Accused persons have no access to salaries
By Alusine Sesay
While being tried in a court martial on charges of alleged mutiny, relatives of fourteen soldiers, including a captain, have been denied access to their salaries, almost ten months after they were arrested and detained.
Consequently, all but one of the accused soldiers are represented by a defense team retained by the Ministry of Defence, MOD, although the latter has boycotted three consecutive sittings due to delays in the disbursement of their legal fees.
With the conspicuous absence of the MOD assembled defense team at the court martial yesterday, private defense counsel representing the 14th accused – Captain Prince Sesay – Robert. B. Kowa applied that family members of the accused be allowed to access their salaries, in a bid to enable them meet their daily needs.
“These (the accused) are family people with responsibilities to maintain and take care of the welfare of their families. Some have school going children who one may not want to see moving about the streets gambling or prostituting to earn their living,” he pleaded with Judge Advocate During, and added “It is but considerate that they be treated as still in the payroll and I am of the view that at this stage only their liberty is being restricted.”
He said the oath taken by the Judge Advocate was not only to try the accused, but to dispense justice and that dispensing justice brings into focus a number of issues, noting “It is the duty of the court to ensure that whatever may derail the course of justice must be dealt with, hence consequentially fall within the jurisdiction of the court to order access to the accused persons salaries by their family members.”
He said the accused persons, who are yet to be proven guilty, are being incarcerated while at the same time their salaries are withheld. “Are they being punished before they are tried?, he rhetorically asked, and pleaded with the judge to allow them have access their salaries and any other benefits due them, as they should be treated humanely.
Because the defense team has boycotted proceedings three times consecutively, Kowa, Esq. further submitted that “The second limb of my application is for direction to the state that there are some of the accused who in the interest of justice and fair trial must be provided with counsel to ensure that they are well represented in court.”
He added that they may be denied justice if the trial is delayed because the men cannot afford to retain the services of lawyers, nor the legal mind to challenge issues that may be raised during the proceedings.
However, Principal State Prosecutor Gerald Soyei objected to the defense application noting that “The charges before you are in principle the issues you were invited to determine. Salaries are accordingly extraneous that the issue is an issue for the administrative machinery and not this court. With respect, you are neither the Accountant-General, deputy, pay nor quarter master.”
He argued that there was no documentary proof concerning payment or non-payment of salaries to the accused persons and that “It is impossible for you to appreciate as to who has not been paid up date. You have no jurisdiction to grant order for the payment of salaries. Your oath has an ambit to try the accused persons and not to determine their salaries.”
In respect of the legal aid service, he said: “I agree that in the light of common humanity, legal aid should be provided for all accused persons but the Legal Aid Act does not impose an absolute duty on the government or the state to provide legal services for the accused persons,” in particular, when taken into account the resources of the state on the issue of legal fees charged by their legal representatives, while legal aid is not automatic.
“If the state has no discretion in granting legal aid, then it is open to a floodgate of unreasonable charges or fees imposed by the solicitors of the accused persons. In the context of legal aid, the state has discretion to provide solicitors for accused persons,” he opined.
He noted that if the Judge Advocate agrees that providing legal aid is mandatory for the state, such would be a bad precedent to the extent, “without prejudice to these accused persons, that all sort of criminals would commit offences at their whims and caprices. It is an enormous burden to make it mandatory for the state to provide legal services.”
He concluded his argument that qualification for legal aid has criteria, which includes employment, length of service and the savings of the individual accused.
While giving his ruling, Judge Advocate Otto During said: “Though I agree with the prosecution that it is not mandatory for the state to provide them legal aid, but it has been a practice more especially offences of mutiny and murder. It is all but fitting for government to provide legal service for the accused persons.”
On the issue of their salaries, he said, he would not order access for now since the trial was yet to fully commence.