by ibakarr | Nov 7, 2013 | Uncategorized
Abstract
The primary aim of this piece of article is to identify ways in which the Equal Opportunities Commission of Mauritius and other external oversight institutions in Africa as a whole can be empowered to maintain strong resilience against political interference, manipulation and control in the execution of their functions and day to day operations. In realizing this objective, the research draws inspiration from other external oversight institutions prevalent in South Africa, Kenya, Nigeria, and Sierra Leone in arriving at a model approach that will help to enhance and bolster up the resilience of external oversight institutions in Mauritius and those within the African continent in general against political influence and control.
Introduction
An external oversight framework can be simply defined as an apparatus that is set up to carry out institutionalised scrutiny and monitoring over established institutions, public officials as well as private entities in a country with regards to their conduct, exercise of powers, performance of their duties and use of resources allocated to them.
It is important to emphasize that established institutions in Africa are subjected to various modes of oversight ranging from internal to external as well as advisory. There
are no one size fits all situations. In Sierra Leone for example, external oversight of the police force is regulated by a Police Council while public complaints are largely handled through an internal mechanism known as the Complaints Division and Internal Investigations Department (CDIID). The Country’s Human Right Commission also indirectly exercise external oversight on the police force under its broad functions on promoting and protecting human rights while the nation’s Anti Corruption Commission does exercise oversight on matters of police corruption.
In South Africa, external oversight institutions are guaranteed under chapter 9 of the constitution but oversight on the police service is done through an external body known as the South Africa Independent Complaints Directorate. In Kenya and Nigeria, police oversight is carried out by external bodies known as the Independent Police Oversight Authority and the Police Service Commission respectively.
Taking a cursory look at the situation in Mauritius, one may note the existence of a plethora of external oversight institutions. Prominent among them is the Equal Opportunities Commission which was set up in 2012 to provide oversight on government and private institutions in a bid to deter them from enforcing discriminatory practices and policies within their sphere of influence or domain. Other oversight institutions such as the Police Service Commission, the Judicial and Legal Service Commission as well as a Human Rights Commission have also been set up to provide oversight on the police, judiciary and on human rights in Mauritius respectively.
But notwithstanding their prevalence, it is beyond dispute that external oversight mechanisms in Africa have been largely ineffective in their monitoring and control over established institutions within the state. Some of the reasons for this ineffectiveness could be traced to lack of resources, capacity building, effective powers as well as deep seated corruption and mismanagement. But more significant however, is the issue of political interference, manipulation and control which arguably is perhaps the most crucial factor inhibiting the effective operations of external oversight institutions in Africa. A lot of political interference is evident in the areas of appointment, promotions, control and resource allocation.
How then can external oversight mechanisms develop strong resilience against political interference and control?
In answering this question, I have come up with a model I codenamed the “8 R approach” which if effectively adhered to will not only serve as political buffer for external oversight institutions but will equally inject into such institutions the culture of transparency, integrity and professionalism which will inevitably make for progressive, discipline and corrupt-free external oversight institutions in Africa.
In my view, if an external oversight mechanism is to develop strong resilience against political manipulation and control, it must maintain clear cut lines of recruitment, responsibility, resources, reporting, remuneration, removal as well as remedial powers and redress for compliant.
The “8 R Model” Recommendation
Rooted in legality
In order to discourage political interference and control over external oversight bodies, the first thing that needs to be done is to ensure that an external oversight body is rooted in legality. ie, it is legally established within the framework of the law. Where it is possible, it will be of immense importance to ensure that the oversight body has its roots in the constitution of the country especially so if a country is going through a constitutional review process. This is one key advantage that external oversight mechanisms enjoy in South Africa over many other external oversight bodies in Africa. In Chapter 9 of the South African Constitution, external oversight bodies such as the South African Human Rights Commission, the Equal Opportunities Commission etc are absolutely guaranteed. This is also true for some oversight institutions in Mauritius such as the Judicial and Legal Service Commission and the Police Service Commission which are provided for under the constitution. However, if a country has already adopted its constitution, creating a separate piece of legislation through an Act of parliament in establishing an external oversight institution could as well serve the purpose. This would not only help to guarantee the permanence and independence of such oversight institution but will further prevent an outright closure or suspension of such institutions
by the political class especially when they face tough scrutiny from such oversight institutions. Also, being legally established, the oversight mechanism would in itself be embolden to carry out its duties and responsibilities without timidity knowing fully well that it has the requisite backing of the law. In most cases, political interference becomes easily permissible when external oversight institutions are mere policy initiatives of the ruling government or a creation of a presidential decree. Questions as to their independence will often arise and their lifespan can be short-lived as change in government occurs. This is particularly true of the case of Sierra Leone where critics have expressed fears of the life span of the CDIID as an effective internal oversight mechanism on the police force since it is not a creation of a parliamentary legislation but rather an internal administrative regulatory apparatus. Even though it is commendable that the Equal Opportunities Commission of Mauritius is a creation of an Act of parliament, there is still a dire need for its placement within the constitution so as to fully guarantee its life span and legitimacy.
Recruitment
Secondly, the issue of recruitment of members of staff of an external oversight mechanism must be taken seriously if political interference and control is to be eliminated. In most external oversight mechanisms in Africa, recruitment to top positions is usually done by way of political appointments from the chief executive of the state. In Sierra Leone for example, recruitments to all top positions of external oversight institutions such as the Human Rights Commission, the Political Parties Registration Commission and the Police Council are done by way of presidential appointments. As a matter of fact, the Police Council is comprised of the Vice President of the Republic of Sierra Leone, the Minister of Internal Affairs and the Inspector General of Police all of whom are appointees of the president. In Mauritius also, the Chairperson and the other three members of the Equal Opportunities Commission as well as the chairman and members of the Police Service Commission are solely appointed by the president acting on the advice of the Prime Minister.
This pattern of recruitment raises a lot of questions as to the independence and credibility of these external oversight bodies. Even though some of these appointments
are usually subjected to legislative approval, the damage is still far from being remedied especially when one realizes that the ruling governments in these countries usually wields majority support in Parliament. Rubber stamping the interest of the president therefore becomes easily attainable.
In my view, this mode of recruitment should be replaced by a more open, competitive, democratic and meritorious process. An Independent Recruitment Council (IRC) for external oversight institutions which comprises of representatives from diverse interests in the society should be established to marshal the recruitment process. Advertisements for vacant positions in external oversight mechanisms should be made public by this body and eligible members invited to apply. Upon receipt of applications, the IRC should then shortlist the applicants based on a fair, transparent, equitable and democratic process with due consideration to the issue of gender, race, tribe, colour and ethnicity. The names of the shortlisted candidates must be published in both the print and electronic media for the awareness of the public and a convenient date set out for interviews. The interview process should be conducted in a public arena for all to see and at the end, a vote should be taken by the IRC on all the members interviewed and the names of persons having the majority of votes are then forwarded to the president to select from among them the chairperson of the oversight body. After he has nominated the Chairperson, the president then forwards the name(s) of the person(s) approved by the IRC to the National Assembly for scrutiny. The National Assembly through a tough scrutiny process may either approve or reject any or all of the approved persons. Where Parliament approves, the Speaker of the House will then forward the names of the approved candidates to the president for confirmation. The President by way of notice in the gazette will then confirm the appointment of the chairperson and members of the oversight body. If however the National Assembly rejects the selectees of the IRC and the president, this should then be communicated to the president through the speaker of the House requesting the president to submit fresh selectees from among the shortlisted names forwarded to him by the IRC. In this way, virtual independence and credibility will be absolutely guaranteed in the oversight institution.
It is important for members of an external oversight body to be democratically appointed. This is the case because, where staff members of an external oversight institution are solely appointed by a politician, the oversight body will be inevitably left to accusations of being politically influenced and controlled. It is against this backdrop that Kenya reviewed the powers of the Internal Security Minister through the Independent Police Oversight Authority Act of 2010 estopping him from singlehandedly hiring and firing police oversight board members. Sadly however, appointment to external oversight positions in Sierra Leone and Mauritius still remains a politically motivated decision.
Responsibility
Most external oversight mechanisms in Africa lose their very essence because their jurisdiction and responsibilities are not clearly defined. This makes it easier for manipulations to take place as well as abuse of powers of authority by members of staff working under the influence and dictates of the political class. Defining therefore the purpose and functions of an oversight institution in a simplistic and concise manner is key to not only enhancing its effectiveness and relevance but also to help prevent abuse of power and conflict with other similarly related institutions. It is also important to define the personality and subject matter jurisdiction of the external oversight body so as to give a comprehensive understanding of its purpose and creation. In most cases, where purpose is not clearly defined, abuse from the political class is imminent.
Resources
The funding of an external oversight mechanism is usually a key area of primary influence by the political class over the affairs of these bodies. Adequate resources are essential to the success of an external oversight body especially in relation to its capacity to undertake serious investigations. In Africa, the independence and credibility of oversight bodies have often been compromised due to their high level of dependence on the executive arm of government for financial support. In most circumstances, funds are either determined by the executive or by the very organisations these external bodies are meant to oversee. Little wonder why political manipulations and interference
have always loomed large. The Police Service Commission in Nigeria as well as the Human Rights Commission in Sierra Leone for example has been ineffective due to the fact that budgetary allocations are largely influenced by the executive arm of government. In Mauritius also, budgetary allocations to the Equal Opportunities Commission is remote controlled from the Prime minister’s office.
In my view, this situation should be discouraged. The financial budget of an external oversight mechanism should be sourced from the national budget of the country on an annual basis with due approval by the National Assembly and piloted to a separate account under the auspices of the oversight institution. Preparation of the budget of the external oversight body should be done internally and submitted to the executive arm of government for inclusion in its annual budget preparation and then tabled before parliament for approval. Where the budget estimates prepared by the oversight body is negatively reviewed by the executive, there should be room for such review to be challenged in parliament by the oversight body. Where parliament concludes that the review was unjustifiable, it will then communicate to the executive through the minister of finance to adhere to the initial budget prepared by the external oversight body and transfer such amount to a separate account controlled by the oversight institution. In this way, not only would political interference of the executive be minimized but there would be greater chances of success in terms of results and outputs of such external oversight mechanism.
Reporting
Reporting is one sure way of ensuring transparency and accountability within an oversight body. However, in most external oversight mechanisms in Africa, reporting is exclusively done to the president, closed from public gaze and scrutiny. In Sierra Leone for example, the CDIID reports directly to the Inspector General of police whiles the Human Rights Commission and the Anti- Corruption Commission reports directly to the president. This mode of reporting will inevitably make room for large political influence and control by the executive over such external oversight institutions.
In my view, the reporting process of an external oversight institution should adopt the following model. Firstly, a performance report should be done by the external oversight body every six months on its activities and operations. This report should be submitted to the cabinet secretary for the attention of the executive and later piloted to the National Assembly for their scrutiny. A copy of the performance report should also be made public in the gazette after approval of the Assembly so as to increase awareness of the activities of the oversight body within the public domain. Secondly, the external oversight body should also cause a report to be prepared for each financial year showing its financial statements, a description of its activities as well as its successes and challenges during the year. A copy of the annual report must be submitted to the cabinet secretary at the end of the year so that executive action can be taken in relation to the preparation of the fiscal budget. The Chairman of the external oversight body will then submit the report to the National Assembly for their scrutiny and later publish it through the gazette for the attention of the public. In this way, the tendency of the chief executive of the state monopolizing the reporting process would be highly curtailed.
Remuneration
The remuneration and conditions of service of members of staff of an external oversight body should be favorable and absolutely guaranteed to ensure security of tenure and ultimately minimize the risk for compromise, political interference and opportunities for corruption. Salaries of staff members should not be left to be determined by the political class but rather it should a collective decision of the National Assembly in consultation with the Finance Ministry and must be paid out of the Consolidated Revenue Fund. This kind of set up will highly embolden staff authorities to be fearless and uncompromising in the execution of their functions and programmes. Promotions and awards should also be subjected to an objective test by the National Assembly based on the performance report submitted to it by the external oversight institution and not left to the monopoly of the executive arm of government. A lot of the oversight institutions in Africa have been politically compromised due to poor conditions of service as well as the absence of strong guarantees for security of job tenure.
Removal
Where removal of members of staff of an external oversight mechanism is the sole prerogative of the president as is commonly the case with many external oversight mechanisms in Africa, it is highly unlikely for these institutions to be resilient against political interference and control. As a matter of fact, there would be greater tendency for political compromise, opportunistic behaviors and mediocrity within the operations of the external oversight body. In the Equal Opportunities Commission of Mauritius for example, the president may upon the advice of the prime minister remove any member of the commission without any recourse to due processes. This is also true of Sierra Leone where the president can relieve members of staff of external oversight institutions at will. Without any exaggeration, this outright singular exercise of power can be quite worrying and may even create arbitrariness and abuse of authority with the state. In as much as there should always be room for sudden removal / dismissal, it is vital to emphasize that such actions must be subjected to the due process of the law.
My suggestion therefore in this regard would be thus. Where a person is desirous of the removal of say the chairperson or any member of an oversight authority before the expiration of their term; such person should in the first place present a petition to the IRC (the recruiting body) stating out clearly why he/she thinks removal is necessary. This petition would then be objectively considered by the IRC and if two thirds of its members agree, they would then recommend to the National Assembly the removal from office of the member(s) complained of. The National Assembly will consider the petition and where it is satisfied with the reasons for dismissal, it will then forward its approved decision to the president who will inform the Chief Justice to set up a tribunal comprising of at least four superior court judges of high standing and reputation to hold a hearing on the matter. This tribunal must be held publicly and the aggrieved party (member of staff to be dismissed) accorded the opportunity to put across his/her defence. The final decisions of the tribunal are binding and should be communicated to the president who will then act accordingly in line with such recommendations. Apparently however, where a staff member of an oversight institution is being investigated, such member of staff should be suspended from office with half pay until
final determination on the matter is made. This model, if followed, would help greatly in enhancing the resilience of external oversight bodies against political interference and arbitrary dismissal.
Redress/ Remedial Powers
For an oversight authority to be taken seriously, it must be imbued with enormous remedial and redressive powers. It must have powers not only to investigate but also to make recommendations, order financial compensations as well as removal from office. Where its recommendations are not adhered to, the external oversight body should be accorded a right of standing before the courts to bring a case of contempt and secure enforcement of its recommendations. Unfortunately however, many of the external oversight bodies in Sierra Leone and Mauritius have been labeled as toothless bulldogs since they lack the above remedial and redressive powers. Little wonder their ineffectiveness. A strong remedial power in an oversight institution will definitely serve as a check and red light to political interference and control.
Conclusion
In sum, notwithstanding the above points raised, it is important to admit that establishing a politically-free and independent external oversight body is not something that can be achieved overnight. This is the case because man by nature is a political being imbued with lots of stereotypes and prejudices which often interplay with his office work and environment. Creating therefore the needed public awareness and work ethics that may help in changing attitudes and behaviors within external oversight institutions, is key to maximizing the strongest buffer and resilience against political interference and control.
RASHID DUMBUYA is an International Human Rights Lawyer and a practicing Barrister and Solicitor from the Republic of Sierra Leone. Rashid holds a Bachelor of Arts Degree as well as a Bachelor of Laws Degree with honors from Fourah Bay College University of Sierra Leone and has worked at the UN Special Court for Sierra Leone and the UNDP Access to Justice Office in Freetown. In April 2013, Rashid represented the African continent at the UN/EU sponsored Global Classroom discussions on the Millennium Development Goals and the Post 2015 Agenda held in Venice, Italy where he presented a report on the successes and challenges of the health related MDG’s in Africa and the way forward . Rashid has also served as Lecturer of Corporate law at the Milton Margai College of Education in
Freetown , Legal and human rights Officer for Every Child Matters- Sierra Leone, Head of legal and compliance, United Bank for Africa (SL), Legal Aid Volunteer of Prisons Watch Sierra Leone and as a Researcher at the Equal Opportunities Commission in Mauritius. He is currently an LLM Candidate at the Center for Human Rights, University of Pretoria, South Africa.
by ibakarr | Nov 4, 2013 | Uncategorized
Dear Chairman Fofanah
Let me start by congratulating you and members of the Port Loko District Council on your election as Chairman and councillors, respectively. I should also like to thank you for the strong efforts you are making to promote development within the Port Loko District. In particular, we deeply applaud your efforts, as the Chairman of the Association of Local Councils in Sierra Leone, in coordinating the activities of the nineteen local councils in the country. We are extremely impressed by the Association’s decision to convene a meeting for all your colleagues in Kenema this weekend to discuss ways of addressing the persisting challenges confronting the councils. We have no doubt that the convening of this meeting will help consolidate the gains made by councils so far, while at the same time responding to both emerging and persisting challenges relating to devolution, funding gaps, and capacity.
I am writing to you on behalf of the Centre for Accountability and Rule of Law (CARL-SL), an organisation that seeks to promote rule of law by monitoring justice and governance institutions, and a coalition of four Sierra Leonean organizations with regards the implementation of the Local Government Act 2004. Over the last couple of years, CARL and its partners have been working with various councils across the country to help foster transparency and citizen participation in governance. Thanks to funding from the Open Society Initiative for West Africa (OSIWA), the coalition has been involved in monitoring the implementation of Sections 107 and 108 of the Local Government Act 2004 in nine councils, including Freetown City Council, Western Rural District Council, Makeni City Council, Bombali District Council, Bo City Council, Bo District Council, Pujehun District Council, Kenema City Council and Kenema District Council. In 2013, CARL received a separate grant from the National Endowment for Democracy to implement pretty much a similar project in the Moyamba and Koinadu Districts.
Mr. Chairman, Section 107 of the Local Government Act places an unconditional obligation on local councils to ensure transparency and public participation in the administration of councils; specifically requiring that certain reports be posted on public notice boards. As outlined in the aforementioned section, the following should be published in “a conspicuous place on the premises of the council and on a notice board in each Ward for at least 21 days”:
- monthly statements of financial accounts; annual income and expenditure statements;
- inventories of assets of the local councils; bye-laws and notices relating to tax rates and fees; minutes of council meetings; and development plans.
Regrettably, CARL-SL has received several complaints from residents and taxpayers in many wards regarding the councils’ failure to erect notice boards in their communities and update them with the full complement of information as required by section 107 of the Local Government Act. Promoting participation and citizens’ inclusion in local governance is a fundamental objective of the Local Government Act 2004, and the failure or refusal of councils to erect and post the aforementioned information on notice boards not only violates this Act, but also deprives citizens of their right to access important information necessary for wider public engagement.
We are also concerned that more than ten years after the law was passed, councils have not demonstrated a strong commitment to promoting citizens’ participation in local councils. Section 108 of the Local Government Act focuses on citizens’ participation in local government. One of the ways of fostering participation at the local level is to ensure the effective functioning of ward committees, which serve as the legitimate vehicle through which the views/concerns of locals can be conveyed to council administrators. Regrettably, CARL and its partners have discovered that elections for Ward Committees have not been held in most of the wards across our project communities. In the absence of Ward Committees, it is difficult to see genuine interaction take place between councillors and the people, and have the views or concerns of the people integrated in development processes. Essentially, there is limited interaction between councillors and the people.
Mr. Chairman, CARL fully understands that each council faces serious funding challenges, partly because of inadequate central government subvention and delays in transfer of grants. We also note the limited capacity of many local councils to generate revenue. Perhaps an even greater challenge is the general lack of commitment by many council administrators to keep members of the public regularly informed of their activities. This has created a deep sense of mistrust between communities and councils, which has somewhat affected revenue mobilization efforts.
We are pleased to note that some city councils have erected notice boards in all the wards, and have started providing updates, even if on a limited basis. CARL and its partners sincerely applaud the efforts of those councils, even as we urge them to do more.
As you meet this weekend – November 1 -2 , 2013, the Centre for Accountability and Rule of Law and its partners wish to implore you to use your good office to urge your colleagues to demonstrate greater commitment to the implementation of the Local Government Act 2004 by, among other things,
- Erecting notice boards and ensuring that such notice boards have the full complement of information required by section 107 of the Local Government Act.
- Ensuring that Ward Committees are elected in every ward
- Providing funds for councillors to participate in regular Ward meetings
- Promoting regular interaction between the public and the councils through radio discussions and community outreach sessions.
- In order to complement the limited central government subventions to councils, scale up internal revenue mobilization efforts and ensure that resources are used judiciously. Scaling up internal revenue mobilization and ensuring that resources are used judiciously in order to complement the limited central government subventions to councils.
- Ensuring that Communication Officers are recruited, and are given the required funds to provide regular updates on the activities of councils.
It is our sincere hope that you will encourage extensive discussions on these issues, and agree on some concrete action points for each council.
CARL and its partners have enjoyed working with councils, and will continuing supporting your work going forward.
Thank you.
Sincerely,
Ibrahim Tommy, Executive Director, Centre for Accountability and Rule of Law (CARL-SL)
by ibakarr | Nov 4, 2013 | Uncategorized
One of the principles of United Nations Convention on the Rights of the Child and their practical implication for children is the Principle of Accountability. This principle states that children and young people are the holders of their rights and have legal entitlement to the security of these rights. It is also important that those responsible forprotecting these rights are identified and made accountable and responsive. Although government is the main legal duty-bearer and indeed it is its responsibility to ensure that rights are secured, other adult members of society also have responsibilities. This means that these individuals and groups have an active role to play in ensuring that the rights of children in their care are secured. This presupposes that we must work together at all levels to ensure a child friendly society.
To this end, the Sierra Leone government hastaken a number of strides including theenactment of laws such as the Young Persons Act Cap 44 of the Laws of Sierra Leone 1960, Prevention of Cruelty to Children Cap 31 of the Laws of Sierra Leone 1960, the Child Right Act 2007 and the Sexual Offences Act 2012. All of these laws are stipulated asa protective and some follow-up mechanism aimed at protecting the rights of children.
In spite of the enactment of theseLaws, there are still strong challenges at the national and governmentallevels. For instance, the Child Right Act 2007 makes provision for family courts, and the Domestic Violence Act 2007 makes provision forSafe Homesfor victims of sexual and gender-based violence. Most of these structures are either not well funded or are till date not set up at all;the few which exist are not setup right across the country; they have capacity issues, difficulties of professionalism and problems of inadequate logistics. For instance, a Safe Home has been constructed in Makeni but has still not been put to use because it lacks furniture and other internal structures necessary for habitation.
The main gist of this articleis not what the government is doing but what individuals, communities and societies can do to address this gap. So,given thatin the midst of the challenges facing the government and the fact that government cannot address all of these problems right away,it is about time these rights are protected by the collective efforts of the family, community and the society. Whilst the primary responsibility lies on the government, society too has a very big role to play in protecting children. Families and parents have the responsibility to make sure that they take care of their kids, send them to good schools and all that. The community has a role to play in taking care of and monitoring the children, and the society should ensure that Civil Society groups do a lot more awareness raising sensitization on the Sexual Offences and other Acts. By this, we are suggesting a return to the situation that used to obtain before, wherein children were not raised by the parent or guardian alone but by the society as a whole.This is so that we have a situation where inevery party will be involved in protecting the rights of a child rather than a situation where a child or young person is sexually abused and people pin the blame on the victim because of the way she was dressed, how gullible she was, and so on. This will be a misguided judgment, for there have been cases where children as young as five years have been victims of sexual penetration. It shows thatsomehow the community and the society are not helping the situation at all.
Even if the government puts in place the structures and the enabling environment, we still need the support of the family, community and society. For example, parents (families) should let their children know that they have the right to speak up and report when someone touches them in a way that makes them feel uncomfortable or makes indecent advances at them, and that they can say “no” to adults, even if they are family members or their parents’ friends. Also, it is the case in this country that children rely on their parents for emotional and financial support; it will therefore be dangerous to reject children and expose them to peer group life.
This is so that collectively, we are not always blaming the lack of capacity on the police, or the Judiciary for not having enough Judges and Magistrates, or the Family Support Unit for not having enough personnel and notbeing present right across the country. But at community level, we can even setup accountability groups to ensure that cases of sexual penetration, rape and other sexual and gender-basedviolence (SGBV) are not compromised by family members and that out of court settlements are discouraged. It will also help combat domestic violence against children and women and to encourage victimsand other members of the public to prosecute cases of SGBV by reporting such incidents and willingly coming to court to give evidence in such trials.
There is a particular case of sexual penetration involving a14 year- old girl that I am monitoring .The girl was sexually penetrated and subsequently became pregnant. The family, knowing very well that this class six pupil had been sexually abused, decided to settle the matter at home, and it was only when the perpetrator refused to co-operate by taking responsibility for the pregnancy and the victim that the victim’s father decided to report the matter to the police. The case has gone through Preliminary Investigation in the Magistrate Court and has been committed to the High Court for trial. While awaitingthe High Court trial, the victim gave birth to a baby boy. The victim’s father then called me and said he was no longer willing to proceedwith the case, as the court was not doing anything to help him take care of the alleged victim and her child, and that every aspect of the child’s welfare was presently billed entirely on him. He said he did not see any need to continue with the trial and as such, he had decided to resign to faith. It was after I hadinformed him that the Sexual Offences Act criminalizes out of court settlement that he reluctantly decided to come to court. Since then I have not heard from him. That particular family is not helping the matter, and in such a case, itmatters not whether the police are ready to prosecute,or witnesses are willing to testify, or the Judiciary is poised to do justice to the case. That single act by that family will bring the trial to a halt at the High Court. This is not an isolated case,as there are many cases reported to the police but when they go to court the victims and their parents do not follow-up, thereby frustrating the trial. In most of these cases, the genuine reasons for not showing up at the trial are that the alleged victim and family had accepted an out of court settlement.
Without making any excuse for the government, society needs to come half of the way, so that collectively we can kick against those chilling reports of sexual abuse on children as young as five (5) years by men who are fit to be their fathers. This way we can protect our children and women against sexual and gender-based violence in our community and the country as a whole.
by ibakarr | Nov 4, 2013 | Uncategorized
The assertion that ‘justice delayed is justice denied’ is now clichéd. Sadly though, persistent delays in criminal proceedings have continued to be the most potent canker eating deep into the criminal justice system in Sierra Leone. It was quite a laudable move and a plus to the judiciary when Justice Abdulai Charm of High Court No. 1 Freetown, on the 3rd October 2013, discharged one Mohamed Jalloh alias B.J. for want of prosecution. The accused was indicted on the 20th October 2010 on charges of conspiracy and robbery with aggravation. Mohamed Jalloh had spent about three and a half years behind bars as he went through preliminary inquiry at the Magistrate’s Court before the matter was committed to the High Court for trial. It is sad to note that the prosecution could not present a single witness to discharge the burden of proving the accused’s guilt, and has since been asking for an adjournment for no just cause. The judge did not hesitate to discharge the accused person and noted, inter alia, that his constitutional rights had seriously been violated. “When maters are delayed, everyone blames the judiciary, not knowing that other factors are responsible”, Justice Charm remarked with frustration, while addressing the court on the persistent absenteeism of jurors and prosecuting counsel in matters which have stayed unnecessarily too long in court.
A host of other cases amongst which are: The State v. Ismael Dean Mansaray & 2 Others, The State v. Hassan Jalloh, The State v Dr. Abass Bundu, The State v. Mohamed Yamba Kamara & Others, indicted for similar offences of conspiracy, robbery with aggravation and murder, have had the prosecution dragging their feet in the court since 2011.
The number of cases adjourned daily in our courtrooms on the grounds of absence of the prosecuting counsel or the prosecution’s application for adjournment is unbelievable, if not outrageous. This is not least because of the fact that most often the prosecuting counsel’s application for adjournment is not backed up with compelling evidence to spell the need for such adjournment. Where does this leave the right of the accused to a fair and expeditious trial? Paradoxically, the courtroom itself has become a nightmare for accused persons who spend years and years behind bars, thanks to prolonged periods of judicial lassitude. The real irony is that accused persons are hurriedly arraigned in court in pursuance of the seventy-two hour legal stipulation (for minor offences), yet they spend even more seemingly illegal periods behind bars after their arraignment in court.
A host of other delays in criminal trials is also attributed to juror absenteeism. The law makes provision for felonious offences such as murder and robbery with aggravation to be tried by a judge and a panel of 12 jurors. The jury is a body of persons sworn to give verdict in a legal case on the basis of evidence tendered in court. It is the responsibility of the jury to listen to a dispute, appraise the facts of the case and the evidence admitted, and to decide on the case in conformity with the rule of law. The institution of trial by jury is thus believed to be a significant and an impactful check on judicial power.
It is, however, disheartening to know that apart from the serious setbacks in speedy trials caused in part by lack of cooperation on the part of prosecutors, the jury also constitutes one of the frailest appendages of the criminal justice system in Sierra Leone. In other words, so many questions could be asked of the role/significance and effectiveness of the trial by jury system. Who is responsible for juror absenteeism? Are jurors paid wages or salaries? Does the law stipulate any penal action to be taken against jurors who are absent from court sessions for no just cause?
Too many cases are adjourned purely because of juror absenteeism. The jury being typically twelve in number, and the absence of one meaning failure to form a quorum, juror absenteeism amounts to a giant hurdle to the pace of criminal proceedings and a gross injustice to accused persons who are kept in remand for God knows how long, vaguely awaiting trial on that never-occurring day when the court shall have a quorum of jurors.
Unfortunately, we have only one of the anachronisms of the Criminal Procedure Act 1965 to answer the question of the availability of any penalty for defaulting jurors. Namely, Section 169 of the 1965 Act, which provides for penalty on jurors not attending or refusing to serve, states that any person summoned to attend the court and serve as a juror, who shall without reasonable excuse, fail to attend or refuse to serve, shall be guilty of contempt of court, and be liable to a fine not exceeding fifty Leones. This, once more, raises a whopping concern with regards our archaic laws that are not being updated to reflect contemporary times as Le 50 today is essentially nothing. No doubt judges no longer refer to this provision but rather often threaten to issue bench warrants for the arrest of defaulters, though implementation still remains a distant dream. Since the cases of The State v. Ismael Dean Mansaray & 2 Others, The State V. Hassan Jalloh, and The State V. Mohamed Yamba Kamara & Others were committed early in the year 2011 to the High court, efforts to have a quorum of jurors to proceed in establishing the accused persons’ guilt have been chasing shadows. This is evident from the fact that on the 25 of July 2013 out of the 12 jurors only 5, 4, and 3 were present with regards the above mentioned cases, respectively. This prompted an adjournment to the 3rd of October (almost 3 months), by which date a similar situation recurred, with 5, 5, and 7 jurors present respectively. This was exacerbated by the absence of the prosecutor who sent a representative to apply for another adjournment for no just cause. It was on this ground that the judge noted with dismay thus: “I would not tolerate what happened in the last session which saw the persistent absence of jurors. Inform your colleagues that if they are not present on the next adjourned date, bench warrants will be issued for their arrest.” He further noted that if the prosecution failed to proceed with their case against Mohamed Jalloh, who is standing trial for robbery with aggravation, on the next adjourned date (October 24 this year), he will be admitted to bail.
It was against this backdrop and in a bid to get an objective and balanced picture that Court Monitors of the Centre for Accountability and Rule of Law (CARL) caught up with and interviewed the few jurors (out of the expected dozen) present on that day in High Court No. 1, on what they thought was responsible for the persistent absence of their peers from court. Like their backgrounds, their stories were all similar: many of them were old and infirm, some were retirees, and only one said he was still in active service. They reiterated that serving as a juror in Sierra Leone was such a bore, and that some of them were only doing the job out of patriotism, given the fact that they neither receive any salary or incentive, nor any transportation allowance. “We are not even entitled to the bus assigned to the Judiciary”, said Mr. J. K. Vandy, a retiree of the Sierra Leone Police, resident in the east of Freetown, who has served as a juror for three years now. Another, Mr. Abdul A. Sheriff, an employee of the Government Information Service, recognized the fact that his role as a juror feels like it is part of his job, but that he was constrained to deliver the service because he did not receive any transportation allowance to cover his travel expenses from his office to the court. “We rely only on vague promises; we get no benefits; this will make it difficult for particularly retirees to co-operate”, he added despondently.
Given the debilitating effect of these judicial lapses on the criminal justice system, it would be worthwhile for the relevant authorities to consider the following suggestions and take reasonable and prompt action:
– Ensure that the prosecution, on application for an adjournment, provides a reasonable ground and evidence to justify the need for such an adjournment. This is often not the case in our courts where the prosecution merely requests for an adjournment (many times through the clerk of court) without proffering any reasonable excuse whatsoever.
– Jurors are supposed to be “peers of the accused”, but the jury in this country is such that the jurors are just one category of people–men of advanced age, mostly retirees from government service. Also, the fine for juror absenteeism is quite ridiculous and ineffectual.
Hence, an amendment of the 1965 Act to revisit some of its anachronisms such as the Le 50 fine for defaulting jurors, and to make clearer guidelines as to how to select jurors in respect of particular cases and in view of the particular classes and backgrounds of accused persons, will be all the more useful to enhancing the performance and efficiency of the jury system altogether.
Moreover, if jurors are so important to the criminal proceeding that the absence of a quorum of jurors can stay proceedings in court, then it is only proper to put them on wages, salary, or merely allowances to cover their transportation expenses and incidental costs. Judges, lawyers, court clerks, etc. are paid, after all.
by ibakarr | Nov 4, 2013 | Uncategorized
A state that prizes itself as a paragon of democracy and the rule of law is a state that boasts of a judiciary of undoubtable integrity. In other words, the judiciary is the greatest bastion of democracy and the rule of law, given that it is the mainstay against violations of the rights and freedoms of all citizens. Also, the level of trust and confidence that the average citizen has in a country’s justice system often translates into an almost equal amount of trust in the government of the day.
It is for these reasons that the judiciary of Sierra Leone should not be treated as one of the government’s small potatoes, especially in terms of national budget allocation.
Many believe that the myriad of problems challenging Sierra Leone’s judiciary can be pinned on the scant budgetary allocation to the judiciary. The national budget distribution over the past four years (2010-2013) shows a steady, but moderate increase in government’s funding to the judiciary, which is a good omen for a positive transformation some day of our justice system. The total development budgetary allocation to the judiciary for the fiscal year 2013 accounts for less than 1% of the total national budget. Where the judiciary receives less than one per cent of the total national budget, it raises a legitimate concern that this might create an impediment to access to justice. Now, the inevitable question: Is money the only missing ingredient needed to give the judiciary of Sierra Leone the perfectionist and hair-splitting temperament that it should have?
One can definitely make a strong case that poor funding allocation to the judiciary could undermine its effectiveness, since a financially impoverished judiciary may be more malleable to political interference. However, it is worth noting that a lot more is required to strengthen the judiciary and improve its image, including judicial integrity and independence, which money cannot buy. In other words, the perceived lack of independence and integrity in the justice system can be separated entirely from the challenges that come with a funding shortfall.
It is safe to assert that improving the structural and human resource capacity of the judiciary relies hugely on adequate funding. For instance, with the growing population and expansion of particularly urban centres, there is need to have more courtrooms around the country, particularly in the provinces. But if we want to send more magistrates to the provinces, they have to be well paid; they have to have good housing facilities and internet connectivity; and they have to be paid relocation allowances. There is need to set up systems; to have Public Address systems in most of our court buildings to alleviate the difficulty in hearing what judges, lawyers, or witnesses say during proceedings in almost all the courts in the country, especially in Freetown. There is need to now have stenographers to help judges and magistrates in taking and compiling notes during trials so as to expedite proceedings. Having one man – the judge or magistrate, with all due respect to their wisdom – taking down notes and compiling judgement is often cumbersome and poses a threat to much needed efficiency. In the provinces particularly, court buildings and structures within them are in a state of disrepair, and there is dire need for well-equipped libraries for judges to conduct research.
Secondly, there are far less than enough State Counsel in the provinces, with for example, only one State Counsel in the entire Southern region. This is closely linked with the fact that not all districts have Magistrate Courts, and often we have had to rely on the circuit system, which also contributes to the delay in delivering justice in the provinces. The sad result has often been too many out-of-court settlements, especially in sexual and gender-based violence cases, a situation which itself has had an awkward impact on efforts at promoting justice and accountability.
Another point that must not escape mention is that the government of Sierra Leone spends an awful lot of money training lawyers, most of whom it easily loses to private practice for want of attractive conditions in government legal departments. We believe that it is advisable for the government to institute a system whereby we have lawyers, particularly those who are trained on Government Grants-In-Aid, work for the government for at least one year upon graduation from the Law School. This gives the state the opportunity to tap from the talents it has helped to develop. In addition, we might also want to extend pupilage for new graduates of the Law School beyond merely working with senior practitioners in their chambers in Freetown, to include having them work with and understudy provincial magistrates, as well as having pupil lawyers work as research assistants to help judges with their work in the libraries. It is believed that this will add tints of colour to what is currently perceived by many as the plain image of the judiciary on one hand, and help a lot more in giving our young and upcoming legal practitioners a true feel of the task that lies ahead on the other hand.
All said and done, government should do all in its power to make the bench attractive, by for example increasing salaries and making the working environment in government legal departments more conducive in a bid to attract the very best in terms of excellence and expertise.
The other – perhaps more consequential and more material – side of the argument is that apart from increased funding to the justice sector, delivering fair and credible judgement is what we need to protect the image of not only the judiciary but also the law profession as a whole. This view cannot be far removed from the view held in the 2013 Budget Speech of the Minister of Finance and Economic Development, Hon. Dr. Kaifala Marrah that: “government…considers an effective judiciary as necessary for the delivery of equal justice to all citizens”. In recognition of this, the state should ensure that there is no room for doubting the credibility of the bench. Of course, ensuring the integrity of the judiciary is separable from, and not contingent upon, an increased funding to the justice sector. Much of the success of the judiciary depends on the wisdom and moral rectitude of judges and magistrates; and ensuring that these are not ethically compromised is not quite the business of the state financier. Rather, it is a combination of individual self-esteem, strength of good character and a bit of state superintendence.
In the best interest of this nation’s justice system, and for the sake of upholding judicial integrity, it is recommended that the government establish and sustain transparency mechanisms and enhance citizen’s access to justice. This can be achieved through technical assistance projects through which government can develop feasible standards of professional conduct for judicial personnel. CARL also recommends the development and effective administration of a case management system that ensures that cases are assigned to judges and magistrates in a transparent pattern as one of the ways to avoid the tendency for compromise as well as to bolster judicial integrity, impartiality and independence. There is also need to facilitate a workable mechanism that supports the judiciary in identifying and bringing to bear best practices in strengthening the capacity of the judiciary as well as the integrity of judges and state counsel.
In a nutshell, a further increase in budget allocation to the judiciary to more than 1% is a much needed boost for improving structural and human resource capacity of our justice system, whereas improving the trust and confidence of the populace in the judiciary largely depends on judicial integrity and independence.
