Defense counsel challenges eligibility of Judge Advocate
By Alusine Sesay
The defense counsel in the just commenced court martial trial of 14 military officers charged with alleged mutiny has strongly challenged the eligibility of the Judge Advocate to preside over the said matter.
Julius Nye-Cuffi, Esq., citing section 135 of the Constitution of Sierra Leone 1991 in entirety, sought clarification with regards the eligibility of the Judge Advocate, noting that there was no document to show the latter’s qualification and how he was appointed to preside over the court martial.
“We are raising objection as to your eligibility as the Judge Advocate. There is no document in front of us to show your qualification and how you were appointed as Judge Advocate, therefore we seek your clarification,” he said.
Judge Advocate Otto Y. During, who is expected to preside at the slated sixty sittings court martial, is reported to be a serving magistrate in Kono.
Although the objection was directed at the Judge Advocate, Mr. Otto Y. During, the prosecution, led by Principal State Counsel Gerald Soyei responded, referencing the provisions of the Armed Forces of the Republic of Sierra Leone Court Martial Procedure Rules of 2003.
He cited section 31, rule 20, paragraph ‘A’ and ‘F’ of the Court Martial Procedure Rules of 2003, which he said pertains to the duties and powers of a convening officer in respect of convening a court martial.
He said the Chief of Defense Staff (CDS), as convening officer of the court martial and subject to paragraph ‘F’ of the aforementioned rule, deemed it fit within his powers and took necessary steps to appoint the Judge Advocate to preside over the court martial.
“The court martial is open to the CDS to appoint the Judge Advocate without reference to the Judicial and Legal Service Commission or without the Chief Justice. There are no criteria as to how he should appoint the Judge Advocate,” he argued.
He said the instrument or warrant of appointment of the Judge Advocate was duly signed by the CDS and that accordingly, once rule 20 (A, F) is satisfied and an oath taken in public, such “gives you (Judge Advocate) the unfettered jurisdiction to sit during the pre-trial and subsequent proceedings of the court martial.”
He was in agreement with his learned colleague though that the constitution is the supreme law of the country, but can only be applied when it is not repugnant with common sense, thus positing that section 135 does not apply to a court martial.
He submitted that in the interest of public policy and justice, the CDS signature or endorsement of the convening order should not be challenged in the matter.
“We have public policy considerations and the issue in evidence whereby, I invite you to hold that as a matter of public policy, the defense should not go beyond those documents,” he submitted.
He further argued that section 135, subsection 3, paragraphs A, B and C of the 1991 Constitution refers to the Supreme Court, the Appeals Court and the High Court respectively, and not the Judge Advocate or the Court Martial.
“There is no reference to the judge advocate or the Court Martial, hence the CDS’ justification to himself appoints a suitable person to act as Judge Advocate,” he said.
The Principal State Counsel also argued that it has been the practice to borrow someone from the judiciary to act as judge advocate, but that such practice is not binding, hence the constitution does not condemn such.
However, the lead defense counsel, Julius Nye-Coffi responded that the argument of the prosecution in respect of declaring the 1991 constitution as nugatory does not amaze the defense, and that the prosecution should either accept the constitution in totally or reject it in entirety.
He said the defense relied on section 171, subsection 15 of the constitution, which is the preeminent provision of the 1991 constitution and that section 31, rule 20 of the Armed Forces of the Republic of Sierra Leone Court Martial Procedures is subject to the constitution, and contravenes section 135 of same. “We are challenging your (Judge Advocate) appointment with due respect,” he said.
He said the court martial is equivalent to the High Court and that the appointment of the Judge Advocate should be in line with section 135 of the 1991 Constitution, hence “You (Judge Advocate) should exclude yourself from this court martial.”
Having listened to both submissions, Judge Advocate Otto Y.During ruled in favour of the prosecution, noting that the 1991 constitution does not make mention of the appointment of a Judge Advocate to preside over a court martial.
The defence gave no indication as to whether they will challenge the sticky legal issue in the Appeals Court.
Also, the defense applied that the accused be relocated to the Military Custodian Center at Wilberforce Barracks, being military officers.
The men have been incarcerated at the maximum security prison at Pademba Road since August 2013 when they were transferred from Teko barracks in Makeni, allegedly for plotting a mutiny.
Again, the defence team made an application to the Judge Advocate for the accused to be granted right of visitation by their relatives and access to personal effects, a right they had been denied since they were held in detention, more than six months ago.
The prosecution objected to both applications, noting that the Pademba Road prison is well secured, and that the 14 accused persons should not be relocated to any other location because the offences they are charged with are grave. He said some of their personal effects might be used as evidence in the trial, hence should not be restored to them at the moment.
The Judge Advocate ordered that the men are entitled to visits by their family members, but should remain at the Pademba Road prisons, while their personal effects remain withheld until the end of the trial.
Meanwhile, four other military officers are still in custody at the Pademba Road prison, as they are yet to be charged, despite being arrested together with the 14 whose trial began yesterday.
Though not before the court martial, the defense team pleaded that they be released from custody since the state has failed to proffer charges against them, but the Principal State Counsel Gerald Soyei again objected, noting that the men should remain behind bars, albeit adducing no reason for their continuous incarceration.
The Judge Advocate noted that he cannot order their release since they were not before him.
The matter continues.