On the 14th February 2005, legal arguments were proffered in the Trial Chamber 1 before Justices Pierre Boutet (presiding), Bankole Thompson, and Benjamin Itoe regarding a motion filed by counsels for the First and Second Accused persons to subpoena His Excellency Alhaji Dr. Ahmad Tejan Kabbah to testify on their behalf.
This comes against the backdrop that efforts initiated by Learned Counsels for the said accused persons have failed to secure the attendance of the prospective witness as he has categorically stated his unwillingness to appear before the Special Court.
Grounding his arguments on Rule 54 of the Rules of Procedure and Evidence of the Special Court (The Rules), Counsel for the Second Accused, A. Bockarie Esq submitted that it is now necessary more than ever that the President in his capacity as Minister of Defence, Commander in Chief of the Armed Forces, and Head of State must be called upon to give evidence before the Court. Therefore, it can only be by the force of law, through which the counsels seek to compel the attendance of the President in court especially when other means of doing so have failed.
The essence of the subpoena basically as was argued, is firmly grounded in the fact that His Excellency is reasonably believed to be in possession of information relevant to the accused persons.
This therefore raises two issues;
Is the President compellable as a factual witness before the Tribunal?
Had the defence team satisfied the legal test for issuance of a subpoena?
The answers to the above could be in the affirmative. But again, it must be remembered that the Attorney General, in his capacity as the principal legal adviser had earlier contended that the President is not compellable under such circumstances as a subpoena requires a judicial penalty to enforce it where it is disobeyed. Notwithstanding the above proposition, sufficient jurisprudence direct that the Trial Chamber has the power by virtue of the available Rules of Procedure and Evidence, and the Ratification Act of the Special Court to issue an enforceable subpoena to any individual within the Special Court’s jurisdiction. This is where Rule 54 of the Rules specifically plays a vital role in the Court exercising its decision on such matters.
More importantly, Section 20 of the Special Court Ratification Act explicitly provides that for the purposes of execution and other issues by a judge or the chamber, such executions and other issues shall have the same effect as if it were issued by a Judge, a Justice of the Peace, or a Magistrate of the Sierra Leone Court. This provision is reinforced by Rule 8 of same which also provides that the Government of Sierra Leone shall cooperate with all organs of the Special Court at all stages of its operations. To this end, the Inspector General of Police could issue a warrant to any individual who fails to comply with orders of the Court upon its request.
Throughout the legal wranglings in Court, Counsels for the First and Second Accused maintained that the President of the Republic of Sierra Leone enjoys no Functional Immunity in international criminal tribunals – the Special Court for Sierra Leone being no exception. Pursuant to that, an unreported Supreme Court judgment of Sierra Leone which was cited demonstrate the fact unequivocally that a sitting Head of State is only entitled to immunity to processes brought before the national courts except if waived of it. But the point here is that this is an international tribunal within the national jurisdiction although not bound by it. So should immunity be evoked in that peculiar circumstance?
In line with the arguments above, it was conjectured by the Lead Counsels for the First and Second Accused that Section 29 of the Special Court Ratification Act categorically states that the official status of any person cannot be a bar to prosecution let alone being called upon to give evidence. Before resting his case, A. Bockarie Esq. further addressed the Court by emphasizing that the President may provide material assistance relating to issues of Moinina Fofanah’s (2nd Accused) alleged culpability as one of those who bears the greatest responsibility for violations of international law, and may therefore throw light more specifically on his alleged command responsibility, the duties associated with the position of Director of War, how orders passed through the chain of command and structure, and interactions therein, coupled with the linkage in communication between President Kabbah and the CDF whilst in Guinea.
Dr. Jabbi, Counsel for the First Accused broadly adopted the submission made by A. Bockarie Esq. insofar as they could be applicable to Mr. Norman. It must be remembered that the consequence of disobeying an order of a subpoena, is that though it would not be presumed, the necessity would arise. Therefore, against the consideration that the President volunteered to an agreement with the United Nations Secretary-General in setting up the Court, and further ensuring legislative ratification of same by the Parliament of Sierra Leone, the question now as to whether the President of Sierra Leone would submit to the jurisdiction of the Special Court as a witness should not arise because he should feel duty-bound to comply with an order by the Court in regards to testification. But where he fails to do that, Rule 77a (3) and (c) of the Rules can then be evoked in case of contempt of a subpoena.
Against the backdrop of all the arguments outlined, it must be mentioned too that the relevance and materiality of the evidence expected from President Kabbah is the main criterion for the clarion call of the prospective witness in relation to the indictment before the Court in respect of the CDF accused persons. Suffice it to say that Document No. 547 of 30th January, 2006 containing Norman’s Response to Attorney-General’s Reply, in paragraph 6-13, under the rubric – The President as a Material Witness, and specifically Paragraph 7, makes mention of the first accused as a principal force in the establishing, organizing supporting, and promoting the CDF. Further to that, it says that Mr. Norman was the leader and commander of the CDF and had de Jure and de facto command over the CDF. Considering the arguments proffered so far, these are serious allegations to which the best possible evidence could only perhaps come from no less a person than the President of the Republic of Sierra Leone who was at all times relevant to the Indictment i.e. since 30th November 1996 and to whom further titles such as Commander –in – Chief and Minister of Defence were vested.
The remarks of the Prosecutor in taking a principled and impartial position only ended in suggesting that a subpoena of such nature would be impossible to grant. He reinforced this stand by stating that the issue of compellability is one that the Court needs to decide especially for a sitting Head of State and that quite apart from ensuring that the law and Rules of Procedure are observed, the Chamber may have subpoenas and applications failing or succeeding on their merit. Rule 54, Paragraph 34 of the Rules according to the Prosecutor sets out the standard for issuing a subpoena to a prospective witness. It was further stated that tribunals set up for war crimes have a political aspect and therefore subpoenas should not be abused. He also stated that Paragraph 36 of the Rules lays out the basis upon which the Trial Chamber must consider whether the information in the possession of the witness is necessary for the resolution of the specific issues in the trial. The Prosecution intimated the Court that the Second Accused had the option to go into the witness box himself and testify in his own defence but he has declined to do so and is now calling on His Excellency the President to give information which he is hiding. It must be however noted that Paragraph 7 of the Motion of the Second Accused clearly sets out the matters upon which he justifies the issuance of the subpoena namely, that seven prosecution witnesses have already made mention of President Kabbah. The question therefore is; does merely making mention of a person qualify him for issuance of a subpoena? Certainly not to my mind. But from all the foregone arguments made by the Learned Prosecutor, the question then to the reader is this: Does his position as stated here and argued in court smack off the “impartiality” and “neutrality” insofar as the subpoena is concerned and as earlier on mentioned by him?
Apart from adopting what the Prosecutor of the Special Court had to say, the Attorney-General was of the strongest of views that Mr. Norman is now in essence saying that President Kabbah has knowledge of and saw what he (Norman) was doing in Kailahun. An argument which does not seem to be very convincing by the Learned Attorney-General hopped on when he stated that according to the Indictment, the accused persons are alleged to have violated international humanitarian law against the people of Sierra Leone and therefore President Kabbah may not be called as a witness because he did not know about the atrocities since he lived in Guinea at the time. The question here is does this mean that the President is not in possession of information that might assist the Court in ascertaining the truth? Let me in fact mention that Section 48(4) of the Sierra Leone Constitution does not say anything about subpoenas or immunity before an international tribunal but the learned Attorney –General insistently relied on that provision and maintained that it does not at all compel the President to come to the Special Court upon the issuance of a subpoena. Contrary to earlier submissions by the Attorney-General that given the peculiarity of the circumstances, he may be unable to do anything to have the President testify, he ended his submission by saying that if the Court in any case decides to subpoena His Excellency, he will advise him to come. This seeming ambivalence in the position of the Attorney General regarding the subpoena for His Excellency to testify in court is again punctuated by the fact that he ( i.e. the A- G ) had earlier said that the whole motive of the Defence Counsels is to get the President in the dock so that he can be exposed to humiliation and embarrassment. Another question then in mind is this; does testifying in court as a witness automatically expose one to ridicule and humiliation when in fact perhaps your information may be crucial in assisting the court to ascertain the truth? One might be tempted to say NO, especially considering His Excellency’s enviable legal background. In fact, why in the first place did President Kabbah submit himself to the hearings of the Truth and Reconciliation Commission and have now categorically refused to testify in the Special Court?
The Slobodan Milosevic Case in the International Criminal Tribunal for the former Yugoslavia was cited as been on all fours with the instant matter. In that case, the Court declined to issue a subpoena to both the Prime Minister Tony Blair and the German Chancellor Schroeder who were called as witnesses for Mr. Milosevic. By reference to the CDF’s Organogram as tendered in evidence, the two scenarios are worlds apart in that President Kabbah was here, and is still an integral part of the CDF whilst Prime Minister Blair was not particularly so involved in the machinery of governance with President Milosevic. For once, we should agree that the Defence of the First and Second Accused persons is not only confined to that which may have been already given (i.e. in the case of the First Accused) by their own testimony but when the last defence witness has been called upon to testify. But as yet any person can reasonably conclude that their defence has not yet been given in totality. This is where the President may come in by way of assistance namely, information regarding the flow of command, communication etc.
On the other hand, there has been the contention by the Prosecutor earlier on, that all evidence adduced so far by the Defence does not have anything specifically touching and concerning President Kabbah especially by the witnesses to warrant subpoena. My difficulty here then is this; has it been a rule of practice that it is Prosecution rather than the Bench who should evaluate the mass of evidence before the close of a trial? Certainly not!!
Oral responses by Counsels for the accused have steadfastly maintained that the position of President as Commander in Chief, and the Minister of Defense of Sierra Leone qualifies preeminently as a nexus for the subpoena to be issued regarding the accused persons respective titles as Deputy Minister of Defense cum Coordinator of the CDF, and Director of War (for the Second Accused).
Indeed much has been analyzed regarding the issuance of the subpoena both generally and specifically. The enactment of the Special Court Ratification Act through the Parliament of Sierra Leone which incidentally so, is one of the major political organs and of which the President is a member by virtue of Section 71(1) of the 1991 Constitution makes the issue very important. Therefore, one may have no doubt again that political resourcefulness, have guided the key political partners or stakeholders i.e. the Government of Sierra Leone and the United Nations in ensuring that the processes of the Court are expedited unimpeded. By reason of that premise, it stands to reason that all persons cohabiting within this given geo-political region i.e. Sierra Leone are absolutely obliged to ensure that the mission of the Special Court is satisfactorily complete, and that the country should not revert to the situation that primarily gave rise to the establishment of same. This obligation spans and traverses all strata of the society to evince reverence for the tenets of the Rule of Law.