by ibakarr | Aug 11, 2016 | Blog
Five months after the opposition Sierra Leone Peoples Party (SLPP) filed a petition challenging the authenticity of the outcome of November 17, 2012 Presidential elections, Sierra Leone’s Chief Justice finally constituted a panel of judges to hear the petition in April. While this action represents a bit of an improvement on the Court’s handling of a previous election-related petition in 2007 (when it took the Court almost five years to rule that a petition by the opposition SLPP had been wrongly filed), it is still not good enough. Let’s face it: our justice system must begin to respond to the justice needs of its people in a timely manner. An undue delay in hearing a petition is as good as an unnecessary delay in handing down a trial verdict. As the highest court of the land, the Supreme Court must lead by example, and should truly demonstrate its commitment to reducing the undue delays that still characterize the adjudication of cases across the country. In fact, there are still a number of election-related petitions before the High Court, five months after they were filed. Such delays negatively reflect on the justice system, and affect the country’s rule of law credentials.
CARL-SL carefully monitored the proceedings before the Supreme Court and now presents a comprehensive summary of the arguments by both sides.
The Supreme Court opened hearing on April 17. Lead counsel for the opposition SLPP, Dr Bubuaki Jabbie, raised a preliminary objection stating that the respondents (the National Electoral Commission and the APC) failed to comply with Supreme Court Rules 1982 and Rule 28(1) of the Election Petition Rules 2007 (herein after called E.P.R and the (EPR). His argument was that the respondents failed to file a reply to the notice of motion served on them within the 10 days period enshrined in the rule, and were not properly and duly before the court or lacked locus standi.
In reply, Barrister Barthan Macualey submitted that the Supreme Court rules are of general application and must give way to specific rules such as the E.P.R and the Public Election Act 2012 (P.E.A) and that the document which can be equated to entering of appearance which gives ‘locus standi’ is being selected or appointed by an agent under election petition rules (rules 8 and 7).
On April 18 2013, the Supreme Court ruled in favour of the respondents upholding their argument that “locus standi” is not dependent on the filing of a response but rather on a notice appointing a legal practitioner to act as an agent who shall give a written notice to that effect.
Subsequently, lawyers for the respondents urged the court to strike off the petition filed by the SLPP on grounds that it is invalid and void. The lawyer representing NEC, Glenna Thompson, raised the following points:
First, she submitted that the petitioners did not comply with Rule 6(1) of the E.P.R as service was irregular and not in accordance with this rule which requires that on presenting a petition the petitioners have to leave at the registry a notice signed by them or by their lawyers and the petition served should endorse the names of their lawyers.
Second, she submitted that Rule 12(1) of the same Act was not also complied with as the election petition was not served on the respondents within the 5 days stipulated by this rule, which is mandatory and not discretionary. She added that service must be personal, stating a ‘point of law’ to the effect that service at the respondents’ place of business is not personal service.
Third, she submitted that there was also non-compliance with Rule 14(1) of the Election Petition Rules, which requires that payments for cost and security should be done AT THE TIME OF PRESENTATION of the petition and not later. She submitted that filing is not in installments as the exhibits show that the payments were done on two separate days.
Finally, she submitted that the petition be struck off because when statutes are mandatory, they must be complied with failure of which makes the petition void and invalid. She added that there is nothing in the Election Petition Rules as “effective compliance” which they tend to rely on. She pointed out cases to the effect that a proper service is the foundation upon which a proceeding stands and once there is no service, there are no proceedings, adding a case in which a petition was struck off for non compliance.
The batch of 17 lawyers representing the APC, led by Barrister Berthan Macualey raised the following grounds for the petition to be struck off.
First, Barrister Barthan Macauley submitted that in applying the Interpretation Act to Section 55(1) of the E.P.R, which requires that the petition be filed within 7 days, the 7th day expired on November 30 2012. However, the petitioners in filing their petition and paying their fees went out of this period, and so the proceedings should be nullified.
Second, the crux of their contention was to the effect that the petitioners failed to make Dr Ernest Bai Koroma a party to the proceedings, and cited over four cases relating to the legal consequences of not making a successful candidate a party to an election petition. The dictum of one was to the effect that he is the most necessary and crucial party to the proceedings and failure to mention his name makes the petition incompetent and cannot be proceeded upon.
It was also his submission that from the wordings of 14(1) E.P.R, each petitioner has to pay security for cost being Le1 million (One million Leones or approximately $230) and not a joint payment as was the case. He submitted that the petitioners also failed to comply with 14(1) as the recognizance entered into or the alternative Le1 million paid. He further cited cases to show the rules are mandatory and not directory, and so must be complied with, failure of which the proceedings have to be struck off.
Finally, he cited authorities and submitted that paragraph 7 of the petition be struck off as any challenge of an election nomination has to be by way of Originating notice of motion and should not be included in a challenge of an election petition which comes to court by way of a petition. He added that the petitioners are time-barred to object to the election nomination.
On April 23, in response to calls to strike off the proceedings, the petitioners started by dealing with the issue of time computation as it was alleged that the petition was filed outside the 7 days statutory period. Dr Bubuakie Jabbie, based on Rules 98 of the Supreme Court Rules, invoked Orders 3R(2)(2) and Oders3R(2)(5) of the High court Rules 2007 which is to the effect that in computing time when the period is 7 days or less, Saturdays and Sundays should be excluded. Hence it was their submission that Friday the 30th was the 5th day within the 7-day statutory period. It was also their submission that the petition was deemed to have been issued within 7 days upon it being received by the Supreme Court Registry referring the court to Order 9R2(2) and R2(2) of the High Court Rules and R5(2) and 5(4) of the E.P.R.
Lawyer Banja-Tejansie submitted that with respect to all procedural or formal rules which form the bases of the 1st and 2nd respondents’ objection re non-compliance to wit Rules 5(1), 6(1), 12, 13 and 14 of the E.P.R 2007, they are merely directory in force or effect and not mandatory by virtue of Rule 98 of the Supreme Court Rules 1982, Rule 52 AND 53 of the E.P.R and order 2 Rule 1 of the H.C.R 2007, which expressly state that failure to comply with the rules shall be treated as an irregularity and shall not nullify the proceedings, citing Mont Plc Railway Co.
They admitted non-compliance to Rule 6(1) E.P.R but canvassed the discretion of the bench as was exercised in the Moses Condolla’s case. It was their contention that sub Rule 2 of Rule 6 of the E.P.R renders R6(1) directory and not mandatory, citing a quotation of a Judge in the Moses Condolla case to the effect that rules of court are meant to regulate the procedure and practice in the courts in Sierra Leone and should not be construed as mandatory. He submitted that they rely on this case to argue all grounds raised by the 1st and 2nd respondents to the effect that the rules are mandatory and any non-compliance should defeat the petition.
Dr Bubuake Jabbie stated that there has been a progressive evolution both in statute and case law from strict adherence to procedural technicalities to emphasize on substantive justice since the Court of Appeals decisions in PC Tamba S. Brewa and PC Dudu Bona followed by the 1993 decision in the Moses Condolla’s case and culminating the E.P.R 2007 and the H.C.R 2007
He also submitted that the election of the President and the legitimacy of that election is so important that its importance cannot be overemphasized. He added that the President and his Vice are the only two persons that represent all the voters and constituencies in this country and taking cognizance of the general interest and importance of Presidential elections, no formal objection to time, place, manner, form or content or in any other respect can nullify the proceedings.
He noted that the Dr Ernest Bai Koroma ought not to have contested and the subsequent election of him thereof ought not to have occurred as it was in contradiction of Section 35(4) & 76(1)(8) of the 1991 Constitution. Section 35(4) of the Constitution is to the effect that no political party shall have as a leader a person who is not qualified to be Member of Parliament. He said though this was time barred, Section 127(1) of the same Constitution makes constitutional objections immune to be time-barred. Hence order 2 of the 3rd and 4th respondent applicants’ Notice of Motion is void and of no effect.
In reply, the respondents reiterated their call for the Court to discharge the matter.
Barrister Barthan Macualey submitted that what is before the court is to construe Election Petition Rules and come to the conclusion whether they are mandatory or directory. It was his submission that the cases cited and relied upon by his learned friend has no relevance whatever to the issue under determination in the instant situation. He therefore adopted the argument of Lawyer Glenna Thompson to the effect that failure to comply with rules make the whole process a nullity as stated in order 2 Rule 1 of the 199 Supreme Court Practice.
He further submitted that his learned friends could not merely rely on Rule 52 of the Election Petition Rules to the effect that no proceedings under the Act shall be defeated by a formal objection. He said they failed to cite authorities to show that the objection taken by them in relation to Rules 5, 12 and 14 was a formal one. He further said they have submitted cases to the effect that the objection taken by them was not a formal one.
It was his submission that in order to save any non compliance from being declared void, then there has to be substantive compliance by the party in breach. “It is not sufficient to simply rely on a proposition of law but one has to free himself within that proposition”, he argued.
Ne also submitted that an election petition is ‘sui generis’ (unique) and should be differentiated from an ordinary civil proceedings which cannot be instituted against the President as provided by the Constitution. It was also his submission that it will be inequitable an undemocratic if the President is immune to an Election Petition as it will mean he can do anything, however, illegal during the election and can’t be challenged in court. He said if the contentions of the petitioners are admitted, then no useful purpose is being served by these proceedings as any judgment or pronouncement by the court will not affect the position of the President, Dr Ernest Bai Koroma; and it is in this regard that they say the petition is incompetent and is flawed ab initio (from beginning) and should be struck off accordingly.
Finally, it was his submission that Part 7 of the petition is very clear and it deals with the fact that Dr Ernest Bai Koroma ought not to be nominated as a Presidential candidate. He said the submission that it was mistakenly construed by them is not correct. He said he completely agreed with his learned friend that Constitutional provisions are not time barred but the substantive matter before the court is an Election Petition and objections to nomination are brought to court by way of originating notice of motion and not by way of Petition and it is also statute-barred.
While the five members of the bench consider a decision, CARL would further like to urge the judiciary to ensure that matters of this nature (which attract so much interest from the public) are broadcast live on the national broadcaster as well as independent radio networks. The Ghanaian example where the Court allowed the national television to fully broadcast such proceedings should be emulated. In Guinea, too, proceedings relating to alleged attacks on the President are being broadcast on the national television. This would help make it a genuine public hearing, while at the same time reducing overcrowding, demonstrations, and other security concerns.
by ibakarr | Aug 11, 2016 | Blog
Trocaire, the Irish funded non-governmental organization, in partnership with the Centre for Accountability and Rule of Law (CARL), has embarked on a programme to increase “women’s access to justice” in the Northern Province of Sierra Leone. The overarching goal of the programme is to help protect women’s rights and increase community awareness about gender-related laws. The choice of region was informed by a baseline report that identified the Northern Province to be among the places with the highest prevalence of sexual and gender-based violence (SGBV) in the country.
During the early implementation phase of the project, there was considerable emphasis on community sensitization regarding laws that protect women and girls, raising awareness about SGBV, and undertaking strategic advocacy for better policies and laws that protect women and girls. Part of the reason was that it would have been almost impossible to change a perennially conservative attitude of a predominantly male society towards women if strong efforts were not made to sponsor public education programmes on gender and women’s rights. Perhaps, the conservative attitude towards women partly explains why there was such a high level of acceptability of SGBV in communities that CARL currently works.
There are persisting challenges, of course, but clearly some changes are happening in the various communities. This year, CARL has successfully mobilized men and women in the 12 project communities to work together with the aim of preventing and addressing SGBV. We have also partnered with court and police officials to help implement the project. Although these groups have contributed to ongoing efforts to enhance protection for women and girls in no small measure, there was need to harness untapped resources which could be of immense contribution to achieving the objective of the project. An example of such untapped resources is traditional leaders, who still carry immense respect and authority in their communities. Their influence hinges on the fact that they play a key role in community development initiatives; help define customary laws; and reach communities through different means, including community meeting or dialogue sessions.
In spite of their immense influence and authority, CARL recently found that local authorities were being grossly under-utilized with respect to combatting SGBV at community level. In some ways, it seems like traditional leaders have been a missing link in ongoing efforts to address SGBV. This is why CARL is now making strong efforts to make traditional leadership an integral part of the overall strategy of addressing SGBV.
In order to strengthen community-based initiatives and to understand the potential role of traditional leaders in the prevention of SGBV, a series of workshops were held in three chiefdoms in the Bombali District: Bombali Shebura, Makarie Gbanti, and Paki Masongbo Chiefdoms, with 30 participants from each chiefdom. These communities were selected based on the SGBV prevalence level. The workshops also provided information on the state of SGBV in the various communities, thus highlighting the need for a multi-sectoral approach to addressing SGBV, and the binding role traditional leaders can play in the prevention of SGBV in their respective communities. For far too long, traditional authorities have been suspicious of efforts to protect the rights of women, sometimes claiming that such efforts seek to undermine the custom and ethos of their societies. They had considered, and many still think of such efforts as an attempt to undermine the social fabric of the society. Patriarchy still partly accounts for gender-based violence. For instance, wearing miniskirts or refusing your partner’s sexual advances could be a justification for a man to beat up his wife.
But this attitude is gradually changing, thanks to ongoing efforts to educate both men and women about women’s rights as well as get them to play a major role in combating violence against women. Some chiefs have made public undertaking to impose stiff fines for minor offences against women such as insults. They have also vowed not to ever enable out-of-court settlements for serious incidents of SGBV. Many have also indicated their willingness to support and participate in social mobilization campaigns in and around their communities. Female community leaders are also willing to join in. Women’s leaders are also helping to create an enabling environment for increased reporting, referral and support of SGBV cases in their communities.
The willingness of traditional leaders to occupy the frontline in the fight against SGBV creates so much hope. With constant engagement and further education programmes, traditional authorities could provide a big fillip in ongoing efforts to combat SGBV at the community level.
by ibakarr | Aug 11, 2016 | Blog
The case of the State v. Yusuf Turay et al is a matter that has attracted massive attention from the members of the public in general, and the media in particular. It relates to the alleged swindling of a Korean national of $38,000. The accused persons face various charges relating to their alleged role in the fraudulent conduct. The 2nd and 3rdaccused persons were charged with conspiracy to defraud by the making false representations, while the first accused Yusuf Turay was charged on all the five counts. The first count was conspiracy to defraud. Counts 2 to 4 relate to obtaining $38,000 by false pretences. The preliminary investigation (PI) lasted for only one month (January 29 till February 26), which is quite remarkable.
It is worth commending the exceptional speed with which the court, particularly the Magistrate proceeded with the matter. On 29th January 2013, for instance, the Magistrate ordered the proceedings to be stood down on two occasions only to ensure that defence lawyers representing the accused were all present in order to continue cross examining the complainant. The Magistrate was so determined to expedite the proceedings that he had warned that he would allow the accused persons to do the cross examination themselves should the lawyers fail to appear in court.
It seems like the Magistrate has busted the trick. He kept warning that he would not accept any unnecessary applications for adjournment as it had been a ploy for defence counsel to seek unnecessary adjournments during the preliminary investigation phase of such cases just so the victims, who are mostly foreigners, would lose patience and hope in the matter. The victims have often had to abandon their case to return to their countries of origin. He warned that it would not happen on his watch.
The Magistrate was very helpful in terms of maintaining a balance between the prosecution and the defence as this was a case where CARL observed a clear mismatch in skills, knowledge and experience between legal practitioners and police prosecutors. On some occasions, the Magistrate had to stop the prosecution witness from responding to unfair questions posed by the defence because the prosecutor was apparently not competent enough to do it. Unfortunately, the knowledge gap between lawyers and police prosecutors is always evident in court. In some instances, it seems like the Magistrates double as assistant prosecutors. Otherwise, lawyers would take undue advantage of weak and untrained police investigators who lack training on a number of procedural issues. Magistrates have had to warn lawyers that although cross examination is a tool, they should not abuse it by posing self-incriminating and leading questions to witness which is odious in law. It is recommended that the Law Officers Department consider organizing workshops with police prosecutors on issues of procedural law. Alternatively, they should develop modules either within the University system or privately on special law courses so they can address these loopholes.
The Magistrate has committed the matter to the High Court for trial, despite the submissions by defence counsel that 1st and 2nd accused persons should be discharged. They argued that the actus reus for conspiracy is agreement in furtherance of a common design, and that there was no evidence before the court to show that the accused persons did conspire with one another to commit the alleged offence. They further argued that the second and third accused persons only came into the scene after the substantive offence – obtaining money by false pretences – had been committed. In his ruling, the Magistrate said, among other things, that the evidence before him was not only sufficient but overwhelming that the 1st accused obtained the sum of $38,000 from the complainant for purposes which were not accomplished. He said it was not a trial but a mere preliminary inquiry such that the prosecution need only prove slightly that the 2nd and 3rd accused persons did conspire which they did and it is then left to them to defend themselves in the high court. There’s still a long way to go in this matter, of course, but CARL would like to commend the court for expeditious manner in which the proceedings were held in this matter. If all preliminary investigation matters were disposed of with such speed and commitment, Sierra Leone’s criminal justice sector would be competitive across the globe. Whatever the outcome of the trial, the victim would certainly leave a very good impression of the justice landscape of the country. There is so much the justice sector can do to promote the confidence of investors.
Another unit of the judiciary that has been helping to promote investor confidence is the Fast Track Commercial Court. The court has remained generally committed to its stated objective of expeditiously disposing of claims. In the month of February 2013, for instance, the Court concluded twelve commercial-related cases. That sounds impressive, but a lot more needs to be to build citizens’ confidence in the justice sector as well as highlight the some of the gains made by various units of the justice sector.
by ibakarr | Aug 11, 2016 | Blog
“We always hear about the rights of democracy, but the major responsibility of it is participation”. Wynton Marsalis
Sierra Leoneans turned out in large numbers across the country’s 14 electoral districts last November to elect their President, parliamentarians, councillors, and mayors. The elections were generally peaceful, in part because there was little doubt that the country’s economic and development aspirations could be bolstered by credible, transparent and non-violent elections. The results showed, in many respects, that Sierra Leoneans wanted meaningful changes both in their lives and in the way the country is governed. There were personnel changes in all but one of the four categories of elections – the Presidential. The changes in parliament and councils were striking: of the 124 parliamentarians that were elected in 2007, only 42 of them were re-elected. These include 23 members of the ruling All Peoples Congress and 13 representatives of the Sierra Leone Peoples’ Party. Only half of the Paramount Chief Representatives in parliament were re-elected.
Nearly four months after exercising our right to make changes in various governing bodies, however, Sierra Leoneans are slowly resigning to the all too familiar fate that their power to make meaningful changes in the administration of local councils is limited. The limitations are caused in part by the Local Government Act 2004 and the somewhat unchanging disposition of local council administrators towards critical governance issues as transparency, accountability and citizens’ participation. Participation in governance could take the form of voting or contesting elections; one could also participate in meetings convened by Ward Development Committees or participate in developing annual development plans. There is hardly any doubt that the greater the participation levels in communities, the more likely local council policies, decisions and actions will support local needs and objectives.
A synopsis of current situation in Sierra Leone:
A Local Government Act was promulgated in 2004 as part of efforts to create platforms and opportunities for residents to directly participate in developing initiatives for community empowerment and development. It was hoped that increased public participation could spur greater transparency from the councils and contribute to the community development agenda. In truth, each of the 19 Local Councils and the Ministry of Local Government have generally under-performed since 2004, even if in varying degrees, to create an enabling atmosphere for genuine community participation in the administration of councils. There’s urgent need to address this gap. Part of the solution could lie in depoliticizing representation at the local level. Where elections are conducted on the basis of individual strength and merit, it is more likely to advance competent representation rather than the current system that tends to elevate party loyalists to serious positions, regardless of their ability or level of competence. In the course of implementing an OSIWA-funded project in 2011, many participants at community outreach events complained that a majority of Ward Development Committee members were either selected on the basis of their political affiliations or through botched elections organized by councillors. The Ward Development Committees essentially seemed to lack legitimacy in the eyes of the people. This partly explained why the number of participants at Ward Committee meetings was increasingly dwindling all the time. The few Ward Committees that remained functional hardly received support from the councils. It was quite shocking to have heard that some councillors reportedly concocted minutes of Ward Committee meetings, if only to claim monthly allowances from councils. Ultimately, many council administrators became distrustful of reports submitted by councillors, and rightly so. Additionally, it was clearly evident from discussions at community and media outreach events that councillors and council principals were at loggerheads over just about everything – including the process of awarding development project contracts, revenue generation and utilization, among others. In all of this, the perennial losers are the people. They have been deprived of the opportunity to genuinely participate in the planning and monitoring development activities in their communities. Some of these challenges could be addressed by amending the Local Government Act 2004 to ensure that roles are properly defined and representation in councils is based not on party politics.
To further help address the participation gap that currently exists, there is also a need to review the Local Government Act 2004 to make provision for direct financial support to councillors and Ward Committee members. The current arrangement is at best unfeasible. Genuine participation at the local government level starts with effective, legitimate, and well-resourced Ward Development Committees. It is important to underline the point that only councillors participate in council meetings. Members of the public can only observe, if they choose to attend such meetings. Their views, concerns and recommendations can only be heard during Ward Committee meetings. Those views are expected to be presented by their respective councillors during council meetings. Theoretically, community development projects are expected to reflect the outcomes of those meetings. In the absence of regular and effective meetings at ward level, it is difficult to see how local voices can impact community development projects. At the moment, Ward Committees are not functioning effectively. Part of the reason is that the incentive or motivation is pretty much absent. Community people and their Ward Committee members have painful experiences of total neglect by councils. This does not inspire them – it weakens their enthusiasm and spirit of volunteerism.
It is also worth mentioning that Ward Committee members do not get any stipend or remuneration for their time and services. They are simply volunteers. The councillors receive a paltry sum of money as monthly allowance. In many instances, however, the allowances are not regularly paid. During a recent consultative conference organized by CARL and its partners, various councillors complained that Le50,000 (approximately $11) is slashed from the paltry Le250,000 (approximately $58) monthly stipend they receive as mandatory contributions to their respective political parties. That is simply scandalous and unacceptable. I recommend that the Ministry of Local Government and other relevant state institutions intervene to stop this blatant extortion. This is part of the reason I think the future of effective and competent representation at local government level lies in completely removing party politics from local governance.
There seems to be a representation and participation crisis at the local level that needs immediate attention. The good news is that there have been elections for Ward Committees in most or all of the Wards in the Western Urban District, and CARL has been quite involved with monitoring the process. The elections were generally transparent and a positive departure from the selective nature of previous ones. It gives me hope that with increased support from council administrators, this could help engender interest and participation in governance issues at the local level. There seems to be a general lack of enthusiasm, however, to participate in Ward Committees probably because of the many years of broken promises by councils and the unrewarding nature of the voluntary services provided by Ward Committee members.
How can some of these challenges be addressed? It’s time to scale up support for our councillors and Ward Committees. To help strengthen Ward Development Committees, there’s need to ensure competent representation through transparent and credible elections. The Ministry of Local Government should also take its supervisory and facilitation role much more seriously than it has since 2004. Additionally, councillors and Ward Committee members should be given more resources to facilitate interaction between them and their communities. Ward Committee members should also receive stipends for their useful contributions to their communities. Once they are incentivized, they could be resourceful in terms of tax collection. For some of these recommendations to work, there is an obvious need to amend the Local Government Act 2004.
As part of efforts to plug the participation and transparency gap in local government, thanks to ongoing support from OSIWA, CARL and its partners will recruit and train at least 10 community-based monitors each in six districts to help monitor the level of compliance or otherwise with transparency provisions in the Local Government Act 2004. CARL and its partners will also help local councils develop communication strategies as well as encourage transparent elections for Ward Committees. We will provide basic training and guidelines that will help them do their work better. The challenges are certainly huge, but addressing the participation gap in local government is certainly not beyond our reach. It’s time to do it!
By Ibrahim Tommy, Executive Director, Centre for Accountability and Rule of Law (CARL)
by ibakarr | Aug 11, 2016 | Blog
Nearly two years after the Sierra Leone Parliament promulgated the Local Courts Act, senior officials of the Sierra Leone Judiciary traveled to the provinces in the week of March 17 to formally launch the ‘new’ local court system. The Local Courts Act 2011 effectively ended nearly five decades of political oversight of local courts. The transfer of oversight functions of local courts from the Ministry of Local Government to the office of the Chief Justice is arguably the most important provision of the new law. This transfer means that local courts are no longer under the supervision of the Ministry of Local Government but rather under the judiciary, an arm of government responsible for the administration of justice. Equally important, the law unifies the justice system by ending decades of legal dualism in Sierra Leone, where a distinction was made between formal and the so-called informal justice systems. Although the local court system is now part of the judiciary, it is still required to apply customary law in the adjudication of cases.
The transfer of oversight functions over the local courts from the Ministry of Local Government to the Office of the Chief Justice is arguably the most important provision of the new law, but it also makes other significant provisions. It provides for the establishment of Local Court Service Committee, which advises on issues relating to appointment, promotion, transfer, suspension and dismissal of local court officers. The Act also revised the jurisdiction of local courts to bring their mandate and sentencing guidelines in line with the needs of the communities, capacity of local court personnel, and most importantly, the ends of justice. Deepening democracy, rule of law and accountability system in the country would depend on an effective justice service delivery mechanism.
At the launch programme in Bo, Southern Sierra Leone which was attended by many state principals, Chief Justice Umu Hawa Tejan-Jalloh could not have put it better when she said the bed rock of all democratic societies is peace and justice, which is critical to ensuring stability and prosperity. The local courts will continue to be an important part of the national justice system. In addition to the large number of citizens who need its services, local courts are obviously more accessible at chiefdom level; they are cheap, and their procedures quicker and clearer. Furthermore, their jurisdiction to hear land, customary marriage, succession and family disputes which occur with more frequency in rural localities than other types of cases sets them apart.
Strengthening the relevance of the local courts would require effective implementation of the full range of the Local Courts Act. The challenges that confront the implementation process were not lost on the Chief Justice when she addressed the gathering in Bo. She said there are over 300 local courts that need improvements in order to bring them in line with international standards. Once those improvements are completed, she said, the various customary laws may be codified and passed on in more concrete forms to future generations. That would be a huge achievement, without doubt, but for now, the judiciary will need to address the immediate challenges facing the local courts. Among those challenges include effective implementation of the key provisions of the new law. For instance, there is need to step up efforts at reconstituting the courts based on the criteria set out in the new law as most of the current court chairmen were appointed under the old law. The offices of the State Counsel and Customary Law Officer were merged some years ago and would be advisable, in the interest of justice, to dissolve the merger so that the Law Officers Department would be kept separate customary law, which is now part of the judiciary. Also, while the National Revenue Authority (NRA) has started collecting funds generated by local courts through fines, the courts still face a serious funding gap. To foster effective administration of justice at all levels, adequate financial support should be provided to institutions of justice for logistics and other services. During a monitoring tour to the Southern Province in 2012 by the Centre for Accountability and Rule of Law, it was discovered that some Local Court chairmen had gone for nearly eight months without salaries. The conditions of service were extremely poor (and have not changed at all), thus creating a distasteful appetite for malpractices by court officials. Some of the officials were frank enough to have admitted that money which should have otherwise been handed over to the NRA are sometimes used for personal purposes because salaries are not only low but are paid irregularly. It was also observed that courtroom facilities were poor, while staff morale was exceedingly low. The capacity of court personnel is another huge challenge that needs to be addressed. Obviously, the most important criteria for court personnel, particularly the chairmen and their panel of assessors is to be knowledgeable in the customs of the chiefdom and be able to speak the predominant local language in the area. Even so, there is massive need for training in the law from which the court draws its mandate. Many court officials interviewed had only a vague idea the Local Courts Act 2011, much less the court’s jurisdictional limits. This obviously affects their ability and the integrity of the process.
It was perhaps heartening to have heard the Chief Justice mentioning the appointment of a seven-member ‘Implementation Committee’, including Paramount Chiefs and officials from the justice sector, charged with the responsibility of leading efforts for the implementation the Act or setting up the structures stipulated in the law. It is recommended that the Committee fully assess the critical aspects relating to the smooth functioning of the local courts and proffer recommendations with the view to overcoming any challenges associated with them.
The launch of the new local court system certainly represents an important step forward in implementing the new Act, even if came later than most people had expected. Going forward, the Implementation Committee will need to move quickly on issues relating to the appointment of Court Chairmen along the guidelines in the new law, proffer meaningful recommendations relating to conditions of service, capacity building programmes, and improving court facilities. Some of the challenges cannot be addressed right now, CARL expects genuine and strong efforts for solution every day.
by ibakarr | Aug 11, 2016 | Blog
The Centre for Accountability and Rule of Law (CARL) today hailed the recent indictment of 7 medical practitioners and 22 others for various corruption-related offences, following the release of audited financial statements by Global Alliance for Vaccines and Immunisation (GAVI Alliance) and the Audit Service Commission of Sierra Leone. CARL considers the indictments by the Anti-Corruption Commission as a further indication of the country’s commitment to combating corruption, which is still rampant in the country.
CARL is, however, concerned about the uneven nature of the bail conditions imposed on the accused persons by two separate judges of the High Court. Specifically, in the matter of the State v. Dr. Mathew Micheal Amara who is charged with 27 counts of conflict of interest and misappropriation of donor funds, the judge imposed a number of bail conditions, including a cash deposit of Le50 million Leones (approximately USD11,000) and 2 sureties who must be owners of property, among others. The accused was unable to meet the bail conditions immediately, and was therefore held in detention for two days. In similar corruption-related cases concerning Dr. Kizito Daoh, Dr. Francis Smart et al, however, the bail conditions imposed by a different Judge did not include a cash deposit.
This appears to be the first time that an accused has been asked to purchase bail in clear variance to the commonly held belief that bail is free. This has implications for fair hearing rights of accused persons and is a cause for concern:
First, the accused’s right to prepare a good defence may have been adversely affected not only by his continued detention, but his ability to raise the required funds to pay for legal representation may have been undermined. Also, this decision seems to be in variance in a cardinal principle of English Law – the presumption of innocence. It seems that the accused has been punished by withholding his liberty even before the trial starts.
Section 79 of the CPA 1965 which deals with the issue of bail does not expressly provide for the purchase of bail by the accused. It provides for the procurement of sureties. The bail policy which may have been relied upon is of questionable legal status and purports to import a practice from the UK which the CPA does not provide for and which is alien to our jurisdiction. Besides, the UK practice is expressly backed by statute and is imposed in specific circumstances. The judiciary runs the risk of being accused of usurping the powers of parliament, which could have serious implications for the integrity of the judicial process.
