of disagreement of this issue an application may be made to a court. Furthermore, where a deceased who only has one house is survived by only a spouse or only a child, then such spouse or child is entitled to the house absolutely.

The Bill also deals with the residue of a deceased’s estate (i.e. all that part of the estate that is not household chattels or property). The Bill provides that such residue be utilised for the maintenance of the natural children of the deceased, as well as a proportional division of such residue amongst the spouse(s), children and surviving parents, such proportion varying according to who survives the deceased. Where the deceased is not survived by a spouse, child or parent, the estate shall devolve in accordance with Muslim or customary law (whichever is applicable), and where neither is applicable the estate shall devolve to the nearest relatives or next of kin, and in default of the latter, to the State (s12).

Moreover, the Bill would make it an offence to eject a surviving spouse or child from the matrimonial home before the formal distribution of the estate. Any person convicted of such an offence would be liable to a fine not exceeding Le 5,000,000 or a term of imprisonment not exceeding 2 years. Additionally, the court could make an order that the ejected person be re-installed or compensated.

Conclusion

In conclusion the Bill acts to protect the interests of the surviving spouse and children, moving away from the current position where the extended family frequently sweep in avariciously upon a deceased’s property to the detriment of closer relatives. It also affords protection to illegitimate children and women who though not married to the deceased, have cohabited with the latter for a lengthy period, and may have indeed contributed in no small way to the acquisition of the property that forms part of the deceased’s estate. In addition it affords women the opportunity of owning and possessing property free from the customary interferences that have kept them downtrodden in the past. Simply put, the Bill is a step in the right direction for women’s economic empowerment in Sierra Leone, which in turn would contribute to the economic security of the country as a whole and would simultaneously bring the country into conformity with internationally recognized standards.

Examining the Prosecution of Sexual Violence Cases against Children in Northern Sierra Leone

by ibakarr | Aug 11, 2016 | Uncategorized

Prior to the outbreak of the war, children in Sierra Leone did not fully enjoy their basic human rights. Laws relating to children were outdated, uninformed and grossly inadequate to guarantee the protection and promotion of their rights. Crimes against children especially in the provinces including rape and sexual violence generally went unpunished, contributing in no small measure to the culture of silence and impunity that prevailed.

The war in Sierra Leone had a serious impact on children, especially girls as they were subjected to widespread and systematic abuse including sexual violence. Many of these younger victims did not survive and those who did later gave birth to children fathered by the combatants. Thus United Nations Children’s Fund, UNICEF, submitted to the Truth and Reconciliation Commission, TRC, the following: “Particularly vulnerable to abuse were children, as they were violated in deep and lasting ways, some too awful to be adequately described…In some ways, it is as if a new level of cruelty has been attained in this war, setting the bar lower than ever imagined”. [i]

Unfortunately, however, since the end of hostilities to date, little has been done to robustly prosecute the myriad sexual offences committed against girl children in their every day lives.

The manner in which sexual offences are being prosecuted in northern Sierra Leone is suggestive of the low status of girl children in the region. The notion of sexual violence as an offence is a recent concept in the north of the country. It is still widely believed that only rape of a chaste girl is considered a crime. Rape of a non virgin girl is not seen as a crime because it is often the belief that the girl must have consented to the act or is a seductress.

However, section 6 of the Prevention of Cruelty to Children Act 1960 makes it a criminal offence punishable by imprisonment for a period not exceeding 15 years if the accused person is found to be guilty of unlawful carnal knowledge or abuse of any girl under the age of 13 years, with or without her consent.

Under the Local Courts Act, local courts have no jurisdiction to preside over serious criminal matters such as rape. Section 13(1)(c) of the 1963 Local Courts Act states that the courts shall have power “ to hear and determine all criminal cases where the maximum punishment which may be imposed does not exceed a fine of fifty pounds or imprisonment for a period of six months or both such fine and such imprisonment”. As such, local courts have no jurisdiction in seduction actions: all serious criminal cases should be automatically tried under general law.

Despite these provisions, offences of a sexual nature in the northern region are still largely being prosecuted under customary law. Local courts within the region are currently hearing a multitude of rape cases some of which involve children as young as 8 years of age. The concern with these courts adjudicating on such matters is that apart from it falling outside their jurisdiction contrary to law, the court administrators also lack the necessary logistics and expertise to dispense justice in such matters.   The atmosphere in local courts is not conducive and proceedings are conducted in the open thus inhibiting the smooth flow of evidence as most victims find it very humiliating and traumatic to testify especially in the sight of accused persons.

Moreover, when the accused in a rape matter is of ‘high standing’ in the community, the girl victim is most often intimidated to refrain from testifying in court. In some instances, the parents of the victims are ‘talked over’ to withdraw the matter and have an out-of-court settlement which, in most cases, is done without the active consent of the victim. An example of such practice was seen in the matter involving a clergy as the accused person and an 8 year old girl as a victim in Local Court No.3 in Makeni. In the middle of substantive investigations, the parents of the girl victim withdrew the matter from the court to have an out-of-court settlement. In fact, after the matter had been withdrawn from the court, some people who had been following the case closely alleged that the parents of the victim had accepted some financial inducement in order to withdraw the case.

However, this issue of withdrawing rape cases at the peak of preliminary investigations is not only prevalent in the local courts. This malaise is also widespread in the Magistrate Court. One such example was in Magistrate Court No. 1 in Makeni which involved a primary school teacher alleged to have raped an 11 year old class 4 pupil. During one of the appearances, the mother of the girl victim made a dramatic U-Turn in helping to prosecute the matter by seeking a withdrawal from the court. Frustratingly, however, in both cases, no substantive reasons were proffered for taking such decisions to withdraw matters that would have serious impact on her own children and also on the lives of future potential victims.

In other rape cases that are being prosecuted in the Magistrate Court, the process has not been expedited. There have been adjournments mainly due to prosecutorial inadequacies. Many a time, Prosecution Witnesses fail to appear to testify in court in matters of rape especially in the presence of the accused person. The reason may be attributed to the fact that witnesses, because of lack of protection by the court, fail to appear to testify for fear of victimization.   Hence the absence of evidence to prosecute an accused person may lead to delay in the administration of justice.

[i] UNICEF submission to TRC-vol3b cap4 pp234

The Arbitrary Violation of Fair Trial Protection in Sierra Leone

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

The Sierra Leone Judiciary has an abysmal record of keeping people in detention ad infinitum due to undue delays either in the trial or during appeal. Recently, the SLCMP conducted an investigation that revealed myriad of cases involving people who have been in detention for periods far beyond the time they would have spent if they had been convicted. Some of the individuals in detention are charged with minor offences such as petty theft. Others already convicted of serious offences such as murder have been in detention for over six years without trial; some of whose files have still not reached the Appeals Court. As a result of these stacking revelations, the SLCMP decided to revisit the fair trial provisions. This article therefore highlights some of the relevant fair trial guarantees as provided for in the laws of Sierra Leone. It further examines how law enforcement, judicial and government officials fail to protect them.

Fair Trial Protections: the law

Fair trials are both constitutional and legal rights designed to protect persons on trial for allegedly committing an offence. It is also meant to protect litigants from the arbitrary or unlawful curtailment or deprivation of other basic rights and freedoms especially the right to life and the right to liberty. [i] The guarantee of fair trial provisions has been one of the hallmarks of democratic societies. It is provided for in both international instruments and national legislations. For instance, Art 14(1) of the International Covenant of Civil and Political Rights (ICCPR) provides that “…[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” In Sierra Leone, such provision is enshrined in sec 23 of the Constitution of Sierra Leone, 1991 which states in subsection 1 that “[w]henever any person is charged with criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” In other words, courts have to be independent and impartial in order to be able to dispense justice fairly. Furthermore, fair trial guarantee accused persons speedy trials, adequate time and facilities to prepare their defence, right to examine evidence against them, right to be tried in their presence and so on and so forth. It is important to note that the exercise of the right to fair trial commences from the date of arrest onto the date the final decision is made by the court.

To this end, sec 20 of the Constitution protects individuals from being subjected to any form of punishment, torture, inhuman and degrading treatment. Fortunately, this is the only right provision in the Constitution that is fully protected. That is to say, under no circumstance should the authorities derogate from it. This provision bars Governmental authorities from using any form of force that may amount to torture in obtaining evidence during the pre-trial stage. Furthermore, sec 17(3) of same also states that a person arrested should be charged to court seventy-two hours subsequent to the time of arrest unless if suspected of committing a capital offence or an environmental offence then he/she should be charged to court ten days from the date of his/her arrest. This provision, literally interpreted, implies that a person arrested and detained should be released from custody if his/her matter is not charged within the specified period.

During the trial phase, sec 23 of the Constitution provides that a person charged with a criminal offence should be afforded a fair trial within a reasonable time by an independent and impartial court established by law. The independence of the judiciary means that the judiciary is to be protected from undue influence or interference from both the executive and legislative arms of government. The right to be tried within a reasonable time means that the accused should be tried without undue delay; judgment should be passed within three months subsequent to the date the state took steps to prosecute the accused.

However, the right to appeals as provided for by Art14 (5) of the ICCPR is frequently violated. This provision states that everyone convicted of a crime shall have the right of his conviction and sentence to be reviewed by a higher tribunal according to law. The right to appeal is aimed at ensuring at least two levels of judicial scrutiny of a particular case by both an inferior and a superior court of judicature. This right is accorded to all persons convicted of a crime regardless of the severity of the offence and of the sentence pronounced. The appeal would be based on the law raised by a first instance judgement. Appeals must be timely. That is why as soon as a person files in an appeal against a certain conviction, the lower court will have to stay the execution of the judgment passed in the first instance until the appellate review has been concluded.

Furthermore, individuals may be compensated as a matter of right in an event the appellate court overturns a court of first instance’s decision after reviewing and observing that there was a miscarriage of justice.   The exercise of this covers the whole trial period and not just restricted to the post trial phase. For instance, during the pretrial phase, counsel for the detainee may either apply for a writ of habeas corpus or institute an action for false imprisonment in an event a person is said to have been arbitrarily arrested and detained. In addition sec 28 of the constitution provides a remedy in the Supreme Court for persons whose fair trial protection are violated or abused.

Violations of Fair Trial Provisions

The rights of accused persons are often violated in all phases of the trial process. Some investigators, in their bid to obtain evidence from detainees during the pretrial phase, tend to use cruel and degrading measures contrary to sec 20 of the Constitution of Sierra Leone 1991. In fact, some do torture people as old as 70 all in the name of eliciting evidence needed to prosecute a case. One such case was revealed during an investigation conducted by the SLCMP at the Pademba Road prison in Freetown. A 70 year old inmate charged with murder explained how he was tortured by investigators to have him confess to a murder crime. Unfortunately for the detainees, whereas the law provides that such illegally obtained evidence should not be admissible in any competent court of law, in practice, people are convicted based on such illegally obtained evidence even when there is proof to show that the evidence was obtained by trick, fraud or under duress.

The right of the accused to be charged to court within a stipulated time is also frivolously contravened by the law enforcement organ. This right is normally curtailed in situations wherein a suspect is placed under prolong detention in holding cells or prisons without trials. In a survey recently conducted by the Justice Sector Development Programme (JSDP) on remand prisoners and prisons population, it was revealed that 63% of prisoners nationwide are pretrial prisoners, having spent an average of two months in prison. There are also remote cases especially in the provinces were pretrial prisoners have spent more than a year or two in remand custody.

Furthermore, the right to be charged to court within a specified period is also flouted during a state of public emergency by virtue of the authority conferred in the President by sec 29(6) of the Constitution which makes provisions for the detention of persons until the emergency is lifted. During a state of public emergency, there is normally an ouster of court jurisdiction thus leaving those detained at the mercy of the President. This practice lends credence to one of the recommendations of the TRC which proffers that there should not be an ouster of court jurisdiction during a state of public emergency. This, according to the TRC is because a state of public emergency should be inclined towards protecting and enforcing one’s right instead of curtailing it.

Furthermore, the right to be tried in an independent court within a reasonable time is also violated. In most cases, trials are heard for longer periods than stipulated in the constitution. This is most times as a result of frivolous adjournments based on Prosecutorial lapses. Often times, witnesses, especially when it involves police officers, are hardly present in court to give evidence or for them to be examined. Also, some Defence counsel have far too many cases to handle at a time. Since they cannot be at two places simultaneously, they leave other cases unattended to thus making room for adjournment. The rules of procedure, inadequate members of the bench and the general functioning of the Registry are also contributing factors in prolonging trials. As such, some cases take years for judgment to be delivered. In fact, it is more prolonged when it comes to matters of appeal.

The poor condition of service, including lack of basic law reporting system, up-to-date resource material, internet and electricity sometimes do not enhance fair trial. Some judges “… often rely on private practitioners for legal reference material which facilitates corrupt since in exchange for information, judges may feel obliged to return the favour” [ii]Judges work under strenuous conditions which sometimes severely limit their capacity and make them prone to manipulation. Judges are paid pittance for the amount of education and experience they must have to attain such a position. All this generally severely have negative implications on fair trial.

The Forgotten Convicts

However, the most glaring violation currently in Sierra Leone is the right of a convict to appeal in a superior tribunal. Disappointingly in Sierra Leone, there are a host of cases pending appeals. An investigation conducted by the SLCMP at the Pademba Road Prison shows a glut of convicts waiting for their cases to be heard by a superior tribunal. One such case is the case of two condemned prisoners both of whom are well over seventy years and have spent three years pending appeals at the Pademba Road prison. Initially there were six of them convicted for murder at the High Court in Bo. After a prolonged trial that lasted for three years, four of the other accused persons died in detention, whilst waiting for there appeals to be heard. These men since filing their appeal in August 2003 have not been given the opportunity for it to be heard.

Another of such a case is that of ten RUF and seven Westside boys who were convicted in April 2006 for one count charge of conspiracy to murder and were therefore sentenced to ten years imprisonment. However, two weeks after the verdict was passed, the convicts appealed through the prison warden against the decision. Sad to note is that their appeal is yet to be heard.

Following this disturbing episodes, the SLCMP also conducted an investigation on the cause for delay in hearing cases on appeals. It was revealed that such practice is as a result of the rigid rules of court procedure. This rule states that when a person files in an appeal against a particular judgment to the appeals registry, the Registrar of the Appeals Court would write a letter to the court of first instance informing the particular court that its decision has been appealed against. It thus requests the Registry of the court of first instance to send in the records of that particular case to the Appeals Registry. That being done, a date would be slated for hearing. However, the problem is the delay of the High Court Registry to send records of cases to the Appeals Court Registry. This practice is prevalent in cases wherein the accused cannot hire the services of a lawyer to ensure that his /her appeal is expedited. This practice violates the doctrine of equality before the law because justice should not only be accorded to those who can afford it but to the underprivileged as well.

Another violation of the right to fair trials perpetrated by the Judiciary is the refusal of the High Court Registry to provide copy of records of proceedings of a case to the litigants. Many litigants including convicted prisoners have complained that the High Court Registry has failed to furnish them with copies of records of their proceedings even when the law prescribes for such. This practice it must be noted runs contrary to the grain of sec 23(6) of the 1991 Constitution.

That said, the SLCMP reiterates that it is not in opposition to any decision that has been passed by a competent court of law. However it must emphasize that the rights of an accused to fair trail should be upheld regardless of the offence with which he is charged or the sentence thereof. Furthermore, such right should be protected through out the trial and appeal phases of the proceedings. In this light the SLCMP is urging the Judiciary   and all relevant authorities to fast tract the hearing of all cases on appeals as justice delayed is denied.

[i] Lawyers Committee for Human Rights, What is Fair Trial: a Basic Guide to Legal Standards and Practice, London, March 2000

[ii] National Anti-Corruption Strategy, pp 26/27