It is now a year since the Sierra Leone Court Monitoring Programme (SLCMP) started monitoring the national courts. During that period, the SLCMP observed numerous undue delays in proceedings contrary to Section 23(1) of the 1991 Constitution of Sierra Leone. The said provision guarantees fair trial within a reasonable period of time for persons charged with criminal offences by an independent and impartial court. Although the judiciary and its partners recruited a few young graduates to serve as magistrates in the provinces for the primary purpose of expediting trials in those areas, nevertheless, the problems highlighted a year ago still continue unabated. This article, therefore, examines the continued causes of delays in trials; its impact on the administration of justice and proffer necessary recommendations for reform.
The causes of delays are multifaceted and cannot be laid on the doorstep of the Bench alone. The blame should be borne by all concerned and the SLCMP has tried to categorize it as follows:
The Rules
The Rules of Court Procedure are not only cumbersome but also outdated in many respects. Most of them are couched in obscure legal jargons that make it so difficult not only to locate but even to understand. Most of the Rules no longer meet the needs of the Sierra Leonean society, as they were imported wholesale from Britain with no considerable modifications to reflect the aspirations of the society in which they were meant to be implemented. In fact, this is one of the key problems members of the Sierra Leone Bar Association (SLBA) highlighted during their Annual Conference in July, 2006. The national courts still apply the procedures and practices of the High Court of Justice in England of 1960. The country is now much more complex than it was almost half a century ago, when a large body of English Common Law was made part of the laws of Sierra Leone. As a result, the gap between the administration of justice and the ever-increasing needs of today’s society continues to widen.
Furthermore, the provisions in the 1991 Constitution meant to avert undue delays are rarely observed by the courts. A vivid example is the current treason trial of Omrie Golley and Two Others who were charged on 23rdth February 2006. The said motion made an objection to Justice Samuel Ademusu presiding over the matter on the ground that he has passed the retirement age and he is now on contract which makes his eligibility to sit on such cases questionable. January 2006 for allegedly planning to overthrow the Government of Sierra Leone and to assassinate Vice President Solomon Berewa. The Supreme Court is yet to make a ruling on a motion filed by Golley’s Defence Counsel, Charles Margai since 24
Frivolous Adjournments Based on Prosecutorial Lapses
In July 2006, the Presiding Magistrate of Court Number 1, Sam Margai on many occasions adjourned cases that were long overdue for verdicts due to prosecutorial lapses. The prosecution, on several instances, failed to bring witnesses forward to testify for spurious reasons only to ask for an adjournment. On one occasion, the Magistrate was forced to adjourn a case involving murder because the prosecution consistently failed to bring its witnesses to testify. The Magistrate, however, warned that the case will be closed if the prosecution failed to present its witnesses. The prosecution’s excuse was that, the witness was a police officer on duty at another station outside the court’s jurisdiction. This is most often the case when police officers involved in investigations are transferred without fully liaising with the prosecution unit.
Unnecessary Delay Created by the Defence Counsel.
The attitude of legal practitioners is also not helping the situation due to their failure to adequately represent their clients in court. Some do not turn up in time when their clients’ cases are called up much to the embarrassment of their clients. This is partly because lawyers have too many cases to handle, some of which are scheduled to sit at the same time in different courts. Quite naturally, since a person cannot be in more than one place at the same time, one of the courts can only adjourn the matter thereby prolonging the trial process.
Furthermore, during cross examination sessions (like some prosecution lawyers do during examination-in-chief) the defence counsel sometimes spend most of their time asking somewhat irrelevant questions thereby embarrassing the witness in the dock. The Bench has to interject on many occasions in order to expedite the process.
Some counsel come to court unprepared to handle a particular case. They rely on the loopholes in the Rules to ask for adjournment. Such applications frustrate their adversaries as well as their clients. There are also instances wherein counsel come to court and ask for an adjournment simply because they have not seen or heard from their client.
The Registry
The Registry is also part of the problem of delay in court proceedings. For example, there are times when lawyers call up their clients’ cases to be heard or make applications for certain exhibits to be tendered in court, court officers respond by saying that they are yet to see the file in question and this unavoidably leads to adjournments. In addition to missing case files, delays in signing court orders and other documents and the general functioning of the Registry cause delay in many trial proceedings. The volume of cases that go through the system is such that bottlenecks are created at every stage thus leading to delay as cases cannot advance from one stage to the other without prior records.
Furthermore, at the SLBA Annual Conference, one of the speakers said that the Registry seldom functions on Saturdays even though it is a working day. Consequently, it reduces the hours counsel have in accessing and filing key documents.
Consequences
Without doubt, the fact that members of the public have limited knowledge about the laws that govern them is a major obstacle to utilizing the justice system. It must also be said that the lack of fair and expeditious trials no doubt significantly undermines the efficiency of the judiciary which is the cornerstone of any civilized society. The snail pace at which court cases proceed has continued to dent the image of the Sierra Leone judiciary as an independent and impartial arbiter of justice. It even casts suspicion on its ability to dispense justice fairly. Consequently, people prefer to use extrajudicial means to resolve their problems. Given the fact that the lack of the rule of law was one of the primary causes of the decade-long civil war in Sierra Leone, it certainly requires more attention than it is been given at the moment.
Undue delays during court proceedings put unwarranted burden on all the stakeholders – the defence, prosecution and the bench.
It is important to note that, persons charged to court are presumed innocent until proven guilty in a court of law. However, when proceedings are delayed, the right of the accused is usually compromised contrary to the provisions made in the 1991 Constitution which prohibit unreasonable protraction in court proceedings. This is exacerbated by the fact that no compensation is given even when it is clear that the prosecution may have delayed the court’s process irresponsibly. Additionally, if the indictee is proven guilty at the end of the trial process, the court often takes little cognizance of the length of time already spent in pretrial detention.
Furthermore, excessive delays raise the cost of litigation and this affects the people who abandon their daily chores only for the court to keep adjourning their matter.
Delay may also cause the disappearance of case files and exhibits or the distortion of evidence. This further undermines public trust and confidence in the judicial system as justice delayed is ‘justice turned sour.’
Recommendations
The centrality of the justice sector in the reconstruction of Sierra Leone after a decade long civil war cannot be over emphasized. This is premised on the fact that the prevalence of the rule of law strengthens peace and stability. One of the key components of the rule of law is the guarantee to fair and expeditious trials within the due process of the law. The absence of this bears the unfortunate effect of engendering instability which certainly undermines the reconstruction efforts. To this end, cutting on excessive delays during trials will immensely enhance the prevalence of the rule of law. It is in this light that the SLCMP is making the following recommendations:
As stated during the Annual Conference of the SLBA, changing the Rules is of absolute necessity so as to expedite proceedings in courts. The Law Reform Commission, the Law Reform Initiative and the SLBA should collaborate to effect this reform.
Legal practitioners have got to change their attitude with respect to the way and manner they handle cases. Lawyers who bring motions or engage in other activities that are, in the opinion of the court, either frivolous or constitute abuse of process should be prevented from doing so by the court. In this respect, the Bar should modify the existing code of conduct for lawyers to reflect the aforementioned concerns. The judiciary should start convening status conferences before the commencement of trials, especially high profile ones. This will offer an opportunity for all parties to transfer relevant documents and deliberate on other issues affecting the trial process. This practice will help defeating delays.
Defence counsel should know that they have a responsibility to represent their clients during trials. Therefore, they should try and liaise with the Bench in apportioning time to enable them prepare adequately and to also avoid the unfortunate incident of being required to simultaneously represent two clients in different courts. In other words, it is incumbent on counsel and the Bench to agree to a stipulated time which must be respected and they should ensure that it is recorded in their daily diaries in order to help them locate the trial time. This will also relieve litigants who most times spend the whole day in court only for their case to be called and adjourned.
An amendment of the rules without a corresponding improvement in the infrastructure of the courts will provide little help in defeating delays. More structures should be built, modern gadgets applied and jurimetrics introduced to cut down delays in proceedings as well as in the production of records for interlocutory purposes and appeal. The provision and proper utilization of these facilities will be of immense help in reducing delays.
Special rules should be made regarding adjournments with more powers given to the Bench to refuse requests made by counsel for adjournments that are deemed frivolous. Counsel should be sanctioned by way of forcing them to close their cases if they consistently fail to bring witnesses for a particular case. Furthermore, witnesses who refuse to turn up in court without genuine reasons should be subpoena or given bench warrant.
The Registry should work on Saturdays, say from 9am 1pm. This would give counsel the opportunity to file motions on behalf of their clients in order that trials can be expedited.
The Registry should also initiate in-house training for members of the Bench on contemporary techniques and instruments in trials. Similar trainings should be conducted for the Registry staff on modern case and court management techniques. Furthermore, the Sierra Leone Bar Association should also conduct similar trainings for its members.
The Government of Sierra Leone and its partners should support the documentation of Sierra Leonean laws. This should be made part of the mandate of the Law Reform Commission.
Most of the issues we have discussed above are not new. The SLCMP has discussed them in earlier publications. However, not much has been done to resolve them. As a court monitoring programme, we remain concerned that the continued existence of these problems will only continue to undermine the prevalence of the rule of law.