The Constitution of Sierra Leone, 1991, provides, amongst others, fair trial rights that should be granted to every individual who is alleged to have fallen foul of the law. Whereas Chapter III specifically provides for the protection of basic human rights and freedoms of individuals, the Criminal Procedure Act, 1965, which is the main legislation on criminal proceedings in Sierra Leone, outlines arrest, interrogation, pre-trial and trial procedures that should be followed during criminal trials for all individuals. These rights and procedures are very important and that they can only be abrogated where the interests of justice so require. Other instruments such as the European Convention on Human Rights and the African Charter on Human and People’s Rights also provide for the protection of fundamental rights of individuals at all stages when in conflict with law. Amongst the many rights guaranteed by both national and international instruments, three rights- the right to be presumed innocent until proven
guilty in a competent tribunal established by law; the right to be tried within a reasonable time or to be released from detention; and the right to a counsel or legal assistance will be the main thrust of this article. The reason for my ‘bias’ in dealing with these rights in particular is to help lay bare the uneasy facts that I have come to terms with during my monitoring visits to the High Court sitting in northern part of Sierra Leone.
Every individual charged with an offence has the right to be presumed and treated as innocent, unless and until they are proven guilty according to law in the course of a fair trial. This right is guaranteed by Section 23(4) of the Constitution of Sierra Leone, 1991. It is also guaranteed in Article 14(2) of the International Covenant on Civil and Political Rights; Article 7(1)(b) African Charter; and paragraph 2(d) of the African Commission Resolution on fair trial rights. In addition, Article 6(2) of the European Convention on Human Rights guarantees the presumption of innocence in criminal proceedings. However, it applies only to a person who is subject to a criminal charge and does not therefore apply at the investigation stage. The right to be presumed innocent until proved otherwise requires that judges, juries and all other public officials refrain from pre-forming opinion about any case before them. The right to a presumption of innocence also means that the prosecution must prove the accused person’s guilt beyond a reasonable doubt.
The other is the right to be tried within a reasonable time. The reasonable time provision is designed to prevent a person charged from remaining “too long in a state of uncertainty about his fate.” It is therefore directed primarily towards excessive procedural delays in the conduct of a prosecution, including any appeal. The reasonable time guarantee runs from the moment that an individual is subject to a “charge” within the meaning of the relevant statute. This is taken to be the time when the defendant is “officially notified” or “substantially affected” by proceedings taken against him. The Constitution of Sierra Leone, 1991 guarantees this right in Section 23(1). Also, Article 6(1) of the European Convention on Human Rights guarantees the right to trial within a reasonable time.
Lastly, is the right to legal assistance to indigent persons accused of a criminal charge. According to Article 14(3)(d), a person charged with a criminal offence has the right ‘to have legal assistance of his choosing assigned to him, in any case where the interests of justice so require’. The right to choose a counsel means that the accused will have the opportunity to choose freely. Article 6(3) of the European Convention on Human Rights generally guarantees certain rights necessary for the preparation and conduct of defence. The accused might choose to prepare his defence himself (the right to defend oneself), or to apply for legal assistance. Article 6(3)(c) provides the accused with the right to ‘defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. The guarantee protects the person charged with a criminal offence from inadequate representation of his interests on both pre-trial stage and court proceedings. The guarantee of a legal counsel is supplemented by the requirement of an adequate counseling. This means that the person providing the legal assistance must be professionally qualified to do so according to national law.
However, notwithstanding these elaborate provisions that are sanctioned in national, regional and international instruments, their actual application in the day-to-day administration of justice remains worrying particularly in the north of the country. Several cases abound in this area where the Court stands ‘accused’ of under utilizing the provisions of fair trial rights to the detriment of those alleged to have committed offences against the state. The frequent adjournments of cases is greatly hindering the quick dispensation of justice which invariably violates the accused right to be tried without unwarranted delay. Most of the cases that are committed to the High Court go through series of adjournments often for trivial reasons from the prosecutors and court officers. An instance to underscore this fact is that Foday Turay and Abdulai Kamara, both separately charged with murder offence, have had their cases adjourned for over 150 and 100 times respectively; while they remain incarcerated. And the main reason for such adjournments has been due to the fact constituting the jury has been a huge challenge for the Court. Most of those that often do jury duty are engaged in other activities where they earn a living and so prioritize. As such, when their activities clash with jury duty, it is the jury duty that they forego; with its attendant consequences on the criminal justice system-where there are no jurors to preside, or where the panel is not duly constituted, the Court cannot proceed thereby ensuing delay in trials.
Also, the lack of legal representation has become a cog in the wheel of justice in the north of the country. The majority of murder cases for instance that do come up for hearing in the Court are frequently adjourned because of this malaise (lack of legal representation). A clear example is that of Foday Turay and Abdulai Kamara, both alleged of have committed murder in the Tonkolili District. These accused persons have not been represented or rendered any legal assistance since their cases were committed to the High Court on the 26 January 2009 and 27 March, 2009 respectively. In fact, since 2010 to date, very few murder cases have had legal representations in the Court, thus warranting unending adjournments. In instances where a few are represented under the legal aid scheme, the lawyers make infrequent appearances in Court. Perhaps they consider the remuneration for their service too small to cover all expenditures throughout the trial process and thus prioritize cases where they have affluent clients. This lack of legal representation in murder trials is a contributing factor to overcrowding at the Makeni state prison.
From the foregoing, it is plausible for one to think that the dispensation of justice in the north of Sierra Leone is not in tandem with modern best practices in the criminal justice system. It leaves one with the impression that the Court has passed judgment on the accused persons as “guilty as charged;” even before they are put on trial. Put in another way, they have already been placed at a substantial disadvantage vis-à-vis the prosecution. The frequent adjournments and lack of legal assistance undermines the principle of equality of arms. And there is also a close relation between the principle of equality of arms and the presumption of innocence. The closeness of these two concepts consists in the fact that a person considered innocent until proved guilty beyond a reasonable doubt shall have equal procedural rights as the prosecuting authority.
In concluding, the buck stops with the Court in addressing the mirage of inadequacies currently clogging the criminal justice system. Presumption of innocence of accused persons, unwarranted delays in trials and lack of legal counsel for indigent accused are all genuine concerns for the Court. This is a litmus test for the Court to demonstrate its statutory obligation of dispensing “quality and accessible justice to all” in the northern region. It should make it abundantly clear to all that the Court is a court of justice; and not a court for the mighty and powerful in society. And that the inability of any party concern in a trial should not inhibit the enjoyment of rights of the other party; and that where such is the case, the Court will decide accordingly in the interests of justice.
