My thoughts on constitutional protections of the Sierra Leone Constitution

8 September 2010 at 02:29 | 565 views

By M Alieu Iscandari, USA.

In this piece, I will argue that it is unconstitutional to deprive an indigent citizen of Sierra leone of his liberty without the Assistance of Counsel and if a defendant in a criminal Felony matter cannot afford counsel, the government is constitutionally mandated to provide that person with counsel. My conclusions thus would be that every person who was convicted and is serving a jail term in Sierra Leone, and whose was conviction was obtained without the assistance of counsel should bring an action in the Supreme Court of Sierra Leone for violation of their constitutional rights against arbitrary deprivation of their liberty.

I will further argue that the failure of the government to provide legal counsel to indigent defendants violates section of 27 of the constitution and that said section 27, is in itself inadequate in its description of the basis for discrimination in that it fails to mention the single most used form of discrimination which is economic status. I will further Posit, a solution which I will strongly suggest that this Government must look into. more specifically I will be focusing my attention on paragraph 17 of the constitution and section 1, subsections [a],[b],[f], section 2 , subsections [a],[b], section 3, subsection [b] and section 4. I will post these sections for this piece.

Sit tight folks this is going to be a long trip and I am driving.

Paragraph 17 of the 1991 constitution of sierra Leone provides as follows:

Protection from arbitrary arrest or detention.

17. (1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases, that is to say —
a. in consequence of his unfitness to plead to a criminal charge; or
b. in the execution of a sentence or order of a Court whether in Sierra Leone or elsewhere in respect of a criminal offence of which he has been convicted; or
c. in the execution of an order of the High Court or the Court of Appeal or the Supreme Court or such other
f. upon reasonable suspicion of his having committed or of being about to commit a criminal offence; or

(2) Any person who—

a. is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twenty-four hours, of the facts and grounds for his arrest or detention;
b. is arrested or detained shall be informed immediately at the time of his arrest of his right of access to a legal practitioner or any person of his choice, and shall be permitted at his own expense to instruct without delay a legal practitioner of his own choice and to communicate with him confidentially.

(3) Any person who is arrested or detained in such a case as is mentioned in paragraph (e) or (f) of subsection (1) and who is not released shall be brought before a court of law—

b. within seventy-two hours of his arrest in case of other offences;
and if any person arrested or detained in such a case as is mentioned in the said paragraph (f) is not tried within the periods specified in paragraph (a) or

(b) of this section, as the case may be, then without prejudice to any further proceedings which may be brought against him he shall be released either unconditionally or upon reasonable conditions, including in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.

(4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person.

Protection from discrimination.

27. (1) Subject to the provisions of subsection (4), (5), and (7), no law shall make provision which is discriminatory either of itself or in its effect.

(2) Subject to the provisions of subsections (6), (7), and (8), no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.

(3) In this section the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.

The afore quoted portions of the constitution of Sierra leone, provide the basis of my arguments thus. Paragraph 27 section 3 of the constitution of Sierra leone is inadequate in its definition of the term discrimination because it fails to mention class discrimination which mostly is based on economic power as a basis of discrimination. Thus an amendment to the constitution which would include class as a basis for discrimination should be considered particularly in light of the fact that at least 80% of our population is poor, subsists on just about the equivalent of one dollar a day. This class is sizeable to be cognizable as a class subject to discrimination. Another basis that should be considered is the level of literacy as a possible basis for discrimination. The same argument can be made that the population of sierra leone is almost 70% illiterate and thus becomes a cognizable class subject to discrimination particularly by a legal system that is alien to them, communicates in a language not their own and one that could be considered esoteric at best.

Assuming in arguendo that the both of these heretofore congnizable classes are incorporated into the general definition of the term Discriminatory" in Paragraph 27 subsection 3, then I will argue that the right to counsel is a constitutional right in the absence of which any conviction should be thrown out. It is well known in sierra leone that the two most affected classes of people who almost never get any justice are the poor and the illiterate. It has been my experience that when a poor person is arrested for crimes particularly of the felonious type, and they are tried in the absence of counsel to protect their constitutional rights, they are more likely than not to be convicted than a rich person is, who has the best brains to protect them.

It is in the interest of government to see that every citizen does have access to the justice system and if a citizen facing a conviction and a possible jail time, does not have a lawyer to represent him or her in court, can they then be seen to have the same unfettered access to the justice system enough to protect their rights? The answer to this rhetoric is an unequivocal no. How then can this situation be remedied.

The remedy for this situation is that the Parliament should legislate that all legal practitioners in the country should be mandated as part of their license to practice law, (which is a privilege and not a right), to take a certain number of Pro Bono cases each year and offer representation to these indigent clients. This can be fashioned into some sort of a National legal service and should be made mandatory. As time goes on, all students in the Law school should be appointed a mentor in the legal community who would prepare these students to make pro bono representations of indigent criminal defendants with the assistance of their mentors who should always be present in court to guide their mentees through the system. many of the students in the Law school are sponsored by the government at a great expense to the government for their education. what do they give back to the country? Nothing. almost invariably many of them enter practice and the relevant question here is what has the government gotten in return for educating them? The truth of the matter is that their is and there shouldn’t be any free lunches. Students who have their college fees paid for by the government MUST be willing to give something back to the people whose taxes are used to educated them. Tertiary education is not a right it is a PRIVILEGE and one for which there must be some degree of reciprocation by those who have been provided this privilege and that reciprocation is NATIONAL SERVICE.

Section 17 subsection 2 states as follows:

2) Any person who—
a. is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twenty-four hours, of the facts and grounds for his arrest or detention;

Would a failure to inform someone in a writing or in a language that he understands violate the constitution and create grounds for the dismissal of their case? If so then at least 75% of the people incarcerated in the jails in freetown particularly the Police jails at Central Police station Ross Road and congo Cross are eligible to have their cases thrown out of court. I have personal knowledge of situations where people are arrested and locked up in police jails for weeks at a time without being told what their crimes were. I have personal knowledge of persons who were thrown in jail because they had a disagreement with someone who has more money than they do, and that someone has bribed police officers to place this person in jail. I have personally interceded in at least two matters at the Lumley and Central police station when these matters have been brought to my attention by family members of the aggrieved. As a matter of fact one Mr Fadika who was and still is an SLPP supporter who did not know me from Adam, once threatened to have me thrown in jail because I blocked his vehicle from passing me in a traffic jam. Such is the state of affaires in Sierra leone that we must do every thing we can to straighten up. A police officer should only take someone to jail if a crime has occurred in his presence or in the alternative there are witnesses to a crime and in these later situations, a police officer is empowered to effectuate a citizens arrest of an accused person if at least one citizen witness to the crime seeks that help. In all other cases an investigation must be undertaken and the decision must be reached that there was a high probability that a crime had been committed before an arrest should be made. In one situation that I had to intervene in, someone who owed the other some money, a purely civil matter and small claims for that matter was arrested by a police officer who was bribed to do so. In these circumstances do the police have any liability for wrongful arrest and violation of that persons constitutional rights? They should. Do the Police have Immunity from violations of a citizens constitutional rights? Should that immunity if it exists at all be transactional or limted in scope?

Subsection b states as follows:

b. is arrested or detained shall be informed immediately at the time of his arrest of his right of access to a legal practitioner or any person of his choice, and shall be permitted at his own expense to instruct without delay a legal practitioner of his own choice and to communicate with him confidentially.

The right to have confidential communications with a lawyer is constitutional. How about the right to have one if you cannot afford one. I posit that this right should also be a constitutional right in order to properly effectuate the right to protect against arbitrary and capricious and invidious discrimination based on economic status and literacy. It is wrong for a government to deprive its poor citizens of equal access to the justice system on the grounds that they are poor and cannot afford a lawyer. The right to counsel for an indigent defendant is grounded in the Principles of a civilized society. The sixth amendment to the US constitution recognizes that the accused shall enjoy the right to counsel for his defense in ALL criminal prosecutions.

The seminal case in the development in the right to counsel in US Jurisprudence is Gideon v. Wainwright. In this seminal case, the court reasoned as follows:

"[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

We in Sierra leone are in a race to rebuild our society and recast ourselves as the athens of West Africa and the foot stool of the emerging African Civilization of the 21st century. We must create the proper paradigms that generations would follow and the process to create this paradigm of unfettered access to justice is now. WHO AMONGST YOU WILL STAND BY ME AND SEEK JUSTICE FOR THE POOR AND THE OPPRESSED?