Introduction
It is now over a year since Omrie Golley and two others, Mohamed Bah and David Kai Tombie, were arrested and charged with treason, a capital offence which bears the death penalty. Upon preliminary investigations in the Magistrates Court, the matter was committed to High Court No. 1 before Justice Samuel Ademusu.
However, since the matter was committed to the High Court, there have been a plethora of legal rigmaroles which have almost brought the trial to a standstill. The lead counsel for the Defence, Charles Margai, filed a motion on the 24th February 2006, to the Supreme Court to rule on the constitutionality of Justice Samuel Ademusu sitting on the case, who according to Mr. Margai, retired as a Judge in 1998 and is now on contract. Before the Supreme Court met on the 7th March 2006, he filed in another motion asking for the Chief Justice, Ade Renner-Thomas, to recluse himself from the decision to be taken on the motion against Justice Ademusu for discussing and forming an opinion on the motion outside court.
According to Mr. Margai, after the filing of that motion against Justice Ademusu, he received a letter from the Chief Justice through the acting Registrar of the Supreme Court dated 24th April 2006, addressing him that the matter would be heard after a panel had been constituted.
It however, took the Supreme Court 322 days to constitute a panel to sit on the motion contesting Justice Ademusu’s eligibility to adjudicate on a proceeding as crucial as a treason trial involving no less a person than the former spokesman of the Revolutionary United Front (RUF). Like Justice Geoffrey Robertson, former President of the Special Court for Sierra Leone who was forbidden from hearing the cases of the RUF members after his impartiality was put to question by defence lawyers on the basis of what he had written about the rebels of the RUF in his book, Crimes Against Humanity published in 2002, the Chief Justice was also exempt from the decision on the motion against Justice Ademusu.
A panel of judges, presided over by Justice SCE Warne, subsequently met on the 11th January 2007, a day less of a year after the accused persons were arrested, to arbitrate on the motion against Justice Ademusu. Before the proceeding began in actuality, Mr. Margai made an application to the Bench to order the bringing of the accused persons who were noticeably absent in court. The application was granted and the three accused persons were brought to court. However, there was a dramatic twist of event in the courtroom when Mr. Margai stood up and said that the Defence (himself and R.B. Kowa) was not going to proceed with the motion before the panel since all but one of the Justices were themselves retirees. He said that “it is my view that natural justice will be breached as the 4 Justices will have an interest in the matter to be determined” contrary to one of the tenets of natural justice – nemo judex causa sua,meaning, you cannot be a judge in your own case. He went on to say that when a similar issue arose about the Chief Justice to recluse himself from the proceeding, he (Chief Justice) was not a member of the panel to discuss himself. The Defence is of the impression that personal considerations may override the “superior interest of justice.”
For the records, Mr. Margai further stated that the stance taken by the Defence was not an intention to delay the trial process because it was their clients who were suffering. But justice, he said “should, however, not be compromised in the name of speeding up trial”.
Rights of Accused Persons
Premised on the presumption of innocence until proven guilty according to law, persons charged with a criminal offence should be tried without unwarranted delay. In other words, the fate of accused persons should be determined within a reasonable time. This right is enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights (ICCPR) which require that trials on criminal charges take place “…without undue delay”. The raison d’être for this provision is to ensure that the defence of accused persons is not jeopardized by the passage of inordinate amounts of time, during which witnesses’ memories may weaken or become indistinct; witnesses may become inaccessible, and other evidence may be destroyed or disappear.
It is also geared toward ensuring that the uncertainty which an accused person faces, compounded with the stigma attached when incriminated, regardless of the presumption of innocence, is not prolonged. Hence, the right to be tried without delay encapsulates the dictum that justice delayed, is justice denied.
The guarantee of prompt trial in criminal proceedings has been seriously contravened in the trial of Omrie Golley et al. The issue is not so much about the accused persons being tried; they should be brought to book for what they were charged with and if proven guilty should face the full penalty of the law. The contention is, however, with the delay in hearing the motion of the Defence. Mr. Margai filed the motion on the 24th February 2006 to the Supreme Court to arbitrate on the constitutionality of Justice Ademusu to sit on the substantive matter. He only received a letter two months later from the Chief Justice through the acting Registrar of the Supreme Court that the matter would be heard after a panel had been put in place. That said, it took the Supreme Court 46 weeks to constitute the said panel to hear the motion. The concern here is that if the trial could not be proceeded with in the absence of a decision on the motion by a panel free of contract judges, why did it take the Supreme Court 11 months to form the panel? In some other jurisdictions, motions filed need no more than two weeks to be arbitrated upon by the court of arbitration. The delay is not only significant but also undermines the confidence reposed in the judiciary as an impartial arbiter of expeditious justice.
The necessity of expediency in criminal trials has not been realized in this trial. Over a year after their arrest, the judicial process has been excruciatingly slow. According to the Defence, an official evidential request to the Prosecution is yet to be acknowledged; there have been frivolous adjournments and decisions on constitutional motions have not been expedited. Although the trial is in progress at High Court No.1 before the Judge in question, if however, a constituted panel rules against the Judge on the motion, his decisions will be ipso facto untenable. In other words, the whole trial process will be started again. Thus their right of freedom of movement and to be tried within a reasonable time as expressed in section 17 (1) of the Constitution of Sierra Leone 1991 and Article 14 (3) (c) of the ICCPR respectively would have been violated. Conversely, while Justice Ademusu continues to preside over the matter, whatever verdict he delivers in the process has the force of law. If they are found guilty, they would be sentenced to death.
The right of the accused to be represented in all stages of criminal proceedings has been acutely compromised in this trial. The Defence, since filing that motion almost a year ago contending Justice Ademusu’s eligibility has not been appearing before him on the matter. This is on the basis that an appearance would have undermined the motion filed against Justice Ademusu. This not withstanding, Golley and co. have been appearing in court in the absence of their counsel contrary to the U.N. Human Rights Committee Report. The Report holds that in a case where the offence is punishable by death, that the interests of justice require that the case should not proceed if the accused is not represented by a counsel. The said Report also states that in a case where a court proceeds to try, convict and sentence to death an accused whose Defence counsel had withdrawn, with the judge apparently rendering assistance to the accused, the accused’s right to a fair trial had been violated.
Omrie Golley, like the Special Court indictees, Hinga Norman and Issa Sesay, has been complaining about his deteriorating health conditions since his arrest over a year ago. However, unlike the two Special Court detainees who were recently airlifted to Senegal to receive medical treatment, Golley is yet to be treated in like manner. It is worth noting that, on the basis of the presumption of innocence, refusing Golley the opportunity to receive medical attention for his failing health constitutes an abuse as medical procedures are considered a routine. Also, the court made public Golley’s medical report against his objection that it was against his personal dignity, contrary to international court rules which forbid public disclosure of medical information about the detainees under the privacy regulation.
Implications for Justice
An effective and efficient judiciary is a corner stone in the creation and maintenance of a stable society and a successful state. Therefore, its independence should be preserved at all times from being compromised under whatever circumstances. Judges must be free from gratuitous influences, whether real or imagined, to decide a case on the basis of facts and in accordance with the law. The right to fair trial by an independent and impartial tribunal is so basic that the U.N. Human Rights Committee has stated that it “is an absolute right that may suffer no exception.”
Thus the current judicial impasse in the trial of the State vs. Omrie Golley and the Others is very critical: on the one hand it is a litmus test for the judiciary to show how proactive it is in the dispensation of justice; on the other hand if not properly handled it has the propensity of undermining the integrity of the judiciary.
However, the legal squabbles that have overwhelmed the trial are iniquitous, a price too high for the judiciary to pay. The right to fair trial is very much on trial in this case. It may be compromised if the panel retains a contract judge in a trial of this nature. It is the role of the judiciary to dispense justice. In criminal trials where the defendant is in detention pending the decision, justice demands that the case be dealt with expeditiously. If the judiciary allows trials to stagnate at any stage due to neglect, proceedings to take an unreasonable time to complete, the cause of justice would have been defeated.
Therefore, the role of the judges here is crucial. In March last year, faced with a crisis that undermined the integrity of the judiciary, with the Chief Justice already forbidden to preside on a motion, this could be an opportunity for it to redeem its perforated image.
Recommendations
The sagacity demonstrated by the Defence, to question the eligibility of a judge on contract with the President, with no security of tenure of office, to preside over a treason trial is indicative of the need to amend or expunge subsections 3 and 5 of section 136 of the Constitution of Sierra Leone 1991.Certainly, the Defence cannot easily shelve this concern simply because of judicial expediency. It is of the opinion that a contract judge, without security of tenure of office, in his bid to maintain his daily source of livelihood, may compromise justice. That said, the SLCMP therefore recommends that in the interest of justice, the following could help free the judiciary from this present quagmire.
That a panel, devoid of contract judges, be constituted as soon as possible to adjudicate on the motion filed against Justice Ademusu. The said panel should reach a decision within a reasonable time determining whether or not the judge in question should proceed with the trial. On the presumption that the panel rules against Justice Ademusu, a judge who is not on contract be brought in to preside over the trial.
That for the sake of judicial economy the matter before Justice Ademusu in High Court No. 1 is stood down until a panel gives a verdict on his eligibility. It is also analogous to the fair trial report of the U.N. Human Rights Committee which says that where the offence is punishable by death and the accused is not represented, that the trial should not proceed.
That the prison authorities should take a leaf from the Special Court and treat the complaint of Omrie Golley regarding his health with the seriousness it deserves lest they be indicted by Golley’s cohorts of having caused his death ( in case he dies) as did the UN War Crimes Tribunal in the case of Slobadan Milosevic.
The expectation of many Sierra Leoneans for an independent judiciary is at fever pitch. All persons should be treated equally exclusive of discrimination, to the same protection of the law. Remember that lack of confidence in the judiciary is tantamount to instability- a situation that was prevalent on the eve of the war.