Dear Honorable Parliamentarians:
Throughout Sierra Leone’s history, each generation of leaders has had to respond to the clarion call to do what is right for the country’s future. Three years from now, Sierra Leone will celebrate the 110th anniversary of its stance against taxation without representation. When the Hut Tax was imposed in 1898, Bai Bureh, Nyagua and Bai (Beh) Sherbro led the people to resist the illegal colonial imposition. Also, this year marks the 50th anniversary of Marcus Grant leading the people to protest slave-like wages. On February 11-12, 1955, the Artisans and Allied Workers Union and the Transport and General Workers’ Union went on strike to demand a wage increase of 10 pence per day when the government’s violent response triggered riots. While historians may quibble about the effectiveness of these actions, no one would deny that they gave testimony to the nation’s loyalty and character.
Today, the trumpet summons this generation’s leaders to do what is right to ensure a safer and better future for Sierra Leone. The call is for the country’s parliamentarians to pull out of the United Nations deal that created the Special Court of Sierra Leone, as Parliament is the only body in the country that has the authority to do so. There are at least six reasons that make it imperative for the country’s parliamentarians to respond to this call.
First, the Special Court has demonstrated that it is incapable of understanding the world of this specific conflict and has, therefore, attempted to manipulate the process to suit its self-ordained mandate. "No peace without justice" and "No one is above the law" are two phrases popularized by the Special Court. Considering former breakdown in the rule of law in Sierra Leone, these slogans gained ready acceptance. As is the case with slogans, the euphoria they generated diverted attention from their efficacy against the social reality in Sierra Leone. The fact that these slogans came out of the mouths of officials of a quasi-United Nations organization accompanied with a massive architectural monument, they built the expectations that never again will there be injustice in Sierra Leone. It was not significant that there is no inextricable connection between peace and justice, and that claims about positive connections amount to intellectual fraud. It did not matter that the slogans politicized justice and open the possibility of corrupting justice itself. They border on intellectual dishonesty, fraud and deception to deliberately exploit the craving for peace with promise of justice from an institution whose foundation did not respect a basic need for justice¯i.e. transparency.
Second, the Special Court is, as is often emphasized, a product of an agreement between the Sierra Leone Government and the United Nations to address serious violations during the Sierra Leone conflict. Sierra Leone, up to the date of the agreement, was not an oligarchy. It had a Constitution and an elected Parliament. The Constitution clearly stipulates conditions to be fulfilled before a treaty or agreement is introduced into the body of law. This is more so the case when the treaty or agreement introduces changes within the Constitution itself. The Special Court agreement changed the judicial system’s hierarchical structure and also deleted the clause that protected the Head of State from arrest. Under these conditions, the Constitution stipulates that the agreement be preceded by two Gazette publications separated by nine days, a referendum, and parliamentary debate. These requirements were never followed, amounting to a blatant disrespect of the law of the land. The bill was introduced to Parliament a few days before Parliament was dissolved for elections and no referendum was conducted. Parties entering into a contract have to establish that the other party is qualified and authorized to be a party to the contract. With respect to Sierra Leone, the authority comes from the Constitution. Letters of invitation from the President, negotiation involving the Attorney General, and the President’s signature are not enough to subvert the will of the people. It is clearly evident that with respect to the Special Court agreement, parliamentary procedures were not respected; the Sierra Leone Constitution was defiled, and the people were denied their right of having an input into the formulation of laws of their land. The precedence established by the executive branch of government and the United Nations is inimical to establishing justice, upholding respect for the rule of law, and protection of human rights.
Third, characterization of the Sierra Leone war as purely a war for diamonds ties the war to terrorist movements. To many people, this Americanizes the war while at the same time it displays insensitivity to the Sierra Leone experience. The near obsession with the pursuit of Charles Taylor, which is both legal and justified, to a point where the Chief Prosecutor is claimed to have "showed scant respect to the combined goodwill of those (West African) leaders and the peoples they represent" has not helped to diminish the perception. The structure of the Special Court is such that the Chief Prosecutor has the sole discretionary power to define what constitute a crime, the category of people to be indicted, selecting and interpreting incidents and events that will serve as evidence, and prosecute the accused in front of judges. This model is susceptible to deliberate manipulation and it has the tendency of delivering "justice" that is at variance with society’s norm and value system. The manipulation aspect could be derived from the Chief Prosecutor’s characterization of the war and America’s enthusiasm to see the realization of the court and that the prosecuting team is headed by an American. America’s open opposition to the International Criminal Court (ICC); and its advocacy for a Special Court like tribunal should be borne in mind in evaluating claims of possible manipulation. Giving judges ample provisions to subject the indictments to an extensive preliminary review is one way to allay this perception. Unfortunately, primarily because of the three-year mandate, "the court’s rules have been revised to minimize the judge’s preliminary review of the prosecutor’s indictments" (Sierra Leone Faces Significant Obstacles in Establishing Rule of Law, HRSP Concludes, Virgina University Law posting April 12, 2004). What had been portrayed as a positive point in comparison to other tribunals may also contain elements that subvert justice. In that same posting, the Chief Prosecutor is recorded as saying: "At some level guilt isn’t the issue, the issue is who among the many, many people we are going to choose [to indict]." A serious issue, we may claim, was reduced to the game of "pinning the tail on a donkey" by the Prosecutor. It is not too clear who the donkey will be in this case. But the Sierra Leone Government and the United Nations both have their credibility on the line over the Special Court issue. There is "no peace without justice," especially when justice is perceived as contrived and polluted.
Fourth, Human Rights Watch (HRW), in a recent report, expressed some serious concern that greatly undermined "the Special Court’s ability to uphold fair trial rights." HRW’s concern was centered around (1) inadequate logistical support available to defense teams, (2) lump sum payment structure for defense teams, (3) lack of suitable candidates to serve as investigators and delays in their appointment, (4) insufficient training of defense counsel and investigators, and (5) inconsistent translation. HRW officials aptly remarked that based on their belief, "these issues could contribute to a perception that rights of the accused are not protected and equality of arms is not adhered to by the Special Court." All the points of concern highlighted by HRW directly affect the ability of the defense team to mount a formidable defense on behalf of the accused. This in turn enhances the prosecutors’ chances of obtaining a conviction.
Fifth, the most troubling aspect of the indictment is the Chief Prosecutor’s insidious injection of "tribe" into the trial. The conflict in Sierra Leone contained no hint of "tribal" affiliations. The rebels, the renegade Sierra Leone Army, the loyal Sierra Leone Army, and the government sponsored Civil Defense Force (CDF) each had all the ethnic groups of Sierra Leone among its ranks. The CDF consisted of indigenous Sierra Leoneans, who were recognized for the part they played in stopping the ravages of the rebels and the renegade army. The intrusive path of the rebels and the lack of will and ability of the existing government to repel the rebels forced individuals to organize themselves to protect their lives and properties. Hence, these forces were initially associated, primarily in name, with various localities. At this stage and more so after, it would be presumptuous to claim that these groups were homogeneous with respect to ethnicity. The threat posed by the rebels and renegade soldiers spared no ethnic group. The response from the citizens was also not based on ethnic affiliations. Again, because of the invasion path, some areas were forced to organize at a very early stage under the banner of "Kamajors," the name for local hunters. Journalists, mainly foreign journalists, used the name "Kamajors" synonymously for all local forces that opposed the rebels and renegade soldiers. This synonymic practice continued even when the government decided through an act of parliament to aid these local groups under the CDF umbrella, thereby increasing their range of operation beyond their respective localities. Realistically, credit given the CDF belongs to all the respective groups. In fame and infamy, it will be divisive to highlight only one group. This is precisely what the prosecutors have done. Sidelining other groups has alienated groups to a point wherein people have withheld their moral and material support for the CDF accused. Visiting various Sierra Leone Internet discussion fora, it becomes easily apparent that prosecutors are gaining success in polarizing the country along ethnic lines.
The accused were indicted based on their alleged position within the command structure of their respective organizations. It is hard to determine that Chief Samuel Hinga Norman, Allieu Kondewa, and Moinina Fofana were under indictment for their role within the CDF. The CDF Consolidated Indictment features Kamajors, the Mende local force, more than the CDF. It is hard to imagine that within the CDF, only the Kamajor unit committed all the atrocities and that they were present in areas way outside the region of the original Kamajor. We cannot attribute the selective use of Kamajors in the indictment to the synonymic error of the journalists. It was, assuming the Chief Prosecutor is has competent knowledge of war, purposefully designed to "divide and gain conviction."
Finally, The Special Court, by all indications, became part of the Sierra Leone legal system through the instrument of the agreement entered into by the government of Sierra Leone and the United Nations. Since Special Court could enter into agreement, solely through its own initiative, with any other state without any recourse to ratification of such agreement, the Special Court has powers exceeding that of Parliament and the President. These are obviously provisions not within the Constitution and, hence, constitute changes to the Sierra Leone Constitution. The Constitution, for example, in chapter VII, Part 1, Section 120, states that "(1) the judicial power of Sierra Leone shall be vested in the Judiciary of which the Chief Justice shall be the Head," and that "(2) The Judiciary shall have jurisdiction in all matters civil and criminal including matters relating to this Constitution, and such other matters in respect of which Parliament may by or under an Act of Parliament confer jurisdiction on the Judiciary." We might as well forget about these provisions within the Constitution if the Special Court continues to maintain its presence in Sierra Leone.
There is no doubt that the origin of the war could be traced to our unwillingness or inability to act while politicians tamper with the Constitution. RUF/AFRC acted in total disregard for the Constitution. But for the challenge presented by Chief Norman, Fofana, Kondewa and other members of the CDF, the Constitution and liberty would have gone undefended. Although the scope of the Special Court does not include individuals who actually committed heinous crimes, we do agree with its underlying principles. As an instrument of justice that has given itself the added role of establishing permanent peace and justice, however, it must not be premised on total disregard for every instrument that upholds justice which, in this case, is the Sierra Leone Constitution. Abuse of the Constitution by the RUF/AFRC is not featured in the Special Court trials. This oversight does not reflect respect for the values of the people. Without this, the Special Court might have well been convened in the United States or in the United Kingdom. Its presence in Sierra Leone has nothing to do with respect for Sierra Leone’s ideals and values.
Indeed, it is quite clear that the Special Court’s activities continue to sow the seeds for another civil war in Sierra Leone. The Kamajor did not emerge for the pursuit of short-term and narrow interests. The traditional society has been deeply entrenched in the country’s culture for hundreds of years. Its members and their relatives and friends comprise about one-third of the country’s population. As a trained traditional hunting society, its duty has always been to defend the community. The perception that its leaders are being made scapegoats for the millions of dollars that have been spent on the court will have serious consequences in the very near future.
To put it succinctly, Honorable Parliamentarians, you are our last hope to get the country out of this looming predicament.
For more information on the Sierra Leone Working Group, please contact:
Abdul Karim Bangura
School of International Service
American University
Washington, DC 20016
Telephone: 202.885.1546
Facsimile: 202.885.2494
E-mal: bangura@american.edu
URL: Please click bllowe. Please: http://www.american.edu/sis/faculty/facultybiographies/bangura.htm
Photo: Dr. Abdul Karim Bangura
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