by ibakarr | Aug 11, 2016 | Uncategorized
Customary Law, according to Black’s Law Dictionary is, a law consisting of customs that are accepted as legal requirements or obligatory rules of conduct. This law is confirmed as part of the laws of Sierra Leone by virtue of sec 170(2) of the 1991 Constitution, which recognizes the Common Law. The 1991 Constitution defines Customary Law as “… the rules of law, which by custom are applicable to particular communities in Sierra Leone.” In other words, customary law differs from place to place. Discrimination on the other hand is the unfair treatment of people because of their race, colour, sexual orientation, language, religion or other personal features.
Although Chapter 3 of the 1991 Constitution of Sierra Leone states that the fundamental Human Rights and Freedoms of every individual in Sierra Leone must be recognized and protected; and that sec 27 further states that “no law shall make any provision which is discriminatory either in itself or its effects, the practices in customary law, however, runs contrary to these provisions. In other words, women are seriously discriminated against under this law. Moreover, the provisions in the customary legal system are couched in such a way that women are always the principal victims of human right abuses. These provisions are contrary to international standards such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which states that “……..state parties condemn discrimination against women in all it forms and agree to pursue by all appropriate means without delay a policy to eliminate discrimination.”
To this end, this article examines the unequal treatment of women in customary law with regard to education, customary law marriage, divorce, succession, and illegal adjudication by chiefs. It concludes by proffering suggestions for reform.
Education
Art. 10 of CEDAW requires governments to offer women, on an equal basis with men, equality in education, including but not limited to the same conditions for career and vocational guidance; access to study at primary, secondary and tertiary levels and award of scholarship and study grant opportunities. However, customary practices widely discriminate against the girl child in the area of learning. Under customary law, it is accepted for a family to send male offsprings to school, and the female children stay at home. This typical customary practice is principled on the fact that the girl child should stay at home and be trained in basic household chores, so as to prepare them become suitable housewives. Even where they are sent to school, the environment is hardly conducive to foster effective learning; some of the facilities in schools discriminate against them, especially those who have reached puberty and are often subjected to sexual harassment. This has resulted in an overall low literacy rate among women compared to their male counterparts.
Customary Law Marriage
Under such marriage, a woman’s position is analogous in many respects to that of a minor. Women are denied equal rights before, during and after the dissolution of the marriage. Consultations over a prospective marriage by a potential suitor are often conducted with the woman’s father or the oldest surviving male relative, often without recourse to the woman or girl in question. As if adding insult to injury, once such a marriage is contracted, it is not considered as a partnership between husband and wife. That is to say, the wife has little or no say in terms of decision making in the home. Her role in such marriage is largely to take care of the domestic chores and the children. She is relegated to a subordinate role and makes her presence known only when required by the husband. In that respect, she becomes subservient to her husband at all times. Dereliction from her duties may lead to chastisement, which may be in the form of battery and sometimes divorce.
Polygamy as a traditional practice has been out rightly condemned by the monitoring body of the Committee on the Elimination of all forms of Discrimination Against Women (CEDAW) which states that “polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences on her dependants that such marriages ought to be discouraged and prohibited.”
Divorce
Article 16 of CEDAW and Article 23 of the International Covenant on Civil and Political Rights (ICCPR) recognize the right to equality in marriage. This includes the same rights and responsibilities during and at its dissolution. Contrary to this, women under customary law are divorced by their husbands as and when they like. Women may be divorced for adultery, whilst a man can marry as many wives as he so desire. Moreover, there is no provision in customary law for paying care and maintenance to the wife or child prior or subsequent to a divorce.
Succession
In the case of property devolution, the general practice is that, the widow herself is regarded as a property to be inherited together with the deceased property on the death of the husband. In the event the wife refuses to be inherited by one of the husband’s relations, only her personal belongings will be given her. If she, however, marries a member of the family of her late husband, she may enjoy whatever benefits the new husband derives from the estate.
Generally under customary law, the widow is not entitled to take out letters of administration, such rights are given to the eldest brother, the eldest son or the eldest surviving male in the deceased’s family. In modern customary societies, if the wife succeeds to get any property at all, she will only be given one-third of it. On the other hand, if the wife predeceases the husband, the latter automatically becomes the sole heir to everything. Another aspect of succession under customary law is with regard to who has right over the children. Generally, children born in marriage are ’owned’ by the husband and in the event of him predeceasing the wife, such guardianship/ownership passes on to the head of the husband’s family.
Illegal Adjudication by Chiefs on Women
Women face discrimination and inequality in laws, customs, and in rulings by chiefs and local officials primarily in marriage, divorce, inheritance, and property devolution. The consequences are devastating for women as it further entrenches them into poverty.
Furthermore, it forces some to stay in violent relationships and contributes to live in unhappiness. Moreover, it severely compromises women’s ability to properly care for themselves, and their children.
Laws governing marriage, property and inheritance impacts women in every facet of their lives. Yet women find the process of pursing remedies related to these human rights inaccessible. Their unfamiliarity with the law and procedure leave a lot of room for manipulation by those administering the law. In some cases, chiefs unlawfully impose fines and even detain them in their ostensible native prisons, contrary to Sierra Leone laws which prohibit chiefs from imposing fines or imprison people. Cases involving chiefs adjudicating on issues that pertains to women often results in unlawful rulings, humiliation and at times, imprisonment, trumped up charges and exorbitant fines.
RECOMMENDATIONS .
The above state of affairs is not helped by the fact that sec27 [4] d and e of the 1991 Constitution makes room for discriminatory practices against women in the area of marriage, divorce, devolution of property on death and customary law. The said provision states that “it shall not apply to any law that makes provision for adoption, marriage, divorce, burial, devolution of property on the death and customary law. It is therefore ironic to see discriminatory laws enshrined in the 1991 Constitution. In this light, this provision should be expunged because the areas mentioned are the very areas in which women are treated unequally.
Additionally, it is submitted that this provision is in need of radical amendment and/or repeal as discrimination against women in customary law is repugnant to equity, good conscience and natural justice. Moreover, it contravenes Article 2 [f] of CEDAW which states that, State Parties must undertake “all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women.”
Government should endeavour to bring customary law in line with the general law. In view of the fact that from examination of documents and interviews conducted, it is obvious that customary law, which governs the bulk of the populace, is more discriminatory than civil law. Government must also ensure that customary courts operate within the ambit of the general law so that these courts will uphold basic rules of law being practiced by the formal courts.
Civil society groups should be robust in advocating for the abolition of discriminatory customary laws. These groups should monitor and report on institutions that uphold discriminatory practices. They should also galvanize their effort to advocate for the mainstreaming of CEDAW in our municipal laws.
by ibakarr | Aug 11, 2016 | Uncategorized
If the Prosecution can show that the Accused persons directly ordered, planned or instigated the criminal acts perpetrated by others, then they co uld be found directly liable. However, if they cannot prove this, the only way in which the Prosecution can prove that the Defendants are responsible, is indirectly, through the doctrine of ‘command responsibility’.
In all cases before the Special Court, the issue of command responsibility is of crucial importance. This article explains the requirements that the Prosecution has to fulfil in order to establish that Accused persons should be held liable by virtue of command responsibility, and tracks the evidence thus far presented in the trial of the three CDF (Civil Defence Force) Accused.
Command Responsibility as a Legal Concept
It has been an important legal precept for thousands of years that leaders can be found criminally liable for the actions of their subordinates, if they can be found to be personally guilty for those actions. Today, command responsibility is well established in international criminal law, recognised in Article 28 of the ICC Statute, Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute.
The Statute of the Special Court follows such precedents in its Article 6(3), which states that
“[t]he fact that any of the acts… [were] committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
Thus in order to show that each CDF Accused can be held liable by virtue of command responsibility, the Prosecution need to show three things. First, they must show a superior-subordinate relationship. Secondly, the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime. Third, the superior must have failed to take necessary and reasonable action to prevent the crime or punish the perpetrator.
Special Court Courthouse
Superior-Subordinate Relationship
When deciding the first of these, the Court can look beyond the commander’s theoretical power into the commander’s actual power. Subordination may be direct or indirect, the latter of which is often a question of psychological pressure. Indeed, the principle extends beyond military commanders to include civilian commanders (with important ramifications for the Accused Kondewa if he denies military involvement). The crucial factor is the degree of authority: whether the superior is in a position to take reasonable measures to attempt to prevent or punish. Control must be ‘effective’.
Evidence has been tendered which both supports and undermines the proposition that the three CDF Accused were in positions of command responsibility. Prosecution witness TF2-222 recalled how in November 1997 at ‘Base Zero’ the alleged CDF headquarters in Talia (located in the South of Sierra Leone), “everyone was a commander”, and commented that there was no effective command structure in place. As he remembered it, anyone who could command ten or fifteen men would order them to do as he chose. Further to this, witness TF2-048 alleged under cross examination that in Tongo Field, Liberian Kamajors and Mende speaking Kamajors were acting separately, “without any control”. Both of these testimonies go to the Defence proposition that attacks were not systematic as there was not a superior-subordinate relationship such as to warrant liability for command responsibility.
However, other evidence indicates otherwise. One witness testified to Norman’s authority, noting how Norman sidelined or thwarted proposals from the War Council, and generally excluded its members from meetings where commanders were given instructions. Another witness suggested that Norman and Kondewa continuously undermined the War Council, going so far as to suggest that they incited the Kamajors to molest members of the Council. Witness Albert Nallo, described a ‘Holy Trinity’ of leadership at Base Zero, with Norman as ‘God’, Fofana as ‘the Son’ and Kondewa as ‘the Holy Ghost’. According to Nallo the War Council was directly answerable to Norman, and all orders to the war front were given by Norman, sometimes with the knowledge and consent of Fofana and Kondewa. In such ways, the Prosecution tried to show that the three Accused persons’ control over subordinates was effective. The Defence tried to undermine this superior-subordinate relationship first by attacking the Nallo’s personal credibility, and then by suggesting that Norman’s superior status was in any event only temporary, and that it was mostly President Kabbah who was in charge.
Expert witness Colonel Richard Iron testified as a specialist in military analyses of non-conventional warfare, having written a report on command structure within the CDF. Iron observed that command was strongly effective at high levels, although it was not so effective at ground level, and was quite ineffective in certain distant areas of the country, particularly the north and east. This was because communication in these areas was mostly by motorbike or foot, there being few radios. However, he found that there was a great deal of personal loyalty to Norman, aided by the initiation ceremonies, supporting the Prosecution’s case. The Defence pointed out that Iron had only spent a total of 14 days in Sierra Leone gathering information, and further suggested that his conclusions lacked independence and were based upon those of the Prosecutor. Through these means the Defence sought to show that there was no superior-subordinate relationship such as would be necessary for command responsibility.
‘Knew or had reason to know’
The second issue in command responsibility is notice of offences. Under this doctrine, if the Prosecution cannot prove that a Defendant actually knew about the offences, it is enough to show that he was in possession of information that would put him on notice of the risk of offences, such that he should have carried out thorough investigations to identify whether offences were taking place. Whether the Accused should have had knowledge must be tested by considering what a reasonable person in the same general position as the Accused should have known.
The Court therefore had to look at capacity for communication, which varied considerably across the country. One witness testified that communication was slow between Base Zero and Tongo, a diamond-mining area in the East of Sierra Leone, far from the alleged CDF headquarters, at times taking up to five days to transmit information. This supported the Defence’s contention that the leadership at Base Zero could not reasonably have known that atrocities were being committed in certain areas. Defence counsel cross-examined witnesses as to whether they had reported incidents of violence to the authorities at the time. In many instances witnesses had made no such reports, allegedly either because there was no-one in authority to report them to, or for reasons of fear.
However, other witnesses suggested that communication with other locations was better and that the three Accused did indeed know or have reason to know of atrocities. In establishing this, the Prosecution relied heavily on ‘situation reports’ by commanders in the field, such as that compiled by witness Borbor Tucker, commander of the ‘Death Squad’, who allegedly reported back to Norman the fact that many civilians had died as human shields in Moyamba in 1997.
In one particularly gruesome testimony, a witness described how Kamajors in Gambia, Bonthe district, split open the stomachs of three pregnant women, removed the foetuses, cut off their heads, stuck these on stakes, and placed them in a field in which Norman landed with a helicopter. According to the witness, this was so that Norman would see them. The witness alleged that when Norman landed, he gave medicine to local Kamajors, who went dancing through the streets singing that they would prepare medicine from the parts of pregnant women. By showing the public nature of such behaviour, and the close proximity of Norman when it took place, the Prosecution presented its case that Norman knew or should have known about atrocities.
Failed to take necessary and reasonable action to prevent or punish
The third element of command responsibility requires that the commanders keep training programmes updated, thoroughly investigate allegations and bring charges where there is sufficient evidence.
According to several witnesses, the Kamajors had unwritten rules banning the looting, killing and raping of civilians, taught during initiation into the Kamajor society. This suggests that some action had been taken to prevent the perpetration of atrocities.
However, other evidence suggests that even if rules were in place to prevent atrocities, the
three Accused persons failed to take the necessary action to enforce such rules. Nallo testified that one of the War Council’s main purposes was to recommend punishments, but that it was up to the three Accused persons to decide which of these punishments were put into action. Often no punishment was meted out.
Expert witness Colonel Iron suggested that on some levels discipline was harshly enforced within the CDF, while at other levels it was not. At Base Zero, when it came to military strategy it seemed that there was tight discipline and were strict punishments, whereas other issues such as ‘wrongdoings’ went un-investigated and unpunished. In his opinion this culture of indiscipline was transferred to the battlefield. On the battlefield in Bo, for example, he noted the lack of discipline among combatants, who, two days after the town was captured, continued to fire weapons, endangering both civilians and combatants.
Conclusion
The Prosecution seem to have presented a strong case for command responsibility. However, it appears that the Prosecution’s ability to prove such responsibility may differ considerably across the country, due to poor communications. Additionally, they may be able to show command responsibility for certain Accused more easily than others. Moreover, the Defence have challenged the reliability of testimony presented by the Prosecution, and this may affect the weight which the judges accord to it. It remains to be seen what witnesses the Defence will now be able to bring to support their own cases.
by ibakarr | Aug 11, 2016 | Uncategorized
In 2005 the Sierra Leone Court Monitoring Programme (SLCMP) published an article critical to the Government’s involvement in gender issues. The article addressed provisions in our statute books that reinforce inequality between the sexes. It touched on sections in the 1991 Constitution, the Citizenship Act of 1973, the Christian Marriage Act, Cap 95, the Mohammedan Marriage Act (Cap 96), the Administration of Estate Act, (Cap 45), the Matrimonial Causes Act (Cap 102), the Criminal procedure Act and Customary Law that reinforce discrimination against women in Sierra Leone. The article concluded with proffered recommendations directed at the Government to repeal or amend the sections that promote gender disparity in Sierra Leone.
In June 2005, the Parliamentary Committee on Human Rights in collaboration with the Law Reform Commission drafted a gender bill. The Draft Bill sponsored by the United Nations Development Programme touched on all the areas under sec 27(4) d that permits discriminatory practices against women. It dealt with the issue of marriage, divorce, property devolution and customary law. It even goes a bit further to inculcate a domestic violence act. In view of that, this current article does not delve on the Bill. Rather, it gives a synopsis of the first two areas (Intestate Succession and Matrimonial Causes) that the Draft covers, examining the provisions that put women in an advantaged position. In addition it discusses the status of the draft and proffers recommendations aimed at ensuring the swift enactment of the Bill.
The Intestate Succession Act, 2005
The proposed Intestacy Succession Act, 2005 was to provide for intestate succession and other inheritance related matters. It repeals sec 26 of the Christian Marriage Act, (Cap 95), which states that the law governing all natives that are a party to a Christian marriage in the area of property is customary law. Customary law as is well known allows men to retain all properties on the dissolution of the marriage and further regard women as chattels to be inherited together with the properties of the deceased husband. In addition, it repeals sec 9(1) of the Muslim Marriage Act (Cap. 96), which provide that if any person being a party to a Mohammedan marriage or being a Mohammedan but unmarried and dies intestate his estate both real and personal shall be distributed in accordance with Mohammedan law. Apparently the Mohammedan law prohibits women to act as administratrix; the persons entitled to take out letters of administration are the eldest son, the eldest brother of the intestate if of full age according to Muslim law or the official administrator. However sec 3 of this draft bill accords women the right to apply for letters of administration in respect of the intestate’s estate.
Additionally, it repeals the Second Schedule of the Administration of Estates Act (Cap 45), which discriminates against women in the distribution of an intestate’s estate. On the other hand, it gives absolute right to the surviving spouse regardless of sex together with the surviving child to inherit the personalty and realty of the intestate. Sec 5 of Cap 45 provide for the father of the intestate to succeed the whole of his estate if the deceased is survived by parents only. However, the proposed Bill provides that three fourth of the intestate’s estate shall devolve to the parents equally. Sec 17 of the propose Bill further makes it an offence to evict a surviving spouse/child from the deceased home before the distribution of the estate. The sanction levied for such an offence is a fine of Le 500,000.00 or imprisonment not exceeding one year.
Moreover sec 18 of same provide for current/former spouse(s) who is yet to be remarried and is a dependent of the testator. This spouse whether current/former can apply to a court of law in the event a testator fails to provide reasonably for him/her in the Will. The draft grants power to the court to make provision as it seems fit for the benefit of the surviving spouse. This also applies to the child and other dependents of the testator.
The Matrimonial Causes Act 2005
The proposed Bill amends sections of the Matrimonial Causes Act (Cap.102). It addresses issues relating to divorce and strives to create equality between the parties to the divorce. It touched on divorce, child support, spousal support and custody orders. It provided that the court could only grant a petition for divorce in situations wherein irreconcilable breakdown of marriage is established. Breakdown of marriage can be established by adultery, desertion, physical and mental cruelty, lack of maintenance and failure to consummate marriage. However, the court owes a duty to inquire into the facts allege by the petitioner and the respondent before granting a petition for divorce. The court also has right to restrict a petition for divorce presented within 2 years of the marriage unless such application is made on the ground of substantial hardship. Contrary to this, sec 3 of (Cap 102) makes a provision that restrict the presentation of a petition to divorce until 3 years from the date of marriage. It further states in sec 7 that the court can dismiss a petition for divorce if it is found that the petitioner condoned the cruelty. Under the proposed Bill, the petitioners conduct is no bar to divorce.
Part 3 of the draft Bill provides for application for a decree of nullity in respect of void and a voidable marriage. A marriage upon application by the petitioner could be pronounce void if there is proof of bigamy, mental incapacity, lack of consent and below marriageable age. In such a case the court shall not grant a petition until proof that the petitioner at the time of marriage was ignorant of the allege facts, that proceedings was instituted within a year of the marriage and that sex did not take place since discovery of existence of the grounds for decree. An application will be made for decree of nullity in respect of voidable marriages if no consummation, venereal disease of a communicable nature and pregnancy is established.
Furthermore, the draft Bill by virtue of sec 19 grants powers to the court pending suit or subsequent to a divorce to make orders, award maintenance or financial provision as it thinks just and equitable to either party to the marriage. The condition precedent is that, the court must have considered the standard of living of the parties and their circumstances. The court by virtue of sec 24 can also order one party to pay the other a sum or money or convey to the other movable or immovable property as part of settlement property in lieu or as part of financial provision. Sec 23 provides for collateral in the event the court is convinced that the party ordered to make payment is unlikely to pay. Sec 28 provides that a party to the marriage shall cease to be entitled to financial provision for him/her if he/she is remarried or is dead. In addition, an order for care, custody or support of a child shall be terminated when the child reaches the age of the majority.
Having looked at the area of succession and matrimonial causes it could be envisioned that there are provisions if enacted into law that will make a positive impact in the life of women. Therefore it is the mandate of every sierra Leonean woman to do everything humanely possible to ensure the passing of this law. With regards to the remaining aspects; customary law and domestic violence they will be extensively dealt with in subsequent publications.
The Current Status of the Bill
In as much as the SLCMP commends the Government initiative in trying to forestall discrimination against women, yet more needs to be done with regards to the draft Bill. Since the proposed Bill was drafted 15 months ago it is still
far from being enacted into law. At present the Bill is yet to be put before parliament for deliberations and subsequent ratification. Having interviewed various stakeholders including women organizations and dignitaries within the Parliamentary Human Right Committee the SLCMP thinks there is a force to reckon. As both sides are throwing the ball in the court of the other as the reason for the delay in enacting the Bill. The reason given are numerous some of which are that women shows absolutely no interest to support the bill, that the GoSL is always reluctant in passing laws pertaining to women and that women groups would be willing to lobby parliament if they are aware of the Bill but as it is few have heard but do not know what it entails, etcetera.
That said the SLCMP has taken the charge to sensitize the Sierra Leonean populace by way of writing and advocating through the media for the draft to be passed into a law. It urges women organizations and civil society to make the Bill an election issue by lobbying parliament to pass the bill into law. It reminds the GoSL that the time has come to treat women issues with the significance it deserves as women and girls were one of the group of people that suffered the brunt of the decade long civil war. The TRC, under its imperative recommendations submitted that sec 27(4) d and e of the 1991 Constitution be repealed. In the interim the SLCMP will continue to monitor progress of the draft Gender Bill.
by ibakarr | Aug 11, 2016 | Uncategorized
Reparation is one of the main approaches societies that have gone through violent conflict or repressive regimes use to enhance reconcilaition, healing, and sustainable peace. The concept itself is not new, it has been used by communities for centuries. It is also used in legal, ethical, political and religious circles. In legal terms, reparation refers to the obligation of the perpetrators to repair the harm done to the victims of an injustice. Furthermore, a government may also be legally responsible for reparation for breaches committed either by them or their agents.
Reparation is a basic human rights. Every major international human rights instrument do contain provisions for reparation of victims of violent conflict and repressive regime. International law obliges states to provide victims of human rights to effective remedy in an event of breach. Some of these laws include Art. 8 of the Universal Declaration of Human Rights, Art. 2.3 of the International Covenant on Civil and Political Rights, Art. 14 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Arts 7 and 21 of the African Charter on Human and Peoples’ Rights. Further, on 16 December 2005, the United Nations General Assembly after 16 years of research and consultation adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation. Sierra Leone was part of this process, and it has also ratified the above named instruments.
In addition, Sec 28(1) of the 1991 Constitution of Sierra Leone guarantees victims of human rights violations to seek remedy in the Supreme Court of Sierra Leone. Moreover, Art. XXIX of the Lome Peace Agreement provided that the Government established effective remedy for victims of the conflict. Sec 15(2) of the Truth and Reconciliation Commission (TRC) Act 2000 mandated the Commission to make recommendations that would respond to victims needs and enhance healing and reconciliation. To this end, when the TRC Report was published in October 2004, after two years of work, it recommended that reparation be provided for victims of the conflict. The reparation is meant “to provide redress to the victims of human rights violations.” [i] It is also intended to rehabilitate victims by way of providing them with “…service packages and symbolic measures which acknowledge the past and the harm done to victims and gives [them] the opportunity to move on.” [ii] In essence, the measures to be taken were meant to restore the dignity of the victims since they have been incapacitated by the war. Most of the victims of the war, were fully able to fend for themselves prior to their abuse. However, the war tremendously diminished their capacity to be self reliant, especially those that were physically handicapped. Of importance also, is the need to acknowledge symbolic gesture. This will tremendously enhance healing and reconciliation, which is of utmost necessity for sustenable peace.
One of the key component of Sierra Leone’s reparation programme is the establishment of a victims’ trust fund. The Government’s National Commission for Social Action (NaCSA) was recommended to be the implementing agency. In March 2005, most of the speakers during National Victims Commemorations Conference urged for the implementation of the reparations programme, including the establishment of the Trust Fund. To that end, an Action Plan Monitoring Group was established. This group is yet to record any achievement apart from the numerous meetings being held with various stakeholders, including the recent meeting held with Vice President Berewa. The purpose of the meeting held with the Vice President was to gauge the Government’s plan regarding the implementation of the reparations programme. Unfortunately, the Vice President did not tell them anything new but the usual rhetoric, that the timely implementation of the reparations programme is contingent on the availability of resources. This has been the excuse of the Government since the Report was published. Earlier, the government’s Whitepaper in response to the TRC report tacitly acknowledged the recommendation for reparation, anchoring its implementation largely on the availability of resources. However, as the Sierra Leone Court Monitoring Programme has argued before that, the most important resource required to facilitate the implementation of the reparations programme, is governmental commitment to the process. This has been conspicuously absent. The Government only approved NaCSA’s role as the lead agency in the implementation of the reparations programme in August 2006, nearly two years after the Commission so recommended. Nevertheless, the people of Sierra Leone would want to know if this is the Government’s official endorsement of the TRC recommendations for reparations. If that is the case, it will only be recorded as a welcome news.
In a recent broadcast over the UN Radio breakfast show, the Deputy Commissioner of NaCSA stated that they have already started implementing aspects of the reparation. While the SLCMP lauds the effort of the Commission regarding their contribution to post-conflict reconstruction, it also want to state that there is a distinction between routine governmental responsibility and reparations. The repainting of schools and hospitals is basically a routine governmental responsibility; while allowing victims (whose capacity to earn for themselves was diminished) and their families access to education and health facilities free of charge may be considered as reparation.
As the reparation programme stands now, there is so much to be done to effect any changes. Most of the physically handicapped victims have been relocated. However, the Government still need to do more; the victims need free access to medical facilities, their children need to be given free quality education, those who can no longer work need to be given their monthly pension, and those who can, needs to be capacitated etc. However, as the Programme stands now, there is so much to do. The SLCMP, therefore, wants to urge the Government and all stakeholders to put their hands on deck so as to speed up the implementation of the reparations
[i] TRC Report, Vol. 2, Executive Summary, Para 80 p. 20
[ii] Ibid Reparations, Para 23 p. 232
by ibakarr | Aug 11, 2016 | Uncategorized
If the Prosecution can show that the Accused persons directly ordered, planned or instigated the criminal acts perpetrated by others, then they co uld be found directly liable. However, if they cannot prove this, the only way in which the Prosecution can prove that the Defendants are responsible, is indirectly, through the doctrine of ‘command responsibility’.
In all cases before the Special Court, the issue of command responsibility is of crucial importance. This article explains the requirements that the Prosecution has to fulfil in order to establish that Accused persons should be held liable by virtue of command responsibility, and tracks the evidence thus far presented in the trial of the three CDF (Civil Defence Force) Accused.
Command Responsibility as a Legal Concept
It has been an important legal precept for thousands of years that leaders can be found criminally liable for the actions of their subordinates, if they can be found to be personally guilty for those actions. Today, command responsibility is well established in international criminal law, recognised in Article 28 of the ICC Statute, Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute.
The Statute of the Special Court follows such precedents in its Article 6(3), which states that
“[t]he fact that any of the acts… [were] committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
Thus in order to show that each CDF Accused can be held liable by virtue of command responsibility, the Prosecution need to show three things. First, they must show a superior-subordinate relationship. Secondly, the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime. Third, the superior must have failed to take necessary and reasonable action to prevent the crime or punish the perpetrator.
Special Court Courthouse
Superior-Subordinate Relationship
When deciding the first of these, the Court can look beyond the commander’s theoretical power into the commander’s actual power. Subordination may be direct or indirect, the latter of which is often a question of psychological pressure. Indeed, the principle extends beyond military commanders to include civilian commanders (with important ramifications for the Accused Kondewa if he denies military involvement). The crucial factor is the degree of authority: whether the superior is in a position to take reasonable measures to attempt to prevent or punish. Control must be ‘effective’.
Evidence has been tendered which both supports and undermines the proposition that the three CDF Accused were in positions of command responsibility. Prosecution witness TF2-222 recalled how in November 1997 at ‘Base Zero’ the alleged CDF headquarters in Talia (located in the South of Sierra Leone), “everyone was a commander”, and commented that there was no effective command structure in place. As he remembered it, anyone who could command ten or fifteen men would order them to do as he chose. Further to this, witness TF2-048 alleged under cross examination that in Tongo Field, Liberian Kamajors and Mende speaking Kamajors were acting separately, “without any control”. Both of these testimonies go to the Defence proposition that attacks were not systematic as there was not a superior-subordinate relationship such as to warrant liability for command responsibility.
However, other evidence indicates otherwise. One witness testified to Norman’s authority, noting how Norman sidelined or thwarted proposals from the War Council, and generally excluded its members from meetings where commanders were given instructions. Another witness suggested that Norman and Kondewa continuously undermined the War Council, going so far as to suggest that they incited the Kamajors to molest members of the Council. Witness Albert Nallo, described a ‘Holy Trinity’ of leadership at Base Zero, with Norman as ‘God’, Fofana as ‘the Son’ and Kondewa as ‘the Holy Ghost’. According to Nallo the War Council was directly answerable to Norman, and all orders to the war front were given by Norman, sometimes with the knowledge and consent of Fofana and Kondewa. In such ways, the Prosecution tried to show that the three Accused persons’ control over subordinates was effective. The Defence tried to undermine this superior-subordinate relationship first by attacking the Nallo’s personal credibility, and then by suggesting that Norman’s superior status was in any event only temporary, and that it was mostly President Kabbah who was in charge.
Expert witness Colonel Richard Iron testified as a specialist in military analyses of non-conventional warfare, having written a report on command structure within the CDF. Iron observed that command was strongly effective at high levels, although it was not so effective at ground level, and was quite ineffective in certain distant areas of the country, particularly the north and east. This was because communication in these areas was mostly by motorbike or foot, there being few radios. However, he found that there was a great deal of personal loyalty to Norman, aided by the initiation ceremonies, supporting the Prosecution’s case. The Defence pointed out that Iron had only spent a total of 14 days in Sierra Leone gathering information, and further suggested that his conclusions lacked independence and were based upon those of the Prosecutor. Through these means the Defence sought to show that there was no superior-subordinate relationship such as would be necessary for command responsibility.
‘Knew or had reason to know’
The second issue in command responsibility is notice of offences. Under this doctrine, if the Prosecution cannot prove that a Defendant actually knew about the offences, it is enough to show that he was in possession of information that would put him on notice of the risk of offences, such that he should have carried out thorough investigations to identify whether offences were taking place. Whether the Accused should have had knowledge must be tested by considering what a reasonable person in the same general position as the Accused should have known.
The Court therefore had to look at capacity for communication, which varied considerably across the country. One witness testified that communication was slow between Base Zero and Tongo, a diamond-mining area in the East of Sierra Leone, far from the alleged CDF headquarters, at times taking up to five days to transmit information. This supported the Defence’s contention that the leadership at Base Zero could not reasonably have known that atrocities were being committed in certain areas. Defence counsel cross-examined witnesses as to whether they had reported incidents of violence to the authorities at the time. In many instances witnesses had made no such reports, allegedly either because there was no-one in authority to report them to, or for reasons of fear.
However, other witnesses suggested that communication with other locations was better and that the three Accused did indeed know or have reason to know of atrocities. In establishing this, the Prosecution relied heavily on ‘situation reports’ by commanders in the field, such as that compiled by witness Borbor Tucker, commander of the ‘Death Squad’, who allegedly reported back to Norman the fact that many civilians had died as human shields in Moyamba in 1997.
In one particularly gruesome testimony, a witness described how Kamajors in Gambia, Bonthe district, split open the stomachs of three pregnant women, removed the foetuses, cut off their heads, stuck these on stakes, and placed them in a field in which Norman landed with a helicopter. According to the witness, this was so that Norman would see them. The witness alleged that when Norman landed, he gave medicine to local Kamajors, who went dancing through the streets singing that they would prepare medicine from the parts of pregnant women. By showing the public nature of such behaviour, and the close proximity of Norman when it took place, the Prosecution presented its case that Norman knew or should have known about atrocities.
Failed to take necessary and reasonable action to prevent or punish
The third element of command responsibility requires that the commanders keep training programmes updated, thoroughly investigate allegations and bring charges where there is sufficient evidence.
According to several witnesses, the Kamajors had unwritten rules banning the looting, killing and raping of civilians, taught during initiation into the Kamajor society. This suggests that some action had been taken to prevent the perpetration of atrocities.
However, other evidence suggests that even if rules were in place to prevent atrocities, the
three Accused persons failed to take the necessary action to enforce such rules. Nallo testified that one of the War Council’s main purposes was to recommend punishments, but that it was up to the three Accused persons to decide which of these punishments were put into action. Often no punishment was meted out.
Expert witness Colonel Iron suggested that on some levels discipline was harshly enforced within the CDF, while at other levels it was not. At Base Zero, when it came to military strategy it seemed that there was tight discipline and were strict punishments, whereas other issues such as ‘wrongdoings’ went un-investigated and unpunished. In his opinion this culture of indiscipline was transferred to the battlefield. On the battlefield in Bo, for example, he noted the lack of discipline among combatants, who, two days after the town was captured, continued to fire weapons, endangering both civilians and combatants.
Conclusion
The Prosecution seem to have presented a strong case for command responsibility. However, it appears that the Prosecution’s ability to prove such responsibility may differ considerably across the country, due to poor communications. Additionally, they may be able to show command responsibility for certain Accused more easily than others. Moreover, the Defence have challenged the reliability of testimony presented by the Prosecution, and this may affect the weight which the judges accord to it. It remains to be seen what witnesses the Defence will now be able to bring to support their own cases.
