by ibakarr | Aug 10, 2016 | Uncategorized
Since the Sierra Leone Courts Monitoring Programme (SLCMP) started monitoring the national courts in early September 2005, it has observed that delays in courts are most times avoidable. Under Section 23 (1) of the 1991 Constitution of Sierra Leone, an individual charged with criminal offence is guaranteed speedy trial. This has however not been the case as proceedings continue to be run at a snail’s pace.
This article primarily examines the prosecutorial and defense strategies that amount to undue delays in courts; how these affect the trial process and the right of accused; and suggests ways of remedying the situation.
The SLCMP assigned one monitor in September to Magistrate Court No. 1 presided over by Magistrate Sam Margai. The Monitor attended court hearings at least 5 hours a day, from Monday to Friday. This article is based largely on the observations during this period.
THE CAUSES
Prosecution
The prosecution on its part has not been helping the situation. In the month of September there were many occasions upon which the Prosecution failed to produce witnesses, and the Magistrate ordered successive adjournments as a result. The prosecution appears regularly to lose track of their witnesses as police investigators who double as witnesses are often transferred to other areas of the country without prior knowledge of the prosecution. In addition to that, when more than one police officer is involved in the investigation of cases, the prosecution often has difficulty in getting all of them to testify in court. The absence of a victims and witness support unit within the Sierra Leone judiciary makes it very difficult for the prosecution to keep track of their witnesses. These delays, which in our submission, could be prevented, negatively impact on the speedy resolution of cases, casting doubt upon the basic tenets that make the process of litigation credible and reliable.
Another reason for delays is the lack of the requisite expertise to prosecute cases. The police prosecuted all the criminal cases that were heard in Magistrate Court No. 1 during this period. However, with the exception of the senior/lead police prosecutor, most of the police officers lack the requisite prosecutorial expertise. Most times they are not au fait with the procedures and even the facts of the matter. Their inadequate experience is largely manifested in the manner they present evidence and cross-examine witnesses in court. Unfortunately it appears that they make series of mistakes that do not only lead to acquittal but unnecessarily prolong the trial process.
Defence
Defense counsels on their part often fail to adequately to represent their clients in court. On many occasions Magistrate Sam Margai has been forced to take a brief stand down on cases so that the accused could scout around for his counsel. This is usually because the defense counsels have more clients than they can serve. They are often scheduled to be in more than one courtroom at the same time. Consequently, they end up not attending other court sessions in which they must make representation.
The Bench
The fact that most legal practitioners are not attracted to the Bench brings undue pressure on the latter. The courts are assigned more cases than they can handle which has continued to cause undue delays in court. Furthermore, the Bench attempts to write every bit that is said by the witness or the counsels, thus often stopping them in order to catch up with them. This act brings undue delay to the trial process. However, the problems with delays are circular, because in view of the fact that a case only hears one witness at a time, and that a witness’s testimony itself may be divided into two hearings, it is vital that the judge has a good note of exactly what was said so that it can be revisited later. The SLCMP thus acknowledges the very difficult situation in which Magistrates find themselves, and understands that changes must be made in the whole system and cannot be made merely in part of it.
EFFECT
Delays in criminal proceedings have severe negative implications on the path to justice. It results in distortion of evidence for both the prosecution and defence. The Commonwealth Conference on Fair Trials in November 2002 commented that: “[l]ong delays in complex criminal trials can be unfair because evidence for both the prosecution and the defence can be lost or forgotten over time.” In Sierra Leone, these delays are occurring not just in complex criminal trials, but even in more straight forward ones. This is a key problem for witnesses as they are constrained during their testimonies especially when it discredits certain pieces of evidence.
Delay may also result in the commission of more crimes, and will certainly cause the courts to have to balance this risk against the rights of the accused, causing individuals’ rights to suffer for the sake of the court’s own internal problems. The Ninth Criminological Colloquium on Delays in 1998 (Strasbourg) commented on the dangers of delays thus:
“Due to delays, dangerous defenders (if not incarcerated prior to trial) may be free and commit new crimes. On the other hand pre-trial delay may violate the right of the offender in custody on remand if he or she is not incarcerated after trial, as delay generally affects the rights of the defendants as mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms, state constitutions and other laws” .
The right of the accused is not ensured as a result of delay, which is contrary to the constitution of Sierra Leone. This is worsened by the fact that no compensation is given to the accused upon acquittal, even if it is clear that the case has been managed incompetently or the prosecution has behaved unreasonably. Compensation is a contentious point with regard to criminal trials in any jurisdiction, but it is strongly arguable that in certain limited circumstances it should be allowed, and this in itself could be an incentive for the courts or the prosecution to run cases more efficiently and fairly. The country also suffers in terms of resources and time. It also costs the State huge sums of money to pay for court hearings, which could rather be used to provide other services in order to improve on the standard of living of the masses.
RECOMMENDATIONS
The SLCMP has been considering what could be done to help ameliorate the situation. Clearly all efforts must be made in the whole, and stakeholders on all sides must work together to achieve improvements. There will be more suggestions for change in future editions of the Monitor, but as a preliminary finding, we suggest that this situation could be improved if steps were taken to work on the following suggestions.
In the first place the Chief Justice can set up a committee within the judiciary to monitor case files in the various courtrooms. This will enable the top cadre of the judiciary to know the pace of trials and in the same vein ascertain problems and how they can be surmounted.
The prosecution on its part needs more qualified personnel who can effectively lead the witnesses. The Criminal Investigation Department of the police should also be staffed with bright and highly trained officers that have manifested their ability in the investigation of criminal cases. Currently some of the investigators do not seem to obtain statements that can effectively prosecute accused persons for alleged crimes, and so it may help if they were to receive training from prosecutors, lawyers or judges in what is really needed before the court. The police administration should also collaborate with the prosecution more to ensure that transfer of police personnel dealing with court matters is communicated.
There should be coordination between defence counsels and the clerks of the various courts to prevent simultaneous hearing of cases. If the dates cannot be separated, the scheduled time must allow counsels to represent their clients, or alternative representation must be assigned (although this is not preferable as counsel will, or at least should, spend a considerable amount of time getting to know the details of each case so it would save preparation time if they stay with cases from start to completion). Significantly though, defence counsels as legal practitioners need not to be reminded that, once contracted, they are obliged to provide the services for which they have been hired, and so it is their responsibility to ensure that even if they themselves cannot attend, a competent counsel arrives, prepared and on time, to represent the client.
Government should improve on the current compensation given to the judicial sector as a way of attracting able legal practitioners to occupy the Bench. This would clearly attract many qualified practitioners who currently frown on the Bench, making them ready to serve in that capacity. However, in no jurisdiction are judges paid as well as the most well paid lawyers, and so the government should not have to compete financially to obtain such. Sitting on the Bench is, in most jurisdictions, an honour bestowing respect, and many judges see it moreover as a matter of public service, a means of helping the community. Thus lawyers cannot see it purely in terms of financial gain, as this is unfeasible in any part of the world, but once salaries are of a respectable level that would itself improve the status of the Bench as both in terms of respect and as a career option.
The Bench on its part can leave the note-taking to one of the court recorders, or alternatively record proceedings on a cassette, to be listened to if necessary by judges or lawyers, for example in an appeal. This will save the court a great deal of valuable time, and also enable judges to look at witnesses and gauge their demeanour, helping them decide the credence they are to give to their testimony.
In view of the observations on the causes for delay in the trial process we sincerely hope that some of the recommended solutions suggested in this piece will be considered and adopted by the Government, and by all the parties mentioned above, in the interest of justice.
The SLCMP looks forward to bringing further suggestions on the subject of delay in due course.
by ibakarr | Aug 10, 2016 | Uncategorized
Witnesses who testify in person in criminal trials often face serious challenges, especially when some are victims of the atrocities perpetrated. Sometimes, testifying in court invokes the horrors they have gone through. In other instances, they fear reprisal from the accused, his family or friends and even the communities they come from. This fear often dissuades them from coming forth to testify.
At the Special Court for Sierra Leone (SCSL), some witnesses come to court under protective shields to testify. Rule 69(A) of the Rules of Procedure and Evidence of the SCSL (the Rules) ensures that “either of the parties to the trials may apply to a Judge of the Trial Chamber or Trial Chamber to order the non-disclosure of a victim or witness who may be in danger or at risk, until the Judge or Chamber decides otherwise.” That notwithstanding, Article 17(4)e of the Statute of SCSL gives the accused the right to “examine the witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her.” Where do both interests meet? Which of the two interests should have primacy over the other? To uphold the right of the accused to fair trial and public hearing, or to prevent intimidation of and reprisal against the witness at the expense of the right of the accused? This article therefore attempts to answer these questions by examining witness protection at the SCSL, the safety and security of the witnesses before, during and after trials and how best to achieve such goals without inhibiting the rights of the accused to a fair and public trial. The article ends by exploring possible ways of replicating similar programmes in our municipal courts.
Witness Protection at the Special Court for Sierra Leone
From its inception, the SCSL established a Victim and Witness Unit (VWU) pursuant to Rule 34(A) of the
Rules, commonly referred to as Victims and Witness Support Unit (VWSU). Their task is to protect victims and witnesses who will testify before the Court, “…and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances”. Unlike other international criminal tribunals, the establishment of the VWSU is by virtue of the SCSL Statute. The inclusion of this Unit in the Statute signifies its cardinal importance to the whole trial process. The Unit is larger and has more staff compared to the International Criminal Tribunals for Rwanda/Yugoslavia (ICTR/ICTY). The Unit provides both physical security and psychosocial support. It extends similar programmes to family members of a witness whose testimony is likely to jeopardise their lives.
As aforementioned, witness protection normally assumes three dimensions: protection before, during and after trials. Whilst the SLCMP acknowledges the importance of all three stages, this article focuses mainly on the trial stage, as it concerns the rights of the accused.
During trial stage, the VWSU gives courtroom orientation to witnesses to help them overcome fright and enhance confidence. A witness that does not require special protection normally gives testimony in the full view of all sides to the trial including the public gallery. However, in the case of a protected witness, he comes to court with a pseudonym and sits in a shield to protect his identity at least from the public. In addition, the court sometimes distorts his voice so that the public gallery would not identify the witness speaking. If the witness is a minor or a child below 18 years, the video-link method is used. The Unit will show the screen only to members of the internal Courtroom and not to the public gallery. Furthermore, if the witness testifying is likely to say certain names that will eventually disclose his identity or the testimony is sensitive to national security, the Court will go into “Closed Session”.
This to some extent infringes on the rights of the accused to a fair and public hearing. As already stated, Article 17(4)e of the Statute of SCSL affirms the rights of the accused which states that the witness needs to give testimony in person so that the accused shall be able to cross-examine him. The SCSL therefore bears the responsibility for ensuring that both interests are satisfied. Even though Hinga Norman had commented that the continuous hearing of testimony in closed sessions undermines the rights of the accused to fair and public trials, the concession both sides have made has collectively helped find a middle ground. As it is stated in Rule 75(A) of the Rules, protective measures should only be applied “…provided that the measures are consistent with the rights of the accused.” Therefore, balancing of witness protection against that of the rights of the accused to a fair and public trial has been a point of contention in the CDF Trials at the SCSL.
Furthermore, there have been occasions in which the people have tried to disclose the identity of the witnesses. For instance during a Cross-Examination, Hinga Norman called an undisclosed witness ‘my son’. This may send signals to the public that such a witness was a beneficiary to the accused. Also in March 2005, the Court charged four women for contempt of court, following their attack on one witness. They were relatives of the indicted AFRC members (Gullit, Bazzy and 55). Although the Court at the end of their trials, tempered justice with mercy by giving them suspended sentences when they pleaded guilty, it was able to send a strong warning to the public that any attempt at disclosing the identity of witnesses will be punishable by law.
The Situation Before the National Courts
Public hearing is a hallmark in the justice system of Sierra Leone. However, the national courts do not have any proper form of witness protection in criminal proceedings. In the 1980s, the court attempted some form of witness protection, albeit on ad hoc basis in high profile criminal trials. For instance, during the treason trials of G.M.T Kaikai, Francis Minah and
Others, in 1987, the prosecution ensured protection for its ‘principal witnesses’. Since then, no programme has been instituted to effect any form of witness protection, though some witnesses during the 1998 AFRC Court requested for it. Instead, the courts have been relying on the citation – ‘contempt of court’ to ward off any threat against witnesses.
There has indeed been some wariness among the general population as to the witness protection measures before the SCSL. The fear that potential witnesses will not come forward and openly present their names to the public may make people feel that they are hiding something, and that they are not telling the truth. According to this argument, if they were telling the truth they would have no problem with openly disclosing their names. This argument is based on false presumptions and fails to take into account a justified fear of reprisal, as has been borne out in the experience of the SCSL, where it has been suggested that witnesses have indeed been approached and threatened.
Why then should there not be a Witness Protection Unit in our municipal courts? As we are in a transition process yearning for a rapid advancement towards a proper judicial system, there is a dire need for the government to see how best to institute a unit for the protection of witnesses in criminal trials. Given that the SCSL is still around, and the Sierra Leone Judiciary has given verdict on the constitutionality of the Special Court , the SLCMP suggests that both institutions should take advantage of the situation to collaborate and exchange ideas. In fact, the SLCMP suggest that the VWSU should not be an exception to the legacies the SCSL will leave with the people of Sierra Leone, and that steps should be taken to ensure that such a Unit is established forthwith.
by ibakarr | Aug 10, 2016 | Uncategorized
Since the Sierra Leone Courts Monitoring Programme (SLCMP) started monitoring the national courts in early September 2005, it has observed that delays in courts are most times avoidable. Under Section 23 (1) of the 1991 Constitution of Sierra Leone, an individual charged with criminal offence is guaranteed speedy trial. This has however not been the case as proceedings continue to be run at a snail’s pace.
This article primarily examines the prosecutorial and defense strategies that amount to undue delays in courts; how these affect the trial process and the right of accused; and suggests ways of remedying the situation.
The SLCMP assigned one monitor in September to Magistrate Court No. 1 presided over by Magistrate Sam Margai. The Monitor attended court hearings at least 5 hours a day, from Monday to Friday. This article is based largely on the observations during this period.
THE CAUSES
Prosecution
The prosecution on its part has not been helping the situation. In the month of September there were many occasions upon which the Prosecution failed to produce witnesses, and the Magistrate ordered successive adjournments as a result. The prosecution appears regularly to lose track of their witnesses as police investigators who double as witnesses are often transferred to other areas of the country without prior knowledge of the prosecution. In addition to that, when more than one police officer is involved in the investigation of cases, the prosecution often has difficulty in getting all of them to testify in court. The absence of a victims and witness support unit within the Sierra Leone judiciary makes it very difficult for the prosecution to keep track of their witnesses. These delays, which in our submission
could be prevented, negatively impact on the speedy resolution of cases, casting doubt upon the basic tenets that make the process of litigation credible and reliable.
Another reason for delays is the lack of the requisite expertise to prosecute cases. The police prosecuted all the criminal cases that were heard in Magistrate Court No. 1 during this period. However, with the exception of the senior/lead police prosecutor, most of the police officers lack the requisite prosecutorial expertise. Most times they are not au fait with the procedures and even the facts of the matter. Their inadequate experience is largely manifested in the manner they present evidence and cross-examine witnesses in court. Unfortunately it appears that they make series of mistakes that do not only lead to acquittal but unnecessarily prolong the trial process.
Defence
Defense counsels on their part often fail to adequately to represent their clients in court. On many occasions Magistrate Sam Margai has been forced to take a brief stand down on cases so that the accused could scout around for his counsel. This is usually because the defense counsels have more clients than they can serve. They are often scheduled to be in more than one courtroom at the same time. Consequently, they end up not attending other court sessions in which they must make representation.
The Bench
The fact that most legal practitioners are not attracted to the Bench brings undue pressure on the latter. The courts are assigned more cases than they can handle which has continued to cause undue delays in court. Furthermore, the Bench attempts to write every bit that is said by the witness or the counsels, thus often stopping them in order to catch up with them. This act brings undue delay to the trial process. However, the problems with delays are circular, because in view of the fact that a case only hears one witness at a time, and that a witness’s testimony itself may be divided into two hearings, it is vital that the judge has a good note of exactly what was said so that it can be revisited later. The SLCMP thus acknowledges the very difficult situation in which Magistrates find themselves, and understands that changes must be made in the whole system and cannot be made merely in part of it.
EFFECT
Delays in criminal proceedings have severe negative implications on the path to justice. It results in distortion of evidence for both the prosecution and defence. The Commonwealth Conference on Fair Trials in November 2002 commented that: “[l]ong delays in complex criminal trials can be unfair because evidence for both the prosecution and the defence can be lost or forgotten over time.” In Sierra Leone, these delays are occurring not just in complex criminal trials, but even in more straight forward ones. This is a key problem for witnesses as they are constrained during their testimonies especially when it discredits certain pieces of evidence.
Delay may also result in the commission of more crimes, and will certainly cause the courts to have to balance this risk against the rights of the accused, causing individuals’ rights to suffer for the sake of the court’s own internal problems. The Ninth Criminological Colloquium on Delays in 1998 (Strasbourg) commented on the dangers of delays thus:
“Due to delays, dangerous defenders (if not incarcerated prior to trial) may be free and commit new crimes. On the other hand pre-trial delay may violate the right of the offender in custody on remand if he or she is not incarcerated after trial, as delay generally affects the rights of the defendants as mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms, state constitutions and other laws” .
The right of the accused is not ensured as a result of delay, which is contrary to the constitution of Sierra Leone. This is worsened by the fact that no compensation is given to the accused upon acquittal, even if it is clear that the case has been managed incompetently or the prosecution has behaved unreasonably. Compensation is a contentious point with regard to criminal trials in any jurisdiction, but it is strongly arguable that in certain limited circumstances it should be allowed, and this in itself could be an incentive for the courts or the prosecution to run cases more efficiently and fairly. The country also suffers in terms of resources and time. It also costs the State huge sums of money to pay for court hearings, which could rather be used to provide other services in order to improve on the standard of living of the masses.
RECOMMENDATIONS
The SLCMP has been considering what could be done to help ameliorate the situation. Clearly all efforts must be made in the whole, and stakeholders on all sides must work together to achieve improvements. There will be more suggestions for change in future editions of the Monitor, but as a preliminary finding, we suggest that this situation could be improved if steps were taken to work on the following suggestions.
In the first place the Chief Justice can set up a committee within the judiciary to monitor case files in the various courtrooms. This will enable the top cadre of the judiciary to know the pace of trials and in the same vein ascertain problems and how they can be surmounted.
The prosecution on its part needs more qualified personnel who can effectively lead the witnesses. The Criminal Investigation Department of the police should also be staffed with bright and highly trained officers that have manifested their ability in the investigation of criminal cases. Currently some of the investigators do not seem to obtain statements that can effectively prosecute accused persons for alleged crimes, and so it may help if they were to receive training from prosecutors, lawyers or judges in what is really needed before the court. The police administration should also collaborate with the prosecution more to ensure that transfer of police personnel dealing with court matters is communicated.
There should be coordination between defence counsels and the clerks of the various courts to prevent simultaneous hearing of cases. If the dates cannot be separated, the scheduled time must allow counsels to represent their clients, or alternative representation must be assigned (although this is not preferable as counsel will, or at least should, spend a considerable amount of time getting to know the details of each case so it would save preparation time if they stay with cases from start to completion). Significantly though, defence counsels as legal practitioners need not to be reminded that, once contracted, they are obliged to provide the services for which they have been hired, and so it is their responsibility to ensure that even if they themselves cannot attend, a competent counsel arrives, prepared and on time, to represent the client.
Government should improve on the current compensation given to the judicial sector as a way of attracting able legal practitioners to occupy the Bench. This would clearly attract many qualified practitioners who currently frown on the Bench, making them ready to serve in that capacity. However, in no jurisdiction are judges paid as well as the most well paid lawyers, and so the government should not have to compete financially to obtain such. Sitting on the Bench is, in most jurisdictions, an honour bestowing respect, and many judges see it moreover as a matter of public service, a means of helping the community. Thus lawyers cannot see it purely in terms of financial gain, as this is unfeasible in any part of the world, but once salaries are of a respectable level that would itself improve the status of the Bench as both in terms of respect and as a career option.
The Bench on its part can leave the note-taking to one of the court recorders, or alternatively record proceedings on a cassette, to be listened to if necessary by judges or lawyers, for example in an appeal. This will save the court a great deal of valuable time, and also enable judges to look at witnesses and gauge their demeanour, helping them decide the credence they are to give to their testimony.
In view of the observations on the causes for delay in the trial process we sincerely hope that some of the recommended solutions suggested in this piece will be considered and adopted by the Government, and by all the parties mentioned above, in the interest of justice.
The SLCMP looks forward to bringing further suggestions on the subject of delay in due course.
by ibakarr | Aug 10, 2016 | Uncategorized
Sierra Leone is still in a period of transition, meaning, it still has the opportunity of bringing initiatives that will inhibit the reoccurrence of the just concluded decade long civil conflict. The war was not only notorious for its egregious abuses of human rights but also for degenerating further the already ramshackled status of the justice sector.
It has been argued that, on the eve of the war the once reputable judiciary was renowned for rendering justice only to the few political elites and the wealthy. Poor Sierra Leoneans could not enjoy similar opportunities. People became disgruntled with the justice system and this contributed tremendously to the outbreak of the war.
The Sierra Leone Court Monitoring Programme deems the Government established Law Reform Commission essential to the transition process. This article is therefore arguing a case for the establishment of a Public Defender System, parallel to the Directorate of the Public Prosecution, within the Sierra Leone legal system. It specifically argues for the establishment of a mixed system, a combination of the generally two systems: ‘Office of Public Defender’ and the ‘List’ systems.
The idea for the mixed system stemmed from our experience in monitoring the Special Court for Sierra Leone (SCSL) for the past one year. The SCSL is currently using the mixed system, designed to provide for judicial economy, effective representation and cost effectiveness.
The List System
The list system provides for indigents to be assigned counsels from a list of lawyers provided by the State. This system is said to be cost effective as the State would not have to employ permanent lawyers but hire them as the need arises and on contractual basis. This will also speed up the trial process since lawyers will not be overburdened with cases. The task of supervising the counsels hired is that of the State. It is difficult for the State to perform this function as they seldom establish bodies to supervise the counsels hired.
An Office of the Public Defender
In the second system, government establishes the Office of the Public Defender from which counsels, employed on permanent basis by the State, are assigned to indigent defendants. This system is said to be more expensive as the Government will not only have to incur the cost of paying for the employment of these lawyers since it retains them on an open-ended contract, but also the lawyers will be overburdened with cases. Sometimes, there may even be conflicts of interest in defending more than one client at trials. Consequently, the very essence of having a defence counsel i.e. to ensure effective representation will be undermined.
The Mixed System
The third is the mixed system already mentioned above and it is a novelty. It is the combination of the two systems already discussed. In the mixed system, the Government establishes an Office of a Public Defender with few duty lawyers and administrative staff. The office in turn maintains a list of qualified defence lawyers who will be contracted only after an indigent defendant chooses them. This system should not only be cost effective but should also ensure that counsels focus on a particular client avoiding conflict of interest as well as speed up the trial process.
Example: in the US
In countries such as the United States where the Public Defender System has long been in existence, its root is grounded not only in law but also in “the principles of a civilized society”. As early as in 1853 the Indiana Supreme Court rule noted the centrality of a robust defence to the whole trial process. Justice Sutherland further elaborated on the right of the indigent defendant to a counsel. Speaking for the majority in Powell v. Alabama, he stated that:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with rules of evidence. Left without the aid of counsel he may be put on trial without charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue, or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepared his defense, even though he [has] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know to establish his innocence.”
In 1914, the first Public Defender Office was opened in United States when the Board of Supervisors of the County of Los Angeles appointed Walton J. Woods Public Defender pursuant to the County Charter of 1913. Although the right to be assigned a defence counsel is a right enshrined in the Federal constitution, it is today implemented mainly by the states through the Office of the Public Defender which provides representations for indigents accused or convicted of criminal offences. They are responsible to ensure the constitutional rights of the defendants are fully protected; a right accorded to all indigents fairly, and on equal basis regardless of race, creed, nationality or socio-economic status.
Examples elsewhere
Recently, countries in transition in Central and Eastern Europe after the Cold War made provisions for the Office of a Public Defender in their constitutions. In Sierra Leone however, this has not been the case despite the fact that we are still in transition. The commonest reason is that the Office of a Public Defender system is not part of our colonial heritage. Sierra Leone inherited the loose and ad hoc system from its British colonial masters in 1961. In this system, the State does provide indigent defendants with counsels in criminal cases but not necessarily one of their choosing. In other words, they are arguably left with no option but to accept the Government’s chosen lawyer. After over four decades of independence, Sierra Leone laws are expected to continue to develop. Even the British system that was copied adopted a Legal Aid Scheme as early as in 1949, well before Sierra Leone gained independence. British legal system has continued to evolve since then and has resulted in the enactment of the ‘Access to Justice Act 1999’ by the British parliament. This Act transferred the administration of legal aid to an independent statutory body, the Legal Service Commission. The Commission works in partnership with the Government Minister. While the Government Minister is charged with the responsibility of making the overall Legal Aid Policy, the commission is responsible for its administration, including payment and monitoring of the practitioners who render services to indigent accused or convicts to ensure quality service.
The current situation in Sierra Leone
However, developments in the Sierra Leone legal system have not only been few but far between: new legislations are promulgated but at snail pace and archaic ones are rarely repealed to meet the changing situation. The lack of corresponding office of a Public Defender, like that of the Director of public Prosecution (notwithstanding the fact that it is not part of our colonial heritage) underscores this but largely undermines the effort in dispensing justice, especially for the indigent. It gives the state undue advantage over the indigent accused persons. Inequality of arms breeds unfairness and subsequently undermines respect for the rights of the accused as enshrined in the 1991 Constitution of Sierra Leone.
As aforementioned, Sierra Leone has been practicing an ad hoc system where a State counsel is assigned to defend a particular indigent accused. This system is already inundated with myriad of problems. The lawyers on many occasions are so overburdened with cases that they sometimes cannot respond adequately to the task of providing adequate defence. The Constitution of Sierra Leone 1991 guarantees the right to a lawyer. The question here is not about the need to provide a lawyer for the indigent defendant but how to make the best use of the lawyers whose services may be available with limited funds and how to ensure the provision of similar facilities to those that are accorded the prosecution. Under the current system, the indigent is likely to have to just accept any lawyer imposed on him by the State because of his indigent status. This should however not be the case as it does not create competition, and encourage more productivity to attract clients.
Furthermore, in an event the State has to hire a private counsel, the Registry often has difficulty in getting lawyers that are willing to take cases. Most times, only newly qualified lawyers respond. Lawyers that have been in practice for long are often attracted by high profile cases. The main reason for this is that, remuneration is small and slow to get payment from the State. However, it is essential that the accused or convicted indigent is assigned a counsel in the earliest stages of a trial or appeal not just for prestigious court appearance as many abuses occur in the very beginning of a case.
The mixed system, the system currently practiced by the Special Court for Sierra Leone is designed to trim down the difficulties that accompany the two systems already discussed. These difficulties include the high cost of legal operation, counsel assigned to more than one accused, potential conflicts of interest and delays in the trial process. However, it is not without its own challenges. Some of the challenges are similar to the ones already discussed in the two systems. For instance, some of the private practitioners whose names are maintained by the Office of the Principal Defender may be engaged in other cases at the time a client chooses them and there may even be extensive bureaucracy in hiring and paying counsels. Furthermore, the role of the Office of the Public Defender may sometimes be unclear: whether it is simply to administer defence generally, which includes staffing and payment of salaries or is involved in defending i.e. investigating and representing indigent accused persons, at least at the initial stage. These challenges are not insurmountable. Sierra Leone has the golden opportunity to learn from and remedy some of the shortcomings of the system as applied by the Special Court.
Now that we are still in transition, this is an opportunity to prove that ipso jure, right to an effective legal counsel is not a privilege but a constitutional right.
by ibakarr | Aug 10, 2016 | Uncategorized
One important issue that arose in Hinga Norman’s case in the period March-June 2005 was that of the admissibility of witness testimonies from Moyamba, an area in the South-West of the country. This article charts the history of the problems involved in the consolidated indictment against former government minister Hinga Norman which included references to Moyamba, and questions the tactics used by the Prosecution in order to get such evidence admitted. It concludes by advocating for a more active approach to be taken by judges to escape the danger of getting lost in technicalities.
Background to the consolidated indictment
Back in February 2004, the Prosecution served a consolidated indictment referring to crimes committed in Moyamba. This was an area unmentioned in the first indictment against Hinga Norman, and as such should normally have been sought separately as an amendment. Worse still, according to Norman, the Prosecution failed to serve the new indictment on Norman himself, instead only serving it on his defence counsel, contrary to the Special Court Rules. Although no complaints were made for six months about either of these, in September 2004 Counsel for Norman brought a motion complaining about both.
In November 2004 the Trial Chamber Majority found that although there was indeed a procedural error in not serving the consolidated indictment personally, this did not unfairly prejudice Hinga Norman’s right to a fair trial because he had been served with the initial indictment. However, Norman’s rights were prejudiced by the inclusion of crimes in Moyamba, because these constituted materially different charges, and as such Norman should have been given the opportunity to plead again to those charges. The Majority decision ordered the Prosecution to decide whether to expunge the references to Moyamba, or to seek an amendment. In the meantime, the relevant sections would be stayed. Judge Itoe issued a strongly dissenting opinion complaining that the rules of procedure must be followed more strictly.
The Moyamba Crime Base testimony
Both sides appealed to the Appeals Chamber, and by March 2005 both were still waiting to hear back. The Prosecution, apparently having expected a response by the first week of March from the Appeals Chamber, had prepared witnesses to testify as to the portion then under the stay. This may seem surprising given their full knowledge of the stay. However, counsel for Norman agreed to go ahead with the testimony, so as to avoid any delay caused by the Prosecution having to prepare fresh witnesses. Nevertheless, as such issues cannot simply be decided by an agreement between counsel, the Trial Chamber had to decide whether or not to hear the testimony.
The rules on admissibility of evidence at the Special Court are framed very widely, and judges are presumed, correctly or not, to be able to exclude things from their consideration if need be, so that it does not cloud their overall judgement. Accordingly, in the week of 4th March 2005, the Majority of the Trial Chamber decided that they would go ahead and hear the Moyamba crime base testimony, as this was in the interests of judicial economy and did not prejudice Norman’s rights. If the Appeals Chamber decided the consolidated indictment was not proper, they would consider excluding the Moyamba evidence from their deliberations. However, the Chamber was split. Judge Itoe asserted that even if it were in the interests of justice and of judicial economy, that it would be premature and violate the rights of the Accused to go ahead and hear the stayed testimony before hearing back from the Appeals Chamber. This seems indeed to have been the correct approach procedurally. Nevertheless, the majority’s decision prevailed, and over the following two weeks seven witnesses were heard describing events that took place in Moyamba, who testified as to looting, burning and killing by the Kamajors.
Appeals Chamber decision on Consolidated Indictment
In May 2005, the Appeals Chamber got back to the parties in an animated decision which reflects Justice Robertson’s long-standing concern for speeding up proceedings. It was surprisingly candid in its derision of all parties – Defence, Prosecution and even the Trial Chamber were all denigrated in some way. The decision noted that the Prosecution was ‘unhelpful and complacent’, and slated the Prosecutor for his ‘failure to appreciate’ the correct layout of an indictment; Judge Itoe’s argument for abiding strictly by rules of procedure was labelled as ‘hyperbolic’; while Defence counsel for Norman were lambasted for their unnecessarily complicated use of the English language and were told ‘we hope not to have to read a gibberish like this again’.
The Chamber held that the Trial Chamber’s decision as to personal service on Norman was correct, because Rule 5 of the Special Court Rules requires that any objection as to compliance with the Rules should be made at the earliest opportunity, and the defence had waited for six months before they made any complaint. In any case, the breach was only technical. The decision concluded that although the Prosecution additions in the consolidated indictments certainly amounted to new material, that the defence would not be prejudiced and the trial would not be delayed by these amendments. Hence the Chamber in some ways jumped the procedural hurdles in an effort to speed the trials along, in that it chose not to require the Prosecution to file leave to amend the consolidated indictment, which could have delayed proceedings by many months. Instead it went straight ahead and granted the amendment itself.
Conclusion
In consequence, testimony from Moyamba district can now be included in the Judges’ considerations. The Prosecution’s tactics are not surprising but are a little disappointing. The Prosecution, in knowledge of the stay, should perhaps not have gone ahead and prepared the Moyamba testimony, because in this way they themselves caused the danger of losing time. In this way they pressured the defence into accepting the court hearing the testimony, as Judge Itoe complained. Indeed, it was in part because of defence cooperation with the Prosecution that the Appeals Chamber decided Norman’s rights would not be prejudiced by admission of the testimony. We are left with the feeling that the Defence was slightly hard done by as a result of their goodwill.
Nevertheless, the approach to the rules taken by the Appeals Chamber was sensible and proper, and the national courts should consider the benefits of such judicial activism. Although no-one would advocate for rules of procedure to be flouted, it is important to look to the substance rather than the form. If a rule has clearly been constructed for some purpose other than that for which a lawyer is using it, the bench should indeed, when discretion permits, not let procedural technicalities cause delay and injustice. It has been suggested that one problem currently seen before the national courts is that certain lawyers pick on minor technical irregularities in order to delay cases, sometimes even as a tactic aimed at wearing the other side down. Despite the general reluctance in Common Law jurisdictions for judges to intervene and manage cases, at times it would seem to be justified. The SLCMP will do more research into the approach taken by judges at the national courts, but at this stage we would support the more active approach taken by the Special Court Appeals Chamber on this occasion.
