by ibakarr | Aug 10, 2016 | Uncategorized
Introduction
The judiciary, the third arm of the State is charged with the responsibility of ensuring that justice and fair play prevail and that individual rights as provided by the constitution are protected. The Sierra Leone judiciary consists of Judges, Magistrates, Justices of the peace and other persons carrying out judicial functions in Sierra Leone. They are conferred with the responsibility of adjudicating “all matters, civil and criminal, including matters relating to the constitution, and such other matters in respect of which parliament may by order under an Act of Parliament confer jurisdiction on the judiciary.” In order to be able to perform this function, the judiciary must be independent and impartial otherwise justice will take a back seat and individual rights as provided by the constitution will be subject to abuse.
In the article to follow I shall examine the concept of independence of the judiciary and profer arguements for the need to change the existing system of judicial tenure in Sierra Leone.
The Concept of Judicial Independence
A fundamental principle and prerequisite of a fair trial is that the tribunal charged with the responsibility of making decisions in a case must be established by law, and must be competent, independent and impartial. The independence of the judiciary requires its freedom from influence or control by the executive or legislative branches: a judge must be free to decide matters before them impartially, on the basis of the facts and in accordance with the law, without any interference, pressures, threats or improper influence, direct or indirect, from any quarter or for any reason. Different organs of the State have exclusive and specific responsibilities, and the other organs must under no circumstances interfere with the judicial arena.
Furthermore, a decision of a court or tribunal will not be independent if some other authority is able to decide whether or not the judgment of the court is to be implemented, nor can there can be a fair trial before a biased court. The judiciary is said to be independent if trial courts are free from influence not only by the executive or legislative branches but by judicial colleagues and superiors as well. The court must be independent from those mandated by law for bringing charges against the accused. In fact, any court reviewing judicial decisions taken by other courts must also be independent and impartial. This does not mean that issues relating to mitigation or commutation of sentences and pardons may not be decided by a non-judicial figure, and indeed in most States such issues may be dealt with by political authorities.
Suffice it to say that there are international standards relating to the selection of judges and their conditions of service which attempt to safeguard the independence of judiciaries throughout the world. These require that judges be selected on the basis of legal training and experience and not for “improper motives”. There must be no discrimination against a person for selection to judicial office on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status. Moreover, promotion of judges should be based exclusively on objective factors: ability, integrity and experience. The international standards also require that the State provides adequate resources to enable the judiciary to perform its functions, and to ensure adequate salaries and pensions.
Interestingly, the international standards state that States may be liable to compensate individuals in the event of judicial misconduct. Consequently, complaints made against judges in their judicial capacity should also be processed expeditiously and fairly. However, judges enjoy personal immunity from civil actions for damages in relation to improper acts or omissions carried out in the course of their judicial functions.
Judicial Independence in Sierra Leone
In Sierra Leone, the judiciary is not entirely independent. This constituted one of the main causes of the war. On the eve of the war the judiciary was not an institution the citizens could be proud of or even trust. While serving only the interests of the few political and economic elites, it denied the majority of the citizenry fair trial and access to justice.
In a bid to reform the judiciary, the framers of the 1991 Constitution among other things included a provision which serves to give the judiciary complete independence from other branches of government. The said provision reads as follows: “In the exercise of its judicial function, the judiciary shall be subject only to the constitution or any other law and shall not be subject to the control or direction of any other person or authority.”
The above provision gives the impression that our judiciary is independent but this is far from being the case. There are many factors which contribute to a sense of lack of judicial independence in Sierra Leone among which include qualification, manner of appointment, conditions of service, conditions governing transfers and promotions, duration of their terms of office and security of tenure. To discuss all of these areas would mean to move superficially over too much ground. Therefore, this article will focus predominantly on security of tenure.
Security of Tenure of Office for Judges
In discussing the tenure of office for judges, we must consider the procedure involved in the appointment and removal of judges from office. This procedure is explained under the provisions of sections 135, 136, and 137 of the 1991 Constitution.
According to section 135(1), the president on the advice of the Judicial and Legal Service Commission and subject to parliamentary approval shall have the power to appoint the chief justice and other judges of the Superior Court of Judicature.
Clearly, the President must seek parliamentary approval, failing which his nomination will be nullified. So where parliamentarians perform their functions devoid of sentiments, parliamentary approval on presidential nominees is given only on the basis of merit. In the end, only individuals with the requisite qualification and credibility will be appointed as judges. As such the President will have to appoint people primarily on the basis of meritocracy and not simply on party affiliation or other forms of connectocracy.
Section 137 deals with the removal of judges from office. The section provides that a judge of the superior court of judicature shall hold office as long as he is of good behavior until he attains the retiring age which is 60 years. At 60 years, a judge may retire and at 65 years, he shall vacate his office. Further, section 137(4) provides for the removal of a judge from office in case of inability to perform the functions of his office whether arising from infirmity of body or mind or for stated misconduct. Where a case for the removal of a judge is presented to the President, he shall only remove the said judge after a tribunal appointed to investigate the matter has found him wanton and his removal approved by a 2/3 majority in parliament.
From the above, it is obvious that the President cannot hire and fire at will. His powers are subject to scrutiny by parliament. The effect of this is that a judge who performs his duties in accordance with the code of conduct of judges should not be arbitrarily terminated. It is in this vein that judges are said to enjoy security of tenure of office.
However, the provision of section 136 provides a cause for controversy. The section provides that where the office of the high court Judge is vacant, the President may appoint a person who has held office as, or qualified for appointment as a judge of the superior court of judicature, even though he has already attained the age of retirement or the age at which he shall vacate his office.
Section 136(3) further states that any person appointed under the latter provision to act as a judge of the high court of justice shall continue to act for the period of his appointment, or if no such period is specified until his appointment is revoked by the President.
Some legal analysts and commentators have argued that while there is no need to seek parliamentary approval, having secured it once, the President’s power to remove a judge under the later provision is not subject to any check and therefore leaves the President with the power to terminate a judge’s appointment at will. Under the circumstances a judge has no security of tenure of office; he could be described as a mere contractor. To maintain himself in the job therefore, a judge may in theory have to dance to the dictates of the executive or some other higher authority thus compromising his independence impartiality. Even if in practice judges act with integrity despite any pressures they may feel, and their impartiality is not affected, their independence is nevertheless crucially undermined by such a system of tenure.
Judicial independence is not a question of the impartiality of an individual judge, but relates instead to the Institutional Framework in which they function. Judicial impartiality is a slightly different issue, and depends more on the actual situation in which the judge finds himself in relation to a specific case. Nevertheless, the two interrelate, in that in the absence of a judicial structural independence, a judge’s impartiality may be called into question. The appearance of impartiality to the public at large is of vital importance to the integrity of the institution as a whole. In any country, the appearance of impartiality is as important as the impartiality itself, and this is especially so in a country where confidence in the judicial system is, regrettably, at it ebb. The appearance of impartiality is compromised by the judges’ lack of security of tenure, unnecessarily undermining public confidence in the judicial system.
In addition to lack of public confidence, at times the absence of judicial independence can bring more sinister consequences. If judges are not left to decide cases based on their own facts, but are instead subject to improper influences and pressures, it is strongly likely that the rights of an individual to a fair trial will be jeopardised. The most notorious example of this is in the event where perceived political opponents of the regime in power are caused to suffer human rights violations when brought before the court. But additionally, if the judiciary feels that it must bow to political pressure, ordinary people brought before the courts may be treated not according to the facts of their case, but on the government’s insistence on focusing on providing the particular output from the court, for example, increased numbers of convictions or harsher sentences.
Conclusion
Fair hearings cannot take place where the judiciary is not independent. Moreover, the general public will never be able to have confidence in such a system. In Sierra Leone, even though section 120(3) of our constitution spells out the independence of the judiciary, in actual fact, inadequate safeguards are put in place to ensure that this provision is guaranteed in practice. One of the central problems lies in the fact that some judges are mere contractors as they do not have security of tenure of office. In order to stay longer on the job or be promoted, they may have to compromise their independence.
According to the Basic Principles on the Independence of the Judiciary, all States should ensure that there are structural and functional safeguards against political or other interferences in the administration of justice. One such structural safeguard, towards achieving judicial independence, would be that all judges should be accorded a high degree of security of tenure of office. To this end, one is tempted to suggest that the provisions of section 136 (2&3) be expunged or amended. The essence is to subject the President’s power of appointment and removal of judges from office to parliamentary scrutiny at all times. This is done with a view to preventing the President from acting arbitrarily. If this is done, judges will be able to perform their functions without fear or favour, and the public will be reassured that any trust in the judiciary will not be misplaced.
by ibakarr | Aug 10, 2016 | Uncategorized
Introduction
An expert witness is a person called upon to testify in court, that has the requisite knowledge or experience, skills and, or education to provide a scientific, technical, or other specialized opinion about the evidence or any disputed issue in the course of litigation. Contemporary criminal trials across the world have shown great interest in the role played by expert witnesses and their evidence tendered in court. Experts normally give opinions which the judge(s) may or may not admit, depending on the weight and admissibility criteria of such evidence when tendered in court. International criminal tribunals likewise have utilized the efforts of expert witnesses and their evidence tendered has helped to clarify many technical issues that seek such expertise knowledge. In one case before the International Criminal Tribunal for the Former Yugoslavia, 13 expert evidences were used on different issues.
This article discusses the role expert witnesses have played generally in criminal trials and in particular during the AFRC Trials at the SCSL. The article brings out the nature of expert evidence, the criteria for tendering such evidence, what is admissible and how such evidence may influence the decisions of the judges in the Trial Chamber.
Expert witnesses are called upon by either the prosecution or defence to provide materials and information that is outside the ordinary experience and knowledge of the court, thereby aiding the court on disputed issues, or to helping one of the parties to prove a particular case that is outside the common experience of the court. The scope of expert evidence covers a broad spectrum and touches on a variety of disciplines.
International criminal trials outline certain criteria as to how expert evidence can be admissible. Firstly, the subject matter should be beyond the ordinary experience of the court and it is required that the testimony should prove or disprove the issue in question. If the matter is within the knowledge and experience of the court then such evidence will not be admitted. Secondly, the expert evidence must be relevant in the sense of assisting the Trial Chamber in determining an issue in dispute. Irrelevant evidence that does not assist the Court will be rejected by the Trial Chamber.
Moreover, expert witnesses should have the necessary qualifications and methods required of formulating their theories. If from cross-examination or proven otherwise that the witness lacks the relevant qualifications, the evidence will not be described as “expert” and may be excluded. This is because expert evidence is opinion evidence, and opinion evidence of non-experts is not admissible in criminal trials because it constitutes hearsay. In other cases, the evidence will be admitted and the question of qualifications of the expert will be treated as to relevance and the weight of the evidence tendered. This may also be a proper basis for cross-examination by the opposing party.
Even though one party is calling the expert witness, the independence of the expert and the evidence to be tendered, is of paramount importance. In Akayesu (9th.March 1998), the Defence was not allowed to bring forward one accused as an expert witness to counter the evidence of a historian expert called by the Prosecution. The accused expert witness was rejected because the Trial Chamber could not be assured of the impartiality of the evidence he was to present in court.
Expert witnesses may be restricted from giving opinions relating to the “ultimate issue” of the case. Such expert evidence may not be admitted if it gives an opinion on the central issue which the court has to determine. International criminal trials do not lay emphasis on matters expressing the ultimate issue but whether such evidence will assist the court. Thus Zainab Bangura’s Report for Trial Chamber 2 was admissible because among other things it may assist the Trial Chamber in arriving at a decision on the gender-based crimes constituted in the charges of war crimes and crimes against humanity as supposed by the Prosecution.
Furthermore, the expert witness must not usurp the powers of the Trial Chamber as Lawton L. J. puts it in Turner (1975) “the fact that an expert witness has impressive scientific qualifications does not by the fact alone makes his opinion in matters of human nature or behaviour within the limits of normality any more helpful.” The court should make the factual findings on the evidence and the expert witness is to express an opinion on them. The expert is called upon to draw inferences and to formulate opinions from particular facts which are not obvious to the layman but which his professional knowledge and experience enables him to perceive. “An expert opinion could be relevant if the facts upon which it is based are true….It is for the Trial Chamber and not for the expert to determine whether the factual basis for an opinion is truthful.”
The Trial Chamber should always be in control of the trials as they are not bound to accept any evidence from experts because it is the Trial Chamber that makes the decisions about evidence proffered, which includes decisions as to the evidence to be accepted and rejected.
Expert Witness Evidence before the Special Court
Three members (Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu) of the former AFRC were indicted and arraigned at the SCSL. The accused were charged with various crimes ranging from war crimes, crimes against humanity and other serious violations of International Humanitarian Law. The trials began on the 7th. March 2005, in Trial Chamber 2, before Justices Doherty (Presiding), Lussick and Sebutinde. Fifty-nine (59) witnesses testified for the Prosecution of which four (4) gave expert evidence, three of which were in open court sessions. Among other things Zainab Bangura testified on the concept of the “Bush Wife Phenomenon” during the war in Sierra Leone; Colonel Richard Iron gave evidence on the AFRC Command Structure and how effective was the command during the AFRC regime (both in Freetown and in the jungle after they were ousted). Lieutenant Colonel John Petrie testified as to the identity of the First and Third Accused of the AFRC Indictees. An Undisclosed Expert Witness gave evidence on the recruitment and use of Child Soldiers during the war in Sierra Leone but his evidence was not made public for security reasons.
Expert Testimony for the charge of Forced Marriage
During the AFRC Trials, the Prosecution called on Zainab Bangura to give evidence as an expert witness on ‘forced marriages’ during the war in Sierra Leone. She prepared a report referred to as the “Bush Wife Phenomenon”. The Trial Chamber certified her as an expert because she has professed knowledge on gender-related issues. According to the Report she described forced marriage within the Sierra Leone context as the physical abduction of a girl or woman by a rebel soldier during the war. When an attack was carried out the rebel/soldier would restrain the girl/ woman and proclaim her to be his “wife” (‘yu na mi wef’), this implies control and permanence of the relationship. Consent and the possibility to protest at such “marriage” is impossible as the girl/woman was already a hostage of the rebel/soldier. She stated that even though some of these ‘bush couples’ may have legitimized their relationship, the origin of these bush marriage relationships emanated from abduction during the war. The rebels/soldiers did not seek the consent from the girl or her family so this constituted “forced marriage” which should be a war crime in the Sierra Leone context. The Prosecution was trying to prove that ‘forced marriage’ constituted war crimes and crimes against humanity as it affects the social and psychological status of the girl/woman victim. If upheld by the Trial Chamber then it will be an international precedent to convict persons of this type of wartime gender-based violence.
Initially the Prosecution went straight to the tendering of the Report during examination in chief. The Defence objected that it was premature to tender the document without cross examination as to her being an expert witness and the nature of her report. They also questioned the witness’s certification as an expert. The Report contains more personal experiences and perceptions than independent factual information or scientific data. It was alleged that she may not be independent as she has been agitating for women’s rights. The Defence also pointed out that the Report affects the “Ultimate Issue” in the case and should be considered hearsay.
The Prosecution responded, that the Defence was taking the Court backwards for the Trial Chamber had already certified the witness as an expert. It was argued that claiming her Report to contain hearsay or personal assessment was a matter of evidentiary weight and did not go to admissibility. The Prosecution pointed out that in any event hearsay evidence is admissible in the SCSL, but the opposing party has the option to cross examine the witness as to the veracity and reliability of the hearsay statement. The Trial Chamber stated that the Report should only be tendered after cross examination of the expert witness. After cross examination, the same issues were raised by the Defence and after the Prosecution responded. The Trial Chamber finally accepted the Report into evidence.
Expert Testimony as to Command Structure
Colonel Richard Iron had first testified in the CDF Case and therefore when he testified on the AFRC case, his certification as an expert was not contested by the Defence. In the AFRC Trials, he explained about the command structure and function of military operations during the AFRC regime. He pointed out the difference between span and chain of command in a general army structure before he related it to that of the AFRC. He showed how military operations are broken down into staff and branches. According to him, the staff/branches in a traditional army structure, ranged from G-1 to G-5. His research methodology focused on whether the AFRC had a military hierarchy and structure; whether it exhibited the characteristics of a military organization; whether its strategic aims and objectives were transferred to tactical activity on the ground; and whether its command was effective.
Colonel Iron commented that he was surprised to find that there was no G-2 and G-5 within the AFRC rank and file but there existed other positions that were within the AFRC which are not in regular armies. For instance, the AFRC placed the Camp Commander in the position of the G-4. This does not mean that the group was not operating as a military organization. He said that the AFRC Command was a highly effective military force because it exhibited characteristics of traditional military organization that encompasses command, planning, orders, recruitment and training, lessons learnt and procurement. The Prosecution led the expert witness to determine the extent to which the AFRC was functioning as a military organization in the sense that it was effective. He did not focus on the individual responsibility of the AFRC accused but on the command structure as an organization.
The Defence again submitted an objection as to the admissibility of the evidence in relation to the ‘ultimate issue’ suggesting that effective command is an issue that will prejudice the trials. They also challenged Colonel Iron’s limited exposure to sources in formulating his report as he failed to interview most of the leaders of the AFRC. They claimed that Colonel Iron had restricted himself to what the Prosecution had already covered, thereby compromising his independence. The Trial Chamber considered the report to be relevant and therefore admissible, but will take the Defence arguments into consideration when considering the weight to give his evidence.
Further Expert Evidence
Lieutenant Colonel John Petrie gave testimony on the identification of the First and Third Accused, Alex T. Brima and Santigie B. Kanu, in the AFRC Trials. The SLCMP does not see this witness as giving expert testimony but identification evidence.
Witness TF1-296 gave evidence as an alleged expert on child soldiers in closed sessions testimony.
Conclusion
The procedural rules in International criminal trials allow the judges to exercise their discretion to either admit or reject expert opinions very widely, and even when they fall short of the necessary criteria for admissibility. However such expert evidence may influence the decision of the judges during the administration of justice. The SLCMP is mindful of the fact that expert opinion should be given serious consideration before decisions are taken on them as no two opinions are the same and can only be applied mutatis mutandis.
by ibakarr | Aug 10, 2016 | Uncategorized
Detention basically is the act of slamming restrictive measures on someone’s movement against his own free will. Law enforcement bodies all over the world practice this act in a bid to allow the due process of the law. In criminal matters, people are detained mostly upon the ‘reasonable suspicion’ of their having committed or being about to commit an offence for questioning and proper preparation for trial. This is generally called, Pretrial Detention.
Pretrial detention in many countries gives the cause for unsentenced prisoners making up the majority of the prison population. In many instances, such detainees are held for years before being judged not guilty of the crime with which they were charged. They even may be imprisoned for periods longer than the sentences they would have served had they been found guilty. This state of affairs does not only violate fundamental human rights norms, but also contributes significantly to prison over crowding, a problem that is itself at the radics of numerous additional abuses.
This article therefore examines the pretrial detention situation in Sierra Leone in juxtaposition with the constitutional provisions that make pretrial detention legal or illegal and how it affects the rights of the accused. The article further looks at the pretrial detention situations in other countries and in the end makes recommendations especially on how the miscarriages of pretrial detention can be ameliorated in Sierra Leone.
The 1991 constitution of Sierra Leone states without ambiguity in section 17(1) that no person shall be deprived of his personal liberty. However, people are detained before trials pursuant to section 17(1) f which makes it lawful for people to be deprived of their personal liberties. On many occasions, law enforcement bodies in this country, have tampered with the rights of accused persons whiles carrying out this provision.
The instances of gross violations of the rights of the accused are in their multitudes when you look at the pretrial detention situation in Sierra Leone. In Port Loko, a murder suspect was in custody for two months and ten days without being charged to court. In Moyamba, two brothers were held in remand for three years on allege charge for common assault. In another case, a suspect for manslaughter was detained for nineteen days without charging him to court.
Section 17 (3) a of the 1991 constitution states that any person arrested or detained shall be brought before court “within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences” and section 17 (3) b states that accused persons for ‘other offences’ be brought to court “within seventy two hours of his arrest…” this means such a suspect should spend a maximum of three days in detention without charging the matter to court.
International standards require that pretrial detention be used only if there is a demonstrable risk that the person concerned will abscond, interfere with the course of justice, or commit a serious offence. However, from what the SLCMP has observed in courts, together with the responses of people in our outreach programmes, bail is refused to people who fulfill these criteria and granted to people charged with heinous offences. This is mentioned with specific references to a public officer charged with corruption over one hundred thousand dollars, who was caught escaping into Guinea but was later granted bail in court and a parliamentarian charged with manslaughter too was granted bail. On the other hand, a journalist charged with just seditious libel was refused bail. Far from being against the bail grants of the two instances mentioned, the emphasis here is that the grant or refusal to bail should not be contingent on influences as was eminent in all three cases.
Relying on the presumption of innocence, defendants in criminal matters should normally be granted release pending trial. Articulating this principal, Article 9(3) of the International Covenant for Civil and Political Rights (ICCPR) provides that: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. In interpreting this provision, the UN Human Rights Committee has ruled that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Necessity is defined narrowly: “to prevent flight, interference with evidence or the recurrence of crime” or “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” In our courts, these criteria have on many occasions been ignored for the granting or refusal of bail.
This misnomer is further compounded by the fact that detained defendants are also victimized by long undue delays in criminal trials in this country. This act is overtly inconsistent with international human rights norms. Such delays violate the provisions of the ICCPR Articles 9(3) and 14(3) (C) which prohibit unreasonable protracted criminal proceedings. The unreasonable denial of pretrial release to criminal defendants and the excessive duration of criminal proceedings violate human rights, but combined together, they constitute a grievous affront to justice.
Additionally, the prison conditions in this country are concisely just inhumane. Medical facilities are very poor and grossly inadequate. They are vulnerable to starvation as police detainees get food from the prisons once a day . If unlawful pretrial detention is an abuse, then imagine when it is multiplied by keeping detainees in those squalid and unsanitary conditions.
In other parts of the world, pretrial detention remains to be a consistent threat to human rights norms. Latvia, Ukraine, and Kazakhstan have incarceration rates of 395, 406, and 496 per 100,000 of their populations respectively. Pretrial detainees in these countries like in Sierra Leone are often held in cramped conditions with poor standards of hygiene and health care; facilitating the spread of transmissible diseases throughout the prison population and into the population at large when infected prisoners are released.
In conclusion therefore, in as much as the miscarriages involved in pretrial detention in Sierra Leone constitute gross human rights violations, the SLCMP as a court monitoring programme believes that these abuses could be avoided. In the first place, the judiciary, media and civil society need to raise massive awareness among the people of Sierra Leone about the basic constitutional provisions regarding detention. This is important because in almost all cases, victims of unlawful detention are normally ignorant of the right to bail and the laws binding detention. There is also the unending imperative need to strengthen the judiciary, and in particular, increasing its size and efficiency. In so doing, unlawful detention problems cannot only be solved, but it will be a decisive step in handling the adverse undue delays in criminal trials.
by ibakarr | Aug 10, 2016 | Uncategorized
The Special Court for Sierra Leone (SCSL) was established by an agreement between the United Nations and the Government of Sierra Leone, to try persons bearing the greatest responsibility for crimes committed since 30th. November 1996. The Court started operations in August 2002 and the first set of indictments was issued in March 2003. When the trials commenced in June 2004, many Sierra Leoneans were interested in attending the hearings. As a matter of fact, organizations and individuals had to book with the Outreach Section of the Court to secure a place. Similarly so, local and international media liaised with the Press and Public Affairs Section to get seats. In a nutshell, the Court was well-attended everyday when there was public hearing. However, since the Sierra Leone Court Monitoring Programme (SLCMP) started monitoring the Special Court in 2004, we have observed that the initial enthusiasm has waned considerably. In a bid to rejuvenate attendance, we therefore sought to know from the people of Sierra Leone why they do not attend the trials, and what can be done as a measure to encourage their attendance.
We examined the attendants of the trials in order to determine the categories of people who attend trials. We discovered that they are mainly relatives and friends of the accused persons, journalists, human rights and other civic society groups, mostly those working on justice related issues. We were not able to find ordinary Sierra Leoneans coming to witness the proceedings just for the sake of wanting to know the process of the court. We asked the attendants whether they would have come to the hearings if they were not relatives/friends of the indictees or not having official interests in the proceedings. Ninety percent of them gave negative answers. However, some of them indicated that coming to the Court, affords them the opportunity to hear on first hand basis, what really happened in their country. Ten percent said they would have come even if they were not relatives, friends, journalist or persons working for organizations.
Compared to the RUF and AFRC trials, we discovered that the CDF trials attract more people than the other two trials. Towards the latter part of the CDF trials, the public has become less interested in the proceedings and the attendance has reduced considerably. So the question here is why do people not attend the trials on a regular basis? If the SCSL was established to try persons that are responsible for the atrocities committed against the people of Sierra Leone, then it stands to reason that they should participate somehow in the trials by attending the court sittings.
When we solicited the views of people on the streets of Freetown, a few of them replied that they attended the Special Court trials at the initial stage because they wanted to see the trials on first hand. However, they said it was very difficult to gain access therein as they had to go through too many security checks. They added that the Court frequently went into ‘closed sessions’ which ultimately barred them from attending. They also complained that they hardly see most of the witnesses as they speak behind shields. They said that they were not against protecting the identity of the individual witnesses but this makes the whole trial process cumbersome. “How can I continue to listen to somebody that I don’t see?” One of them asked, especially when this is not always the case in the national courts.
Majority of the people on the streets said they have never attended any sitting, principally because of lack of interest. Others wanted to come but they were not sure whether they will gain access to the court proceedings. Some attributed it to the security alertness outside the gate and around the fence as it mystifies and scares them away since they do not intend to have any problems with the Court. Others simply stated that they are not aware of the trial sittings schedule.
When asked whether they would want to attend and what needs to be done regarding that, a few of them retort that they are not interested in attending the proceedings. The majority acclaim they would be interested in attending the proceedings provided they are not subject to rigorous security checks.
The SLCMP is aware that the SCSL has been making efforts not only to ensure maximum attendance at trials but also to keep the people informed about the proceedings. For instance, the SCSL’s Outreach Section in the initial stage invited people from various organizations to attend the hearings as well as holding programmes showing highlights of the proceedings to people in Freetown and the provinces. The Outreach Section and the Registrar’s office have also instituted the Special Court Interactive Forum so that organizations will be kept informed about activities at the SCSL. In addition to that, the SCSL security procedures have improved remarkably, especially with installation of the new security devices that has reduced the rigours people used to undergo.
However, the SLCMP always maximizes the opportunity to ensure that the people are adequately informed of the happenings in the Special Court and sensitizes them about the importance of attending the trial sessions. This will give an independent and objective assessment of the trials in their own perspective which is very important. In relation to the security checks, they are basically geared towards ensuring the safety of the judges, lawyers, the accused persons and all other staff members. It is usually reckoned that the price for freedom is eternal vigilance. Therefore the people should realize that routine security checks on their person should not to prevent them from exercising their civic right to attend court sittings. Furthermore, the SCSL Outreach Section should continue to work with civil society groups to strengthen their networks, thereby effecting active participation for all and sundry.
by ibakarr | Aug 10, 2016 | Uncategorized
Discrimination is any form of differential treatment or classification. It emphasizes the distinction based on race, colour, sexual orientation, language, religion, political or other opinions, national or social origin, property, birth or other status for the purpose of disadvantaging the other individual or group. Conversely, equality means none of the above status or conditions which serve as a ground to discriminate others. The United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) defines discrimination against women as:
“…any distinction, exclusion or restriction made on the basis of sex, race, religion which has the effect or purpose of impending or multiplying the recognition, enjoyment or exercise by women irrespective of their mental status or on equality of men and women of human right and fundamental freedoms in political, economical, social, cultural, civil or any other field”
Sierra Leone like many other African countries and most parts of the Middle East are male dominated societies as such gender discrimination is common practice in all facets of life. A high proportion of women in Sierra Leone especially those at grass root level are faced daily with negative traditional beliefs that put them in disadvantaged position. Furthermore the nature and extent of gender discrimination in Sierra Leone varies considerably from other parts in the world, in that it is legally sanctioned and reinforced by existing practices. Nevertheless, the law can also be the most appropriate means to challenge inequality and ultimately change the situation.
In recent times, advances have been made to eradicate the practice. Chapter 3 of the 1991 Constitution of Sierra Leone, commonly referred to as the ‘Bill of Rights’, states that the Fundamental Human Rights and Freedoms of every individual in Sierra Leone must be recognized and protected. Sec. 15 of the 1991 Constitution provides that regardless of sex, every person in Sierra Leone has right to life, liberty, security of person, the enjoyment of property, the protection of deprivation of property and the protection of the law. Sec. 27 further states that “no law shall make any provision which is discriminatory either in itself or its effect.” All of these provisions are geared towards ensuring that every individual irrespective of race, sex, religion has equal right of opportunities under the law. The Government has taken a step further to produce two policy documents entitled National Policy on the Advancement of Women (NPAW) and the National Policy on Gender Mainstreaming. In addition to that, Sierra Leone has signed and adopted several international instruments which condemn discrimination and protect the right of the minorities. Amongst these are the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The Beijing Rules, and most importantly CEDAW. In line with this, women’s rights campaigners and other civil society and human rights activists have been sensitizing the population about women’s rights.
Notwithstanding all these efforts, there is a lot to be done to eradicate discrimination of women in our society. This article first examines certain provisions in the laws of Sierra Leone that discriminate against women. It discusses the discriminatory practices in the courts and looks at the role the government has played to curb discrimination and concludes by giving recommendations for reform.
Discriminatory provisions in laws of Sierra Leone
The legal system of Sierra Leone is made up of the Constitution, Common Law, statutory law and unwritten Customary Law. Unfortunately in Sierra Leone, the laws proclaiming to prohibit discrimination are now the main anchor used by people to discriminate against women. It gives the rights with one hand and takes it with the other. Each right provision is swamped by too many exceptions. Why these contrasting views, becomes a subject of discussion. For instance Sec. 27(1) of the 1991 Constitution states that “no law shall make any provision that is discriminatory in itself or its effect.” This is weakened by the exceptions in Sec.27 (4) d & e, which states that “it shall not apply to any law that makes provision for adoption, marriage, divorce, burial, devolution of property on death and customary law.” It is not only ironic but equally inexcusable that all the laws which discriminate against women are permitted to do so under the Constitution.
The Citizenship Act is discriminatory in both sex and race. Under the Citizenship Act 1973 , one can be a citizen by birth if his father or grandfather was born in Sierra Leone before 19 April 1961 or who resided in, Sierra Leone on 18 April 1971 and your mother must be a citizen of Sierra Leone and not an alien before her child can become a citizen. Furthermore, Sec.7 states that women who are not Sierra Leonean citizens but who marry a Sierra Leonean man can apply to become Sierra Leonean citizens in the manner prescribed and they will be granted a certificate of naturalization. Why is it that Sierra Leonean women are not accorded similar rights? A foreign husband married to a Sierra Leonean woman cannot, even by application, be accorded similar rights to citizenship as does the foreign wives of Sierra Leonean husbands.
Sec.7 of the Christian Marriage Act (CAP 95), 1960 states that if the party to a marriage is below 18, the consent of the father is to be sought before marriage and only if the father is dead or unable for any reason to give consent, should the mother be consulted. This section does not afford women and men the same level of authority or guardianship over their children . Sec. 9(2) of the Mohammedan Marriage Act (CAP 96) also excludes women from administering estates of the intestate whereas it grants such powers to the son, the eldest brother of the intestate, or the official administrator.
Furthermore, the Second Schedule of the Administration of Estate Act” … states that, if a man dies intestate leaving a widow and children or issue, the widow inherits one third of the estate and the children will get the remaining two-thirds equally. If the woman is childless, she receives one- half of the estate and the remaining goes to close relations of the husband. . If the man dies leaving no widow or children, the father inherits the whole of the estate. It is only when the father is not alive that the mother inherits. On the other hand, if a woman dies intestate leaving a husband all her estate goes to the husband.
Sec.4 of the Matrimonial Causes Act (Cap102) of the Laws of Sierra Leone states that “if the respondent is pregnant at the time of the marriage by another man other than the petitioner, the petitioner can file for divorce”. What happens, in a case where a man impregnates another woman out of wedlock, is that not a basis for the wife to file for a divorce instead of waiting for desertion without cause which is three years minimum?, Three years is an exceptionally long time to wait before one can apply for divorce.Sec. 7 further states that it shall be the duty of the court to inquire on the alleged facts and it shall dismiss a petition for divorce if the petitioner condones the act. One may ask is condoning behavior a just reason for the courts to dismiss a petition for divorce? When it is likely that the wife continues to stay with the husband because she is afraid to leave or she has no other option. This law is gender discriminatory in the sense that it could prevent a woman from divorcing an adulterous, irresponsible and abusive husband. Sec. 20 states that the husband has the right to claim damages from the person that commits adultery with his wife, but the wife is not allowed to seek damages from the person with whom her husband commits adultery. This Section confirms the notion that adultery committed by a man is not as reproachful as that committed by a woman.
Secs. 47 and 48 of the Employers and Employed Ordinance states that no girl or women at any age should be employed in mines or at night”. This provision confirms the stereotype perception that women are less hardworking, fragile and unable to take care of themselves. It denies women employment opportunities available to men. Women should have the right to choose their employment and should not be denied employment available to men on the basis of sex .We can clearly see in our society today, women working as both day and night securities. Isn’t that an instance which shows that women like men are capable of taking care of themselves. Sec 15 of the Criminal Procedure Act (CPA) states that in selecting jurors, a male juror should be over 21 years and a female juror should be above 30 years. Is this distinction not based on sex? Is it not discriminatory? The difference in age also clearly discriminates between the sexes and it makes that law irrational.
The discriminatory practice under customary law is a widespread catastrophe and a recipe of hardship for women. It affects the majority of Sierra Leonean whose personal law happens to be Customary Law. The general law court is less effective in more than half part of the country. Therefore people in the provinces are left to the whims and caprices of the norms and practices of customary law. Sec.170 (2) of the Constitution makes customary law one of the laws of the country. Sec170 (3) defines customary law as “the rules which by custom are applicable to particular communities of Sierra Leone”. This law is unwritten and differs from place to place throughout the country. Under this law there is no fixed age for marriage, once the child reaches puberty she can be given into marriage anytime. The girl and the mother’s consent are subordinate to that of the father’s. A woman is forced to refund her dowry price if she leaves her husband. Women are considered as chattels and therefore in the distribution of property they are said to be part of estate themselves and are to be inherited alongside with that estate. In the Northern part of the country, women are not allowed to contest and vote in paramount chieftaincy elections.
Discrimination in the courts
Court Officials like Judges and Magistrates are skilled and knowledgeable in the law, but can also be products of a discriminatory society by upholding discriminatory laws or by being silent about them. The fact that the Judiciary interprets the law they should be the forerunners to discourage such discriminatory practices in their midst. To be frank, the courts have not done much to guarantee equal opportunities to both sexes. For instance, assault is a criminal act which ought to be punishable under the Offences Against the Persons Act 1861, but the courts have generally given little protection to female victims of domestic violence. Instead it encourages the victims to do an out- of- court settlement. Undue delays in court proceedings is another cause for discrimination, for example child support and alimony cases can drag on for years until the woman decides to settle out of court and ending up accepting a settlement that is less fairer than she deserves.
Sec.76 (6) of the CPA states that both men and women could be sureties but in practice women are always excluded as sureties .Even the female lawyers themselves are discriminated in the courts by litigants who lack confidence in them and think they could easily be bullied by their male counterparts. This tells why more than 90 percent of practicing lawyers in Sierra Leone are male. There are other archaic rules which require women to wear scarves on their head and put on skirts, thus indicating that women unlike men should show more humility in the court room.
The Role of the Government in curbing discrimination
The Government of Sierra Leone has tried to enhance gender equality between the sexes by enacting laws to eliminate discrimination against women. The Government is a party to most of the international instruments that condemn discrimination against women. But unfortunately it has failed to implement these laws. Chapter 2 of the 1991 Constitution outlines fundamental state policies. The principles are exactly the sort of constitutional provisions that women could like to ensure that their right to equal treatment is respected by the Government . Sec. 6(2) states “the state shall…discourage discrimination on the grounds of….sex”.Sec.8 (2) that every citizen of Sierra Leone should have equal rights and opportunities in relation to employment and education. However, it is sad to note that provisions contained in Chapter 2 do not confer legal rights and shall not be enforced in any court of law . Sierra Leone is also a signatory to CEDAW who’s Article 2 provides that “state parties condemn discrimination against women in all it forms and agree to pursue by all appropriate means without delay a policy to eliminate discrimination”. But uptil now Sierra Leone initial second and third reports to CEDAW which were due on the 11 December 1987, 1993 and 1997 respectively have not yet been produced and Sierra Leone is yet to domesticate key provisions in the CEDAW.Sierra Leone was also part of the forth world conference which took place in Beijing in September 1995. The participating nations pledged to take effective actions against violations of rights and freedoms against women. Though this is a mere declaration and not a treaty, yet Sierra Leone as one of the participants has both moral and political commitments to it . Disappointingly the Government has not done much to implement both national and international laws that discriminate against woman.
Recommendations
In making recommendations for law reform Sec. 27(4) d of the 1991 Constitution needs to be amended as it goes against the spirit of the section. If we fail to amend this provision there will not be any effective law reform, as the Constitution is the grundnorm (that is the ultimate law of the land or the source of all other law).This is reaffirmed in Sec.175 (15) which states that any law that is inconsistent or in contravention with any provision of the constitution shall be declared null, void and of no effect. In a summary of the report submitted by the Lawyers Centre for Legal Assistance sponsored by the United Nations Development Programme on Unequal Rights and Discriminatory Laws Against Women in Sierra Leone, it recommended that, Sec. 2 and 7 of the Citizenship Act should also be amended by using gender neutral language such as “parents and grand parents” instead of using “women and men”. The fundamental right to acquiring and passing on citizenship must be given equally to both men and women. The wordings in Sec. 2 and 7 of the Christian Marriage Act which refers to the consent of the father or mother should be amended to read “the consent of either parent” and parents should be accorded the same rights over their children.Sec. 9 of the Mohammedan Marriage Act should also be amended in a manner that female members of the family will have equal rights to administer estates. The Matrimonial Causes Act is too archaic and should be repealed and replaced with a Divorce Act which should strive to create equality between the parties to the divorce. With regards the administration of estate, spouses should be granted the same rights in respect of ownership acquisition, administration and disposition of property.
The Government’s Law Reform Commission in its 2004 Report indicated that it focused mainly on the elimination of discrimination against women in areas of marriage, succession, inheritance and customary law . At the end of it review the commission made key recommendations, namely that Cap 95, 96, 97 of the Laws of Sierra Leone on Christian, Mohammedan and Civil marriages be amended to bring it in line with modern times . In addition to these,it states that rules for distribution contained in the Administration of Estate Act Cap 45, should also be repealed and replaced with a new act to be known as “the Devolution Act”. It further states that gender discrimination in Customary and Islamic Laws of succession and inheritance should be removed. It emphasizes that in the distribution of estates governed by Customary Law,5% of personalty should go to the parents and grand parents of the intestate,5% to dependants,40% to surviving spouse(s), another 40% to the children and the remaining 10% be set aside for the upkeep of the intestates children who are below 18 years. It further stressed that relatives should not be entitled to real estate and “family” should be restricted to “parents and grand parents”, for the purpose of devolution of estates. These mentioned above are some of the key recommended bills sent to parliament by the Commission, for reform. Though the Government has done a lot to reduce discriminatory laws in its Law Reform Commission report, yet it should try to balance various cultures with the protection of the Fundamental Human Rights provisions. The Government should also invest in the judicial system so that it functions effectively with required expertise and speed. The Government should organize gender sensitization trainings for judges, magistrates, prosecutors, court staffs and law enforcement officers. In addition to these women should be allowed to take part in decision making and leadership roles in the country. In other words the Government should try to implement the Truth and Reconciliation Commission Recommendations which admonish the government to legislate for meaningful youth and women representation in politics. The Government should further strive to ensure that there is equality in education, which could form the basis of women’s empowerment in all aspect of life, because if women are educated they will be able to challenge all traditions and beliefs that lay emphasis on inequality between the sexes.
The court house is supposed to be the temple of justice and a model of social equality .Therefore rules and procedures which serve to discriminate against women should be amended in a way that they will no longer treat women unequally.
We cannot fully blame the judiciary for the discriminatory practices in the courts because they are basically interpreting what is given to them in accordance with the letters and spirit of the constitutional provisions. Nonetheless, the Sierra Leone judiciary lacks judicial activism, meaning they fail to progressively interpret constitutional provisions to include rights provisions. The SLCMP strongly recommends that the judiciary in post-conflict Sierra Leone be seen to be proactive because their role is very central for reforms.
In conclusion the Government and the courts have major roles to play to wipe out all gender discriminatory laws which have become a menace in the society. Both institutions should therefore work towards the elimination of all statues, customs, tradition and beliefs that disadvantage people based on their sex.
chauvinistic tendencies and patriarchal attitudes were accepted standards across the world. Therefore to keep pace with the development in the world the government must try by all means to eliminate all Statutes, Customs, traditions and beliefs which are based on the concepts of inferiority or superiority of the sexes.
