by ibakarr | Aug 11, 2016 | Blog
October 2006 will be two years since the Truth and Reconciliation Commission published its findings. Some of the main findings included the following: that the war was caused by ‘bad governance, endemic corruption and the denial of basic human rights which created the deplorable conditions that made the war inevitable.’ The Report specified that young people were both perpetrators and victims; ‘women and girls suffered uniquely’, ‘chidren were singled out for some of the most brutal violations of human rights…most of the factions forced children into combat.’ The Commission also pointed fingers at external actors such as Libya and the National Patriotic Front of Liberia as key contributors to fueling the war.
In a bid to prevent another war, address impunity, respond to the needs of the victims and promote healing and reconciliation, the Commission recommended, inter alia, for the institution of reforms to protect human rights, establish the rule of law, security, promote good governance, reconciliation, and provide reparation for the victims. Although the recommendations call for non-state actors and foreign governments to contribute to the process, it is, however, important to note that the implementation of the bulk of the recommendations is the responsibility of the Government of Sierra Leone (GoSL). Furthermore, it is a fact that money is a necessary ingredient in the implementation process, nontheless, the most important resource is the political commitment of the GoSL. Unfortunately, this has not been forthcoming. For example, it took the government almost five months to issue the Whitepaper in response to the TRC Report. The response only manifested the government’s unwillingness to implement core recommendations of the TRC Report, such as repealing the death penalty and decriminalizing libel. Furthermore, just two months after the TRC issued its Report, ten people were sentenced to death. GoSL deliberately failed to issue a moratorium on all pending death sentences as recommended by the TRC Report. The question here is, why is the GoSL only enthusiastic about upholding laws that are averse to public interest?
Moreover, the Report recommended that the GoSL should provide reparation for victims. Part of the reparation should be for the establishment of a victims’ trust fund. While this is yet to happen, the government hardly deliver on aspects of the reparation that are even considered as routine governmental responsibilities; such as enhancing access to clean drinking water, regular electricity, affordable health facilities, and good roads.
With regards to legal reform, results have been too slow and far in between. The centrality of legal reform in consolidating the peace cannot be over emphasized, given the fact that distrust of the judicial system was one of the root causes of the war. Before the end of last year, civil society groups working on TRC follow-up hired the services of Sierra Leonean lawyers to draft an Omnibus Bill. The Bill was shared with some officials in the Government’s Law Officers Department. Furthermore, the Bill was presented to members of the Human Rights Committee who were expected to sponsor the Bill to be passed into law. Unfortunately, the Bill was never read in parliament. Though the recent governmental mandate to the Law Reform Commission (LRC) is deemed overdue, it is, however, a welcoming development.
The SLCMP wants to remind the GoSL and other stakeholders that the TRC recommendations did not emerge from oblivion; it is a creation of the Lome Peace Agreement. Therefore failing to implement it fully can only be seen as reneging on the terms agreed upon at Lome. Furthermore, the mere silence of guns does not fully signify peace. The presence of peace involves many things, including fully implementing peace agreement, instituting meaningful reforms, fulfilling campaign promises and combating the causes of the conflict. It is sad to note that, some of the root causes of the war still exist. That said, the SLCMP will like to encourage the GoSL to be the example of the changes Sierra Leoneans are craving for.
by ibakarr | Aug 11, 2016 | Uncategorized
Welcome to the Thirteenth Edition of the Sierra Leone Court Monitoring Programme (SLCMP) newsletter, the Monitor. In the last edition, we focused largely on advocating for Mr. Taylor’s trial to take place here in Sierra Leone. As an organization, we still maintain our position since the reasons for taking it have not changed. Despite the fact that other civil society groups within and without Sierra Leone added their voices, the Special Court and the international community have continued to ignore their calls. What is more disheartening is the Government of Sierra Leone’s (GoSL) continued silence over the whole issue, Not withstanding the fact that the Sierra Leone Parliament unanimously passed a resolution requesting for the trial to take place at the Special Court premises in Freetown.
It is important that the Special Court be seen to be an independent court. This does not, however, imply that GoSL should not take part in the non-judicial aspects of the Court. The Special Court was established pursuant to an agreement between the GoSL and the United Nations. Ensuring the implementation of the non-judicial aspects of the Court does not in anyway constitute encroaching on its independence. The transfer of Mr. Taylor’s trials to The Hague is purely a political decision and therefore, the GoSL was expected to play a leading role since the trial and its outcome will affect its people the most. Disappointing, this has not been the case.
The GoSL’s continued apathy towards the non-judicial aspects of the Special Court has also resulted in the appointment of a non-Sierra Leonean in the position of Deputy Prosecutor. Based on the Agreement (Art. 3 (2)) between the GoSL and United Nations, the Deputy Prosecutor of the Special Court was supposed to be a Sierra Leonean. However, the clause was changed to a GoSL appointee. This was how the present Prosecutor, Desmond de Silva, QC, QC came to be appointed the Deputy Prosecutor. It was a major blunder, not because of the appointment of Mr. de Silver, but because the clause was changed. Furthermore, the GoSL abdicated its responsibility to rectify this gaffe when Mr. de Silva was appointed the Prosecutor after Mr. David Crane left. Another non-Sierra Leonean was appointed to the position even though the Sierra Leone Bar Association issued a statement to the effect that a Sierra Leonean should be appointed.
Mr. de Silva has announced that he will be leaving the Special Court in June. The SLCMP wants to take this opportunity to thank him for his contributions in ensuring accountability in Sierra Leone after a decade long civil war, and wishes him good luck in his future endeavors. To this end, Sierra Leoneans are looking forward to the GoSL’s active participation in the appointment of the next Prosecutor.
by ibakarr | Aug 11, 2016 | Uncategorized
The aftermath of World War 2 saw the emergence of human rights protection mechanisms including regional court systems, such as the European Court of Human Rights based in Strassbourg, establishment of the Inter-American Court and eventually the African Commission for Human and People Rights. Currently, a protocol has been signed for the transformation of the African Commission to a court. There is also in the pipeline plans to establish an African Court of Justice. Pundits therefore thought that it is necessary for both institutions to merge in the face of the new African challenges. The merger is going to see one of the institutions becoming a subset of the other. However, human rights activists fear that if the African Court of Human Rights becomes a subset of the African Court of Justice, the issue of human rights will be watered down as politicians are not enthusiastic about human rights issues. As a matter of fact, human rights are normally claimed against them. As this debate continues, sub-regional states are organizing themselves to establish their own Court. An example of such is the establishment of the ECOWAS Community Court of Justice. The Court has started a process of reaching out to the people of West Africa to discuss issues bordering its establishment. This article will discuss one of such outreach workshops conducted in Sierra Leone in March 2006.
On 27 and 28 of March, the West African Bar Association (WABA) in collaboration with the Sierra Leone Bar Association (SLBA) and the Open Society Initiative for West Africa (OSIWA) organized a two-day workshop on the Law and Practice of the ECOWAS Community Court of Justice. This was held at the British Council Auditorium on the 27th and 28th March 2006. The facilitators consisted of the Presidents of the SLBA, WABA, Togo Bar Association and the Registrar of the Community Court of Justice. Participants at the workshop included lawyers, journalists and law students from the Fourah Bay College and the Sierra Leone Bar School.
Some of the issues discussed included the law and practice of the Community Court of Justice, enhancing human rights and access to the Court, the mandate, competence and jurisdiction of the Court. Participants were intimated that the Court was established by virtue of Art 15(1) of the Revised Treaty of ECOWAS as the principal juridical organ to enforce the provisions of the Treaty and enhance its compliance of member states. The 1991 Protocol empowers the Court to deal with disputes arising between member states and the institutions of the Community like ECOMOG, WAMA etc. It further authorizes the Court to serve as advisory council to member states. It also empowers the Court to interpret or apply the provisions of the Treaty in respect of matters set before it by member states on behalf of its nationals. The initial condition is that, they should have exhausted all domestic remedies before seeking redress in the Court. However, the 1991 Protocol was defective as it does not accord individuals or organizations direct access to the Court. As a result, member states and institutions did not file any action or institute any proceeding in the Court since it commenced sittings 2001.
The authority of Heads of States, therefore, in concert with legal practitioners in West Africa realized that, the Protocol, deficient as it is, would only continue to be unhelpful in addressing human rights problems. In view of the above, a Supplementary Protocol amending the Protocol relating to the Community Court of Justice was enacted in January 2005. It amended certain portions of the 1991 Protocol and substitutes others by inserting new articles addressing human rights violations and compelling member states to recognize and apply the said provisions. That said, I will discuss the amended Protocol below.
Ratione Materiae (What)
Art 10 of the supplementary Protocol gives the Court competence to adjudicate on any dispute relating to the following: the interpretation and application of the treaty, conventions and protocol of the community; the interpretation, application and legality of regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS; the failure of member states to honor their obligations under the treaty, convention, directives or decisions of ECOWAS; the action for damages of a Community institution or an official of the Community for an action or omission in the exercise of his duty; cases of violation of human rights that occur in any member states; to act as arbitrator for the purpose of Art 16 of the treaty and matters provided for in an agreement were the parties provide that the Court shall settle disputes arising from the agreement. Art 24 of the Supplementary Protocol, which is an insertion of a new provision, further strengthens the Court’s powers to enforce it decisions.
Furthermore, the Court is governed by certain bodies of law, namely; Art 38 of the Statute of the International Court of Justice, the African Charter on Human Rights, the 1991 Protocol on the Community Court of Justice, the 2005 Supplementary Amendment Protocol and the Rules of Procedure of the Community Court of Justice. Currently the sitting of the Court is in Abuja, Nigeria. However, it is stated that, the Court sits in other countries when that situation arises.
Ratione Personae (Who)
Art 10 of the Protocol further expanded the competence and jurisdiction of the Court. It granted member states or the Executive Secretary the authority to institute action for failure by a member state to fulfill an obligation. Member states, the Council of Ministers and the Executive Secretary to institute proceedings for the legality of an action in relation to any community text. In addition it empowers national courts to refer a matter arising from the interpretation of a provision of the Treaty to the Community Court either on its own or by request from one of the parties to the dispute. Moreover, staff of any community institution can access the Court after the staff member has exhausted all appeal processes available to the officer under the ECOWAS Staff Rules and Regulations. Furthermore, it accorded corporate body’s direct access to the Court for the determination of an action or inaction of a community official which violates the corporate bodies. Most importantly, it granted individuals direct access to seek relief for violation of their human rights with the condition that, the action should encompass an act or omission of a Community Official that violates their rights and the application must not be anonymous or pending in another international court.
Rationae Temporis (when)
It is proved that since the Amended Protocol came into force in January 2005, it has opened a floodgate of litigations in the Court which is attributed to the climate of repression currently existing within member states. Most applicants (i.e. physical and juridical persons) are aware that before accessing the Court one must have exhausted all domestic remedies. However they should be cautious, lest their action be statute barred as Art 9(3) states that “any action by or against a Community Institution or any member of the Community shall be statute-barred after three years from the date when the right of action arose.”
Exhausting Domestic Remedies
It is a general principal under international law that before any international body is approached; all legal domestic remedies must be exhausted by the applicant. What is therefore deemed exhaustion of domestic remedies? The Court can admit a communication on the ground that the delay in arriving at the judgment was unduly prolonged. A communication will be admissible if the applicants proved that no local remedy is available or that it is available but ineffective. In such a scenario the burden of proof will shift to the state who must disprove the applicants allegation by stating that there has not been an exhaustion of local remedies, but that, there is actually an effective and adequate remedy for the particular dispute in question. In the event the state fails to challenge the admissibility of the communication, the Court will deem the silence as consent and will proceed to admit the matter.
Concerns Raised During the Workshop
Several contentious issues arose during the course of the workshop. Namely, the issue of adequate provisions to execute the Court’s judgment was contested, with regards to political leaders especially military juntas.
The President of WABA intimated the participants that the Court, like other international courts, is dependant on the authority of member states to enforce its decisions against its nationals as it lacks a police force. Therefore, such member states will be held to account on failure to fulfill their obligations or discharge their responsibility under international law. With regards civil matters, the Court is to enforce its judgments by virtue of Art. 24 of the Supplementary Protocol which states that, every decision of the Court shall be executed in the form of a writ which shall be received by a competent national authority for execution according to the rules of civil procedure of that member state.
With regards member states, the Court relied on Art. 20 of the 1991 Protocol which gives the Court authority to order provisional measures or issues that are necessary or desirable to the particular case at hand. In addition, it has power to levy punishments under Art. 37 of the Treaty of ECOWAS on member states. It may order sanctions, suspend Community assistance and disbursement of funds to that member state or suspend its participation in the Community until it complies with the pronounced judgment.
The President regrettably mentioned that, these are the only methods by which the Court can enforce its judgments. The Court cannot go beyond the Supplementary Protocol which does not make provision for local remedies. He stated that most member states have refused to ratify the ECOWAS Protocol on Democracy and Good Governance which obliges states to adopt practical modalities for the enforcement of the rule of law, human rights, justice and good governance. Under this Protocol, dictatorship rulers would have been held to account.
Another contentious issue raised is the refusal of the Court to try customary law matters. It was deliberated that most cases in Africa hinge on customary law therefore the jurisdiction of the Court must cover customary law cases that are repugnant to natural justice and good conscience. The President replied that customary law is reflected in the African Charter on Human and Peoples Rights beyond that the Court does not have the competence to try customary law cases and any matter outside its jurisdiction will be thrown out. That notwithstanding, he encouraged individual and groups, especially women, and also juridical persons to institute an action under Art.10 (b) of the Supplementary Protocol. In addition, they can also utilize other relevant human rights instruments in order to exercise their civic rights or seek redress in this Court as gender issues were properly taken care of under Art. 18 of the African Charter and the Court has earlier taken cognizance of international customary law.
Participants asked how the majority of poverty-stricken Africans can access the Court. The facilitators informed the participants that a separate fund has been kept solely for that reason. The question of who should benefit from that fund then arose? It was agreed that, in order to protect the interest of indigent litigants the ECOWAS Secretariat should collaborate with WABA to set up legal aid centres in every member state. This centre will have a panel and laid down criteria to determine individual applications. The panel initially decides which cases are eligible and compile them for funding. After which an application will be made to WABA and they will have the final say on the eligibility of applicants. The selected cases will be funded by the legal aid council which will include costs for transportation, accommodation of indigent litigants and even lawyers fees. In the interim the Court may also assign indigents victims of human right violations to some lawyers on a pro bono basis.
Another salient issue discussed was regarding the qualification of lawyers, agents or advisers that may wish to make an appearance on behalf of their client(s) before the Court. Chapter VI of the Rules of Procedure of the Community Court states that, anyone wishing to make a representation must lodge a practicing certificate at the Office of the Registrar, certifying that he/she has the authority to practice in a member state or another state which is a party to the Treaty. Furthermore, there are hosts of other written and oral procedures enshrined in the Rules of Procedure that the legal practitioner should strictly abide by. In a bid to facilitate communication and eventually enhance speedy hearings, the President urged lawyers to adopt the current practice in other international tribunals wherein applications, briefs and depositions of witnesses are tendered to the Court via the internet.
Finally the President admonished lawyers to be innovative in enforcing the human and civic rights of their clients. Making reference to civil resistance, the President indicated how successful the Nigerian Bar Association’s strike was in ensuring that the Government and its officials adhere to court orders. This was a bright example of how the civil society can go in ensuring accountability and the rule of law.
by ibakarr | Aug 11, 2016 | Blog
One of the major causes of the decade long civil war (even though people hardly mention it) was due to the fact that we made history worthless by failing to learn from the past. On the eve of the war, virtually every aspect of the Sierra Leone society was politicized, including the application of the rule of law. The promulgation of many laws were premised on what benefit it would bring to those in power and their stooges; and how it would help entrench them in power. This shows how wicked laws, such as the infamous criminal libel law (to silence the press) and the death penalty (to eliminate the opposition) came into being and turned Sierra Leone into an oppressed society. The difference between a free and an oppressed society is that, in a free society, you need a reason to restrict liberty or make legal acts illegal. In an oppressed society, leaders are most enthusiastic about executing wicked laws. This article will look at one of those wicked laws in our statute books, the death penalty which like the criminal libel law, has continued to make our society far from being a democratic and civilized one.
It is nearly seventeen months since the High Court in Freetown convicted and sentenced to death 10 people accused of treason. When the sentences were passed in December 2004, series of articles were published within and outside Sierra Leone discussing the issue. Some of them requested the Government of Sierra Leone (GoSL) to mitigate the sentences. Human Rights organizations such as National Forum for Human Rights, Amnesty International and Human Rights Watch issued press releases to that effect and also called for the abolition of the wicked law. However, it is surprising to note that the GoSL despite these efforts, refused to mitigate the sentences. According to them, they could not conform to such requests as the death penalty is part of our laws, and that it is still practised by countries such as the United States, Japan and other African countries. Seventeen months gone, the fate of the convicts is still hanging in limbo. They are still in custody awaiting the execution of the sentences.
These death sentences were issued barely two months after the Truth and Reconciliation Commission (TRC) issued its final report. In the Report published in October 2004, the TRC recommended that human dignity and human rights can thrive only when human life is inviolable. The report called for the abolition of the death penalty and the repealing of all laws permitting it. The Report specifically recommended that section 16(1) of the 1991 Sierra Leone Constitution authorizing capital punishment be amended and provisions included to guaranteeing the respect for and inviolability of human life. The Commission said urgent steps should be taken in realizing this including the introduction of a moratorium on all pending sentences. It was not surprising when these 10 people were sentenced to death since the law is still in force. What is surprising is the GoSL’s continued reluctance to enact the Commission’s recommendations, particularly the one dealing with the death penalty. The establishment of the TRC was a continuation of the implementation of the Lome Peace Agreement (LPA) negotiated with AFRC/RUF to end the war. Therefore, its recommendations form part of that process. Accordingly, Article X of the LPA requires the GoSL to take all necessary steps, including amendment of the 1991 Constitution in accordance with Part V, Section 108 of the said Constitution. The apparent refusal of the GoSL to implement the TRC recommendations does not only show how it is reneging on the implementation of the LPA, but most importantly illustrate its enthusiasm in continuing to implement bad laws; an indication of how we are matching backwards into doldrums of an oppressed society.
The abolition of the death penalty does not require progressive realization like social and economic rights. As a matter of fact, it was not supposed to exist. The right to life is not something one realizes progressively; it is either you live or you die. This is obviously a first step through which the government can start implementing and therefore, be an example in realizing the recommendation of the Commission.
The death penalty is a form of ‘punishment’ that typifies the brutish and uncivilized nature of man to confront its problems. It was never a panacea to our problems and will never be. It is an affront to the struggle for the protection of human rights. The philosophical and rhetorical arguments of pro-death penalty campaigners are not strong enough to warrant the continued breach of life.
Supporters of death penalty have pointed at deterrence as their strongest argument. However, there is no nexus between the threat of death penalty and the commission of crime. Crimes still continue to occur in countries that apply the death penalty. The fear of death neither repairs the damages nor rehabilitates the individual convicts. All death penalty does is to feed the treacherous impression that killing is a solution to our problems. It compounds the problem by imposing an irreparable damage.
Death penalty permanently deprives people of the due process of the law. Once a death penalty is executed, it is irreversible and irrevocable. In the event of new evidence that could reverse the conviction, the convict would have been killed unfairly. Regimes in Sierra Leone have deliberately used this to their advantage in the past.
The current global trend with regards death penalty is moving towards its abolition. On the eve of the adoption of the Universal Declaration of Human Rights in 1948, not more than seven countries had abolished the death penalty. Since then, over hundred and eleven countries have abolished it. Based on an article published by Amnesty International, the trend became more evident in Africa in the 1990s with the institution of multi party political system and the consolidation of civil society. West Africa is part of this growing trend. Currently, over ten countries in West Africa have either de jure or de facto abolition, Senegal being the latest. On December 10, 2004 on the fifty sixth anniversary of the UDHR, the Senegalese Parliament enacted a legislation abolishing the death penalty.
Sierra Leone has a bad track record of continued executions. Recently in 1997 during the interregnum, the AFRC/RUF regime embarked on summary killings to ‘curb’ crimes. The reinstated government of President Tejan Kabbah continued this process. In 1998, the Kabbah regime instituted a military tribunal whose findings resulted in the shooting of 24 military officers for their involvement in the coup of 1997. Sierra Leoneans have witnessed the execution of series of death sentences passed in the 1970s and 1980s, most of them based on fictitious evidence and political motivations. In fact, most of the killings that have taken place were political. The governments hardly killed convicts because of committing crimes like murder. As in previous ones, the 1998 executions too never solved the problems, they only compounded them.
GoSL have not given convincing reasons to continue to keep the death penalty in our law books. Is United States and others cited as countries still practicing the death penalty infallible? The United State is not a perfect country. Any bright mind or at least someone with some knowledge of international law knows that the United States circumvented all basic principles of international law to invade Iraq. Furthermore, the United States had initially abolished the death penalty. In 1972, the United States Supreme Court under the then existing laws and in the case of Furman v. Georgia (408 U.S. 238) declared that “the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Many death sentences were reversed. However, this did not last longer as Congress enacted another legislation that required a dual system. I do not think I should delve further into the United States legal system to prove that death penalty is a wicked law. All I want to make clear is that just because the United States is using it does not make it right. If this is going to be the reason for the GoSL to continue to keep the death penalty in our law books, then it should as well be the same reason why the GoSL must decriminalize libel, promulgate a bill on access to information, gender parity related issues, child rights, ensure the supremacy of the law, keeps to its campaign promises etc. In as much as we would want to emulate examples of leading democracies, those emulations should only include the good ones. The continued presence of the death penalty in our law books means reversing the gains Sierra Leone is making in consolidating the peace.
Sierra Leone is at cross roads at the moment with a huge opportunity to rejuvenate the legal system. We should take the current opportunity to revitalize our systems and bring them in line with international standards. The Special Court for Sierra Leone is a good example we have. Even though its jurisdiction
involves trying people for the worst crimes; war crimes, crimes against humanity, the framers did not include the death penalty; because it is not the universal trend of the rule of law. It would therefore be ironical to have those in the Special Court who are alleged to have committed far worse crimes (if found guilty) serving prison sentences and those convicted of relatively lesser crimes being sentenced to death.
Sierra Leone should learn from history; so many killings have taken place and have not helped us. As one writer puts it, “the death penalty is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace.” The death penalty is therefore a wicked law and cannot be administered impartially, it only destroys anybody it touches. It diminishes the rule of law and devalues our collective humanity.
by ibakarr | Aug 11, 2016 | Uncategorized
In October 2005, Zainab Bangura testified in Trial Chamber II of the Special Court as an Expert Witness on the issue of ‘forced marriage’ during the war in Sierra Leone. She was commissioned by the Prosecution in February 2005 to prepare a report on forced marriage in respect of the trials against the RUF and AFRC accused persons. In the Report, forced marriage was captioned as the ‘Bush Wife Phenomenon’. The Prosecution’s objective during the trials was to prove that ‘forced marriage’ during the war in Sierra Leone constituted war crimes and crimes against humanity. If the Trial Chamber upholds this charge, it would become an international precedent to make criminal this type of wartime gender-based violence. This article gives a critical analysis of what constitutes ‘forced marriage’ as encompassed in the “Bush Wife Phenomenon” in the context of the Sierra Leone war. Under which scope this phenomenon becomes a war crime and/or crime against humanity.
According to Zainab Bangura, forced marriage arose when a young girl/woman was abducted during the war, came under the total control and command of a rebel/soldier (captor) claiming her to be his wife. This happened when the captor proclaimed yu na mi wef, in the Krio lingua franca, meaning ‘you’re my wife’. At that point, the victim was left with no option but to accept the “marriage”. Following this, she did all the chores at the house as expected of a regular housewife. In return, the ‘bush husband’ ensured that he provided her protection and support in terms of food and clothing. Consequently, forced marriage became a means of survival for most girls/women behind rebel lines during the war. Some of these relationships continued even after the war, although with some adjustment; that is to say the ‘bush wives’ now have the option to leave. However, most ‘bush wives’ decided to stay because they have children from these relationships and, others because of the stigmatization or fear of reprisal as they are already labelled ‘rebel wives’.
During the war, forced marriage was rampant. Given that some of the girls were forced into early marriages, the effects on their lives have become indelible. Most of the girls were impregnated when they were still under age. The much needed parental or family care during pregnancy was lacking. Even though some girls and women have attempted to reintegrate after the war, some communities have continued to make them feel unwelcome. They are made to feel guilty for their involvement with the ‘bush husbands’ and their children are sometimes regarded illegitimate and of ‘rebel blood’. This makes social reintegration difficult for them and they subsequently returned to their ‘bush husbands’ again.
‘Bush wives’ were highly respected within “their communities” at that time than the ‘non-bush wives’. On cross-examination of the Expert Witness, the Defence pointed out that the ‘bush wives’ were protected by their ‘bush husbands’ during the war and continued to stay with them at peacetime. They further pointed out that it was not indicative of forced marriage as alleged by the Prosecution but a betrothal one. Even though it involved an initial abduction but it later proved to be a marriage of convenience. It was a choice, wherein one was supposed to choose between the devil and the deep blue sea, but a choice nonetheless!!! There were situations when some young girls/women opted for it, because it guaranteed their protection and respect amongst the rebels and colleague abductees.
It is worth noting that, forced marriage and arranged marriage may be likened to betrothal marriages, wherein a woman is engaged in a contract of marriage. In betrothal marriages consent of the parties counts greatly to influence the relationship. Zainab Bangura stated in the Report that, during the war girls were forced into such relationships by using the barrel of the gun and later, though in a smaller number, were legitimized after the war. It became a marriage of circumstance because most of the ‘bush wives’ cannot detach themselves from that ‘relationship’. Most of them bore children in the relationship and that cannot be reversed.
From all indications, forced marriage may have got a long-standing existence in Sierra Leone but was oversighted because it was done during peacetime and customs accepted it. In effect, it was not classed as a crime.
However, the Witness’s narrative indicated a dichotomy between the ‘bush wife’ phenomenon and the Sierra Leone customary law marriages. According to the Report, Sierra Leoneans practised a sort of arranged marriages before the war especially under customary rites. This was common practise in the provincial areas and around the Freetown environ. Customary law as recognized in the Sierra Leone legal system in relation to customary law marriages normally seeks to establish that the consent of the girl is subordinate to that of the parents /guardians (especially the father). She is only informed of the marriage shortly before it. This again, may be seen as forced marriage because the voluntary consent of the girl is not sought. The Witness’s testimony referred to it as ‘arranged marriages’ because it was done during peacetime.
Is Forced Marriage a Crime?
Municipal laws do not criminalize forced marriage in the actual sense, as there is no existing statute or judicial precedent to the effect. What is the nature of forced marriage as a crime? Sierra Leonean laws generally and customary law in particular see the essence of the family and community participation in marriage as of prime value because this is where the couples turn to whenever problems arise in their relationship. The family and community ensure the legitimacy of the relationship and the law comes in to legalize it. This may be the rationale for the Report to refer to such relationships as arranged marriages instead of forced marriages.
How can forced marriage constitute a war crime or crime against humanity considering the fact that it is a new phenomenon that does not have any prior international acclamation and can only be (in this instance) related to the conflict in Sierra Leone? Under the Statute of the Special Court, for a crime to be regarded as a war crime and/or crime against humanity, it must have been committed in a pattern that is said to be widespread and systematic against any civilian population. With relation to forced marriage, Article 2 (g) provides that the Special Court can prosecute persons who have committed crimes that includes among other things “…rape, sexual slavery, enforced prostitution, forced pregnancy and other forms of sexual violence….” In addition to that Art.3 (e) asserted that the Court can also prosecute persons that have committed or ordered the commission of the serious violation of Art. 3 Common to the Geneva Conventions of 12 August 1949, and of additional Protocol II of 8 January 1977 and these violations includes inter alia “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault. Furthermore, Art. 5 (a) of the Statute makes room for municipal crimes to be prosecuted by the Special Court and this pertains to “offences relating to the abuse of girls under the Prevention of Cruelty to Children Act 1926 (Cap. 31) and that is to say:
1. Abusing a girl under 13 years of age, contrary to Sec. 6
11. Abusing a girl between 13 and 14 years of age, contrary to Sec. 7
111. Abducting of a girl for immoral purposes, contrary to Sec. 12….”
In the Report, Zainab Bangura refers to forced marriage during the war as “[t]he physical abduction of a young girl/woman by a rebel or soldier and, in most cases, coercing and terrorizing her into living with that rebel as a wife”. Based on this, forced marriage may be classified as a war crime or crime against humanity because it has characteristics of the elements stated above, and they include inter alia rape, enslavement, sexual slavery, and acts of terror and conscription of children into armed conflict.
The ‘Bush Wife Phenomenon’ in the context of the Sierra Leone war becomes a unique case in itself. If it is upheld by the Trial Chamber then it becomes a precedent in international tribunals of this nature to follow its ruling but if rejected, it may become an ‘obiter dictum’ for future trials to make projections on. The SLCMP therefore encourages the Trial Chamber to look on both the pros and cons of the ‘Phenomenon’ in order to come up with a reasonable decision on the issue, as posterity will reference it in similar circumstances when they do appear again in the international limelight.
