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
