The Sierra Leone Judiciary and the Truth and Reconciliation Commission Recommendations: A case of motion but no progress?

On 29^th May 2102, the Sierra Leone Truth and Reconciliation Commikssion (TRC) website was re-launched with support from the Open Society Initiative for West Africa (OSIWA), after a long period offline due to financial constraints. That same week Charles Taylor was slammed a 50 year jail term by the Special Court for Sierra Leone. While the latter event was covered by major news outlets all over the world, the former was pretty low key, but in my opinion no less important. Going through the refurbished website, which contained the very detailed report of the commission, I was drawn to the ‘recommendations matrix’ which records progress on the implementation of the TRC’s recommendations. The report itself is a poignant account of the causes and course of the decade-long civil conflict as told by those who were lucky to be left alive, as well as a rousing call to action to prevent the recurrence of such a national calamity. As shown by the matrix, the pace of implementation is rather lethargic giving rise to accusations of apathy on the part of the government. The fact that the website was offline for a long time until resuscitated by OSIWA speaks volumes about national commitment to propagating the outcome of such an important process.  (Photo: Sonkita Conteh, author)

For someone working on access to justice issues, the findings of the TRC with respect to the failure of justice makes miserable reading even today, 8 years after the report was made public: ‘Institutions such as the judiciary… had become mere pawns in the hands of the executive. Corruption in the judiciary… was rife’.[1] ‘Lawyers and jurists in Sierra Leone have failed to stand up to the systematic violation of the rights of the people’.[2] ‘There is little or no meaningful access to the courts for the majority of Sierra Leoneans’.[3] In effect, the commission found that the judiciary shared responsibility for the outbreak of war in Sierra Leone- a very substantial indictment for an institution of justice.

In relation to the judiciary, the TRC put forward what it called ‘imperative recommendations’ which were intended to be acted upon immediately or ‘as soon as possible’ and in good faith. The commission called for the judiciary to discard laws or practices contrary to justice or which undermined the rights to liberty, equality and justice.[4] It also urged the judiciary to uphold the values that underlie an open and democratic society such as human dignity, equality and freedom.[5]

Ten years after the official end of the civil conflict, has anything changed at all, in the justice sector? There have certainly been several developments in the justice sector, due in part to the stout contribution of overseas development partners and local and international civil society organisations. A few more court buildings have been erected to cope with demand, some in rural areas; there have been a number of local and international recruitments to boost judicial manpower; a code of conduct for judicial officers has been adopted; a fast track commercial court has been established; a raft of legislation have also been enacted including most recently a legal aid act with more, such as a sexual offences law, in the works and a judicial training institute is also taking shape. The government has adopted a new Justice Sector Reform Strategy and Investment Plan 2011-2014, its blueprint for ‘bringing justice to the doors of Sierra Leoneans’, a previous one with similar objectives having expired in 2010. Has the cumulative effect of these developments translated into palpable improvements in the dispensation of justice by our courts?

Many will agree that in spite of these efforts at pushing through reforms, several critical challenges continue to beset the judiciary, which if not boldly confronted, will continue to situate the judiciary in the muck of our unpalatable recent history, causing it to lose the confidence of a public that it is meant to serve.

Foremost amongst these challenges is the issue of corruption. A 2010 national public perception survey on corruption[6] put the judiciary in the six topmost institutions where corruption is most prevalent. 75% of respondents also identified the judiciary as ‘being most responsible for the failure of the war against corruption’.[7] For many who have had contact with courts, the survey merely confirmed a long–held view that the judiciary has remained corrupt throughout the post-conflict period despite huge capital and other investments to reform it. The failure by the country’s Anti-Corruption Commission to prosecute two judges accused of involvement in corruption, even though one of them has repeatedly called for such prosecution and the controversial convening of a tribunal by the judiciary instead,  reinforces the negative public perception of the judiciary either as protectionist or simply ineffectual. Currently, the trial of a deputy registrar of the high court charged by the anti-graft body for corruption has not proceeded after the initial appearance apparently because someone within the judiciary is playing the role of ‘the godfather’. There are many reports of justices of the peace, magistrates and judges habitually urging litigants to give them incentives directly rather than secure the services of a lawyer. Reports also abound about judicial support staff demanding and receiving payments before they carry out their official functions. Unless bravely and coherently tackled, the issue of corruption will continue to blight the courts forcing many to resort to external means of resolving disputes.

The structure of the judiciary is hierarchical for good reason- to maintain a system of oversight. This however has not helped in ensuring that there is appropriate supervision across all tiers. Many of the courts, particularly the lower ones are painfully shambolic and unproductive. The situation is worse in rural areas where proper judicial management hardly extends. Presiding officers, particularly those on the lower bench routinely behave like part time employees commencing court sittings very late and only for a few hours while litigants and lawyers would have been waiting for hours. The unlucky ones, mostly those without lawyers endure repeated adjournments or lengthy detention until they become disinterested or disillusioned. Now, plaintiffs cynically remark that the reason they take disputes to court is merely to waste the other party’s time rather than seek justice. When they do sit on matters, judicial officers often do not conform to rules of procedure or wield their enormous powers capriciously, especially in relation to bail. A certain judge is cited as being averse to recording court proceedings in the usual long hand; as a result lawyers find it difficult to for instance ‘perfect’ orders based on his pronouncements in court. This usually leaves them and litigants alike ‘high and dry’. In criminal matters, accused persons especially those that are not represented by counsel spend inordinately long periods in detention without their cases being heard on the merit. Presently, a certain court in the rural areas has over 100 cases awaiting trial on indictment due in part to the judge’s very irregular schedule. Most of the accused persons are in detention and some, because of overcrowding, have had to be transferred to another jail, notorious for its terrible conditions. Supervision is essential to ensure consistent performance over time and judicial officers must be accountable for how they spend their time. By adopting a laidback attitude to work, they are essentially denying justice to those seeking it. Besides, there are serious moral questions to be asked of a judge or magistrate who gets paid by taxpayers for doing little or nothing.

A communal criticism from the lower bench directed mostly at senior officers has been the latter’s penchant for interference in court proceedings at the lower level. Magistrates’ courts are the work horses of the judiciary dealing with both criminal and civil cases on appeal, at first instance or as preliminary investigation. It is not uncommon, reportedly, for a magistrate to be telephoned by superiors, while presiding over a case in court and given instructions. Often, this will be about whether or not to grant bail to an accused. Failure to comply with such instructions can attract censure in the form of reduced case docket or constriction of available opportunities. Needless to say that such a practice denigrates the principle of independence that should characterise judicial existence. The judiciary should not just be independent from the other arms of government, its judges and magistrates should also be free from interference from their superiors. Pulling rank on a magistrate to take a particular line of action not only affects the fairness of the proceedings, it also undermines the presiding officer’s self-confidence. Meddling should give way to monitoring.

The adversarial nature of our legal system requires that judges and magistrates exhibit both neutrality and fairness in proceedings. They should be dispassionate and non-partisan, swayed only by compelling evidence and arguments. These traits inspire confidence in even unsuccessful litigants about the even-handedness of the process and positively influence public perception of the judiciary. Increasingly however, there have been reports of legal practitioners developing unwholesome relationships with magistrates in particular, to gain an unfair advantage in matters before their courts, mostly in exchange for money. Many magistrates are quick to point out that theirs is not a well-paid job, but that is certainly no excuse for such a dishonourable conduct. Lawyers who thrive on such ignominious practice may not need to work hard to earn a living in the short term, but eventually, word does get out to the public and their long term practice is jeopardised. Legal malpractice complaints to the law practice regulatory body have also risen sharply, with lawyers being variously accused of misdeeds such as tampering with or misappropriation of clients’ funds, conflict of interests and negligence. The general reluctance of lawyers to represent clients wishing to bring legal action against their transgressing colleagues and the perceived inability of the regulatory body to act robustly nurtures the wrongly but widely held belief that lawyers are above the law. That 70% of respondents in the perception survey voted lawyers as the most corrupt professionals is therefore not surprising.[8]

The Sierra Leone constitution and myriad international human rights instruments guarantee the inherent dignity of everyone irrespective of their status. They also enshrine the principle of presumption of innocence, which means that a person accused of a crime is presumed to be innocent until his guilt is proven. A disturbing observation and a clear cause for concern is the sometimes discourteous treatment of litigants, witnesses and accused persons by both judicial officers and lawyers. Magistrates fail to protect them from the coarse goading of lawyers who mask their inability to properly examine witnesses in insult. Regrettably, magistrates have been observed joining in ridiculing witnesses especially in sexual offences cases. Accused persons in detention, and without legal representation, fare worse. Their cases often get called up last only to be postponed, perpetuating a constant pattern of fruitless court appearances and continued detention. During proceedings accused persons are at the mercy of uncivil lawyers or terrifyingly powerful presiding officers. A certain magistrate in the provinces once threatened to imprison an unrepresented accused for two years because he dared to raise his hand in court for permission to apply for bail. The accused had been told in jail that he had a right to speak in court and apply for bail. Clearly the magistrate had a different understanding. That same magistrate also reportedly sentenced an accused to a term of imprisonment without any plea or evidence. For many, contact with the formal justice system is a traumatising experience in which presiding officers and lawyers play an unenviable part.

So, 8 years and lots of investments later, is the judiciary still a pawn in the hands of the executive? Is corruption still rife in our courts? Are lawyers still failing to stand up to violations of rights? Is there meaningful access to courts for the majority of Sierra Leoneans?  There certainly will be many different and probably no definitive answers depending on who one asks. A favourite refrain of judiciary apologists is that the courts are ‘a work in progress’ pointing to the various developments mentioned earlier. Others claim that 10 years after the end of the war, access to justice is in a sorrier state now than it was before. Whatever view one might adopt, one thing is however certain- public confidence in the judiciary and lawyers is currently at an absolute low and this is as clear a barometer of progress in the judiciary as one can hope to get. Something more profound than an image repair is urgently required to turn the tide of public perception and rebuild confidence in the judiciary as independent and impartial forum where ordinary people can get justice. The resuscitated TRC website nevertheless provides an opportunity to, be reminded of the challenges of our troubled past, measure present actions and hope that in our lifetime, things might so improve in the judiciary as to command a volte-face in public opinion.

By Sonkita Conteh Esq.

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