Introduction
The Native Administrative court, also known as local court of Sierra Leone, derives its authority from the Local Courts Act, 1963; the Courts Act, 1965 and Section 170 of the 1991 Constitution of Sierra Leone which deals with the laws of Sierra Leone. The said Section states, amongst others, that the laws of Sierra Leone shall comprise “rules of customary law including those determined by the Superior Court of Judicature”; and “customary law” means “the rules of law which by custom are applicable to particular communities in Sierra Leone”. Thus, the Native Administrative courts are legally constituted to dispense justice in accordance with the cultural, social and traditional setting of their different communities. This traditional court system underscores Sierra Leone’s dual judicial system comprising both the formal and informal; the formal system deals with matters of general law applicable in the magistrate’s court, the High Court, the Court of Appeal, and the Supreme Court; whereas the informal system is mainly preoccupied with issues arising out of customary law. In addition, whereas the dispensation of justice in the general law courts is determined by legal procedures and principles based on standards sanctioned by law, decisions in the local courts are primarily based on existing orally transmitted norms of the different customs and communities. In essence, customary laws are largely unwritten.
The local court is comprised of a chairman, vice chairman and other ordinary members or assessors (also known as council of elders), and officers including clerks and bailiffs who carry out administrative duties and assist in the execution of court orders. It is presided over by a Chairman, who is assisted by a Vice-Chairman and such other members as may be appointed by the Minister of Local Government (the Minister). The said Minister is also empowered to appoint a Chairman and Vice-Chairman. The Native Administration court has limited jurisdiction in both criminal and civil cases and determine matters which fall within its territorial limits-the chiefdom. It serves as a medium to punish law breakers; have aggrieved parties compensated adequately as well as amicably settle disputes within the chiefdom, especially those that pertain to land tenure and ownership, marriage, and succession or inheritance. Proceeds from fines levied against disputing parties are supposed to be used on community development matters.
The majority of Sierra Leoneans are governed by customary law. Yet, very little attention is paid to the workings of the court. The proceedings in the customary courts are marred by many deficiencies which seriously undermine both the administration of justice and the traditional values that initially gave rise to their establishment. This piece seeks to examine some of the challenges encountered in litigating in a local court and attempts to make suggestions for meaningful reform.
Proceedings
The conduct of proceedings in the Native Administration court is often held in an unfriendly atmosphere characterized by fear and intimidation. Court officials are notorious for intimidating parties by frequently shouting at them, thereby creating panic and despondence. Litigants, therefore, find it difficult to compose themselves well when giving evidence. The situation is even made worse especially when women are involved either as witnesses or as victims. Due to the uncongenial atmosphere and the fact that court sessions are almost always open, even where children are involved, which requires closed sessions, they most times feel reticent to testify. The situation is not helped also where issues bothering on sexual conduct are at the nucleus of the matter; women are equally timid to explain in public what transpires between them and their husbands within the confines of the bedroom. Such practice has the tendency to negatively impact the entire trial process and by extension the outcome of the matter. Thus, a good number of people, including women have resorted to using the “chiefs’ courts” also dubbed the “Kangaroo courts” illegally established by local chiefs with far reaching jurisdiction than the statutorily established local court.
In addition to the unhealthy atmosphere, strepitus judicialis (disruptive behavior in court) frequently obstructs court proceedings often resulting to untimely adjournments during hearings. The continuous movement of court officers within and around the court premises distracts the attention of the Chairmen and Assessors from adjudicating properly. From time to time, Councilors and Chiefdom Committee Members would come around the courtroom and speak in chambers with court officers during sessions thus in some way undermining the integrity of hearings. At times when court officers retire to chambers, they may not show up to continue sessions and that might be the end of the day’s proceedings.
Jurisdictional Issues
The Native Administration court has competence over all civil matters covered by customary law and those governed by general law where the claim does not exceed Le 250,000. This provision is sometimes applied Mutatis Mutandis. Local courts also have competence in criminal cases where the sentence does not exceed six months or fine does not exceed Le50, 000. However, the courts do not always adhere to this statutory provision stricti juris; that is, according to the exact law. The courts often adjudicate in cases that do not fall within their competence. For instance, at the Local Court No. l in Kakua Chiefdom, Bo district, a lady (name withheld) was summoned for failing to pay a debt amounting to Le 747,000. Legally, this matter falls outside the jurisdiction of the local court. But because of limited jurisdictional knowledge about the court on the part of the litigants, the matter was adjudicated upon in the court. This example is illustrative of how many courts adjudicate myriad of cases that are not within their jurisdiction.
The Courts of Paramount Chiefs
Additionally, paramount chiefs also create their own courts to try matters that are sometimes above the jurisdiction of local courts. Pursuant to the provisions of the Local Courts Act, paramount chiefs have no business in setting up courts to hear matters. Their duties are purely administrative and not judicial. However, most paramount chiefs establish a committee known as Council of Elders who assists them in running these courts. These courts are not only illegal but also undermine the authority of the local courts. Most of the cases adjudicated by the paramount chiefs are only given a different nomenclature often as family matters so as to give them the ‘mandate’ to sit and adjudicate such matters. It is surprising and ironical to note that the fines levied in such courts far outweighs those levied in the legally established courts, with no checks and balances as to how proceeds are spent. That besides, almost all court chairmen often decline to adjudicate matters that have once been settled by paramount chiefs in order not to annoy them.
Recommendations
Majority of Sierra Leoneans use this system, and therefore deserves equal attention as others in the justice sector. The current on-going institutional reforms should not be limited only to the formal sector but should also be extended to the informal sector as well. This is primarily because the tendency for abuse of authority is more susceptible in local courts than in the general law courts. The reason for such may be partly attributed to the fact that customary laws are mostly unwritten; but also because majority of the people who use them do not know the limitation of their authority. Furthermore, the bulk of them are not even aware of the limited rights provided them under customary law such as the right to appeal to the customary law officer in the district. In addition, most of the local court officers do not have the basic knowledge on the operations of the country’s legal system in general.
To this end, it is important that realistic infrastructural improvements to local courts which practically eliminates discriminatory customs and practices, education on human rights particularly those bothering on women’s and children’s rights are undertaken. Also, trainings in legal provisions, human rights and contemporary legal techniques are regularly done as these trainings will help enhance their judicial performance. There should also be constant outreach activities in communities on the jurisdiction of the court, procedures and rights of parties in a law suit. CARL believes that if customary law is to remain a viable component of the laws of Sierra Leone, then the recommendations suggested should be given serious thought by all stakeholders in the justice sector.