Global Policy Forum

By Nduka Uzuapundu

After a devastating civil war, Sierra Leoneans are presently going through a healing process, in the expectation that some of the grievous offences committed during the war, like chopping off the limbs of opponents, would be forgiven.

The healing process involves rehabilitation and provision of false limbs and medical care for the amputees by both the Tejan Kabbah administration and the United Nations. The country's Attorney General and Minister of Justice, Mr. Eke Ahmed Halloway, who was at the recent Abuja conference of the Coalition of African Jurists, told correspondent Nduka Uzuakpundu, in an interview, that while efforts were also being made to fight corruption, the stage was set, at the International or Special Court, to try individuals who bore the greatest responsibility for war crimes and crimes against humanity.

The arrangements so far made to that effect may not be entirely tidy, but truth is that Sierra Leoneans want peace and are desirous of putting the past well behind them. Halloway said that there was a snag though: those who have been pardoned by the Truth and Reconciliation Commission (TRC) - an exercise that is not recognised by the Special Court - may still be tried. And amputees of diverse shades, whose lot is quite a woeful spectacle, were demanding justice, he said, for the obvious injustice they'd forever have to live with.

Excerpts:

Let me start by asking you about your impression concerning the Coalition of African Jurists meeting on Law, Justice and Development held recently in Abuja.

It was a very worthy gathering. To my mind, it brought together so many jurists from different parts of Africa; people whom, otherwise, we won't have met and exchanged ideas with - ideas that would guide other countries in terms of law, justice and development. And we do hope that the present momentum would be sustained, so that it'll become a living thing.

For a country like Sierra Leone just coming out from a long period of civil war, of what relevance would you say is the Coalition's agenda?

It is relevant in that it manifests itself in the rule of law, because without the rule of law, there can be no peace or development. Given the rule of law, which the Coalition emphasises, we are bound to have development, at least not only in the legal sector, but also in the economic and social sectors. So, it's a guideline. Already we are on track, where we involve not only professionals, but also the civil society, non-governmental organisations etc. to take part in the dispensation of justice. That, of course, is in terms of paralegals i.e. non-lawyers. If we lay emphasis on the participation of these paralegals and other stakeholders, then, there will be a great development in the law itself, with special reference to reform - revision of laws that are relevant to economic development, peace and human rights.

Attempts are being made now in Sierra Leone to try those guilty of war crimes and crimes against humanity

The machinery is already in place. We call it Special Court, which is a mix between the international and national laws and procedures. The judges have been sworn in; the Sierra Leonean government appointed three of them - two at the appeal chamber and one at the trial chamber. The others were appointed by the United Nations. So, it's well on course. The infrastructure is well in place. Very soon, say, in May or June, they will begin proceedings - trying those who bear the greatest responsibility for war crimes and violation of human rights.

Where will the tribunal sit and who really are its members?

It's going to sit in Freetown. It's not like the one for Rwanda that sits in Arusha, Tanzania. The tribunal is made up of some judges, a registrar and a chief prosecutor, who is an American. The registrar is an Englishman. We also have Sierra Leoneans who'll be defence counsels and prosecutors at the Special Court.

May we know the foreigners going to sit at the Court?

There is Mr. Robertson Q.C., who's an Englishman of Australian extraction. Besides, we have two Sierra Leoneans - Jilaga King, who was in the Appeal Court in Banjul, The Gambia, and Justice Bankole Thompson, who is a professor of law, presently in Kentucky, in the United States.

How much of anti-corruption campaign is there in post-war Sierra Leone?

We have an anti-corruption act passed in 2001. We also have an anti-corruption commission. We are taking a first step against corruption via education, investigation and, where necessary, prosecution. But, as you are aware, you cannot wipe out corruption. You can minimise it. And, already, in our jurisdiction, we have prosecuted a judge - a high court judge whose name is Tajudeen, for corrupt practices, while adjudicating on a case. He has appealed. We have another one involving an income tax commissioner by name Mrs. Cummings. There are several other cases in the pipeline; about 22 of them. But, certain preconditions have to be satisfied before they are filed. Some of them involve small people like bailiffs, court clerks, policemen, and then, of course, big men, who are of political and social importance.

What is being done to fish out and punish those who have committed war crimes and crimes against humanity?

The Special Court is there, under the concept of trans-national justice, to deal with those who committed such atrocities as the amputation of limbs. We also have the Truth and Reconciliation Commission (TRC), where both victims and perpetrators, or, as may be the case, where one individual is both victim and perpetrator, are allowed to speak their minds freely. Thereafter, they find ways of reconciling and forgiving. The Court has started taking evidence in private.

Will those whose limbs were chopped off be compensated?

This issue is being looked into. It may not necessarily be monetary compensation, but one in kind. It could be special medical care, in the case of those whose limbs were amputated. In fact, there is a trust fund for that.

What is it called?

The TRC Trust Fund. It will take care of those disabled through amputation. There are other types of compensations, but the focus of the TRC is coming up with the truth and going through the healing process. Even running the TRC requires a huge sum of money. We've had to press this issue to have donors forthcoming.

Was it that donors were showing signs of fatigue?

The focus is on the Special Court, because the international body has its earnings. So, when the need arises, they know how to source the funds. The TRC is purely our own creation through the Lome Peace Agreement (LPA), where we say everyone is amnestied, unlike in South Africa, where amnesty came after the activities of the TRC. In our own case, we gave it in advance. And, so, there was not much interest shown by the international body to begin with. But, we have started on a promising note. We are showing the zeal to push the process through, having accepted the LPA. I think donors are now responding.

Was it good judgement, do you think, on the part of the Sierra Leonean government, to have offered amnesty to those who would have been found guilty of war crimes and crimes against humanity were they to face normal legal process?

It was a wrong step; most of us did not like it...

But you've accepted it

Well, and that's because we wanted to have peace. A lot of pressure was brought to bear on (President Ahmed Tejan Kabbah) by those who were there; just as it's been brought on the authorities in Cote d'Ivoire. From my own analysis, President Tejan Kabbah was not really in support of all that. He was compelled to accept it. We wanted peace and we've got it. It's just that there are pockets of injustice. Most of the people who have been amnestied are probably those who bear the greatest responsibility for war crimes. And this is where the fear now comes in; they are afraid to go to the courts, because if they go the TRC and open up on their war crimes, the Special Court will grab them. That's the situation for now. But, efforts are being made to allay this fear. That does not necessarily mean that they have made a clean break with the past. Therefore they will be good candidates or cases for the Special Court.

The Special Court seems to have an overriding jurisdiction such that it can, by an order, compel associations, units, courts etc. to reveal or surrender evidence to it. All this will have to be decided by the judges. If it's going to cause injustice, but then, they'll know how to regulate their procedures - as to whether or not they can comply with such orders. The international body, i.e. the United Nations, does not recognise the amnesty anyway. It says the amnesty is only for the Municipal or National Courts. They have made that very clear. Hence they took an active part in setting up the Special Court, which is an agreement between the Sierra Leonean government and the U.N., and not a court under Chapter 7, like the Arusha Tribunal, which can set up tribunal, committees etc. to deal with matters relating to peace.

Do you think all is now well in Sierra Leone, where the Special Court seems not to recognise the superiority of municipal law over international law in an issue such as TRC granting amnesty to those who deemed to have perpetrated war crimes and crimes against humanity?

Well, that's a peculiar situation., because questions have been raised as to whether the Special Court has supremacy over the Supreme Court of Sierra Leone, which is the last court of adjudication. If that is the case, will it not be in conflict with the Constitution, which is the basic law? These questions have been canvassed, but they wriggled out of it and said the Special Court was a hybrid: it's national and international, and so the very Constitution would not affect its function. But, as I see it, problems might still arise on preliminary point of law.

The fact that the Special Court has no jurisdiction in certain matters. So, where do you go to test it? You still have to go the Supreme Court to test the validity in point of law.

I doubt it because public policy demands that the Special Court should sit and do its duty.

And pass judgement on those believed to have committed war crimes.

Yes, because if you start to entertain such technicalities about the legal standing of Special Court, that's its end. Then, the exercise will be useless. We asked for it. As a matter of policy, not law, it could be said that the Special Court has jurisdiction. Such technicalities will only delay the trials.

The position of the Special Court would tend to erode the ultimate intent of the amnesty granted by the TRC.

No. The amnesty is basically for the Municipal Court. The International or Special Court does not recognise the amnesty, which is a provision of the LPA. So, it's not a case of erosion, but one of ignoring. For the Municipal Courts, the amnesty will be effective within a given time not going beyond 1996. But, if you committed any war crime after the LPA came into effect, you will be outside the province of the amnesty.

And there are many outside it.

Yes, like Foday Sankoh, the leader of the Revolutionary United Front (RUF). He was amnestied, but an incident happened when it was realised that he was about to stage a coup. He has been charged with murder and conspiracy to murder with a group of other individuals.

So, where does he stand within the Sierra Leonean legal system?

He's been charged to court. But, as I see it, they are holding charges preferred against him, because he is a candidate for the Special Court. Currently, we are waiting for them, but if they do not commence prosecution, we'll just carry on at the municipal court.

Is it your suspicion that the Special Court might convict Sankoh?

One will not say so yet, in that the Special Court is a body that applies both national and international laws. Besides, most of its judges are independent. So, one will not look at it from the point of view of the national court, which will have its own bias, particularly for the independent judges, who were affected directly or indirectly by the war atrocities perpetrated by Sankoh and his associates. It's possible he might be convicted. He might not. If he's convicted for, say, murder at the Municipal Court, the penalty will be death. The Special or International Court will not pass death penalty. What it will most likely do is to impose a life sentence of at least 25 years. It's better to go prison for so long than to be killed!

The conflicting positions of the Municipal and Special Courts on war crimes and crimes against humanity would seem to have polarised the Sierra Leonean society, I presume - and may not have helped the spirit of forgiveness?

Let me put it this way that you can only be tried in one court. If you were to appear before the Special Court, whatever charges would have been preferred against you at the Municipal Court would have to stay. If you were not, then you'll be tried at the National Court. So, prosecution continues and justice will be done. You are either acquitted or convicted.

Yes. Sierra Leone is peculiar in its ways. People have been sensitised and they are willing to forgive. But, you have a section of our population that says, "No peace without justice. No forgiveness without justice." Some say, "We will forgive, but we will not forget." There are yet some others who say, "We can only forgive and forget, if justice is done; if those who committed war crimes are prosecuted."

And so much is the obstacle, as it were, on the road to ultimate forgiveness.

It's so. But we have gone through a sensitisation process. Those who committed the crimes were Sierra Leoneans. It's possible they were misled, drugged or just driven into crime. But, in a situation like this, it is difficult to forgive, or even forget. But, again, a majority of the population is adjusting to it. There is the instance of social rejection where the amputees will not forgive or forget. They will bear grudges for as long as they live - with scar of injustice. They are the ones calling for punishment for those who have committed war crimes and crimes against humanity, in order to have justice done.

And they are quite a legion.

Quite a number of them. It's pathetic. It has happened. The government and the international body are trying what they can to rehabilitate them; not only to feed them, but also to see whether they can do jobs for themselves with false limbs. There is a social problem there.

Separation of power and constitutionalism

In the first phase of the on-going Fourth Republic, altercations between the three arms of government comprising of the Legislature, Executive and the Judiciary were the order of that era. Between the Legislature and the Executive, the wranglings were more rampant.

Vanguard Law and Human Rights observed that most of the fightings erupted because of the long absence of constitutional government within the Nigerian polity. For several years, the military with absolutely no respect for the rule of Law occupied the frontiers of power in Nigeria. The Head of state in alliance with his appointed military subordinates governed the country by combining both legislative and executive powers then.

With the coming of democratic rule on May 29, 1999, the three arms of government with explicitly stated constitutional duties became functional. While the executive and the judiciary arms have grown relatively over time, the legislature remains the infant amongst them. This reflected in the loggerheads that has been its lot in its relationship with the other arms of government. This to us does not augur well for good constitutional governance.

We are perturbed that there were disagreement between the three arms of government when there are clear evidence of duty specification by the constitution. The 1999 constitution of the Federal Republic of Nigeria in sections 4,5 and 6 specify the duties allocated to the legislature to include the making of laws; the executive is saddled with the execution and maintaince of the constitution while the judiciary is to interpret the laws whenever there is a dispute.

As the second phase of the fourth republic starts this week, we call on the three arms of government more importantly, the newly inaugurated National Assembly and the executive to sheath their swords in the interest of good representive governance.

We expect that the principle of separation of power as espoused by Barron de' Montesquieu in his Espirit de'law (spirit of laws) in 1948 should be allowed to prevail in inter-governmental arms relationship.

Beyond adherence to the principle of separation of power, there should be observance of the doctrine of checks and balances. The is to prevent the dictatorship and tyranny of one arm of government over the other.

Vanguard Law and Human Rights believes that the three arms of government must show constitutional investigative tolerance for this democratic experiment to move forward.

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