by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The Child Rights Act was passed on the 7th of June 2007 with series of changes to the Bill. This means some clauses have been removed from the Bill by Parliamentarians to make it adaptable to our society. Key among those removed is the clause prohibiting initiation. Before enacting the Bill, the SLCMP had written Part I and II of this article. The printed Child Rights Act is yet to be published. Therefore, this article will not contain the necessary changes. However, once it is made public, the SLCMP will produce an abridged version highlighting key changes. The current article, therefore, essentially summarizes Bill, including maintenance and custody of children and parentage, child welfare functions of local committees and district councils, and institutionalized care.
Child Welfare Functions of local committees
The child rights bill makes provision for a village and a chiefdom child welfare committee wherein the chiefdom welfare committee shall be the supreme adjudicator. The reason for the both child welfare committees is to ensure and coordinate the advancement of the enjoyment of the rights of the child at both village and chiefdom level respectively. The village welfare committee is responsible for the promotion of child rights awareness and enjoyment, in the village or ward and the monitoring of this enjoyment within its jurisdiction. It also submits regular observations, reports and concerns on child welfare committee to the Ministry and monitors the advancement of child education. This is very innovative but what plans are there for the funding of this project? The village welfare committee determines the suitability of a person to foster a child and monitor all foster placements within the village. This is a very important clause as this is not the case now. It is matter of fact that even the children placed under the remand homes run away and are not even searched for after their disappearance. The responsibility of the village welfare committee includes the prevention of domestic violence and all forms of gender based violence, providing advice and instruction to a child alleged to have committed a minor misdemeanor. It is really good that advice can be sought in community based levels. This helps to promote the development of the country. It does not also only renders advice to children, parents and other community members in promotion of short and long term best interests of the child but also issues recommendations and instructions on maintenance and support of a particular child or children within the village. When the matter is above the village welfare committee it refers it to the chiefdom child welfare committee and undertakes any other functions that may advance the enjoyment of the rights of the child within the committee’s jurisdiction.
The Chiefdom welfare committee renders advice to village welfare committees, receive and attend to cases and questions referred to committee from village. Furthermore, it monitors the enjoyment of the child rights within the chiefdom and refers to district council any matters relating to child welfare that the chiefdom welfare committee is not able to deal with. Additionally, it is the responsibility of this committee to submit regular observations, reports and concerns on child welfare to the Ministry. It is important to note that the chiefdom welfare committee undertakes any other functions that may advance the enjoyments of the rights of the child within the jurisdiction of the committee.
The Ministry is the overall supervisor and so is therefore responsible for provision of logistics, training of committee members, rendering expert advice and guidance and respond to questions asked. The Ministry is also responsible for submitting quarterly reports on the status and welfare of the children in Sierra Leone and to facilitate information- that is sharing and networking of child welfare committees. We hope that the Ministry will this time around take this responsibility very serious as in making sure all the logistics are sought out, so the so many excuses given about fuel and the likes will not be given when its time to implement these policies. It is also the responsibility of the Ministry and all civil society organizations dealing with child matters to sensitize and educate the populace about their rights.
It is not within the limit of the child welfare committee to investigate serious crimes like rape, murder etc. The Child welfare committee has no power to punish perpetrators, imprison, and impose fine, order damages or any other sanctions. Any offender who fails to comply with any of the child welfare committee will be fined a sum of Le50, 000.00.
A child who is need for foster care and protection is defined as one who is an orphan, one who is maltreated by foster parents the destitute, one who is under the care of a criminal or drunken parent or guardian. The bill states that any child who has no place to sleep and no way to sustain one himself and who by all indications is a beggar or accompanies a beggar is in need of foster care and protection Also a child who frequents the company of thief or prostitute is desperately in need of foster care and protection. The question now is whether the Ministry of Social Welfare capable of taking care of these homes financially. What is the budget available for this? Will these children not suffer when placed in these homes? Currently the Ministry can’t even give an account of the children at the one and only remand home and approve school. Not only that they cannot stop these children from running away.
Parentage Custody and Maintenance of Children
Application for confirmation of parentage of a child in a family court is done before the birth of the child, within three years after the death of either mother or father of the child and before the child is 18 years old or after the child has attained that age with special leave of the family court. This application can only be done by the child, the parent, the guardian, the probation officer, a social welfare officer or any other interested person. In order for the Family Court to determine parentage, it considers the name of the parent entered in the register of births, performance of customary ceremony by the father of the child, refusal to submit a medical test by the parent published acknowledgement of parentage and any other matter the Family court considers relevant.
A parent, family member or any one who is raising the child can apply for custody of the child. Also, the same set of people can apply for periodic access to the child. The Court shall take into consideration the age of the child, the preferability of the child to be with his parents except if his rights are being abused by his parents, the independent views of the child, the desirability to keep the siblings together, the need for continuity in the care and control of the child and any other matter the Court considers relevant. It is unlawful for anybody to remove a child from the person who has lawful custody of the child. It is the duty of any parent or any person to maintain a child or contribute towards the maintenance of the child. The family Court will take into consideration when making a maintenance order the income and wealth of both parents or the person legally liable to maintain the child, the cost of leaving in the area where the child resides, the financial responsibility of the person with respect to the maintenance of other children, any impairment of the earning capacity of the person legally liable to maintain the child, the rights of the child under this Act and any other matter the Family Court considers relevant. However, maintenance of a child stops at age 18 or before 18 in the event of death of the child or the child gains employment. The only exception to this is in the case wherein the child continues his education or training after the age of 18.
A Family court awards maintenance to the mother of a child whether married or not to the father and he should provide medical for the duration of her pregnancy, delivery or death of the child, allowance for mother during her period of pregnancy and nine months after delivery of child, and a payment of a reasonable amount determined by the Family Court for the continued education of the mother if she is a child herself. This is the most important under this section. This is simply because in this society women are treated like dirt. The moment a girl child gives birth it is the end of her education. In another instant there was this lady who went to seek help from social welfare. She had two kids from this man who had sent her to live in the Gambia . To cut a long story short he neglected them. He never maintained them and the kids. This man had asked her to come for money in Freetown for the kids. The lady was even worried how the children were surviving at Banjul . There was no ticket to return and so on. These are the sufferings women are made to undergo.
Institutionalized Care
It is the responsibilities of the Government of Sierra Leone after this bill would have been made law to establish approve homes in areas determined by the Minister. These homes have the responsibility of the care of the children. They act as parents for these children while they stay in these homes. It is the responsibility of the staff of these homes to reunite the children with their parent. Afterwards, they keep in regular touch with these families to see that the best interests of the child are sustained. In the case where the child is unable to return to his parents, they shall encourage and assist the child to be independent and self reliant. A Family Court can order the parents to contribute a reasonable amount towards the maintenance of the child in the home. Also the home can decide to put a child up for adoption if it is the best interests of the child. Any non-governmental home shall have to apply for approval and issue of license to the district council within a period of 6 months from the commencement of this Act. Failure to obtain shall lead to the ceasing of the operation of the home. Children legible for admittance to the approve homes are, children awaiting judgment, orphans, and those children who are recommended by a probation officer or social welfare, who has determined that the approved home is the most suitable place for the child. An application should be made for permit to operate day-care centers to the District Council otherwise the daycare would be closed on a 14 days notice. Anyone who falls short would be fined a sum not exceeding 2 million or imprisonment of not more than one year. The offender continues to commit the crime Le50, 000.00 for each day the offence continues.
Employment of Children
The minimum age for the full time employment of the child is 15. The bill prohibits the employment of children at night which begins between 8 O’clock and 6 O’clock in the morning. The bill further stipulates that the minimum age for light work is 13. Light work is that which is not harmful to the health of the child and does not affect the child’s education. The age for which a child can engage in any hazard work is 18. This includes going to see, mining,porterage of heavy loads, manufacturing industries where chemicals are produced, work places were machines are used and entertainment work places like bars etc, where a person may be exposed to immoral behavior. Anyone who flouts the law will be fined 10 million or term of two years imprisonment or both fine and imprisonment. The bill states that the minimum age for child apprentices is 15 years after the completion of basic education. The responsibility of the craftsman is to train the apprentice, provide food, medical and a safe and healthy environment for the apprentice.
Quasi- Judicial and Judicial Child Adjudication
Under this bill the criminal age of responsibility of a child is 14 years. The bill provides for the establishment of a Child Panel in each district. It shall perform non-judicial functions like mediating in civil and minor criminal child matters. This is to ensure that the child’s rights are obtained and enjoyed. Family courts will also be made available for the enjoyment of the child rights. This shall comprise of a magistrate, a social welfare officer appointed by the Chief Justice on the recommendation of the chief social welfare officer and not less than two but not above four other members of child rights experience. A child has the right to legal representation. All human rights accorded to the child under the CRC, like privacy, right to appeal, right to give an account and express an opinion shall be upholded. Nobody shall publish any information that may stigmatize the child. Any body who commits this crime will be fined Le2, 000,000.00 or one year imprisonment.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
It is now over a year since Omrie Golley and two others, Mohamed Bah and David Kai Tombie, were arrested and charged with treason, a capital offence which bears the death penalty. Upon preliminary investigations in the Magistrates Court, the matter was committed to High Court No. 1 before Justice Samuel Ademusu.
However, since the matter was committed to the High Court, there have been a plethora of legal rigmaroles which have almost brought the trial to a standstill. The lead counsel for the Defence, Charles Margai, filed a motion on the 24th February 2006, to the Supreme Court to rule on the constitutionality of Justice Samuel Ademusu sitting on the case, who according to Mr. Margai, retired as a Judge in 1998 and is now on contract. Before the Supreme Court met on the 7th March 2006, he filed in another motion asking for the Chief Justice, Ade Renner-Thomas, to recluse himself from the decision to be taken on the motion against Justice Ademusu for discussing and forming an opinion on the motion outside court.
According to Mr. Margai, after the filing of that motion against Justice Ademusu, he received a letter from the Chief Justice through the acting Registrar of the Supreme Court dated 24th April 2006, addressing him that the matter would be heard after a panel had been constituted.
It however, took the Supreme Court 322 days to constitute a panel to sit on the motion contesting Justice Ademusu’s eligibility to adjudicate on a proceeding as crucial as a treason trial involving no less a person than the former spokesman of the Revolutionary United Front (RUF). Like Justice Geoffrey Robertson, former President of the Special Court for Sierra Leone who was forbidden from hearing the cases of the RUF members after his impartiality was put to question by defence lawyers on the basis of what he had written about the rebels of the RUF in his book, Crimes Against Humanity published in 2002, the Chief Justice was also exempt from the decision on the motion against Justice Ademusu.
A panel of judges, presided over by Justice SCE Warne, subsequently met on the 11th January 2007, a day less of a year after the accused persons were arrested, to arbitrate on the motion against Justice Ademusu. Before the proceeding began in actuality, Mr. Margai made an application to the Bench to order the bringing of the accused persons who were noticeably absent in court. The application was granted and the three accused persons were brought to court. However, there was a dramatic twist of event in the courtroom when Mr. Margai stood up and said that the Defence (himself and R.B. Kowa) was not going to proceed with the motion before the panel since all but one of the Justices were themselves retirees. He said that “it is my view that natural justice will be breached as the 4 Justices will have an interest in the matter to be determined” contrary to one of the tenets of natural justice – nemo judex causa sua,meaning, you cannot be a judge in your own case. He went on to say that when a similar issue arose about the Chief Justice to recluse himself from the proceeding, he (Chief Justice) was not a member of the panel to discuss himself. The Defence is of the impression that personal considerations may override the “superior interest of justice.”
For the records, Mr. Margai further stated that the stance taken by the Defence was not an intention to delay the trial process because it was their clients who were suffering. But justice, he said “should, however, not be compromised in the name of speeding up trial”.
Rights of Accused Persons
Premised on the presumption of innocence until proven guilty according to law, persons charged with a criminal offence should be tried without unwarranted delay. In other words, the fate of accused persons should be determined within a reasonable time. This right is enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights (ICCPR) which require that trials on criminal charges take place “…without undue delay”. The raison d’être for this provision is to ensure that the defence of accused persons is not jeopardized by the passage of inordinate amounts of time, during which witnesses’ memories may weaken or become indistinct; witnesses may become inaccessible, and other evidence may be destroyed or disappear.
It is also geared toward ensuring that the uncertainty which an accused person faces, compounded with the stigma attached when incriminated, regardless of the presumption of innocence, is not prolonged. Hence, the right to be tried without delay encapsulates the dictum that justice delayed, is justice denied.
The guarantee of prompt trial in criminal proceedings has been seriously contravened in the trial of Omrie Golley et al. The issue is not so much about the accused persons being tried; they should be brought to book for what they were charged with and if proven guilty should face the full penalty of the law. The contention is, however, with the delay in hearing the motion of the Defence. Mr. Margai filed the motion on the 24th February 2006 to the Supreme Court to arbitrate on the constitutionality of Justice Ademusu to sit on the substantive matter. He only received a letter two months later from the Chief Justice through the acting Registrar of the Supreme Court that the matter would be heard after a panel had been put in place. That said, it took the Supreme Court 46 weeks to constitute the said panel to hear the motion. The concern here is that if the trial could not be proceeded with in the absence of a decision on the motion by a panel free of contract judges, why did it take the Supreme Court 11 months to form the panel? In some other jurisdictions, motions filed need no more than two weeks to be arbitrated upon by the court of arbitration. The delay is not only significant but also undermines the confidence reposed in the judiciary as an impartial arbiter of expeditious justice.
The necessity of expediency in criminal trials has not been realized in this trial. Over a year after their arrest, the judicial process has been excruciatingly slow. According to the Defence, an official evidential request to the Prosecution is yet to be acknowledged; there have been frivolous adjournments and decisions on constitutional motions have not been expedited. Although the trial is in progress at High Court No.1 before the Judge in question, if however, a constituted panel rules against the Judge on the motion, his decisions will be ipso facto untenable. In other words, the whole trial process will be started again. Thus their right of freedom of movement and to be tried within a reasonable time as expressed in section 17 (1) of the Constitution of Sierra Leone 1991 and Article 14 (3) (c) of the ICCPR respectively would have been violated. Conversely, while Justice Ademusu continues to preside over the matter, whatever verdict he delivers in the process has the force of law. If they are found guilty, they would be sentenced to death.
The right of the accused to be represented in all stages of criminal proceedings has been acutely compromised in this trial. The Defence, since filing that motion almost a year ago contending Justice Ademusu’s eligibility has not been appearing before him on the matter. This is on the basis that an appearance would have undermined the motion filed against Justice Ademusu. This not withstanding, Golley and co. have been appearing in court in the absence of their counsel contrary to the U.N. Human Rights Committee Report. The Report holds that in a case where the offence is punishable by death, that the interests of justice require that the case should not proceed if the accused is not represented by a counsel. The said Report also states that in a case where a court proceeds to try, convict and sentence to death an accused whose Defence counsel had withdrawn, with the judge apparently rendering assistance to the accused, the accused’s right to a fair trial had been violated.
Omrie Golley, like the Special Court indictees, Hinga Norman and Issa Sesay, has been complaining about his deteriorating health conditions since his arrest over a year ago. However, unlike the two Special Court detainees who were recently airlifted to Senegal to receive medical treatment, Golley is yet to be treated in like manner. It is worth noting that, on the basis of the presumption of innocence, refusing Golley the opportunity to receive medical attention for his failing health constitutes an abuse as medical procedures are considered a routine. Also, the court made public Golley’s medical report against his objection that it was against his personal dignity, contrary to international court rules which forbid public disclosure of medical information about the detainees under the privacy regulation.
Implications for Justice
An effective and efficient judiciary is a corner stone in the creation and maintenance of a stable society and a successful state. Therefore, its independence should be preserved at all times from being compromised under whatever circumstances. Judges must be free from gratuitous influences, whether real or imagined, to decide a case on the basis of facts and in accordance with the law. The right to fair trial by an independent and impartial tribunal is so basic that the U.N. Human Rights Committee has stated that it “is an absolute right that may suffer no exception.”
Thus the current judicial impasse in the trial of the State vs. Omrie Golley and the Others is very critical: on the one hand it is a litmus test for the judiciary to show how proactive it is in the dispensation of justice; on the other hand if not properly handled it has the propensity of undermining the integrity of the judiciary.
However, the legal squabbles that have overwhelmed the trial are iniquitous, a price too high for the judiciary to pay. The right to fair trial is very much on trial in this case. It may be compromised if the panel retains a contract judge in a trial of this nature. It is the role of the judiciary to dispense justice. In criminal trials where the defendant is in detention pending the decision, justice demands that the case be dealt with expeditiously. If the judiciary allows trials to stagnate at any stage due to neglect, proceedings to take an unreasonable time to complete, the cause of justice would have been defeated.
Therefore, the role of the judges here is crucial. In March last year, faced with a crisis that undermined the integrity of the judiciary, with the Chief Justice already forbidden to preside on a motion, this could be an opportunity for it to redeem its perforated image.
Recommendations
The sagacity demonstrated by the Defence, to question the eligibility of a judge on contract with the President, with no security of tenure of office, to preside over a treason trial is indicative of the need to amend or expunge subsections 3 and 5 of section 136 of the Constitution of Sierra Leone 1991.Certainly, the Defence cannot easily shelve this concern simply because of judicial expediency. It is of the opinion that a contract judge, without security of tenure of office, in his bid to maintain his daily source of livelihood, may compromise justice. That said, the SLCMP therefore recommends that in the interest of justice, the following could help free the judiciary from this present quagmire.
That a panel, devoid of contract judges, be constituted as soon as possible to adjudicate on the motion filed against Justice Ademusu. The said panel should reach a decision within a reasonable time determining whether or not the judge in question should proceed with the trial. On the presumption that the panel rules against Justice Ademusu, a judge who is not on contract be brought in to preside over the trial.
That for the sake of judicial economy the matter before Justice Ademusu in High Court No. 1 is stood down until a panel gives a verdict on his eligibility. It is also analogous to the fair trial report of the U.N. Human Rights Committee which says that where the offence is punishable by death and the accused is not represented, that the trial should not proceed.
That the prison authorities should take a leaf from the Special Court and treat the complaint of Omrie Golley regarding his health with the seriousness it deserves lest they be indicted by Golley’s cohorts of having caused his death ( in case he dies) as did the UN War Crimes Tribunal in the case of Slobadan Milosevic.
The expectation of many Sierra Leoneans for an independent judiciary is at fever pitch. All persons should be treated equally exclusive of discrimination, to the same protection of the law. Remember that lack of confidence in the judiciary is tantamount to instability- a situation that was prevalent on the eve of the war.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction [i]
The Bill that was enacted into the criminal libel law was introduced in Parliament in 1965 by Sir Albert Margai, the second Prime Minister of Sierra Leone. He, however, faced serious opposition from within and without Sierra Leone People’s Party (SLPP). In view of the foregoing, he influenced parliament to enact a law that would serve as a sledge hammer to silent his critics and members of the opposition. Parliament, nonetheless, enacted the Bill despite the serious opposition.
When the APC took power in 1968, it was expected that it would decriminalize libel. However, the APC retained the law it had strongly opposed in its entirety. Furthermore, this has been the case of successive governments over the years despite the fact that the said law negates Sec 25 of the 1991 Constitution and contravenes the right to freedom of speech. Additionally, succeeding governments have been using it to silent the opposition in the name of maintaining law and order and/or preventing threat to public safety and security.
Definition of Libel
Libel, according to Black’s Law Dictionary (Seventh Edition), is “[a] defamatory statement expressed in a
fixed medium, especially written but also a picture, sign, or electronic broadcast.” This means that libel does not only include mere writing but may also include symbols and caricature. There are two types of libel under the Public Order Act of 1965 of Sierra Leone; defamatory libel and seditious libel. Defamatory libel is basically the publication of a statement in a static form against a person, which is likely to expose the individual to public hatred, contempt or ridicule or to damage him in his trade, business, profession, calling or office. The most common form being written and printed words contained in newspapers, books, magazines etc . It can also be in a recorded form such as film, speech or effigy.
Seditious libel is defined as any attempt made by individual(s) in meetings, speeches or by publications to disturb the tranquility of the state by way of bringing hatred, contempt, or excite disaffection against the government or public authority. This means that a statement can only be deemed seditious libel when the complainant is disparaged in the estimation of right thinking members in the society and not merely in the minds of a particular section of the public. According to Lord Reid, “the ordinary citizen is neither usually suspicious nor usually naïve and does not interpret the meaning of a word as with a lawyer for he is not inhibited by knowledge of rules or construction.” Louise V Daily Telegraph [1937] 1KB 818.
The distinction between defamatory and seditious libel ( inter alia) is that, whilst defamation may be against ordinary citizens, sedition is said to be committed against public authority. That said, the rest of this article focuses on seditious libel since it has been the main cause of public concern.
Standard of Proof
A libelous statement must contain three elements before they are considered actionable. Firstly, it must be proved that the statement is false and defamatory. Secondly, the statement must refer to a particular person, even if it is an innuendo and thirdly, the statement must be published to at least one person excluding the plaintiff.
That said, the burden of proof rests solely on the prosecution. In addition, to prove seditious libel, the Prosecution must prove a seditious intention in the published material. The interpretation text (Sec 37 of the Public Order Act) defines seditious intention as an intention to bring into hatred or contempt or to excite disaffection against a public authority. Furthermore, the prosecution also needs to establish how much public disaffection or chaos the publication is likely to cause. This simply means that, no matter how much truth there is in the published material, it will not be considered as a defence for the accused. To this end, and given the circumstances under which the law was promulgated, one can only conclude that the primary purpose of the law is to provide undue shield for public officials from public scrutiny. Seditious libel, like the death penalty, are two of the most notorious laws Sierra Leonean authorities have continued to keep in the statute books for their personal safeguards contrary to the public good. In fact, the continued existence of these laws is only symptomatic of how Sierra Leone is swimming against the current tide in the international sphere, meaning while leaders of other countries are spearheading reform processes, Sierra Leonean authorities are much more enthusiastic about keeping bad laws, especially those that entrench them in power.
The Defence in Seditious Libel
As already stated, contrary to other jurisdictions, under Sierra Leonean laws the fact of the published material is not a defence for seditious libel. As long as the prosecution has proven that the material caused or is likely to cause public disaffection or chaos, the accused may be found guilty and thrown behind bars.
The question is, even if disaffection is the standard, how can the prosecution establish it? The Prosecution can only depend on presumptions and assumptions in establishing disaffection.. In law, a counsel cannot base his/her entire arguments on suppositions. There has to be evidence to prove or disprove a legal or evidential burden. Therefore, for one to be arrested or convicted of seditious libel, there must be evidence of something that actually causes disaffection among the people or causes the people to demonstrate violently and in extreme cases, rebel because of the hatred they bear for it based on what they have read or listened to the radio. In truth, it is very unlawful to prosecute and convict based on suppositions.
Moreover, in law it is also a defence in a libel suit that the statement is a fair comment on matters that have to do with the legitimate concern of the public. However, what is in the public interest is a question of law for the judge. Fair comment is inclusive of a comment that covers the conduct of government, public interest, works of art and literature produced for public consumption. The comment must not be activated by express malice which could be defined as corrupt/wrong motive or making use of the information for indirect purposes. The comment even if biased, wrong, exaggerated or prejudiced must be honestly made. In a decided case Christopher Miller v the Mail Newspaper [1991] All ER, it was decided that a press house cannot be convicted of libel for publication made in the interest of the public. However, in practice in the Sierra Leone Judiciary, fair comment is not a defence to seditious libel as could be seen in the case of President Ahmed Tejan Kabbah V Paul Kamara.
Reasons for the Proposed Amendments of the Criminal Laws
The current seditious libel law contain too many lacunas and therefore needs to be expunged. To start with, the law itself is draconian in the sense that it requires imprisonment for people expressing their views. Sec33, persons guilty of seditious libel will be imprisoned to a term up to 3 years or a fine or both that is, for first time offenders, for habitual offenders to a term not exceeding 7 years. Imprisoning persons who chose to express their views about public officials does not only undermine democracy, it amounts to cowering the press from speaking the truth about public officials, especially so when the facts will not be enough to serve as a defence in an event an action is brought against them.
Unlike Sierra Leone, leading jurisdictions such as the United States and Britain give the utmost protection to speech and little protection to public officials. In a landmark case, New York Times & Co. v. Sullivan. 376. US 254 (1964) it was decided that the United States of America cannot award damages under the First and Fourteen Amendments to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice.” Actual malice was defined as a statement made with knowledge of its falsity or with reckless disregard of whether it was true or false. The ratio decidendi was that, in order to ensure a democratic society the Government must not protect public officials as against the press. In the alternative the Government must always protect the publication of all statements, even false ones about the conduct of officials except when the statement is made with actual malice. The reason being that, in measuring the performance or deficiencies of an office, praise or criticism is usually attached to the official in complete control of the institution. Besides, it would also ensure transparency and accountability.
To illustrate that seditious libel is more for the protection of politicians than the public good, Sec 34 provided that action for seditious libel may only commence after the Attorney General (AG) have issued a written consent. The AG, by virtue of Sec 64 of Act No 6 of the 1991 Constitution of Sierra Leone, is not only the legal adviser to the state, nor is he only the person with power to prosecute on behalf of the state, but he is also a cabinet minister in the Government’s administration. That being the case, the matter becomes a political one. There is, therefore, every possibility to bring an action for seditious libel against persons that are only not in the good books of the Government.
To also illustrate that the law itself is unfair and prejudicial against the press; and it purpose is to cower the press, Sec 36 states that where a person convicted of an offence or attempt to commit or conspire to commit any offence under Secs 26, 27, 32 or 33, is a publisher, the court shall send the report of such a case to the president. Why inform the President? Why not handle it in a competent court of law? This clearly undermines the independence of the judiciary.
Furthermore, Sec 36(2) of the Act also granted power on the Governor-General now the president, either in his opinion or due to a court recommendation the right to prohibit the publication of the newspaper in which the defamation, sedition, or false statement was published for a term not exceeding 6 months. It further states that any person who refuses to comply with that order shall be guilty of an offence and liable on conviction to imprisonment for 18 months. This provision accords too much power on the president and thus undermines the rule of law and the doctrine of separation of powers. Instead of the president, the court or the Independent Media Commission should have been given the authority to determine, in the interest of public safety, public order or morality whether or not to prohibit the newspaper. Moreover, giving the president such powers will make the matter one with political undertone as it has always been.
The Public Order Act of 1965 is inconsistent and contravenes the 1991 Consttution which is the grundnorm of Sierra Leone. It is an outright violation of Sec 25 of same, which guarantees the rights of individuals and organizations to hold opinions, impart ideas and information without interference. It further hinders the enjoyment of a persons rights to freedom of expression.
In Conclusion
Candidly speaking, no one is canvassing for the total repeal of the Public Order Act of 1965. Every civilized nation needs a set of laws that will regulate public order in the interest of public good and not against it. Therefore, all civil society have been asking for is an amendment of the obnoxious sections of the Public Order Act of 1965. As it stands now, the Public Order Act of 1965 does not only contravenes the spirit and letters of sections of the 1991 Constitution of Sierra Leone but also international and regional human rights instruments including the International Covenant on Civil and Political Rights, the Universal Declaration of Human and Peoples Right and the African Charter on Human and Peoples Right to which Sierra Leone has an obligation.
Some people at the helm have been asking for the alternative to seditious libel. The SLCMP believes that there is substantial remedy in civil suit. This is premised on the fact that there is distinction between saying, for instance: “Public Official X has stolen x amount of millions of Dollars of public fund and therefore should be sacked” and “let’s overthrow the government by forceful means and take over the reigns of power”. Whilst the latter statement may constitute an incitement that may lead to public disorder which is a crime punishable by law, the former does not in any way warrant criminal charges against the individual who may be safeguarding public interest. If, however, Public Official X feels aggrieved of the statement, he may as well file a civil suit.
That said, the Sierra Leone Association of Journalists (SLAJ) has the responsibility to regulate the conduct of its membership. It must institute regulations that will minimize and even help eradicate members caught in the act of prostituting the good image of the press.
It is clear that the present government is not enthusiastic about decriminalizing libel. However, given that the country is approaching an election period, SLAJ should galvanize it membership and coalesce with other civil society groups to get the presidential aspirants to commit themselves to decriminalizing libel after wining elections. SLAJ can only succeed in doing so when it works as a team. Remember, a divided
house cannot protect itself!!!
[i] This article was first published in Volume 15, July-August 2006. It is republished to rekindle the debate for the decriminalization of libel
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
Sierra Leone , one of the smallest countries on the African Continent was, prior to the conflict in 1991, quite literally a ‘nation of children’. Statistics from the Central Statistics Office showed that in 1991, approximately half of the estimated 4.5 million populations were composed of children. In other words, half of the population was made up of persons below the age of 18 years. However, the conflict in Sierra Leone impacted heavily on children, as they became prime target for abuse by the fighting factions. Hundreds of children were abducted; forcefully recruited to fight (according to CARITAS more than 5000 combatants were children below the age of 18 years.); raped and forced to serve as sexual slaves. Some of them were mutilated; and had their limbs cut off. Most of them were subjected to torture and forced labour.
On the eve of the war, children were marginalized and deprived of their basic human rights. The break down of democratic institutions; the collapse of the rule of law and the mismanagement of the country’s resources further exacerbated the continued violation of the rights of children in Sierra Leone.
Laws in Sierra Leone relating to children were and are still outdated, uninformed and grossly inadequate to guarantee the protection and promotion of their rights. Crimes against children including rape, sexual violence, child labour, child trafficking etc. have most times gone unpunished, aided further by the culture of silence and impunity that prevails.
This article will look at the anomalies in national legislations in Sierra Leone and how the adversely affect the interests of children. In is important to note children in Sierra Leone are governed under the general law and customary law which are mostly unwritten. The article will examine the anomalies in this context as oppose to other international instruments such as the Convention on the Rights of the Child ( CRC), and the African Charter on the Rights and Welfare of the Child. It will also examine specific issues where the rights and status of children come into focus.
Definition of a Child and Juvenile
In Sierra Leone, laws relating to children are often in conflict with those at the international level. That is to say, they are inconsistent with customs and practices in the global realm. In Sierra Leone, according to The Children and Young Persons Act (Cap 44), Laws of Sierra Leone 1960, a child is defined as a person under the age of 14; s.2 of Cap 31 of the Prevention of Cruelty to Children Act defines a child as a person under the age of 16, whilst under customary law, the age of a child is not fixed and varies depending on the purpose for which it is considered and from one ethnic group to another. A juvenile according to Cap 44 of the Laws of Sierra Leone 1960 includes ‘children’ and ‘young persons’. The Act further defines a young person as a person who is fourteen years of age or upwards and under the age of seventeen years. The age of majority under the common law is 21 years. Under s.31 of the 1991 Constitution of Sierra Leone, a citizen who is18 years old and above has voting rights; meaning such persons can reason well in terms of decision-making. Criminal responsibility, however, starts at the age of 10.
The above state of affairs creates a high degree of confusion and uncertainty, as there are multiple definitions in various pieces of legislation as to the age below which one is legally considered a child. It has been noted that this state of affairs affects children at both civil and criminal levels due to the lack of clarity as to whether they are entitled to protection as children or to be treated as adults. Under the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, a juvenile is defined as a young person under the age of 18 whose treatment for an offence is different from adults. This definition, which is consistent with the definition of a child under Art.1 of the Convention of the Rights of the Child ( CRC), clearly contradicts various definitions of a child under Sierra Leonean law.
Sexual Violence and Cruelty
Violence against children constitutes a crime under the general law and applies to all persons, irrespective of age. There are specific laws prohibiting cruel treatment and violence against children. Under the Prevention of Cruelty to Children Act (Cap 31 of the Laws of Sierra Leone, 1960), it is a crime for someone to commit acts of cruelty including sexual and other related offences against a child and such crime is punishable either by imprisonment or by paying a fine . It also includes people that are in custody of a child and “willfully assaults, ill-treats, neglects, abandons or exposes such a child or causes or procures such a child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause such a child unnecessary suffering or injury to health (including injury to or loss of sight, hearing, limb or organ of body and any mental derangement)…”. There is no provision for the protection of children under customary law as the rights of the child are being violated.
Unlawful Carnal knowledge
Unlawful carnal knowledge is a criminal offence punishable under sec. 6 of the Prevention of Cruelty to Children Act, for a period not exceeding two years if committed against any girl below 13 years of age. Also sec. 9 of the said Act includes indecent assault and attempted carnal knowledge against children less than 14 years having the same punishment. On the other hand, rape of a person over the age of 16 is considered a felony and carries a maximum sentence of fifteen years. The deficiency here is that perpetrators who rape children under the age of 14 are only liable to two years of imprisonment whilst those who rape children over 16 are jailed for fifteen years. This certainly trivializes the prosecution of sexual crimes thus leaving children unprotected from sexual offences.
Adoption Law
Adoption takes place under both general law and customary law. However, the Adoption Act 1989 does not recognize adoptions being carried out under customary law which governs the majority of the people in Sierra Leone. Customary law is equally vague and unclear with regard to the fostering and guardianship of children. In other words, there are no defined guidelines regulating the relationship between the adopted child and the foster parents. The problem here is that when neither rights are allocated to the adopted child or responsibilities to the foster parents, there is the propensity for the rights of the adopted child to be grossly abused since there are no binding rules regulating the conduct of both the adopted child and those of the foster parents.
Early Marriages
There are 4 types of marriages in Sierra Leone, namely; Islamic, Christian, civil and customary law marriages. Under customary law, there is no minimum age of marriage applicable throughout Sierra Leone. Under Islamic and customary law, a girl below the age of 10 can be given for marriage given their levels of maturity. It is confirmed from studies that because of this early marriages, negative impacts are cited in their full developments as regards their education, economic autonomy, physical and physiological health. Most adolescents who marry young begin childbirth at a very early age. This normally leads to high maternal and infant mortality. Thus early marriage is an abuse of the right of the girl child which practice is detrimental to the development of the young girl.
Child Labour
According to Caps.212 of the Employees and Employers Act of the Laws of Sierra Leone 1960, the minimum age of employment of children is 12 years and above, except in the case where they are approved by an authority as a member of the family. Even when they are permitted, their hours of work are strictly laid down. Also, the Act prohibits the employment of street traders under the age of 18 at night. These laws, however, are hardly enforced given the commonness of children engaged in street trading and mining. In Freetown and other big towns in the provinces, a good number of children below the age of 12 are usually seen roaming the streets and hawking commodities in the name of petty trading whilst others are employed as shop attendants. In Kono and other diamond mining areas, some are employed in gangs to mine diamonds. This practice is in clear breach of the Employees and Employers Act of Sierra Leone.
Inheritance Law
Under customary law children are entitled to one third of their father’s estate when he dies intestate. On the contrary, however, they are not entitled to their mother’s property upon her death since everything goes to the husband. If a child is born illegitimate, such a child is not entitled to any property of the father. That is to say, such a child is not recognized according to law to be the child of the deceased. This greatly affects the child’s psychological and physical well-being; on the one hand, the child is estranged from other members of the father’s family and on the other, if the mother is not financially strong enough to take care, such child may drop out of school.
Recommendations
Laws and customs in Sierra Leone are in urgent need of reform as in many instances; they are archaic, inconsistent and fall short of international standards. As I write, Parliament is still debating the Child Welfare Bill. SLCMP is urging Parliament to speedily enact into law the proposed Bill. Since children are the most vulnerable group in every society, all possible measures must be taken to protect and promote their rights, as they are the leaders of tomorrow. To this end therefore, it is important to approve these laws in order to drastically reduce child rights violations.
Finally, the Government must see the protection of children’s rights as a moral as well as a contractual obligation. It should therefore ensure that it is committed to whatever international treaty it signs and not just paying lip service to it.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
Court proceedings in magistrate and other superior courts in Sierra Leone are generally conducted in English, the official language of court proceedings in the country. But the reality is that majority of the people using the courts in the provinces are not comfortable with the lingua franca of the courts. They feel more at ease using their mother tongue; thus the need for court interpreters. In the absence of court interpreters, most litigants cannot comfortably make their cases and are often exposed to embarrassment, ridicule and intimidation during cross-examination by counsel. As a result, some of them may prefer to remain silent which keeps the truth untold thereby impeding justice. This communication barrier becomes a major hurdle in the administration of justice and may also contribute in perverting justice. This is the situation that obtains in the cities of Bo and Makeni.
Who is a Court Interpreter?
The expression ‘court interpreter’ could be defined as a person who possesses the ability to orally translate speech between parties speaking different languages in a court trial. Section 23(5e) of the Constitution of Sierra Leone, 1991 provides that a person charged with a criminal offence shall be accorded, without payment, the assistance of an interpreter if such person cannot adequately understand the language of the court.. However, the same did not say who an interpreter is. Additionally, the SLCMP is not aware of any practiced direction issued by the Chief Justice to that effect. Nonetheless, since the work of an interpreter is an administrative function, it should therefore be the responsibility of the court’s registry.
The constitutional provision for an interpreter is couched in the fair trial provision to protect the rights of the accused. The essence is to ensure that the accused understand the proceedings so that when such person starts testifying, he will not implicate himself and will also be able to respond to the issues raised thereafter. Moreover, the assistance of an interpreter serves the purpose of expediting proceedings thus ensuring fair and speedy trial. However, the objective of having interpreters will only be met if the interpreter is competent or legally mandated to interprete proceedings in a court of law.
Fair Trial Rights of Accused Persons
Based on the laws governing fair trial (national and international), courts must provide interpreters in trials so that the accused or witness will be able to follow proceedings. For instance, Article 14(3) f of the International Covenant on Civil and Political Rights (ICCPR) provides that persons charged with criminal offence should be entitled to free assistance of an interpreter during trials if such persons cannot speak the language of the court. Similarly so in Sierra Leone, the provision of an interpreter as provided for in section 23(5) does not only cover the time of arrest, it also sufficiently covers the trial proceedings as well. The fundamental principle is to ensure fair trial by way of protecting the right of the accused and in addition to expediting the trial process. Furthermore, the availability of an interpreter also enhances equality of arms, another provision for fair trial. The role of interpreters under the above circumstances is thus indispensable in the administration of justice. In applying the principle of equality of arms, both parties in the litigation process should be afforded opportunities before the law to present their own side of the story with none enjoying any undue advantages over his opponent by virtue of a tendency to be much more clearly heard and understood by the arbitrator.
To this end, this article seeks to assess the role played by court interpreters against the backdrop of the administration of justice in the District magistrate courts in the cities of Bo and Makeni.
The Tale of Bo
The SLCMP experience in Bo shows that even tough the court provides interpreters, however, the quality of interpretation is poor and inadequate. This is as a result of the fact that persons providing interpretations are either untrained to handle the complex court scenario or they are overwhelmed with other functions at a time. For instance, in Magistrate Court No.1 clerks who serve as court recorders also double as interpreters. In other words, during court proceedings, court clerks take notes as well as interpret for the court. The situation is even worse in Magistrate Court No. 2 presided over by Justices of the Peace, where the interpreter, an employee of the Bo District Council, is paid Le 1000 (one thousand Leones) by litigants in order to interpret for them. The problem here is not only about the fact that the litigants are not suppose to pay, it is also about the fact that the interpreter, who is an employee of another institution, may not be available at all times. Consequently, proceedings are adjourned whenever the interpreter is not around thereby prolonging the trial process.
The Tale of Makeni
In Makeni the lack of qualified interpreters has been a major cause for delays in proceedings as well as source of intimidation and embarrassment for litigants. Like in Bo, court clerks in Makeni also often serve as interpreters. More startling is the fact that Police prosecutors also serve as interpreters. The duty of the Police is to represent the Inspector General of Police in prosecuting criminal matters and not to interpret for the court. It is the responsibility of the court’s registry to provide litigants with interpreters where it is absolutely necessary. It is unreasonable for a prosecutor to translate on a matter he is prosecuting. Thus, prosecutors acting in the capacity of translators tremendously erode the rights of the accused to a fair trial as the accused is at the mercy of the interpreter who might have the tendency to inform the court what the accused did not mean to say. This practice has increased the rate of bribery and corruption by serving as a means of intimidating and extorting money from litigants.
Furthermore, when a court clerk doubles as an interpreter, it also affects his other duties of recording the proceedings, filing documents and assisting the Bench. Further worsening the matter is that interpreters only choose to translate in cases they have interest in either because of personal relationship with litigants or because of an anticipated ‘palm greasing’ at the end of the proceedings.
Implications for Justice
The implications for justice here is that cases, because of lack of interpreters, are frequently adjourned for lengthy periods thus violating the right of an accused to a speedy trial. Furthermore, in instances where prosecutors interpret, one cannot be certain of the way in which it is done as the interest of most prosecutors is to ensure that accused persons are found wanting of crimes alleged rather than protecting their rights. Court clerks, by performing other duties may also be neglecting other important functions that may be equally important to ensure fair and expeditious trial. In effect, the accused person’s right is compromised if he is not given a qualified interpreter. Consequently, people prefer to take their cases to the local courts where they are allowed to express their grievances in their native dialect
Conclusion and Recommendation
The Sierra Leone judiciary needs to provide guidelines to enhance fairness and consistency in translation process. In order to enhance this, the following is worth considering:
Every magistrate court and superior courts throughout the country should have trained interpreters. The fact that every field of study has it own language, it makes it more compelling for the judiciary to have trained personnel in the different Sierra Leonean languages to serve as interpreters. When the Special Court started operations, because they knew that they would be dealing with people who may not necessarily understand English, the official language of the Court, they embarked on training interpreters. Today, they have a language unit within the Court Management section of the Registry.
Issue of interpreting is highly technical and professional. Technical because certain words are used that may not necessarily be in the local dialect. A qualified interpreter may be able to device a better way of interpreting complex court jargons. A professional interpreter that knows the ethics of interpretation would not laugh when for instance; a woman is explaining how she was raped. In fact, this brings the need to have trained women interpreters so that they will interpret during gender sensitive cases.
Interpreters should also be paid by the court and not by the litigants as it is happening in Bo. This is due to the fact that it is their right to have an interpreter free of charges and also to ensure the independence, neutrality and impartiality of those translating.
