Introduction
The current development in the case of the IG v. Steven Harvey Perez and Others is exposing the judiciary in Sierra Leone to risk of loosing the gains already made in the post-conflict era. In July this year, a plane alleged to have been carrying substances believed to be cocaine unlawfully landed at Sierra Leone’s international airport. Following the incident, 19 people including Sierra Leoneans and foreign nationals were arrested and charged to court. The main problem has been adherence to the basic rights of the accused persons. In the court of public opinion presided mainly by a section of the media and general public, the accused persons are already guilty. The media and the general public have been mounting barrages of insinuations, vitriolic attacks, and unsolicited criticism on the legal practitioners representing the accused persons. Even before the trial phase of the case started, counsel of the first accused had to terminate his service citing “harassments, intimidation and other uncivil conduct”, [i] as reasons for his decision. Counsels have also complaint of alleged lack of unfettered access to their clients by imposing undue restrictions to communicate with their clients in private and/or restricted access to the court proceedings. It is alleged that the order came from the Attorney-General and Minister of Justice which required the issuance of a certificate of representation in order to facilitate an “orderly representation” of the various counsels representing the large number of accused persons.
This unsavory development in these trials is symptomatic of the heaps of surmountable problems that have continue to encumber the judiciary in post-conflict Sierra Leone, where lack of access to justice was identified as one of the underlying causes of conflict. It is important to note therefore that although the institution of trial “makes justice possible, it is the fairness of the process that makes it justice.” [ii] This is also a pointer to the dire need of general basic education on the treatment of accused persons; that anyone accused of a crime has the right to fair trial including the right to legal representation, irrespective of one’s race, colour, nationality, ethnicity, sex, religion etc. The trial should not be a mere charade that circumvents those basic human rights it will not in anyway enhance the justice and the administration of the rule of law.
Section 23 of the Constitution of Sierra Leone, 1991 (herein the Constitution) provides for all persons charged with a criminal offence to be afforded a fair hearing in public, within a reasonable time before an independent and impartial court established by law; to be presumed innocent until proved guilty; to be informed of the nature of the offence at the time he is charged in the language he understands; be given adequate time and facilities for the preparation of his defence; be allowed to defend himself in person or by a lawyer of his choice; to call on a witness to testify on his behalf or examine or instruct his counsel to examine a witness of the prosecution; to have the assistant of an interpreter; to be protected from a retroactive application of criminal law; to be protected from double jeopardy etc. All these rights are fundamental elements in ensuring fair trial of accused persons. This article will therefore examine the basic rights to fair trial of all persons accused of committing a crime under the laws of Sierra Leone . It will specifically look at the right of the accused person to defend him/herself or through a legal representation of his/her choosing; right to adequate time and facilities for the preparation of his or her defence. In discussing the right to legal representation, the article will emphasized the importance of the accused person’s right to the services at both pre-trial detention and trial stages.
The Accused Persons Right to Legal Representation
The accused person’s right to an “adequate time and facilities for the preparation of his defence” and his right to “defend himself in person or by a legal practitioner of his own choice” can be found expressis verbis in the Sections 23 (5)b and 23(5)c of the Constitution. Whilst the former is meant to serve in situations after arrest and during pre-trial detention, the latter is more applicable in trial period. However, both scenarios require the services of a legal representation. Though section 23 (5)b only provides for an ‘adequate time and facilities’, but stopping short of providing for the accused person’s right to ‘communicate with the counsel of his own choice’ provided for in Article 14 (3)(b) of the ICCPR, the Human Rights Committee, in explaining Art.14 indicates that the adequate ‘facilities’ must not be limited only to access to documents and other evidences which the accused person should want to prepare his defence, but it includes the opportunity accorded to him to communicate and consult with his counsel. [iii]The counsel should be allowed to communicate with the accused in conditions given “full respect for their confidentiality of their communications.” Lawyers should be able to “counsel and represent their clients…without any restrictions, influences, pressures, or undue interference from any quarter.” [iv]
Section 23 (5) (c) of the Constitution provides that every person charged with a criminal offence has the right to “defend himself in person or by a legal practitioner of his own choice”. There are two elements to the first bit of this safeguard that is, ‘defend himself in person’. Firstly, it requires the accused person to be tried in his own presence, which should be a matter of must. Trials are only held in the accused person’s absence for “exceptionally justified reasons” and for such reasons; “the strict observance of the rights of the defence is all the more necessary” [v] Secondly, it requires the accused to represent himself in person. However, this right is rarely accorded to accused persons in most jurisdictions. The seriousness of the offence would always require the presiding judge to assign a court appointed counsel in the interest of justice.
The second prong of Section 23 (5) (c), that is, the accused person’s rights to be defended ‘by a legal practitioner of his own choice’ underscores the fact that for counsel’s assistance to be effective, it shall be by a counsel of the accused person’s own choosing. Mutual trust and confidence is an indispensable factor in a lawyer-client relationship. The European Court of Human Rights’ decision in Pelladoah v. The Netherlands was authoritative on this when it emphasized that “everyone charged with a criminal offence has the right to be defended by a counsel” but for “this right to be practical and effective, and not merely theoretical, it exercise should not be made dependent on the fulfillment of unduly formalistic conditions…”[vi] The issuance of a certificate of representation in the ongoing trial, is not only unduly formalistic, but it would, given the negative press coverage it had attracted, serve as an intimidating tool to the defence counsels, which hinders the fair trial of the accused.
The right of the accused person to legal representation is such a fundamental element to fair trial that legislations in most jurisdictions provide for assigning of a free legal assistance to an accused person if he is unable to meet the cost of hiring a counsel for his defence. Sierra Leone is no exception as Section 28b(5) (a & b) provides that Parliament shall make provision for rendering of financial assistance to an indigent Sierra Leonean if his right under Chapter III of the Constitution has been infringed to enable him engage the services of a legal practitioner. The allegation of infringement of such rights shall be substantial and require the need for financial or legal aid.
However, it is not in all cases of indigence that free legal assistance is extended to the accused person concerned. Under the European system and in most international tribunals including the Special Court ,[vii] two conditions are usually laid down for free legal assistant. They are (i) ‘insufficient means’ and (ii) ‘the interest of justice’. The criteria set out to satisfy the latter condition are: the seriousness of the offence and the severity of the punishment being risked; the complexity of the crime which includes the facts, the law and the outcome; and the personal situation of the accused . [viii]
Why is the right to legal representation important?
Right to legal representation is universally acknowledged as a fundamental right. Trials in many jurisdictions are considered unfair and fatally irregular if the presiding judge or magistrate fails to inform the accused person his or her right to be assisted by a counsel; if he or she denies the accused his right to appoint a counsel of his or her choosing; if he or she fails to facilitate the effective and full participation of a counsel or if he does any thing that would impede the counsel of the performance of his duty.
A legal representation plays a crucial role in the pre-trial phase in any matter. At the time of arrest, theMiranda warning must be read to arrested person informing him of the reasons for his arrest and his rights including rights to remain silent and to a legal counsel. Once in contact with his client, it is the responsibility of the counsel to seek a bail from the police if the offence for which the accused is charged is a non-felonious offence. Where deprived of his liberty, the counsel always sees to it that the accused is not kept in detention for more than the required period (72 hours in cases of misdemeanor and 10 days in case of capital offenses). During the accused person’s first court appearance, it is the counsel’s duty to apply for a bail for his client as of right.
It is noteworthy that 90 percent of detainees in the 13 prisons across Sierra Leone are either suspects or accused persons, most of which are indegent and without legal representation. [ix] In addition to the fact that counsel protect the rights of the accused when in detention, it most importantly enhances his physical and mental integrity. For this reason the detainee should have unhindered access and communication with his lawyer.
The counsel’s role at the trial stage is most vital. This is because of his knowledge of the applicable laws and rules of procedure in the matter before the court, and his ability to relate them to the fact, sieve relevant, admissible and sometimes complex evidences from what is irrelevant and inadmissible. A layperson may not have the ability to effectively do so and hence the need to hire the service of a legal representative. The importance of a counsel’s participation was succinctly articulated by Lord Denning in his decision in Pett v. Greyhound Racing Association. He had this to say:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task?” [x]
The right to legal representation is almost axiomatic in an adversarial system like in Sierra Leone. Under the adversarial system, court proceedings are left between the two parties to fight it out. The bench serves as the umpire and intervenes only to enforce compliance with the rules and ensure fairness of the proceedings. Where it is applied in criminal matters, the adversarial system may result in an incalculable prejudice to the accused person whose liberty or life may be at stake. It is for this reason that accused persons are accorded the right to appoint a legal representation of their own choosing.
Strongly related to the adversarial system, is the principle of equality of arms which is an essential feature of a fair trial. Equality of arms is an expression of the balance that must exist between the prosecution and the defence. The Human Rights Committee in explaining the fair trial principle noted that the requirements of equality of arms and the respect for the principle of adversarial proceedings are not respected where “…the accused is denied the opportunity personally to attend the proceedings or where he is unable properly to instruct his legal representative…” [xi] The African Commission on Human and People’s Rights in its communication regarding Advocat San Frontiers v. Burundu noted that “ the right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial”. They must, in other words, be able to “argue their cases …on an equal footing”. [xii] It is therefore only lawyers who by study and experience have the knack to argue the cases intelligibly and successfully apply the applicable law to the facts of the matter. The Committee had this in mind when it concluded that the Court of Appeal in the Ngozi case “violated the right to equal treatment, one of the fundamental principles of a right to a fair trial”. The matter was a death penalty appeal in which the Burundi Appeal Court had refused the accused person’s plea for adjournment of the proceedings in the absence of his legal counsel, even though it had earlier accepted the same plea from the prosecution.
Finally, the importance of a legal practitioner is not only restricted to disproving the allegations levied in the charges against his client, but once he is in the well of the court, he is considered as an official of that court. He is also there to assist the presiding officials in the effective and fair administration of justice. The Trial Chamber I of the Special Court for Sierra Leone in its decision on the application of the 1st Accused in the CDF trial, Samuel Hinga Norman for self-representation, gave an insightful opinion on the role of the defence counsel. The Chamber, in determining whether to grant the said accused’s application for self-representation, noted that, “the role of a defence counsel is institutional and is meant to serve, not only his client, but also those of the Court and the overall interests of justice”. [xiii] It further noted firstly that the right of counsel is predicated upon the notion that representation by counsel is an essential and necessary component of a fair trial. Secondly, that the right to counsel “relieves trial Judges of the burden to explain and enforce basic rules of courtroom protocol and to assist the accused in overcoming routine and regular legal obstacles which the accused may encounter if he represents himself, for, the Court, to our mind, is supposed, in the adversarial context, to remain the arbiter and not a pro-active participant in the proceedings”. [xiv]
Conclusion
Given the importance of the right to legal representation in ensuring fair trial in court already discussed, the intimidations, harassments, and vitriolic attacks from some members of the public and the fourth estate on counsels who have opted to represent accused persons in this trial is a worrying development in our justice system. There is the propensity of the slippery slope tendency of compromising the rights to a fair trial to occur in other cases if it is allowed in the current case of the IG v. Steven Harvey Perez and Others. Allowing undue interference with the application of legal procedure is a bad precedence that may not be applied impartially and therefore destroys anybody it affects. If Sierra Leoneans are to prevent the country relapsing into conflict, it is but necessary that all facet of our society including the Press, Civil Society Organizations including colleagues in the Human Rights field, play prominent roles in ensuring effective and efficient delivery of justice through fair trial practices by our justice system. It doesn’t matter who is involved in an alleged crime or how serious the offence may be. What is important is ensuring that whoever is charged with an offence and brought before the court is tried according to the safeguards enunciated in the Constitution and other international instruments. An accused person is presumed innocent until proven guilty according to law before a competent court. The observance of fair trial principles including the accused person’s right to legal representation in the justice system of any country is a sine qua nom to the promotion and protection of the administration of the rule of law.
[i] Awoko Newspaper, Monday August 11 2003
[ii] Gary Jonathan Bass (Author, Stay the Hands of vengeance: The Politics of Crimes Tribunals)
[iii] Ibid, para. 34
[iv] Ibid
[v] Huma Paul Mahoney, Fair Trial Rights in Criminal Matters under Article 6 E.C.H.R, Judicial Studies Institute Journal p.126n Rights Committee, General Comment No. 13
[vi] European Court of Human Rights, Case of Pelladoah v. the Netherlands, 1994 Series A, No. 297B p. 35, para. 41
[vii] Article 17 (4) of the Statute of the Special Court for Sierra Leone provides the right of the accused to have a legal assistant assigned to him or her, “in any case where the interests of justice so require and without payment by him of her in any such case if he or she does not have sufficient means to pay for it.”
[ix] Letter to H.E. Ernest Bai Koroma of Sierra Leone, Recommendations following the presidential elactions of 2007, available at: http://hrw.org/english/docs/2007/11/13/sierra17321_txt.htm
[x] Pett v. Greyhound Racing Association (1968) 2 All E.R 545, at 549
[xi] Communication No.289/1988, D. Wolf v. Panama (Views adopted in 1992), in UN Doc GAOR, A/47/40 p. 289-290, para. 6.6
[xii] ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No. 231/99, decision adopted during the 28thOrdinary session, 23 October – 6 November 2000 , paras. 26-27 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/231-99.html
[xiii] Prosecution v. Sam Hinga Norman, Moinina Fofanah and Alieu Kondowa, Case No. SCSL-04-14-T, June 2004 p.9, para. 23
[xiv] Ibid, p.10, para 26.