Prior to the outbreak of the war, children in Sierra Leone did not fully enjoy their basic human rights. Laws relating to children were outdated, uninformed and grossly inadequate to guarantee the protection and promotion of their rights. Crimes against children especially in the provinces including rape and sexual violence generally went unpunished, contributing in no small measure to the culture of silence and impunity that prevailed.
The war in Sierra Leone had a serious impact on children, especially girls as they were subjected to widespread and systematic abuse including sexual violence. Many of these younger victims did not survive and those who did later gave birth to children fathered by the combatants. Thus United Nations Children’s Fund, UNICEF, submitted to the Truth and Reconciliation Commission, TRC, the following: “Particularly vulnerable to abuse were children, as they were violated in deep and lasting ways, some too awful to be adequately described…In some ways, it is as if a new level of cruelty has been attained in this war, setting the bar lower than ever imagined”. [i]
Unfortunately, however, since the end of hostilities to date, little has been done to robustly prosecute the myriad sexual offences committed against girl children in their every day lives.
The manner in which sexual offences are being prosecuted in northern Sierra Leone is suggestive of the low status of girl children in the region. The notion of sexual violence as an offence is a recent concept in the north of the country. It is still widely believed that only rape of a chaste girl is considered a crime. Rape of a non virgin girl is not seen as a crime because it is often the belief that the girl must have consented to the act or is a seductress.
However, section 6 of the Prevention of Cruelty to Children Act 1960 makes it a criminal offence punishable by imprisonment for a period not exceeding 15 years if the accused person is found to be guilty of unlawful carnal knowledge or abuse of any girl under the age of 13 years, with or without her consent.
Under the Local Courts Act, local courts have no jurisdiction to preside over serious criminal matters such as rape. Section 13(1)(c) of the 1963 Local Courts Act states that the courts shall have power “ to hear and determine all criminal cases where the maximum punishment which may be imposed does not exceed a fine of fifty pounds or imprisonment for a period of six months or both such fine and such imprisonment”. As such, local courts have no jurisdiction in seduction actions: all serious criminal cases should be automatically tried under general law.
Despite these provisions, offences of a sexual nature in the northern region are still largely being prosecuted under customary law. Local courts within the region are currently hearing a multitude of rape cases some of which involve children as young as 8 years of age. The concern with these courts adjudicating on such matters is that apart from it falling outside their jurisdiction contrary to law, the court administrators also lack the necessary logistics and expertise to dispense justice in such matters. The atmosphere in local courts is not conducive and proceedings are conducted in the open thus inhibiting the smooth flow of evidence as most victims find it very humiliating and traumatic to testify especially in the sight of accused persons.
Moreover, when the accused in a rape matter is of ‘high standing’ in the community, the girl victim is most often intimidated to refrain from testifying in court. In some instances, the parents of the victims are ‘talked over’ to withdraw the matter and have an out-of-court settlement which, in most cases, is done without the active consent of the victim. An example of such practice was seen in the matter involving a clergy as the accused person and an 8 year old girl as a victim in Local Court No.3 in Makeni. In the middle of substantive investigations, the parents of the girl victim withdrew the matter from the court to have an out-of-court settlement. In fact, after the matter had been withdrawn from the court, some people who had been following the case closely alleged that the parents of the victim had accepted some financial inducement in order to withdraw the case.
However, this issue of withdrawing rape cases at the peak of preliminary investigations is not only prevalent in the local courts. This malaise is also widespread in the Magistrate Court. One such example was in Magistrate Court No. 1 in Makeni which involved a primary school teacher alleged to have raped an 11 year old class 4 pupil. During one of the appearances, the mother of the girl victim made a dramatic U-Turn in helping to prosecute the matter by seeking a withdrawal from the court. Frustratingly, however, in both cases, no substantive reasons were proffered for taking such decisions to withdraw matters that would have serious impact on her own children and also on the lives of future potential victims.
In other rape cases that are being prosecuted in the Magistrate Court, the process has not been expedited. There have been adjournments mainly due to prosecutorial inadequacies. Many a time, Prosecution Witnesses fail to appear to testify in court in matters of rape especially in the presence of the accused person. The reason may be attributed to the fact that witnesses, because of lack of protection by the court, fail to appear to testify for fear of victimization. Hence the absence of evidence to prosecute an accused person may lead to delay in the administration of justice.
[i] UNICEF submission to TRC-vol3b cap4 pp234