September 9, 2020
In the past month or so, social media has been awash with hate speech some of which has been so incendiary that no less a person than the Secretary General of the ruling SLPP had to come out with a statement denouncing one of those audios and distancing, dissociating the SLPP from the utterances contained therein.
The Revolutionary United Front Party (RUFP) also came out with a statement asking for forgiveness and release from prison of their members who are currently serving jail terms in Rwanda. These prisoners were prosecuted, tried and convicted by The Special Court for Sierra Leone which was established by an Agreement between the United Nations and the Government of Sierra Leone. In the press statement, the RUFP relied heavily on the provisions of Article 1X of the Lomé Peace Agreement which addressed Pardon and Amnesty. The relevant provisions are quoted here:
The Lomé Peace Agreement was subsequently ratified by Parliament to confer the legality expressly requested in the above quoted section of the Lomé Peace Agreement. The leader of the RUF/SL Corporal Foday Sankoh was made Chairman of Strategic Minerals Commission with status equivalent to Vice President. The leader of the AFRC Johnny Paul Koroma was made Chairman of the Commission for the Consolidation of Peace. Impunity was amply rewarded.
But impunity rewarded always has the tendency to breed more impunity. Ten months later, the Agreement was in tatters when in May 2000, ordinary Sierra Leoneans, exercising the civil rights already granted to former combatants, were gunned down by security personnel, made up of ex RUF combatants, attached to the home of Corporal Foday Sankoh the RUF leader.
The Government of then President Ahmad Tejan Kabbah belatedly came to the realization that when impunity is rewarded it will rear its head again. On June 12 2000, President Kabbah wrote a letter to the United Nations Secretary General, late Kofi Annan asking the International Community to try those responsible for crimes during the Sierra Leone conflict. On 10 August 2000, the United Nations Security Council adopted Resolution 1315 requesting the Secretary-General to start negotiations with the Government of Sierra Leone for the creation and establishment of a Special Court. On 16 January 2002, the UN, represented by Hans Corell from the U N Office of Legal Affairs and the Government of Sierra Leone, represented by then Attorney General Solomon Berewa, signed the agreement establishing the court. Two days later the formal announcement of cessation of hostilities in the civil was made followed by the symbolic burning of arms in Lungi by President Kabba. I would also like to note here that, in my humble opinion, President Kabbah didn’t request for the establishment of the Special Court because of an overweening concern to seek accountability for the crimes committed against the hapless citizens of this country who bore the brunt of atrocities meted out by the various fighting factions in the conflict. His letter requesting the establishment of the court was unambiguous. He specifically asked for the establishment of a court “To try the leadership of the Revolutionary United Front (RUF) and their collaborators “. This was enough to include the AFRC as collaborators. In one fell swoop he would have got his own back on those who overthrew his Government and ease the pain of having to swallow the bitter pill of having to include them in his administration. Be that as it may, this was enough to satisfy some of us who were alarmed at rewarding impunity by the Amnesty provisions of the Lomé Peace Agreement and the subsequent Lomé Peace Agreement Ratification Act enacted by our Parliament.
The Special Court for Sierra Leone
Article 1 of the Statute of the SCSL spelled out the mandate of the court which was:
To prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing those crimes, have threatened establishment and implementation of the peace process in Sierra Leone.
Articles 2-5 referred to the crimes over which the Court had jurisdiction which were mainly crimes against international law. Article 5 was a sop to the hybrid nature of the court so was for crimes against Sierra Leonean Law. The special court didn’t proffer charges under Article 5 of the statute. This, again in my humble opinion, was deliberate by the Prosecutor so as not to embroiled in legal technicalities which would have arisen as a result of the Lomé Peace Agreement immunity provisions already ratified by an Act of Parliament. The proceedings and eventual outcomes of the prosecutions are now historical records so will not bore you with them.
This brings me back to the call made by in the Press Statement by the RUFP referred to earlier in this piece. In that Press Release, the RUFP made a call to President Bio to intervene and facilitate the release of their members from jail terms they are currently serving in Rwanda. Perhaps they haven’t taken a look at Article 23 of the Special Court Statute or, if they had, didn’t understand that Article. Article 23 of the SCSL Statute deals with Pardon or Commutation of sentences and this is what is contained therein:
“If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the Special Court accordingly. There shall only be pardon or commutation of sentence if the President of the Special Court, in consultation with the judges, so decides on the basis of the interest of justice and the general principles of law”
This is what is contained in the Statute of the Special Court. The President of Sierra Leone doesn’t have authority to interfere in the judicial functions of the Special Court and neither does he have authority to facilitate the release of ANY Special Court prisoner. For the edification of the RUFP, the Residual Special Court for Sierra Leone (also established by agreement between the UN and the Government of Sierra Leone to carry out the residual functions of the erstwhile Special Court for Sierra Leone including enforcement and supervision of sentences and prisoner welfare, among other functions) has what is called Conditional Early Release (CER). This can only be triggered when a prisoner becomes eligible to apply for Conditional Early Release after having served 2/3rds of his prescribed sentence, subject to approval by the President of the Residual Special Court. Moinina Fofana and Allieu Kondewa were the first to benefit and were released to serve the rest of their jail terms in communities of their choice and approved by the Residual Special Court.
In concluding, would like come back where I started from -hate speech and beating of the drums of way. I want to posit here that there is a nexus between the immunity (or impunity) provisions and the current state of uncertainty gripping the nation on security matters. I’m certain no right thinking Sierra Leonean would want this country to slide back to the carnage this nation endured during the civil war. But it would be delusional to assume it won’t happen again. The limited mandate of the Special Court and funding constraints which dogged its operations saw only the prosecution of the leaders of the fighting forces for international crimes. The Special Court, by any stretch of the imagination, couldn’t have been able to prosecute people for the crimes contained in Article 5 of its Statute. The Court would have been bogged down by legal challenges because all combatants have been absolved of responsibility for their crimes. The crimes in Article 5 of the Statute are all justiciable in our own courts, bar the immunity granted by Government and ratified by our Parliament. The combatants who actually carried out the atrocities for which the leaders were incarcerated are alive, well and strutting the streets, towns and villages in Sierra Leone. They walk around with impunity and are readily available for hire by anybody with the Political power or wealth to have them do their bidding. Most of them are among the ranks of the unemployed and more than willing to be hired as thugs and mercenaries. Perhaps we need to revisit the Amnesty provisions of the Lomé Peace Agreement, expunge it from our statute books and have it hang over these ex combatants as a sword of Damocles to keep them in check. After all the crimes of murder which they committed do not have a statute of limitation. Then, and perhaps only then, we will send out a clear and unequivocal message that impunity is well and truly over.
Impunity begets Impunity.