by ibakarr | Aug 11, 2016 | Uncategorized
In the AFRC trials at the Special Court, the Prosecution called on two key insider witnesses, George Johnson (a.k.a. Junior Lion) and Gibril Massaquoi. They are former members of the AFRC and RUF factions respectively and both held key positions within their organizations. They took active part in the war with respect to the positions they held. Consequently, the Prosecution relied on them as insiders to prove the actual facts that the accused persons are culpable of the charges in the indictments. In addition to that, their evidence may help the Trial Chamber in determining the nature of the alleged crimes perpetrated and how such testimony corresponds with the deposition given initially.
The article recounts key aspects of the evidence proffered by these insider witnesses and the corresponding attempt of rebuttal by the Defence. The impact their evidence may have on the trial process is also put into focus.
Who is an Insider Witness?
An insider witness is a person that is somehow collectively responsible with the criminal party or organization to commit an act. Sometimes the insider witness is not charged along with others because the evidence against him is not substantial enough to warrant conviction as a principal in the first degree even though there is evidence that may lead to his conviction as an accomplice, aider or abettor. In other instances, the prosecution may not have sufficient evidence to institute charges against him. In that light, they resort to the tactics of luring in such insider to testify for them as a prime witness.
Most times evidence of insider witnesses are accurate and precise, as they may try to say the whole truth just for them to escape similar charges. The defence counsel too uses insider witnesses. In criminal trials, the defence may sometimes use the accused as they are believed to have first-hand information. A typical of that is Hinga Norman’s testimony in the current CDF trials at the Special Court.
George Johnson (a.k.a. Junior Lion) as an Insider Witness
Around mid-September, 2005, George Johnson (Junior Lion) testified as a Group 1 Category C witness and was tagged as Witness TF1-167. The Witnesses and Victims Support Unit (WVSU) granted him protection but he decided to disclose his identity and testified in open court sessions. Initially, he had testified for the prosecution in Trial Chamber 1 during the RUF Trials. He rose within the rank and file of the AFRC, from Chief Security Officer to Colonel and Operations Commander.
The Prosecution wanted him to throw light on the AFRC command structure and control, and to prove the existence and extent of the relationship between the RUF and AFRC during the war. The Prosecution further led the witness to give detailed account of the alleged crimes perpetrated by the AFRC during the retreat from Freetown after the ECOMOG intervention in February, 1998. This testimony may also support the allegations of individual and command responsibility for the crimes in the charges against the AFRC.
In his testimony, he identified the 1st and 3rd Accused persons (Brima and Kanu respectively) as they were members of the sixteen-man group that staged the coup on the 25 May 1997 and they were Principal Liaison Officers in the AFRC Junta Government. The witness testified that he was present at the point where Johnny Paul Koroma radioed a message to Sam Bockarie (a.k.a. Mosquito) inviting the RUF to join the AFRC Junta. He outlined how the AFRC collaborated with the RUF to attack civilian population and that the AFRC accused persons were responsible for the attacks as both individual and superior commanders. Junior Lion’s testimony was particularly notable because he was directly involved and was able to give insider information.
During cross-examinations, the defence centered their arguments on undermining the credibility of Junior Lion as an insider witness. They questioned his motive of giving testimony on behalf of the prosecution as he was not subpoenaed especially when he was a team player with the indictees. He described particular incidents with precision though he refrained from giving proper numerical estimations. The Defence used the discrepancies in figures of his testimony with the original deposition to counter his evidence. The Defence further questioned the reliability of his testimony since he could not correlate it with previous statements made to investigators. He was said to be unreliable and have instances of psychological instability.
That notwithstanding, Junior Lion refuted the Defence’s proposition that he had received any sort of prosecutorial immunity or assistance in exchange for his testimony before the Special Court.
Gibril Massaquoi Testified as an Insider Witness
Gibril Massaquoi was also a Group 1 Category C Witness and was tagged as Witness TF1-046. He was initially abducted by the RUF in Pujehun around 1991 but later joined them and rose to the RUF rank of Lieutenant Colonel. He later became Personal Assistant to Foday Sankoh and was made RUF Spokesman. Like Junior Lion, he publicly disclosed his identity and testified in open court and focused his testimony basically on the relationship between the AFRC Junta and RUF. He also pointed out the command structure and operational strategy of both the AFRC and RUF at various intervals during the war.
He gave chronological developments of the RUF from the time he was captured on to the signing of the Lome Peace Accord in July 1999. In highlighting the events that led to the ‘marriage’ between the AFRC Junta and the RUF after the coup of 25 May 1997, Gibril Massaquoi testified that he received the phone call made by Johnny Paul Koroma to Foday Sankoh, extending an invitation to the RUF to join the AFRC Junta to form a government. He further explained that he was with Foday Sankoh in Nigeria when he ordered Mosquito and other RUF Commanders to join the AFRC and to take orders from Johnny Paul Koroma as Foday Sankoh puts it “join your brothers in peace”.
Gibril Massaquoi further testified that he and the AFRC Indictees were Supreme Council Members and that he attended three meetings in Freetown between August and September 1997, in which the accused was present. He said that, the Supreme Council was the policy and law making body of the AFRC. RUF members sat as representatives in the Council, some were made ministers and the other commanders were all paid by the AFRC Government. The Prosecution showed a document to be minutes from an alleged emergency Supreme Council meeting. Although the witness did not attend that particular meeting, the list contained the names of all Supreme Council Members which included the witness himself; he identified it and acceded that it was correct, so it was admitted into evidence. He outlined how the AFRC collaborated with the RUF to carry the attack on Freetown and what led to their subsequent retreat in January 1999. He emphasized on the joint military operations instituted and how strategic planning and extensive radio communications were going on effectively. He showed what led to the creation of a joint security command structure known as Western Area Security Patrol (WASP); that comprised Sierra Leone Army personnel and RUF fighters. However, he pointed that there was some amount of discord between the AFRC and RUF at some point and this led to in-fighting between the two groups.
During cross-examination, the Defence capitalized on the in-fighting as a lack of cohesion between the AFRC and RUF. The Defence tried to use it to rebut the Prosecution’s claim of a joint criminal enterprise between the AFRC and RUF. Furthermore, the Defence tried to show the anomaly in the RUF ranking system by indicating the deficient military training, disorganization and lack of effective command structure and coordination. Like the Junior Lion testimony, the Defence questioned the credibility of the Witness given that he was a key player and that he traded his testimony for freedom. The Defence further cross-examined him to prove whether the Prosecution may have used other improper means for the Witness to testify which included compensation, medical treatment and transportation reimbursement. The witness was said to be biased against the AFRC because he alleged that they unjustly detained him at Pademba Road Prisons from October 1997 to January 1999. He ultimately blamed them for his detention and became bitter with them for leaving him behind in prisons when they fled from Freetown in February 1998.
CONCLUSION
The testimony of insider witnesses may be vital to the Prosecution’s case against the AFRC accused persons because it was unique in outlook. They were able to give detailed account of the AFRC’s alleged command structure, operational strategy and possible interlink with the RUF. The number of people who possessed such knowledge could be small and most times not willing to testify in this kind of courts due to fear of either external threat or implicating themselves.
The bone of contention about insider witnesses in relation to the AFRC Trials is that, their testimony may be dangerous to both parties. Though the Prosecution is using them, the former Chief Prosecutor cautioned that working with them is like “dancing with the devil.” This confirms that he may be using them but their testimony may not always be admissible. Nevertheless, insider witnesses normally face great security risks than victims or crime-based witnesses. The imminent risk is attributed to the sensitive nature of the information they are expected to divulge in court. In most cases due to their status within the group during the war, they are bound to face rigorous tension and violent opposition from outsiders. Despite the fact that WVSU usually provides the necessary protection for witnesses, the SLCMP generally believes that it takes a lot to come forward and serve as a witness in international tribunals. Consequently, the people who have decided to do that, both on the side of the Prosecution and Defence should be commended for their efforts. Despite the fact that some people have questioned the motive of some of the witnesses, the fact remains that whatever they say may help the Court to decide the guilt or innocence of the accused persons. In other words, they are assisting the Court in the dispensation of justice in post-conflict Sierra Leone. The SLCMP respects all witnesses and therefore encourages Sierra Leoneans to emulate the good example of others.
by ibakarr | Aug 11, 2016 | Uncategorized
Introduction
It could be recalled that the Prosecutor of the Special Court for Sierra Leone, under Article 15 of the Statute creating same, charged Chief Hinga Norman for various offences including violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. In refutal of the charges therefore, Chief Sam Hinga Norman now elects to be a witness in his own defence. So, in essence this article seeks primarily to examine some areas of his testimony which touch and concern the issue of command responsibility as set out in his Indictment. Suffice it to say that we have referred alternatively to Chief Hinga Norman as either “first accused” or “the witness”.
Command responsibility has evolved over the years as a cardinal legal concept. Its basic proposition is that leaders can be found criminally liable for the actions of their subordinates, provided they can be found to be personally guilty for those actions. The concept forms an integral part of international criminal law, and recognized in Article 28 of the ICC Statute, Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute.
It is also recognized in the Statute of the Special Court which states in its Article 6(3) 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.”
The burden of proving that each of the CDF accused persons can be held liable pursuant to command responsibility lies on the Prosecution. The Prosecution has to prove this in three key areas: “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.”
On the 26th January 2006, Sam Hinga Norman, the first accused in the ongoing trials at the Special Court was still testifying as a witness on his own behalf after the Prosecution had closed its submission late last year who had the burden of proof beyond a reasonable doubt for the alleged offences as stated in the Indictments for the CDF accused persons.
Superior / Inferior relationship
The first accused clearly indicated in his testimony that he carried express powers from the democratically elected President of Sierra Leone to coordinate the civil resistance with specific duties of restoring the elected government of the people of Sierra Leone. In pursuant to the above, Sam Hinga Norman said he was never vested with powers of selecting Commanders for the various civil militia groups which did not put him in a category of command responsibility.
Norman has so far revealed various code names for the operations which the charges identify as crimes against humanity and international law. For the purposes of any military operation, according to him, Walihun 1 was a pseudonym for a War Council Meeting, Walihun 2 to Chief Sam Hinga Norman, and Walihun 3, to welfare, training, and appointments of which various individuals automatically belonging to the War Council were supervising and not him in his position as Deputy Minister of Defence.
Quasi judicial powers
In his bid to establish the issue of him not being in any position normally ascribed as “command responsibility” he intimated the Court that he chose not to be a member of the Base Zero War Council. Since the role of the latter was advisory which he could not factually have been a part although he sat in such meetings when invited to take advice for which he had been immensely grateful. To further illustrate this point for clarity, Norman cited an incident where a commander committed various crimes in Gbaama Jaiama Bongor and a tribunal was set up headed by Chief G.W. Quee to determine his guilt or otherwise. Eventually, it was decided he was to die by hanging. Although this decision was fully endorsed by Norman later, he was advised by the War Council not to carry out such execution because of the absence of state authority for it. In the final analysis of this event, the commander was only removed from his status and his area of deployment and was not killed.
Camouflage regalia
A serious issue worthy of note was brought to the attention of the Court which concerns the rife allegations at the time that members of other factions wore the Kamajor militia regalia. According to Norman, a well-known business man in Bo, Southern Sierra Leone was the pioneer of such nefarious activities in which members of the RUF who wore the Kamajor regalia were commonly called DENBA MARA.
Military Command
The January 6, 1999 invasion of Freetown by the RUF fighters was apparently a deadly one. In the process of repelling the invaders out of Freetown, a fierce military machinery was put together by ECOMOG forces and the Kamajor militia with the latter taking military command from the former and not from the accused according to him.
National Coordinating Committee
In addition to all of the above, a letter dated 29th January, 1999 referring to the establishment of a committee for the coordination of the national militia, emanating from the office of the President of Sierra Leone, and addressed to the Deputy Minister of Defense (the first accused) was tendered in evidence and marked “Exhibit 120”. The Committee above according to Norman which was eventually set up sourced its powers from the Vice President of Sierra Leone comprising the Ministers of Finance, Agriculture, Presidential Affairs, Information, the Deputy Minister of Defense, Chief of Defense Staff, the various Resident Ministers, and the National Security Adviser. The witness confirmed the under mentioned as the responsibilities of the Committee;
To define a suitable organization structure of the Civil Defense Forces
Constant review of the manpower situation of the militia
Review means of financing various logistical requirements
Initiation of action where appropriate to recruit additional militia.
Apart from the witness’s non attendance of the first meeting scheduled on the following Saturday 11:00a.m. at the State Lodge, he confirmed that he did not even have a copy of the letter on time as he was only contacted when the other members noticed his absence from the meeting. From all the indications given to the Court by the defendant, he has sought to establish the point that the CDF was coordinated by a higher body called the National Coordinating Committee which is mentioned in the previous paragraph. This, in his words put him in a position not to liaise with the President directly but the National Coordinator of the Committee, meaning that he was subject to the Committee from which all logistical and other supports came– thus the latter being in a position of command responsibility.
Logistical Support
For the procurement of food and medicines from the national budgeting allocation, the witness identified the diagrammatically chain of flow;
Minister of Finance – Defense Office – Director of Logistics for Civil Defense –Militia.
The Deputy Minister of Defence’s role there was to oversee the budgetary allocation to the Army of Sierra Leone and the Defense Ministry. To this end, the accused person revealed the amount of food items and cash sent to the militia at a time as 5000 bags of rice and fifty one million six hundred thousand Leones, though later allocations were made to Districts for various chiefdoms. The foregoing is crucial in that it demonstrates how the Government itself had been in the position of encouraging Kamajors to pursue the war militarily.
Community Representation
Now, the communities were also put in a situation wherein they could have wielded some command responsibility in the testimony of Hinga Norman as towns, districts, chiefdoms, and sections were represented by regional representatives in the National Coordinating Committee which issued instructions to him in his capacity as Deputy Minister of Defence.
Promoting the CDF activities
As communication is vital for the success of any war, a satellite phone was given to the witness, meant for the constant facilitation of communication with the President in his position as Commander in Chief of the Armed Forces and Minister of Defence, and the international and local media all geared towards coordinating Kamajor activities in the restoration of democratic rule in Sierra Leone. This greatly enhanced the cooperation between the hunters and ECOMOG forces on the ground for arms and ammunition / logistical supplies. This bit may be considered as postulating the aspect of Government’s encouragement of Hunters’ activities which is a charge against the accused in his capacity as Coordinator of the CDF. As if this is the tip of an ice berg, a sum of $10,000 was given to the Kamajors by the now late Mrs. Patricia Kabbah of which the Chairman of the War Council i.e. the Chief of Gbaa Nongoba Bullom was aware for the encouragement and support of the Hunters.
ECOMOG Training Kamajors
The argument could be taken a bit further when the Witness revealed that ECOMOG forces introduced hunters to conventional weapons, thereby training them before exposure to same. According to him, ECOMOG forces set up hospitals and treatment centers for the wounded Kamajors, provided storage for logistics, and exercised some disciplinary measures over some Hunters situated in Bo Water Side, Kenema, Mile 91, Freetown, and Kono, all in a bid to promote activities of the militia group.
Appointments in War Council
Another important issue worthy of note is the area of appointments of certain officials in the War Council which the accused declined undertaking but for signing confirmation of same. It was succinctly revealed that the visits of the President to certain Kamajor locations to congratulate them for certain military successes, and on other occasions dispatching high level delegations in pursuit of the same objective especially in Tihun, Sogbini Chiefdom all of which the accused was not a party according to him served as indications to attest that it was the President in his capacity as Commander-in-Chief of the Armed Forces who greatly supported the existence of the Kamajors in the restoration of democratic rule .
Command and Control
All the mentioned instances highly demonstrate to the curious eye that Hinga Norman may have been debunking the claims against him as being the principal force in establishing, supporting, providing logistics, and promoting the CDF activities. Over and above, he asserted that he hadn’t de jure and de facto command and control over the atrocities and operations of the Kamajors. In summary, we can say the accused has endeavored throughout in his testimony to undermine the basis of the indictment by tendering evidence which may or may not convince the judges that he aided and abetted, instigated, or participated in crimes as a result of his holding positions of superior responsibility, command, and control over the Civil Defense Forces of Sierra Leone.
The public is once more encouraged by SLCMP to continue attending the trials at the Special Court, New England.
by ibakarr | Aug 11, 2016 | Uncategorized
A national juvenile justice workshop was held from the 6-8 February 2006 by civil society groups led by the juvenile sub committee of the Justice Sector Development Programme. That was in response to the recommendation given by the United Nations Human Right Committee on the submission of Sierra Leones first report on the Convention on Rights of the Child. It recommended that Sierra Leone should develop an overhaul strategy for the implementation of the child’s rights bill. Subsequent findings of the workshop will be used to develop a government implemented multi sector juvenile justice strategy. The strategy must prioritise social justice and try to minimize the cost of juveniles accessing justice. It must also explore accountability mechanisms for both formal and informal juvenile justice approaches. Every policy developed should be in the child’s best interest and must not be discriminatory. It must inculcate fundamental human rights provisions. The strategy must also include diverse alternatives to detention, adjudication and sentencing, all of which must be in the welfare of the child.
This article reviews the relevant legal and social problems discussed during the course of the workshop. It outlines the responses to the highlighted problems and further gives recommendations.
Legal Problems
These are problems in both the law and practice within the juvenile justice system in the country. It treats all categories of juveniles namely the offender, victim and those at risk of offending. There is inconsistency in the definition of a child. Sec 2 of Cap 31 defines a child as a person under the age of sixteen, whiles Cap 44 defines a child as a person below the age of fourteen. Furthermore, the Ordinance Regulating the Infliction of Corporal Punishment in Sierra Leone defines a child as a person below fifteen years.
Another problem is the low standardised age (ten) of criminal responsibility within our laws, which was adopted from the common law in England. This contravenes rule 4 of the Beijing rules ,which states that “the beginning of that age must not be too low an age bearing in mind the facts of emotional, mental and intellectual maturity” of the offender. Moreover, the manner in which the police execute arrest and the subsequent detention of offenders together with adults in deplorable conditions for lengthy periods is bound to cause criminal contamination. In practice, it is also confirmed that seventy percent of juveniles in conflict with the law are in police custody due to their reluctance (police) to grant bail. All of these mentioned clearly contravene Sec 17(3) of the 1991 Constitution Sec 80 of the Criminal Procedure Act, and Sec 5 of Cap 44 which make provision for the protection from arbitrary arrest and detention.
At the trial stage, there is no informal juvenile court or exclusive court to try juvenile cases on a daily basis, thus the slow pace of trials. This violates Sec 23 of the 1991 Constitution which guarantees the right to fair and speedy trials within a reasonable time. During trials, there are not effective mechanisms to protect the personality of the offender especially in joint trials. This procedure is also inconsistent with Art 40 of the CRC and part 2 of Cap 44 which provide safeguards to juveniles undergoing trials.
There is also a problem in the drafting of both relevant statutes dealing with juveniles in Sierra Leone. Cap 31 does not provide health services and psycho-social therapy for victims of indecent assault and sexual abuse respectively. The punishment accorded to perpetrators under sec 7 of cap 31 is very moderate, considering the gravity of the offence. Cap 44 on the other hand does not make provision for diversion schemes, meaning referring the child to another institution to face punishment rather than adjudication, which countries like Ghana and South Africa that are signatories to the Beijing Rules (Rule 11) are practicing. It also fails to make provision for adoption which is an alternative means of child care for children at risk.
Social Infrastructural Problems
Art 7 of the CRC guarantees every child the right to a name at birth, but this is not the case in this country. The poor birth registration system in the country makes it difficult to tell the age of offenders arraigned before the juvenile court and the magistrate can only use his discretion which may not be in the best interest of the child. The remand home in which the child is sent after ascertaining his/her age, to know whether he is capable of forming a guilty intent, is poorly equipped with inadequate facilities and insufficient staff to care for juvenile inmates. On numerous occasions, cases are adjourned due to lack of transportation to convey juvenile inmates from Kingtom remand home to the main court building in the center of town to attend trials. This has also resulted to many escapes.
Probation officers whose duties are to visit police stations, interview offenders, help trace their close relations and inquire into his/her antecedent and counsel the child are not well motivated and are poorly equipped to effectively and efficiently carry out their functions. Furthermore, the juvenile justice system lacks community reintegration schemes (community services, repatriation, foster care) for juveniles proven of minor offences. The Approved School is presently in shambles as it lacks schooling/skills training facilities, health / recreational facilities and psycho social therapy which could help the child to become a useful citizen.
Responses to stated Problems
There was a consensus to implement Art1 of the CRC within our jurisprudence in defining a child; it states “a child means every human being below the age of eighteen…”A decision was made to increase the age of criminal responsibility in Sierra Leone to fourteen years. It was unanimously agreed that at pre-trial stage the community instead of the police should be the first point of call. To prevent manhandling of offenders a “special unit” should be established within the police (consisting of social workers and police officers) to deal with purely juvenile issues and members of that unit should put on civil attire when executing an arrest or they could simply ask the parent/community to present the child. During the pre-trial level, detention should be the last resort, therefore appropriate alternatives to detention such as bail, community welfare committees; school disciplinary committees should be implemented. In the event the child is detained, it should be for the shortest period of time i.e. twenty-four hours. Following that the child must be placed in an interim home (e.g. Don Bosco) with appropriate education and welfare facilities. Guidelines should be laid down for the management of all structures/institutions dealing with children at the pre-trial stage, in order to prevent child trafficking and other gross human rights violations
Participants also recommended that an informal juvenile court should be established at chiefdom level whose composition should consist a religious representative, community leader, social worker, teacher and a child representative. A standard procedure should be set to govern the administration of such courts. It should be monitored to ensure judicial accountability and must be guided by effective reporting on juvenile cases from the formal juvenile court.
With regards the formal courts, the workshop recommended that it must be child friendly, should find mechanisms to protect the identity of children, whether offenders, victims or witnesses, trials must be flexible and should not exceed three months, must respect the child’s right to expression including the right to cross examine complainants/witnesses, the presumption of innocence must exist in each and every phase of the trial process, the child must be provided with adequate interpretation and a legal representation. Strategies that make it mandatory for parent/witnesses to attend trials such as court orders, the influence of religious leaders and school administration must be applied.
Participants also recommended that probation officers must be provided with all facilities that will enable them to effectively carry out their functions. Whilst the child is in such care (probation), he/she must be supervised to see if there is a positive change of attitude. If there is, the case should be acquitted and discharged. The essence of institutionalisation (approved school) is to reform and not to punish. Therefore, adequate facilities which will foster progress, development and the child’s welfare should be provided so that in the future the child will become a responsible person in the society.
It was further recommended that the proposed amendment of Cap 44 includes a provision levying severe penalty for deliberately accusing wrongly. Similar punishment should also be levied against Parents/guardians or individuals conniving with child molesters to circumvent the laws. State homes or alternative care (adoption) should be provided for children who are at risk of offending. A laid down rules should be enacted to govern adoption.
SLCMP Recommendations
Having said this, the SLCMP suggests the following in addition to what the Workshop already discussed.
The pre-trial stage must be administered in accordance with the Beijing rules. Furthermore, key provisions of the C.R.C such as Art 40(2) which contains a host of guarantees for children should be used to govern juveniles under the criminal justice system. Some of these guarantees include the presumption against retroactivity and the right to be informed of the offence for which he/she is charged.
Emphasis should be placed on prevention mechanisms rather than adjudication in order to prevent the occurrence and reoccurrence of crimes. This could be achieved by providing adequate facilities at community level which will engage children, thus reducing or preventing the commission of crimes. It could also be accomplished by ensuring a healthy family upbringing. The school curriculum should also include modules on children’s rights and the prevention of crimes.
In conclusion the SLCMP reiterate that juvenile justice should be the priority of every country justice system. Therefore in implementing policies, the best interest of the child should be sought.
The SLCMP promises to continue proficient monitoring to see how these strategies will be implemented.
by ibakarr | Aug 11, 2016 | Uncategorized
On the 14th February 2005, legal arguments were proffered in the Trial Chamber 1 before Justices Pierre Boutet (presiding), Bankole Thompson, and Benjamin Itoe regarding a motion filed by counsels for the First and Second Accused persons to subpoena His Excellency Alhaji Dr. Ahmad Tejan Kabbah to testify on their behalf.
This comes against the backdrop that efforts initiated by Learned Counsels for the said accused persons have failed to secure the attendance of the prospective witness as he has categorically stated his unwillingness to appear before the Special Court.
Grounding his arguments on Rule 54 of the Rules of Procedure and Evidence of the Special Court (The Rules), Counsel for the Second Accused, A. Bockarie Esq submitted that it is now necessary more than ever that the President in his capacity as Minister of Defence, Commander in Chief of the Armed Forces, and Head of State must be called upon to give evidence before the Court. Therefore, it can only be by the force of law, through which the counsels seek to compel the attendance of the President in court especially when other means of doing so have failed.
The essence of the subpoena basically as was argued, is firmly grounded in the fact that His Excellency is reasonably believed to be in possession of information relevant to the accused persons.
This therefore raises two issues;
Is the President compellable as a factual witness before the Tribunal?
Had the defence team satisfied the legal test for issuance of a subpoena?
The answers to the above could be in the affirmative. But again, it must be remembered that the Attorney General, in his capacity as the principal legal adviser had earlier contended that the President is not compellable under such circumstances as a subpoena requires a judicial penalty to enforce it where it is disobeyed. Notwithstanding the above proposition, sufficient jurisprudence direct that the Trial Chamber has the power by virtue of the available Rules of Procedure and Evidence, and the Ratification Act of the Special Court to issue an enforceable subpoena to any individual within the Special Court’s jurisdiction. This is where Rule 54 of the Rules specifically plays a vital role in the Court exercising its decision on such matters.
More importantly, Section 20 of the Special Court Ratification Act explicitly provides that for the purposes of execution and other issues by a judge or the chamber, such executions and other issues shall have the same effect as if it were issued by a Judge, a Justice of the Peace, or a Magistrate of the Sierra Leone Court. This provision is reinforced by Rule 8 of same which also provides that the Government of Sierra Leone shall cooperate with all organs of the Special Court at all stages of its operations. To this end, the Inspector General of Police could issue a warrant to any individual who fails to comply with orders of the Court upon its request.
Throughout the legal wranglings in Court, Counsels for the First and Second Accused maintained that the President of the Republic of Sierra Leone enjoys no Functional Immunity in international criminal tribunals – the Special Court for Sierra Leone being no exception. Pursuant to that, an unreported Supreme Court judgment of Sierra Leone which was cited demonstrate the fact unequivocally that a sitting Head of State is only entitled to immunity to processes brought before the national courts except if waived of it. But the point here is that this is an international tribunal within the national jurisdiction although not bound by it. So should immunity be evoked in that peculiar circumstance?
In line with the arguments above, it was conjectured by the Lead Counsels for the First and Second Accused that Section 29 of the Special Court Ratification Act categorically states that the official status of any person cannot be a bar to prosecution let alone being called upon to give evidence. Before resting his case, A. Bockarie Esq. further addressed the Court by emphasizing that the President may provide material assistance relating to issues of Moinina Fofanah’s (2nd Accused) alleged culpability as one of those who bears the greatest responsibility for violations of international law, and may therefore throw light more specifically on his alleged command responsibility, the duties associated with the position of Director of War, how orders passed through the chain of command and structure, and interactions therein, coupled with the linkage in communication between President Kabbah and the CDF whilst in Guinea.
Dr. Jabbi, Counsel for the First Accused broadly adopted the submission made by A. Bockarie Esq. insofar as they could be applicable to Mr. Norman. It must be remembered that the consequence of disobeying an order of a subpoena, is that though it would not be presumed, the necessity would arise. Therefore, against the consideration that the President volunteered to an agreement with the United Nations Secretary-General in setting up the Court, and further ensuring legislative ratification of same by the Parliament of Sierra Leone, the question now as to whether the President of Sierra Leone would submit to the jurisdiction of the Special Court as a witness should not arise because he should feel duty-bound to comply with an order by the Court in regards to testification. But where he fails to do that, Rule 77a (3) and (c) of the Rules can then be evoked in case of contempt of a subpoena.
Against the backdrop of all the arguments outlined, it must be mentioned too that the relevance and materiality of the evidence expected from President Kabbah is the main criterion for the clarion call of the prospective witness in relation to the indictment before the Court in respect of the CDF accused persons. Suffice it to say that Document No. 547 of 30th January, 2006 containing Norman’s Response to Attorney-General’s Reply, in paragraph 6-13, under the rubric – The President as a Material Witness, and specifically Paragraph 7, makes mention of the first accused as a principal force in the establishing, organizing supporting, and promoting the CDF. Further to that, it says that Mr. Norman was the leader and commander of the CDF and had de Jure and de facto command over the CDF. Considering the arguments proffered so far, these are serious allegations to which the best possible evidence could only perhaps come from no less a person than the President of the Republic of Sierra Leone who was at all times relevant to the Indictment i.e. since 30th November 1996 and to whom further titles such as Commander –in – Chief and Minister of Defence were vested.
The remarks of the Prosecutor in taking a principled and impartial position only ended in suggesting that a subpoena of such nature would be impossible to grant. He reinforced this stand by stating that the issue of compellability is one that the Court needs to decide especially for a sitting Head of State and that quite apart from ensuring that the law and Rules of Procedure are observed, the Chamber may have subpoenas and applications failing or succeeding on their merit. Rule 54, Paragraph 34 of the Rules according to the Prosecutor sets out the standard for issuing a subpoena to a prospective witness. It was further stated that tribunals set up for war crimes have a political aspect and therefore subpoenas should not be abused. He also stated that Paragraph 36 of the Rules lays out the basis upon which the Trial Chamber must consider whether the information in the possession of the witness is necessary for the resolution of the specific issues in the trial. The Prosecution intimated the Court that the Second Accused had the option to go into the witness box himself and testify in his own defence but he has declined to do so and is now calling on His Excellency the President to give information which he is hiding. It must be however noted that Paragraph 7 of the Motion of the Second Accused clearly sets out the matters upon which he justifies the issuance of the subpoena namely, that seven prosecution witnesses have already made mention of President Kabbah. The question therefore is; does merely making mention of a person qualify him for issuance of a subpoena? Certainly not to my mind. But from all the foregone arguments made by the Learned Prosecutor, the question then to the reader is this: Does his position as stated here and argued in court smack off the “impartiality” and “neutrality” insofar as the subpoena is concerned and as earlier on mentioned by him?
Apart from adopting what the Prosecutor of the Special Court had to say, the Attorney-General was of the strongest of views that Mr. Norman is now in essence saying that President Kabbah has knowledge of and saw what he (Norman) was doing in Kailahun. An argument which does not seem to be very convincing by the Learned Attorney-General hopped on when he stated that according to the Indictment, the accused persons are alleged to have violated international humanitarian law against the people of Sierra Leone and therefore President Kabbah may not be called as a witness because he did not know about the atrocities since he lived in Guinea at the time. The question here is does this mean that the President is not in possession of information that might assist the Court in ascertaining the truth? Let me in fact mention that Section 48(4) of the Sierra Leone Constitution does not say anything about subpoenas or immunity before an international tribunal but the learned Attorney –General insistently relied on that provision and maintained that it does not at all compel the President to come to the Special Court upon the issuance of a subpoena. Contrary to earlier submissions by the Attorney-General that given the peculiarity of the circumstances, he may be unable to do anything to have the President testify, he ended his submission by saying that if the Court in any case decides to subpoena His Excellency, he will advise him to come. This seeming ambivalence in the position of the Attorney General regarding the subpoena for His Excellency to testify in court is again punctuated by the fact that he ( i.e. the A- G ) had earlier said that the whole motive of the Defence Counsels is to get the President in the dock so that he can be exposed to humiliation and embarrassment. Another question then in mind is this; does testifying in court as a witness automatically expose one to ridicule and humiliation when in fact perhaps your information may be crucial in assisting the court to ascertain the truth? One might be tempted to say NO, especially considering His Excellency’s enviable legal background. In fact, why in the first place did President Kabbah submit himself to the hearings of the Truth and Reconciliation Commission and have now categorically refused to testify in the Special Court?
The Slobodan Milosevic Case in the International Criminal Tribunal for the former Yugoslavia was cited as been on all fours with the instant matter. In that case, the Court declined to issue a subpoena to both the Prime Minister Tony Blair and the German Chancellor Schroeder who were called as witnesses for Mr. Milosevic. By reference to the CDF’s Organogram as tendered in evidence, the two scenarios are worlds apart in that President Kabbah was here, and is still an integral part of the CDF whilst Prime Minister Blair was not particularly so involved in the machinery of governance with President Milosevic. For once, we should agree that the Defence of the First and Second Accused persons is not only confined to that which may have been already given (i.e. in the case of the First Accused) by their own testimony but when the last defence witness has been called upon to testify. But as yet any person can reasonably conclude that their defence has not yet been given in totality. This is where the President may come in by way of assistance namely, information regarding the flow of command, communication etc.
On the other hand, there has been the contention by the Prosecutor earlier on, that all evidence adduced so far by the Defence does not have anything specifically touching and concerning President Kabbah especially by the witnesses to warrant subpoena. My difficulty here then is this; has it been a rule of practice that it is Prosecution rather than the Bench who should evaluate the mass of evidence before the close of a trial? Certainly not!!
Oral responses by Counsels for the accused have steadfastly maintained that the position of President as Commander in Chief, and the Minister of Defense of Sierra Leone qualifies preeminently as a nexus for the subpoena to be issued regarding the accused persons respective titles as Deputy Minister of Defense cum Coordinator of the CDF, and Director of War (for the Second Accused).
Indeed much has been analyzed regarding the issuance of the subpoena both generally and specifically. The enactment of the Special Court Ratification Act through the Parliament of Sierra Leone which incidentally so, is one of the major political organs and of which the President is a member by virtue of Section 71(1) of the 1991 Constitution makes the issue very important. Therefore, one may have no doubt again that political resourcefulness, have guided the key political partners or stakeholders i.e. the Government of Sierra Leone and the United Nations in ensuring that the processes of the Court are expedited unimpeded. By reason of that premise, it stands to reason that all persons cohabiting within this given geo-political region i.e. Sierra Leone are absolutely obliged to ensure that the mission of the Special Court is satisfactorily complete, and that the country should not revert to the situation that primarily gave rise to the establishment of same. This obligation spans and traverses all strata of the society to evince reverence for the tenets of the Rule of Law.
by ibakarr | Aug 11, 2016 | Uncategorized
Corruption is one of the causes of all ugly happenings in Sierra Leone. It was the primary cause of the war, largely sustained it and continues to stagnate post- conflict development endeavors. This is evident in the facts that Sierra Leone failed to qualify for the G8 debt cancellation initiative in 2005 and still remains to be at the bottom of the UNDP Human Development Index. The Transparency International Report on corruption ranked Sierra Leone 126 out of 159 countries surveyed globally. By these indications, the need to combat corruption as a faux pas in our history and as an impediment for attaining post-conflict development cannot be over emphasized.
Pursuant to the Anti Corruption Act 2000, the Anti Corruption Commission (ACC) was established with the mandate to monitor the performance of service delivery and demand accountability from our public functionaries. This initiative was to serve as a linchpin to the post-conflict reconstruction process and lasting catalyst of good governance.
Since the inception of the ACC, many corruption cases have been investigated and some prosecuted. This piece will therefore assess the work of the ACC from July 2000 to December 2005. The piece will in the end make recommendations that will help fight corruption with more prompt and eager readiness in Sierra Leone.
Investigation
Since July 2000, the ACC has investigated a total of five hundred and fifty one cases. These investigations have included almost all public functionaries. However, the ACC investigations have dominantly been concentrated in the Western Area as its operations over the years been seemingly very centralized. In addition, most of these investigations were reactive, meaning they were prompted by public
complaints and not actually initiated by the ACC. As a matter of fact, from a total of twenty investigations currently held in the Hot-spots ministries, only one is proactive. Similarly, only two out of seven investigations conducted in the non-Hotspots ministries are proactive. Hot-spot ministries have been identified as those ministries with institutional risks for corruption. This is because there are indications that some of the systems and procedures in these ministries are not tight enough and that they allow corrupt practices to develop and flourish easily.
Prosecution
With regards prosecution, out of the five hundred and fifty one cases investigated by the ACC so far, only fifty one of them have been charged to court. Thirty seven of these cases have been charged to the High Court and fourteen to the Magistrate Courts. No Anti-corruption case has been tried in the provincial courts. To date, the ACC cannot bypass the Attorney General and Minister of Justice, as the latter still remains to be the ultimate authority to decide whether a case should be prosecuted. At the moment, there are nine cases with the Attorney General and Minister of Justice for opinion. In the same vein, four cases are with the prosecution committee for opinion. The ACC, up to this period does not have the powers to determine the justiciability or the charge-worthiness of a corruption matter.
Conviction
As already mentioned, the ACC has charged fifty one cases to court since its inception: thirty seven to the High Court and fourteen to the Magistrate Courts. Out of the thirty seven cases in the High Court, nine cases are still on trials. There have been sixteen High Court convictions between July 2000 and 31st December 2005. However, accused persons in four of the High Court cases have been acquitted and discharged, one withdrawal due to death and two discharged due to ill health. Additionally, five cases in the High Court have been discharged for want of evidence, meaning the evidence adduced by the Prosecution was not credible enough to convict the accused persons.
There have been five convictions out of the fourteen cases that have come before the Magistrate Courts since July 2000. While seven of the cases are still before the Magistrates, two accused persons have been acquitted and discharged.
SLCMP’s Views
As a court monitoring programme, the SLCMP acknowledges that the ACC has scored some success in the years of its existence. However, the SLCMP also strongly thinks that the ACC needs to do more or perhaps even change strategy in order to hit the heart of corruption in post-conflict Sierra Leone. To this end, the SLCMP observed that the ACC has focused largely on litigation than prevention. Let me state it clearly that the SLCMP supports prosecution. Our only problem with it is that only few cases make it in courts and very few persons are convicted. The fact that individuals were not convicted does not always necessarily mean that they were not involved in corruption. Sometimes it may just happen that the prosecution’s evidence is not substantial enough to warrant conviction. Subsequently, the individual involved would have got away with what ever wealth he has amassed at the expense of the people of Sierra Leone. What we are trying to say in essence is that, the ACC should equally concentrate on prevention. It needs to mount a robust preventative campaign to avert corruption. Remember, ‘prevention is better than cure.’
The ACC also need to decentralize it activities. It has been concentrating too much of its activities in the Western Area. More investigations need to be done in provincial towns. As already mentioned, virtually no Anti Corruption case has been tried outside Freetown. These are all indicators that the ACC is a bit too centralized, much at the expense of effective service.
On the side of prosecution and conviction, the ACC has relatively made quite a number of successes. This is said in consideration of the fact that out of the 51 cases charged to court, there have been 21 convictions whilst 14 are awaiting judgments. On the other hand, it is very difficult to come to terms with the fact that 5 cases have been discharged in the High Court for ‘want of prosecution.’ Inexcusably, sufficient evidence should be garnered before any corruption case is prosecuted. This is therefore a pointer to the fact that the ACC needs to be doing its own independent prosecution in order to avoid the tendencies of state prosecutors not presenting overwhelming evidence so as to establish (by manipulations) the innocence of accused persons.
Finally but most importantly, the ACC should be permitted to pursue its own prosecution in the name of the Republic of Sierra Leone, as prosecution of corruption cases should be free from any scope of political interference. This will prevent the artificial bottle necks often created by the politically influenced, understaffed and under-resourced Attorney General’s office. When once these are achieved, the SLCMP strongly believes that the actualization of the objective of making corruption history in post-conflict Sierra Leone will be
