Introduction
The Constitution of Sierra Leone (1991) contains several provisions which are meant to guarantee accused persons a fair trial in criminal court. These clauses protect against arbitrary arrest or detention and guarantee legal representation for the indigent, as well as providing the right to a trial within a reasonable time. However, in practice, these Constitutional rights are frequently unenforced, or even flouted, within the criminal justice system, and several challenges still face Sierra Leone as it seeks to build a fair, transparent and rights-protecting criminal justice process. This article will examine five particularly critical problems which were identified in the course of two months of research and interviews with judges, magistrates, police, civil society activists, and lawyers across the country as hindering the pursuit of justice for accused persons, namely, the right to legal representation, the use of interpreters, trial delays, juvenile justice, and sentencing reform.
I. Right to Legal Representation
The International Covenant on Civil and Political Rights (ICCPR) exhorts all states to provide legal assistance to all indigent defendants “in any case where the interests of justice so require.” Sierra Leone incorporated this provision into its 1991 Constitution, requiring that Parliament establish a legal aid scheme for indigent persons. However, as of 2009, Parliament has failed to establish a Legal Aid Board, and thus, a large percentage of criminal defendants are still without representation. In May 2009, the Sierra Leone Bar Association launched a Legal Aid Scheme, funded by UNDP, which as of July 2009, had represented 193 clients countrywide and managed to have 88 people released from detention. Even amidst this success, however, the Legal Aid Scheme faces serious problems in attracting attorneys (it currently only employs 15 lawyers, each at 5 cases per month, for a population of 5 million persons) and securing permanent funding to ensure its long-term viability, as its UNDP funding is set to expire by the end of 2009.[i] The Bar Association has noted that the Scheme has been effective at reducing overcrowding in jails and prisons and clearing many cases at the magistrate level, thereby reducing backlogs in the higher level courts.[ii]
II. Interpretation
Section 23 (5) e of the 1991 Constitution guarantees an interpreter, to be provided free of charge, for all charged persons who cannot understand the language used at Court. Because the official language in Sierra Leone’s courts is English, a language not spoken by the majority of the country’s population, interpreters are essential to guaranteeing that the defendant can understand the case against him and participate fully in his own defence. There is a critical shortage of qualified interpreters at all levels of the Superior and Magistrate courts. For example, on several visits to the magistrate court in Freetown in July, there were few interpreters at some of the proceedings. Instead, most witnesses testified in Krio, and lawyers and magistrates communicated with each other in English. As a result of these practices, many defendants cannot understand the communications between their legal team, the prosecution, and the judge, and in cases where the defendant is unrepresented, misunderstandings can prove fatal to the accused’s attempts at preparing his defence. Even where interpreters are provided, there is little training according to interviews with officials within the judicial sector; interpreters lack training in the law and thus can encounter difficulty in explaining legal proceedings. There are also serious ethical issues raised when interpreters are employed on an ad hoc basis, which is common in the courts; for example, in some areas, the prosecutor—or even other accused persons—have served as interpreters. In some instances, in which the defendant spoke neither English nor Krio, the court experienced considerable difficulty in locating interpreters, such as occurred during the high profile 2008 cocaine trafficking case.
To provide defendants with the ability to understand the case against them and prepare their defence, the judiciary must uphold the Constitutional guarantee to an interpreter, and thus commit resources to train a cadre of professional interpreters of the law, skilled in all the languages of Sierra Leone, and should also make an effort to have interpreters in other languages available on retainer if the need arises.
III. Trial Delays
Section 23 (1) of the 1991 Constitution guarantees an accused person the right to a fair hearing, within a “reasonable time.”[iii] However, even those few citizens who have access to the formal courts often cannot realize this right, as delays are rampant at all levels of the court system. There have been reports that some persons have been detained without an indictment for as long as 10 years, and courts have failed to issue a judgment even four years after closing arguments had finished.[iv] Though the past several years have seen the advent of major justice-sector reforms, there still remain several critical obstacles to reducing trial delays, including long preliminary investigations, high court fees, lack of legal representation, poor remuneration for judges and magistrates, and problems bringing witnesses to court. The Preliminary Investigations (PI) system, provided for by Section 108 of the Criminal Procedure Act (CPA) of 1965, allows magistrates to investigate most criminal cases (barring serious felonies such as murder), to determine if there is sufficient evidence to commit the case to the High Court for trial. Though created largely to block frivolous or weak cases in the higher courts, the PI system has produced serious delays in the openings of trials, as well as creating duplication of proceedings, as witnesses must repeat testimony and evidence must be re-presented in the High Court. Most magistrates interviewed during this research have expressed dismay with the delays produced by the PI system but cite several reforms that should be implemented before PI can be abolished successfully. First, and most critically, the police must improve their capacity to conduct investigations and collect evidence, and police prosecutors must be trained in the law in order to reduce the incidence of improper charges. The capacity of the High Court must also be enhanced to handle the increased caseload. There are several options that could currently be employed to speed up the prosecution of criminal cases. One option could be an increase in the number of summary trials, authorized by the CPA, which allow the magistrate to try certain offences (those with a sentence of less than 7 years) instead of committing them to the High Court, as long as the accused consents. Sierra Leone could also follow the example of Ghana, in creating fast track courts which could try certain criminal cases which may be of special public concern. Increasing funding for witness’ transportation and remuneration for days missed at work could also reduce the incidence of no-shows and delays in testimony.
IV. Juvenile Justice
The conditions for juveniles within Sierra Leone’s criminal justice system are dire, as there are major problems in the trial, sentencing and detention phases for juveniles. Article 40 of the Convention on the Rights of the Child urges states to formulate diversion procedures for offences punishable for less than seven years, in an effort to avoid judicial proceedings. Measures included in the CRC include discharge, transfer of the child to a suitable caretaker, or repatriation to the child’s home district. However, Sierra Leone has yet to provide substantial alternatives to traditional incarceration. Sierra Leonean law allows courts to sentence children under 18 years of age to an “Approved School” until the child reaches 18; however, the Human Rights Commission of Sierra Leone (HRCSL) reported in 2008 that courts have violated this rule, sentencing children to terms which would continue even after their 18th birthday. The Child Rights Act of 2007 does include promising provisions expanding the powers of police and court to use diversion options; however, implementation of the Child Rights Act has been extremely slow and these measures are not yet in place.
Sierra Leone has a critical need to construct more juvenile facilities, in Freetown and in the provinces, in order to reduce delays for juvenile trials and to ensure that juvenile offenders are treated in an age-appropriate manner. There has been some notable progress in this area; for example, JSDP recently renovated a courtroom within the Law Courts Building in Freetown to serve as a “Child Friendly Court.” However, there needs to be more focus on recruiting magistrates who focus specifically on juvenile cases (as of July 2009, there was only one magistrate who was dealing full-time with juvenile cases and none in the provinces).[v] Sierra Leone’s juvenile facilities fall short when compared to other West African countries; for example, Ghana in 2007 had 91 juvenile courts.[vi]
Greater focus should be directed towards abuses of juveniles in the local courts as well. Numerous reports across the country indicate that juveniles are often tried in these courts in direct violation of the law. Local Court Chairmen often conduct juvenile proceedings in open court, even in sensitive proceedings, and court monitors have reported cases of harassment of juvenile sexual assault victims in open court by Local Court Chairman, even as the chairmen had no authority to even hear this type of case. Children are also subject to discriminatory double standards in some locales: for example, children often cannot bring an action against an adult for a violation of the law but adults can bring actions against children. In Makeni, Kenema and Bo, court monitors report that children are often asked to pay the same fees as adults; for example, in Kabala, a child was recently sent to the local courts to answer a charge of simple larceny, even though the law required him to be taken to the police, and was subsequently fined 200,000 leones ($58).[vii] When children cannot afford the fines, they are sometimes put into police cells, and some are even sent to state prison for minor offences because of overcrowding.[viii] Conditions are often abysmal; one 14-year-old girl in Makeni was held behind the police counter in a local station, which was unsecured, because of a lack of facilities.[ix] Though there have been reforms, such as the renovation of an Approved School and Remand Home for juvenile offenders, and the removal of all children from Pademba Road Prison in Freetown, there are still reports of children in provincial prisons.
V. Sentencing Reform
Sierra Leone urgently requires sentencing reform, as problems with sentencing contribute heavily to prison overcrowding and hinder access to fair trials for defendants. Many of the sentencing guidelines within Sierra Leone’s criminal laws are seriously outdated, as they are based on British colonial law. For example, Sierra Leone still uses Britain’s Larceny Act of 1916 and the sweeping Offences Against the Persons Act of 1861, which provides a maximum life sentence for rape and for homosexuality among men and imprisonment for abortion providers and women who undergo the procedure. Research at Pademba Road Prison in Freetown revealed that many convicted persons were given long sentences for minor crimes such as loitering and unpaid debts. For example, one female inmate was sentenced to four-and-a-half years in prison for failure to pay a debt 3 million leones ($870 U.S.), while a male inmate interviewed was arrested and sentenced on the same day to 18 months in prison for loitering with intent.
There are also charges that judges routinely violate CPA Section 230:3, which mandates that judges should take into consideration time served on remand. Officials interviewed for this research claimed that judges often ignore this provision, forcing offenders to serve their full sentence after conviction, even if they have spent months, even years in detention.[x]
The criminalization of libel within the Public Order Act of 1965 is also a controversial aspect of sentencing law within Sierra Leone. Part V of the Act contains a provision that criminalizes the publication or distribution of false materials that are likely to “disturb the public peace” or which are “calculated to bring into disrepute” government officials.[xi] Violations are punishable by imprisonment of up to seven years,[xii] and potential bans on publications for convicted newspaper publishers. Recently, there have been arrests of prominent journalists and publishers at the Independent Observer and the Awareness Times, among others, for publishing unfavorable articles about the government. Many civil society groups, including HRCSL, have called for Parliament to repeal the seditious libel provisions, and institute civil remedies in their place.[xiii]
Sentencing in local courts varies dramatically in different jurisdictions and reports of legal violations, including levying of excessive fines, are common. Local courts have legal jurisdiction over criminal cases with sentences of less than six months in prison or up to 50,000 leones.[xiv] However, fines surpassing 300,000 leones for divorces, martial disputes and juvenile crimes are commonly reported. There are also frequent complaints that sentencing in customary courts is discriminatory towards women and juveniles.
To alleviate disparate and illegal treatment in the local courts, the government and civil society groups have been working on increasing the number of paralegals outside of Freetown, who can assist customary officers on matters of formal law. More emphasis should be on continuing to educate both the chairmen of the local courts and chiefs operating illegal kangaroo courts about their proper jurisdictions and enforcing penalties against the illegal exercise of judicial powers.
There is currently a lack of viable alternative sentences in Sierra Leone’s courts, as fines and incarceration are the only remedies available to judges at this time. Because of the prevalence of fines for all but the most serious crimes (i.e., murder, treason), most of those incarcerated are among the poorest citizens. For minor crimes such as petty larceny and unpaid debts, the courts should consider the implementation of community service programs and mandatory educational workshops.
Though there has been a de facto moratorium on executions since 1998, Section 16 of the Sierra Leone’s Constitution still requires the death penalty for crimes of murder, treason, mutiny and robbery with aggravation. There are currently 13 inmates on death row, 3 of whom are women. Thus far, civil society’s attempts to have the death penalty overturned have proven unsuccessful. In fact, in May 2008, new death sentences were handed down to three men convicted of murder.[xv] In December 2008, civil society condemned Sierra Leone’s abstention from a UN General Assembly resolution advocating for a global moratorium on executions.[xvi]
[i] In an interview with Easmond Ngakui, Secretary General of Bar Association, it was learned that after the termination of UNDP funding, the Scheme hopes to receive funding from JSDP for five years until the government can take over control of the program financially.[i]
[ii] 69 of the 193 cases handled by the Scheme were settled at the magistrate level while only 15 were committed to the High Court
[iii] Section 23(1), 1991 Constitution
[iv] Interview with Director of Prison Watch, Freetown, June 15, 2009
[v] Interview with magistrates, Freetown, June 2009
[vi] Afrimap and OSIWA Report on Justice Sector and Rule of Law in Ghana, 2007
[vii] After DCI intervened, it was reduced to 50,000.
[viii] For example, 3 children, aged 9-15, in Kenema accused of verbal harassment were sent to state prison by Local Court 1 before trial because there were no facilities available.
[ix] Afrimap Focus group, Makeni, July 27, 2009
[x] Interviews with civil society activists in Freetown, June-July 2009
[xi] Public Order Act of 1965, Section 32.
[xii] The 7-year maximum sentence is for a repeat offense. Publication of defamatory materials against government officials is punishable by up to 2 years in prison or a 500 leone fine, while dissemination of materials that disturb public order has only a maximum one-year sentence and a fine of up to 300 leones.
[xiii] HRCSL Report: 2008, July 2009
[xiv] Local Courts Act of 1963, Section 13 (3)
[xv] “In August of 2008, civil society groups unsuccessfully lobbied the Constitutional Review Commission to abolish the death penalty.
[xvi] Death Penalty Sierra Leone: Successful Appeal Strengthens Case For Abolition, IPS News, December 12, 2008, Available at http://ipsnews.net/news.asp?idnews=45088
