by ibakarr | Aug 11, 2016 | Blog
The want of defence counsels for children who are in conflict with the law is now a growing problem with attendant effects on the administration of juvenile justice in the country. That is, the majority of juvenile offenders are not represented by legal practitioners when they are arraigned before the court for having been in breach of the law. Such a practice definitely undermines the justice system especially as it relates to the rights of juveniles during trials. This is so because it violates a fundamental provision-the accused’s right to a legal representation- as espoused in both national and international instruments. The reason for this anomaly may be multi-faceted. Some parents’ or guardians’ are financially handicaped to secure the services a lawyer. In other cases, the juveniles are ‘street children’ who do not even have persons to guarantee them protection under the law. Most importantly, it can be the state’s insensitivity to upholding the rule of law as expected of all civilsed nations the world over.
The importance of having legal representation during trials cannot be overstated let alone in the trials of juveniles who are constrained by a number of factors including their mental capacities to withstand the rigours of a normal court procedure. Where there is an absence of a defence counsel, juveniles stand to be substantially disadvantaged as they are not accustomed to the setting of the court, not to talk about the language. This practice has often beclouded the administration of justice in juvenile courts which often begs the question as to whether the rights of children are protected within our justice system. This article will seek to examine the problems of juvenile justice system with particular focus on legal representation by highlighting the roles of defence lawyers in juvenile proceedings. It will also try to proffer some recommendations as a way of tackling this problem.
Part II, section 3(5) of the Children and Young Persons Act, otherwise known as Cap 44 of the Laws of Sierra Leone 1960 recognises the right of a juvenile to be represented by a legal counsel whenever such need arises. The Act provides for a juvenile to enjoy the services of advocates or other appropriate assistance in the determination of a legal matter. The use of ‘advocates’ in Cap 44 serves the purposes of both the ‘legal or other appropriate assistance’ provided for in the Convention, with the ‘other appropriate assistance’ Also, section 18(1) of the Child Rights Acts 2007, which establishes a Family Court, states that “[a] child shall have a right to legal representation at a family court.” This provision is in tandem with Article 40 (2) (b) (ii) of the Conventions on the Rights of the Child which accords children the right to “… have legal or other appropriate assistance in the preparation and presentation of his or her defence.” On the contrary, the majority of children who appear in court are not represented by legal counsel. Worst even is the fact that the Court often fails to take cognisance of this fact, but instead invoke section 14 of Cap 44 which states that “[if] the accused does not employ counsel, the court shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any questions to that witness.” This pattern continues to have very serious implications in determining the guilt or innocence of such children. The reason is that some children, in asking questions, end up implicating themselves further instead of exonerating themselves. Others because of the rigid atmosphere become dumbfounded and would tacitly admit to whatever allegations that are made against them. In a current larceny case, for instance, the juvenile offender was asked to cross-examine the prosecution witness who had earlier told the court that her niece saw the offender taking two bags out of the house and reported the matter to her. During the cross-examination, all what the offender asked was why did the witness’ niece not shout when she saw him carting away the bags. At that juncture, the Magistrate cautioned him that the question was for the niece and not for the complainant. When he was asked if he had other questions for the witness, he responded in the negative. The question asked was implicating to say the least. A lawyer was more likely to have asked technical questions in order to discredit the evidence of the witness thereby making a strong case for the juvenile offender. Additionally, a lawyer may canvass for a mitigation of the disposition to a lighter sentence where the accused may have been convicted.
Another area that warrants attention in the exercise of juvenile justice is the granting of bail. This provision is hardly enjoyed by offenders lacking legal representation. Part II section 5 of Cap 44 makes provision for bail to be granted to offenders if he or she is not charged with homicide or any offence whose imprisonment term exceeds seven years, if he or she is to be prevented from being associated with ‘undesirable person’ or if the release of such person may not “defeat the ends of justice”; the court shall grant bail to ‘…such person on recognisance being entered into by him or by his parents or guardian, or other responsible person, with or without sureties for such amount as will in the opinion of the officer secure the attendance of such person upon hearing of the charges.’ Most parents or guardians of juvenile offenders are not familiar with these legal provisions, not to talk of the offenders themselves. In most cases therefore, such child offenders have been sent to the remand home pending trial by presiding magistrates who wield an overwhelming discretionary powers in the absence of a defence counsel. Where one is present, the child offender has often been released on bail pending trial. This practice underscores the reason why is it that the majority of the children found in the remand homes are awaiting trial without legal representation.
Since the enactment of the Child Rights Act in 2007, there has been lots of controversies in court with regards the determination of the age of majority of the juveniles. The said Act provides as 18 and that of criminal responsibility is 14. However, the court is sometimes of the opinion that child offenders provide false ages (under 18 years), either in order to benefit from a juvenile trial or to be exempted from trial in cases of a claim of not reaching the minimum age of criminal responsibility. In such situations where the court is in doubt as to whether or not the child has attained the age of majority, or has not past the minimum age of criminal responsibility, it is only a legal practitioner, equipped with the requisite skills that can adequately argue on behalf of that child. An example to underscore this point was vividly demonstrated in court when a lawyer made a successful application for a matter involving a boy below 14 to be discharged because according to him, the boy was yet to attain the age of criminal responsibility. Without legal representation, the said boy would have been at the mercy of the court, probably tried and if found guilty, would have been sent to the Approved School to serve his sentence.
The lawyer in a court of law also serves as the juvenile’s voice to the court as he/she represents the expressed interest of the offender at any stage of the proceedings. He can object to the prosecution if he thinks a leading question has been asked and maintain high degree of integrity and remain confidential. He advocates in the best interest of the juvenile, recommend to the juvenile actions consistent with his interest and also about the potential outcomes of various course of action without which the juvenile will not be able to understand certain basic things regarding the trial.
The defence lawyer also has the task to be meeting the juvenile as frequently as possible and communicate with him in a manner which is very effective, considering his maturity, physical or language, background, etc. If the court does not have an interpreter, the defence counsel should move the court for the appointment of an interpreter. He also advocates to the court to appoint a guardian if it appears to him that the juvenile does not have a parent or adult to provide assistance to him.
Furthermore the defence lawyer is also expected to be knowledgeable of dispositional alternatives available to the court and should inform the parents or guardians of the juvenile about those alternatives, possible recommendations to the court and of possible outcome of the hearing. Most people are unaware of a good number of these legal provisions or court proceedings. As a result, it is but fitting that juvenile offenders be provided with legal counsels.
In conclusion therefore, it is necessary that juvenile offenders are given adequate protection before the law by providing them defence counsel. It is my humble submission that the Government, through the Ministry of Social Welfare, Gender and Children’s Affairs should employ the services of legal practitioners who can represent this vulnerable group of people whenever the need arises. Also, non-governmental organisations working on access to justice issues should consider venturing to provide legal assistance to particularly this special group. Finally, the government, through the justice ministry should think of increasing the number of juvenile courts around the country as this would help in the expeditious administration of justice.
by ibakarr | Aug 11, 2016 | Blog
Introduction
Sierra Leone is a signatory to various international instruments, most of which prohibit the commission of crimes constituting crimes against humanity, war crimes and other serious violations of international humanitarian law (IHL). Even though these instruments prohibit the commission of crimes, regrettably, some of them fall short of expressly addressing the issue of punishment for breaches, or where such provisions are made, there is dearth of workable mechanisms within the instruments to address issues of impunity. Unlike some international instruments, the Rome Statute, the founding treaty of the International Criminal Court (ICC), has attempted to bridge the gap by addressing the issue of impunity. The provisions of the Rome Statute expressly address most serious crimes, such as genocide, war crimes, crimes against humanity, and the crime of aggression, as indictable crimes. It is generally accepted that the laws of Sierra Leone provide a bedrock of laws and principles specifically designed to protect its people and its borders. While the current laws can prosecute individuals for crimes such as murder, rape, armed robbery and larceny, it does not have the competence to try perpetrators of serious violations of IHL. Thus the need to enact laws that will address crimes committed in conflict and during peacetime. This article will make a case for the domestication of the Rome Statute in Sierra Leone. It will give an overview of its main provisions and proffer plausible reasons why a legal framework should be setup for its implementation and subsequent cooperation with the ICC.
Sierra Leone and IHL
Domesticating international law is central to its implementation at national level. Sierra Leone has demonstrated this by enacting an enabling legislation for the establishment of the Special Court for Sierra Leone (SCSL) in 2002. [1] However, the Agreement establishing the Special Court limits its mandate to try persons bearing the greatest responsibility for the atrocities committed during the war in Sierra Leone after 1996. The commission of ‘heinous crimes’ as described by Judges of the SCSL compels states to enact national legislation to prosecute and consequently punish perpetrators for these grave breaches under national and international law. [2] The SCSL, a sui generis model for ad hoc international tribunals, has convicted persons for what constitutes serious violations of IHL, including enlistment and the use of child combatants. Violations such as these are not usually addressed in national legislations. The Rome Statue and the establishment of the ICC provide a platform to address these issues. The Rome Statute creates an international body to address war crimes and other serious violations of IHL that can also be committed during peace time. By enacting legislation creating the SCSL, Sierra Leone has demonstrated the need to address war crimes, crimes against humanity and other serious violations of IHL. Hence, the provisions of the Rome Statue and the ICC itself are not far-fetched, because certain provisions, structures, principles and laws that they contain have already been applied by the SCSL. For instance Article 2 of the SCSL Statute provides that the court shall prosecute persons accused of committing crimes such as murder, extermination, enslavement, torture, rape, committed as part of a widespread or systematic attack against civilian population. [3] Similarly, Article 7 of the Rome Statute of the ICC provides for the prosecution of such crimes. [4] [5] Relying on the precedent set by the SCSL, domesticating the Rome Statute might help to contribute in strengthening international justice mechanism in Sierra Leone. Additionally, the ICC has jurisdiction over genocide and the crime of aggression (once the latter has been defined).
Jurisdiction
The Rome Statute was adopted on 17 July 1998 and entered into force on 1 July 2002, thus establishing the ICC with its seat in The Hague, The Netherlands. Part 2 of the Statute provides that the court shall have jurisdiction over cases of war crimes, genocide, and crimes against humanity. Furthermore, the court would exercise jurisdiction over the crime of aggression once there is an agreement on what constitutes the crime. Generally, the court is set up to try persons alleged to have committed these crimes. Like the SCSL, the ICC can also prosecute individuals for acts or omissions of their subordinates. The general principle of the court also states that the court is not retroactive; that is, it can only prosecute crimes that were committed after the entry into force of the Statute.
Characteristics
The ICC operates only as a complementary court to national judicial systems; that is, the court will only exercise its jurisdiction when a state is either unable or unwilling to prosecute crimes under its jurisdiction. Cases can be brought to the court in one of three ways. Firstly, a State Party to the Rome Statute, on its own volition, can refer a situation in which one or more of the crimes in the Statute are alleged to have been committed, to the Prosecutor of the ICC to investigate whether charges should be brought against one or more persons for committing these crimes. In 2006, Democratic Republic of Congo referred situations involving Thomas Lubanga Dyilo et al to the Prosecutor for investigation. [6] Secondly, the UN Security Council can refer a situation to the Prosecutor, acting under Chapter VII of the UN Charter. This was seen in the case of Sudan under Security Council resolution 1593 (2005), when the UN Security Council referred the situation of Ahmad Muhammad Harun [7] . Thirdly, the Prosecutor of the ICC can initiate an investigation on his own (proprio motu ), on the basis of reliable information that crimes within the jurisdiction of the court have been committed. Such information can come from international or local non-governmental organizations or victims. In complementing national judicial systems, the ICC recognizes the principal responsibilities of states to enact laws that can address the issue of impunity, thereby establishing a comprehensive system at all levels for prosecuting and punishing violators. The ICC therefore comes in where such legal and judicial framework does not exist within a state. The principle of complementarity also suggests that crimes can be investigated by the Prosecutor of the court or a referral by the UN Security Counsel if State Parties are unwilling to adjudicate such matters. To guarantee referrals by either the UN Security Counsel or a government to allow the prosecutor to initiate an investigation, State Parties have to enact national legislation that will incorporate the elements of the Rome Statute. Being a signatory to the Rome Statute, Sierra Leone needs to expeditiously domesticate the Rome Statute in order to have competence to adjudicate on crimes enshrined therein.
Furthermore, the Rome Statute makes provision for victims’ participations at all stages of proceedings. As a result, the ICC has availed the victims access to and being a part of the justice process, a development that is unique in the structure and operations of international tribunals. It also takes into account issues of reparations for victims beyond the traditional punishment and deterrence objectives of domestic courts. Article 79 of the Rome Statute provides for the establishment of a trust fund for victims and their families. This does not only address the issue of reparation, it also guarantees legal representation for victims to participate at all stages of the proceedings. The court can determine the extent of damage and can order perpetrators to compensate victims as such.
Furthermore, in adhering to international standards, the ICC does not use the death penalty as punishment. Article 77 of the ICC’s Statute provides that the court can only institute penalties such as life imprisonment, imprisonment for a designated number of years and fines, but cannot institute the death penalty. Domesticating the Rome Statute therefore will ensure a significant step to expunge capital punishment from the laws books in Sierra Leone.
Status of the Rome Statute in Sierra Leone
Though the process is underway to enact legislation with the aim of implementing the provisions of the Rome Statute in Sierra Leone, it appears not to be a priority. Eight years after the signing of the Rome Statute, Sierra Leone has still not domesticated the Statute despite the fact that it was the 20th country to ratify the Rome Statute in September 2000. The provisions of the Rome Statute provide a wide range of alternatives for addressing the issue of impunity. There is a currently parallel effort by the Sierra Leone Bar Association and No Peace Without Justice (a non-governmental organization) to contribute to the drafting of a bill that will domesticate the Rome Statute. Both organizations conducted separate seminars and had written comprehensive reports. It is therefore essential to synchronize these reports into a single bill to pass into law.
It is important to note at this juncture that criminal justice in national jurisdictions is usually met with unprecedented rigors that might hinder the process of fair trials. Rigors such as prolonged detention due to lack of personnel or resources to timely prosecute, contravene Section 17 of the 1991 Constitution of Sierra Leone. [8] Also inadequate legal representation for accused persons can amount to a breach of Sec 23(5) [9] of same. Hence the failure of national courts to effectively prosecute accused person presents a perversion of justice. In a bid to alleviate fears of these occurrences, State Parties can refer allegations to the ICC, bearing in mind that the court can only serve as a last resort. In June 2000 the government of SL had to request such assistance for a war crimes tribunal, which eventually led to the establishment of the SCSL. This request was the result of Sierra Leone lacking effective national mechanisms to try those who were alleged to have committed serious violation against humanity. If the Rome Statute is domesticated, Sierra Leone may have enhanced its competence to try crimes under IHL in its national courts.
Conclusion
Justice mus t be seen as a building block for a modern day society. This is especially important for a transitional country like Sierra Leone, where inadequacies in the justice system were identified as one of the root causes for the decade-long civil war. As a substantive measure to address this cause, it is essential to establish the corresponding legal framework that will address the problems of impunity and inadequate justice. It is also crucial for Sierra Leone to put mechanisms in place that will guarantee accountability in the case of future breach. Through this, Sierra Leone would have succeeded in not only ensuring deterrent but most importantly accountability for breaches. This would not only lead to international recognition, but will also send a message to other countries that Sierra Leone is not a safe haven for criminals.
[1] See Special Court Ratification Act 2002
[2] See SCSL Trial Chamber II Judgment on the AFRC Trials
[3] See Statute of the SCSL- http://scsl-server/sc-sl/new/scsl-statute.html
[4] See Rome_Statute_120704-EN
[5] ibid
[6] http://www.icc-cpi.int/pressrelease_details&id=19&l=en.html
[7] http://www.un.org/News/Press/docs/2005/sgsm9797.doc.htm
[8] See The Constitution of Sierra Leone 1991 Art. 17 (3) a, b
[9] Ibid [Art. 23 (c)]
by ibakarr | Aug 11, 2016 | Blog
Background
Charles Ghankay Taylor, the 21st President of Liberia, became the first former African Head of State to be arraigned before a treaty-based international criminal tribunal that was jointly set up by the United Nations and the Government of Sierra Leone, for alleged commission of crimes against humanity, war crimes, and other serious violations of international humanitarian law contrary to Articles 2, 3 and 4 of the Statute of the Special Court for Sierra Leone (SCSL). According to the allegations in the Amended Indictment (11 instead of the initial 17-count) filed by former Prosecutor, Desmond da Silva, Mr. Taylor, by his acts or omissions, is criminally responsible under Article 6(1) of the Statute of the Court for those three serious crimes witnessed in Sierra Leone between 30th November 1996 to 18thJanuary, 2002.
Mr. Taylor made his debut appearance in a packed courtroom on Monday, 3rd April 2006, before then Presiding Judge of Trial Chamber II, Richard Lussick, five days after he was transferred to Freetown via Monrovia, following his reported arrest on the Nigeria/Cameroon border on Wednesday, 29th March 2006, while allegedly trying to escape from Nigeria. After the charges were read, Mr. Taylor questioned the jurisdiction of the Court over him as ex-President and also raised concerns about the legality of his transfer to the Court’s seat in Freetown. He was, however, advised by the Presiding Judge to enter a plea which could give him the locus standi to take up whatever issues he may have through motions before the Trial Chamber. Accordingly, Mr. Taylor passionately responded by saying: “Most definitely, Your Honour, I did not and could not have committed these acts against the sister Republic of Sierra Leone. I think that this is an attempt to continue to divide and rule the people of Liberia and Sierra Leone; so, most definitely, I’m not guilty.”
However, the euphoria that accompanied Charles Taylor’s arrest, transfer and subsequent arraignment before a crammed but quiet Chamber dissipated few days later. A day after Mr. Taylor’s transfer to the Special Court in Freetown, former President of the Court, Judge Raja N. Fernando, sent a letter to both the Government of the Kingdom of The Netherlands and the President of the International Criminal Court (ICC) asking them to facilitate the trial of Charles Taylor in The Hague. According to the Press Release issued by the Court, Judge Fernando’s decision was taken in light of the seeming security risks created by Mr. Taylor’s detention in Freetown, which prompted the initiation of diplomatic steps to establish whether Mr. Taylor’s trial could be held outside of the sub region. The facility of the ICC in The Hague was identified as a possible venue.
The Dutch Government agreed to host the trial of Charles Taylor after a Security Council resolution had supported the request. It, however, insisted that a third country be found to take Taylor in, whether or not he is found guilty. Thus, on the 19th June 2006, the President of the SCSL ordered that the pre-trial proceedings, trial, and any appeal of Mr. Taylor be conducted in The Hague.
Change of Trial Venue
According to Article 10 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court provides that: “The Special Court shall have its seat in Sierra Leone. The Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone…” In addition, Rule 4 of the Special Court’s Rules of Procedure and Evidence explicitly provides for a sitting away from the seat of the Court. It states that: “A Chamber or a Judge may exercise their functions away from the seat of the Special Court, if so authorized by the President.”
However, before the President of the Court made the official pronouncement of the Charles Taylor case to be conducted in The Hague, Taylor’s Defence Counsel, Karim A.A. Khan, on 7th April 2006, filed an Urgent Defence Motion before Trial Chamber II for an Order that no Change of Venue from the seat of the Court in Freetown be ordered without the Defence being heard on such an important issue. According to the Motion, it had not been judicially ascertained that such a proposed change of venue was required in the interests of justice. It therefore asked for the President of the Court to withdraw the Request he had made to (i) The Government of the Kingdom of The Netherlands to permit that the trial of Charles Ghankay Taylor to be conducted on its territory and (ii) to the President of the International Criminal Court (ICC) for the use of the ICC Building and Facilities in The Netherlands during the proposed Trial of Charles Ghankay Taylor until after arguments from parties that such a change of venue was of absolute necessity.
In spite of Defence Motions, the Government of Sierra Leone, war victims as well as civil society advocacy for the trial of Charles Taylor to be conducted in Freetown, the President of the Court, while exercising the power of Security Council Resolution 1688 (adopted on 16 June 2006), ruled for the trial of Charles Taylor to be done in The Hague.
Reconsider a Change of Venue
On the 22nd February 2007, Defence Counsel for Mr. Taylor filed another Motion to the President of the Court, Hon. Justice George Gelaga King, to reconsider a change of venue of proceedings in their client’s case. According to the Motion, the Defence requested that the President of the Court: Reconsider his Order Changing Venue of Proceedings of 19th June 2006; Invite Representatives from the Sierra Leonean and Liberian Governments, The African Union, Civil Society Groups and Other Interested Parties on the issue of venue on an expedited basis; Order that the Trial of Charles Taylor be held at the Special Court’s premises in Freetown; and Make such other consequential orders as are deemed necessary on the grounds that “there has been a significant change in circumstances” and that the accused’s “fair trial rights will be violated or made significantly more difficult to guarantee if the trial proceeds in The Hague.”
Furthermore, some civil society organizations jointly wrote an Application to the President of the Court, requesting his permission, pursuant to Rule 74 of the Special Court Rules of Procedure and Evidence, to file an amicus curiae brief in response to that pending Defence Motion for Reconsideration of Order Changing Venue of Proceedings.
The President of the Court, however, dismissed the Defence Motion in its entirety on the basis that the Rules do not provide the Applicant an avenue for “reconsideration” or review and that that present Motion was improperly placed before him having regard to the Rules. Moreover, the Deputy Registrar
of the Court responded to the Application by the various civil society groups for an amicus curiae brief that the Decision of the President dismissing the Defence Motion, taken in his administrative capacity and issued on 12 March instant, rendered the need for an amicus curiae brief on the matter irrelevant.
Simply put, the decision of the President of the Court to have Charles Taylor tried in The Hague has been laid to rest; it cannot be reversed.
The Hague Trial: Implications
Since the setting up of the Court, the issue of security has always been a priority. The decision to transfer the Taylor trial to The Hague is hinged on the belief that his continued presence in West Africa will not augur well for the peace in Sierra Leone and Liberia and to international peace and security as a whole in the sub region. However, the Government of Sierra Leone stated unambiguously that it does not share such security fears as it had adequate security to have held the trial in the country. That not withstanding, many important governmental institutions, most remarkably the Legislature, as well as civil society groups and the Amputees and War Wounded Association, in whose name the court is said to be dispensing justice, have echoed that the trial of Mr. Taylor should be held in the country.
When the late Chief Sam Hinga Norman, former head of the Civil Defence Forces (CDF) – national hero for many- was arrested, many people feared that his cohorts would cause an uprising. After the International Criminal Tribunal for Rwanda and Yugoslavia repudiated the request of the Special Court to provide temporary detention for him and to host his preliminary appearance, he was subsequently tried in Sierra Leone with no reported security disturbances up to his death in February this year. Similarly, when Charles Taylor left office, he resided in Nigeria as a ‘free man’ with no public evidence to date extenuating his threat to security in the sub region. Both cases definitely make the much trumpeted security concern obsolete. The contentious issue is the actual arrest and trial of Taylor, and not whether he is tried in Freetown or The Hague.
The decision by the President to move the seat of the Court in the Charles Taylor trial from Freetown to The Hague has had serious implications for the Court. Given the political and legal significance of the Taylor trial in the continent at large, his trial in The Hague may possibly, like the Dujail Tribunal which tried former Iraqi leader Saddam Hussein, discredit the Court as nothing more than the new imperialism disguised as international rule of law to tame the “beast of impunity”.
The transfer of the trial has undermined the entire rationale for having the Court located where the crimes were perpetuated, thus making it difficult for people, in whose name and on whose behalf the Court is said to be rendering justice, to access the process of justice in the trial. Indeed for many victims, the most significant succor they can get for their afflictions during the decade long conflict is for them to see those that they consider responsible, tried in their presence. However, with the trial being conducted in The Hague, Sierra Leoneans and Liberians, particularly war victims, would not be getting first hand information of the proceedings. The transmission of the trial through video link will not be enough as many people, particularly in Sierra Leone do not have access to television sets, and, for those who do, electric power supply remains a crisis. Equally so, for two monitors/observers (from civil society groups) to report to the whole country every trial month on proceedings in The Hague will be travesty of accountability. Hence, the people would have been denied the right to see, first hand, justice being administered.
The change in the trial venue also makes room for serious financial, logistical and administrative burden on the Court. The cost of hosting Charles Taylor’s trial in The Netherlands has been projected at $20million. The establishment of a second Special Court Office in The Hague, the relocation of Trial Chamber II, the re-deployment of staff, the transfer of and accommodation arrangements for witnesses, and the establishment of an enhanced Outreach presence in Liberia are very challenging. The President of the Court, in the Order Changing Venue, stated that “while it is true that certain witnesses may have to travel to The Hague, this should not present an undue financial or administrative burden.” It is worth noting that as of 30 January 2007, it has been reported that the Court only had sufficient funds to continue operations until the middle of the year. This will be halfway through the opening statement of trial scheduled for 4 June. Thus, if the Court fails to solicit more funds from donor countries, there is the possibility that the trial, once started, will not be finished. Hence continuing to stage the trial in The Hague will impose undue difficulty for a Court that is already bleeding white.
Ever since Charles Taylor’s arraignment before the Court, he had relayed two concerns. First, fear for his life and second, that he is completely opposed to his transfer to The Hague. Pursuant to Article 17(3) of the Statute of the SCSL which provides for “The accused to be presumed innocent until proved guilty according to the provisions of the present Statute,” Mr. Taylor’s trial should be transparent, fair, just and equitable. On the contrary, the Taylor Defence have filed a number of Motions alleging that the change of venue has resulted in violations of their client’s rights to equal treatment with other SCSL detainees contrary to Article 17(1) of the Statute of the SCSL which states that “ All accused shall be equal before the Special Court.” The Defence alleges that the accused’s lawyer-client privilege consultations have been subjected to video surveillance, and the Detention Centre at the ICC where Mr. Taylor is held in custody has imposed an excess of unnecessary, unreasonable, and discriminatory restrictions that are not applicable to other detainees in Freetown. The Defence has incriminated the Special Court for abdicating its jurisdiction in a flawed Memorandum of Understanding between the Court and the ICC over decisions relating to Mr. Taylor’s detention conditions. Consequently, the defence has even threatened to boycott the trial if these “unnecessary, unreasonable, and discriminatory restrictions” are not removed immediately.
Conclusion
The underlying principle for the establishment of the Special Court, hailed as a new model because it is located where the atrocities were committed, is arguably to provide the victims of the war with some sense of justice and restitution and to allow for a mix of international legal principles with local participation from those affected by the conflict. With the International Criminal Tribunal for Rwanda, sitting in Arusha, Tanzania already criticized for denying the people of Rwanda the opportunity to closely follow the trial, thus having very little impact on Rwandans, the same could be said of the Special Court if the Taylor trial is not made accessible to those most affected.
Be that as it may, the Court must take into account the rights and wishes of the accused, who, incidentally, is the only non-Sierra Leonean and with the highest profile before the Court, lest there be a claim, again as in the internationally discredited Dujail Tribunal, for falling short of fairness standards.
by ibakarr | Aug 11, 2016 | Blog
Introduction
During the inauguration of the Commissioners of the National Human Rights Commission on 11 December 2006, the President of Sierra Leone, Ahmed Tejan Kabbah, announced that the death penalty would no longer be used but retained in our statute books to serve as deterrent to criminals. This statement was made following widespread campaign to abolish the death penalty. Under Sierra Leonean laws, the death penalty is supposed to be applied for crimes such as murder, treason, mutiny, and aggravated robbery. However, the history of the use of this punishment shows that it is often used for political purposes rather than in the interest of peace and stability.
Death penalty has existed since pre-colonial Sierra Leone when people were killed for crimes such as witchcraft and cannibalism. It was, however, institutionalized when the British colonial masters arrived and introduced the English Common Law as a means of combating crimes and subjugating the people. The execution of 96 people in 1898, for their refusal to pay 26 pence as tax is indicative of the latter motive. [i] A century later, in October 1998, President Kabbah signed the death warrant of 24 military officers after a court martial convicted them for treason. Currently, there are twenty two people on death row at the Pademba Road Prisons. These convictions were done after the publication of the Truth and Reconciliation Commission ( TRC) Report which recommended that the death penalty be removed from the laws of Sierra Leone, and in the interim, a moratorium instituted. The Government of President Kabbah is yet to act on the recommendations of the TRC as he recently manifested in his pronouncement during the inauguration of the human rights Commissioners.
This article gives synopsis of the strides that have been taken to abolish the death penalty. It also rebuts arguments in support of the death penalty. In addition, it proffers legal arguments in opposition to the death penalty and a conclusion.
Strides taken to Eradicate Capital Punishment
Prior and subsequent to the execution of the military personnel in 1998, there has been widespread campaign to abolish the death penalty. In a bid to get states to commute sentences, the World Coalition Against Death Penalty was formed. The coalition, comprising dozens of human rights organizations worldwide, has been able through demonstrations, petitions, concerts and televised debates to persuade 87 countries to abolish the death penalty. The coalition still continue to call on countries such as Sierra Leone, Nigeria, the United States of America, China etc that withhold the death penal laws to adopt a moratorium on executions.
Currently in Sierra Leone, civil society groups are spearheading the campaign for the abolition of the death penalty. Although they have not succeeded in getting the Government to abolish the practice in its entirety, nonetheless, their efforts have yielded some fruits. For instance, prior to 2002, persons convicted by a court martial did not enjoy the right to appeal. However, through the efforts of civil society groups, persons convicted of treason by a military tribunal now have the right to appeal the decision.
The Sierra Leone Truth and Reconciliation Commission, a creation of the Lome Peace Agreement and TRC Act 2000, made a compelling case for the abolition of the death penalty. In its recommendations, the TRC based its arguments (inter alia) on the principle of inviolability of the right to life. Additionally, when the Special Court for Sierra Leone was established pursuant to Security Council Resolution 1315 of 2000, it did not include the death penalty as a form of punishment for accused persons that may be convicted despite the fact that they are being tried for heinous crimes such as war crimes and crimes against humanity. Sad to note, however, is that despite these efforts, the Government of President Kabbah has not responded accordingly.
Rebutting Arguments in Support of the Death Penalty
The legendary argument of apologists of the death penalty has been that it serves as deterrent to the commission of heinous crimes. However, it is clear that the intensity of the punishment has never been a deterrent, not even in the United States where it is most frequently applied. Similarly, not in Sierra Leone as it is evident that the existence of the death penalty has not deterred the commission of capital offences. In Sierra Leone, even though the death penalty has been mostly used in cases of treason and those involving political opponents, it has not dissuaded them from staging coups. For instance, there have been 20 coup attempts since independence, a considerably high rate according to world standards. [ii] In essence, this is indicative of the falsity of the thesis that death penalty is a deterrent to heinous crimes in this country. As already stated, it is rather used as a political tool to premeditatedly and cold bloodedly kill political opponents. Sierra Leoneans still continue to question the authenticity of the allegations that led to the executions of Mohamed Sorie Fornah and others in 1975 and Francis M. Minah and others in 1987.
Apologists of the death penalty have also argued that executing the worst offenders will prevent the repetition of their offences. Contrary to this in Sierra Leone, there has never been an instance in which a condemned prisoner, released by virtue of presidential amnesty, has subsequently committed a similar offence.
Furthermore, they have argued that the death penalty is the deserved punishment for heinous crimes. This notion is, however, not plausible, because no matter how abhorrent a crime may appear, it cannot justify the infliction of cruel, inhuman and degrading treatment. Like the saying goes, an eye for an eye leaves everybody blind; so also murder for murder leaves everybody dead. Or have they thought about how raping all rapists as a punishment will leave everybody violated?
Legal Arguments in Opposition of the Death penalty
The death penalty as a form of punishment cannot be applied impartially. It is fraught with arbitrariness, discrimination and mistakes. Once applied, it cannot be revoked. In a case where it is applied as a result of incompetent lawyering, suppression of evidence, local prejudice etc,, the punishment will be irrevocable regardless of the fact that the individual involved may not have committed the crime. Once a death penalty is executed, no amount of pardon or compensation will undo the punishment. In other words, we cannot right a wrong in a death penalty once it is carried out. Let us take the case of the Birmingham Six for example. These men were sentenced to life imprisonment on a murder conviction after the abolition of the death penalty in England in 1965. Convicted in 1975, after having served 16 years in incarceration, their case was later reviewed by the court of appeals and their conviction rescinded in 1991.However, their situation was not as helpless as it would have been had they been executed.
The inadequacy in the judicial sector is another major cause for the abolition of the death penalty. The Sierra Leone judiciary is badly in need of forensic technology such as techniques to determine DNA of suspects to prove or disprove an evidential burden. Even in countries where DNA technologies exist, they still make errors in their judgments, let alone in a country like Sierra Leone where it is yet a dream.
Additionally, the practice of death penalty in Sierra Leone is cruel, inhuman and degrading and contravenes sec 20(1) of the 1991 Constitution which states that “No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading.” In Sierra Leone, condemned prisoners are placed on death row for years without stating the date for their subsequent execution; thus putting them in perpetual fear. Also, the black attire that they are made to put on symbolizing condemned could seriously affect their mental wellbeing. Furthermore, there have been cases where condemned prisoners that do not easily die when shot at or hanged are brutally beaten to death. In a resume, the way the entire execution process is carried out is cruel.
Conclusion
The death penalty is a bad law and as it is always with bad laws, it cannot be applied impartially. As a result, Judges hardly exercise their discretion away from the death penalty in treason cases. The history of its use in Sierra Leone shows that political opponents who may not have killed during the alleged coups are most likely to be killed than actual convicts of murder. Most convicts of murder are normally kept in prison until they die naturally or until the president exercises his prerogative of mercy and grant clemency.
If the authorities fear that prisoners condemned to death (who are often deemed dangerous) will escape from prisons to commit similar offences, why not fortify security at the prisons then? In fact, it is not only viewed as an abdication of responsibility by killing for fear that they may escape, but it is relegating the value of life. It is the responsibility of the Government to secure its citizens, no matter their status. The performance of this function does not, however, include killing convicted prisoners.
That said the SLCMP calls on other civil society groups and human rights organizations to get aspirants for the 2007 Presidential and Parliamentary elections to commit themselves to abolish the death penalty when they shall take up office. As the infliction of this penalty on the innocent, coupled with other factors, led to the civil war, it therefore of much importance that this form of punishment is expunged from the statute books in Sierra Leone.
[i] Death Penalty: A legal Deterrent or a Political Tool in SierraEye Magazine, Vol. 1 No. 2 2006
[ii] Ibid p. 18
by ibakarr | Aug 11, 2016 | Blog
‘The greatest glory in falling is rising again.’ This sentiment generates the invaluable need for Sierra Leone to heroically recover from her ugly past. To achieve this, the nation needs to be reconstructed on the solid pillars of human dignity, peaceful co-existence and social justice. The absence of these social conditions, deserved by the people of Sierra Leone, was engendered principally by corruption and the impunity that accompanies it. It was this that triggered the decade long civil war that has left indelible negative scars upon the country.
![joko[1]](https://carl.org.sl/wp-content/uploads/2016/08/joko1.jpg)
Prof Joko Smart
Corruption was not only one of the prime causes of the war but also largely sustained it. During the war, senior government officials and officers of the Sierra Leone Army contributed immensely in sustaining the war by diverting logistical support intended for the war to their personal use. Consequently, they did not only undermine the defence of the country, but their corrupt practices resulted into a great deal of dissatisfaction on the parts of junior soldiers and those at the war front. This dissatisfaction ultimately erupted into rebellion on the part of the junior ranks who expressed their indignation of the system by seizing power on two occasions. [i] Corruption went on galore!
Eventually the war came to target innocent people to an extent that the dire need for peace was cried for in every nook and cranny of this country. This culminated in the Lomé Peace Accord and the establishment of the Truth and Reconciliation Commission pursuant to Article XXVI of the Accord. The mandate of the Sierra Leone Truth and Reconciliation Commission (TRC) was to create an impartial historical record of violations and abuses of human rights and international law related to the armed conflict in Sierra Leone from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent the repetition of the violations and abuses suffered. [ii]
The TRC in response to this mandate started operations in 2002 and looked at; inter alia, the causes of conflict, which mainly posited issues of bad governance and pervasive corruption as the pivot. In its report, the TRC recommended that the Government puts adequate structures in place to fight corruption. It specifically recommended the disclosure of assets by ‘powerful public position holders’ including members of cabinet, judges, Parliamentarians, heads of parastatals and members of district and city councils, before and after assumption of office, in order to enhance transparency. Furthermore, the TRC recommended that Government works towards the publication of all funding allocated to the provision of services so as to ensure accountability to the people of Sierra Leone. The Commission warned against corruption that, if not arrested, will lay the grounds for further conflict, hamper the efforts towards development and sap the country of its life force. Most importantly, the TRC recommended that the Anti-Corruption Commission (‘ACC’) be “permitted to pursue its own prosecutions in the name of the Republic of Sierra Leone”, [iii] because the Attorney General has been criticized for rendering the ACC ineffective. This implies that the ACC should be permitted to determine all cases that are justiciable and prosecute them in court directly without having to be sanctioned first by the office of the Attorney General.
Without any fiber of equivocation, the ACC has been set up to make corruption history, thereby thwarting the stakes for the recurrence of war in this country. However, the Commission has not yet done enough to effect positive changes in society. This is due to certain institutional problems created chiefly by the acts and omissions of the Government. The Government of Sierra Leone has so far failed to take the requisite steps to facilitate the implementation of the Truth and Reconciliation Commission (TRC) recommendations, especially the sections that have to do with the fight against corruption. In its White Paper (response to the TRC recommendations), the Government conspicuously failed to mention a word about corruption. Sufficient has not been taken regarding disclosure of assets by Government officials; regarding publication of information on budget allocation, especially for social services; and most importantly in terms of enhancing the independence of ACC, with regards to the issue of justiciability and subsequent prosecution.
As for the latter, Vice President Solomon Berewa during the Development Partnership Committee Meeting in September 2005 said that they “…have established a committee comprising two ACC Special Prosecutors and a Law Officer appointed by the Government. This committee will now make the decision as to whether any ACC case merits prosecution. The decision of the committee is deemed the decision of the Attorney General.” [iv] The SLCMP is not sure whether the Government was acting based on the recommendations of the TRC. Even if that is the case, this drive could only enhance the independence of the ACC if it is allowed to prosecute the cases, meaning cases should not be sent to the Director of Public Prosecution (DPP). Furthermore, like the three man committee, the cases being prosecuted should be deemed the actions of the DPP and in the name of the Government of Sierra Leone.
The recommendations made by the TRC are just minimum threshold efforts that are required of serious minded governments to enhance the fight against corruption. Realistically, the implementation of these recommendations requires little or no financial resources and therefore leaves the Government with no excuse to implement them. In such a case, a government has to be extremely complacent about corruption to leave these basics in undoing corruption unattained.
Corruption still costs Sierra Leone so much and is the root cause for the difficult living conditions among the average Sierra Leonean which have consistently maintained Sierra Leone at the nadir of the UNDP Human Development Index. Crucially and shamefully, Sierra Leone last year failed to qualify as a beneficiary of the G8’s debt cancellation initiative apparently because the Government fell short of convincing the donors of its effort to fight corruption. Equally detrimentally and embarrassingly, a meeting of prospective donors in Paris to discuss the Poverty Reduction Strategy for Sierra Leone was called off in June 2005 because of Sierra Leone’s faint endeavors at addressing corruption. [v]
That said, the SLCMP still thinks that hope is not lost. However we view with strong conviction that corruption can be made history only if there is strong political will complementing the Anti- Corruption Commission (instead of competing with it) and related civil society groups. The ACC needs its own specialized investigation, prosecution and prevention bodies. The ACC Act 2000 imperatively needs more amendments in order to incorporate the salient recommendations the TRC has made. The Attorney General and Minister of Justice has too many powers as established in sections 36,37,39,40 and 48 of the ACC Act 2000 especially when the holder of this position is a politician. The SLCMP yearns for the truth no matter who says it and for justice no matter who it is for or against, so that together, we can build a Sierra Leone that we can be proud of.
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[i] Report of the Sierra Leone Truth and Reconciliation, Vol 2
[ii] Section 6(1) of the TRC Act, 2000
[iii] [iii] Report of the Sierra Leone Truth and Reconciliation Commission, Vol 2, Chapter 3, Para 297
[iv] See Salone Times Newspaper, 14th September 2005 p.8
[v] Civil Society Response to the Government’s White Paper (Unpublished)
by ibakarr | Aug 11, 2016 | Blog
The bulk of the prison population in post-conflict Sierra Leone is made up of unsentenced prisoners. Section 17 of the 1991 Constitution of Sierra Leone provides against the delays relating to pretrial detention. This provision guarantees persons arrested or detained to be brought before a court of competent jurisdiction within ten days of arrest for major crimes like treason, murder and other felonious crimes; and three days for misdemeanors. On paper, the provision is somewhat consistent with international standards as it respects the rights of the accused to be tried without undue delay by an independent and impartial court. Unfortunately, the applicability extensively contravenes the spirit and letter of not only international standards but also that of Sierra Leone law. Some people are held in detention for longer periods than prescribed in the Constitution before any charges are brought against them. Even when charged, they are most times held in prison for periods longer than they would have served if they were found guilty. This article examines the reasons for prolonged pretrial detention, its consequences and proffer suggestions for meaningful reform.
Causes
One of the main causes of prolonged pretrial detention is due to delays in bringing charges against suspects, which in turn is often as a result of lack of police personnel with the requisite expertise to determine which charges should be brought against accused persons. For example, in Port Loko District, suspects for murder and manslaughter were held for about seventy days in detention without being charged to court. In Moyamba District, two brothers were held for over two years in remand for alleged common assaults. [i] This is a breach of Section 17(a) and (b) of the1991 Constitution. Moreover, most arrests made in the country are often exercised without warrants. Even where there is a warrant, police officers hardly mirandize when an arrest is made contrary to Sec 15 of the Criminal Procedure Act 1965 of Sierra Leone and Article 14(3)a of the International Covenant on Civil and Political Rights (ICCPR), of which both state that, persons charged with a criminal offence should be informed promptly and in details in a language the person understands of the nature and cause of the charge against him/her. This has been the practice mainly because the majority of the people arrested do not know the rules governing arrest and detention.
The administration of justice in Sierra Leone is slow, so much that detained persons bear the brunt of this malaise. Whilst the demand for the judicial service is on the increase, members of the Bench and trained judicial support officials has been on a steady decline. The current shortage of competent staff can be attributed to the war and the poor condition of services. For instance, during the war, members of the judiciary were specifically targeted by the warring factions. Consequently, survivors fled the country and took appointments elsewhere and some of them are yet to return. Furthermore, the poor condition of service of the judiciary hardly attract young people to the Bench. This severe shortage of members of the Bench has been a cog in the wheel with regards to expediting trials in the country. The few that continue to stay on the Bench are inundated with far too many cases than they can practically deal with.
The problem is even worse in the provinces as magistrates are often assigned to more than one district. In 2005, the United Nations Development Programme and partners recruited a few young lawyers to serve on the Bench in the provinces. Although this endeavour has help to expedite trials, the problem still remain as undecided cases continue to pile up. Thus, cases are left unheard for lengths of time leaving suspects to languish in prison.
Inadequate legal representation also makes way for the continuous incarceration of persons. The Sierra Leone Bar Association (SLBA) currently has less than two hundred registered lawyers of which about ninety-five percent of them are based in Freetown. Few of them are in the Provinces, most of who are resident in the regional headquarter towns. As a result, most detained persons especially in the provinces are tried without legal representation contrary to Sec 23(5) of the 1991 Constitution of Sierra Leone, which guarantees accused persons the right to have legal assistance. For those who can afford, the counsels are most often scheduled to appear in more than one courtroom simultaneously. Since the counsel cannot be at two locations at the same time, cases are unavoidably adjourned leaving the accused to stay in custody.
Refusal to grant bail to people that meet the requirement by the judges has contributed to prolong pretrial detention. It must be noted that pretrial detention, with reference to international standards, shall be used only if there is a demonstrable risk that the accused person will abscond, interfere with the course of justice or has the tendency to commit a serious offence. Premised on the fact that an individual should be presumed innocent until proven guilty, international law provides that persons accused of an offence should normally be granted bail except for murder, treason and other felonious offences. In Sierra Leone, this provision has most times been discounted for the granting or refusal of bail. A typical example is that of the case of For Di People Newspaper editor, Paul Kamara, who was charged with seditious libel and refused bail even though it is a bailable offence. Hence he was held in detention for almost two years before the case was discharged by the Appeals Court.
The use of the President’s emergency powers outlined in Section 29 of the 1991 Constitution is one of the contributing factors to prolong pretrial detention. This Section makes provision for the declaration of a state of emergency by the President, thereby granting him enormous powers to arrest and detain persons whom in his opinion are threats to state security and public peace. The President has detained a number of persons for considerable periods without bringing charges against them. For instance, eighteen military personnel were detained and apparently held without charges under the President’s emergency powers.[ii] They were released in 2003, after spending up to three years in detention. Although the President’s emergency powers ended with the official declaration of the war in 2002, the authorities continued to hold detainees for almost a year without any charges. When they were subsequently released, they were not given any compensation.
The prosecution also contribute immensely to prolong pretrial detention. Most of the cases that come to court, especially in the magistrate courts, are prosecuted by police officers. Some of these police officers do not have the requisite training to effectively handle the cases. They often ask for frivolous adjournments. In some instances, the magistrates are forced to adjourned matters because of the incoherent manner prosecution sometimes lead or cross examine witnesses. All these are symptomatic of the want of further training for police prosecutors.
Furthermore, prosecuting counsel at times bring cases to court without considerable evidence that may lead to conviction. Thus, it ends up that either the Bench throws out the case or the prosecution withdraw it for want of more evidence. For instance, on 19 September 2006, the Director of Public Prosecution made an application for the discharge of 21 persons arrested for the murder of Mr. Kenneth Moore, former employee of the Lands Ministry on the ground of lack of sufficient evidence to pursue the case. In this case, the detainees were not only deprived of their rights, but the prosecution also brought unnecessary burden on the already meager resource available for the maintenance of detainees.
Consequences
Victims of prolonged pretrial detention are capable of orchestrating pandemonium that has the tendency to cause destruction to both lives and property. They always wait for the slightest opportunity to avenge the their detention, especially when they believe that they were held under unjust circumstances. The leader of the RUF, Foday Sankoh is a bright example. He was accused of taking part in a coup d’etat in the 1970s and sent to prison. During that period, he nurtured the ambition of paying back by waging a war. When he finally struck, it claimed the lives of tens of thousands and brought untold sufferings to the survivors. Johnny Paul Koroma, leader of the Armed Forces Revolutionary Council (AFRC), the military regime that ousted the SLPP Government in 1997, is another example. He was in detention awaiting trial when his cohorts violently took over the reigns of power and ask him to lead. When he finally took over, he presided over one of the worse period in this country’s history. Moreover, when the rebels attacked the capital on 6 January 1999, the first point of call for most of the prisoners that were freed from the Pademba Roads prisons was Bellair Park, mainly inhabited by members of the judiciary, where they perpetrated heinous crimes.
Prolong pretrial detention can be a recipe for chaos and anarchy. Most detention centres in Sierra Leone are not well secured to prevent the detainees from escaping or even rioting. There has been frequent jail breaks and prisoners riots over the years with a telling effect on members of the judiciary in particular and the public at large. In 2005, a group of prisoners, most of whom had been in custody for a long period, jumped from the vehicle carrying them and fled when it got stucked in traffic. Each time such incidents occur there is a corresponding increase in armed robbery.
Furthermore, prolonged pretrial detentions increases the running cost of detention facilities thereby expending tax-payers money frivolously. The more prisoners that are detained, the more money is needed to maintain and improvise on the existing facilities that makes it conducive for human habitation. This congestion and lack of funds may be the tendency for chaos which may have a spill over effect to the general public. For instance, in 2005, inmates at Pademba Road Prisons rioted and expressed their indignation against the authorities for their continued incarceration and squalid conditions they were held in. In August 2006, prisoners rioted in Kenema because of similar concerns. These incidents no doubt undermine the peace and tranquility Sierra Leoneans have nurtured recently.
Prolong pretrial detention can be responsible for the outbreak of infectious diseases that has the tendency to reach the outside community. The prisoners are congested in small cells; aiding the spread of contagious diseases among the prison population and they lack basic medical facilities. When infected jailbirds are released, there is the tendency for the contracted disease to be multiplied onto the unsuspecting populace.
Recommendations
Justice, it must be remembered is a two track approach; that is one for the prosecution as well as one for the accused. Persons accused of an offence are presumed innocent until proven guilty by the court of law. It is unfair and irrational for an accused to be held in custody for a long period without being tried. Article 9(3) of the ICCPR provides that, “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantee to appear for trial.” However, people can be detained before trials pursuant to Section 17(1) f of the 1991 Constitution; which provides for their personal liberties to be deprived. In as much as the evidential burden and standard of proof rests on the prosecution, reasonable time is needed to adduce enough evidence against the accused. Thus, this provision should not be irrationally applied in order to grossly deprive persons of their personal liberties as proclaimed in Section 17(1).
The SLCMP believes that these abuses may be avoided if the following are done:
Persons arrested for a crime must immediately have their rights made known to them and be made aware of the charges being filed against them. Police investigators and prosecutors need special training to build up their capacity; this will help them to speed up charges against accused persons and prepare for trials. Since a functioning judiciary is vital in the creation and maintenance of a stable society, judicial procedure should be streamlined in order to expedite the dispensation of justice. Conditions of service of the Bench and other judicial officials should be improved so as to attract more practitioners. A former US Supreme Court Justice once stated that: “a lifetime diet of the law alone turns Judges into dull, dry husks.”
The lack of legal activism over the years has paved the way for the defilement of the Constitution. This has led to the perpetuation of injustice and the marauding of the country’s wealth. By virtue of the Constitution, indigent defendants should be provided legal representation upon request. Members of the Sierra Leone Bar Association (SLBA) should also provide pro bona legal representation for indigent accused persons especially those involving serious offences that amount to social injustice.
The court should grant bail to individuals who meet the standard requirement. The right to bail is clearly stated in Section 79(3) of the Criminal Procedure Act of 1965. A person charged with an offence(s) other than those referred to in subsections (1) and (2) of Sec. 79 (3) of the CPA should be granted bail. Bail should not be based on financial status as it discriminates against the impoverished but rather on sureties and the guarantee that the accused will appear for the trial process.
The President’s emergency powers in Sec. 29 of the 1991 Constitution desires reform as it is normally used against political opponents. Such presidential declarations should only be invoked where life, property and national security is threatened. The SLCMP therefore hope that, these recommendations would be adhered to in order to address the problems of prolonged pretrial detention.
[i] See Report on Prisons and Detention Monitoring in Sierra Leone, October 2004-September 2005, Published by Prison Watch, Sierra Leone
[ii] Ibid
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