Introduction
On 4 October 2006, Sierra Leone joined the dozens of countries on the continent that have national human rights commissions following the much awaited approval by Parliament of five people (Jamessina King, Yasmin Jusu Sheriff, Edward Sam, Joseph Stanley and Reverend Kanu) nominated by the President to serve as Commissioners. The Human Rights Commission (HRC) was established pursuant to Sec. 3(1) of the Human Rights Commission of Sierra Leone Act, 2004.
When the Truth and Reconciliation Commission (TRC) published its final Report in October 2004, it recommended for the establishment of a national human rights commission which “…can serve as both a watchdog and a visible route through which people can access their rights.” [1] This is particularly important given the fact that the decade long civil war was characterized mainly by the prevalence of human rights abuses. It, however, took two years for the Government to appoint the Commissioners. Nonetheless, it is better late than never!
This Article examines the legal and historical framework of the current Commission in the context of the post-conflict human rights challenges facing Sierra Leone. It discusses the difficulties entailed in trying to strike a balance between the Commission’s status as a government institution and a human rights protection body. The Article further draws parallels from other national human rights commissions in Africa. The Article ends by proffering suggestions for best practices as the Commission starts it work.
Historical Origins of the Commission
The establishment of the HRC reinvigorates Sierra Leone’s participation in the global struggle for the protection of human rights which started after the Second World War. The end of the Second World War in 1945 opened a fresh chapter in the struggle for the protection of human rights. Unlike the old chapter which was championed mainly by domestic legislations, this new era was spearheaded by the international community in the juridical person of the UN. This opening was symbolized by the adoption of the Universal Declaration of Human Rights and subsequent establishment of key human rights instruments and institutions.
Similarly in Sierra Leone, the end of the decade long civil war heralded new frontiers for human rights protection. The Lome Peace Accord negotiated by the Government of Sierra Leone and the Revolutionary United Front/Armed Forces Revolutionary Council (AFRC/RUF) proposed the establishment of the TRC. Later, the Special Court was established by virtue of UN Security Council Resolution 1315 of 2000. These institutions were meant to ensure accountability for the countless human rights abuses that took place during the war. Before then, the military junta known as the National Provisional Ruling Council established the National Commission for Democracy (NCD) by virtue of decree 15 of 1994. The NCD was mandated to educate Sierra Leoneans about “a sense of nationalism, patriotism and loyalty to the State…” Later on, NCD’s mandate was extended to the protection and promotion of human rights, and became the National Commission for Democracy and Human Rights (NCDHR).
In July 2004, the Sierra Leone Parliament voted to enact a law amending the aforesaid decree, leading to the establishment of the National Human Rights Commission. Through enacting the Human Rights Commission Act, the Sierra Leone Parliament recognized the status, powers and functioning of the institution. The said Act sets out the basic legal framework establishing the Commission and defining key issues such as human rights and their violations. The Act, however, does not define what the Commission is. The UN defines a national human rights body as a governmental institution established by virtue of a national legislature for the primary purpose of promoting and protecting human rights. That said, I will discuss the legal framework of the HRC as enshrined in the Act.
Mandate of the Commission
The Commission is charged with the responsibility to protect and promote human rights in Sierra Leone. To this end, it has the power to:
i. investigate allegations of human rights abuses on its own or reported by any person;
ii. promote human rights through public education, information, and cooperation with non-governmental bodies;
iii. advise government on Sierra Leone’s compliance with international obligations including mainstreaming of international law in domestic legislations and production of periodic reports;
iv. advise government on bills that may affect human rights;
v. monitor and document human rights violations in Sierra Leone;
vi. and produce an annual report on the human rights situation in Sierra Leone.
Challenges faced by the Commission
Although the extent of human rights abuse is not as glaring as it used to be during the war, nevertheless, challenges continue to exist. For example, most Sierra Leoneans are not even aware of the existence of the human rights recognition and protection provision laid out in Cap. 3 of the 1991 Constitution, which is currently being reviewed by the Law Reform Commission. The Human Rights Commission is coming in at an important time as they will be able to educate people after the review of the legislation.
Moreover the Sierra Leone legal system is notorious for its lengthy trials, and for being swamped with a backlog of cases, many of which involve peoples’ human rights, and the delay itself in many instances makes human rights violations considerably worse for being protracted. The Commission will be able to fast-track human rights cases, thereby reducing burden on the courts.
The Government of Sierra Leone is yet to fully integrate most of the international treaties it has signed onto. It also has a huge backlog of periodical reports. One is not certain whether continued existence of these problems is as a result of the lack of intention or capacity. Be that as it may, the Commission has the enormous task of ensuring the ‘domestication’ (as it is often referred to here) of several international laws such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The Commission also has a lot of work to do regarding timely submissions of reports on the International Covenant on Civil and Political Rights (ICCPR), CEDAW etc. ‘Domesticating’ and subsequently fulfilling the periodic reports of these instruments is the first step the Commission will take in ensuring their protection. Civil society groups will then monitor their implementation.
Furthermore, most of the bills that have been enacted recently have not contained an adequate human rights focus. As stated in their mandate, it is important that the Commission ensures that all bills that go through Parliament take cognizance of human rights concerns. This will enhance the protection of human rights.
Jurisdiction of the Commission
The Commission has competence over all human rights related cases within the territory of Sierra Leone. Individuals as well as juridical persons have standing before the Commission, which means that individuals can bring their own cases. The Commission also has the power to access government offices and facilities. Where the Commission is denied such access, it has the right to refer the matter to the Supreme Court which shall determine whether the reason proffered is substantial enough to deny the access.
With respect to its powers, the Commission enjoys the same powers as those vested in the High Court of Justice or a Judge including but not limited to compelling witnesses to appear in court, production of evidence relevant to a case, and even to request a witness that is resident overseas. Furthermore, the Commission has power to issue orders or directions to enforce its decisions. It also has the power to refer persons who have been held in contempt of the Commission to the High Court. Persons not satisfied with the decision of the Commission may seek appeal at the Supreme Court of Sierra Leone.
Independence of the Commission
In order to accomplish the mandate and enhance the exercise of their jurisdiction, especially in the face of the fact that human rights are primarily claimed against the Government, the independence of the Commission needs to be ensured. Therefore, the Act emphasizes that the Commission shall not be subject to the control or direction of any person or authority, except as it is otherwise stated in this Act. Further, the Act grants immunity to the Commissioners in the exercise of their duties. The Act also provides for representation of diverse groups within the Commission by having people from varied professional backgrounds and different sexes. Towards this end, the Act provides that there shall be at least two lawyers and two women. Moreover, once appointed, Commissioners are required to relinquish any existing position they hold, and to work as full-time, paid Commissioners. This provision is inserted so as to reduce the likelihood or appearance of bias or corruption on the part of Commissioners.
However, the independence of the Commissioners is undermined by the lack of express procedure regarding the reappointment of existing Commissioners after the end of the first five year term. According to the Act, the President appoints and Parliament approves, but the Act is, however, silent about reappointment of Commissioners. The fear is that, Commissioners may be under latent pressure during their first term if the reappointment procedures remain unclear. It seems likely that a government may only reappointment someone to a commission if that individual works mainly in their favour during the preceding term. It should not be the case that only people that are sympathetic to the government will be appointed like it is in the case of contract judges in our national court. Under Sierra Leonean laws, judges that have passed retirement age may be awarded contract by the President to continue serving as judges. This particular provision has continued to undermine the independence of the judiciary, given the fact that contract judges can only serve at the pleasure of the President, putting judges under pressure to stay in the good books of the executive to be awarded a contract. The HRC provisions should therefore be explicitly stated so as to ensure that it does not suffer political quagmire that the Sierra Leone judiciary is froth with.
Lessons from Elsewhere
Generally, civil society groups perceive governmental bodies responsible for the promotion and protection of human rights with great suspicion. However, starting in 1989, well before the adoption of the Paris Principles, there was a proliferation of national human rights institutions throughout Africa. This development posed serious challenges to human rights activists who have been used to challenging rather than collaborating with government for the protection of human rights. Lessons from national human rights commissions elsewhere in Africa show a mixed picture of successes and failures.
Many national human rights commissions were established by governments with appalling human rights records and lack of independent state institutions. For instance, the Nigerian, Sudanese and Togolese national human rights commissions were created by repressive regimes that aspired only to give human faces to their administrations. From inception most of them have had erroneous mandate, and enjoyed scrawny power, with phoney authority that limited their ability to do effective investigations, monitoring and publication of their findings. Some of them were held up at inception by legislations, rules of procedures, staffing, and funding which delayed the starting of operations. In some instances, persons with no prior experience in human rights work were appointed as commissioners. When work ensued, they focused mainly in urban areas. Some commissions hardly made public statements at all and even when they did they are inaccessible. On the occasions when they become outspoken or even functional, they are limited mainly to human rights education and tend to avoid politically sensitive issues. In Cameroon, Chad and Togo, the commissions became impotent institutions as a result of governmental pressure. Their commissioners were not inclined to delve into matters which involved politically triggered rights violations. In other countries such as Senegal and Benin where fairly liberal governments operate, commissioners were nevertheless less inclined to be vociferous regarding protection, especially the protection of human rights defenders.
Nevertheless, there were some commissions in Africa that were promising. The Commissions in Ghana, South Africa, and Uganda proved to be a potent force regarding human rights protection. They spoke out publicly against their governments’ acts and omissions that led to human right abuses. Furthermore, even some of the commissions that operated under repressive regimes recorded some successes. For instance, Togo the oldest national human rights commission in Africa carried out some useful work in the 1990s that led to a national conference, a new constitution and subsequently an arguably more open society. In Nigeria under the Abacha’s military junta, the national human commission served as catalyst for reforming institutions that were less political, such as the prisons, and also protected human rights defenders under attack by the military.
Recommendations
The establishment of the Sierra Leone National Human Rights Commission certainly marks another milestone in the struggle for the promotion and protection of human rights in post-conflict Sierra Leone. I use the word “struggle” because the post-conflict trend is not all that placid, the commission has serious challenges. This is evident in the fact that the current government is not mesmerized by human rights; it is yet to repeal the laws on seditious libel, the death penalty, and to establish the Victim’s Trust Fund as recommended by the TRC Report 2004. In fact, it is yet to publicly acknowledge the Report. To this end, it is likely that the Commission will face similar challenges that commissions elsewhere in Africa have faced. Post-conflict Sierra Leone cannot afford an impotent commission that will only serve as another white elephant project wasting tax payers’ money and those of foreign donors. In order for the Commission to be useful and serve the purposes for which it was created, it must be accorded absolute political and relative financial independence. The legal tools at its disposal must be reviewed at regular intervals to ensure that they continue to be relevant. The Commission’s leadership must display pragmatism and dynamism in dealing with politicians and the general public. They should also conduct their affairs in a transparent and accountable manner. Furthermore, the Commission should strengthen their public relations unit which should make sure enough publicity is given to its actions, and must make Commission documents accessible through a wide variety of media, including the internet. The Commission should also build a strong relationship with civil society groups. And above all, the Commission must be committed to responding to human rights violations, no matter who is the violator or victim and justice no matter who it is for or against .
The history of civil society’s response to national human rights organizations has been pragmatic, in that they have congratulated their successes and criticised them when they fail to measure up. The Sierra Leone Court Monitoring Programme in turn will be extending its monitoring activities to an evaluation of the Sierra Leone National Human Rights Commission when it starts operations.