| From Freetown, Sierra Leone. Volume 3B CHAPTER SIX
The TRC and the Special Court for Sierra Leone Introduction 1. The Truth and Reconciliation Commission (“TRC” or “the Commission”) worked alongside an international criminal tribunal, the Special Court for Sierra Leone. In recent times, truth commissions have worked in tandem with national criminal justice processes and in one case a commission has functioned in parallel with a criminal tribunal established under UN regulations. However the Sierra Leonean case has brought into sharp focus the different roles of these institutions and the potential pitfalls in their relationship. There has been great interest in the issues that arise when two such institutions operate contemporaneously. 2. Most truth commissions have operated as an alternative to criminal justice systems, because criminal prosecution was either unlikely or inappropriate in the circumstances, or because an amnesty was provided for perpetrators. Given the pardon and amnesty provisions of the Lomé Peace Agreement, the Commission was proposed as an alternative to criminal justice in order to establish accountability for the atrocities that had been committed during the conflict. 3. The transitional justice initiatives of the TRC and the Special Court have been viewed by some as a unique experiment, which advances reconciliation through justice combined with reconciliation through truth. In reality, the two institutions were not created as part of a grand design. When the Commission was agreed upon, the Special Court was not under contemplation. Steps to create the Court only occurred following disturbances in Sierra Leone in the year 2000. 4. This chapter will relate the experiences of the Commission in working alongside the Special Court. It examines the contexts that gave rise to both organisations and tracks the course of developments between the two bodies as they operated contemporaneously. It analyses the nature of the relationship that emerged between the TRC and the Special Court and assesses the impact of this relationship on the Commission’s operations and on the people of Sierra Leone. The chapter pays particular attention to the issue upon which the relationship ultimately faltered, namely the right of detainees held in the custody of the Special Court to appear before the Commission. It was around this issue that the differences in approach between the two post-conflict bodies crystallised. Finally, an attempt is made to evaluate the appropriateness of having two such bodies working simultaneously in the context of post-conflict Sierra Leone. LOMÉ, AMNESTY AND THE TRC 5. The signatories to the 1999 Lomé Peace Agreement agreed to amnesty in order to secure the peace. It was accepted, at the time of the signing of the Lomé Peace Agreement, that the RUF would not have signed the agreement if there had been any prospect of legal action being taken against its members. A truth and reconciliation process was seen as an alternative mechanism for accountability. The Commission was viewed as a means to address impunity so that violations and abuses of human rights would not simply be forgotten. Through its creation of an “impartial historical record” and its holding of public hearings and ceremonies, the Commission would promote a sense of restorative justice in Sierra Leone. 6. Perpetrators would be identified and held accountable in the report of the TRC. The origins and causes of the conflict, together with the contextual story of the conflict in all its nuances, would be told in order that the full horror of the war might be acknowledged by the country as a whole. Recommendations would be made to prevent the repetition of conflict. Impetus would be given to the process of national healing and reconciliation. Violations suffered by victims would be redressed through reparations. 7. When the Lomé Peace Agreement was adopted on 7 July 1999, the Special Representative of the Secretary-General of the United Nations (SRSG) appended a handwritten statement to his signature on the document. The statement read as follows: “The United Nations holds the
understanding that the amnesty provisions of the Agreement shall not
apply to international crimes of genocide, crimes against humanity, war
crimes and other serious violations of international humanitarian law.”
This disclaimer may very well have had the effect of sending a message to combatants and leaders of the armed factions that the amnesty provided by the Lomé Peace Agreement was not a secure amnesty. 8. A little over two-and-a-half years earlier, when the Abidjan Agreement was signed, the United Nations did not make any similar declaration. Although it did not use the terminology of “amnesty” or “pardon”, Article 14 of the Abidjan Agreement of 30 November 1996 declared the following: “To consolidate the peace and promote the cause of
national reconciliation, the Government of Sierra Leone shall ensure
that no official or judicial action is taken against any member of the
RUF in respect of anything done by them in pursuit of their objectives
as members of that organisation up to the time of the signing of this
Agreement. In addition, legislative and other measures necessary to
guarantee former RUF combatants, exiles and other persons currently
outside the country for reasons related to the armed conflict shall be
adopted ensuring the full exercise of their civil and political rights,
with a view to their reintegration within a framework of full legality.”
9. The Special Envoy of the Secretary-General at the time, Berhanu Dinka, signed the Abidjan Agreement and acknowledged that the United Nations was a “moral guarantor” of the peace. The United Nations again assumed the status of a “moral guarantor” at Lomé in July 1999. The Commission’s View on Amnesty
10. It is not clear why unconditional amnesty was accepted by the United Nations in November 1996, only to be condemned as unacceptable in July 1999. This inconsistency in United Nations practice seems to underscore the complexity of the problems at hand. The Commission is unable to condemn the resort to amnesty by those who negotiated the Lomé Peace Agreement. The explanations given by the Government negotiators, including in their testimonies before the Commission, are compelling in this respect. In all good faith, they believed that the RUF would not agree to end hostilities if the Agreement were not accompanied by a form of pardon or amnesty. 11. Accordingly, those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict. Amnesties may be undesirable in many cases. Indeed, there are examples of abusive amnesties proclaimed by dictators in the dying days of tyrannical regimes. The Commission also recognises the principle that it is generally desirable to prosecute perpetrators of serious human rights abuses, particularly when they ascend to the level of gravity of crimes against humanity. However, amnesties should not be excluded entirely from the mechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed conflict. Disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end. 12. The Commission is unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the Lomé Agreement did not immediately return the country to peacetime. Yet it provided the framework for a process that pacified the combatants and, five years later at the time of writing, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity. THE CREATION OF THE SPECIAL COURT 13. Following the taking hostage of some 500 UN peacekeepers by elements of the RUF and the outbreak of violence in May 2000, the political landscape in Sierra Leone changed dramatically when President Kabbah sent a letter of petition to the Secretary-General of the United Nations. Kabbah made the request that the United Nations Security Council establish a special court to bring prosecutions against members of the Revolutionary United Front (RUF). 14. President Kabbah’s letter to the United Nations, dated 12 June 2000, envisaged a court that would benefit from the strong enforcement powers of the Security Council. It noted the limitations of the national justice system and specifically requested that members of the RUF be tried in the proposed tribunal: “…[W]ith regard to the magnitude and extent of the
crimes committed, Sierra Leone does not have the resources or expertise
to conduct trials for such crimes… [A special court is required] to try
and bring to credible justice those members of the Revolutionary United
Front (RUF) and their accomplices responsible for committing crimes
against the people of Sierra Leone and for the taking of United Nations
peacekeepers as hostages.”
One of the objectives of the Court
was to break “the command structure of the criminal organisation
responsible for the violence.”
15. On 14 August 2000, the United Nations Security Council responded favourably to the request from President Kabbah. It mandated the Secretary-General of the United Nations to prepare a report on the subject within thirty days. The preamble to the resolution noted: “also the steps taken by the
Government of Sierra Leone in creating a national truth and
reconciliation process, as required by Article XXVI of the Lomé Peace
Agreement (S/1999/777) to contribute to the promotion of the rule of
law…”
16. The Secretary-General’s report was issued on 4 October 2000. The report called for the establishment of a court not by Security Council resolution, as had been implied in President Kabbah’s letter, but by agreement or treaty between the United Nations and the Government of Sierra Leone. The court was to be of mixed composition, with both Sierra Leonean and non-Sierra Leonean jurists making up its three organs: the Chambers (or Judges); the Office of the Prosecutor; and the Registry. 17. Various jurisdictional and administrative aspects of the proposed court were to be similar to those of the International Criminal Tribunal for Rwanda (ICTR). However, because the proposed court would not be created by Security Council resolution, it would lack enforcement powers enabling it to compel other States to co-operate in the investigation of crimes and the apprehension of suspects. 18. The mission of the Special Court for Sierra Leone is essentially punitive, as set out in the Agreement that was eventually signed between the United Nations and the Government of Sierra Leone for its establishment: “[To] prosecute persons who
bear the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since 30 November 1996; including those
leaders who, in committing such crimes, have threatened the
establishment of and implementation of the peace process in Sierra
Leone.”
AMNESTY AND THE CREATION OF THE SPECIAL COURT 19. The Statute of the Special Court for Sierra Leone purports to withdraw the Lomé amnesty with respect to persons accused before it. Article 10 of the Statute says: “An amnesty granted to any person falling
within the jurisdiction of the Special Court in respect of the crimes
referred to in Articles 2 to 4 of the present Statute shall not be a
bar to prosecution.”
20. In agreeing to the Statute, the Government of Sierra Leone had in effect declined to be bound by its undertaking in the Lomé Peace Agreement. Initially, it was not clear whether this was the intent of President Kabbah when he wrote to the United Nations in June 2000 seeking the establishment of an international tribunal. Nevertheless, the President made reference to the amnesty provision in the Lomé Agreement, describing it as “a prize” that was conceded by his government in exchange for peace. He said that the RUF had since “reneged” on the agreement. In a speech delivered a year later, the then Attorney General, Solomon Berewa, remarked that, in June 2000, the Government of Sierra Leone had “reassessed” its position with respect to the amnesty. Moreover, the October 2000 report of the Secretary-General of the United Nations on the establishment of the Special Court for Sierra Leone states: “While recognising
that amnesty is an accepted legal concept and a gesture of peace and
reconciliation at the end of a civil war or an internal armed conflict,
the United Nations has consistently maintained the position that
amnesty cannot be granted in respect of international crimes, such as
genocide, crimes against humanity or other serious violations of
international humanitarian law…
With the denial of legal effect
to the amnesty granted at Lomé, to the extent of its illegality under
international law, the obstacle to the determination of a beginning
date of the temporal jurisdiction of the Court within the pre-Lomé
period has been removed.”
21. At the time the Lomé Peace Agreement signed, the Special Representative of the Secretary-General for Sierra Leone was instructed to append a disclaimer to his signature on behalf of the United Nations, to the effect that the amnesty provision contained in Article IX of the Agreement (“absolute and free pardon”) shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. This reservation is recalled by the UN Security Council in a preamble paragraph of Resolution 1315 (2000). 22. In the negotiations on the Statute of the Special Court, the Government of Sierra Leone concurred with the position of the United Nations and agreed to the inclusion of an amnesty clause, which would read as follows: “An amnesty granted to any person falling within the
jurisdiction of the Special Court in respect of the crimes referred to
in Articles 2 to 4 of the present Statute shall not be a bar to
prosecution.”
23. In the view of the Commission, the argument whereby the amnesty provision in the Lomé Peace Agreement had lapsed because the RUF had not respected other terms of the treaty is not tenable. Article IX of the Lomé Agreement clearly applies to “all combatants and collaborators”, not just those of the RUF. More specifically, it refers to fighters from the RUF, ex-AFRC, ex-SLA and CDF. It is wrong in principle and legally unsound to suggest that one party to the agreement could, by its subsequent actions, deprive individuals belonging to a number of other groups, some of them not even parties to the Lomé Agreement, of the benefit of amnesty. The resort to the argument that the amnesty had been forfeited for all parties by the actions of the RUF seriously undermined the legitimacy of national and international initiatives following the alleged breaches of the Lomé Agreement in the year 2000. It is noteworthy that the UN Secretary-General did not rely on the grounds put forward by President Kabbah. Instead the Secretary-General pronounced the position that the amnesty provision of the Lomé Agreement was illegal under international law. 24. The Truth and Reconciliation Commission is concerned at the consequences of the withdrawal of the Lomé amnesty. In repudiating the amnesty clause in the Lomé Peace Agreement, both the United Nations and the Government of Sierra Leone have sent a message to combatants in future wars that peace agreements containing amnesty clauses ought not to be trusted. 25. Henceforth, combatant organisations will regard amnesty clauses with suspicion; they will hold them to be uncertain and unreliable. For those who consider that amnesty cannot be granted under any circumstances, this outcome is desirable. However the Commission has already stated that it cannot condemn the grant of amnesty in the Lomé Peace Agreement, taking into account all of the circumstances. Nor can the Commission rule out the more general proposition that there will be conflicts in future for whose resolution a trade of peace for amnesty represents the least bad of the available alternatives. By repudiating the amnesty in the Lomé Peace Agreement, the United Nations and the Government of Sierra Leone have inadvertently undermined future peace negotiations where amnesty is contemplated. 26. Nonetheless the Commission is mindful of the fact that parties to a peace agreement should not be permitted to breach its provisions with impunity. The Commission recommends that future peace agreements in which an amnesty is included should also contain an agreed “amnesty revocation” clause. Such a clause should, in the event of a breach of the agreement, specifically revoke the protection of amnesty in respect of the party or individuals responsible for that breach. JURISDICTION OF THE SPECIAL COURT CONTRASTED WITH THE MANDATE OF THE TRC Temporal Jurisdiction
27. The Special Court has a mandate that is defined as being “since 30 November 1996”. There is no end-point to its temporal jurisdiction, although the Statute can be amended by agreement between the two parties. The reference in Article 1 of the Statute of the Special Court to jurisdiction over those who have “threatened the establishment of and implementation of the peace process in Sierra Leone” is an indication that the Court may continue to exercise jurisdiction over events until the completion of the “peace process”. 28. The date at which the temporal jurisdiction of the Special Court begins - 30 November 1996 - coincides with the signature of the Abidjan Peace Agreement, reached between the Government of Sierra Leone and the Revolutionary United Front (RUF). The Secretary-General had recommended that this date be chosen so as not to impose a “heavy burden” on the Court, although the conflict is generally agreed to have begun in March 1991. In mid-2001, the Government of Sierra Leone unsuccessfully requested the United Nations to extend the temporal jurisdiction to the beginning of the conflict in 1991. 29. In contrast the mandate of the Truth and Reconciliation Commission, set out in Section 6(1) of the Truth and Reconciliation Act 2000, is to prepare an impartial historical record of the conflict from 1991, when the war began, until the Lomé Peace Agreement of 7 July 1999. However, the Act also required the Commission to investigate and report on the “antecedents” of the conflict. Moreover, the Commission is also charged with addressing impunity, responding to the needs of victims, promoting healing and reconciliation and preventing a repetition of the violations and abuses suffered. This aspect of the mandate has no precise temporal framework. Accordingly, the Commission inquired into events both prior to 1991 and subsequent to 7 July 1999. The Commission took a broad view of its temporal framework, given the delay in its establishment and the clear relevance of events subsequent to signature of the Lomé Peace Agreement in the fulfilment of its mandate. Territorial Jurisdiction
30. Article 1(1) of the Statute of the Special Court refers to violations “committed in the territory of Sierra Leone”. Article 6(1) of the Statute allows prosecution of any person who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime”. Such secondary participation or inchoate crime may well have taken place outside Sierra Leone. The ability of the Prosecutor or the Defence to gather evidence outside Sierra Leone depends upon the co-operation of foreign governments. 31. The mandate of the Commission refers to “violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone”. The Truth and Reconciliation Act of 2000 encouraged the Commission to look abroad. Section 6(2)(a) of the Act enjoined the Commission to investigate “the role of both internal and external factors in the conflict”. The Commission had to inquire into whether the conflict was “the result of deliberate planning, policy or authorisation by any government” (italics added). Personal Jurisdiction
32. The Special Court’s jurisdiction is defined in Article 1 of its Statute as encompassing “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone”. The January 2002 Planning Mission for the Special Court speculated on prosecutorial strategy, but conceded that the selection of those bearing the greatest responsibility “necessarily entails a measure of discretion on the part of the Prosecutor, both as to the identification of individual indictments and to any priority that may be assigned to them”. 33. The jurisdiction of the Special Court is not limited by the nationality of the perpetrator. Unlike the Commission, which can also examine the responsibility of “groups”, the Special Court’s jurisdiction is confined to “persons”. The Special Court will make no determinations about the existence of “criminal organisations”. 34. The question of how to deal with child offenders has generated much debate. The Statute of the Special Court gives it jurisdiction over persons who were at least fifteen years old at the time of the crime. The issue was one of considerable controversy during the drafting of the Statute of the Special Court. Subsequently, Special Court Prosecutor David Crane indicated that he would not prosecute child offenders. The UN Security Council, the Secretary-General and the SRSG frequently expressed the view that the TRC was a better venue for dealing with child or juvenile offenders. The Statute of the Special Court itself refers to “alternative truth and reconciliation mechanisms” for these purposes. 35. The Truth and Reconciliation Act 2000 refers in several places to “victims and perpetrators”, suggesting that these two groups make up the Commission’s principal constituency. Special attention is focussed on children, including child combatants, as well as victims of sexual abuse. The Commission is also given a role in determining responsibilities, in identifying the “causes” and the “parties responsible”, and in assessing the parts played by “any government, group or individual”. At the core of the Commission’s mandate is the concept of “violations and abuses of human rights and international humanitarian law”. Subject-matter jurisdiction
36. The reference to “international humanitarian law” is common to both the Truth and Reconciliation Commission Act and the Statute of the Special Court. The Commission is to examine “violations and abuses” of international humanitarian law, while the Special Court is to prosecute “serious violations” of international humanitarian law. The somewhat more limited subject-matter jurisdiction of the Special Court is further restrained by the specific enumeration of the crimes it may prosecute. Borrowing the wording used by the Security Council in Article 3 of the Statute of the International Criminal Tribunal for Rwanda, the Statute of the Special Court contemplates “serious violations” of Common Article 3 to the Geneva Conventions and of Additional Protocol II. Furthermore, the Statute lists three additional “serious violations”: intentionally directing attacks against the civilian population; intentionally directing attacks against peacekeepers; and recruiting child soldiers. These three crimes are drawn from Article 8(2)(f) of the Rome Statute of the International Criminal Court. Yet a comparison with the Rome Statute indicates clearly that the list of war crimes in the Statute of the Special Court is confined in its scope: it does not permit prosecution of all offences in non-international armed conflict that are punishable elsewhere under international law. 37. Moreover, it would appear that the Special Court has no jurisdiction over war crimes to the extent that these were committed in an international rather than a non-international armed conflict. The Sierra Leone conflict was essentially an internal armed conflict, so the issue may only be of theoretical interest. Nevertheless, there were significant international dimensions to the conflict. For example, considerable attention has been paid to the role of mercenaries in the Sierra Leone conflict. The issue of mercenaries only arises in international humanitarian law with respect to international armed conflict. Accordingly, such matters fell within the remit of the TRC but appeared to be outside the scope of the Special Court. 38. The Special Court also has jurisdiction over crimes against humanity and certain specified violations of the laws of Sierra Leone. The latter category encompasses specific crimes of sexual abuse of girls and destruction of property, which are not normally defined as serious violations of international humanitarian law. 39. The Commission was charged with examining “violations and abuses of human rights and international humanitarian law”. It was mandated to “create an impartial historical record” of such violations and abuses and to “investigate and report on the causes, nature and extent” of the violations and abuses. The Truth and Reconciliation Commission Act 2000 provides no further guidance on the scope of the terms “human rights” and “international humanitarian law”. THE RELATIONSHIP BETWEEN THE TRC AND THE SPECIAL COURT 40. The Secretary-General’s report of October 2000 noted that “relationship and cooperation arrangements would be required between the Prosecutor [of the Special Court] and the National Truth and Reconciliation Commission, including the use of the Commission as an alternative to prosecution, and the prosecution of juveniles, in particular.” Special attention was thereby given to the question of whether or not to prosecute suspects aged between 15 and 18 years of age. The Secretary-General further noted that one of the options was to have “children between 15 and 18 years of age, both victims and perpetrators, recount their stor[ies] before the Truth and Reconciliation Commission or similar mechanisms, none of which is as yet functional.” 41. The Security Council welcomed the Secretary-General’s report, making a number of suggestions about the specific features of the proposed court. It insisted that the court should focus on those in leadership roles and sought to discourage the prospect of prosecution of offenders aged less than 18 when the crime took place. The Security Council said: “It is the view of the members of the Council that the [Truth and Reconciliation] Commission will have a major role to play in the case of juvenile offenders, and the members of the Security Council encourage the Government of Sierra Leone and the United Nations to develop suitable institutions, including specific provisions related to children, to this end.” The Secretary-General responded to the Council, noting: “As pointed out by the
Security Council, the Truth and Reconciliation Commission will have an
important role to play in the case of juvenile offenders and I will
endeavour, in co-operation with the Government of Sierra Leone and
other relevant actors, to develop suitable institutions including
specific provisions related to children to that end.
I am also
of the view that care must be taken to ensure that the Special Court
for Sierra Leone and the Truth and Reconciliation Commission will
operate in a complementary and mutually supportive manner, fully
respectful of their distinct but related functions.”
42. The Planning Mission, sent by United Nations headquarters in early 2002 to make preparations for the work of the Special Court, recalled that the two institutions were to “perform complementary roles” that would be “mutually supportive” and “in full respect for each other’s mandates”. 43. In November 2000, an international workshop held in Freetown and organised by the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Assistance Mission in Sierra Leone (UNAMSIL) had proposed the establishment of a consultative process “to work out the relationship between the TRC and the Special Court”. During 2001, the Secretary-General reported that UNAMSIL and the OHCHR would be preparing “general guidelines” for the relationship between the Commission and the Special Court. In December 2001, as part of its activities to prepare for the establishment of the TRC, the OHCHR and the Office for Legal Affairs convened an expert meeting in New York. The meeting was described as follows in the report of the OHCHR: “The
expert meeting on the relationship between the TRC and the Special
Court was organised by OHCHR and the Office for Legal Affairs (OLA) of
the United Nations in New York on 20 and 21 December 2001. The
participants discussed the important issue of an amicable relationship
between the two institutions that would reflect their roles, and the
difficult issue of whether information could and should be shared
between them. The pros and cons of a wide range of possibilities
regarding co-operation between the Commission and the Court were
examined. Based on those discussions, the participants agreed on a
number of basic principles that should guide the TRC and the Special
Court in determining modalities of cooperation. These principles
include the following:
A Failure to Define the Relationship
45. Notwithstanding all the above-mentioned deliberations, the relationship between the two bodies was never actually set out or defined. Indeed, there is not a single reference to the TRC in any of the enabling instruments that established the Special Court. This omission was surprising given the UN Secretary General’s statement to the United Nations Security Council that: “care must be taken to ensure
that the Special Court for Sierra Leone and the Truth and
Reconciliation Commission will operate in a complementary and mutually
supportive manner, fully respectful of their distinct but related
functions.”
46. The Commission finds that it might have been helpful for the United Nations and the Government of Sierra Leone to lay down guidelines for the simultaneous conduct of the two organisations. The Commission finds further that the two institutions themselves, the TRC and the Special Court, might have given more consideration to an arrangement or memorandum of understanding to regulate their relationship. THE COMMENCEMENT OF OPERATIONS 47. At the early stages of their operations, the two institutions approached one another with respect and deference. There was mutual recognition that the two bodies both had an important contribution to make in dealing with the truth, with accountability and with impunity. Senior officials from both organisations made public statements in support of the other’s mandate and objectives. On 2 December 2002, The Prosecutor of the Special Court and Bishop Humper, the Chairperson of the TRC, made a joint public appearance in Freetown, where each expressed support for the role of the other institution. Nevertheless, neither institution demonstrated any particular interest in attempting to establish areas of co-operation nor anything resembling a “relationship”, as had previously been proposed. Both seemed to feel, implicitly at least, that it was important that they should retain clear boundaries between the two institutions. 48. When the two bodies began to operate contemporaneously, in mid-2002, neither appeared particularly eager to establish a “relationship agreement” with the other. From the outset, suggestions of “information sharing” between the Commission and the Special Court threatened to have a chilling effect upon the willingness of perpetrators to testify before the Commission. It appeared that many perpetrators would only participate meaningfully in the activities of the Commission if they could be reassured that the information they provided would not be channelled to the Special Court. “Information Sharing” and Public Perception
49. Section 7(3) of the Truth and Reconciliation Commission Act 2000 states that “[at] the discretion of the Commission, any person shall be permitted to provide information to the Commission on a confidential basis and the Commission shall not be compelled to disclose any information given to it in confidence”. In addition to Section 7(3) of the Act, Section 7(4) suggests that the Commission has a positive duty to prevent disclosure of certain information, requiring it to “take into account the interests of victims and witnesses when inviting them to give statements, including the security and other concerns of those who may wish to recount their stories in public”. 50. The TRC sought to reassure all its potential witnesses that if they were to provide evidence to the Commission pursuant to an undertaking by the Commission that they were doing so on a confidential basis, then their identities and other sensitive information would never be disclosed. The TRC considered that it had such a prerogative as a result of the applicable provisions of the Truth and Reconciliation Commission Act 2000. The Commission further believed it necessary to exercise its prerogative rather broadly, especially given the numerous indications that perpetrators were fearful that evidence they might give to the Commission would subsequently be communicated to the Special Court. 51. The Commission was ostensibly given some sense of security in this regard by the public undertakings of various members of the Special Court’s Office of the Prosecutor (OTP). The Prosecutor, David Crane, was among those who asserted that the Court would not make use of any evidence presented to the Commission. In an interview in November 2002, OTP Chief Investigator Allan White made the following remarks: “We
strongly support the TRC. We are on record saying that we do not plan
to use any information at all from the TRC. We do want to encourage
people to come and tell their story so the nation can begin the healing
process...
[…] We will not concern ourselves if you come before
the TRC. Nor do we necessarily want to know who comes before the TRC.
It is a separate and distinct operation, and it should be. We do not
plan on asking the TRC for any information whatsoever…”
52. Notwithstanding the efforts of the Commission and the undertakings of the Prosecutor to distance themselves, a perception developed throughout the country that information provided to the Commission would make its way to the Special Court. A rumour even started circulating that there was an underground tunnel that ran between the two institutions. It did not help in elucidating public perception that both bodies were situated on Jomo Kenyatta Road in Freetown, in close proximity to one another. It is not surprising that many people in Sierra Leone were not able to distinguish between the roles of the two bodies: they both dealt with impunity; they addressed accountability for atrocities committed during the war; and they focussed on violations of international humanitarian law. 53. The fact that an investigator worked in both institutions served to fuel the perceptions of collaborative work. The example in question entailed the recruiting by the Special Court of a member of the Commission’s investigations team. This recruitment was apparently done on the basis that the investigator would not be employed to work on any cases he had dealt with in the Commission. In particular he was not to be used to locate witnesses he had previously identified for the Commission. 54. A Commission research team working in the vicinity of Magburaka Township (Tonkolili District) during August 2003 came across the investigator in question while proceeding to a follow-up interview with a Commission witness. It turned out that the investigator had led a Special Court investigation team to the same witness, known as “Base Marine”. Only a few weeks earlier he had been in the area under the auspices of the Commission, working with the local community to arrange witnesses for hearings and interviews. At this time, he was introduced to Base Marine and was known to the witness as a TRC investigator. The investigator’s return to the Magburaka area to visit the witness on a second occasion, this time wearing a Special Court cap, served to deepen suspicion in the minds of residents. 55. As a follow-up, the Commission Research Team counselled Base Marine. He was in the company of Mohamed Muxon Sesay, Director of the organisation “Peace, Reconciliation and Development” based in Mile 91 (Tonkolili District). Sesay had the following to say in relation to Base Marine’s predicament: “After
making the statement with the TRC, then later the Special Court seems
to have got some clip of that information. So to me, it is confusing;
maybe it’s just a trick between the TRC and the Special Court. Even the
idea of not sharing information between the TRC and Special Court - it
is today a big doubt… Because it’s the TRC that we know… and we have
confidence in the TRC operation. There are so many things,
sensitisation [about the TRC] done before this time and we have seen
their activities and we feel satisfied with the TRC… But the Special
Court, we are yet in the line of process.”
56. It would have been desirable if staff, particularly those holding sensitive posts, had not moved from one organisation to the other. The Special Court, for its part, might have refrained from employing the investigator in question. 57. The Commission often detected a climate of deep-seated suspicion among people it interacted with in the course of sensitive research and investigations. Disturbing allegations were put to the Commission, often as a means of explaining why a particular community was tense or uncooperative. By way of example, it was alleged that there had been improper conduct by a policeman investigating on behalf of the Special Court in the Kenema District. The man in question, apparently connected to the Criminal Investigation Department (CID) of the Sierra Leone Police, had masqueraded as a TRC statement-taker in order to obtain evidence from witnesses for Special Court investigations. 58. TRC investigators and researchers were sometimes accorded somewhat frosty receptions in the course of their enquiries in the field. Staff members had to make continual assurances about personal independence and impartiality, as well as advocating the merits of the truth and reconciliation process in general. 59. The Commission finds that there is evidence to support the conclusion that some people were reluctant to participate in the truth-telling process out of fear of prosecution by the Special Court for Sierra Leone. This was one of the unfortunate costs of the parallel and simultaneous existence of the two bodies. There were certainly other reasons why some perpetrators did not come forward to tell their stories. Some presumably feared reprisal or simply saw no personal advantage to themselves in speaking publicly about their own actions. In the light of the two initiatives many perpetrators living in the bush, particularly the young combatants, felt much uncertainty and confusion surrounding their future. What can be said is that the threat of prosecution by the Special Court was one factor in the decision-making process of some of those who refused to testify. The Commission’s ability to create a forum of exchange between victims and perpetrators was unfortunately retarded by the presence of the Special Court. The Question of Primacy
60. A view was expressed in some public settings that the confidentiality provisions in the Truth and Reconciliation Commission Act 2000 would not shelter the Commission from a request by the Special Court to provide it with information obtained in confidence. Several arguments were invoked to justify this position. Some relied on the Statute of the Special Court for Sierra Leone, which indicates that the Court has “primacy”. Some mistakenly concluded that this clause subordinated the Commission to the Special Court. 61. The principle of “primacy” exists to govern conflicts between courts with concurrent jurisdiction. It pertains to the preferring of charges and the taking over of trials. “Primacy” was included in the Statute of the Special Court because the Special Court’s jurisdiction would at least partially overlap with that of the national courts of Sierra Leone. Any suggestion that there was a hierarchy between the Court and the TRC would have been alarming, given the prior statements from various United Nations sources to the effect that the two bodies were mutually supportive and complementary. 62. Nevertheless, a January 2002 discussion paper prepared by the Office of the Attorney General and Ministry of Justice of Sierra Leone, with the technical co-operation of the NGO ‘No Peace Without Justice’, erroneously concluded that the Commission was subordinate to the Special Court: “The legal relationship between the Special Court
and the Truth and Reconciliation Commission is clear. The Special Court
is an international judicial body whose requests and orders require no
less than full compliance by the Truth and Reconciliation Commission,
as by all Sierra Leonean national institutions, in accordance to [sic]
the international obligations agreed to by Sierra Leone.”
63. The basis of these obligations, according to the discussion paper, was Article 17 of the Agreement between Sierra Leone and the United Nations with respect to establishment of the Special Court. Article 17 refers to obligations of the “Government”, requiring it to co-operate with the Court and to comply with its requests. It mentions nothing of the TRC, which is a body independent of the Government of Sierra Leone. In any event, the Agreement between Sierra Leone and the United Nations could in no case prevail over the legislation establishing the TRC. The Truth and Reconciliation Commission Act 2000 was adopted by Parliament and could only be overridden by the Constitution, or by another subsequent Act of Parliament. 64. The only legislation enacted by Parliament with regard to the introduction of the Special Court came on 25 April 2002 in the form of the Special Court Agreement (Ratification) Act 2002. This legislation did no more than give effect to certain provisions of the Agreement between Sierra Leone and the United Nations and the Statute of the Special Court in national law. The very enactment of this legislation proves the error in the Attorney General’s discussion paper, for it demonstrates that potential areas of disagreement between international treaties and national statutes must be resolved by the passing of further national legislation. For the discussion paper to have had any basis for its claim that the international Agreement took precedence over the powers of the TRC, further legislation specifically on that point would have had to enacted. No legislation was ever passed to require “full compliance” of the TRC with the “requests and orders” of the Special Court. 65. Some observers attempted to suggest that the Special Court for Sierra Leone was empowered to compel the Commission to handover confidential evidence. They relied upon a rather ambiguous provision in the Special Court Agreement (Ratification) Act 2002. Section 21(2) of the Act said: “Notwithstanding any other law, every natural person, corporation, or other body created by or under Sierra Leone law shall comply with any direction specified in an order of the Special Court.” This provision was construed in some quarters to mean that the Court had been given an overriding power, to which all existing legislation in Sierra Leone would have to give way. 66. Such an interpretation of Section 21(2) would have had as its consequence the effective elimination of all forms of privilege and confidentiality governed by the laws of Sierra Leone. In effect, it would have cancelled all diplomatic immunities, as well as the privileges that exist in well-recognised relationships of confidence, such as those between doctor and patient, solicitor and client or priest and confessor. It would have rendered meaningless one of the most important prerogatives of the TRC, namely the power to withhold confidential evidence from any party. The annulment of all forms of confidentiality in Sierra Leone could not have been the intention of Parliament when it passed the Special Court Agreement (Ratification) Act. 67. The potential legal conflict surrounding a request by the Special Court for evidence taken by the Commission on a confidential basis never materialised in practice. The Prosecutor, David Crane, made public declarations during September 2002 indicating that he would not seek evidence from the Commission. 68. The Commission cannot rule out the possibility that, at some time in the future, the Special Court for Sierra Leone, or for that matter any other court, national or international, will seek to obtain information from its archives held under condition of confidentiality. The Commission is confident that, under the current state of the laws of Sierra Leone, the Truth and Reconciliation Commission Act 2000 fully prohibits any such disclosure. Any attempt to change the legislation so as to enable access to such confidential information would have disastrous consequences. In the case of vulnerable witnesses, it would seriously breach their right to privacy and possibly expose them to reprisal or persecution. In the case of perpetrators, it would set a dangerous precedent. The Commission recommends that Parliament should never authorise access by criminal justice mechanisms, either directly or indirectly, to information in the archives of the Commission that was provided on a confidential basis. “Use Immunity” of Information Provided to the Commission
69. It was of course desirable that perpetrators who were considering providing information to the Commission should do so in public and, ideally, in the presence of their victims, where possible. The concern expressed by perpetrators - that evidence they gave in TRC public hearings might be used by the Special Court in subsequent prosecutions - could have been addressed by a rule establishing that such evidence would be inadmissible in a subsequent prosecution. The legislation establishing the South African Truth and Reconciliation Commission specified that self-incriminating evidence given before the Commission could not be used in criminal prosecutions before the courts of South Africa. There was a similar provision in Ghana’s truth commission statute. 70. Although the Commission had the power to compel perpetrators to testify under oath, subject to prosecution for perjury in the case of dishonest testimony and for contempt of court in the case of refusal to testify, it did not exercise these powers. To do so might have created an extremely unfair situation for a witness who might subsequently have been exposed to prosecution before the Special Court for Sierra Leone. 71. The Commission recommends that future international criminal tribunals make provision for the “use immunity” of testimony provided to a truth and reconciliation commission, even when the information is provided in a public hearing. THE SOURING OF RELATIONS: ACCESS TO DETAINEES 72. Persons who played a central role in the conflict, including Government Ministers, faction leaders, high-level commanders and persons accused of grave criminal conduct, appeared in both public and in closed hearings of the TRC. These individuals either sought an appearance of their own accord or were requested by the Commission to make an appearance. The testimonies generated by the appearances of these key players contributed to a rich and multi-sided discourse in society. Viewpoints and versions of events were exchanged and debated. 73. Absent from the Commission’s list of witnesses were the men indicted by the Special Court on charges that they “bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996”. For most of the duration of the Commission’s period of operations, there were nine indictees in the custody of the Court, each of them charged with multiple-count indictments alleging their responsibilities in the conflict. The nine men were: Issa Hassan Sesay, Augustine Ato Bao and Morris Kallon (members of the RUFP, formerly the RUF); Chief Samuel Hinga Norman JP, Allieu Kondewah and Moinina Fofana (members of the CDF); and Alex Tamba Brima, Ibrahim ‘Bazzy’ Kamara and Santigie Borbor Kanu (members of the former AFRC). Four of these men had been detained since 10 March 2003; the other five were arrested and detained on diverse dates between April and August 2003. It was only a matter of time before these role players in the custody of the Special Court would seek to tell their versions in the forum provided by the Commission. 74. The names of the indictees emerged in multiple testimonies of witnesses before the TRC. The investigative arm of the Commission had made approaches to the Special Court during the months of May and June 2003 in order to access some of the men among the first set of detainees and engage them in the TRC’s information-gathering activities, including its public hearings. At that time, the Commission was advised by the Registrar of the Special Court, Robin Vincent, that the requests had been transmitted to the detainees, via their legal representatives, and that none of them wished to speak with the Commission while their trials before the Special Court were pending. The Commission received correspondence directly from some of the legal representatives in which co-operation was welcomed; but the consensus was that any interview or hearing would have to be at the instigation of the defendants themselves. 75. It was only in August 2003 that indicted defendants in the custody of the Special Court formally began to give notice of their desire to appear before the Commission. On 26 August 2003 Chief Samuel Hinga Norman, the former National Co-ordinator of the CDF, wrote a letter requesting his legal counsel to facilitate an appearance before the TRC: “I have long been in
receipt of copy of your letter referenced JBJJ/ZYS dated 17 June 2003,
expressing the inappropriateness for me (your client) to appear before
the Truth and Reconciliation Commission while I remain an indictee
before the Special Court.
Well, I was arrested, charged and
detained on the 10th March 2003, thinking that by now, 25th August
2003, my trial would have started long ago; but I thought wrongly.
Since there is no news about the start of the trial and there are signs
that the TRC may soon close its sittings, I would prefer to be heard by
the people of Sierra Leone and also be recorded for posterity
especially where my boss, The President of Sierra Leone, who appointed
me and under whom I served as the Deputy Minister of Defence and
National Coordinator of the Civil Defence Force (CDF/SL), has already
testified before the Commission.
As my SOLICITOR, I am applying
through you and requesting you as a matter of urgency to please inform
the necessary parties of my willingness to appear and testify before
the TRC without any further delay.”
76. Norman’s application to testify to the TRC was followed by those of Augustine Bao and Issa Sesay, both members of the RUFP, formerly the RUF. 77. Given that the defendants had regular contact with their own counsel and that they had been provided with mobile telephones enabling them to communicate with persons outside the Special Court prison, the defendants faced no difficulty in passing information to the TRC. There was certainly nothing to prevent them recording their full testimonies in writing and submitting them through their lawyers. What these detainees were seeking, however, was a hearing; an opportunity to present testimony in person to the Commission and to answer questions posed by staff of the TRC. They were asserting their rights to be heard in a manner like that accorded to all other Sierra Leoneans who had so requested and so desired. 78. The Commission considered it desirable to attempt to facilitate any request from a detainee of the Special Court to testify before it. The detainees in question had already been identified and indicted by the Prosecutor of the Special Court as individuals belonging to the category of “persons who bear the greatest responsibility” within the terms of the Court’s jurisdiction. Their indictments had been reviewed and approved by a judge of the Court, who had necessarily determined “that the allegations in the Prosecution’s case summary would, if proven, amount to the crime or crimes as particularised in the indictment”. 79. There is nothing unusual about a prisoner, either awaiting trial or convicted, testifying in proceedings in other cases and even in proceedings between other bodies. Such an occurrence happens regularly in national judicial systems and procedures exist in Sierra Leone and elsewhere to facilitate it. Indeed, the Special Court apparently gave its approval for certain detainees in its custody to give evidence in ongoing proceedings in the Sierra Leonean courts pertaining to charges of treason against other individuals. 80. More specifically, there is considerable precedent to be drawn from other truth and reconciliation commissions. In the South African Commission, both “awaiting-trial” and convicted prisoners appeared before hearings of the Human Rights Violations Committee in order to supply their versions of events. Prisoners and detainees also appeared before the Amnesty Committee of the South African Commission for purposes of having their amnesty applications heard. Indeed some prisoners and detainees appeared before both Committees. The Sierra Leone TRC was entrusted by the Parliament of Sierra Leone with the responsibility of hearing all relevant evidence and information concerning its mandate. Had Chief Hinga Norman or the other detainees been in prison in Sierra Leone awaiting trial before a national court, there can be no doubt that arrangements would have been made to have enabled them to be heard by the Commission. The TRC succeeded in gaining access to several persons held in Freetown Central Prison in exactly this situation. 81. As a first step towards realising Chief Hinga Norman’s request, the Commission addressed a letter to the Registrar of the Special Court (“the Registrar”), Mr. Robin Vincent, requesting him to facilitate an interview with Chief Hinga Norman on 4 September 2003. On that day, a delegation of Commission staff members attempted to interview Chief Hinga Norman but was denied access to him by the Registrar. The Registrar advised the Commission delegation that no mechanism was in place to facilitate interaction between detainees and the Commission. Such a mechanism was said to be under contemplation by the Special Court. According to the Registrar, once key members of the Special Court, including its President, its Judges and its Prosecutor, had agreed upon a mechanism to regulate such contact, the Special Court’s intention was to have the terms of the agreement set out by the Registrar in the form of a “Practice Direction”. The Commission was advised that the production of this Practice Direction was imminent. 82. So began the efforts of the TRC to secure the appearance of the Special Court detainees. It was an episode that would draw to an end barely four weeks before the formal closure of the Commission’s operations. On 28 November 2003 - three months after Hinga Norman’s original request for a hearing was made known to the Special Court - the President of the Court, Judge Geoffrey Robertson, ruled that the detainees could only engage with the Commission by way of written statements. THE SPECIAL COURT’S PRACTICE DIRECTION 83. The Practice Direction was adopted by the Special Court for Sierra Leone on 9 September 2003. It was framed as a set of procedures to be followed by either the TRC or a “National Authority” who might request access to persons in the custody of the Special Court (“the Practice Direction”). No consultations or discussions were held with the TRC Commissioners or staff members in advance of the issuance of the Practice Direction. No effort was made to solicit the views of the Commission on what the Commission would consider to be acceptable and reasonable terms of access to the detainees. 84. Notwithstanding the provisions of the TRC Act of 2000, the Practice Direction required the Commission to make a substantive application before a Special Court Judge who would decide on the merits of the application. Such an application had to include a list of all the specific questions the Commission wished to pose to the detainee. The Practice Direction provided for any Commission interview to be “supervised” by a legal officer who had the power to intervene to stop questions and even to stop the interview. All interviews were required to be recorded and transcribed. The transcripts would be handed over to the Prosecutor for use at trial. 85. In requiring the Commission to make a substantive application to a Special Court Judge for permission to interview a detainee, the Practice Direction was inconsistent with the mandate and powers granted to the Commission under its founding statute. The Commission was granted the power to interview any individual within Sierra Leone at any place in the fulfilment of its mandate. There were no limitations, exceptions or qualifications on this power contained in the Truth and Reconciliation Commission Act 2000. 86. The Commission recognised the Special Court had the power to regulate access to accused persons in its custody. In particular, the Special Court had a legitimate interest in regulating contact in order to prevent the escape of the detainee, to prevent harm being done to the detainee and to maintain good and orderly conduct in the detention facility. THE RESPONSE OF THE TRC TO THE PRACTICE DIRECTION 87. The Commission responded to the issuance of the Practice Direction by way of a letter addressed to the Registrar, dated 9 September 2003. Extracts from this letter are reproduced below: “Witnesses who
appear before the TRC are expected to contribute towards truth telling
which in turn forms the basis of national healing and reconciliation.
In this process a witness may incriminate himself. Where the interview
is conducted on the basis of confidentiality (as provided by the Act)
the TRC will naturally not disclose any information to another body for
purposes of criminal prosecution. This principle has been established
and respected in other jurisdictions and indeed it is established in
this country.
The TRC routinely interviews awaiting trial
prisoners before the criminal courts of Sierra Leone and there has been
absolutely no question of monitoring our interviews or for that matter
forwarding information to prosecutors. Indeed to do so would be
regarded as an outrage. Our hope is that the Special Court, a body
established through international co-operation and which subscribes to
international human right standards, will not conduct itself in this
way.
The Direction is in the circumstances a denial of the
Accused’s right not to incriminate himself. This right is enshrined in
your own Statute for the Special Court of Sierra Leone by virtue of
Article 17, subparagraph (4)(g).
The burden of proof in a
criminal trial rests with the prosecution. The Direction in our view
constitutes an improper attempt to procure evidence from the Accused.
In effect the Accused who wishes to appear before the TRC is penalised
and his right to a fair trial undermined for no other reason than his
desire to exercise his rights under the Act. The Practice Direction
then has a “chilling effect” on those detainees who may wish to appear
before the TRC. Many will in the circumstances decide not to exercise
their rights in this regard and those that do are effectively punished
for doing so…
We are of course respectful of the important role
the Special Court plays in Sierra Leone in addressing impunity. The TRC
would not engage in any activity that would undermine the objectives of
the Special Court…
The Direction is dismissive of the spirit and
purpose behind the Truth and Reconciliation Commission. It would be a
highly regrettable development between our two important institutions.”
88. TRC staff members met again with the Registrar on 11 September 2003. The Registrar undertook to place the Commission’s concerns and its suggestions for revisions to the Practice Direction before the President of the Court and the Prosecutor. One of the Special Court representatives present, Mr. Sylvain Roy, Acting Head of the Special Court's Defence Office, raised what he described as a “very practical concern”. He stated that: “Some of the detainees might want to
avail themselves of the opportunity to testify before the TRC in order
to take a public platform.”
Mr. Roy suggested that the detainees were "looking for publicity" and that the “TRC [was] a conduit to the population.”
89. The Commission supplied its suggestions for a revised Practice Direction in a letter to the Registrar dated 12 September 2003. Among its detailed suggestions for revision, the Commission proposed that the following paragraphs be inserted into the preamble of the Practice Direction: “ACKNOWLEDGING the unique role of the Truth and
Reconciliation Commission (TRC) in promoting healing and reconciliation
in Sierra Leone; and
NOTING that the Truth and Reconciliation
Commission Act 2000 accords the TRC certain powers and functions to
create an impartial historical record for Sierra Leone.”
The
Special Court declined to insert any such text in the preamble of its
revised Practice Direction acknowledging the unique role of the TRC or
its powers and functions under the Act.
90. The Registrar was advised that the Commission had to wind up its activities before the end of the year 2003. This meant that the Commission had to act expeditiously. In its letter of 12 September 2003, the Commission requested the Registrar to provide the Court’s feedback by 16 September 2003. As it turned out the Commission would only receive the revised Practice Direction on 6 October 2003. 91. By the end of business on 16 September 2003, the Special Court had not responded as requested. The Commission was anxious to resolve the impasse and sought the intervention of the Acting Special Representative of the UN Secretary-General (SRSG), Mr. Alan Doss, to mediate between the Commission and the Court. Mr. Doss participated in a meeting with two Commissioners (including the TRC Chairman, Bishop Joseph Humper) and TRC staff members on 18 September 2003. A detailed dossier was handed to the SRSG with the specific request that he should attempt to secure the participation of the Special Court in the mediation. Mr. Doss undertook to take the matter further and to revert back to the Commission. 92. The Commission never heard from the office of Mr. Doss again, notwithstanding telephone calls to his office. Informally, the Commission was advised that the request had been referred to the UN Office of Legal Affairs at its Secretariat in New York. This office apparently supplied an opinion in which two propositions were made: that the Special Court held “primacy” over the Commission; and that no mediation could take place without the involvement of the Special Court. The point on primacy represented a misreading of the Special Court statute. With regard to the second point the writer of the opinion appeared to overlook the fact that the Commission had requested the SRSG to secure the participation of the Special Court in the mediation. While the Commission was generally disappointed with the failure of the UN structure to act expeditiously, the Commission wishes to recognise the constructive support provided on this issue by individual staff members of the Human Rights Section at UNAMSIL. REQUESTS TO THE TRC FROM AUGUSTINE BAO AND ISSA SESAY 93. Another Special Court detainee, Augustine Ato Bao of the RUFP, wrote to the TRC on 16 September 2003 requesting a public appearance before the Commission. Mr. Bao wrote: “It has been my ardent desire to
appear and testify before the TRC, which is the only legitimate body
that the Lomé Accord, The Pivotal for the successful conclusion of the
conflict, empowered to look into the cause or causes that warranted the
conflict and its effect or effects.
My arrest and Detention by a body that never took part in the negotiation that brokered the peace impeded my efforts to appear before the TRC, and [I have] been held for six (6) months without seeing the shadow of a trial emerging. The
Lomé Accord and ECOWAS put into being the TRC for all Sierra Leoneans
to speak nothing but the truth, as the truth is the only vehicle that
can accommodate us as people of a nation.
[…] It is in this
spirit that I write to request that I want to appear before the TRC as
a Sierra Leonean and a member of the former RUF now RUFP to contribute
my own quota to this historic document for posterity.”
94. Another RUFP detainee, Issa Hassan Sesay, wrote a letter to the TRC dated 19 September 2003, although it was only received by the Commission on 16 October 2003. Mr. Sesay wrote: “… I have been in detention for six months now and trial is nowhere to be seen. I have therefore decided to renew my commitment for peace by fulfilling my obligation as a Sierra Leonean and as a RUF now RUFP member to appear and testify before the TRC, which the absolute Lomé Accord set up to investigate the causes of the conflict and the effects of the conflict. […] The absolute Lomé Accord authorised the TRC to recommend solutions that will avert future conflict and solutions that will create a nation void of callousness and hatred; a nation where love will be discovered once again, where deceptions and other awful tactics for political power and wealth can no longer be part of our lives again; where respect for the Constitution and for one another is restored and where the truth will take us from the darkness to the light of God. It is therefore my burning desire to appear and speak nothing but the truth as the truth is the hinge for permanent peace and reconciliation.” 95. Legal counsel for Mr. Sesay, Mr. William Hartzog, indicated to the Commission that his client was potentially interested in both a confidential interview and a public hearing before the Commission. Detailed questions for Mr. Sesay were prepared and passed on to Mr. Hartzog. Counsel and the Commission agreed to prepare a joint challenge to the provisions of the Practice Direction preventing confidential interviews. A legal opinion was prepared and the Commission awaited instructions to emerge from Mr. Issa Sesay through his legal counsel. Sadly this joint challenge never materialised as the events to be described below overtook this initiative. DEVELOPMENTS IN SEPTEMBER AND OCTOBER 2003 96. The month of September passed without further word from the Special Court. Chief Hinga Norman was becoming increasingly impatient with the delays. He addressed a letter dated 2 October 2003 to the Commission entitled “Reminder to Testify before the TRC”. He wrote: “While
still looking forward to hearing from you on the issue of testifying
before the TRC, I have come by a copy of an interesting document
(PRACTICE DIRECTION) copy attached, compiled and signed by the
Registrar-SCSL, with a series of illegal conditions, all intending to
obstruct my appearing before the TRC. I am not sure who the Practice
Direction is struggling to protect - the prosecution, Accused, or who?
I
am sure the reason for the establishment of the TRC was to encourage
the speaking of the TRUTH. In demonstration, but not limited to the
attached document (“I HAVE A DREAM etc.”), I intend to reveal a lot
more so this Country and the entire World could know the truths that
are being presently concealed. In the efforts to bring out the facts, I
am not in the least afraid of any of the conditions indicated in the
illegal document, which the Registrar has now produced as hindsight.
Since
I do not know the reason for the obstruction and the long delay in
testifying and also the denial of a speedy trial, I have by letter
authorised my daughter to organise a Media conference and to release
all relevant documents that have trans-crossed between the SCSL, TRC
and myself, to the attention of the National and International public
for justice and fair play.”
Hinga Norman’s letter was copied to
several embassies, as well as to media institutions in Sierra Leone and
abroad. The attachment to the letter revealed Hinga Norman’s account of
events leading up to the coup by renegade soldiers in May 1997. Hinga
Norman claimed that he had presented evidence of the impending coup to
President Kabbah, who chose to ignore the warning. This information was
subsequently reported widely in the local press.
97. As the weeks slipped away without the production of the Special Court’s revised Practice Direction, the Commission seriously considered its options. One option was an urgent application to the Supreme Court of Sierra Leone for a declaratory order. The Commission commenced with the drafting of legal papers for such an application. These legal papers sought a declaration on two key issues: first, whether the TRC had the right, by virtue of the provisions of the Truth and Reconciliation Act 2000, to interview detainees held in the custody of the Special Court and, at its discretion, to conduct such interviews on a confidential basis; and second, whether awaiting trial prisoners held at the detention facility of the Special Court had the right, by virtue of the provisions of the Act, to appear before the TRC. Both of these rights would be sought subject only to reasonable security and administrative conditions as imposed by the Special Court.” 98. The Commission decided in principle to proceed with its application for a declaratory order. However, the Commission was also advised to exhaust all its remedies before the Special Court prior to approaching the Supreme Court. Accordingly, Commission staff began simultaneously to prepare legal papers to challenge the validity of the Practice Direction before the Special Court. While this process was underway, the revised Practice Direction was issued by the Special Court. Subsequent time constraints prevented the Commission from proceeding any further with its proposed application to the Supreme Court. THE SPECIAL COURT’S REVISED PRACTICE DIRECTION 99. On 6 October 2003, the Registrar forwarded a copy of the Special Court’s Revised Practice Direction, which had been adopted two days previously. While the Revised Practice Direction altered the earlier Practice Direction in some respects, it did not take matters much further. The main change was that the record of the interview with a detainee would no longer automatically be transmitted to the Prosecutor. The transcript would instead be lodged with the Court Management Section (the Registrar) and could be made available to any party to the criminal proceedings, including the Prosecutor, upon order by the Presiding Judge. Even in the event that the Commission were to exercise its prerogative to classify the interview as confidential, there was to be no genuine “use immunity” for the contents of such an interview. Instead, any party, again including the Prosecutor, could apply to the Court for an order that the “confidential” information be disclosed in the interests of justice. 100. The Revised Practice Direction provided something of a presumption in favour of granting permission for access: “The
Presiding Judge shall grant approval (conditional or otherwise) if the
said Judge is satisfied that the detainee agrees to the questioning and
has been fully advised…
[…] In such circumstances, the request
for questioning will only be rejected if the Presiding Judge is
satisfied that a refusal is necessary in the interests of justice or to
maintain the integrity of the proceedings of the Special Court.”
101. The balance of the Revised Practice Direction remained largely the same as the original Practice Direction. The Commission recorded its objections in a letter to the Registrar dated 8 October 2003. In this letter the Special Court was advised that it was impossible for the Commission to interview detainees on a confidential basis under the conditions set out in the Practice Direction: “The Practice
Direction constitutes an effective denial of the right of detainees
under the Truth and Reconciliation Commission Act 2000 (“the Act”) to
be interviewed on a confidential basis.
The TRC will not place
in jeopardy the rights of the detainees under the Act, nor will it be
party to the potential undermining of their rights to a fair trial by
engaging in a process in which the Commission is not permitted to
guarantee strict confidentiality. Accordingly, the TRC hereby gives
notice that it will not make use of the Practice Direction, as it is
presently formulated, for the purposes of conducting confidential
interviews or closed hearings.”
102. The Commission notified the Court that it would make use of the Practice Direction only to apply for and arrange public hearings with the detainees. As it turned out the first of the detainees to write to the Commission had asked to give his testimony in the form of a public hearing. Hence the Practice Direction would be used to apply for a TRC public hearing with this detainee, namely Chief Samuel Hinga Norman. 103. The Registrar, corresponding from New York City, stated on 17 October 2003 that he was: “…
deeply disappointed at [the TRC’s] refusal to make use of the revised
Practice Direction, in so far as it relates to the conduct of
confidential or closed hearings…”;
and“also disappointed that so
much of the correspondence with the Commission on this issue has been
couched in somewhat aggressive language which could be seen to be both
inappropriate and counter productive, given that both institutions have
difficult tasks to perform and expectations to meet.”
REQUEST FOR CHIEF SAMUEL HINGA NORMAN JP TO APPEAR BEFORE THE COMMISSION IN A PUBLIC HEARING 104. On 7 October 2003, the Commission submitted its application to hold a public hearing with Chief Hinga Norman. The Commission made the following statements in setting out the purpose for its request: “The TRC perceives Chief Samuel Hinga Norman JP to
have played a central role in the conflict in Sierra Leone. The
Commission’s report - insofar as it purports to present an impartial
historical record - would not be complete without hearing from Chief
Hinga Norman the particular details of his role in the conflict and his
insights and views into its causes, course and character.
On 26
August 2003 Chief Hinga Norman stated in a letter to the TRC that he
wishes to appear before the Commission in order to give testimony
pertaining to the conflict in Sierra Leone. Since Chief Hinga Norman’s
letter, the TRC has sought to arrange such testimony under conditions
satisfactory to all parties. The present request represents the
Commission’s unerring effort to secure such testimony.”
105. With time running out, the Commission also put forward the strongest possible case for the matter to be treated with special urgency: “The
Commission is operating under considerable time pressures. Section 5(1)
of the Act provides for the operation of the TRC for a period of one
year. The period of one year expired on 4 October 2003, although
agreement has been secured from the President of Sierra Leone to extend
the period by virtue of the aforesaid section until the end of December
2003.
Funding for the TRC is provided only until the end of
December 2003. In practice this means that the report of the Commission
must be finalised and sent to the printers during November. This in
turn means that the report itself should be completed towards the end
of October or early November. All interviews and hearings should thus
be concluded without delay.
Every day that passes without the
commencement of interviews or hearings with the detainees held by the
Special Court constitutes a potential denial of their rights under the
Act. Moreover, any further delay in resolving this matter will severely
undermine the ability of the TRC to complete its mandate under the Act…
In
the circumstances the TRC has outlined a clear case to have this
request expedited with the utmost urgency. The Commission requests
respectfully that the Special Court make the necessary arrangements to
hold a hearing of Chief Hinga Norman on Monday 13 October 2003 or as
soon thereafter as is conveniently possible.”
106. The Special Court did not respond to the Commission’s request for the hearing of Chief Hinga Norman to proceed on 13 October 2003. The Deputy Prosecutor, acting on behalf of the Prosecutor, only filed his objections to the application in an inter-office memorandum dated 21 October 2003, a copy of which was received by the TRC late on 22 October 2003. 107. Meanwhile, following consultations with a member of the Bao legal defence team, the Commission submitted an application on 10 October 2003 to conduct a public hearing with Augustine Ato Bao. The Bao legal defence team, surprisingly and without reference to the Commission, filed their own response to the Commission request on 17 October 2003 in which they stipulated a number of conditions to the proposed hearing. This action on the part of the lawyers was to provide the Court with sufficient grounds to form the view that Mr. Bao “was uncertain as to whether to testify before the Commission”. Objections of the Prosecutor to a Public Hearing with Chief Samuel Hinga Norman
108. In his two-page memorandum of 21 October 2003, the Prosecutor divided his objections to a public hearing with Chief Hinga Norman into three sub-headings, namely: the interests of justice; the integrity of the proceedings; and other concerns relating to possible civil unrest. 109. Under the heading of “The interests of justice”, the Prosecutor submitted that a hearing before the Commission: a. could be considered “sub judice”;
b. could be “contrary to public policy” in that it could defeat the interests of justice to allow an accused to litigate or plead his case in the public when he would be entitled to a fair and public trial in due course; and c. could weaken the “institution of justice” as guaranteed by the Statute of the Special Court by “a defendant exploiting the occasion”. 110. The Prosecutor’s “integrity of proceedings” objections can be summarised as follows: a.
The mere act of Chief Hinga Norman testifying before the TRC could stir
up public feelings and frighten victims and potential witnesses from
the proceedings. Indeed the public nature of the hearing would enable
Chief Hinga Norman to intimidate victims and potential witnesses,
probably through subtle means, which would irreparably damage the
integrity of the proceedings.
b. Such a forum would provide Chief Hinga Norman with the opportunity to incite violence or threaten the security of the Special Court. c. As some of the evidence to be used in the prosecution has been formally disclosed, any intimidation may have a direct impact on victims and witnesses. The Presiding Judge had already ordered protective measures against Chief Hinga Norman to ensure that victims and witnesses were sufficiently protected. 111. Finally, the Prosecutor submitted under his “Other concern” heading that peace in Sierra Leone rested upon a ”fragile equilibrium”, which could be put in peril by the holding of the hearing. ARGUMENT BEFORE JUDGE BANKOLE THOMPSON 112. The Hinga Norman matter was set down for argument on 24 October 2003 before the Presiding Judge of the Trial Chamber, Judge Bankole Thompson. The Commission in its submissions dealt with each of the Prosecutor’s objections. The Interests of Justice
113. In relation to the sub judice objection, it was pointed out that, in law, any impugned public act or publication must create a real and substantial risk of prejudice to the administration of justice and it must be made with the specific intent of prejudicing a fair trial. The claim that the mere holding of a Commission hearing in advance of a trial would in itself violate the rule had no basis in law. The Prosecution did not supply any factual grounds to support a contention that there was any danger of the sub judice rule being violated. 114. The Prosecution’s contention that it would be against public policy for an Accused to plead his case in public when he will be entitled to a fair and public trial was academic given the agreement reached between Defence Counsel and the TRC not to canvass issues forming part of the charges against Hinga Norman. Nonetheless, the Commission’s representative pointed out that, in the absence of a specific allegation, it could not be assumed that a mere appearance before the Commission would jeopardise the “interests of justice”. 115. The Commission noted that the Court was obliged when assessing the “interests of justice” to take into account a range of factors across a broad spectrum of interests. The Commission specifically pointed out that: “The Special Court for Sierra Leone does not operate in a
vacuum, but rather as one integral part of the post-conflict landscape
in this country and as the standard bearer for wider principles of
justice on a national and international level.”
The Commission
submitted that the Court ought to be the guardian not only of the right
to a fair trial, but also of other human rights, including freedom of
expression. In the Sierra Leone context, there was an additional factor
to consider, namely the right of Chief Hinga Norman, a prominent Sierra
Leonean, to speak in a public forum before the TRC, to present his
version of and perspectives on a critical period in the country’s
history. It was submitted that any objection to the TRC’s request would
have to strike a balance, weighing the effects of banning Chief Hinga
Norman from speaking against the damage done to his freedom of
expression and his right to appear publicly before the TRC. No such
proportional assessment was undertaken by the Prosecution.
116. The Commission submitted that it was likely that Hinga Norman would feature in the TRC Report on account of testimony received from other sources. Fairness demanded that he be given an opportunity to provide his version of the conflict and to do so publicly. 117. Numerous other central role players in the conflict had been afforded their rights of testifying publicly before the Commission. Since there were examples of individuals in “comparable situations” to that of Chief Hinga Norman who had been granted the opportunity of a public hearing, the denial of an equal opportunity to Chief Hinga Norman in the absence of clear, substantial and reasonable grounds would constitute discrimination against him. It was contended that the harmful effects of a ban on Chief Hinga Norman from exercising his statutory and human rights far outweighed the speculative concerns raised by the Prosecution. 118. The Prosecution’s final “interests of justice” objection was that the institution of justice could be weakened by a public hearing before the TRC if a defendant were to exploit the occasion. The Prosecution did not allege that Chief Hinga Norman himself would exploit the situation, but rather claimed in the abstract that “a defendant” might do so. The TRC pointed out that it had already conducted a high-profile public hearing with an Accused before the criminal courts of Sierra Leone, namely Colonel (RUF) Vandy Kosia. No party made a claim that Kosia’s appearance at the TRC, on 24 May 2003, weakened the institution of justice. Integrity of the Proceedings
119. Under this heading, the Prosecution inferred that Chief Hinga Norman’s appearance before the Commission in an open manner may in itself stir up public feelings and pose a threat to the security of the Special Court. The Prosecution alleged that the security of its protected witnesses might be compromised by an appearance by Hinga Norman before the Commission. It was suggested that a public hearing would enable Chief Hinga Norman to intimidate victims “through more subtle means”. The suggestion was made without indicating what such “subtle means” might be. 120. The Commission invited the Judge to dismiss these suggestions as conjecture. The Judge was reminded that witness protection was essentially about keeping the identities of protected persons and in particular their locations secret. No allegation was made against Hinga Norman that he had breached standard protective measures apparently imposed to safeguard the identity of witnesses, even though he was granted reasonably unrestrained access to the outside world through communications with visitors and the use of his mobile phone. Threats to National Security
121. The Commission argued that the Prosecutor’s assertion that a public hearing for Hinga Norman could threaten the “fragile” peace was without foundation. It was pointed out to the Judge that the Commission had conducted many public hearings with key faction leaders and the process had never precipitated an adverse reaction from any group among the Sierra Leonean population. Emergent Norms in National and International Law
122. In an attempt to highlight the profound importance of the issue at hand, the Commission submitted that developments in national and international law created a presumption in favour of permitting Hinga Norman to appear before the Commission. Nationally, the established practice of the Truth and Reconciliation Commission had led to the recognition in national law of a de facto right to testify before the Commission. With regard to international practice, the Commission asserted the following: “In the light of developments in
post-conflict societies in the late 20th and early 21st centuries in
dealing with past human rights violations, there exists on the part of
victims a right to know the truth. Truth Commissions have been created
in several countries around the world to meet that recognised
obligation. There is considerable weight to the argument that
establishing the “truth” is an essential component of the universally
recognised “right to an effective remedy.” The Special Court is duly
bound to consider such a right in respect of the Sierra Leone
population in its determination of the parameters of this request “in
the interests of justice”.”
123. The Commission concluded its representations by suggesting that the historic moment had arrived whereby a decision had to be made as to whether these two institutions were indeed going to work together on a complementary basis or not. “Sierra
Leone finds itself at a special moment in its history. Indeed Sierra
Leone has the potential to offer the world a unique framework in the
difficult process of moving from conflict to peace. We have two
complementary institutions, namely the Special Court and the
Commission, that are central to this process. Indeed the President and
the Prosecutor of the Special Court are on record stating that the two
institutions will work together to uncover the truth and provide the
most comprehensive benefits to a post-conflict state.
The
outcome of this proceeding will in large measure determine whether two
such institutions can in fact be complementary. The consequences for
the people of Sierra Leone - and indeed for the people in all conflict
zones which envisage similar mechanisms of transitional justice - will
be far reaching.”
124. On 29 October 2003, representatives for the Commission, the Prosecutor and Augustine Bao argued before Judge Bankole Thompson on the question of Bao’s appearance before the Commission. The arguments of the Commission and the Prosecution were largely the same as those put forward in the Hinga Norman matter. Mr. Girish Thanki, who spoke for the Bao defence team, submitted in his representations to the Court that while many international commentators talk about the Sierra Leone conflict as a “war over diamonds”, there is another view that prevails at ground level. It is a view, Mr. Thanki continued, which reveals the “friction between rural Sierra Leone and urban Freetown” and which says much about “how the RUF came into existence, how it operated and how the conflict impacted on this nation”. Stressing the importance of the public appearance of his client before the Commission, Mr. Thanki concluded that the real story of the conflict, including these alternative views, “belongs to the people of Sierra Leone”. THE DECISION OF JUDGE BANKOLE THOMPSON 125. On 29 October 2003, Judge Bankole Thompson denied the request by the Truth and Reconciliation Commission for a public hearing with Chief Hinga Norman. Judge Thompson reasoned that the Commission had prejudged the matter and was therefore violating Hinga Norman’s presumption of innocence. Judge Thompson’s reasoning hinged upon the part of the request where the Commission had said that it was important for Chief Hinga Norman to testify because he had “played a central role” in the conflict. In short, Judge Thompson’s reasoning was defective. 126. The Thompson Decision precipitated considerable disillusionment among members of local civil society. Whilst it was not to be the final word on the question of whether Chief Hinga Norman would appear before the Commission, it represented the first public departure by the Special Court from the previously co-operative position it had adopted towards the Commission’s work. Whatever potential remedial measures stood to be rendered subsequently on appeal, Judge Thompson’s denial of the request heralded a significant turning point in the public appraisal of the relationship between the two institutions. 127. The Commission had been advised by the Registrar that the Special Court’s Revised Practice Direction contained a presumption in favour of granting a request. Judge Thompson’s decision however afforded little regard to such a presumption. In fact the Judge limited himself to “two alternative judicial options”, which he characterised as unconditional approval or flat refusal. He failed to consider a third option, namely the approval of the request subject to conditions. This narrow interpretative approach, which was apparent throughout the Thompson Decision, reflected unwillingness on the part of the Trial Chamber to accept that the interests of justice in Sierra Leone in fact hinged upon the successful fulfilment of the mandates of both the TRC and the Special Court. 128. The fact that Chief Hinga Norman played a central role in the conflict should not have been contentious. After all, it was the Prosecutor who brought an indictment against Hinga Norman and a Judge of the Special Court who authorised that indictment. If there was no credible suggestion that Hinga Norman had played a central role, then he ought not to have been indicted in the first place. As it was, the indictment of Hinga Norman had been approved over six months earlier by the Special Court in the following terms: “Samuel
Hinga Norman was the National Co-ordinator of the CDF. As such he was
the principal force in establishing, organising, supporting, providing
logistical support [for] and promoting the CDF. The Accused was also
the leader and commander of the Kamajors and as such had de jure and de
facto command and control over the activities and operations of the
Kamajors.”
Based on the terms of this indictment alone, it was
entirely reasonable for the TRC to conclude that Hinga Norman’s
testimony would be relevant to its mandate and appropriate for airing
in a public session of the Commission.
129. The presumption of innocence is a right belonging to Chief Hinga Norman until proven guilty. Even if he should wish to give up this right, it would be done entirely within his own discretion. In refusing the request for a hearing, Judge Bankole Thompson violated Chief Hinga Norman’s freedom of expression, as well as his right, as a person presumed innocent, to continue to participate in the reconciliation process in his own country. 130. In the Commission’s view, the learned Judge strayed beyond the parameters of his decision-making prerogative. He concerned himself with what he perceived to be the interests of the Accused and appointed the Court as the guardian thereof. Indeed, he surmised, without any reference to rights or to the close engagement of Defence Counsel, that the Court was the “very forum to which he looks for the protection of his due process rights and ultimate vindication.” He further saw fit to criticise what ought to have been the unfettered right of Chief Hinga Norman to exercise his fundamental and statutory rights to testify before the Commission, where he concluded that: “I
would be grossly remiss, if not derelict, in my judicial duty if I
failed to place on record my strong judicial reservations about the
proposed course of action, on the part of the Accused.”
131. The learned Judge adopted what he referred to as a “contextual reading” of the TRC Act 2000. He equated “perpetrators” with offenders who are “willing to confess their guilt.” Building on this platform, he averred that the word “perpetrator” had to be given a “restrictive connotation” and “therefore, cannot properly be applied to an ‘indictee’ who has pleaded not guilty.” Finally the Judge made a conclusion in which he stated his view of the application of the TRC Act 2000: “[The
TRC Act 2000] is predicated upon the notion of restorative justice
which aims at the reconciliation of self-confessed perpetrators,
victims, and the state as a whole. Once a person has been indicted, he
does not fall within the statutory ambit of the Act.”
132. The Judge tendered such reasoning apparently as a means of excluding the detainees from the TRC process. Yet not even the most accommodating reading of the TRC Act 2000 would permit the novel interpretation constructed by Judge Thompson. To have confined the meaning of “perpetrator” to the definition suggested by the Judge would necessarily have excluded the vast majority of perpetrators in the Sierra Leone conflict from the ambit of the Commission. The reality of the Commission’s work was that most perpetrators were not willing to disclose their involvement in atrocities, at least not in advance of a hearing or interview; yet their participation in the TRC process was vital to developing understanding, to recording historical facts and to opening the accountability debate to the Sierra Leonean public. 133. Having legally excised the detainees from the purview of the Commission, Judge Thompson concluded that the institutional role of the Commission must yield to the other “societal interest” at stake, namely the Accused’s right to a fair and impartial trial. In support of this contention the Judge proposed that persons facing international crimes enjoyed what he called “super due process rights”: “In the
overarching scheme of things, it is the duty of International Judges to
safeguard the interest of the International Community that persons
charged with international crimes are accorded what may be
characterised as “super due process rights” in vindicating themselves
regardless of national considerations, however compelling.”
134. Judge Thompson did not explain the meaning of “super due process rights”. He simply offered a single, un-sourced “perception” that international indictees are not afforded “adequate procedural justice” due to “the horrendous nature and enormity of the crimes” for which they have been indicted. 135. As far as the Commission has been able to determine, it seems that the notion of “super due process rights” in international criminal law was a novel construct of the Judge himself. The expression “super due process rights” was in fact an abstraction from the system of “strict review” applied at the sentencing phase of capital cases in the United States of America. Under that system, “super due process” is invoked in order to intensify the scrutiny lent by a court to the review of procedures undergone to reach a sentence of death. As such, even in the United States, “super due process” applies to the so-called “penalty phase” of a court’s adjudication, not to the trial phase and certainly not to the pre-trial phase. It was a wholly inappropriate notion for Judge Thompson to introduce into a decision of this nature. 136. Judge Thompson did not ascribe any significance to the arguments made by the Prosecution in its objection to the Commission’s request. The Judge in fact expressed his displeasure at the suggestion of the Prosecution’s representatives that they would “reserve their option to investigate further crimes if the Accused were to testify before the Commission”. He stated that this suggestion “was not necessary and does not accord with our profession’s respect for the doctrine of fundamental fairness.” 137. The decision of Judge Bankole Thompson left the Commission with much discomfort. The rights of Hinga Norman and indeed the other detainees to appear before the Commission had been dismissed on the basis of a novel but untenable reading of the TRC Act. Judge Thompson apparently sought to disqualify all detainees who had pleaded not guilty from coverage by the TRC Act. 138. Judge Thompson’s decision included another inventive but equally unsustainable contention: that due process rights - transformed into “super due process rights” - trumped the other rights of detainees and the wider society. The actual wishes of the detainee and the fact that he was represented by a team of highly qualified and experienced local and international lawyers were of little consequence to the learned Judge. In the wake of the Thompson decision, the Commission resolved to move the matter on to appeal before the President of the Special Court in its Appeals Chamber, Judge Geoffrey Robertson. THE APPEAL BEFORE THE PRESIDENT OF THE SPECIAL COURT 139. On 4 November 2003 the Commission and Chief Hinga Norman filed their joint grounds of appeal against the decision of Judge Bankole Thompson. The appellants noted some twenty-two (22) different grounds of appeal, setting out the individual questions of law and interpretation upon which the learned Judge had erred. The appeal was set down for the following day, 5 November 2003. Staff representing the Commission prepared written “short heads” of argument, which outlined the Commission’s objections to the Thompson decision. 140. The Commission submitted that the institutions of the Special Court and the TRC both had important roles to play in reaching the truth and addressing impunity in the context of post-conflict Sierra Leone. The Special Court seeks to prove and establish beyond reasonable doubt the elements of specifically-framed charges against individuals who are alleged to bear the greatest responsibility. It endeavours to reach the truth in relation to the role of those individuals. In so doing it would hopefully provide a deterrent against future abuses. 141. The TRC, on the other hand, endeavours to establish the wider truth in relation to the roles of all key players and factions in the conflict. It was averred on behalf of the Commission that it was only when the full truth (or as close to the full truth as possible) was placed squarely before the public that society is able to examine itself honestly and robustly. It was this exercise that would permit society to take genuine measures to prevent repetition of the horrors of the past. 142. The Commission submitted that the two institutions should do everything within their powers to ensure that the dual causes of truth and addressing impunity were served, both at the level of individuals who bear the greatest responsibility and at the level of society at large: “We submit then that it cannot be a question
of the role of one institution giving way to the role of the other. It
can only be a question of how we arrive at a solution that permits
Sierra Leone to reach the truth and address impunity at both essential
levels.”
143. The Commission contended that Judge Thompson had failed to consider this critical question. He had failed to situate his decision in the appropriate context of Sierra Leone’s unique transitional justice arrangement. In particular it was submitted that the trial Judge had: a. misrepresented the institutional
character of the TRC, particularly in his tendency to assign to the
Commission the character of a court of law;
b. failed to undertake any form of proportional assessment of the various rights and interests at stake in this matter; and c. erred in his characterisation of the Special Court as a guardian of so-called “super due process rights”. The Bintumani Appeal
144. As it turned out, none of the matters raised by the Commission in its written heads of argument were canvassed in the appeal before Judge Robertson. The hearing was held in a conference room at the Bintumani Hotel in Western Freetown on the evening of 5 November 2003. The appeal turned out not to be an appeal at all but rather something of an unstructured discussion. 145. A few minutes prior to entering the appeal venue, the Commission’s team was surprised to learn from the Hinga Norman Defence lawyers that there would be no need to present any arguments, since Judge Robertson had advised them informally that he was inclined to let the hearing with Hinga Norman proceed. The Judge was simply interested in working out the “mechanics” of the hearing. There would accordingly be no appeal as such but simply a “discussion” to settle the details. The Defence and Commission teams walked into the conference room with a modicum of relief. Their sense of security proved to be a false one. 146. While there was no appeal in the formal sense, the impression conveyed to the Commission by the Defence lawyers was not entirely correct. As the hearing progressed, it became clear that it was not simply a question of settling the mechanics for a hearing. Judge Robertson would instead swing from an apparently permissive position at the beginning of the hearing to a diametrically opposing position at the end of the hearing. At the close of the hearing the Judge, to the surprise of the Commission’s representatives, proposed that the Commission ought to suspend its activities until the completion of the trials before the Special Court. 147. At the commencement of the appeal “hearing”, Judge Robertson explained that he was “going to come at it from a different position”. He explained that there would be no need for a formal appeal and that he intended to conduct the proceedings informally by way of a discussion. No objections were lodged at the time as the representatives for the Applicants had been primed to expect a positive outcome. Yet with hindsight there ought to have been no such striking departures from conventional procedure and from the Practice Direction, which referred to “an appeal”. 148. Judge Robertson’s novel approach did away with the rigours of standard appeal practice. The Judge confirmed his approach in his written decision. He conceded that he was not treating the appeal “strictly as an appeal” and went on to assert his choice to regard it as “a fresh hearing”. 149. The substance of the Bintumani Appeal began with a lengthy overview of the background as seen through the eyes of Judge Robertson. Excerpts of the Judge’s overview are set out below: “…. This problem is not really new.
It’s been discussed in the literature. We all thought it possible to
avoid the problems that were predicted to arise. This problem was not
foreseen but it has arisen… Lomé and the TRC Act did not make provision
for the Special Court. Had it done so it would have made it clear what
[the TRC] could and could not do. … In respecting its missions [the
TRC] must be placed in a position to establish a historical record. The
Special Court would avoid, if it could at all, interfering with that
first objective of the TRC.
[…] Here we have an indictee who has
pleaded “not guilty.” The first perspective is to give Hinga Norman his
stand. In general it does not seem to me to pose any problems at first
blush. Defence Counsel gave the client expert advice.
As far as
Hinga Norman is concerned … in some quarters he is a hero, in others, a
villain. … When the matter first arose the first consideration was
“freedom of speech”. An indictee retains such as is compatible within
the constraints of Court… My main concern is not to inhibit anyone from
giving testimony in any form but to let them know what they are letting
themselves in for; particularly if [it is] going on public record. …
It’s wrong to bar the prosecution. But [the] client [must] be aware of
the risks.”
150. The Judge appeared to be setting the scene for the granting of the appeal. He asked whether all the parties were in general agreement with the overview he had provided. The representatives of all parties reacted in the affirmative, agreeing, as Mr. Varney stated for the Commission, “in large measure”. The Judge then sought from Jim Johnson, the Prosecutor’s representative, certain background details on Hinga Norman, including his role in the current Government. He further raised the question as to whether Hinga Norman had the “approval of Government” when he was conducting operations. Mr. Johnson replied that he did. The Judge then turned to Defence counsel, Tim Owen, and asked whether this would be part of Hinga Norman’s defence, to which counsel replied that it would be. This answer brought the role of President Kabbah into sharp focus and the Judge added: “If you establish a prima facie against him [President Kabbah], he’ll have to appear in the witness box.” The Judge suggested that Hinga Norman had “reached the point where [he] had decided to take the risk of testifying to the TRC”.
151. Judge Robertson then began to consider the modalities of a proposed hearing and turned to Howard Varney, the Commission’s representative: “[So effectively] you want to take over the Special Court for a few days and install TV cameras, etc.”
The Judge wished to know which television and radio studios would be present during the hearing. He enquired into details as to how the hearing would be portrayed on television and whether the Sierra Leone Broadcasting Service would be content to broadcast digested proceedings in a format he described as “highlights of the day’s play”. He wished to know details such as: who the Commissioners were; who would lead the evidence on behalf of the Commission; whether the evidence was under oath; how long the hearing would last; whether counsel would take Hinga Norman through his statement; and whether there would be cross-examination. Mr. Varney dealt with each of these questions as far as was possible, but stressed that the procedure for the Hinga Norman hearing was yet to be determined because it would ultimately rely upon an agreement between the Commission and the Defence team. 152. The Commission laments the fact that the President of the Court chose to give deference to precedents from contexts that bore little relation to Sierra Leone. Judge Robertson made no reference to the available examples of TRCs in action, such as the South African precedent or even that of the detainees in Pademba Road Prison. Judge Robertson instead preferred to highlight the experience of the Hutton Inquiry and made comparative remarks on the case of John Stonehouse. 153. The Judge turned to the question of the TRC Report and revealed that he had resolved some of the temporal problems in his own mind based on assumption: “I had always assumed that the report would be
published before the trials started [to serve] as a useful tool of
judicial notice.”
He enquired from Mr. Johnson when the
Prosecution expected to commence the trials. Mr. Johnson replied that
he was “foreseeing early next year [2004]; February or March.”
154. Judge Robertson then wished to know whether the Commission would “make a determination on the guilt or innocence of certain individuals”: “Has the Commission addressed the issue of making judgements on people? Would the TRC make judgements?”
Mr. Varney explained the nature of findings that truth commissions make and reminded the Judge that “the TRC is not a court”. Judge Robertson indicated that it would be preferable if the Commission refrained from making pronouncements on the roles and responsibilities of the indictees held by the Special Court. 155. The Judge advised that the Court would have to “deal with the public expectations and the way those play out on witnesses.” He added that “finding the historical truth of what happened may overlap with the [Special Court’s] investigations.” Turning back to the question of media coverage Judge Robertson stated: “Visions come to me of Goering at the German TRC of 1946 - giving radio and TV performances of his version of the war… It makes me feel uncomfortable.” 156. At this point Mr. Johnson on behalf of the Prosecution said that there were “ongoing efforts to intimidate and scare witnesses right now”. He added: “I
would hate to see this being used in some effort to promulgate that. I
can provide documents to you, but not other parties around the table.
The concerns of July apply now, and in fact possibly apply more so.”
157. The Judge and the Prosecution then engaged in a discussion on Hinga Norman and the potential volatility of his supporters: Judge Robertson: He was the head of a military unit? An armed force that was fighting, perhaps too vigorously, in support of the Government? Mr. Johnson: Certainly fighting in support of the Government. His force [was] sometimes sanctioned by the Government. Judge Robertson: Have they laid down arms? Mr. Johnson: Some of them have done. 158. When the Commission and Defence lawyers attempted to direct Justice Robertson back towards the question of rights he responded: “I’ve made the Court’s view clear. Rights are amenable to dilution.”
159. Now firm in his view that a public hearing before the Commission would be tantamount to giving Hinga Norman a chance for a “party political broadcast”, Justice Robertson came up with his proposal: “The
TRC has apparently never thought to take a statement from him… Hinga
Norman is entitled to send his account of the conflict in the form of a
book; a written version which could be carefully considered by his
lawyers… There would be minimum risk to him; [it would be of] great
help to you; [it] would not measurably damage the integrity of the
Special Court…. What about a written submission with Commissioners
invited to go and ask questions [on the written submission]?
160. The Judge then commented on the wisdom of having two institutions such as the Special Court and the Commission in operation at the same time: “It may be that our hope of working together and at the same time may not be possible.”
He suggested that the best resolution would be for the Commission to suspend the issuance of its report until all the trials at the Special Court were complete. This would deal with the concerns of the Prosecution; the Commission would be able to glean useful materials from the trials and more importantly the Commission could then arrange all t |
