From the Editor’s Keyboard

It’s not Over Yet

7 July 2006 at 05:35 | 315 views

"If the Appeals Chamber approves Mr. Norman’s appeals for the Kabbah subpoena and Carpenter’s appearance, and if Gen. Mohamed is able to travel to Freetown in September, the trial will likely end with a big bang."

Commentary

By Alfred Munda SamForay, Guest Writer

Norman Appeals Kabbah Subpoena Decision

Counsels for Chief Sam Hinga Norman and Mr. Moinina Fofana have a filed an appeal with the Appeals Chamber of the special court for Sierra Leone on the recent decision by the Trial Chamber. The Chamber in a two to one majority decision ruled on 13th June, 2006 that President Kabbah cannot be forced to testify as a witness for the Defence as requested in the motion for subpoena ad testificandum submitted by Mr. Norman and Mr. Fofana through Counsels.

On 28th June, the Trial Chamber in a unanimous decision granted the defence leave to take the matter to the Appeals Chamber. The Trial Chamber presided over by the Chamber’s lone Sierra Leonean, Justice Bankole Thompson, ruled among other things, that “the novel nature of this issue and the likelihood that it will be raised again in the case and other cases before the court together with the diverse legal perspectives from which it can be viewed...it would be in the interests of justice to have this matter determined by the Appeals Chamber.”

The Chamber also appears to have been conscious of the fact that it may have erred in their decision not to issue the subpoena and added “if the Chamber wrongly determined the novel question before the Special Court, it may have unduly impinged upon the right of the First and Second accused...”.

From a layperson’s perspective it appears that the court was not at all sure about the legality of its own ruling. As a result, the Chamber put out not one opinion, but three separate opinions on the matter: The majority opinion, the separate but concurring opinion by Cameroonean jurist, Mutanga Itoe, and a separate and dissenting opinion by Justice Bankole Thompson.

In his opinion Thompson states, “There is nothing problematic about statutory powers to issue a subpoena, nationally or internationally.” Thompson admonished his colleagues “to ensure that no relevant evidence vital to the discovery of the truth is foreclosed by reason of legal technicalities, novel artificial, judicial conceptual distinctions or outmoded judicial doctrines not contemplated by the plain and ordinary meaning of the applicable statutory provisions and rules.”

Indeed the request for a subpoena and the basis of the subsequent appeal is that Mr. Kabbah is in possession of relevant exculpatory material which will not be obtainable elsewhere should Kabbah not appear as a defence witness. Based on the legal uncertainty of the court’s ruling and the relative speed with which it allowed the defence to appeal, it appears to this writer that the court was actually urging the defence to take the matter off their hands and take it to the Appeals Chamber.

The main argument of Attorney General, as legal Counsel for Mr. Kabbah was that Section 48(4) of the Sierra Leone constitution grants Kabbah immunity from all legal procedures. Counsels for Norman and Fofana argued and Justice Thompson who was appointed to the court by Mr. Kabbah, agrees that being a witness does not by itself constitute a legal procedure as intended by Section 48(4). In any case, the statutes of the court do not grant immunity to Heads of State by virtue of their office or position. Section 48(4) of the constitution, according to Counsel for Mr. Norman, Dr. Bubuakei Jabbi, only applies to legal procedures in Sierra National courts where Mr. Kabbah is Chief Magistrate.

The intent of Section 48(4), one would also argue, would be to prevent the judiciary from trampling over the Executive Branch in violation of the doctrine of separation of powers. But this doctrine will not apply to an international tribunal not subject to the national constitution. Indeed Kabbah himself had argued vehemently that with respect to the so-called special court for Sierra Leone, that there were no sacred cows. But perhaps that was before Mr. Kabbah realized that Chief Norman and Mr. Fofana would defend themselves by any means necessary to restore their integrity and their freedoms including calling Mr. Kabbah as Defence Witness No.1.

The trial resumes on 13th September with or without Mr. Kabbah. Besides Kabbah, Norman has two more uncertain witnesses: Clerk of the House of Representatives, J. A. Carpenter, and former ECOMOG Chief of Staff, General Abdul Wan Mohamed. Carpenter is expected to testify to parliamentary procedures authorizing the establishment and funding for the CDF at the request of President Kabbah.

But the court had put a stumbling block before Carpenter’s appearance on purely procedural grounds. Norman has taken that too to the Appeals Chamber. Gen. Mohamed who resides in Nigeria has indicated his willingness to appear as a witness but was hampered by medical reasons from appearing before the end of the June session of the trial.

If the Appeals Chamber approves Mr. Norman’s appeals for the Kabbah subpoena and Carpenter’s appearance, and if Gen. Mohamed is able to travel to Freetown in September, the trial will likely end with a big bang. The ECOMOG commander is expected to testify to transactions between the West African military command and President Kabbah including but not limited to authorizations to bomb civilian targets in Freetown and the transfer of arms and ammunition to Mr. Norman and the CDF..

Immediately following those witnesses, the court and the rest of the world will hear the statement we have all been waiting for the past three and half years: If it pleases My Lords, the Defence rests.

Photo: President Kabbah, under pressure.

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