by ibakarr | Aug 11, 2016 | Blog
In March, the Anti-Corruption Commission (ACC) of Sierra Leone organized a three-day national dialogue forum to pick the brains of Sierra Leoneans on how to strengthen ongoing efforts to curb corruption in the country. The conference was also aimed at reviewing the current strategies – identifying what works and what does not – as well as identifying areas and targets for reforms. The key objectives of the forum, according to a communiqué issued at the end of the conference, included:
– To recognize the benefits of a multiplicity of players in the fight against corruption.
– To assess the role and participation of civil society organizations in the fight against corruption in Sierra Leone.
– To build an alliance and act collectively with the private sector in confronting corporate corruption.
– To build state capacity, integrity and trust in the government.
For three days, government officials, journalists, representatives of political parties, members of the international community, traditional leaders and civil society activists came together to infuse fresh air of verve and perspective into the ACC’s blueprint for combating corruption in the country. The sessions were as interesting as they were sometimes sobering as ACC officials and ordinary citizens alike freely identified the challenges the anti-graft institution faces in its efforts at fostering accountability for economic and financial crimes.
The clearest message that came out of the conference was that while the ACC has made some progress in its efforts at combating corruption in the country, significant challenges persist. Some of the key recommendations proffered by participants included the need for the ACC to scale up its oversight responsibility in the award and execution of public contracts, the need for civil society to step up support in combating corruption, and the need to strengthen the judiciary in ways that would insulate it from any political/executive interference, which would ultimately restore public confidence in the system. This article seeks to underline the need to strengthen judicial integrity in Sierra Leone in ways that would not only enhance the integrity of judicial processes, but also the integrity of the personnel in the justice sector.
I recognize the tremendous efforts the judiciary is making to foster justice and accountability in Sierra Leone. Even as we recognize those efforts, it is worth reminding ourselves of the persisting challenges that confront the justice system. No one can deny that the Sierra Leone judiciary needs serious attention, which it is not getting adequately. Actually, until recently, the justice system was in such a bad state that only a handful of people considered it a useful institution of justice. In fact, it became the last resort for seeking justice. That perception may have changed, but only slightly.
Judicial integrity basically refers to all the logistics and competence needed by judges in carrying out their functions, such as attractive conditions of service, regular training programmes, qualified support staff, merit-based promotion system, among others. It is critical to keep in mind that the judiciary is the public institution that bears the responsibility to provide critical checks on other institutions, including the private sector. A strong, independent and well-resourced judicial system is critical to the success of national accountability initiatives, including anti-corruption efforts. A judiciary that lacks integrity means also that the legal and institutional mechanism established to combat corruption generally will be weakened. Consequently, there is absolute need to strengthen judicial integrity through increased accountability of judges to the people, and the development of objective ways of ridding the judicial service of personnel who show less commitment to the values of judicial integrity. Of course, all of these would help restore public trust in the justice system.
However, judicial integrity cannot be enhanced without corresponding efforts to improve judicial capacity. At the moment, Sierra Leone’s justice system faces enormous challenges, including inadequate personnel, poor conditions of service, undue delays in trials, few training opportunities for judges, less than transparent, merit-based criteria for promotion, perceived political/executive control of the judiciary, among others. All these have conspired to weaken public confidence in the justice system. It would be a miracle for the judiciary to recapture it if these issues are not addressed. For the purposes of this article, and in light of the relationship between judicial integrity and ongoing efforts at combating corruption in the country, I wish to focus on two key issues – capacity building and conditions of service for judges.
The future of anti-corruption efforts in Sierra Leone rests not only on well-functioning, preventive systems, but a judicial system, staffed with trained and motivated Judges, that is a willing partner in the crusade. While the ACC now has prosecutorial powers, it certainly needs an impartial arbiter to complement its efforts. Undoubtedly, Sierra Leone is blessed with some of the most educated and highly experienced judges you can find in the sub-region. Even so, I am sure the Judges would be the first to admit that regular training courses would do them a world of good.
Our Judges do not get many training opportunities, and they have had to rely purely on the experience of their colleagues or individual efforts to adjudicate complex legal matters. Training courses, whether organized locally or externally, would help them learn how, for instance, Judges in similar systems adjudicate complicated legal issues that may have limited jurisprudence at the national level. It would also help them learn from others who are certainly more passionate and experienced in adjudicating economic and financial crime cases, for instance. Anti-corruption trials are a relatively new phenomenon in Sierra Leone, and it is going to require some efforts, including exchange programmes and seminars for judges, before our justice system begins to match toe to toe all the demands of fostering accountability for corruption.
In addition to capacity building needs, efforts must also be made to provide very attractive conditions of service for judges. This is not just about paying competitive salaries, it also includes providing a conducive work environment, trained and qualified support staff, as well as attractive travel and entertainment allowances. Some of these recommendations might sound ridiculous, but they are not. Take a moment to think about this: Judges are barred from undertaking any business ventures, or reverting to barrister or soliciting services; they cannot take up other appointments, except at educational institutions. Even as we set such limitations on them, they are expected to uphold the highest standard of integrity. This sounds extremely contradictory, given the not-so-attractive conditions of service of our judges.
To whom much is given, they say, much is expected. Judges have a responsibility to maintain the highest standard of integrity and professionalism. To help them do so, there must be regular performance assessments. At the moment, I am not sure how often such assessments take place, if any at all. The performance of judges must be assessed – even if annually – and the outcome of such assessments should determine their promotion or otherwise. All of these would help foster judicial accountability in Sierra Leone.
My information is that there are only 16 Judges in Sierra Leone. While many lawyers meet the criteria for becoming Judges, the traction to private practice is not only irresistible, it also makes a lot of sense, professionally and financially. Judges are only human, after all. To keep turning blind eyes on their conditions of service in the hope that they will never fall prey to the temptations of corrupt elements in society is too much of a risk to take. There is an even more compelling reason to make the bench attractive: we need the best and most experienced lawyers there – rather than a type of safety net career for those who cannot cut it in private practice either because they are patently weak or lazy.
by ibakarr | Aug 11, 2016 | Blog
The 2004 Local Government Act was passed in Sierra Leone principally to promote locally-led development initiatives – in ways that would enhance transparent and accountable governance machinery – in a post-conflict country that desperately needed to undo the country’s unproductive development architecture. It was also part of a genuine effort to shed the outdated, pre-war top-bottom development paradigm for a bottom-top approach that would create a genuine space for ordinary people to take leadership in designing the blueprint for community development programmes. I have often argued that part of the reason for the plethora of failed development policies in Sierra Leone is that the people have been perpetually squeezed into the wrong position of the development vehicle – the back seat. The time for people to take the driving seat is long overdue, but there is a new opportunity that needs to be seized. Until the people are empowered and given the space to freely contribute and take leadership of development, Sierra Leone’s development debacle will be a recurring chapter.
Eight years after the Local Government Act was passed, Local Councils are still struggling to bring about one of its intended effects, which is to give local citizens ownership over development programmes in their communities. Local councils and the Ministry of Local Government have generally failed to meet their unconditional obligations under Articles 107 and 108 of the LGA to ensure transparency and public participation in the administration of the councils. However, if citizens are given platforms and opportunities to directly engage Local Council officials, they have the ability to spur greater transparency from the councils and give their input into the community development agenda In truth, each of the 19 Local Councils in the country has had some chance in the last eight years to demonstrate a good measure of commitment to the values of inclusive development: participation and transparency. Unfortunately, most of them have disappointed.
In 2010, the Open Society Initiative for West Africa (OSIWA) provided funds to a coalition of civil society organizations, including the Centre for Accountability and Rule of Law (CARL), to help close the implementation gap in Sections 107 and 108 of the Local Government Act. By the end of 2012, the project was able to achieve some practical results, including the construction of some notice boards by various councils. The coalition also succeeded in generating passionate discussion at community level about the level of commitment or lack of it by council officials to implementing key provisions of the Local Government Act 2004. In fact, many communities were surprised to have learnt that councils were under an unconditional obligation to erect notice boards and update them on regular basis. In communities where Ward Development Committees were not meeting regularly or had never held any meetings, some remarkable changes were noticed. Thanks in part to the massive awareness and intense public debate about the councils commitment to transparent and accountable leadership or lack of it, some incumbent candidates for mayoral, chairman and councillorship positions were voted out during the primaries for the 2013 general elections.
Those modest achievements were inspiring, but the work is by no means finished yet. On the flipside, during the coalition’s monitoring activities last year in the Western Area, Northern, Southern, and Eastern regions of the country, monitors received inordinate amount of complaints from local residents about continued lack of transparency in the Local Councils’ activities and budgets. Many community members said they did not know that a law existed that obligates councils to inform them about its activities. We also found out that councilors and Ward Committees hardly organised meetings in their wards to get community members’ input into community development plans. Many community members did not even know their councilors or Ward Committee members.
Thanks to additional funds from OSIWA, the Centre for Accountability and its partners (including CDHR, Kenema, CampVO, Bo), will continue working on initiatives aimed promoting transparency and citizens participation in six districts across the country. This year’s project essentially seeks to increase local government transparency and citizens’ participation in the administration of Local Councils by developing mechanisms of permanent and regular communication between Local Councilors and their citizens. It also seeks to ensure that citizens can have accountability mechanisms to which they can turn if Local Councils mismanage community resources or fail to implement development plans that reflect citizen input and community needs.
The 2011 Auditor-General has been published, and it portrays an embarrassing picture of the level of mismanagement and lack of accountability in the public sector, including local councils. While the government grapples with a befitting response to the stomach-turning findings in that report, it is time for local council officials to begin afresh by demonstrating commitment to transparent leadership as well as create the platform for the participation of all. Public participation helps minimize corruption in the public sector, perhaps the biggest threat to Sierra Leone’s economic development aspirations. The World Bank estimates that developing countries of the world lose no less than $40 billion annually to the scourge called corruption”. Part of the reason for the rising incidence of corruption is the lack of safeguards against corruption in revenue generation and utilization mechanisms, limited public participation in budget development, and hardly any commitment to public access to information. This has been pretty much the story of Sierra Leone, and of many councils. The ‘new’ councils have an opportunity to take lead – to right the wrongs of the past – and to put the people firmly in the driving seat of development. That way, Sierra Leone can easily begin to crawl its way out of the enormous development challenges that confront the nation into a truly buoyant and prosperous democracy.
by ibakarr | Aug 11, 2016 | Blog
Children in Sierra Leone suffered immeasurably during the armed conflict that engulfed the country from 1991 to 2002. They were forced into assuming ‘dual identities’’ of both victim and perpetrator. Children witnessed the perpetration of violations during the armed conflict and, in turn, perpetrated appalling human rights violations against others. Consequently, the end of the war in Sierra Leone saw the prevalence of orphaned, abandoned, unaccompanied and separated children, which has resulted in the dramatic rise in the number of street children in the country. Thousands more live with their families but spend a large portion of their time on the streets. Life on the streets has led to children being engaged in other forms of destructive hehaviour, such as drug abuse, prostitution, criminal activity and confrontation with law enforcement officials.
In Sierra Leone, the laws relating to the definition of a child are significantly inconsistent. There is no uniform age of majority throughout the country. According to Cap 31 ( Prevention of Cruelty to Children Act) of the Laws of Sierra Leone 1960, for example, a child is defined as being ‘a person under the age of sixteen years’. The ordinance which Regulate the infliction of corporal punishment defines a child as aged 15 years or below.’ “Child’’ any ‘young person’’ or ‘a person who is fourteen years of age or upwards and under the age of seventeen years’’. Notwithstanding the distinction, the minimum age of criminal responsibility for juvenile offenders in Sierra Leon is, according to common law, ten years. According to the ‘‘Beijing Rules’’, juvenile is defined as ‘a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult.’ There is no age criterion contained here. The Child Rights Acts 2007 however, defines a child as being ‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.’ The Beijing Rules nonetheless provides that states should establish ‘a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.’ In line with this, the Beijing Rules provide that the minimum age of criminal responsibility ‘shall not be fixed to age level, bearing in mind the facts of emotional, mental and intellectual maturity’ of the offender.
Juvenile justice from a common perspective is essentially associated with children and young persons in conflict with the law. That is to say, it touches on the way and manner in which justice is rendered to juvenile offenders, considering the weight of their unlawful conduct and their special circumstances. International standards use the terms ‘juvenile justice systems’’ to refer to the treatment of the children accused or convicted for breaching the law, whether in justice systems specifically for children or in justice systems that deal with adults as well.
When a juvenile offender, after understanding the content of the charges brought against him/her, enters a plea of ‘guilty’; or, where the court is satisfied that the offence has satisfactorily been established, section 24 of Cap 44 of the Laws of Sierra Leone 1960 indicates that the penalty of imprisonment does not apply if he is below 14 years of age. And, to those between 14 to 17 years of age, it applies only when other methods of dealing with the offender are manifestly inadequate.
This provision in Cap 44 is flagrantly being abused in Eastern Sierra Leone. Juvenile offenders are often imprisoned not after having exhausted all other possibilities. To make matter worse, they are most times held in maximum security prisons and police detention centers with adult convicts as there are no Remand Homes and Approved Schools for child offenders. Moreover, the probation officers who are charged with the responsibility of safeguarding and promoting the welfare of juvenile offenders against abuse and neglect are somewhat disinterested or unwilling to follow up on such matters.
In trying juvenile offenders within the limits of Chapter 44 and other related laws, it is expected that the basic consideration of the courts shall be to protect, preserve, and promote the rights of the juvenile offenders in relation to the charges against them and based on their personal circumstances. Worthy of note is that ‘juvenile justice shall be conceived as an integral part of the national development process of each country within the comprehensive framework of social justice for all juveniles’.
Rules 5/17 of The Beijing Rules state that the juvenile justice system must emphasize the wellbeing of the juvenile and ensure that any reaction to juvenile offenders is always in proportion to the circumstances of both the offender and the offence. Article 40(1) of the Convention on the Rights of the Child (CRC) says that states should recognize the rights of every child accused of a criminal offence to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, taking into account the child’s age and the desirability of promoting the child’s reintegration and assumption of a constructive role in society. Chapter 44 of The Laws of Sierra Leone 1960 expressly states what the Magistrate Courts adjudicating juvenile-related matters should do. When a child or young person is in conflict with the law, the Act provides for such offender to be place under the care of a probation officer as a first step. Where this is not possible, the offender is then sent to a Remand Home, except where the offender holds himself out to be of bad behavior during trial.
However, the absence of Approved Schools and Remand Homes in all the three districts of Eastern Sierra Leone has greatly affected the proper and effective administration of juvenile justice there. When the court in Kenema, after hearing juvenile cases, acts in conformity with Article 14(4) International Covenant on Civil and Political Rights (ICCPR) by handing over offenders to the Probation Officer because of the lack of Remand Homes in entire region, the officers take the children to the police station and keep them in usually very insanitary police cells. The fact that these kids are made to share the same cells with adults certainly increases the possibility of recidivism.
International standards set out some guiding principles relating to juvenile justice. These are found on the duty of the state to secure the best interest of each child and the corresponding duty to ensure that measures affecting children who have broken the law are proportional to the gravity of the offence and take into consideration the personal circumstance of the juvenile.
With the increase in child trafficking, it is important that systems that safeguard the rights of the child are constantly improved upon. We must remember that these children are going to be charged with the responsibility of administering the nation tomorrow. Therefore, a primary consideration in all actions concerning them, including those undertaken by the courts of law, administrative or legislative bodies must be in the best interests of the child.
by ibakarr | Aug 11, 2016 | Blog
The Centre for Accountability and Rule of Law (CARL) is an independent, not-for-profit organization working towards a just society for all persons in Sierra Leone through monitoring, advocacy for institutional transparency, capacity building and empowerment of citizens. CARL monitors key national institutions including the courts (both at the formal and informal level), the Anti-Corruption Commission, the Human Rights Commission, and also follows up on the recommendations of the country’s Truth and Reconciliation Commission. The monitoring of these institutions has, however, over the years been limited mainly to district headquarter towns.
Apart from outreach activities conducted in rural communities, effective monitoring of human rights issues has been periodic in most rural localities. This was largely due to logistical constraints and paucity of personnel with the requisite skills resident in those communities. In a bid to effectively tackle the growing human rights problems in communities in the northern part of the country, CARL took the bold step to introduce community-led monitoring of human rights related issues. This approach is ideal in the current circumstance: Firstly, it is cost-effective and secondly, it maximizes output. It has been introduced in six communities in two chiefdoms in the Bombali District. The communities are Makump Bana, Mateneh, and Maboleh in the Bombali Shebora chiefdom and Yeli Sanda, Masongbo and Panlap in the Makarie Gbanti chiefdom.
CARL’s Local Monitors, during a training session for CSOs and CBOs
Since the end of the civil war, there have been lots of reforms of state institutions throughout the country, including the justice sector. Some laws have been repealed, others have been amended and in some instances, new ones have been enacted. Of particular note are the three gender laws and the child rights law. Simply put, there has been conscious attempt to bring the country in tune with international best practices. Despite this laudable development within the justice sector, much work still needs to be done if it is to impact the poor and vulnerable in rural communities. And, a good starting point is getting rural communities to be aware of the provisions of the laws. Most rural communities are not aware of the existence of these laws, let alone understand the provisions therein. This has posed a huge threat to undermining the efforts of government and its development partners in strengthening good governance and the rule of law in the country.
But CARL monitors cannot do it all by themselves, considering their number in relation to the size of the region. So in May 2011, CARL monitors selected some representatives from the pilot communities listed above, and trained them as community-based human rights monitors. The training was generally based on human rights issues, particularly the gender laws, children’s rights, and sexual and gender based violence. Also, human rights monitoring and reporting was a core training module. They community-based monitors are specifically charged with the responsibility of monitoring, documenting and reporting human rights violations and abuses in their communities.
The training, which is consistent with CARL’s vision and mission, and which is currently being sponsored by Trocaire, has received instant impact. After the exercise, the community-based monitors were presented to their various communities for them to be recognized by community stakeholders. They monitors have been advised to work not as adversaries to the leadership of their various communities, but as partners in addressing serious challenges facing the human rights landscape of the country. Since the introduction of this idea, which is somewhat novelty in the country, there has been an increase in the number of reported cases of human rights violations or abuses in communities in these chiefdoms. During the first few weeks of its inception, our community-based monitors recorded over twenty cases of domestic violence, child pregnancy etc. which were brought to our attention. We immediately took up these matters with the appropriate authorities in the region.
We are currently following up on the minute details of the cases and will remain vigilant until the course of justice is served. Also, quite recently, an alleged child trafficking matter in Sawalia community in the Makarie Gbanti chiefdom was reported to us by our community-based monitors. CARL-SL employees wasted no time in contacting the authorities. To their credit, the authorities made strong efforts at ensuring that the child was rescued. Prior to having community-based monitors, such case would have gone unreported.
Moreover, equipped with the requisite knowledge in human rights, community-based monitors now conduct community sensitization sessions at least once every week. These awareness raising sessions, which focus mainly on women and child rights issues, are held mostly during the congregational prayers on Fridays and Sundays. This is so because in some of the selected communities, community-based monitors double as religious leaders. As such, they use excerpts from their holy books to sensitize community members on human rights provisions.
During their sermons, they discuss the virtues of human rights practices and also the dangers of neglect of human rights standards as a recipe for undermining peace in their various communities. This knowledge is not only benefitting those residents in the selected communities but also those in neighbouring communities who converge in the selected communities for congregational prayers. Besides the multiplying effect of using religious leaders in the sensitization campaign, there has been an increase in trust between duty bearers and right holders in these communities. Community members are now more likely to report cases of domestic violence and abuse of children than before. For instance, between July and August, about twenty-five cases were reported to our community-based monitors in Masongbo in the Makarie Gbanti chiefdom in the Bombali district.
Furthermore, most court officers pay lip service to particularly human rights provisions as enshrined in our laws. They only tend to go by the dictates of human rights provisions when monitors are present during proceedings. When they are not, they are more likely than not to violate the law at will. However, since CARL-SL’s Court Monitors cannot be present in all the courts at the same time, these community-based monitors have come in handy. They have been monitoring court sittings in their various localities especially those involving the rights of women and children. The monitoring reports are sent to CARL monitors on a weekly basis who sort them out in a pecking order for immediate action.
From the foregoing, it is clear that the impact of community-based monitors cannot be overstated. As such, CARL intends to replicate this idea in other communities that it is currently working in the region. With the availability of funds from donors and partners, CARL hopes to continue to train more community-based monitors to effectively and efficiently monitor courts in the rural areas. Without doubt, recruiting and training a band of human rights community monitors across the country could be a major step forward in addressing the numerous human rights challenges confronting Sierra Leone.
by ibakarr | Aug 11, 2016 | Blog
The Native Administrative court, also known as local court of Sierra Leone, derives its authority from the Local Courts Act, 1963; the Courts Act, 1965 and Section 170 of the 1991 Constitution of Sierra Leone which deals with the laws of Sierra Leone. The said Section states, amongst others, that the laws of Sierra Leone shall comprise “rules of customary law including those determined by the Superior Court of Judicature”; and “customary law” means “the rules of law which by custom are applicable to particular communities in Sierra Leone”. Thus, the Native Administrative courts are legally constituted to dispense justice in accordance with the cultural, social and traditional setting of their different communities. This traditional court system underscores Sierra Leone’s dual judicial system comprising both the formal and informal; the formal system deals with matters of general law applicable in the magistrate’s court, the High Court, the Court of Appeal, and the Supreme Court; whereas the informal system is mainly preoccupied with issues arising out of customary law. In addition, whereas the dispensation of justice in the general law courts is determined by legal procedures and principles based on standards sanctioned by law, decisions in the local courts are primarily based on existing orally transmitted norms of the different customs and communities. In essence, customary laws are largely unwritten.
The local court is comprised of a chairman, vice chairman and other ordinary members or assessors (also known as council of elders), and officers including clerks and bailiffs who carry out administrative duties and assist in the execution of court orders. It is presided over by a Chairman, who is assisted by a Vice-Chairman and such other members as may be appointed by the Minister of Local Government (the Minister). The said Minister is also empowered to appoint Chairman and Vice-Chairman.
The Native Administration Court has limited jurisdiction in both criminal and civil cases, and determines matters which fall within its territorial limits – the chiefdom. It serves as a medium to punish law breakers; have aggrieved parties compensated adequately as well as amicably settle disputes within the chiefdom, especially those that pertain to land tenure and ownership, marriage, and succession or inheritance. Proceeds from fines levied against disputing parties are supposed to be used for community development. The majority of Sierra Leoneans are governed by customary law. Yet, very little attention is paid to the workings of the local court. The proceedings in these courts are marred by many deficiencies which seriously undermine both the administration of justice and the traditional values that initially gave rise to their establishment. This piece seeks to examine some of the challenges encountered in litigating in a local court, and attempts to make suggestions for meaningful reform.
Proceedings
The conduct of proceedings in the Native Administration court is often held in an unfriendly atmosphere characterized by fear and intimidation. Court officials are notorious for intimidating parties by frequently shouting at them, thereby creating panic and despondence. Litigants, therefore, are usually nervous while testifying. The situation is even worse for women who come before the courts as either witnesses or victims. Due to the uncongenial atmosphere and the fact that proceedings are almost always held in open sessions (even where children are involved), litigants are mostly hesitant to testify.
It is even worse with cases relating to sexual violence: victims of rape feel ashamed and inhibited to explain the full extent of the violations they suffered. This has the unfortunate consequence of negatively affecting the outcome of the entire process. Thus, a good number of people, including women, have resorted to using the “Chiefs’ Courts” or illegally established “Kangaroo courts” by local chiefs which tend to arrogate to themselves far reaching jurisdiction than the statutorily established local court.
Untimely adjournments of hearings caused by strepitus judicialis (disruptive behavior in court) also accounts for avoidable delays. The continuous movement of court officers within and around the court premises distracts the attention of Chairmen and Assessors from adjudicating properly. From time to time, Councilors and Chiefdom Committee Members would come around the courtroom and speak in chambers with court officers during sessions, thus in some way undermining the integrity of hearings. At times, when court officers retire to chambers, they may not show up to continue sessions and that might be the end of the day’s proceedings.
Jurisdictional Issues
The Native Administration Court has competence over all civil matters covered by customary law and those governed by general law, where the claim does not exceed Le 250,000 (approximately $58). This provision is sometimes applied Mutatis Mutandis. Local courts also have competence in criminal cases where the sentence does not exceed six months or fine does not exceed Le50, 000 (approximately $12). However, the courts do not always adhere to this statutory provision stricti juris; that is, according to the exact law. The courts often adjudicate in cases that do not fall within their competence. For instance, at the Local Court No. l in Kakua Chiefdom, Bo district, a lady (name withheld) was summoned for failing to pay a debt amounting to Le 747,000. Legally, this matter falls outside the jurisdiction of the local court. But because of limited jurisdictional knowledge about the court on the part of the litigants, the matter was adjudicated upon in the court. This example is illustrative of how many courts adjudicate myriad of cases that are not within their jurisdiction.
The Courts of Paramount Chiefs
Additionally, paramount chiefs also create their own courts to try matters that are sometimes above the jurisdiction of local courts. Pursuant to the provisions of the Local Courts Act, paramount chiefs have no business in setting up courts to hear matters. Their duties are purely administrative and not judicial. However, most paramount chiefs establish a committee known as Council of Elders who assists them in running these courts. These courts are not only illegal but also undermine the authority of the local courts Most of the cases adjudicated by the paramount chiefs are only given a different nomenclature often as family matters so as to give them the ‘mandate’ to sit and adjudicate such matters. It is surprising and ironical to note that the fines levied in such courts far outweigh those levied in the legally established courts, with no checks and balances as to how proceeds are spent. That besides, almost all court chairmen often decline to adjudicate matters that have once been settled by paramount chiefs in order not to annoy them.
Recommendations
Since majority of Sierra Leoneans use this system, it is important that it also benefits from reforms currently taking place in the justice sector. This is primarily because the tendency for abuse of authority is more susceptible in local courts than in the general law courts. This is partly because customary laws are mostly unwritten, and mainly because majority of the people who use them do not know the limitation of their authority. Furthermore, the bulk of local court users are not even aware of the rights provided them under customary law such as the right to appeal to the Customary Law Officer in the district. In addition, most of the local court officers do not have the basic knowledge regarding the operations of the country’s legal system in general. To this end, public education on human rights, particularly those relating women’s and children’s rights, should be undertaken. In addition, courses in legal provisions, human rights and contemporary legal techniques should be regularly done as these trainings will help enhance their judicial performance. There should also be constant outreach activities in communities on the jurisdiction of the court, procedures and rights of parties in a law suit.
Efforts by CARL-SL:
To help address these challenges, the Centre for Accountability and Rule of Law (CARL-SL) has over the last three years held numerous training programmes for local court officials and civil society groups. Thanks to TROCAIRE and other funding agencies, CARL-SL conducts regular outreach and radio discussion programmes aimed at educating Sierra Leoneans about the work and limitations of the local court systems, as well as the challenges that confront them. CARL believes that if customary law is to remain a viable component of the laws of Sierra Leone, the recommendations proffered above should be given serious thought by all stakeholders in the justice sector.
by ibakarr | Aug 11, 2016 | Blog
The right to a fair trial as a norm of international human rights law is designed to protect individuals from the excesses of law enforcement agencies during the trial process. This right is firmly guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated but, most recently, by a proposal to include it as a non-derogable right, amongst others. Thus, the right to a fair trial is applicable to both the determination of the individual’s rights and duties in a suit at law and with respect to the determination of any criminal charge against him/her.
The standards against which a trial is to be assessed in terms of fairness are numerous, complex and constantly evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But, they may also be found in documents which, though not formally binding, can be taken to express the direction in which the law is evolving.
The right to a fair trial in a civil or criminal charge is considered to start not “only upon the formal lodging of a charge but rather on the date on which state activities substantially affect the situation of the person concerned”. This most times coincides with the moment of arrest or serving of summon, depending on the circumstances of the case. Fair trial guarantees must be protected from the moment the investigationagainst the accused commences, and throughout the preceedings, including when any appeal has been completed.
However, fair trial guarantees in northern Sierra Leone faces several challenges. The Local Courts Act, 1963 which establishes the court to look into cases of “customary law”, and customary law to mean “any rule, other than a rule of general law, having the force of law in any chiefdom of the provinces whereby right and correlative duties have been acquired or imposed which is applicable in any particular case and conforms with natural justice and equity…” are hardly being complied with during the adjudication of disputes insofar as it relates to fair trial rights protection.
The Act provides that court hearings and judgments should be conducted publicly except in a limited number of circumstances. It states specifically that “the room or place in which a local court sits shall be an open or public court to which members of the public may have access so long as they shall be of good behaviour and so far as it may conveniently contain them”. It means that the general public has a right to be present, to know how justice is administered. The practical realities, however, contradict this provision. There are several instances where court sessions have been held behind closed doors for reasons not guaranteed under law; and the outcomes have left more questions than answers. Most controversial decisions are usually handed down in camera.
The right to trial within a reasonable time is another fair trial guarantee of major importance. The main goal of this guarantee is to protect the parties against ‘excessive procedural delays’. Also, the effect of an indictment upon the reputation of the person is relevant as well. The reasonable time guarantee starts to run from the moment when the individual is a subject of a charge. This right is persistently being violated by local courts in the northern region. Local court structures are being used for purposes other than those for which they were constructed. For instance, in the month of June this year, the court structure of Local Court No 1, situated in Makeni City in the Bombali Shebora Chiefdom was used for workshops, religious crusades, meetings, etc. Some of these activities lasted for several weeks for which hearings were severally adjourned. Such avoidable delays negatively impact on the length of trials, and increases the financial burden on litigants who have to sometimes travel from neighboring towns or villages only to be told that the hearings have been adjourned.
The issue of jurisdiction is very important in fair trial rights administration. Where a court lacks jurisdiction to hear and determine a matter, whatever decision it reaches has no force of law – it is a nullity! The Act provides that the local courts shall have jurisdiction to hear and determine all civil cases governed by customary law other than cases between paramount chiefs of tribal authorities involving a question of title of land. However, the sad reality is that despite this provision, traditional leaders have become notorious for consistently interfering in the affairs of the local court within their jurisdictions. Some of them often request, with ‘authority’, for certain cases to be transferred to their illegal courts for ‘adjudication’. A classical case is that between Mohamed Kargbo v Mamusu Turay regarding payment of debt. In that case, because the defendant, Mamusu Turay, was a relative of the Chiefdom Speaker, the said Speaker asked the court chairman to transfer the case to his own ‘court’. This practice does not only undermine fairness, but also gives the impression that chiefs’ ‘courts’ are legally established and in fact, have higher ‘authority’ than the local courts.
Furthermore, the Act provides that local courts have exclusive jurisdiction in matters pertaining to the determination of title to land as a court of first instance. That is, it is only the local courts that have the statutory right to adjudicate in matters relating to land disputes within their chiefdoms. The sad reality, however, is that traditional leaders have almost usurped this jurisdiction from local court officials. They require court chairmen to transfer all cases dealing with title to land to them for determination. The reason for such practice, according to them, is that they are the custodians of land in their chiefdoms. This is in clear contravention of the Act.
The interpretation of documents is another cause for concern as it undermines fair trial rights in local courts. The Act states that the Judicial Adviser or a District Officer shall have access at all times to the records of all local courts and may, of their own motion, review any decision of such court whether civil or criminal.
The seemingly ambiguous wording of this provision has been subjected to different interpretations by those concerned. Some say the provision grants the Provincial Secretary, in the stead of the District Officer, the right to review and overturn decisions of local courts. Others, however, think that it is only the Judicial Adviser, in the person of the customary law officer that has such a right. There have been instances in Makeni when the Provincial Secretary and the customary law officer have had disagreements as to the correct interpretation of the said provision. Hence, the unclear position as to who actually has such authority makes the provision susceptible to abuse. Mostly, when decisions of local courts do not favour parties that are politically connected, the Provincial Secretary is made to review and overturn such decisions.
The right to an interpreter is a fundamental right to a fair trial. If the accused has difficulty speaking, reading or understanding the language used by the courts, he/she has a right to interpretation during court proceedings as well as the translation of all relevant written documents. It is very essential for the accused to be able to follow or understand the proceedings, especially in situations where the penalty for conviction is serious. Local courts use the local dialect of the community in which they are located. There is hardly any interpretation done during proceedings; and where it is done, the accuracy of such is questionable as they are not trained interpreters. This breeds difficulty in a cosmopolitan city like Makeni. So litigants who do not understand the local dialect being used by the court are most times left at the mercy of court officials.
Every individual is entitled to a fair and public hearing by a competent, independent and impartial judicial body – a court or a tribunal. Courts are also required to decide matters before them impartially, on the basis of facts, and in accordance with the law. Recent happenings in the north have, however, clouded the competence, independence and impartiality of local courts. Most of the court officials are party activists. They were appointed because of their political affiliations, and not because of their competence and impartiality. For instance, the Local Court No 1 in Bombali hears fewer cases when compared to others in the district. The reason is that since the chairman was politically appointed, he more often than not sides with members with whom he shares the same political interest when delivering verdicts. As such, people holding different political views prefer to take their matters to other courts; some even to the illegal courts operated by chiefs than to the local court.
The administration of fair trial rights is key to effective access to justice by especially the poor and marginalized in society. Therefore, stakeholders in the justice sector should ensure that these rights are protected as guaranteed by law. One way to start is by having the local court fully incorporated under the Judiciary. This will solve the problem between the customary law officer and that of the Provincial Secretary as to who has jurisdiction to review cases.
Also, it will reduce political interference as the officials will be appointed not by the Minister of Local Government on the recommendations of chiefs but by the Judiciary. Moreover, illegal courts will be a thing of the past as the Judiciary will have the sole jurisdiction in settling disputes in customary law matters. And, finally, the courts will learn good practices from the general law courts in terms of human rights and rule of law issues. CARL-SL wishes to commend efforts by the Sierra Leone Government to fully incorporate local courts under the judiciary, which could, among other benefits, ensure that the appointment of Local Court chairmen is based purely on merit and not political considerations.
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