“EQUALITY OF ARMS”A SIGNIFICANT ASPECT OF FAIRNESS

by ibakarr | Aug 11, 2016 | Uncategorized

The integrity of international criminal justice depends upon a fair balance being struck between the rights of individuals suspected of violations of international humanitarian and human rights law and the rights of the Prosecution in investigating and prosecuting those suspected of committing such violations, on behalf of victims and the international community.
There are a number of identifiable objectives of the international criminal justice system. Those objectives can be categorised into overlapping subheadings such as discovering truth, bringing justice for victims, and maintaining the rights of the accused. How those objectives are achieved involves considering the role played by such matters as: the presumption of innocence and the standard of proof, the defendant’s right to silence, transparency and public justice, the roles of the judge, the prosecutor, defence counsel, investigators and respect for fair trial principles. The principle of fairness in international criminal litigation constitutes a fundamental human right reflected in the jurisprudence of international institutions.

The principle of equality of arms is classified as a sub-principle of fairness, whereby the accuser and the accused must be treated equally before the law. This approach is clearly endorsed in various instruments of international tribunals, and is reflected in the right to legal counsel at the expense of the Tribunal where the accused is indigent, the presumption of innocence and the requirement that guilt must be proven beyond reasonable doubt.

What then is equality of arms? As the ICTY stated in the Prosecutor v. Tadic, (Appeals Chamber), July 15, 1999 para. 43, 44, 48, 52: “equality of arms is an expression that means that each party must have a reasonable opportunity to defend its interests “under conditions which do not place him at a substantial disadvantage vis-a-avis his opponent.” The Appeals Chamber went further to state that “this principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every practical facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.” For the Prosecution and the Defence to be equal before the Chamber, we have to look at the issues from two angles:

A. Scope of the principle of equality of arms:
The first issue to be examined is whether equality of arms is to be construed as embracing not only procedural equality but also substantive equality. Equality between the parties entails equal opportunities to prepare for a trial. An essential element of a fair trial is that the defence must have adequate time to prepare their case. What time is considered adequate depends on the circumstances of the case.

A more difficult question is whether equality of arms also requires equality of resources between the parties. This has been a problem for all the international tribunals, including the Nuremberg Tribunal, Tokyo Tribunal and ICTR, ICTY,and in East Timor and Kosovo. In general, the defence has not received the institutional support that has been received by the Prosecutor. The Defence Office of the Special Court presents an improvement on the other courts in this respect.

Although it is clear that the question of equality of arms cannot be reduced to an exact equation, there must, in the least, be an approximate equality in terms of resources. Any substantial inequality will call into question the fairness of the trial. This is not a question of mathematics but, rather, of ensuring that the accused has adequate resources to defend the particular case.

Other situations of inequality may occur where a government or international organisation may have granted the prosecution access to archives or materials, but is unwilling to do the same for the defence. This has sometimes been the case in the past, particularly with humanitarian organizations such as the ICRC (International Committee of the Red Cross).

Although the accused’s right to examine witnesses does fall under the rubric of equality of arms principle, the effect of protective measures on that principle is not usually examined by the Tribunals. The reasoning of the Tribunals is usually focused on the broader concept of a “fair trial” and the necessity of balancing that general right with the Tribunals’ obligations under the various statutes. In terms of its effect on equality of arms between the parties, the regime of protective measures is available to the defence as to the prosecution. But as the defence does not have the same obligations to disclose as the prosecution, the prosecution is not as disadvantaged in the preparation of its case. In most instances where protective measures are granted to the defence, these measures will be limited to non-disclosure by the prosecution to third parties and the public in general but not non-disclosure to the prosecution.

A further crucial issue is the extent to which the reliance by international tribunals on human rights principles which were formed in the domestic context is really fair in the context of an international trial. Given the complexity of international proceedings, and the volume of documentary material on which the cases rely, such proceedings cannot be equated with those of domestic criminal proceedings from which that interpretation of equality of arms arises.

B. Institutional structure and personnel of the prosecution and defence offices:

Does the principle of equality of arms require that the prosecution and defence be represented by lawyers of equal standing (both in criminal law and international criminal law.)? In international settings, proper qualifications and experience are as important as before national courts. While national criminal proceedings may be as complex and intellectually challenging for an attorney, it is fair to say that international criminal proceedings add a further dimension to the functions and requirements of all lawyers involved in the proceedings.

Is there a need for an autonomous Defence office in the structure of a tribunal like the Special Court, able to conclude its own agreements, etc.? Defence counsel and investigators need freedom to operate in the States in which evidence is located. In the Statutes of international criminal tribunals, they are often given far fewer powers, privileges and immunities than their prosecutorial counterparts. In the definition Section of the Statute of the ICC, Defence counsel are not even mentioned.

As international prosecution becomes more established and professional, international defence that remains ad hoc. Consequently, efforts at expanding the role of international criminal law are hampered by criticisms that defendants are being denied the right to equality of arms. International criminal prosecutions are a distinct breed , they should not be regulated merely by reference to analogous international conventions and national laws. More thought should be given to how to strengthen the Defence in these trials.

Analyzing the Code of Conduct for Judicial Officers in Sierra Leone

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

The Chief Justice of the Republic of Sierra Leone, Hon. Dr. Ade Renner-Thomas, on the 15th September 2005, concurrently launched the Code of Conduct for Judicial Officers in Sierra Leone during the official launching of the Justice Sector Development Programme. Prior to this time, there has been a conspicuous absence in the justice system of any written guidelines to help Judicial Officers in regulating their judicial and personal conduct. Moreover, apart from the provisions of the Constitution, Act No. 6 of 1991, governing the removal of Judges for misconduct, there is no formal machinery available to members of the public for the processing of complaints against Judicial Officers for alleged misconduct. The purpose of this Code is to establish standards for ethical conduct of Judicial Officers. This initiative, though long over due, is however welcoming as the country is still in transition, consolidating the gains of reform after over a decade long war characterized by the collapse of state institutions with the Judiciary being one of the primary victims.

The need for reform in the justice sector in Sierra Leone cannot be over emphasized as it is very crucial in the post war recovery effort. The deviances in the justice system were created by years of political neglect and corruption. The Judiciary –which, prior to the war, barely existed in the provinces, and in Freetown was only accessible to those who had sufficient funds- was largely non-functional during the conflict. The low salaries of personnel who worked in the judiciary meant that magistrates, lawyers and judges were easy targets for bribery, intimidation and/ or manipulation. Consequently, it became the machinery used by the political hierarchy to persecute their opponents, whether real or imagined. As such, the lack of faith in the system contributed in no mean measure in exacerbating the growing disenchantment among the populace which subsequently led to the armed conflict.

The Sierra Leone Judiciary comprise “…all Judges, Magistrates, Registrars, Justices of the Peace and other persons carrying out judicial functions in Sierra Leone”, conferred with the responsibility for adjudicating “all matters civil and criminal including matters relating to [the] Constitution, and such other matters in respect of which Parliament may by order under an Act of Parliament confer jurisdiction on the judiciary”. In order to restore public confidence in the administration of justice; to enhance public respect for the judiciary; and to protect the reputation of individual Judicial Officers and the Judiciary as a whole, the judiciary is to be guided in their judicial functions. Therefore, in the spirit of judiciously performing their duties, the Sierra Leone judiciary has taken the initiative to regulate itself by introducing a Code of Conduct for Judicial Officers.

As stated in the text, the Code of Conduct is not only designed to provide guidance to Judicial Officers in regulating judicial conduct, but also intended to offer Government operatives, legal practitioners and the general public the opportunity to better understand and complement the effort of the judiciary. This piece, therefore, analyzes key provisions of the Code of Conduct vis-à-vis their applicability in Sierra Leone.

Judicial Independence

Judicial independence is a fundamental principle and prerequisite for the dispensation of justice in a democratic state. An independent, strong, respected and respectable judiciary is free from any form of political influence or interference by either the executive or legislative arm of government. Judges must be free to decide a matter before them based on the facts presented and in accordance with the dictates of the law. Judges should be free from any extraneous influences, inducement, pressures, threats or interference, direct or indirect, internal or external or for any reason.

In addition, the Code of Conduct states that a Judicial Officer should also be free from influence by his judicial colleagues and that they are required to exhibit high standards of judicial conduct. These conditions enshrined in the Code of Conduct are also provided for in Sec 120(3) of the 1991 Constitution.

Despite these elaborate provisions, conditions inhibiting the independence of the judiciary still continue to exist. One such condition is the appointment and security of tenure of office of Judicial Officers. Although sec 135(1) of the 1991 Constitution states that the President on the advice of the Judicial and Legal Service Commission and subject to Parliamentary approval shall have the power to appoint the Chief Justice and other judges of the superior court of judicature, sec136 provides that where the office of a High Court judge is vacant, the President may appoint a person who has held office as, or qualified for appointment as a judge of the superior court of judicature, even though he has already attained the retirement age or the age at which he shall vacate office. Under the latter provision, there is no need to seek Parliamentary approval, having secured it once. This therefore leaves the judge at the pleasure of the President who has power to terminate his appointment at will. Since these contract judges only serve at the pleasure of the President- they do not have security of tenure of office- there is the likelihood that they cannot be totally independent in the discharge of their official duties. In other words, in order to maintain his job, a judge may be tempted to succumb to the dictates of the President hence compromising his independence. The current protraction of the Omrie Golley trial is largely premised on this fact. Golley’s Defence Counsel, Charles Margai, has objected to the eligibility of the presiding Judge, Justice Samuel Ademusu. As a judge on contract, his tenure of office is highly contingent on the President’s prerogative and therefore, in Mr. Margai’s opinion, he (Ademusu) might easily subject himself to judicial manipulations from the Government in order to maintain his primary source of livelihood. The Supreme Court is yet to sit on the matter as another motion has been filled against the Chief Justice, who should preside at the Supreme Court, not to participate in the process for discussing matter pending ruling outside court.

Equality

Equality before the law is a primary standard that evinces adherence to the principle of the rule of law. The Code of Conduct makes specific emphasis for Judicial Officers to regulate their demeanor so as to ensure equality of all persons in accordance with the law. The actions of a Judicial Officer, therefore, by words or conduct should not manifest any form of bias or prejudice towards any person or group of persons that would advantage or disadvantage him before the law. In addition to this, Section 15 of the 1991 Constitution clearly states that all persons in Sierra Leone are entitled to fundamental rights and freedoms regardless of race, place of origin, political opinion, colour, creed or sex and that all persons are equal before the law and are entitled, without any discrimination, to the same protection of the law.

Whilst these provisions are very glaring, there are a number of practices that militates the full adjudication of the law indiscriminately. A typical example of inequality before the law is the age qualification to become a juror. Whereas a man can become a juror at 21 years, a woman on the contrary must be 30 years. This case distinctly contradicts gender equality for age qualification requirement of becoming a judicial officer in this respect.

In addition to this, the justice system in Sierra Leone does not provide equal opportunities for litigants. Whilst there is an office of a Director of Public Prosecution, there is no such provision for a Public Defender. This situation, therefore, does not offer equal opportunities for litigants to access justice. Hence, many a time, accused persons are arraign before court with no legal representation contrary to the provisions of the 1991 Constitution. One such example is the case of three persons charged to court 29th September, 2006 for allegedly stoning an SLRTC bus and assaulting a Hughes security guard at Rokupa Estate in the East-end of Freetown. Whilst there were four persons prosecuting the matter on the one hand, the accused persons on the other could not boast of any Defence counsel. Thus, the presiding Magistrate of Court No.1, Sam Margai, therefore asked them to cross-examine the witnesses from the dock where, because of lack of legal knowledge, almost implicated them further. A series of other rules and practices exist that inhibit the provision that yearns for equality before the law.

Impartiality and Impropriety

Justice itself cannot be applied without impartiality. As such, Judicial Officers have come under intensive public scrutiny to dispense justice fairly within the ambits of the law. Therefore, the Code of Conduct makes very clear projections as to how Judicial Officers need to dispose themselves in order for them to perform their duties free from a cynical eye. This revolves around their associations and the avoidance of favoritism, prejudice, independence, partiality and the misuse of their prestige in the performance of their functions as Judicial Officers.

Furthermore, the Code of Conduct 5.3a makes it abundantly clear that a Judicial Officer shall cease all partisan political activity involvement and shall refrain from conduct that might give rise to the appearance that he is engaged in political activity. Moreover, paragraph 5.3b clearly states that a Judicial Officer shall not attend a political gathering, political fund raising events, make speeches for a political organization, and contribute to political parties or campaigns.

However, despite these highly structured principles in the Code of Conduct, some Judicial Officers are yet to go strictly according to the letter. A case in point is the attendance of the opening of the Sierra Leone Peoples Party (SLPP) Western Area Branch office by the presiding Magistrate of Court No.1a, Adrian Fischer. It is important to note that this event happened just after Magistrate Fischer resumed duties after he was temporarily suspended by the office of the Chief Justice. He was accused of bringing the judiciary and the office of the Chief Justice into disrepute, gross dereliction of duty and abuse of office and insubordination and disrespect for lawful authority after he failed to submit on time documents relating to the inquest regarding the death of Harry Yansaneh, former acting editor of For di People Newspaper. It is presumed that, the verdict of the inquest which was issued against Hon. Dr. Fatmata Hassan, a member of Parliament for the ruling SLPP and others, did not go down well with some higher authorities. By attending a meeting of such a political party, even against the spirit and letter of the Code of Conduct, only shows that he was trying to mend fences at the expense of compromising judicial impartiality and impropriety. The million Dollars question here is: why did the Judicial Ethics Committee not institute any procedure against Magistrate Fisher for the alleged flouting of the Code of Conduct?

Conclusion

The transition period offers Sierra Leone a unique

opportunity to reform the various institutions crumbled by the war with the Judiciary, owing to its indispensability, being no exemption. The Sierra Leone Court Monitoring Programme (SLCMP), therefore, lauds the efforts of the Judiciary to institute minimum threshold to regulate its conduct in the form of issuing a Code of Conduct and in proposing for the establishment of a Judicial Ethics Committee.

The SLCMP holds the view that these guiding principles would serve as a mechanism for the attainment of a professional judiciary that is imperatively needed in Sierra Leone. However, living by these codes does not merely require stating them in a text; it also requires making provisions that will serve as deterrents to the conditions and practices that make Judicial Officers perform their duties unprofessionally as have been mentioned in the above paragraphs.

Addressing Gender Disparity in Sierra Leone (Part II)

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

In the preceding edition of the SLCMP Newsletter, the Monitor, an article deliberating on a draft Bill that provides for laws intended to promote gender equality was published. The SLCMP promised to publish the remaining aspects of the draft. In view of that, this article continues to examine the Customary Marriage Act together with the Domestic Violence Act as provided for by the proposed Bill. It stresses on the provisions that protect women from discrimination and violence. These two areas are unique by virtue of the fact that until now, no law has been promulgated to cover them. The SLCMP therefore lauds the timely intervention of the legislative arm of government as domestic violence has never been an issue of great concern in Sierra Leone. Failing to act promptly could really be detrimental to the justice system of this country as, in a report recently published by Human Rights Watch, it is stated that 67% of urban women had been beaten by a male partner. Moreover, the situation is not helped by customary law- the law that governs the majority of the citizens of this country. Since it is under customary marriage that women in Sierra Leone are discriminated the most, it is therefore important that the draft Bill be enacted into law; Moreover, it makes provision for the two areas that are lacking in legislation in our statute books that are in dire need of rules to regulate their conduct and practice.

The Customary Marriage Act, 2005

The proposed Customary Marriage Draft is meant to provide for the recognition of customary marriages entered into before and after the commencement of this Act. It is geared towards capacitating women in the law, registration and dissolution of customary marriages.

It repeals sec16 and 17 of the Christian Marriage Act (Cap 95), which justifies bigamy in marriages contracted under native or customary law. It further repeals all byelaws enacted by local authorities, relating to the registration of customary marriages and divorces that used to exist prior to the enactment of this Act. It provides for an application to be made to the Registrar –General for registration of all customary marriages entered into on or before the ratification of this Act, three months subsequent to the date of marriage or the date of the commencement of the Act as the case may be.

Sec 8 provides that the Registrar-General upon application and upon satisfactory completion of conditions of a statutory declaration can register the marriage and will notify the public of such registration. Such notice will be placed on a notice board at the office of the Registrar General, twenty-eight days subsequent to the date of application for the registration of the marriage. In the event there is any person who knows of a cause why the two shall not marry, he/she shall file the grounds for objection to a Local Court. If upon hearing, the court is satisfied that there are legal grounds supporting the objection, the court will grant an order empowering the Registrar-General to expunge any entries made in the register. The same procedure applies to the dissolution of a customary marriage. On registration or dissolution of any marriage, a certified true copy of the entry will be issued to both parties.

It further provides that a customary marriage entered into before or after the passing of this Act shall be valid if certain requirements are met. The requirements include: that the prospective spouses must consent to the marriage and they should be above the age of eighteen. Presently, under Customary Law, there is no fixed minimum age for marriage. The practice is that, once the person has reached puberty he/she is eligible to marry. Worse still, girls are given into marriage to older men even before they attain puberty. Moreover the prospective husband to any marriage has to consent to it, whilst on the contrary; the girl’s consent is subordinate to that of her father or an elder male relation.

The proposed Customary Marriage Bill bars any spouse who has already contracted a civil, Christian or Muslim marriage rite from entering into a valid customary law marriage with the existing spouse or another. In the event wherein the marriage was simultaneously celebrated by both Christian, Muslim, civil or customary rites, such marriage will be governed by the law that the parties have agreed to be applicable. On the other hand, if no law was laid down, the court shall take into consideration the spouse’s mode of life, together with the rules and customs that they observe to determine the prevalent law.

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The draft Bill strives to discourage polygamous marriages under Customary Law as recommended by the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The Convention recommends that polygamous marriages be prohibited as it contravenes a woman’s right to equality with a man, and can as well have such serious emotional and financial consequences on her dependants. In accordance with the CEDAW, the Act gives women the option to choose between polygamy and monogamy. It grants both spouses the right to enter into an ante nuptial agreement that the union is going to be a monogamous one. However, in the absence of such a declaration, the marriage will be polygamous. Additionally, it provides in sec 5(3) that in a polygamous customary marriage, the male spouse cannot marry an additional spouse without the consent of the existing wife/wives. Unless in a case wherein the wife/wives unreasonably withhold consent. Furthermore, it tries to eradicate the practice of bigamy. Sec 5 states that a person who is a spouse to a customary marriage cannot subsequently marry another by either civil, Muslim or Christian during the existence of the customary marriage.

Contrary to the current practice, part V of the Draft provides that a wife of a customary marriage shall have the same legal powers as her husband even in the area of decision-making. Further, bride price is to be considered as a gift and non-refundable on dissolution of the marriage.

Currently, under customary law, women are discriminated in the area of property devolution; however, the draft Bill provides that at the death of spouse, the provisions of the draft Intestate Succession Act, 2005 shall apply. The particular Act in question was discussed in the preceding publication and creates equality between the sexes in the area of property succession.

Sec 19 of the proposed Customary Marriage Act further makes it an offence to apply for the registration of a marriage not lawfully contracted under the relevant customary law, to prevent the registration of a customary law marriage or dissolution and to make a false entry into the register with intent to defraud or alter any entry into the register. The punishment for such an offence is a fine of a sum not exceeding Le 250,000/00 or imprisonment not exceeding five years or both.

The Domestic Violence Act 2005

The intended Domestic Violence Act provides remedies for victims of domestic violence. It also guarantees victims a protection through speedy and effective remedy. It commences by defining the elements that comprise domestic violence. It states that, for an act or abuse to comprise domestic violence, there must be the existence of a domestic relationship. The interpretation text defines a domestic relationship as a marital/divorced/separated relationship that was contracted by customary, civil, Christian or Muslim law between the complainant and the defendant. It also includes cohabitation and repute, a betrothal relationship and an ordinary relationship between lovers actively engaged in sex as domestic relationships. Domestic violence is defined as a physical, sexual, emotional, verbal, psychological and economic abuse. It includes intimidation, stalking, trespassing and damage to the complainant’s property.

Economic abuse is defined as an unreasonable deprivation or disposal of financial, economic or household resources to which the complainant is entitled by law or which he/she requires out of necessity or interest.

It further defines emotional abuse as repeated insults, ridicules, name-callings, threats or obsessive possessive jealousy, which will invade the complainant’s privacy, liberty, integrity and security. Harassment and intimidation are defined as repeatedly engaging in conducts that induces fear of harm on the complainant. Sexual abuse is defined as any conduct that humiliates or degrades the sexual integrity of the complainant. Stalking is interpreted as repeated pursuing or accosting of the complainant.

Part II of the said Act provides for measures to be taken when a police officer witnesses the scene or an incident of domestic violence is reported to him. The Act requires the Police to hasten to render reasonable assistance to the complainant including the provision of a suitable shelter or a medical treatment. It also permits police officers to arrest with/without warrant if an incident consisting of the elements that comprise domestic violence happens in their presence.

The Act provides for protective mechanisms for the complainant prior or subsequent to court proceedings. The complainant or any other person with genuine interest in the well being of the complaint such as public officers, teachers, counselors or social workers may apply for a probation order either prior to or subsequent to court proceedings. The court has power upon application made to issue protection orders prohibiting a defendant from committing or abetting the commission of domestic violence. Such orders include injunctions; prohibiting the defendant from entering the house, office or educational institution of the complainant.

Furthermore, the courts under sec 5(1)h may issue a protection order to prevent the molestation or harassment of the complainant. The court can also provide an additional protection that will care for the safety, health and well being of the complainant.

Sec 6 provides for an interim protection order to be made by the courts notwithstanding that the defendant was not notified of the proceedings; wherein there is a prima facie evidence that the defendant committed domestic violence and has caused undue hardship on the complainant as a result of the act. The court may order the defendant to pay emergency monetary relief after weighing him/her up. The court may even go a step further to make a restraining order against the defendant from having contact with any child if, it’s in the interest of the complainant. If the court thinks, after issue of a protection order, the complainant may suffer imminent harm, it may order for the arrest of the defendant.

Sec 11 gives the complainant right to apply for a variation or setting aside of the protection order and if the court is satisfied that there is good cause will waive the order.

Having exhausted the provisions enshrined in the proposed Bill, the SLCMP reiterates that from the time of publication of Part 1 of this article onto date, very little progress has been made to fast-tract the enactment of the Gender Bill. As stated in the previous article, the draft contains many relevant provisions that guarantees the rights of women and therefore should be treated with the utmost attention it deserves.

At present, there is no statute that governs domestic violence; cases of such nature are merely prosecuted under the Offences Against the Person’s Act of 1961. Moreover, prosecution is only tenable when the violence is of such a grave consequence relating to assault, battery, rape or wounding with aggravation. However, in cases of minute offences comprising elements of domestic violence such as economic abuse, harassment, intimidation, stalking to name but a few, there is no statute that protects victims from such abuse of perpetrators. The SLCMP therefore urges civil society groups, especially those concerned with gender related issues, to support the Bill by exerting pressure on all the authorities concern to enact it into law.

It also urges the Government to prioritize and not politicize issues affecting women. This Bill, it must be noted, has been reviewed thrice with no enactment. The SLCMP will continue to monitor progress and sensitize the public of this draft.

Beyond Rhetoric to the Establishment of the Sierra Leone National Human Rights Commission: Better Late Than Never

by ibakarr | Aug 11, 2016 | Uncategorized

Introduction

On 4 October 2006, Sierra Leone joined the dozens of countries on the continent that have national human rights commissions following the much awaited approval by Parliament of five people (Jamessina King, Yasmin Jusu Sheriff, Edward Sam, Joseph Stanley and Reverend Kanu) nominated by the President to serve as Commissioners. The Human Rights Commission (HRC) was established pursuant to Sec. 3(1) of the Human Rights Commission of Sierra Leone Act, 2004.

When the Truth and Reconciliation Commission (TRC) published its final Report in October 2004, it recommended for the establishment of a national human rights commission which “…can serve as both a watchdog and a visible route through which people can access their rights.” [1] This is particularly important given the fact that the decade long civil war was characterized mainly by the prevalence of human rights abuses. It, however, took two years for the Government to appoint the Commissioners. Nonetheless, it is better late than never!

This Article examines the legal and historical framework of the current Commission in the context of the post-conflict human rights challenges facing Sierra Leone. It discusses the difficulties entailed in trying to strike a balance between the Commission’s status as a government institution and a human rights protection body. The Article further draws parallels from other national human rights commissions in Africa. The Article ends by proffering suggestions for best practices as the Commission starts it work.

Historical Origins of the Commission

The establishment of the HRC reinvigorates Sierra Leone’s participation in the global struggle for the protection of human rights which started after the Second World War. The end of the Second World War in 1945 opened a fresh chapter in the struggle for the protection of human rights. Unlike the old chapter which was championed mainly by domestic legislations, this new era was spearheaded by the international community in the juridical person of the UN. This opening was symbolized by the adoption of the Universal Declaration of Human Rights and subsequent establishment of key human rights instruments and institutions.

Similarly in Sierra Leone, the end of the decade long civil war heralded new frontiers for human rights protection. The Lome Peace Accord negotiated by the Government of Sierra Leone and the Revolutionary United Front/Armed Forces Revolutionary Council (AFRC/RUF) proposed the establishment of the TRC. Later, the Special Court was established by virtue of UN Security Council Resolution 1315 of 2000. These institutions were meant to ensure accountability for the countless human rights abuses that took place during the war. Before then, the military junta known as the National Provisional Ruling Council established the National Commission for Democracy (NCD) by virtue of decree 15 of 1994. The NCD was mandated to educate Sierra Leoneans about “a sense of nationalism, patriotism and loyalty to the State…” Later on, NCD’s mandate was extended to the protection and promotion of human rights, and became the National Commission for Democracy and Human Rights (NCDHR).

In July 2004, the Sierra Leone Parliament voted to enact a law amending the aforesaid decree, leading to the establishment of the National Human Rights Commission. Through enacting the Human Rights Commission Act, the Sierra Leone Parliament recognized the status, powers and functioning of the institution. The said Act sets out the basic legal framework establishing the Commission and defining key issues such as human rights and their violations. The Act, however, does not define what the Commission is. The UN defines a national human rights body as a governmental institution established by virtue of a national legislature for the primary purpose of promoting and protecting human rights. That said, I will discuss the legal framework of the HRC as enshrined in the Act.

Mandate of the Commission

The Commission is charged with the responsibility to protect and promote human rights in Sierra Leone. To this end, it has the power to:

i. investigate allegations of human rights abuses on its own or reported by any person;

ii. promote human rights through public education, information, and cooperation with non-governmental bodies;

iii. advise government on Sierra Leone’s compliance with international obligations including mainstreaming of international law in domestic legislations and production of periodic reports;

iv. advise government on bills that may affect human rights;

v. monitor and document human rights violations in Sierra Leone;

vi. and produce an annual report on the human rights situation in Sierra Leone.

Challenges faced by the Commission

Although the extent of human rights abuse is not as glaring as it used to be during the war, nevertheless, challenges continue to exist. For example, most Sierra Leoneans are not even aware of the existence of the human rights recognition and protection provision laid out in Cap. 3 of the 1991 Constitution, which is currently being reviewed by the Law Reform Commission. The Human Rights Commission is coming in at an important time as they will be able to educate people after the review of the legislation.

Moreover the Sierra Leone legal system is notorious for its lengthy trials, and for being swamped with a backlog of cases, many of which involve peoples’ human rights, and the delay itself in many instances makes human rights violations considerably worse for being protracted. The Commission will be able to fast-track human rights cases, thereby reducing burden on the courts.

The Government of Sierra Leone is yet to fully integrate most of the international treaties it has signed onto. It also has a huge backlog of periodical reports. One is not certain whether continued existence of these problems is as a result of the lack of intention or capacity. Be that as it may, the Commission has the enormous task of ensuring the ‘domestication’ (as it is often referred to here) of several international laws such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The Commission also has a lot of work to do regarding timely submissions of reports on the International Covenant on Civil and Political Rights (ICCPR), CEDAW etc. ‘Domesticating’ and subsequently fulfilling the periodic reports of these instruments is the first step the Commission will take in ensuring their protection. Civil society groups will then monitor their implementation.

Furthermore, most of the bills that have been enacted recently have not contained an adequate human rights focus. As stated in their mandate, it is important that the Commission ensures that all bills that go through Parliament take cognizance of human rights concerns. This will enhance the protection of human rights.

Jurisdiction of the Commission

The Commission has competence over all human rights related cases within the territory of Sierra Leone. Individuals as well as juridical persons have standing before the Commission, which means that individuals can bring their own cases. The Commission also has the power to access government offices and facilities. Where the Commission is denied such access, it has the right to refer the matter to the Supreme Court which shall determine whether the reason proffered is substantial enough to deny the access.

With respect to its powers, the Commission enjoys the same powers as those vested in the High Court of Justice or a Judge including but not limited to compelling witnesses to appear in court, production of evidence relevant to a case, and even to request a witness that is resident overseas. Furthermore, the Commission has power to issue orders or directions to enforce its decisions. It also has the power to refer persons who have been held in contempt of the Commission to the High Court. Persons not satisfied with the decision of the Commission may seek appeal at the Supreme Court of Sierra Leone.

Independence of the Commission

In order to accomplish the mandate and enhance the exercise of their jurisdiction, especially in the face of the fact that human rights are primarily claimed against the Government, the independence of the Commission needs to be ensured. Therefore, the Act emphasizes that the Commission shall not be subject to the control or direction of any person or authority, except as it is otherwise stated in this Act. Further, the Act grants immunity to the Commissioners in the exercise of their duties. The Act also provides for representation of diverse groups within the Commission by having people from varied professional backgrounds and different sexes. Towards this end, the Act provides that there shall be at least two lawyers and two women. Moreover, once appointed, Commissioners are required to relinquish any existing position they hold, and to work as full-time, paid Commissioners. This provision is inserted so as to reduce the likelihood or appearance of bias or corruption on the part of Commissioners.

However, the independence of the Commissioners is undermined by the lack of express procedure regarding the reappointment of existing Commissioners after the end of the first five year term. According to the Act, the President appoints and Parliament approves, but the Act is, however, silent about reappointment of Commissioners. The fear is that, Commissioners may be under latent pressure during their first term if the reappointment procedures remain unclear. It seems likely that a government may only reappointment someone to a commission if that individual works mainly in their favour during the preceding term. It should not be the case that only people that are sympathetic to the government will be appointed like it is in the case of contract judges in our national court. Under Sierra Leonean laws, judges that have passed retirement age may be awarded contract by the President to continue serving as judges. This particular provision has continued to undermine the independence of the judiciary, given the fact that contract judges can only serve at the pleasure of the President, putting judges under pressure to stay in the good books of the executive to be awarded a contract. The HRC provisions should therefore be explicitly stated so as to ensure that it does not suffer political quagmire that the Sierra Leone judiciary is froth with.

Lessons from Elsewhere

Generally, civil society groups perceive governmental bodies responsible for the promotion and protection of human rights with great suspicion. However, starting in 1989, well before the adoption of the Paris Principles, there was a proliferation of national human rights institutions throughout Africa. This development posed serious challenges to human rights activists who have been used to challenging rather than collaborating with government for the protection of human rights. Lessons from national human rights commissions elsewhere in Africa show a mixed picture of successes and failures.

Many national human rights commissions were established by governments with appalling human rights records and lack of independent state institutions. For instance, the Nigerian, Sudanese and Togolese national human rights commissions were created by repressive regimes that aspired only to give human faces to their administrations. From inception most of them have had erroneous mandate, and enjoyed scrawny power, with phoney authority that limited their ability to do effective investigations, monitoring and publication of their findings. Some of them were held up at inception by legislations, rules of procedures, staffing, and funding which delayed the starting of operations. In some instances, persons with no prior experience in human rights work were appointed as commissioners. When work ensued, they focused mainly in urban areas. Some commissions hardly made public statements at all and even when they did they are inaccessible. On the occasions when they become outspoken or even functional, they are limited mainly to human rights education and tend to avoid politically sensitive issues. In Cameroon, Chad and Togo, the commissions became impotent institutions as a result of governmental pressure. Their commissioners were not inclined to delve into matters which involved politically triggered rights violations. In other countries such as Senegal and Benin where fairly liberal governments operate, commissioners were nevertheless less inclined to be vociferous regarding protection, especially the protection of human rights defenders.

Nevertheless, there were some commissions in Africa that were promising. The Commissions in Ghana, South Africa, and Uganda proved to be a potent force regarding human rights protection. They spoke out publicly against their governments’ acts and omissions that led to human right abuses. Furthermore, even some of the commissions that operated under repressive regimes recorded some successes. For instance, Togo the oldest national human rights commission in Africa carried out some useful work in the 1990s that led to a national conference, a new constitution and subsequently an arguably more open society. In Nigeria under the Abacha’s military junta, the national human commission served as catalyst for reforming institutions that were less political, such as the prisons, and also protected human rights defenders under attack by the military.

Recommendations

The establishment of the Sierra Leone National Human Rights Commission certainly marks another milestone in the struggle for the promotion and protection of human rights in post-conflict Sierra Leone. I use the word “struggle” because the post-conflict trend is not all that placid, the commission has serious challenges. This is evident in the fact that the current government is not mesmerized by human rights; it is yet to repeal the laws on seditious libel, the death penalty, and to establish the Victim’s Trust Fund as recommended by the TRC Report 2004. In fact, it is yet to publicly acknowledge the Report. To this end, it is likely that the Commission will face similar challenges that commissions elsewhere in Africa have faced. Post-conflict Sierra Leone cannot afford an impotent commission that will only serve as another white elephant project wasting tax payers’ money and those of foreign donors. In order for the Commission to be useful and serve the purposes for which it was created, it must be accorded absolute political and relative financial independence. The legal tools at its disposal must be reviewed at regular intervals to ensure that they continue to be relevant. The Commission’s leadership must display pragmatism and dynamism in dealing with politicians and the general public. They should also conduct their affairs in a transparent and accountable manner. Furthermore, the Commission should strengthen their public relations unit which should make sure enough publicity is given to its actions, and must make Commission documents accessible through a wide variety of media, including the internet. The Commission should also build a strong relationship with civil society groups. And above all, the Commission must be committed to responding to human rights violations, no matter who is the violator or victim and justice no matter who it is for or against .

The history of civil society’s response to national human rights organizations has been pragmatic, in that they have congratulated their successes and criticised them when they fail to measure up. The Sierra Leone Court Monitoring Programme in turn will be extending its monitoring activities to an evaluation of the Sierra Leone National Human Rights Commission when it starts operations.