Something To Think About
Attitudinal Change And The Judiciary in Sierra Leone
By Philip Neville Executive Editor
Nov 17, 2009, 08:28

Since the election of His Excellency the President, Dr. Ernest Bai Koroma into office in September 2007, there are signs that he may have invested a lot of energy and resources into trying to change the attitude of the citizens of this country from doing business as usual. Indeed the President highlighted that fact in his inaugural speech when he made a national call for a change of attitude in this country as the only way by which national development can be realized.

The President has demonstrated the importance of this concept by setting up a specific office within his office to promote the concept. A number of institutions appear to be heeding the clarion call for attitudinal change but there are some institutions that are so resistant to change and evidently make a mockery of the President’s call for attitudinal change. They just believe in doing things the usual old way and for them no matter what the President say, its business as usual for them.

The Judiciary may be one such institution that appears to be resistant to any sort of change. The Judiciary is resistant to changing its staff who are well past the retirement age, (Even when some have received letters requesting them to proceed on leave) resistant to changing the laws of this country from the archaic past, resistant to changing the legal procedures and the way it carries out its constitutional mandate, in fact they are resistant to anything except the receipt of donor funds from the UN peace building and JSDP. With all the funds at its disposal, one would expect the Judiciary to be a beacon of hope in this country particularly as it has been labeled by the Truth and Reconciliation Report as one of the institutions responsible for the decade long war which Sierra Leone experienced and which caused so much destruction to this country.

It is therefore surprising to see the same institution envying the leading role in resisting calls for attitudinal change and leading this country down the garden path towards another war by its actions which may border on outright injustice.

Recently, the Judiciary collected millions of Leones from JSDP as usual to launch what was referred to as a policy on bail. Less than a month after the launch of the bail policy, the Judiciary continued as usual to ignore the bail policy which had cost so much to launch in favour of granting and refusing bail upon the whims and caprices of some senior figures of the state. Bail continues to be probably “bought and sold” in the courts without a sniff of the anti Corruption Commission in sight. A number of Judges and Magistrates have been accused of corruption but despite their absence from the judiciary whilst investigations are carried out, it is business as usual.

One has to ask the obvious question as to whether those accused so far were the only or real culprits giving the judiciary a bad name. Only time will tell.

A case in point is that of the four persons who have been charged to court in the NATCOM case. It is recognized that the matter is in front of the court, but however there are serious issues surrounding this case and the Judiciary that needs to be aired and questions asked. Three of the accused persons were refused bail and one by the name of Sallia Fawundu granted bail, whose father Dr. Alfred S. Fawundu is the Chairman of the ACC Advisory Board and no reasons given by the Magistrate as to why he saw it fit to grant bail to one person and refused the other three accused persons charged with the same offence.

The question one may ask is why was only one person granted bail? Is that part of the bail policy? Did the prosecution play a part in the granting of bail to Sallia Fawundu? Did the DPP silently acquiesce to the granting of bail by not objecting to bail in respect of Salia Famundu, but objected with respect to the others on the instructions of the Attorney General and Minister of Justice, Serry Kamal? Is this not a case in point for the Anti Corruption Commission to launch an investigation into why the son of the Chairperson of its Board of Advisors was released whilst the other accomplices are still remanded in custody? In respect of these issues, a critical appraisal of the Bail Policy of the Judiciary is required in addition to the question of why the Judiciary is ignoring its own bail policy which was launched less than a month ago by no less a person than the Hon. Justice Tholla Thompson, JSC at great donor expense. 

The Chief Justice in her forward to the bail policy claimed that the bail policy will “ensure consistency, fairness and clarity when dealing with bail and compliance with constitutional provisions in particular section 17 which provides: No person shall be deprived of his personal liberty except as may be authorized by law”, Is granting bail to one person and leaving three in custody even though they are charged with the same offence authorized by law? Is such conduct consistent, fair and clear in line with the Bail Policy? The Bail Policy further confirms that bail is the right of every accused person and this policy has been endorsed by the Chief Justice as the official bail policy of the Judiciary.

Another issue highlighted in the Bail Policy is the failure to give reasons when bail is refused. The policy stated thus: “In all cases, in particular, when bail is refused, the judicial officer must give full reasons for such refusal”. Why did Magistrate Steven Conteh fail to give reasons for his failure to grant bail? Did he not understand the Bail policy or was there some interference in the granting and refusal of bail? The bail policy goes further to address other issues in this manner:

1.                  “We think that the Magistrate should be flexible enough to reconsider an application for bail when there is a change in circumstances from those existing previously when the accused was first remanded, even if the prosecution objects”.

2.                “We are aware that the prosecution’s objections usually weigh strongly with Magistrates, but we will suggest that bail must not be refused because the prosecution says so. There must be a valid reason for such a refusal.    

The bail policy also suggests that when granting bail, the passport of the accused may be surrendered to the court, or he may surrender title deeds of property or be required to report to a specified police station. Why did the remaining accused persons in custody not benefit from these conditions? Is there a sinister reason for keeping them in custody when there are clear grounds to grant bail even if they are foreign nationals?

These kinds of injustice are exactly the sort of injustices most time committed by the Judiciary that caused or forced the late Foday Sankoh to take up arms against the government, to the detriment of the nation. The so called Bail Policy has been disowned by the very Judiciary that launched it at great donor’s expense. But the question that must be asked is what use is a bail policy when the granting of bail has been determined by Parliament, the Supreme Law making body in the country to be governed by legislation? The Criminal Procedure Act 1965, section 79 determines the procedure for the granting of bail. Thus, the granting of bail is determined by law not policy or recommendations from a committee with no legal force.

It is clear to see that the failure to follow the bail policy by the Magistrate Court No.1 in the case of Stephen, An American Citizen, Victor Obile, a Nigerian and a Sierra Leonean named Gabriel renders the bail policy selective. One has to wonder why the Judiciary spent so much money on a Policy it has no intention of following for obvious reasons. The law on bail is simply 79 of the Criminal Procedure act 1965 and nothing else. The motives and timing of the bail policy being launched two years after the committee recommendation is clearly questionable and designed to give the impression of a Judiciary that is working, when nothing could be further from the truth. This Judiciary continues to be resistant to changes that would make Sierra Leone a better place.

All of this is compounded by the fact that the offences for which these men continue to remain in custody are not offences against the laws of Sierra Leone. Cyber crime has never been an offence known to the Laws of Sierra Leone and it is difficult to see how they intend to prosecute such offences when they lack the technical knowledge to investigate and prosecute such offences in the first place. The police decided to charge them with conspiracy. The question is conspiracy to do what? Conspiracy is an agreement to do an unlawful act. What is the unlawful act in this case when their actions may not be contrary to the laws of this country? We lack the mechanism to prove such a case and our rules of evidence do not permit such evidence of electronic devises to be used in a court of law.

What has troubled many people is whenever the Judiciary and other law enforcement bodies fail to carry out their duties effectively it is the individual person that suffers in order for this ineffective lot to continue to maintain their jobs. The case of the fish poachers is another example where people who had been fined minimal amounts and had their fines paid were re-arrested and had additional fines imposed simply because the political masters disapproved of the shabby manner in which the case was conducted. Whenever questions are asked by the executive, the usual response is simply to cause the victim to suffer an injustice in order to save their necks. This is not good for our nation and if President Koroma is really serious about the concept of attitudinal and behavioural change, he needs to ensure a restructuring of the Judiciary by making it less resistant to change.

If he fails to do that, the Judiciary would be his Achilles Heel come 2012 when all those who are the stumbling blocks in the Judiciary would continue to enjoy their contract salaries and their pensions and he would have been retired very early on a limited presidential pension. A word to the wise Mr. President, there are no contracts for ex-presidents or retired presidents unlike the Judiciary. Time to act Mr. President. Now!