Making a Case for the Abolution of the Criminal Libel Law in Sierra Leone-republish Jeneba Kamara

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

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!!!

Making a Case for the Abolution of the Criminal Libel Law in Sierra Leone

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

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!!!

Excessive Delays are Barriers to Fair Trial

by ibakarr | Aug 11, 2016 | Uncategorized

It is now a year since the Sierra Leone Court Monitoring Programme (SLCMP) started monitoring the national courts. During that period, the SLCMP observed numerous undue delays in proceedings contrary to Section 23(1) of the 1991 Constitution of Sierra Leone. The said provision guarantees fair trial within a reasonable period of time for persons charged with criminal offences by an independent and impartial court. Although the judiciary and its partners recruited a few young graduates to serve as magistrates in the provinces for the primary purpose of expediting trials in those areas, nevertheless, the problems highlighted a year ago still continue unabated. This article, therefore, examines the continued causes of delays in trials;  its impact on the administration of justice and proffer necessary recommendations for reform.

The causes of delays are multifaceted and cannot be laid on the doorstep of the Bench alone. The blame should be borne by all concerned and the SLCMP has tried to categorize it as follows:

The Rules

The Rules of Court Procedure are not only cumbersome but also outdated in many respects. Most of them are couched in obscure legal jargons that make it so difficult not only to locate but even to understand. Most of the Rules no longer meet the needs of the Sierra Leonean society, as they were imported wholesale from Britain with no considerable modifications to reflect the aspirations of the society in which they were meant to be implemented. In fact, this is one of the key problems members of the Sierra Leone Bar Association (SLBA) highlighted during their Annual Conference in July, 2006. The national courts still apply the procedures and practices of the High Court of Justice in England of 1960. The country is now much more complex than it was almost half a century ago, when a large body of English Common Law was made part of the laws of Sierra Leone. As a result, the gap between the administration of justice and the ever-increasing needs of today’s society continues to widen.

Furthermore, the provisions in the 1991 Constitution meant to avert undue delays are rarely observed by the courts. A vivid example is the current treason trial of Omrie Golley and Two Others who were charged on 23^rdth February 2006. The said motion made an objection to Justice Samuel Ademusu presiding over the matter on the ground that he has passed the retirement age and he is now on contract which makes his eligibility to sit on such cases questionable. January 2006 for allegedly planning to overthrow the Government of Sierra Leone and to assassinate Vice President Solomon Berewa. The Supreme Court is yet to make a ruling on a motion filed by Golley’s Defence Counsel, Charles Margai since 24

Frivolous Adjournments Based on Prosecutorial Lapses

In July 2006, the Presiding Magistrate of Court Number 1, Sam Margai on many occasions adjourned cases that were long overdue for verdicts due to prosecutorial lapses.   The prosecution, on several instances, failed to bring witnesses forward to testify for spurious reasons only to ask for an adjournment. On one occasion, the Magistrate was forced to adjourn a case involving murder because the prosecution consistently failed to bring its witnesses to testify. The Magistrate, however, warned that the case will be closed if the prosecution failed to present its witnesses. The prosecution’s excuse was that, the witness was a police officer on duty at another station outside the court’s jurisdiction. This is most often the case when police officers involved in investigations are transferred without fully liaising with the prosecution unit.

Unnecessary Delay Created by the Defence Counsel.

The attitude of legal practitioners is also not helping the situation due to their failure to adequately represent their clients in court. Some do not turn up in time when their clients’ cases are called up much to the embarrassment of their clients. This is partly because lawyers have too many cases to handle, some of which are scheduled to sit at the same time in different courts. Quite naturally, since a person cannot be in more than one place at the same time, one of the courts can only adjourn the matter thereby prolonging the trial process.

Furthermore, during cross examination sessions (like some prosecution lawyers do during examination-in-chief) the defence counsel sometimes spend most of their time asking somewhat irrelevant questions thereby embarrassing the witness in the dock. The Bench has to interject on many occasions in order to expedite the process.

Some counsel come to court unprepared to handle a particular case. They rely on the loopholes in the Rules to ask for adjournment. Such applications frustrate their adversaries as well as their clients. There are also instances wherein counsel come to court and ask for an adjournment simply because they have not seen or heard from their client.

The Registry

The Registry is also part of the problem of delay in court proceedings. For example, there are times when lawyers call up their clients’ cases to be heard or make applications for certain exhibits to be tendered in court, court officers respond by saying that they are yet to see the file in question and this unavoidably leads to adjournments. In addition to missing case files, delays in signing court orders and other documents and the general functioning of the Registry cause delay in many trial proceedings. The volume of cases that go through the system is such that bottlenecks are created at every stage thus leading to delay as cases cannot advance from one stage to the other without prior records.

Furthermore, at the SLBA Annual Conference, one of the speakers said that the Registry seldom functions on Saturdays even though it is a working day. Consequently, it reduces the hours counsel have in accessing and filing key documents.

Consequences

Without doubt, the fact that members of the public have limited knowledge about the laws that govern them is a major obstacle to utilizing the justice system. It must also be said that the lack of fair and expeditious trials no doubt significantly undermines the efficiency of the judiciary which is the cornerstone of any civilized society. The snail pace at which court cases proceed has continued to dent the image of the Sierra Leone judiciary as an independent and impartial arbiter of justice. It even casts suspicion on its ability to dispense justice fairly.   Consequently, people prefer to use extrajudicial means to resolve their problems. Given the fact that the lack of the rule of law was one of the primary causes of the decade-long civil war in Sierra Leone, it certainly requires more attention than it is been given at the moment.

Undue delays during court proceedings put unwarranted burden on all the stakeholders –   the defence, prosecution and the bench.

It is important to note that, persons charged to court are presumed innocent until proven guilty in a court of law. However, when proceedings are delayed, the right of the accused is usually compromised contrary to the provisions made in the 1991 Constitution which prohibit unreasonable protraction in court proceedings. This is exacerbated by the fact that no compensation is given even when it is clear that the prosecution may have delayed the court’s process irresponsibly. Additionally, if the indictee is proven guilty at the end of the trial process, the court often takes little cognizance of the length of time already spent in pretrial detention.

Furthermore, excessive delays raise the cost of litigation and this affects the people who abandon their daily chores only for the court to keep adjourning their matter.

Delay may also cause the disappearance of case files and exhibits or the distortion of evidence. This further undermines public trust and confidence in the judicial system as justice delayed is ‘justice turned sour.’

Recommendations

The centrality of the justice sector in the reconstruction of Sierra Leone after a decade long civil war cannot be over emphasized. This is premised on the fact that the prevalence of the rule of law strengthens peace and stability.   One of the key components of the rule of law is the guarantee to fair and expeditious trials within the due process of the law. The absence of this bears the unfortunate effect of engendering instability which certainly undermines the reconstruction efforts. To this end, cutting on excessive delays during trials will immensely enhance the prevalence of the rule of law. It is in this light that the SLCMP is making the following recommendations:

As stated during the Annual Conference of the SLBA, changing the Rules is of absolute necessity so as to expedite proceedings in courts. The Law Reform Commission, the Law Reform Initiative and the SLBA should collaborate to effect this reform.

Legal practitioners have got to change their attitude with respect to the way and manner they handle cases. Lawyers who bring motions or engage in other activities that are, in the opinion of the court, either frivolous or constitute abuse of process should be prevented from doing so by the court. In this respect, the Bar should modify the existing code of conduct for lawyers to reflect the aforementioned concerns. The judiciary should start convening status conferences before the commencement of trials, especially high profile ones. This will offer an opportunity for all parties to transfer relevant documents and deliberate on other issues affecting the trial process. This practice will help defeating delays.

Defence counsel should know that they have a responsibility to represent their clients during trials. Therefore, they should try and liaise with the Bench in apportioning time to enable them prepare adequately and to also avoid the unfortunate incident of being required to simultaneously represent two clients in different courts. In other words, it is incumbent on counsel and the Bench to agree to a stipulated time which must be respected and they should ensure that it is recorded in their daily diaries in order to help them locate the trial time. This will also relieve litigants who most times spend the whole day in court only for their case to be called and adjourned.

An amendment of the rules  without a corresponding improvement in the infrastructure of the courts will provide little help in defeating delays. More structures should be built, modern gadgets applied and jurimetrics introduced to cut down delays in proceedings as well as in the production of records for interlocutory purposes and appeal. The provision and proper utilization of these facilities will be of immense help in reducing delays.

Special rules should be made regarding adjournments with more powers given to the Bench to refuse requests made by counsel for adjournments that are deemed frivolous. Counsel should be sanctioned by way of forcing them to close their cases if they consistently fail to bring witnesses for a particular case. Furthermore, witnesses who refuse to turn up in court without genuine reasons should be subpoena or given bench warrant.

The Registry should work on Saturdays, say from 9am 1pm. This would give counsel the opportunity to file motions on behalf of their clients in order that trials can be expedited.

The Registry should also initiate in-house training for members of the Bench on contemporary techniques and instruments in trials. Similar trainings should be conducted for the Registry staff on modern case and court management techniques. Furthermore, the Sierra Leone Bar Association should also conduct similar trainings for its members.

The Government of Sierra Leone and its partners should support the documentation of Sierra Leonean laws. This should be made part of the mandate of the Law Reform Commission.

Most of the issues we have discussed above are not new. The SLCMP has discussed them in   earlier publications. However, not much has been done to resolve them. As a court monitoring programme, we remain concerned that the continued existence of these problems will only continue to undermine the prevalence of the rule of law.