Introduction
The Sierra Leone Judiciary has an abysmal record of keeping people in detention ad infinitum due to undue delays either in the trial or during appeal. Recently, the SLCMP conducted an investigation that revealed myriad of cases involving people who have been in detention for periods far beyond the time they would have spent if they had been convicted. Some of the individuals in detention are charged with minor offences such as petty theft. Others already convicted of serious offences such as murder have been in detention for over six years without trial; some of whose files have still not reached the Appeals Court. As a result of these stacking revelations, the SLCMP decided to revisit the fair trial provisions. This article therefore highlights some of the relevant fair trial guarantees as provided for in the laws of Sierra Leone. It further examines how law enforcement, judicial and government officials fail to protect them.
Fair Trial Protections: the law
Fair trials are both constitutional and legal rights designed to protect persons on trial for allegedly committing an offence. It is also meant to protect litigants from the arbitrary or unlawful curtailment or deprivation of other basic rights and freedoms especially the right to life and the right to liberty. [i] The guarantee of fair trial provisions has been one of the hallmarks of democratic societies. It is provided for in both international instruments and national legislations. For instance, Art 14(1) of the International Covenant of Civil and Political Rights (ICCPR) provides that “…[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” In Sierra Leone, such provision is enshrined in sec 23 of the Constitution of Sierra Leone, 1991 which states in subsection 1 that “[w]henever any person is charged with criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” In other words, courts have to be independent and impartial in order to be able to dispense justice fairly. Furthermore, fair trial guarantee accused persons speedy trials, adequate time and facilities to prepare their defence, right to examine evidence against them, right to be tried in their presence and so on and so forth. It is important to note that the exercise of the right to fair trial commences from the date of arrest onto the date the final decision is made by the court.
To this end, sec 20 of the Constitution protects individuals from being subjected to any form of punishment, torture, inhuman and degrading treatment. Fortunately, this is the only right provision in the Constitution that is fully protected. That is to say, under no circumstance should the authorities derogate from it. This provision bars Governmental authorities from using any form of force that may amount to torture in obtaining evidence during the pre-trial stage. Furthermore, sec 17(3) of same also states that a person arrested should be charged to court seventy-two hours subsequent to the time of arrest unless if suspected of committing a capital offence or an environmental offence then he/she should be charged to court ten days from the date of his/her arrest. This provision, literally interpreted, implies that a person arrested and detained should be released from custody if his/her matter is not charged within the specified period.
During the trial phase, sec 23 of the Constitution provides that a person charged with a criminal offence should be afforded a fair trial within a reasonable time by an independent and impartial court established by law. The independence of the judiciary means that the judiciary is to be protected from undue influence or interference from both the executive and legislative arms of government. The right to be tried within a reasonable time means that the accused should be tried without undue delay; judgment should be passed within three months subsequent to the date the state took steps to prosecute the accused.
However, the right to appeals as provided for by Art14 (5) of the ICCPR is frequently violated. This provision states that everyone convicted of a crime shall have the right of his conviction and sentence to be reviewed by a higher tribunal according to law. The right to appeal is aimed at ensuring at least two levels of judicial scrutiny of a particular case by both an inferior and a superior court of judicature. This right is accorded to all persons convicted of a crime regardless of the severity of the offence and of the sentence pronounced. The appeal would be based on the law raised by a first instance judgement. Appeals must be timely. That is why as soon as a person files in an appeal against a certain conviction, the lower court will have to stay the execution of the judgment passed in the first instance until the appellate review has been concluded.
Furthermore, individuals may be compensated as a matter of right in an event the appellate court overturns a court of first instance’s decision after reviewing and observing that there was a miscarriage of justice. The exercise of this covers the whole trial period and not just restricted to the post trial phase. For instance, during the pretrial phase, counsel for the detainee may either apply for a writ of habeas corpus or institute an action for false imprisonment in an event a person is said to have been arbitrarily arrested and detained. In addition sec 28 of the constitution provides a remedy in the Supreme Court for persons whose fair trial protection are violated or abused.
Violations of Fair Trial Provisions
The rights of accused persons are often violated in all phases of the trial process. Some investigators, in their bid to obtain evidence from detainees during the pretrial phase, tend to use cruel and degrading measures contrary to sec 20 of the Constitution of Sierra Leone 1991. In fact, some do torture people as old as 70 all in the name of eliciting evidence needed to prosecute a case. One such case was revealed during an investigation conducted by the SLCMP at the Pademba Road prison in Freetown. A 70 year old inmate charged with murder explained how he was tortured by investigators to have him confess to a murder crime. Unfortunately for the detainees, whereas the law provides that such illegally obtained evidence should not be admissible in any competent court of law, in practice, people are convicted based on such illegally obtained evidence even when there is proof to show that the evidence was obtained by trick, fraud or under duress.
The right of the accused to be charged to court within a stipulated time is also frivolously contravened by the law enforcement organ. This right is normally curtailed in situations wherein a suspect is placed under prolong detention in holding cells or prisons without trials. In a survey recently conducted by the Justice Sector Development Programme (JSDP) on remand prisoners and prisons population, it was revealed that 63% of prisoners nationwide are pretrial prisoners, having spent an average of two months in prison. There are also remote cases especially in the provinces were pretrial prisoners have spent more than a year or two in remand custody.
Furthermore, the right to be charged to court within a specified period is also flouted during a state of public emergency by virtue of the authority conferred in the President by sec 29(6) of the Constitution which makes provisions for the detention of persons until the emergency is lifted. During a state of public emergency, there is normally an ouster of court jurisdiction thus leaving those detained at the mercy of the President. This practice lends credence to one of the recommendations of the TRC which proffers that there should not be an ouster of court jurisdiction during a state of public emergency. This, according to the TRC is because a state of public emergency should be inclined towards protecting and enforcing one’s right instead of curtailing it.
Furthermore, the right to be tried in an independent court within a reasonable time is also violated. In most cases, trials are heard for longer periods than stipulated in the constitution. This is most times as a result of frivolous adjournments based on Prosecutorial lapses. Often times, witnesses, especially when it involves police officers, are hardly present in court to give evidence or for them to be examined. Also, some Defence counsel have far too many cases to handle at a time. Since they cannot be at two places simultaneously, they leave other cases unattended to thus making room for adjournment. The rules of procedure, inadequate members of the bench and the general functioning of the Registry are also contributing factors in prolonging trials. As such, some cases take years for judgment to be delivered. In fact, it is more prolonged when it comes to matters of appeal.
The poor condition of service, including lack of basic law reporting system, up-to-date resource material, internet and electricity sometimes do not enhance fair trial. Some judges “… often rely on private practitioners for legal reference material which facilitates corrupt since in exchange for information, judges may feel obliged to return the favour” [ii]Judges work under strenuous conditions which sometimes severely limit their capacity and make them prone to manipulation. Judges are paid pittance for the amount of education and experience they must have to attain such a position. All this generally severely have negative implications on fair trial.
The Forgotten Convicts
However, the most glaring violation currently in Sierra Leone is the right of a convict to appeal in a superior tribunal. Disappointingly in Sierra Leone, there are a host of cases pending appeals. An investigation conducted by the SLCMP at the Pademba Road Prison shows a glut of convicts waiting for their cases to be heard by a superior tribunal. One such case is the case of two condemned prisoners both of whom are well over seventy years and have spent three years pending appeals at the Pademba Road prison. Initially there were six of them convicted for murder at the High Court in Bo. After a prolonged trial that lasted for three years, four of the other accused persons died in detention, whilst waiting for there appeals to be heard. These men since filing their appeal in August 2003 have not been given the opportunity for it to be heard.
Another of such a case is that of ten RUF and seven Westside boys who were convicted in April 2006 for one count charge of conspiracy to murder and were therefore sentenced to ten years imprisonment. However, two weeks after the verdict was passed, the convicts appealed through the prison warden against the decision. Sad to note is that their appeal is yet to be heard.
Following this disturbing episodes, the SLCMP also conducted an investigation on the cause for delay in hearing cases on appeals. It was revealed that such practice is as a result of the rigid rules of court procedure. This rule states that when a person files in an appeal against a particular judgment to the appeals registry, the Registrar of the Appeals Court would write a letter to the court of first instance informing the particular court that its decision has been appealed against. It thus requests the Registry of the court of first instance to send in the records of that particular case to the Appeals Registry. That being done, a date would be slated for hearing. However, the problem is the delay of the High Court Registry to send records of cases to the Appeals Court Registry. This practice is prevalent in cases wherein the accused cannot hire the services of a lawyer to ensure that his /her appeal is expedited. This practice violates the doctrine of equality before the law because justice should not only be accorded to those who can afford it but to the underprivileged as well.
Another violation of the right to fair trials perpetrated by the Judiciary is the refusal of the High Court Registry to provide copy of records of proceedings of a case to the litigants. Many litigants including convicted prisoners have complained that the High Court Registry has failed to furnish them with copies of records of their proceedings even when the law prescribes for such. This practice it must be noted runs contrary to the grain of sec 23(6) of the 1991 Constitution.
That said, the SLCMP reiterates that it is not in opposition to any decision that has been passed by a competent court of law. However it must emphasize that the rights of an accused to fair trail should be upheld regardless of the offence with which he is charged or the sentence thereof. Furthermore, such right should be protected through out the trial and appeal phases of the proceedings. In this light the SLCMP is urging the Judiciary and all relevant authorities to fast tract the hearing of all cases on appeals as justice delayed is denied.
[i] Lawyers Committee for Human Rights, What is Fair Trial: a Basic Guide to Legal Standards and Practice, London, March 2000
[ii] National Anti-Corruption Strategy, pp 26/27