Introduction
The judiciary, the third arm of the State is charged with the responsibility of ensuring that justice and fair play prevail and that individual rights as provided by the constitution are protected. The Sierra Leone judiciary consists of Judges, Magistrates, Justices of the peace and other persons carrying out judicial functions in Sierra Leone. They are conferred with the responsibility of adjudicating “all matters, civil and criminal, including matters relating to the constitution, and such other matters in respect of which parliament may by order under an Act of Parliament confer jurisdiction on the judiciary.” In order to be able to perform this function, the judiciary must be independent and impartial otherwise justice will take a back seat and individual rights as provided by the constitution will be subject to abuse.
In the article to follow I shall examine the concept of independence of the judiciary and profer arguements for the need to change the existing system of judicial tenure in Sierra Leone.
The Concept of Judicial Independence
A fundamental principle and prerequisite of a fair trial is that the tribunal charged with the responsibility of making decisions in a case must be established by law, and must be competent, independent and impartial. The independence of the judiciary requires its freedom from influence or control by the executive or legislative branches: a judge must be free to decide matters before them impartially, on the basis of the facts and in accordance with the law, without any interference, pressures, threats or improper influence, direct or indirect, from any quarter or for any reason. Different organs of the State have exclusive and specific responsibilities, and the other organs must under no circumstances interfere with the judicial arena.
Furthermore, a decision of a court or tribunal will not be independent if some other authority is able to decide whether or not the judgment of the court is to be implemented, nor can there can be a fair trial before a biased court. The judiciary is said to be independent if trial courts are free from influence not only by the executive or legislative branches but by judicial colleagues and superiors as well. The court must be independent from those mandated by law for bringing charges against the accused. In fact, any court reviewing judicial decisions taken by other courts must also be independent and impartial. This does not mean that issues relating to mitigation or commutation of sentences and pardons may not be decided by a non-judicial figure, and indeed in most States such issues may be dealt with by political authorities.
Suffice it to say that there are international standards relating to the selection of judges and their conditions of service which attempt to safeguard the independence of judiciaries throughout the world. These require that judges be selected on the basis of legal training and experience and not for “improper motives”. There must be no discrimination against a person for selection to judicial office on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status. Moreover, promotion of judges should be based exclusively on objective factors: ability, integrity and experience. The international standards also require that the State provides adequate resources to enable the judiciary to perform its functions, and to ensure adequate salaries and pensions.
Interestingly, the international standards state that States may be liable to compensate individuals in the event of judicial misconduct. Consequently, complaints made against judges in their judicial capacity should also be processed expeditiously and fairly. However, judges enjoy personal immunity from civil actions for damages in relation to improper acts or omissions carried out in the course of their judicial functions.
Judicial Independence in Sierra Leone
In Sierra Leone, the judiciary is not entirely independent. This constituted one of the main causes of the war. On the eve of the war the judiciary was not an institution the citizens could be proud of or even trust. While serving only the interests of the few political and economic elites, it denied the majority of the citizenry fair trial and access to justice.
In a bid to reform the judiciary, the framers of the 1991 Constitution among other things included a provision which serves to give the judiciary complete independence from other branches of government. The said provision reads as follows: “In the exercise of its judicial function, the judiciary shall be subject only to the constitution or any other law and shall not be subject to the control or direction of any other person or authority.”
The above provision gives the impression that our judiciary is independent but this is far from being the case. There are many factors which contribute to a sense of lack of judicial independence in Sierra Leone among which include qualification, manner of appointment, conditions of service, conditions governing transfers and promotions, duration of their terms of office and security of tenure. To discuss all of these areas would mean to move superficially over too much ground. Therefore, this article will focus predominantly on security of tenure.
Security of Tenure of Office for Judges
In discussing the tenure of office for judges, we must consider the procedure involved in the appointment and removal of judges from office. This procedure is explained under the provisions of sections 135, 136, and 137 of the 1991 Constitution.
According to section 135(1), the president on the advice of the Judicial and Legal Service Commission and subject to parliamentary approval shall have the power to appoint the chief justice and other judges of the Superior Court of Judicature.
Clearly, the President must seek parliamentary approval, failing which his nomination will be nullified. So where parliamentarians perform their functions devoid of sentiments, parliamentary approval on presidential nominees is given only on the basis of merit. In the end, only individuals with the requisite qualification and credibility will be appointed as judges. As such the President will have to appoint people primarily on the basis of meritocracy and not simply on party affiliation or other forms of connectocracy.
Section 137 deals with the removal of judges from office. The section provides that a judge of the superior court of judicature shall hold office as long as he is of good behavior until he attains the retiring age which is 60 years. At 60 years, a judge may retire and at 65 years, he shall vacate his office. Further, section 137(4) provides for the removal of a judge from office in case of inability to perform the functions of his office whether arising from infirmity of body or mind or for stated misconduct. Where a case for the removal of a judge is presented to the President, he shall only remove the said judge after a tribunal appointed to investigate the matter has found him wanton and his removal approved by a 2/3 majority in parliament.
From the above, it is obvious that the President cannot hire and fire at will. His powers are subject to scrutiny by parliament. The effect of this is that a judge who performs his duties in accordance with the code of conduct of judges should not be arbitrarily terminated. It is in this vein that judges are said to enjoy security of tenure of office.
However, the provision of section 136 provides a cause for controversy. The section provides that where the office of the high court Judge is vacant, the President may appoint a person who has held office as, or qualified for appointment as a judge of the superior court of judicature, even though he has already attained the age of retirement or the age at which he shall vacate his office.
Section 136(3) further states that any person appointed under the latter provision to act as a judge of the high court of justice shall continue to act for the period of his appointment, or if no such period is specified until his appointment is revoked by the President.
Some legal analysts and commentators have argued that while there is no need to seek parliamentary approval, having secured it once, the President’s power to remove a judge under the later provision is not subject to any check and therefore leaves the President with the power to terminate a judge’s appointment at will. Under the circumstances a judge has no security of tenure of office; he could be described as a mere contractor. To maintain himself in the job therefore, a judge may in theory have to dance to the dictates of the executive or some other higher authority thus compromising his independence impartiality. Even if in practice judges act with integrity despite any pressures they may feel, and their impartiality is not affected, their independence is nevertheless crucially undermined by such a system of tenure.
Judicial independence is not a question of the impartiality of an individual judge, but relates instead to the Institutional Framework in which they function. Judicial impartiality is a slightly different issue, and depends more on the actual situation in which the judge finds himself in relation to a specific case. Nevertheless, the two interrelate, in that in the absence of a judicial structural independence, a judge’s impartiality may be called into question. The appearance of impartiality to the public at large is of vital importance to the integrity of the institution as a whole. In any country, the appearance of impartiality is as important as the impartiality itself, and this is especially so in a country where confidence in the judicial system is, regrettably, at it ebb. The appearance of impartiality is compromised by the judges’ lack of security of tenure, unnecessarily undermining public confidence in the judicial system.
In addition to lack of public confidence, at times the absence of judicial independence can bring more sinister consequences. If judges are not left to decide cases based on their own facts, but are instead subject to improper influences and pressures, it is strongly likely that the rights of an individual to a fair trial will be jeopardised. The most notorious example of this is in the event where perceived political opponents of the regime in power are caused to suffer human rights violations when brought before the court. But additionally, if the judiciary feels that it must bow to political pressure, ordinary people brought before the courts may be treated not according to the facts of their case, but on the government’s insistence on focusing on providing the particular output from the court, for example, increased numbers of convictions or harsher sentences.
Conclusion
Fair hearings cannot take place where the judiciary is not independent. Moreover, the general public will never be able to have confidence in such a system. In Sierra Leone, even though section 120(3) of our constitution spells out the independence of the judiciary, in actual fact, inadequate safeguards are put in place to ensure that this provision is guaranteed in practice. One of the central problems lies in the fact that some judges are mere contractors as they do not have security of tenure of office. In order to stay longer on the job or be promoted, they may have to compromise their independence.
According to the Basic Principles on the Independence of the Judiciary, all States should ensure that there are structural and functional safeguards against political or other interferences in the administration of justice. One such structural safeguard, towards achieving judicial independence, would be that all judges should be accorded a high degree of security of tenure of office. To this end, one is tempted to suggest that the provisions of section 136 (2&3) be expunged or amended. The essence is to subject the President’s power of appointment and removal of judges from office to parliamentary scrutiny at all times. This is done with a view to preventing the President from acting arbitrarily. If this is done, judges will be able to perform their functions without fear or favour, and the public will be reassured that any trust in the judiciary will not be misplaced.