by ibakarr | Aug 11, 2016 | Blog
Introduction
During the inauguration of the Commissioners of the National Human Rights Commission on 11 December 2006, the President of Sierra Leone, Ahmed Tejan Kabbah, announced that the death penalty would no longer be used but retained in our statute books to serve as deterrent to criminals. This statement was made following widespread campaign to abolish the death penalty. Under Sierra Leonean laws, the death penalty is supposed to be applied for crimes such as murder, treason, mutiny, and aggravated robbery. However, the history of the use of this punishment shows that it is often used for political purposes rather than in the interest of peace and stability.
Death penalty has existed since pre-colonial Sierra Leone when people were killed for crimes such as witchcraft and cannibalism. It was, however, institutionalized when the British colonial masters arrived and introduced the English Common Law as a means of combating crimes and subjugating the people. The execution of 96 people in 1898, for their refusal to pay 26 pence as tax is indicative of the latter motive. [i] A century later, in October 1998, President Kabbah signed the death warrant of 24 military officers after a court martial convicted them for treason. Currently, there are twenty two people on death row at the Pademba Road Prisons. These convictions were done after the publication of the Truth and Reconciliation Commission ( TRC) Report which recommended that the death penalty be removed from the laws of Sierra Leone, and in the interim, a moratorium instituted. The Government of President Kabbah is yet to act on the recommendations of the TRC as he recently manifested in his pronouncement during the inauguration of the human rights Commissioners.
This article gives synopsis of the strides that have been taken to abolish the death penalty. It also rebuts arguments in support of the death penalty. In addition, it proffers legal arguments in opposition to the death penalty and a conclusion.
Strides taken to Eradicate Capital Punishment
Prior and subsequent to the execution of the military personnel in 1998, there has been widespread campaign to abolish the death penalty. In a bid to get states to commute sentences, the World Coalition Against Death Penalty was formed. The coalition, comprising dozens of human rights organizations worldwide, has been able through demonstrations, petitions, concerts and televised debates to persuade 87 countries to abolish the death penalty. The coalition still continue to call on countries such as Sierra Leone, Nigeria, the United States of America, China etc that withhold the death penal laws to adopt a moratorium on executions.
Currently in Sierra Leone, civil society groups are spearheading the campaign for the abolition of the death penalty. Although they have not succeeded in getting the Government to abolish the practice in its entirety, nonetheless, their efforts have yielded some fruits. For instance, prior to 2002, persons convicted by a court martial did not enjoy the right to appeal. However, through the efforts of civil society groups, persons convicted of treason by a military tribunal now have the right to appeal the decision.
The Sierra Leone Truth and Reconciliation Commission, a creation of the Lome Peace Agreement and TRC Act 2000, made a compelling case for the abolition of the death penalty. In its recommendations, the TRC based its arguments (inter alia) on the principle of inviolability of the right to life. Additionally, when the Special Court for Sierra Leone was established pursuant to Security Council Resolution 1315 of 2000, it did not include the death penalty as a form of punishment for accused persons that may be convicted despite the fact that they are being tried for heinous crimes such as war crimes and crimes against humanity. Sad to note, however, is that despite these efforts, the Government of President Kabbah has not responded accordingly.
Rebutting Arguments in Support of the Death Penalty
The legendary argument of apologists of the death penalty has been that it serves as deterrent to the commission of heinous crimes. However, it is clear that the intensity of the punishment has never been a deterrent, not even in the United States where it is most frequently applied. Similarly, not in Sierra Leone as it is evident that the existence of the death penalty has not deterred the commission of capital offences. In Sierra Leone, even though the death penalty has been mostly used in cases of treason and those involving political opponents, it has not dissuaded them from staging coups. For instance, there have been 20 coup attempts since independence, a considerably high rate according to world standards. [ii] In essence, this is indicative of the falsity of the thesis that death penalty is a deterrent to heinous crimes in this country. As already stated, it is rather used as a political tool to premeditatedly and cold bloodedly kill political opponents. Sierra Leoneans still continue to question the authenticity of the allegations that led to the executions of Mohamed Sorie Fornah and others in 1975 and Francis M. Minah and others in 1987.
Apologists of the death penalty have also argued that executing the worst offenders will prevent the repetition of their offences. Contrary to this in Sierra Leone, there has never been an instance in which a condemned prisoner, released by virtue of presidential amnesty, has subsequently committed a similar offence.
Furthermore, they have argued that the death penalty is the deserved punishment for heinous crimes. This notion is, however, not plausible, because no matter how abhorrent a crime may appear, it cannot justify the infliction of cruel, inhuman and degrading treatment. Like the saying goes, an eye for an eye leaves everybody blind; so also murder for murder leaves everybody dead. Or have they thought about how raping all rapists as a punishment will leave everybody violated?
Legal Arguments in Opposition of the Death penalty
The death penalty as a form of punishment cannot be applied impartially. It is fraught with arbitrariness, discrimination and mistakes. Once applied, it cannot be revoked. In a case where it is applied as a result of incompetent lawyering, suppression of evidence, local prejudice etc,, the punishment will be irrevocable regardless of the fact that the individual involved may not have committed the crime. Once a death penalty is executed, no amount of pardon or compensation will undo the punishment. In other words, we cannot right a wrong in a death penalty once it is carried out. Let us take the case of the Birmingham Six for example. These men were sentenced to life imprisonment on a murder conviction after the abolition of the death penalty in England in 1965. Convicted in 1975, after having served 16 years in incarceration, their case was later reviewed by the court of appeals and their conviction rescinded in 1991.However, their situation was not as helpless as it would have been had they been executed.
The inadequacy in the judicial sector is another major cause for the abolition of the death penalty. The Sierra Leone judiciary is badly in need of forensic technology such as techniques to determine DNA of suspects to prove or disprove an evidential burden. Even in countries where DNA technologies exist, they still make errors in their judgments, let alone in a country like Sierra Leone where it is yet a dream.
Additionally, the practice of death penalty in Sierra Leone is cruel, inhuman and degrading and contravenes sec 20(1) of the 1991 Constitution which states that “No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading.” In Sierra Leone, condemned prisoners are placed on death row for years without stating the date for their subsequent execution; thus putting them in perpetual fear. Also, the black attire that they are made to put on symbolizing condemned could seriously affect their mental wellbeing. Furthermore, there have been cases where condemned prisoners that do not easily die when shot at or hanged are brutally beaten to death. In a resume, the way the entire execution process is carried out is cruel.
Conclusion
The death penalty is a bad law and as it is always with bad laws, it cannot be applied impartially. As a result, Judges hardly exercise their discretion away from the death penalty in treason cases. The history of its use in Sierra Leone shows that political opponents who may not have killed during the alleged coups are most likely to be killed than actual convicts of murder. Most convicts of murder are normally kept in prison until they die naturally or until the president exercises his prerogative of mercy and grant clemency.
If the authorities fear that prisoners condemned to death (who are often deemed dangerous) will escape from prisons to commit similar offences, why not fortify security at the prisons then? In fact, it is not only viewed as an abdication of responsibility by killing for fear that they may escape, but it is relegating the value of life. It is the responsibility of the Government to secure its citizens, no matter their status. The performance of this function does not, however, include killing convicted prisoners.
That said the SLCMP calls on other civil society groups and human rights organizations to get aspirants for the 2007 Presidential and Parliamentary elections to commit themselves to abolish the death penalty when they shall take up office. As the infliction of this penalty on the innocent, coupled with other factors, led to the civil war, it therefore of much importance that this form of punishment is expunged from the statute books in Sierra Leone.
[i] Death Penalty: A legal Deterrent or a Political Tool in SierraEye Magazine, Vol. 1 No. 2 2006
[ii] Ibid p. 18
by ibakarr | Aug 11, 2016 | Uncategorized
Issues of violence against women in general and offences of a sexual nature against same in particular have become extremely topical and have also provided the foundation for many debates or arguments revolving around the laws affecting women, especially those requiring review or obliteration. This has largely been due to existence of a history of they being marginalized. Under Sierra Leone law, offences of a sexual nature as they affect women can broadly be divided into the Common Law offence of rape on the one hand, and various statutory sexual offences as stipulated under Caps 30 (Protection of Women and Young Girls Act) and 31 (Prevention of Cruelty to Children) of the Laws of Sierra Leone 1960 on the other. The term sexual violence is generally used to describe “[a]ny violence, physical or psychological, carried out through sexual means or by targeting sexuality” [i] Examples of sexual violence include rape and attempted rape; acts such as forcing an individual to strip naked in public, forcing two victims to perform sexual act on one another or harm one another in a sexual manner, mutilating a person’s genitals or a woman’s breasts, and sexual slavery.
The term “rape” which originates from the Latin verb “rapere” (meaning to seize or take by force) generally can be legally defined as unlawful carnal knowledge of a woman without her consent. The lack of consent does not necessarily mean that the victim generally refused to give consent. It simply means that consent was either obtained by force, threat of injury or other form of duress, or where consent was given by a person whose age was below the age of consent. Furthermore, rape may also be an act of forced penetrative sexual act, against a victim who is unable to decline due to the effects of drugs or alcohol. The related term “statutory rape” is where a sexual act is automatically considered rape by the law, regardless of whether it was coercive or consensual, which under Sierra Leone law refers to intercourse with a girl under the age of 16. The later provision exists to protect girls under the aforementioned age, as they are more easily influenced and therefore shielded by being automatically deemed unable to give legally effective informed consent. It is particularly important to note, bearing Sierra Leone in mind, that for much of human history, rape, violence and war have occurred in connection with each other. Indeed, over the last 100years, the use of rape as a “weapon of war” has been well documented, a fact particularly relevant to Sierra Leone’s recent history.
Under Sierra Leone’s Statutory Law, Cap30 makes it an offence for any person to procure or attempt to procure any girl or woman under 21 who is not a common prostitute or of known immoral character, to have an unlawful carnal connection; [ii] whilst it is also an offence to procure or attempt to procure any woman or girl for an unlawful carnal connection. [iii]
Similarly, Cap 31 sets out various offences of a sexual nature. These include unlawful carnal knowledge of a girl under the age of 13, [iv] and abuse of a girl over 13 but under 14, [v] and indecent assault or attempted carnal knowledge of a girl under the age of 14. The said Act also makes it an offence to procure or attempt to procure any child who is not a common prostitute or of known immoral character, to have unlawful carnal connection. [vi] Further, abduction of an unmarried girl under the age of 16 for moral purposes also constitutes an offence. [vii]
Problems in Substantive Law and Procedure
Upon a closer examination of the statutory provisions of laws governing rape in Sierra Leone, there are several deficiencies some of which are very confusing even for persons working in the criminal justice system, such as members of the judiciary and police force. They are also archaic and date back to the British 1861 Offences Against the Person Act. Under this Act, rape is defined as “the unlawful carnal knowledge of a woman without her consent by force, fear or fraud.” Penetration (however slight) is required to constitute the crime of rape. In addition, although a child is defined as a person under the age of sixteen, Sierra Leonean law makes the extremely unhelpful distinction between unlawful carnal knowledge of a girl under the age of thirteen and unlawful carnal knowledge of a girl between thirteen and fourteen years of age. That is to say, the age of the victim in question is not consistent. The ages of 13, 14 and 16 are mentioned in the Acts referred to above, as the relevant ages of girl victims with regard to the various offences highlighted. In this light, it is important to note that a person charged with an offence under Cap 31 is afforded a defence by proving that the girl in question was not under the age specified in a particular offence, and such offender is also afforded a defence if he can prove that he had reasonable cause to believe that the girl in question was above the specified age. [viii] That is, a person charged with abusing a girl under the age of 13 has a valid defence if he proves that the girl in question was over that age; similarly, a person charged with abduction of an unmarried girl under 16 can establish a valid defence upon proof that the girl was above that age.
Moreover, unlawful carnal knowledge of a girl under the age of thirteen, whether with or without her consent, is a felony and carries a maximum sentence of fifteen years of imprisonment. Unlawful carnal knowledge of a girl between the ages of thirteen and fourteen, whether with or without her consent, is however, only considered a misdemeanor and carries a maximum sentence of two years.
Rape of a person over the age of sixteen is considered a felony and carries a maximum sentence of life imprisonment. Indecent assault-sexual assault without penetration-on or attempts to have carnal knowledge of girls under the age of fourteen years carry the same maximum sentence as unlawful carnal knowledge of girls between the age of thirteen and fourteen, that is, only two years of imprisonment. No person can be convicted of unlawful carnal knowledge, indecent assault or attempted unlawful carnal knowledge “upon the evidence of one witness, unless such witness be corroborated in some material particular evidence implicating the accused.” [ix] That is to say, more than one witness must testify to warrant any conviction.
The law pertaining to the abduction of girls for immoral purposes applies to any unmarried under the age of sixteen. Abduction of girls for immoral purposes is a misdemeanor, carrying a maximum sentence of two years of imprisonment.
In addition, some of the offences discussed above require that the girl victim must not be a common prostitute of known immoral character, thus robbing girls of such a description protection under the Acts in question. It is salient to remember that the law generally considers girls under the age of 16 as legally incapable of giving consent. Hence the element requiring a girl not to be a common prostitute or of known immoral character runs against the grain of this principle.
The manner in which rape is dealt with under customary law is indicative of the societal values towards sexual violence and the low status of women and girls in Sierra Leone. Although all serious criminal cases should be automatically tried under general law, rape cases continue to be prosecuted under customary law in the local courts. Problems are also encountered in the investigation and prosecution of sexual offences. Many incidents of rape and other sexual offences are not reported. The most common reasons given by victims are that, it is a personal or private matter, the stigma attached to the victim of such an offence and the fear of reprisals by the offender. Where they are reported, it is common for some of these matters to be settled out of court, with the family of the victim undermining the administration of justice by requesting compensation or remedy to be provided by the offender.
In addition to the legal confusion that exists in the law concerning rape, attempts by women to obtain the prosecution of rapists are frustrated by the collapsed state of the judiciary and the lack of effective law enforcement, which has contributed to the on-going climate of impunity for offenders. Furthermore, because of the high cost of litigation, a good number of victims who come from humble backgrounds do not have the finance to start legal proceedings against accused persons for sexual offences. However, with the willingness of the victims, some human right activists/ organizations sometimes do intervene to prosecute such matters. One such example is a sexual offence case involving a fourteen-year-old girl currently being concurrently prosecuted in Court Nos. 1A and 3 presided over by Magistrates Adrian Fischer and Shyllon in Freetown respectively. The accused, a secondary school teacher in Freetown, is charged with threatening to kill the victim in Court No.1A and rape, abduction and illegal abortion in court No. 3. Worthy to note is that, whereas the prosecution has two pro bono lawyers, the accused on the other has four defence counsel. Added to this, the SLCMP has also observed that the said child victim is being intimidated in the court’s vicinity by relatives of the said accused, which may have the effect of lessening her resolve to testify. It is important to note that the prosecution of these cases serves as an attenuation of the psychological trauma suffered by victims of these offences. Sad to note, however, is that there is currently lack of personnel and adequate training in the police to ensure this.
Also, even though many advocacy groups have argued for the preservation of the victim’s privacy during the process, this practice is yet to be fully effected in the judicial system in Sierra Leone.
Recommendations
As many general law provisions have not been updated since colonial days, the protection that general law affords women is often only marginally better than that provided under customary or Islamic law. On examining the above problems, it is submitted that several substantive and procedural reforms need to be put in place in order to effectively clamp down on the prevalence of rape and other sexual offences.
To start with, the law ought to strive at creating a uniformity in the minimum age in cases where the victim are young girls, and the elements of a girl “common prostitute and of known immoral character” be removed from the statutory provisions in its entirety. There should also be consistency in the punishment meted out to culprits of sexual offences against young girls below the age of consent.
The government should further ensure a strengthened capacity for investigating and prosecuting authorities coupled with mechanisms that further protects the victims as well as witnesses at all stages of the proceedings such as privacy and witness protection. The authorities should also consider the enactment of an umbrella statute dealing with all classes of sexual offences.
The SLCMP is of the view that these reform measures proffered will definitely be a stepping stone towards combating sexual offences in Sierra Leone against women in general and young girls in particular.
[i] United Nations, Comtemporary Forms of Slavery: Systematic rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Final Report submitted by Ms. Gay J. McDougall, Special Rapppotuer (New York: United Nations, 1998), E/CN.4/Sub.2/1998/13,pp. 7-8.
[ii] s .2 Protection of Women and Girls Act(Cap30 Laws of Sierra Leone 1960)
[iii] Ibid s.3
[iv] s.6 Prevention of Cruelty to Children Act(Cap30 Laws of Sierra Leone 1960)
[v] Ibid., s.7
[vi] Ibid., s.10
[vii] Ibid., s12
[viii] Ibid., s15(3)
[ix] Ibid., 14
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The Native Administration Courts, also known as the Local Courts of Sierra Leone were established pursuant to the Local Courts Act, 1963; the Court Act, 1965 and Sec. 170 (2) & (3) of the 1991 Constitution of Sierra Leone. Sec 170 (2) states that, “the Common Law of Sierra Leone shall comprise of the rules of law generally known as the Common Law,…and the rules of Customary Law including those determined by the Superior Court of Judicature”. Sec. 170 (3) further states that, the Customary Law of Sierra Leone refers to those laws which by custom are applicable to particular communities in Sierra Leone. This, therefore, qualifies the Local Courts of Sierra Leone to dispense justice in accordance with the cultural, social and traditional settings of their different communities. It is also indicative of Sierra Leone’s dual judicial system, as it is comprised of the national courts under the general law which is applicable in the Magistrate, High, Appeals and Supreme Courts and the Native Administration Courts, which administer justice by virtue of customs and traditions. While the dispensation of justice in the national courts is determined by legal judgment based on anti-social behaviour sanctioned by the state, decisions in the local courts are primarily based on the existing orally transmitted norms of the different communities. In essence, customary laws are largely unwritten.
The main composition of local courts includes the Chairman, Court Clerk and Assessors (also known as Council of Elders). The Native Administration Courts serves as a medium to punish law breakers; have aggrieved parties compensated adequately as well as amicably settle chiefdom disputes, especially those that pertain to land. Proceeds from fines levied against disputing parties are supposed to be used on community matters.
Majority of Sierra Leoneans are governed by customary law. However, the proceedings in the customary courts are marred by many lapses, which seriously undermine both judicial and traditional values that gave rise to their establishment. This article will therefore examine some of these problems and make suggestions for meaningful reform.
Proceedings
The conduct of proceedings at the NA courts is often held in an unfriendly atmosphere characterized by fear and intimidation. Court officials are notorious for intimidating parties by frequently shouting at them, thereby creating panic. Litigants, therefore, find it difficult to compose themselves well when giving evidence. The situation is even made worse especially when women are involved either as witnesses or as victims. Due to the uncongenial atmosphere and the fact that court sessions are almost always open, even where it requires closed sessions, women most times feel reticent to testify more so when it involves crimes of a sexual nature. Such situations have the tendency to negatively impact the entire trial process. In effect, most people, including women have resorted to using the so called ‘Kangaroo courts’ established by local chiefs which are outside the framework of the Local Courts Act of 1963.
In addition to the coercive atmosphere, there is frequent obstruction of proceedings in the courts often resulting to premature adjournment of trial proceedings. The continuous movement of court officials within and without court premises distracts the attention of Chairmen and Assessors from adjudicating properly. From time to time Councilors and Chiefdom Committee Members would come around the courtroom and speak in chambers with court officials during sessions. At times when court officials retire to chambers, they may not show up to continue sessions and that might be the end of the day’s proceedings.
Jurisdictional Issues
The NA courts have competence over all civil matters covered by customary laws and those governed by general law where the claim is not exceeding Le 250,000. The latter is, however, applied Mutatis Mutandis. Local courts also have competence in criminal cases where the issues at stake do not exceed Le 50,000. However, NA courts do not always adhere to this constitutional provision stricto senso That is to say, they also adjudicate cases that do not fall within their competence. For instance, at the Local Court # 1 in Kakua Chiefdom, Bo District, a lady (name withheld) was summoned for failing to pay a debt amounting to Le. 747, 000. Technically, this matter falls outside the jurisdiction of NA courts. However, because of lack of knowledge on the part of the litigants about the jurisdiction of the court, the matter was adjudicated in the Court. This example is illustrative of how many courts adjudicate myriad of cases that are not within their jurisdiction.
The Courts of Paramount Chiefs
Additionally, Paramount Chiefs also create their own courts to try matters that are above the jurisdiction of local courts. By virtue of their constitutional mandate, Paramount Chiefs have no business in setting up courts. Their duties are purely administrative and not judicial. Most Paramount Chiefs establish a committee known as Council of Elders who assists them in running these courts. These courts are not only illegal but also undermine the responsibility of the local courts. Most of the cases adjudicated by the Paramount Chiefs are linguistically renamed as family matters so as to give them the mandate to sit and adjudicate such matters. It is surprising and ironic to note that enormous fines are levied in these courts. That besides, court Chairmen often decline to adjudicate matters that have once been settled by Paramount Chiefs in order not to annoy them.
Recommendations
Customary courts in Sierra Leone require similar reforms that are currently on-going in the justice sector. Majority of Sierra Leoneans use this system, and therefore deserves more attention. Moreover, the tendency of abuse of power is more imminent under customary law than under the Common Law. This is not only because customary laws are mostly unwritten, but also because majority of the people who use them do not know the limitation of their authority. Furthermore, they are not aware of the rights provided them under customary law. Based on our findings, most of the local court officials do not have the basic knowledge on the operations of the judiciary, the structure of the courts in Sierra Leone and their jurisdictional boundaries. To this end, it is important that local court officials are given regular trainings on the law, human rights and contemporary legal techniques. The trainings will, therefore, not only enhance their performance but will also help them know how to operate within their jurisdiction.
There should also be public education on how to use the local courts. Some people in the rural communities are not aware of the existence of appeal process in the local courts. They treat the decisions of the local courts as final. The few who are aware hardly use it as they consider it not only a waste of time, because of the lengthy trial process but also very expensive. At the end, they become unwillingly content with the decisions handed down to them by the Chiefs and Court Chairmen. Ensuring public education on how to use the local court should therefore be prioritized. The information should also include issues bordering on the jurisdiction of the courts.
The SLCMP is therefore of the conviction that the administration of justice in Native Administration Courts will be greatly improved if the recommendations proffered are treated with the seriousness it deserves by all stakeholders in the justice sector.
by ibakarr | Aug 11, 2016 | Uncategorized
Enhancing the integrity of the Judiciary in Post-conflict Sierra Leone is central to the court monitoring mandate. No country can afford a judiciary that the people do not trust, be it in developing or advanced democracies. This is because a very strong judiciary can effectively regulate the conduct of other state institutions to the benefit of its people. One single most important benefit of an independent and strong judiciary is that, it will prevent state collapse. This(an independent and strong judiciary) was what was absent in Sierra Leone on the eve of the war. During that period, the Judiciary could only protect the haves, those in power and their cohorts because its independence was compromised. It therefore lost its integrity and the confidence of the people. Since the ordinary Sierra Leonean was not assured of fair trial, some of them decided to use extra-judicial means to resolve their dispute. Thus the decade long civil war.
It is, therefore, important for the Judiciary in Post-conflict Sierra Leone to maintain its integrity so as to win the confidence of the people. The integrity of the judiciary is preserved when its independence is ensured. Such independence can be facilitated if the executive and legislature refrain from unduly interfering with its work and if there are good conditions of service for members of the Bench and other members of the judiciary.
The laws of Sierra Leone do no fully guarantee the independence of the judges. For instance, subsections 3 and 5 of section 136 of the Constitution of Sierra Leone, 1991 empowers the President of the Republic of Sierra Leone to terminate the contract of judges who are hired under subsections 2 and 4 of same. Subsections 2 and 4 of 136 section of the Constitution empowers the President to hire judges in the High courts, Courts of Appeal and the Supreme Court of Judicature even though they may have reached retirement age as prescribed under section 137 of same. Given that the President may terminate the contract of these judges where a fixed contract is not given, is indicative of the lack of security of tenure which in effect undermines their independence. A judiciary that serve only at the pleasure of the President cannot be impartial since there is no separation of powers. It is therefore likely to hand down biased judgment.
The Judiciary and its partners including the United Nations Development Programme and the Justice Sector Development Programme have initiated reforms measures. For instance, young graduates from the Sierra Leone Law School have been recruited to the Bench. Experienced practitioners are currently being recruited to serve in various capacities including serving as High Court Judges. The condition of service has been one of the major problems of the judiciary, Judges’ salaries are not only small but lack other attractive benefits as well. Judges used to wait to be transported to the Court in turns. The Law Court Building in Central Freetown is mostly without electricity. Sometimes, judges have to light candle sticks in their chambers to prepare for hearings. This is the state of affairs that used to drive people away. Given that more people are now going to serve as Benchers, it is important that these areas are looked into.
It is also important to note that similar facilities should be provided for the courts in the provinces. When the war ended, there was hardly the presence of the Judiciary in the provinces. In fact, some Magistrates were assigned to more than one district. Intervals between High Court convening were too long. The current reform exercise must also affect the provinces.
Further, the Judiciary has developed a code of conduct for its membership. The Code of Conduct provided for the establishment of an Ethics Committee, a body that will punish any member that falls foul of the Code of Conduct. Additionally, the Sierra Leone Bar Association is currently drafting a code of conduct for its membership. We expect that the Bar will include provisions regarding reprimanding of practitioners who collect monies from clients but fail to fulfil their contractual obligations.
All these measures can enhance the integrity of the judiciary but only if it is independent. An independent judiciary enhances its integrity. A judiciary that is not independent cannot be impartial. A partial judiciary will inevitably deliver partial verdicts. A partial verdict erodes confidence, thereby providing a platform for the use of extra judicial means – the decade long war in Sierra Leone is an example.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
The judiciary is the third arm of government charged with the responsibility (inter alia) of interpreting the laws and punish law breakers. One way in which it accomplishes these responsibilities is by way of adjudicating case, during which both the prosecution and the defence proffer tenable evidences to prove or disprove their case. Furthermore, both the prosecution and defence may often require credible witnesses to testify on their behalf. The centrality of witnesses in trials lends credence to the degree of support and protection they need, since witnesses can only testify freely when they are confidence that they will not be intimidated thereafter. This piece of writing, therefore, articulates the need for establishing a witness and victim support unit in the Sierra Leone judicial system. It specifically illustrates how giving support and protection to witnesses before, during and after trials enhance the dispensation of the rule of law, particularly in the face of the current reform efforts going on in the justice sector.
Witness Protection
Witness protection is basically the provision of security for a witness who testifies in a criminal trial. It may be in the form of assigning new identity and relocating the individual to another place for the primary purpose of avoiding revenge of persons affected by the testimony given. Generally, witness protection can be done before, during and after trials. Before trials, protected witnesses can be relocated for the purpose of ensuring that they are not harm. During trials, the identities of protected witnesses are shielded from the public. This is done by using mechanisms such as testifying behind a shield, voice distortion, video link, closed sessions, and the use of code names. After the trials, witnesses can also be relocated. Sometimes, the protection mechanisms need to include further guarantee of the security and support to others such as the dependants of the witness, who stand to be at risk of the testimony.
Witness protection is not a new concept, although formal establishments started in the 1960s when the Organized Crime and Racketeering Section of the United States Department for Justice investigated crimes. During that period, it was treated on a case by case basis. However, in 1970, the United States Federal Witness Protection Program was established by virtue of the Organized Crime Control Act. The Act granted the Attorney General the power to provide maximum protection for any witness who stands to be at risk by virtue of his/her testimony. (Kevin Bonsor:”How witness protection works”) Fourteen years later, the responsibility of the Attorney General with respect to witness protection was expanded by the Comprehensive Crime Control Act of 1984. This Act made provision for the protection of friends and relatives of witnesses who stand to be at risk prior to giving testimony. With the provision of the witness security in the mentioned Act, many cases were safely prosecuted in the United States, with little or no intimidation of victims and witnesses.
Witness and victim support system recently gained further prominence with the proliferation of international criminal tribunals. The International Criminal Tribunals for Rwanda and Yugoslavia (ICTR/ICTY) implemented specific measures in order to protect their victims/witnesses. Despite these measures were not part of their Statute, they were applicable by mutual consent to both Defence and Prosecuting witnesses. The lack of the incorporation of this support system in the ICTR/ICTY’s Statute was, however, corrected in the establishment of the Special Court for Sierra Leone (SCSL).
The SCSL Registry established a Victims and Witness Support Unit (VWSU) pursuant to Rule 34 of the Rules of Procedure and Evidence (The Rules). The VWSU is responsible for ensuring that protective security measures are put in place so that witnesses and victims testify securely before the court. To this end, the Court normally institute protective measures when it is required.
The Case of the Sierra Leone Judiciary
However, there is no established programme supporting witnesses and victims under the Sierra Leone Judiciary. Lawyers in the national court practice ad hoc system in managing their witnesses. Consequently, some counsel come to court without even knowing the whereabouts of their witnesses, thereby causing undue delays to the trial process.
Moreover, the absence of evidence to prosecute accused persons in criminal cases may lead to prolonged pretrial detentions. The judges depend on evidence tendered in court in order to administer justice. If the source or the evidence itself is lacking, the court might not be able to adjudicate properly as required by law. Where evidence is lacking in criminal trials, or little or no effort is made to protect the source of that evidence, the pretrial detention of the defendant may be prolonged. The reason for this is that, the decision for such cases solely depends upon the authenticity of the evidence on behalf of the prosecution. Since there is no support system to protect witnesses alleged criminals would always faced prolong pretrial detentions. Consequently, when evidence is lacking, a ‘no case’ submission may be tendered on behalf of the defendant. Ultimately, the availability of evidence to prosecute a crime requires the willing participation of witnesses and victims to testify or give accurate account of the event. As earlier mentioned, this willingness can be hampered by fear of being intimidated or victimized by the adversarial party or some members of the public. When fear is imminent, accurate evidence cannot be collected from such witnesses. To allay such fears, the witness or victim should be provided with certain rights and protective measures and the court should also ensure that these rights and protections are respected.
The need for a support system
Witness protection in practice, gives psychological confidence and security to witnesses and victims. It may even extend to others who stand to be at risk by virtue of the testimony and evidence given in courts. Since Sierra Leone is currently undergoing its post war reconstruction there is a need for a witness and victim support system which would protect vulnerable witnesses and victims.
The national courts are usually faced with sensitive issues such as rape or sexual violence, cases involving minors and people with disabilities. In cases of sexual violence or rape, victims are usually ashamed to testify or even help in the prosecution of such offences. They are afraid of testifying in court because of the dangers of ostracisation. More so, the sight of the perpetrators/accused might induce some element of fear, shock or hatred in the mind of the victim. Subsequently, this will hamper the ability of the witness to give full and correct details of what happened. This might result to a miscarriage of justice as the victim would not be able to give proper account of the evidence. If a support system is however established, witnesses/victims would be provided with legal advice and assistance that would encouraged them to testify freely in court
In criminal trials, the names and identity of witnesses and victims should be kept secret in order to facilitate the anonymity of the victim or witness. In rape cases, the anonymity of the victim should be kept secret to avoid further embarrassment and stigmatization. The presence of the general public often militate against the ability of the victim to testify freely. If there is a support system mechanism, such as voice distortion and protection of identity; this may help the victim to testify comfortably. This is important as the quality of the evidence will assist the court in making a just verdict.
In cases involving children, a child victim/witness may also not be comfortable to testify in the presence of the defendant/accused. Such victim/witness should be given the opportunity to testify in an atmosphere that is free from intimidation and other forms of fright. Therefore, arrangements should be made for a support system that would ensure that the victim/witness undergoes counseling before testifying. The support system is also needed for cases involving witnesses with disabilities. This will help combat the strains involved in accessing the courtroom, and the rigors of possible adjournments.
Conclusion
Witness protection should be done in a manner that is not inconsistent with the rights of the accused. In some cases, the ability to rebut testimony of witnesses can sometimes depend on the identity and background of the witness. Without such knowledge, the defence would not be able to conduct an effective cross-examination. In establishing a witness and victim support mechanism to protect witnesses and victims, the defence should be given the opportunity to test the credibility and/or reliability of a witness/victim. This is premised on the fact that, the laws of Sierra Leone guarantee presumption of innocence in trials until proven guilty. Therefore, the accused must be accorded fair hearing which may include the right to examine witnesses. However, in exercising this right may sometimes undermine the security guarantee of the witnesses. In that instance, the court should only employ a means, such as shielding the identity of the witness from public or having a closed session. In this way, the court would have stroke a balance between the interests of both parties to the conflict.
One important benefit the establishment of WVSU may bring to the Sierra Leone judicial system, is enhancing witness management system. Once a WVSU system is established, this will help the prosecution or defence to be able to know the whereabouts of their witnesses. Like it happens currently, most lawyers go to court without being sure whether their witness will be present or not. The establishment of WVSU will therefore, only enhance the dispensation of the rule of law in post conflict Sierra Leone.
