by ibakarr | Aug 11, 2016 | Blog
Court proceedings at the formal justice system in Sierra Leone are conducted in English, the country’s official language. Although an application could be made on behalf of a litigant by their lawyer to conduct proceedings in local languages, this does not happen very often. In any case, if the litigants cannot speak or understand English, the service of an interpreter is always required as it is mandatory for lawyers to address the Bench in English. Many court users, however, have expressed disappointment at the paucity of interpreters particularly at the Magistrate Courts. Most litigants in the provinces cannot speak or understand English, and sometimes find it difficult to comprehend Krio. They mostly need interpretation services, and unfortunately, they do not always get it. This may amount to a breach of their rights. As a result, some litigants either refuse to appear in court or fail to provide a detailed and accurate testimony relating to the trial. This could have an adverse effect on the outcome of trials. To address this, there is a genuine need to recruit more interpreters, train and assign them to various Magistrate courts across the country.
This article seeks to highlight some of the challenges facing the interpretation unit of the Bo Magistrate Court, and to proffer some suggestions regarding how they can be addressed.
National laws and international conventions governing trials provide that accused persons and witnesses be provided the services of interpreters. For instance, Article 14(3) (f) of the International Covenant on Civil and Political Rights (ICCPR) provides that persons charged with criminal offence should be entitled to free assistance of an interpreter during trials if such persons cannot speak the language of the Court. Section 23(5)(e) of the 1991 Constitution of Sierra Leone provides that “a person charged with a criminal offence shall be accorded, without payment, the assistance of an interpreter if such person cannot adequately understand the language of the court”. The Constitution provides for the services of an interpreter in order to protect the fair trial rights of the accused, and ensure that they understand and follow the proceedings. Competent interpreters can also help expedite trials. Court-appointed interpreters also enhance equality of arms, which is another requirement for fair trial.
The role of interpreters in the administration of justice cannot be overemphasized. The principle of equality of arms requires, among other things, that both parties in a trial be afforded equal opportunities before a court of law to present their own side of the story. None of them should enjoy an undue advantage that might prejudice the other during the presentation of their cases.
The Seat of the Supreme Court of Sierra Leone
CARL-SL is not aware, though, of any policy statement issued by Sierra Leone’s Chief Justice regarding the quality and number of interpreters every court should recruit.
The CARL experience in Bo shows that even though the court appoints interpreters, however, the quality of interpretation leaves much to be desired. This is partly because the interpreters are either untrained to faithfully interpret some complex legal issues, and largely because the paucity of interpreters means that they are overwhelmed with interpretation duties. It is a shame that in some cases, Court clerks double as recorders and interpreters. Consequently, proceedings are adjourned whenever the interpreter is absent, thereby prolonging trials.
Even more embarrassing is the fact that police prosecutors, who are representatives of the Inspector General in criminal trials, are sometimes called upon to serve as interpreters. It is frightening and unthinkable that prosecutors are required to translate in a matter in which they are a party. There is also a likelihood that the prosecuting interpreters may renege on their moral responsibility of saying the truth. This obviously erodes public confidence in the justice system, and makes the accused person in particular absolutely nervous about the outcome of the trial. CARL has persistently observed that some interpreters only choose to provide translation services in cases where they have vested interest, either as friends of one of the litigants or where they have received tips for their services. On some occasions, litigants have had the need to appeal to court officers for help with interpretation. This ultimately increases litigation fees, and invariably discourages people from accessing the courts. Something needs to be done about this, almost immediately.
Implications for Justice
This state of affairs presents grave implications for the justice system: The dearth of interpreters means frequent adjournments in trials, thereby causing unnecessary delays in trials. Accused persons have a right to speedy trial, and inordinate delays sometimes caused by the absence or unavailability of interpreters could constitute a breach of their rights. Furthermore, in instances where prosecutors are called upon to interpret, the accused persons particularly cannot be sure whether the conversations are faithfully interpreted. Court clerks are overwhelmed, which invariably affects their effectiveness and concentration levels.
Recommendations:
The Sierra Leone judiciary needs to provide guidelines to enhance fairness and consistency in interpretation. In order to enhance this, the following is worth considering:
Trained interpreters should be assigned to Magistrate and other superior courts of judicature throughout the country. The fact is that every field has its own language; it only makes sense that the judiciary undertakes massive recruitment and training of interpreters in the different Sierra Leone languages. The Special Court for Sierra Leone is winding down its activities, and will leave behind a pool of well-trained and professional interpreters. With a little bit of motivation, these interpreters will be more than willing to contribute to local justice. After all, this was meant to be part of the Court’s legacy program. CARL urges the Consultant Master and Registrar to look into the possibility of recruiting some of these professional interpreters to serve the courts as well as train others.
by ibakarr | Aug 11, 2016 | Blog
The Special Court for Sierra Leone (SCSL) on 24th May 2011 instructed two independent counsel to issue indictments and subsequently prosecute individuals for contempt of the Special court. In its order, the Court directs Robert C Herbst and William L Gardener to prosecute Hassan Papa Bangura (aka Bomblast), Samuel Kargbo (aka Sammy Ragga), Santigie Borbor Kanu, Brima Bazzy Kamara and Eric Senessie for allegedly interfering with the Court’s administration of justice by offering bribes to witnesses to recant earlier evidence presented to the court.
Brima Bazzy Kamara
Santigie Borbor Kanu
In the first set of indictments, Bangura, Kargbo, Kanu are separately charged with 2 counts of offering bribes and influencing witnesses to recant earlier evidence given to the SCSL. Kamara faces a three-count indictment for influencing witnesses by offering bribes and disclosing confidential information regarding the identity of a protected witness.
Hon. Justice Teresa Doherty
In the second set of indictments, Senessie is charged with 9 counts for attempting to influence witnesses to recant evidence earlier given to the court. While the first set of indictments relates to the concluded trial between the Prosecutor against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, the second set relates to matters arising from the trial of former Liberian president Charles Taylor.
On 25th February 2011, SCSL Prosecutors filed a motion requesting the Court to conduct investigations for Eric Senessie or Prince Taylor for acts allegedly amounting to contempt of court.[1] The prosecution submitted that the Court appoints an independent counsel pursuant to Rule 77 (C)(iii) of the Court’s Rules of Evidence and Procedure (The Rules), to investigate possible contempt of the SCSL in relation to four prosecution witnesses; TF1-568, TF1–330, TF1–585 and TF1–516. It is alleged that in January 2011, TF1-568, TF1–330 and TF1–585 were contacted through telephone and in person first by Eric Senessie, a former Revolutionary United Front (RUF) combatant, and subsequently by Prince Taylor, a former employee of the Defence Office. In their statements, the witnesses alleged that Mr. Senessie told them that he was sent by Charles Taylor’s defence team to persuade them to recant their previous sworn testimony and testify that their previous testimony before the SCSL was given based on prosecution’s promise of financial benefits and relocation. The witness further recalled that Mr. Senessie promised a huge financial reward if they agreed to corporate.
Judges of Trial Chamber II granted the prosecution’s urgent interim measure for the court to conduct an investigation of contempt of the SCSL. The Chamber thus directed the Registrar of the Court to appoint an experienced independent counsel to investigate the allegation that a person or persons including Senessie and Taylor are in contempt of court pursuant to Rule 77 (A) (ii), (iv) and (B) of the court’s Rules by disclosing information relating to proceedings thereby revealing the identities of protected witnesses, interfering with witnesses by offering bribes, requiring them to recant the earlier evidence. Rule 77 provides inter alia that the court may punish for contempt of person who wilfully interferes with the court’s administration of justice by disclosing information relating to proceedings, offers a bribe, threaten or intimidate a witness who has given evidence before the court.[2] The Registrar appointed William L. Gardner as an experienced independent counsel on March 18 2011 to conduct investigations relating to prosecutions allegations.
Following a further direction by the Chamber that the independent counsel submitting a report as to whether there are sufficient grounds for instigating contempt proceedings, Mr. Gardner submitted a report of his findings on 21st April 2011 in which he concluded that while there was insufficient evidence to proceed in contempt against Prince Taylor, “there are sufficient grounds to proceed against Eric Senessie for contempt of Court.” Following the submission of the report which was kept under seal, the Chamber ordered that an “Order in lieu of Indictment” be issued against Mr. Senessie and directed the independent counsel to prosecute Mr. Senessie pursuant to said indictment.[3]
In the order in lieu of indictment, the independent counsel charged Mr. Senessie with 5 counts of interfering with witnesses who earlier testified before the court by attempting to influence them, 4 counts of offering bribes to witnesses who have testified before the Special Court in return for them to recant their previous evidence. Specifically, the allegations relate to alleged bribes and relocation being offered to Dauda Aruna Fornie, Mohamed Kabba, TF–516 and TF1-585, all of whom have testified in the prosecution’s case against Charles Taylor.
In a separate direction, the Registrar appointed Robert L. Herbst as another experienced independent counsel on 23rd March 2011, to investigate the prosecution’s allegations of contempt brought against Santigie Borbor Kanu and Brima Bazzy Kamara who were convicted by the SCSL in the trial involving former commanders of the Armed Forces Revolutionary Council (AFRC) and are currently serving prison sentences in Rwanda, together with former AFRC members Hassan Papa Bangura (aka Bomblast), Samuel Kargbo (aka Sammy Ragga). On the 11th May 2011, the independent counsel submitted his report to the Judges stating that there are sufficient grounds to believe that all four persons had indeed breached protective measures for witnesses by contacting a protected witness asking him to recant his evidence earlier given to SCSL. The Judges subsequently ordered that an Order in lieu of indictment for contempt be issued against all four persons and that the independent Counsel prosecutes them pursuant to said indictment.
Mr Herbst has accused all four persons of trying to bribe and influence Protected Witness TF1-334 who earlier testified against the AFRC accused (now convicts) before SCSL and an additional charge of disclosing confidential information for Bazzy Kamara, who it is alleged, revealed the identity of protected witness TF1-033 to Samuel Kargbo.[4] The Trial Chamber has further assigned both contempt proceedings to Justice Teresa Doherty, currently serving as a trial judge with Trial Chamber II.
It is a matter for the Chamber to determine the method/or mode of adjudication once they have reason to believe that there is a ground for contempt. The Chamber can either deal with the matter summarily, or refer it to an appropriate authority in Sierra Leone or as they did with these situations, request the Registrar to appoint an independent counsel to investigate and subsequently prosecute. Maximum penalty to be imposed had the matter been tried summarily would have been a term of imprisonment not exceeding six (6) months or a fine not exceeding Two Million Leones (Le 2,000,000) or both. However, with the current situations, a person upon conviction may serve a maximum term of imprisonment of Seven (7) years or a fine not exceeding Two Million Leones (Le 2,000,000) or both. All accused persons will be provided with legal assistance as provided in Rule 45 of the Court’s Rules.
While it is not yet clear where the contempt proceedings will be held, there is a possibility that the AFRC convicts Kamara and Kanu will have their prison terms suspended and be made to leave their Mpanga prison in Rwanda for a temporary period to attend the aforementioned proceedings if they are held at a place outside Rwanda. This leaves open the question of the real purpose of the contempt proceedings. it is still not clear whether it is a means of deterrence aiming to send a strong message that intimidation or other means of influence will not have a place even when the court would have wound up, or just a check on convicted persons and people who have participated in any of SCSL’s trials, to continue to respect principles of confidentiality.
In Sierra Leone, allegations of contempt are mostly dealt with summarily by Members of the Bench. While this is understandable in light of the numerous logistics challenges that confront the justice system, it is hoped that the judiciary may learn from the Special Court precedent and start instituting full-scale proceedings regarding allegations of contempt. This may be particularly useful in cases where the accused strenuously denies such allegations. CARL believes, though, that the impending contempt proceedings will have implications particularly for the Court’s budget and the time table for the Taylor trial. In terms of the Court’s funding, funds will have to be disbursed to pay the independent counsel (both prosecution and defence) and support the transfer of the accused, regardless of where the proceedings will be held. In terms of its implication for the schedule of the Taylor trial, there is likelihood of a slight delay in handing down a verdict.
Justice Teresa Doherty, who has been designated to preside over the proceedings, may be required to split her time between the Taylor trial and the contempt proceedings. Even if the Honourable Justice is to deal with both the Taylor deliberations and the contempt proceedings consecutively, there might still be a delay in concluding the trial, especially if the proceedings commence before Trial Chamber II concludes its deliberations.
From a Special Court point of view, the contempt proceedings may help deter convicts, Court employees as well as members of the public from attempting to unduly influence the outcome of its trials. Regardless of the likely implications, proceedings of this nature clearly tend to strengthen the rule of law and protect the integrity of the judicial process. Our national judicial system and other International Criminal tribunals can continue to strengthen the respect for the rule of law by emulating such practices or adapting it where necessary.
[1] See SCSL-03-01-T-1218, Decision on Public with Confidential Annexes A to E and Public Annex F Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone and Public with confidential Annex A & B Urgent Prosecution Motion for an Investigation into contempt of the Special Court for Sierra Leone.
[2] See SCSL Rules of Procedure and Evidence as amended on 28 May 2010 (Rule 77 (A) (i)(iv), (B)
[3] See Decision on the report of the Independent Counsel, SCSL-03-1-T, May 24, 2011
[4] See Decision on the report of the Independent Counsel, SCSL-04-16-ES, May 24 2011.
by ibakarr | Aug 11, 2016 | Blog
Approximately 70 percent of Sierra Leone’s population relies on traditional form of justice, which is usually more accessible, cheaper, and faster in disposing cases. Although the local court system has limited jurisdiction, it has powers to hear both civil and criminal cases. As a court of first instance, it also has the original jurisdiction to hear and determine all land cases in the provinces. Presided over by a chairman, assisted by a clerk and at least three assessors
(who are knowledgeable in the traditions and customs of their respective ethnic groups), local or Native Administrative (NA) Courts are required by law to hear and determine cases fairly, impartially and without fear or favour. Every NA Court Chairman is under oath to “do right to all manner of people according to the laws and customs recognized by such court without fear or favour, affection or ill will”, according to Section 4 of the Local Court Act of 1963 (as amended) and section 15 of the Constitution of Sierra Leone.
Article 14 (1) of the International Convention on Civil and Political Rights (ICCPR) states that “All persons shall be equal before the courts”. This means, among other things, that all persons must be given the right
to equal access to a court of law. Article 14 (1) also provides for a fair hearing by a competent, independent and impartial court established by law. One of the fundamental determinants of the fairness or otherwise of a trial is the extent to which the principle of ‘equality of arms’ is observed. This principle requires that all parties in a trial are treated equally in the interpretation of applicable laws and procedures. The laws and procedures must not be changed or interpreted based on the impulse of court officials.
In spite of these legal provisions, the Chairman of NA Court No. 2 in Bo has clearly shown partiality in an ongoing trial. Specifically, the Chairman deliberately prevented the panel of assessors from cross examining the defendant and his witnesses in order to give the plaintiff an undue advantage. Even though cross examination is normally done by him and the panel of assessors, on this occasion, he chose to do it alone, much to the amazement and disappointment of his colleagues.
The particulars of the case are that the defendant (tenant) and the plaintiff (landlord) allegedly entered into a tenancy agreement in which the defendant accepted to give the building a facelift, with the understanding that the total expenses will be deducted from the rent. Both parties allegedly subsequently agreed that the defendant should occupy the apartment for a year in lieu of the Le300,000 (approximately $70) he had spent to fix the apartment. The defendant claims that the tenancy agreement had not elapsed when the landlord asked him to quit. This Landlord claims that the tenant ought to have paid him an additional Le40,000 (approximately $9) as part of the contract, which the tenant refused to pay. The landlord filed a suit seeking the court to order the tenant to quit and pay the arrears owed to him.
As a way of tilting the balance in favour of the plaintiff, the Court Chairman deliberately shut out the panel of assessors during the cross-examination of the defendant and his witnesses, which constituted a clear breach of standard procedures of the Court. Even when the panel of assessors remonstrated against his strategy in the full glare of the public, he did not budge. A CARL employee, who was monitoring the trial, was shocked at the embarrassing conduct of the Court Chairman. The line of cross-examination that was adopted by the Chairman was not only out of order, it clearly showed how determined he was to aid his friend (the plaintiff) to get a favourable judgment. Here’s an excerpt from the transcript prepared by CARL:
Chairman (cross-examining the defendant): “Did you inform the Area Chief about the Le300,000 (approximately $70) worth of materials you used to fix the apartment?”
“Did you sign your expenditure document before presenting it to your Landlord?”
(To the defence witness): “Did you see the tenant present the list of his expenditure to the Landlord for his approval by signing it?”
It was obvious that the Court Chairman wanted to establish a new set of rules guiding the relationship between tenants and landlords because never before has any tenant brought in an Area Chief in the signing of a tenancy agreement. Additionally, it is very uncommon for tenants to prepare and sign expenditure claims before presenting them to landlords. It is almost a no-no for tenants to bring in Area chiefs on tenancy agreements in urban communities like Bo city. The fact is that the Court Chairman knew that the defendant did not do it, and did not have to do it, as a matter of fact. He simply went out of his way to make the defendant appear like the guilty party. What usually happens is that a verbal statement of approval or disapproval is given by the landlord as long as there is at least a witness. Thousands of such agreements are entered into on a daily bases in the provinces, where most of those in such agreement cannot read and write.
Although a verdict has not been handed down in this matter, it is very likely that the Chairman, who has overtly demonstrated a bias in favour of the plaintiff, will enter a guilty verdict against the defendant. Unfortunate to mention, however, while litigants have a right to file an appeal against verdict in the inferior courts, most court users are either unaware of the procedures involved or do not have the funds to pay for legal services. It is especially recommended that public awareness programmes relating to access to justice are undertaken. That way, court officials will get better at their jobs, and court users will know that other options are available to them.
organizations with the skills and resources begin to focus on monitoring the courts. In particular, the local courts, where most abuses take place either due to ignorance or lack of monitors, require additional training programmes. That is why CARL will remain committed to monitoring the courts as well as undertaking training programmes for court officials. Although CARL will continue to monitor the courts, it is recommended that other human rights
by ibakarr | Aug 11, 2016 | Blog
The Constitution of Sierra Leone, 1991, provides, amongst others, fair trial rights that should be granted to every individual who is alleged to have fallen foul of the law. Whereas Chapter III specifically provides for the protection of basic human rights and freedoms of individuals, the Criminal Procedure Act, 1965, which is the main legislation on criminal proceedings in Sierra Leone, outlines arrest, interrogation, pre-trial and trial procedures that should be followed during criminal trials for all individuals. These rights and procedures are very important and that they can only be abrogated where the interests of justice so require. Other instruments such as the European Convention on Human Rights and the African Charter on Human and People’s Rights also provide for the protection of fundamental rights of individuals at all stages when in conflict with law. Amongst the many rights guaranteed by both national and international instruments, three rights- the right to be presumed innocent until proven
guilty in a competent tribunal established by law; the right to be tried within a reasonable time or to be released from detention; and the right to a counsel or legal assistance will be the main thrust of this article. The reason for my ‘bias’ in dealing with these rights in particular is to help lay bare the uneasy facts that I have come to terms with during my monitoring visits to the High Court sitting in northern part of Sierra Leone.
Every individual charged with an offence has the right to be presumed and treated as innocent, unless and until they are proven guilty according to law in the course of a fair trial. This right is guaranteed by Section 23(4) of the Constitution of Sierra Leone, 1991. It is also guaranteed in Article 14(2) of the International Covenant on Civil and Political Rights; Article 7(1)(b) African Charter; and paragraph 2(d) of the African Commission Resolution on fair trial rights. In addition, Article 6(2) of the European Convention on Human Rights guarantees the presumption of innocence in criminal proceedings. However, it applies only to a person who is subject to a criminal charge and does not therefore apply at the investigation stage. The right to be presumed innocent until proved otherwise requires that judges, juries and all other public officials refrain from pre-forming opinion about any case before them. The right to a presumption of innocence also means that the prosecution must prove the accused person’s guilt beyond a reasonable doubt.
The other is the right to be tried within a reasonable time. The reasonable time provision is designed to prevent a person charged from remaining “too long in a state of uncertainty about his fate.” It is therefore directed primarily towards excessive procedural delays in the conduct of a prosecution, including any appeal. The reasonable time guarantee runs from the moment that an individual is subject to a “charge” within the meaning of the relevant statute. This is taken to be the time when the defendant is “officially notified” or “substantially affected” by proceedings taken against him. The Constitution of Sierra Leone, 1991 guarantees this right in Section 23(1). Also, Article 6(1) of the European Convention on Human Rights guarantees the right to trial within a reasonable time.
Lastly, is the right to legal assistance to indigent persons accused of a criminal charge. According to Article 14(3)(d), a person charged with a criminal offence has the right ‘to have legal assistance of his choosing assigned to him, in any case where the interests of justice so require’. The right to choose a counsel means that the accused will have the opportunity to choose freely. Article 6(3) of the European Convention on Human Rights generally guarantees certain rights necessary for the preparation and conduct of defence. The accused might choose to prepare his defence himself (the right to defend oneself), or to apply for legal assistance. Article 6(3)(c) provides the accused with the right to ‘defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. The guarantee protects the person charged with a criminal offence from inadequate representation of his interests on both pre-trial stage and court proceedings. The guarantee of a legal counsel is supplemented by the requirement of an adequate counseling. This means that the person providing the legal assistance must be professionally qualified to do so according to national law.
However, notwithstanding these elaborate provisions that are sanctioned in national, regional and international instruments, their actual application in the day-to-day administration of justice remains worrying particularly in the north of the country. Several cases abound in this area where the Court stands ‘accused’ of under utilizing the provisions of fair trial rights to the detriment of those alleged to have committed offences against the state. The frequent adjournments of cases is greatly hindering the quick dispensation of justice which invariably violates the accused right to be tried without unwarranted delay. Most of the cases that are committed to the High Court go through series of adjournments often for trivial reasons from the prosecutors and court officers. An instance to underscore this fact is that Foday Turay and Abdulai Kamara, both separately charged with murder offence, have had their cases adjourned for over 150 and 100 times respectively; while they remain incarcerated. And the main reason for such adjournments has been due to the fact constituting the jury has been a huge challenge for the Court. Most of those that often do jury duty are engaged in other activities where they earn a living and so prioritize. As such, when their activities clash with jury duty, it is the jury duty that they forego; with its attendant consequences on the criminal justice system-where there are no jurors to preside, or where the panel is not duly constituted, the Court cannot proceed thereby ensuing delay in trials.
Also, the lack of legal representation has become a cog in the wheel of justice in the north of the country. The majority of murder cases for instance that do come up for hearing in the Court are frequently adjourned because of this malaise (lack of legal representation). A clear example is that of Foday Turay and Abdulai Kamara, both alleged of have committed murder in the Tonkolili District. These accused persons have not been represented or rendered any legal assistance since their cases were committed to the High Court on the 26 January 2009 and 27 March, 2009 respectively. In fact, since 2010 to date, very few murder cases have had legal representations in the Court, thus warranting unending adjournments. In instances where a few are represented under the legal aid scheme, the lawyers make infrequent appearances in Court. Perhaps they consider the remuneration for their service too small to cover all expenditures throughout the trial process and thus prioritize cases where they have affluent clients. This lack of legal representation in murder trials is a contributing factor to overcrowding at the Makeni state prison.
From the foregoing, it is plausible for one to think that the dispensation of justice in the north of Sierra Leone is not in tandem with modern best practices in the criminal justice system. It leaves one with the impression that the Court has passed judgment on the accused persons as “guilty as charged;” even before they are put on trial. Put in another way, they have already been placed at a substantial disadvantage vis-à-vis the prosecution. The frequent adjournments and lack of legal assistance undermines the principle of equality of arms. And there is also a close relation between the principle of equality of arms and the presumption of innocence. The closeness of these two concepts consists in the fact that a person considered innocent until proved guilty beyond a reasonable doubt shall have equal procedural rights as the prosecuting authority.
In concluding, the buck stops with the Court in addressing the mirage of inadequacies currently clogging the criminal justice system. Presumption of innocence of accused persons, unwarranted delays in trials and lack of legal counsel for indigent accused are all genuine concerns for the Court. This is a litmus test for the Court to demonstrate its statutory obligation of dispensing “quality and accessible justice to all” in the northern region. It should make it abundantly clear to all that the Court is a court of justice; and not a court for the mighty and powerful in society. And that the inability of any party concern in a trial should not inhibit the enjoyment of rights of the other party; and that where such is the case, the Court will decide accordingly in the interests of justice.
by ibakarr | Aug 11, 2016 | Blog
Introduction
Towards the end of 2010, the number of paralegals providing free basic justice services in Sierra Leone doubled, as donors joined with non-governmental organizations and community-based groups to create a nation-wide network of legal assistance. Funded by the Open Society Foundations, the German aid agency GIZ, Trocaire, and Christian Aid, with technical support from the World Bank, Timap, and the Open Society Justice Initiative, new field offices were opened by Timap for Justice, Access to Justice Law Center, AdvocAid, BRAC, Justice and Peace Commission/Caritas, and Methodist Church Sierra Leone in 16 locations across the country.[i]
Sonkita Conteh Esq
These paralegals had earlier undertaken an intensive six-week training course which consisted of class room lectures provided in part by prominent legal experts on various law subjects and field based-work supervised by very experienced paralegals. Over the past few months, these paralegals have handled a wide assortment of cases, ranging from child support to inheritance to employment practices and abuse of authority. T
hey have provided basic legal information and advice, assistance navigating institutions of authority and some litigation support. They have primarily used their mediation and negotiation skills to get the parties themselves to fashion out and agree on mutually acceptable solutions and have also been involved in some community organizing. Crucially, the paralegals have been able to bridge the gap between the customary and formal legal systems by providing meaningful assistance to people across both systems as required.
This article will attempt to bring out some examples of the range of cases paralegals deal with in order to provide a better understanding of how the model actually works and to demonstrate the real impact of their work in the lives of ordinary people. It is hoped that it will also help allay the lingering suspicions of those in or connected to the legal profession, who are still sceptical about a role for paralegals in the justice sector.
School authority requiring extra charges from parents
A secondary school in Kabala had asked for extra school charges from parents during interviews for new students going into JSS 1. The school had asked for interview fees, development fees and other charges which are not part of the government-recommended charges. Some parents who could not ordinarily afford such sums and who were unable to persuade the school to drop those extra charges went to the paralegal office in Kabala for help. They had been compelled to pay, otherwise their children would not have been allowed in school. Faced with this unpleasant choice, some had to borrow the money from friends and family to pay the extra school charges. The paralegals entered their complaint in the appropriate case form and obtained signed statements from them. They then went to the principal of the school to let him know about the complaint and to get his own side of the story. The principal denied knowing that parents were asked to pay those extra charges and blamed the teachers on the interview committee. He conceded that the extra school charges were improper after the paralegals referred him to the provisions of the education policy and agreed to refund monies to the parents who had been made to pay the extra charges, including all the complainants. He also undertook not to exceed the recommendations on extra charges in the education policy. A few weeks later, when the BECE results were released, the principal contacted the paralegal office claiming that some of the teachers wanted to ask parents to pay similar extra charges fees but he had rejected it. The paralegals commended him and urged him to continue to be resolute. The parents who made the complaint to the paralegal office confirmed that they had received a refund from the school.
Lay magistrate demanding ‘withdrawal fee’ from civil suit parties
A man reported to the paralegal office in Lunsar that he had been taken to the magistrate’s court by a group of people whom he owed some money. He had been contracted to provide certain services by a contractor in Makeni and as a result had to enlist this group of people to carry out the terms of the contract. After paying him an advance, the contractor refused to pay the rest of the money even though the work had been satisfactorily completed and despite repeated requests. Consequently, he could not pay the remaining compensation to the group. He wanted the paralegals to help him retrieve the outstanding amount from the contractor so that he could settle his creditors and bring the case against him in the magistrate’s court to an end. After admitting the case and obtaining his statement, one of the paralegals, accompanied by the man, went to Makeni to meet up with the contractor, inform him about the complaint and hear him out. He admitted owing the man, but was reluctant to indicate how and when payment was going to be made. The paralegal then explained to him the likely consequences, including payment of interest and costs, if the matter was taken to court. The contractor was persuaded and immediately came up with part of the amount owed which the paralegal, on the instruction of the man collected. Returning, the paralegal invited both the man and the group to the office and brokered an agreement between the parties which saw the group of creditors accepting payment of the debt in return for the withdrawal of the civil suit from the magistrate’s court. The paralegal then accompanied the parties to the next sitting at which the plaintiffs informed the court that they no longer wished to proceed with the suit because the debt had been paid. One of the lay magistrates then informed the parties that they had to pay a ‘withdrawal fee’ of Le 300,000, or they will be compelled to proceed with the suit. Despite the intervention of the paralegal, the lay magistrate refused to vary his stance and the paralegal had to request for the intervention of one of the supervising lawyers which resulted in the withdrawal of the suit without payment of any fee and a suitably reprimanded lay magistrate, who, it has been confirmed, stopped asking for ‘withdrawal fee’.
Non-payment of labourers for work done
During a mobile clinic session at Rogbere, 6 men reported to the paralegals that they were hired by a contractor of a certain construction company to do work on the Masiaka-Rogbere road for the lump sum payment of Le 1,600,000 (one million six hundred thousand leones). They did the work but the contractor failed to pay them as agreed. They made several complaints to the youth chairman, ward councilor and the chief without any success with the contractor always maintaining that he had not been paid by SLRA which awarded him the contract. One of the paralegals called the contractor on the phone and he said the same thing, but this time promising to pay the men from his personal funds- he never did. The paralegal then went to the SLRA office in Port Loko to make enquiries and was informed that it was the SLRA head office in Freetown that awarded contracts. The paralegal came to the head office in Freetown and spoke to the Director who, after the paralegal’s explanation, including the possibility of legal action against the construction company, revealed that the contractor had been completely paid off a long time ago for the work. As soon as the meeting ended, the paralegal called the contractor and confronted him with the newly acquired information but he again denied receiving payment from SLRA whereupon the paralegal disclosed that he was in the office of the Director who then called the contractor, berating his shabby treatment of the six villagers and warning him of the real possibility of him being disqualified from future contract considerations as a result of his improper conduct. At the end of their conversation, the contractor immediately telephoned the paralegal saying that he was going right away to his bank in Makeni to get the money to pay the men off and wanted the paralegal to witness the transaction. He also begged the paralegal to put in a good word for him with the Director, but the paralegal responded in the negative. At Rogbere junction the contractor handed over the Le 1,600,000 to the paralegal which was then paid to the 6 men for their labour.
The uniqueness of the methodology
Paralegals use a variety of tools to tackle basic justice problems. They can mediate, negotiate, navigate institutions, provide information or organise communities to take collective action. When one or more of these fail in a particular case or a party refuses to comply with the terms of a mediated agreement, the paralegals can rely on the supervising lawyers to provide direct legal representation or high level advocacy. The muscle to litigate is a significant part of the methodology as it not only ensures compliance by the parties involved but generally adds strength to the paralegal’s work.[ii] The availability of a wide range of problem-solving tools allows for inventiveness and flexibility on the side of the paralegals, which may not be available in other models of justice service delivery and accounts for the high rate of resolution of justice problems by the paralegal. Paralegals are not tied to their offices or bound to a specific location. They reach out to distant communities and individuals through periodic meeting sessions called mobile clinics at which they provide information on a variety of topics reflecting particular areas of need and endeavour to answer some if not all of their queries. This ensures that communities without paralegal offices also benefit from the completely free services that they offer. Without a doubt, the known key players in the justice sector, like judicial officers, lawyers and the police cannot provide these basic but high value services which rural communities find particularly useful and for which demand is rising.
Conclusion
The reality of the situation in Sierra Leone is that owing to several factors, accessing formal justice systems is impossible for many.[iii] Even where accessible, formal systems are so clogged up and susceptible to delay and corruption that obtaining a fair and speedy outcome cannot always be guaranteed. This rather grim national reality begs for interventions on several levels. On the ‘supply side’, state institutions need to be reformed and made more efficient and corruption-free. But these alone cannot guarantee universal access as formal justice systems, no matter how well improved, will not be able to process every single dispute of the populace. Hence the need for community-level initiatives and interventions to help meet the ever increasing dispute- resolution demands of the people. Community-based paralegals, as one method of primary justice service delivery have been and continue to be instrumental in helping the poor get concrete solutions to their basic justice problems. This comes through clearly in the case examples discussed and in several independent evaluations of their work.[iv] It is a methodology that holds great potential for transforming the justice landscape in Sierra Leone and as part of the mixed-model legal aid scheme soon to be enacted, will become a critical part of legal aid services nation-wide.
[i] See Justice Initiative press release of 20 August 2010 announcing the expansion of basic justice services available on http://www.soros.org/initiatives/justice/focus/legal_capacity/news/sierra-leone-paralegal-expansion-20100820.
[ii] Between law and society: Paralegals and the provision of primary justice services in Sierra Leone, Open Society Institute, 2010, pg. 19.
[iii] The Government of Sierra Leone Justice Sector Reform Strategy and Investment Plan 2008-2010 states that 70% of the country’s population cannot access formal justice institutions.
[iv] See for example the World Bank, Justice for the Poor Report on the work of Timap for Justice published in 2009.
by ibakarr | Aug 11, 2016 | Blog
Introduction
The Hon. Chief Justice, Umu Hawa Tejan-Jalloh, on Friday 2nd October 2009 launched the long-awaited “Bail Policy” at a well attended ceremony which comprised major stakeholders in the justice sector at the High Court No.1 at the Law Courts in Freetown. This document, “The Bail Policy”, came about as a result of the hard work by the Bail Committee that was established pursuant to the consensus adopted at the Judicial Oriental and Refreshers Workshop held at the Kimbima Hotel in 2007 by the former Chief Justice, Hon. Dr. Ade Renner-Thomas, with specific reference: “To look into all aspects of the grant and processing of bail in Magistrate’s Court and High Court respectively… and submit recommendations to be embodied into a policy,” with the Hon. Justice ME Tolla-Thompson as Chairman[i].
This outcome, “The Bail Policy,” has been a step in the right direction especially as it relates to upholding the rights of accused persons and has therefore been applauded in many quarters especially amongst human rights organisations who continue to advocate unflinchingly for holistic reforms in every facet of the judiciary.
The “Bail Policy” reiterates in many respects the provisions under the title: “Admission to Bail” as provided for in the Criminal Procedure Act of 1965. As an addition, it introduces good practices by playing the balancing act of making the country safer whilst at the same time guaranteeing the rights of persons suspected of being in conflict with the law as provided for in our legislations and other international instruments. This judicial masterstroke will be a cornerstone in helping the judiciary achieve
its vision: “quality and accessible justice for all”. This piece aims at doing no more than examining the major issues addressed in the bail policy, and where necessary draw attention to certain areas of concern. It will start by looking at bail as a right; what has been the general practice by the courts in relation to the granting and processing of bail; some of the issues addressed in the Policy itself, and a conclusion.
Bail is a Right!
Bail, according to Black’s Law Dictionary 7th Edition, is to obtain the release of (oneself or another) by providing security for future appearance. Also, it refers to a security such as cash or a bond; especially security required by a court for the release of a prisoner who must appear at a future time. The Criminal Procedure Act (CPA) of 1965 and the International Covenant on Civil and Political Right (ICCPR) in Sec. 79 and Article 9(3) respectively guarantee the right to bail of accused persons in line with the principles of fair trial. In fact, it is a constitutional right in most jurisdictions and as such, Judges must explain why that right needs to be derogated in the particular circumstances of the case. However, important to point out is that although bail is a right, in certain cases, to be granted or refused bail is a matter of judicial discretion to be exercised judiciously taking constitutional, statutory provisions and all surrounding circumstances into consideration.[ii] For instance, a Judge in granting bail under Sec. 79(2) of the CPA should take into consideration the nature of the offence, gravity of the punishment, the possibility of the accused turning up to take his trial, and the possibility of the accused interfering with witnesses[iii]. Generally, however, bail is imperative for minor offences unless the Judge “sees good reason to the contrary”.[iv]
Bail Practice in Courts
The practice of granting and processing of bail has been marred by inconsistencies and in some instances bureaucratic bottlenecks invariably leaving the accused at the mercy of the court. Although an established principle is that every case on its own merit, many a time, accused persons with similar criminal records, facing similar charges in different courts, have been given different bail conditions; in fact some have been granted bail whilst others have not, the majority for unexplained reasons for the significant difference. In some cases, bail conditions are unreasonably too cumbersome to be satisfied by the average accused person thus making it more or less a privilege and not a right. Where they are satisfied, getting the authorities to effect it is another challenge. There are instances where accused whose bail applications have been granted are taken back to prison because their bail bonds have not been processed accordingly. In order for such to be processed in time, some accused persons resort to use of personal contacts with the officers responsible. Also, Magistrates are seldom predisposed to give guidelines for self bail to the accused even when the alleged crime is a misdemeanour thus adding to the growing number of remand prisoners with its attendant effects.
Moreover, some Magistrates are usually not enthusiastic in the effective use of sec. 79 of the CPA especially in felonious matters. As such, they are more likely to grant the prosecution’s objection to bail than upholding the defence’s bail application. This is often the case even where there are reasonable grounds for the accused to be admitted to bail; and the defence has advance strong arguments for such admittance. In the “Poachers’ Case” for instance, several bail applications have been refused with the prosecution’s objection primarily based on the fact that the accused persons are non-nationals and therefore have the tendency to jump bail. Such a counter argument is some how deficient in substance as Sec 15 of the Constitution of Sierra Leone guarantees the human rights and freedoms of the individual irrespective of place of origin amongst others. Furthermore, some use such as a way of punishing the accused even before guilt is determined. Hence, they are less incline to invoke Sec. 113 of the CPA-which deals with remanding of accused persons in custody for not more than eight days during adjournments.
The Bail Policy
The Policy reiterates amongst others that the issue of granting bail is in principle left to the discretion of the Presiding Judge. Nevertheless, one good practice that the bail policy introduces is for the Judicial Officer to provide an explanation where bail is refused. There are primarily two benefits to derive from such practice. One such is that it implicitly encourages the Judicial Officer to make good use of sec 79 of CPA more often than not and that where a contrary intention appears, the Officer should formulate sound reason(s) for such refusal rather than relying on the usual refrain of “Bail application refused; accused to be remanded in custody until the adjourned date”. It also helps the accused to know the reason(s) for his continued incarceration. This will help him to adjudge whether or not he has strong reasons to make an application under Sec 79(5) of the CPA. And where such application is made, the files should be sent to the Judge to know the reason why bail was refused as it will help the said Judge assess whether the Magistrate had good reason(s) for denying bail. If he finds it to the contrary, then bail is granted by the Judge if he thinks fit to do so. This practice is consistent with that in other jurisdictions around the world.
Another important practice introduced by the Policy is that fresh files be dealt with first each day. This will enable bail applications and processing to be done in time. It will help ease the congestion at the lock-up at the Law Courts as those who will be granted bail will be released immediately. Also, the tendency of taking back to the maximum prison of accused who have been granted bail but whose bail documents have not been prepared in time for the close of the day will be greatly reduced. Moreover, the policy also recommends that sureties should no longer be interviewed by Magistrates and where sureties are found after adjournment, accused persons should be admitted to bail. The former will help enhance court productivity as Magistrates used to spend considerable time interviewing sureties; and the latter will help reduce the rigidity that used to govern the issue of bail. Also, self bail will help reduce the burden of scouting for sureties with the relevant requirements as requested by the court.
Furthermore, the recommendation of the Committee which has to do with the setting up of a Special Magistrate’s Court (Bail Court) charged with the specific responsibility of dealing with bail matters on fresh cases is good radiance. Such innovation will help greatly to alleviate congestion, and minimize delays in the Courts as the normal courts will busy themselves only with adjourned cases. In addition, the thought of Magistrates having to grant bail in non bailable offence, eg., murder where the circumstance demands such is key in meeting the justice for all goal.
However, good as the Policy may look; there are certain areas of concern that is worth discussing. Perhaps the most important of all is that which has to do with cash deposit by accused for very serious offences such as economic crimes, as in the discretion of the Judge or Magistrate shall appear appropriate. Such practice gives one the impression that where there is the general presumption of innocence until proved guilty; that the accused is guilty as charged. Also, leaving such to the discretion of Magistrates and Judges is equally so worrisome. Some Judicial Officers will, whether consciously or unconsciously, have the tendency to go over the limit of their authority and unfairly keep the accused in custody for as long as the trial takes. More importantly, it discriminates against indigent accused who may not have the financial means to satisfy this bail requirement. Such practice is likely to undermine the rationale of the Policy as it will, instead of decongesting the prisons, more or less add to the prison population.
Conclusion
The introduction of the Bail Policy in our jurisdiction would not have come at a better time like this especially when prison congestion was gradually becoming a cog in the wheel of justice. We therefore encourage Judicial Officers to make adequate use of the Policy by playing the balancing act between the two extremes so as to help decongest prisons whilst at the same time reducing the fear of crime and making society safer. As we look forward to additional guidelines and possibly a Bail Act, we hope that introducing the Bail Policy will help restore public faith in the administration of justice.
[i] The Bail Policy, pp 6
[ii] Ibid, pp 3
[iii] Ibid, pp 11
[iv] Ibid, pp 12
