One important issue that arose in Hinga Norman’s case in the period March-June 2005 was that of the admissibility of witness testimonies from Moyamba, an area in the South-West of the country. This article charts the history of the problems involved in the consolidated indictment against former government minister Hinga Norman which included references to Moyamba, and questions the tactics used by the Prosecution in order to get such evidence admitted. It concludes by advocating for a more active approach to be taken by judges to escape the danger of getting lost in technicalities.
Background to the consolidated indictment
Back in February 2004, the Prosecution served a consolidated indictment referring to crimes committed in Moyamba. This was an area unmentioned in the first indictment against Hinga Norman, and as such should normally have been sought separately as an amendment. Worse still, according to Norman, the Prosecution failed to serve the new indictment on Norman himself, instead only serving it on his defence counsel, contrary to the Special Court Rules. Although no complaints were made for six months about either of these, in September 2004 Counsel for Norman brought a motion complaining about both.
In November 2004 the Trial Chamber Majority found that although there was indeed a procedural error in not serving the consolidated indictment personally, this did not unfairly prejudice Hinga Norman’s right to a fair trial because he had been served with the initial indictment. However, Norman’s rights were prejudiced by the inclusion of crimes in Moyamba, because these constituted materially different charges, and as such Norman should have been given the opportunity to plead again to those charges. The Majority decision ordered the Prosecution to decide whether to expunge the references to Moyamba, or to seek an amendment. In the meantime, the relevant sections would be stayed. Judge Itoe issued a strongly dissenting opinion complaining that the rules of procedure must be followed more strictly.
The Moyamba Crime Base testimony
Both sides appealed to the Appeals Chamber, and by March 2005 both were still waiting to hear back. The Prosecution, apparently having expected a response by the first week of March from the Appeals Chamber, had prepared witnesses to testify as to the portion then under the stay. This may seem surprising given their full knowledge of the stay. However, counsel for Norman agreed to go ahead with the testimony, so as to avoid any delay caused by the Prosecution having to prepare fresh witnesses. Nevertheless, as such issues cannot simply be decided by an agreement between counsel, the Trial Chamber had to decide whether or not to hear the testimony.
The rules on admissibility of evidence at the Special Court are framed very widely, and judges are presumed, correctly or not, to be able to exclude things from their consideration if need be, so that it does not cloud their overall judgement. Accordingly, in the week of 4th March 2005, the Majority of the Trial Chamber decided that they would go ahead and hear the Moyamba crime base testimony, as this was in the interests of judicial economy and did not prejudice Norman’s rights. If the Appeals Chamber decided the consolidated indictment was not proper, they would consider excluding the Moyamba evidence from their deliberations. However, the Chamber was split. Judge Itoe asserted that even if it were in the interests of justice and of judicial economy, that it would be premature and violate the rights of the Accused to go ahead and hear the stayed testimony before hearing back from the Appeals Chamber. This seems indeed to have been the correct approach procedurally. Nevertheless, the majority’s decision prevailed, and over the following two weeks seven witnesses were heard describing events that took place in Moyamba, who testified as to looting, burning and killing by the Kamajors.
Appeals Chamber decision on Consolidated Indictment
In May 2005, the Appeals Chamber got back to the parties in an animated decision which reflects Justice Robertson’s long-standing concern for speeding up proceedings. It was surprisingly candid in its derision of all parties – Defence, Prosecution and even the Trial Chamber were all denigrated in some way. The decision noted that the Prosecution was ‘unhelpful and complacent’, and slated the Prosecutor for his ‘failure to appreciate’ the correct layout of an indictment; Judge Itoe’s argument for abiding strictly by rules of procedure was labelled as ‘hyperbolic’; while Defence counsel for Norman were lambasted for their unnecessarily complicated use of the English language and were told ‘we hope not to have to read a gibberish like this again’.
The Chamber held that the Trial Chamber’s decision as to personal service on Norman was correct, because Rule 5 of the Special Court Rules requires that any objection as to compliance with the Rules should be made at the earliest opportunity, and the defence had waited for six months before they made any complaint. In any case, the breach was only technical. The decision concluded that although the Prosecution additions in the consolidated indictments certainly amounted to new material, that the defence would not be prejudiced and the trial would not be delayed by these amendments. Hence the Chamber in some ways jumped the procedural hurdles in an effort to speed the trials along, in that it chose not to require the Prosecution to file leave to amend the consolidated indictment, which could have delayed proceedings by many months. Instead it went straight ahead and granted the amendment itself.
Conclusion
In consequence, testimony from Moyamba district can now be included in the Judges’ considerations. The Prosecution’s tactics are not surprising but are a little disappointing. The Prosecution, in knowledge of the stay, should perhaps not have gone ahead and prepared the Moyamba testimony, because in this way they themselves caused the danger of losing time. In this way they pressured the defence into accepting the court hearing the testimony, as Judge Itoe complained. Indeed, it was in part because of defence cooperation with the Prosecution that the Appeals Chamber decided Norman’s rights would not be prejudiced by admission of the testimony. We are left with the feeling that the Defence was slightly hard done by as a result of their goodwill.
Nevertheless, the approach to the rules taken by the Appeals Chamber was sensible and proper, and the national courts should consider the benefits of such judicial activism. Although no-one would advocate for rules of procedure to be flouted, it is important to look to the substance rather than the form. If a rule has clearly been constructed for some purpose other than that for which a lawyer is using it, the bench should indeed, when discretion permits, not let procedural technicalities cause delay and injustice. It has been suggested that one problem currently seen before the national courts is that certain lawyers pick on minor technical irregularities in order to delay cases, sometimes even as a tactic aimed at wearing the other side down. Despite the general reluctance in Common Law jurisdictions for judges to intervene and manage cases, at times it would seem to be justified. The SLCMP will do more research into the approach taken by judges at the national courts, but at this stage we would support the more active approach taken by the Special Court Appeals Chamber on this occasion.