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Bail Adjudication in Sierra Leone: Time to Confront the Elephant in the Criminal Justice System

January 25, 2016 By Ibrahim Tommy

Sierra Leone’s criminal justice system has come a long way, thanks in large part to support from Sierra Leone’s development partners. Since the end of the civil war nearly 14 years ago, the international community has done a commendable job of providing resources to support the justice system, including a total of at least $110 million provided by the United Kingdom’s Department for International Development (DFID) and the United Nations Development Programme (UNDP). A significant portion of the funds has been spent on training law enforcement officers, recruiting and providing top-up salaries for judicial officers, disposing of backlog cases, and providing logistical and technical support. The interventions are aimed at bringing about reforms and should be making justice more accessible to the vast majority of Sierra Leoneans. Unfortunately, the job is far from being done, especially with respect to the judiciary.

In addition to the paucity of personnel and the low level of funding to the judiciary, there is a widening public perception gap about the judiciary’s independence or lack thereof. This is bad for our democracy and disastrous for Sierra Leone’s long term peace consolidation efforts. This negative perception is, unfortunately, justified in many respects. Apart from the recent controversial decision in the matter of the State versus former Vice President (which arguably only made a bad matter worse), there are still unexplained delays in trials, prolonged pre-trial detentions, poor records and case management systems, poor access to court records, among many other challenges.

As grave as these challenges are, they could be addressed if the Sierra Leone Government invested a significant amount of resources into the judiciary. Funding to the judiciary has been increased by more than 100% for the 2016 fiscal year, bringing the total budget of the judiciary to approximately $1.7 million, but it is still far below what is truly needed to address most of the challenges confronting the judiciary. With additional funds, the judiciary can recruit more judges and open more courtrooms, recruit the full complement of staff needed by the Court Registry, including court stenographers, and set up functioning records and case management systems.

One of the biggest contributing factors to the negative perception about the judiciary relates to how bail applications are adjudicated. In addition to perceptions about undue interference by political and private interests, some of the bail conditions are so onerous that it sometimes takes days or weeks for the accused to fulfil them. There are also allegations that the court registrars make the process even more onerous by either asking for bribes or varying the conditions to make them stiffer. That’s unfortunate.

Bail, according to Black’s Law Dictionary 7th Edition, is “to obtain the release of (oneself or another) by providing security for future appearance”. It also refers to a security such as cash or a bond; especially security required by a court of law for the release of a prisoner who must appear at a future time. The right to bail derives from the principle that the accused has a right to be presumed innocent until proven guilty in a court of competent jurisdiction. This right is a basis for the “equality of arms” principle and it is fundamental for both common and civil law systems. It requires, inter alia, that when carrying out the duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged: the burden of proof is on the prosecution, and any doubt shall benefit the accused.

While judges  enjoy the power of unfettered discretion when it comes to adjudicating bail applications, both the Criminal Procedure Act 1965 and the Bail Policy of 2009 do not grant a cart blanche for such an unfettered discretion to be abused. Balancing the right of the victim to justice and the right of the accused to a fair trial, regardless of the alleged crime, should be the guiding principle in a criminal trial.

One of the worrying observations about the adjudication of bail applications is the onerous conditions that are set by the courts. Apart from the unintended effect of giving unjustified prominence to material/financial wealth, it makes it extremely difficult for the accused persons to meet such conditions. It usually includes a huge amount of money and landed property, especially in high profile cases (which in our context refers to matters in which the government takes particular interest). It’s a worrying trend, and it has become so bad that a High Court Judge in 2013 ordered that an accused who was facing corruption-related charges pay upfront Le50 million (approximately $9,000) into the Judiciary Sub-Treasury account as part of his bail conditions. Such a condition begs the question whether the Judge had concluded that the accused was guilty as charged: embezzling of public funds.

Accused persons applying for bail are also required to submit their travel documents to the courts,obviously to ensure that they do not flee the jurisdiction. While this is understandable, there are too many alleged abuses associated with this condition. Here are a few examples: Journalist Tam Baryoh was arrested and detained for several days in 2014 for offences that are still either unclear or unknown. He was later released on bail, but not before submitting his travel documents. Nearly two years on, his travel documents are still reportedly held by the court, even though that case has hardly been mentioned since he was released. If this sounds unbelievable, opposition SLPP politician Dr. Abass Bundu’s travel documents were submitted to the court as part of his bail conditions for charges relating to fraudulent transaction in Sierra Leonean passports. For more than a year since the matter was charged, the prosecution (the State) did not present a single witness, but the court wouldn’t dismiss the case and return the accused’s travel documents. The accused became ill, while his passport was in the custody of the government. His passport was later released on compassionate grounds in order for him to seek medical attention abroad.

To get a better idea of why the perception gap persists, it is important to draw a parallel between the above-mentioned cases and two others. Dr. William Konteh, the chairperson of the 50th Independent Anniversary celebration Committee in 2011, was indicted by the Anti-Corruption Commission (ACC) on charges relating to misappropriation of public funds, misappropriation of donor funds, and unlawful acquisition of benefits. He was later released on a Le100 million (approximately $18,000) bail bond. He was also ordered to hand in his travel documents to the Court’s Registry as part of his bail conditions. A few months later, Dr. Konteh travelled to the United Kingdom, and has never turned up for trial. That case seems to be almost dead. These examples somewhat support the perception that some who do not have legitimate cases to answer have their travel documents impounded, while those facing legitimate charges are allowed to travel. In 2011, there was an allegation of bigamy against one Pastor Abraham Johanese Williams of the Assembly of God’s Church. After he was arraigned before Magistrate Binneh Kamara, he pleaded not guilty and was granted bail in the sum of Le5 million (approximately $900). The matter has since been concluded.

It is the sum total of these experiences that often lead to the negative public perception about the judiciary and the conclusion that it is failing to fulfil its mandate. In January, while observing an alleged bigamy matter between Local Government Minister Diana Konomani and opposition SLPP politician Alie Kabbah, U.S-based lawyer Alieu Iscandari blogged about the way he was unimpressed with some of what he saw. He described the system as “freaking rotten”, suggesting that serious reforms were needed.  The accused in that bigamy case, Alie Kabbah, having been released on bail by the police, was twice denied by the Magistrate even though he had showed up in court when he was needed. There was no evidence before the court that he had interfered or could interfere with witnesses while he was on bail. After two unsuccessful attempts, he was released on some onerous bail conditions. There was no explanation, though, about what had essentially changed to necessitate the approval of bail. By law, the Magistrate did not have to explain, but for the sake of justice and the image of the judiciary it would have helped a great deal if the Magistrate had provided an explanation for his change of mind.

Much effort is required to help improve the image of the judiciary. To do so would require a genuine and sustained effort to confront the elephant in the room: bail. A committee set up in 2009 to recommend ways of improving the adjudication of bail applications observed as follows: “…The Committee was concerned that Magistrates were using the refusal of bail as a ‘weapon’ to punish accused persons”. Depending on whom you talk to, this seems to be the prevalent view even today. It is hoped that the bail and sentencing guidelines project, funded by the U.S Government through the UNDP, could help bring about a more transparent and accountable adjudication of bail applications. We know that laws or policies do not necessarily lead to positive outcomes. Implementation will be key and this is where the new Chief Justice can play a significant role moving forward. It is an opportunity for him to leave a positive imprint on the justice system as a whole. He can expect significant support from both local and international partners to address these issues.

*Ibrahim Tommy is the Executive Director of Centre for Accountability and Rule of Law – Sierra Leone.