The right to a fair trial as a norm of international human rights law is designed to protect individuals from the excesses of law enforcement agencies during the trial process. This right is firmly guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated but, most recently, by a proposal to include it as a non-derogable right, amongst others. Thus, the right to a fair trial is applicable to both the determination of the individual’s rights and duties in a suit at law and with respect to the determination of any criminal charge against him/her.
The standards against which a trial is to be assessed in terms of fairness are numerous, complex and constantly evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But, they may also be found in documents which, though not formally binding, can be taken to express the direction in which the law is evolving.
The right to a fair trial in a civil or criminal charge is considered to start not “only upon the formal lodging of a charge but rather on the date on which state activities substantially affect the situation of the person concerned”. This most times coincides with the moment of arrest or serving of summon, depending on the circumstances of the case. Fair trial guarantees must be protected from the moment the investigationagainst the accused commences, and throughout the preceedings, including when any appeal has been completed.
However, fair trial guarantees in northern Sierra Leone faces several challenges. The Local Courts Act, 1963 which establishes the court to look into cases of “customary law”, and customary law to mean “any rule, other than a rule of general law, having the force of law in any chiefdom of the provinces whereby right and correlative duties have been acquired or imposed which is applicable in any particular case and conforms with natural justice and equity…” are hardly being complied with during the adjudication of disputes insofar as it relates to fair trial rights protection.
The Act provides that court hearings and judgments should be conducted publicly except in a limited number of circumstances. It states specifically that “the room or place in which a local court sits shall be an open or public court to which members of the public may have access so long as they shall be of good behaviour and so far as it may conveniently contain them”. It means that the general public has a right to be present, to know how justice is administered. The practical realities, however, contradict this provision. There are several instances where court sessions have been held behind closed doors for reasons not guaranteed under law; and the outcomes have left more questions than answers. Most controversial decisions are usually handed down in camera.
The right to trial within a reasonable time is another fair trial guarantee of major importance. The main goal of this guarantee is to protect the parties against ‘excessive procedural delays’. Also, the effect of an indictment upon the reputation of the person is relevant as well. The reasonable time guarantee starts to run from the moment when the individual is a subject of a charge. This right is persistently being violated by local courts in the northern region. Local court structures are being used for purposes other than those for which they were constructed. For instance, in the month of June this year, the court structure of Local Court No 1, situated in Makeni City in the Bombali Shebora Chiefdom was used for workshops, religious crusades, meetings, etc. Some of these activities lasted for several weeks for which hearings were severally adjourned. Such avoidable delays negatively impact on the length of trials, and increases the financial burden on litigants who have to sometimes travel from neighboring towns or villages only to be told that the hearings have been adjourned.
The issue of jurisdiction is very important in fair trial rights administration. Where a court lacks jurisdiction to hear and determine a matter, whatever decision it reaches has no force of law – it is a nullity! The Act provides that the local courts shall have jurisdiction to hear and determine all civil cases governed by customary law other than cases between paramount chiefs of tribal authorities involving a question of title of land. However, the sad reality is that despite this provision, traditional leaders have become notorious for consistently interfering in the affairs of the local court within their jurisdictions. Some of them often request, with ‘authority’, for certain cases to be transferred to their illegal courts for ‘adjudication’. A classical case is that between Mohamed Kargbo v Mamusu Turay regarding payment of debt. In that case, because the defendant, Mamusu Turay, was a relative of the Chiefdom Speaker, the said Speaker asked the court chairman to transfer the case to his own ‘court’. This practice does not only undermine fairness, but also gives the impression that chiefs’ ‘courts’ are legally established and in fact, have higher ‘authority’ than the local courts.
Furthermore, the Act provides that local courts have exclusive jurisdiction in matters pertaining to the determination of title to land as a court of first instance. That is, it is only the local courts that have the statutory right to adjudicate in matters relating to land disputes within their chiefdoms. The sad reality, however, is that traditional leaders have almost usurped this jurisdiction from local court officials. They require court chairmen to transfer all cases dealing with title to land to them for determination. The reason for such practice, according to them, is that they are the custodians of land in their chiefdoms. This is in clear contravention of the Act.
The interpretation of documents is another cause for concern as it undermines fair trial rights in local courts. The Act states that the Judicial Adviser or a District Officer shall have access at all times to the records of all local courts and may, of their own motion, review any decision of such court whether civil or criminal.
The seemingly ambiguous wording of this provision has been subjected to different interpretations by those concerned. Some say the provision grants the Provincial Secretary, in the stead of the District Officer, the right to review and overturn decisions of local courts. Others, however, think that it is only the Judicial Adviser, in the person of the customary law officer that has such a right. There have been instances in Makeni when the Provincial Secretary and the customary law officer have had disagreements as to the correct interpretation of the said provision. Hence, the unclear position as to who actually has such authority makes the provision susceptible to abuse. Mostly, when decisions of local courts do not favour parties that are politically connected, the Provincial Secretary is made to review and overturn such decisions.
The right to an interpreter is a fundamental right to a fair trial. If the accused has difficulty speaking, reading or understanding the language used by the courts, he/she has a right to interpretation during court proceedings as well as the translation of all relevant written documents. It is very essential for the accused to be able to follow or understand the proceedings, especially in situations where the penalty for conviction is serious. Local courts use the local dialect of the community in which they are located. There is hardly any interpretation done during proceedings; and where it is done, the accuracy of such is questionable as they are not trained interpreters. This breeds difficulty in a cosmopolitan city like Makeni. So litigants who do not understand the local dialect being used by the court are most times left at the mercy of court officials.
Every individual is entitled to a fair and public hearing by a competent, independent and impartial judicial body – a court or a tribunal. Courts are also required to decide matters before them impartially, on the basis of facts, and in accordance with the law. Recent happenings in the north have, however, clouded the competence, independence and impartiality of local courts. Most of the court officials are party activists. They were appointed because of their political affiliations, and not because of their competence and impartiality. For instance, the Local Court No 1 in Bombali hears fewer cases when compared to others in the district. The reason is that since the chairman was politically appointed, he more often than not sides with members with whom he shares the same political interest when delivering verdicts. As such, people holding different political views prefer to take their matters to other courts; some even to the illegal courts operated by chiefs than to the local court.
The administration of fair trial rights is key to effective access to justice by especially the poor and marginalized in society. Therefore, stakeholders in the justice sector should ensure that these rights are protected as guaranteed by law. One way to start is by having the local court fully incorporated under the Judiciary. This will solve the problem between the customary law officer and that of the Provincial Secretary as to who has jurisdiction to review cases.
Also, it will reduce political interference as the officials will be appointed not by the Minister of Local Government on the recommendations of chiefs but by the Judiciary. Moreover, illegal courts will be a thing of the past as the Judiciary will have the sole jurisdiction in settling disputes in customary law matters. And, finally, the courts will learn good practices from the general law courts in terms of human rights and rule of law issues. CARL-SL wishes to commend efforts by the Sierra Leone Government to fully incorporate local courts under the judiciary, which could, among other benefits, ensure that the appointment of Local Court chairmen is based purely on merit and not political considerations.
