Chapter 6: Access to justice

6 Access to justice

 

SIERRA LEONE
A country review of crime and criminal justice, 2008

 

African Human Security Initiative

Monograph No 160, May 2009

 

General overview of access to justice in Sierra Leone

According to the Ministry of Justice, in a technical sense ’access to justice’ focuses on how fairly litigants are treated, the justness of results delivered by the justice system, the speedy manner in which cases are dealt with, the litigants’ understanding of the justice system, the responsiveness of the system to those who use it, whether the appropriate procedures are provided at a reasonable cost and, most important, the effectiveness of the system taking into consideration how adequately resourced, reliable and organised the justice delivery system is.10 Generally, ’access to justice’ broadly refers to how people from different backgrounds are able to equally and equitably gain from the justice delivery system.

The concept of the rule of law is central to the administration of justice in any civilised state. Without the rule of law, and without fair and administrative justice, the existence of human rights laws would be of little significance. The overall objective of New Partnership for African Development (NEPAD) is to ensure that policies and practices of participating countries are consistent with its established principles and core values, which encompass political, economic and corporate governance principles, and democracy. Fair and equitable access to the justice system to a large extent consolidates the objective of democracy and the promotion and protection of human rights.

Internationally, standards have been adopted on the rights of access to judicial and other remedies that serve as a suitable and effective grievance resolution mechanism against violations of human rights. One of these is Article 10 of the Universal Declaration of Human Rights (UDHR 1948), which provides as follows:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his or her rights and obligations and of any criminal charge against him/her.

This article forms the benchmark to a series of established human rights standards to which Sierra Leone is a party. Ratification of this declaration gives states a positive duty to organise their institutional machinery in such a manner that all social or economic obstacles that prevent or hinder the possibility of access to justice by all individuals is eradicated. One cannot overstate the importance of Article 10 of the UDHR for a country like Sierra Leone in which the majority of people live on less than US1 a day.

Section 8(2c) of Sierra Leone’s Constitution provides for ’the operation of the legal system that promotes justice on the basis of equal opportunity, and that opportunities for securing justice are not denied any citizen by reason of economic or other disability’.11 In contrast to the Constitution’s intention, however, it is evident that a high percentage of Sierra Leoneans have limited or no access to justice, specifically to justice before modern law. This is because most litigants are simply not aware of their rights and, most importantly, cannot meet the financial demands of accessing justice, as provided for in section 17(2b)12 of the Constitution.

The legal system under which Sierra Leone operates is bifurcated, as it encompasses elements of traditional or customary law13 and a formalised system based on English common law. However, in view of the high level of illiteracy amongst Sierra Leoneans, the majority of the disputes enter the customary law structure. The country’s local tribunals that existed during the colonial regime were formalised in 1963 by the Local Court Act with the specific objective to:

consolidate and amend the laws relating to the local courts, to provide for the extension of their jurisdiction and for the hearing of appeals of such courts and to make certain accidental and consequential provision for the administration of justice in the provinces.

According to a 2007 study on access to justice in Sierra Leone (Sierra Leone Human Rights Commission 2007), 85 per cent of Sierra Leoneans fall under the jurisdiction of customary law, which remains the primary avenue of trust for the redress of violations of rights or law in the rural areas.

Sierra Leone’s legal system consists of three basic elements: the Magistrates’ Courts, where proceedings are based on partly outdated British statutory law and conducted in English, the local courts,which apply regionally diverse non-codified customary law, and the technically illegal but widespread Kangaroo14 courts operated by paramount chiefs, who also apply customary law (KAIPTC 2005).

Sierra Leone’s justice system has gone through turbulent times. Dating back to the colonial era, the principles of the rule of law and an independent judiciary were deeply observed in Sierra Leone’s pre and post-colonial eras. The country’s inherited legal system worked effectively, reflecting no conflict between law and politics, until 1961 when the country gained independence. Recognition of the potential threats that an independent judiciary could pose to the exercise of power, led to the emergence of battle lines between law and politics (ibid.) Notwithstanding the ordeals the judiciary went through in trying to maintain its independence, it eventually lost the battle. This led to the citizenry loosing its civil, political, economic and socio-cultural rights.

Exacerbating the state of the post-colonial legal system was the emergence of the rebel war. The rule of law, which is premised on legality and which states that nobody can be punished or subjected to material or physical loss through the arbitrary exercise of discretional power by the government, was grievously eroded (Ibid.). The legal structures responsible for enforcing law and order were in total disarray, giving rise to excessive corruption by government officials, impunity, the arbitrary persecution of citizens and gross violation of human rights. This is evident from 2001 studies of the legal system (ibid), which indicated overwhelming consensus among legal practitioners and the lay public about the subjectivity of the judiciary in the administration of fair justice. The SLTRC report (2004) noted that one major reason considered to be a catalyst for the civil war was the mismanagement of the justice sector and the unfair trials by and judgements of both the customary and formal legal mechanisms. This resulted in a loss of respect for the legal system – people gradually lost faith in the system and refrained from accessing its services (Sierra Leone Truth and Reconciliation Commission 2004).

Excessive violence against women and children was the order of the day during the country’s political instability, leaving a substantial number of women and children displaced, orphaned and traumatised. Children were subjected to terrible atrocities and many were abducted and forced to fight as child soldiers. Little girls were raped, kept as sex slaves by the rebels and were eventually impregnated. Boy child-soldiers were especially used as combatants and they unleashed suffering on adults and their peers. Child combatants themselves received severe punishments by ‘authorities’ that abducted or recruited them (LAWCLA 2005).

Amnesty International (2004) reported that an estimated 5 000 child combatants were serving under both government and opposition forces in the Sierra Leone conflict, whilst 5 000 others were recruited for labour by the many armed groups in the country. Children abducted or recruited during the war were constantly drugged to keep them active on the battle front. Drug abuse became a common phenomenon for children during this time. Nationwide surveys conducted after the war revealed that the number of children on the streets increased rapidly after the conflict. Many were displaced or orphaned, and demobilised child combatants engaged in various negative activities, including drug abuse (Fofanah 2005).

Similar findings from the Rapid Assessment Survey conducted by the National Commission for War Affected Children (NaCWAC) on street children and other war-affected children in 2004 disclosed that 53,5 per cent of street children and 23 per cent of other war-affected children had single parents, whilst almost 14 per cent of street children and four per cent of the other war-affected children interviewed were orphans. The findings also revealed that hard drugs like marijuana were used by some of the street children (National Commission for Social Action – NaCSA 2004).

This resulted in an increase in the number of children that came into conflict with the law, as well as incidents of child abuse (Ministry of Social Welfare, Gender and Children Affairs 2006). An assessment compiled by the Family Support Unit (FSU) of the SLP noted that amongst the offences reported against children in 2003 and 2004, sexual abuse was highest, representing about 21 per cent of cases in 2003 and 22,5 per cent of cases in 2004 (Ibid.).

Access to justice for children in conflict with the law

Juveniles who find themselves in conflict with the law suffer undue delays in accessing justice. The formal court system has no fixed court specifically for juvenile proceedings. In addition, only one magistrate handles juvenile cases. This leads to the frequent adjournment of cases and extends the time spent by juveniles in remand homes. Even with a complete sitting panel comprising the magistrate, clerks, the police and the probation officer, the court staff is not fully trained and is ill-equipped to handle and respond to child crime, quite apart from adhering to acceptable minimum international standards, such as issues of security for the child’s person during trial (Ibid.).

According to Chapter 44 of the Children and Young Persons Act of 1960, every crime committed by a child or a young person, with the exception of homicide, should be dealt with by a Juvenile Court. In most cases, however, children are tried as adults in open court, with no consideration for the child’s right to privacy and confidentiality. Conditions in the detention facilities at remand homes and the Approved School for offenders fall below the provisions outlined in the UN Rules for the Protection of Juveniles Deprived of their Liberty, which stipulate, amongst others, that educational, medical and adequate recreational facilities must be provided.

In 2003, MSWGCA reported that 212 juveniles were in conflict with the law, including 110 cases in the Western Area (79 boys and 31 girls) and 102 in the three provinces. Of those in the Western Area, 26 were in the area’s Remand Home at Freetown, whilst 18 were kept at the Approved School. The rest of the affected children, including those in the provinces, were detained in police cells or prisons, had been discharged or were kept on bail. In 2005, 44 children and 2006, 32 children absconded from the Remand Home in Freetown because of poor security and lack of adequate care and feeding (MSWGCA 2006).

Access to justice for women

Access to justice for women in both the customary and common law system is rather chaotic in Sierra Leone. Women often encounter discrimination before the law, especially in rural areas and particularly in matters concerning marriage, property and inheritance. They face grave human rights abuses at the hands of men in their homes, in their communities and at the hands of local chiefs who act illegally by imposing fines, punishment and in some cases even arbitrary detention. An instance of a rural women’s lack of access to justice and arbitrary detention was reported by Amnesty International in The state of human rights in Sierra Leone (Sierra Leone Human Rights Commission 2007) as follows: ’In the Buya Romende Chiefdom in Port Loko District, a woman was put in chains because she refused to return to her husband who had deserted her for a period of two years’.

Although the Constitution provides some degree of equality and protection for women, constitutional guarantees do not always translate to equal access or opportunity in the judicial or social sphere. Before the 2007 review of the Constitution by the Constitutional Review Commission (CRC), specific laws regarding adoption, marriage, divorce, burial, devolution of property on death and other personal laws, all of which are of great importance to women, fell under the purview of customary law.

In Dambu Village, Njaluahun Chiefdom in Kailahun District, a woman reported that she was mercilessly beaten for refusing to succumb to the love advances of a man. When the matter was reported to the chief’s court, the victim was accused of seducing the man to get him attracted to her. She was eventually fined for the act of seduction.

Women and girls are vulnerable to physical assault, sexual abuse and violence. Commercial sex workers, both women and girls, are often beaten by their clients and even by the police. Most of these cases go unreported because experience has shown that the complaints of commercial sex workers are not taken seriously by law enforcement bodies as such women are not seen as rights holders (Amnesty International 2005).

The state of human rights in Sierra Leone (Sierra Leone Human Rights Commission 2007) also revealed that domestic and sexual violence as a source of human rights violation continued to be on the increase. Most complaints on domestic and sexual violence received by the Sierra Leone Human Rights Commission were referred to the FSU, which also addresses such issues.

In August 2007, during presentation of Sierra Leone’s initial second, third, fourth and fifth annual reports to the committee of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the concluding comments about increasing levels of violence in Sierra Leone and an inadequate response by government, raised concern. Government authorities were urged by the committee to improve the effective enforcement of domestic violence legislation to ensure that victims have immediate access to means of redress.

The low educational levels of women limit their access to information about their rights and responsibilities under law. Even where a law is non-discriminatory, women experience increased barriers to justice because of the characteristics of the social environment. The economic dependence of women limits their ability to seek justice in inter-family disputes.

Past and present governments have, however, made deliberate attempts to strengthen and address these problems. The initiatives involve collaborative efforts with NGO’s such as the JSDP and with others that provide alternative justice remedies.

Access to justice for the marginalised

Section 8(2c) of the Constitution guarantees the right of access to justice in courts for all without discrimination. Sierra Leone is a party to several international human rights instruments, including the International Convention on Economic, Social and Cultural Rights (ICESCR), the International Convention on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights (ACHPR). Even so, implementation of the provisions of some of the treaties continues to be a big challenge. The state does, however, provide limited assistance to accused persons who re being tried for capital offences such as murder, treason and robbery with aggravation (JSDP 2006).

Inaccessibility to justice by most Sierra Leoneans residing in the provinces has been put forward as one of the causes of the civil war. The HRCSL established that before 2007, courts in rural areas did not function effectively. Because of a shortage of court personnel in 2007, High Court sittings were irregular, which created a huge backlog of cases in Freetown and more so in the provinces.

To facilitate increased access to justice in Sierra Leone, comprehensive judicial reform programmes aimed at addressing the functional and institutional weaknesses inhibiting the effective functioning of the justice sector was launched in conjunction with the UNDP. The latter supported access to justice through the payment of attractive remuneration to 18 magistrates, establishing the Justice Sector Reform Secretariat, conducting an assessment of the Justice Training Institute, supporting the clearing of the criminal and civil case backlog, and building capacity in the justice system.

The importance of this support is evident by the fact that it has provided the opportunity for the cases of many people in the rural interior to be heard and for prompt action to be taken when a Magistrates’ Court failed to function. Discussions with the JSDP15 revealed that it was able to train Justices of the Peace and other law enforcement officers, and to support the appointment of court officials nationwide. These interventions improved access to justice and the disposal of cases in lower courts.

In 2004, in line with recommendations by the Lomé Peace agreement in 1999 and the SLTRC in 2004, the HRCSL was established in line with the Paris Principles16 by Act No. 9 of Parliament. The establishment of the commission was in realisation of the need for an independent body that will address all issues pertaining to the promotion and protection of the inalienable rights of the people of Sierra Leone in accordance with international norms and standards. The HRCSL is mandated to deal with all cases of human rights violations and abuses, including the torture and cruel treatment of children. Currently, the HRCSL is funded by the government, the Office of the High Commission for Human Rights and UNDP through the Democratic Governance Thematic Trust Fund (DGTTF).

The HRCSL handles complaints of reported human rights violations and effectively collaborates with other organisations working in the field of human rights and justice, as mandated by section 7(2 IV) of the Act, which requires ’the effective cooperation with non-governmental organisations and other public-interest bodies in the field of human rights’. Complaints of violations by state institutions and actors are investigated and recommendations are made. Discussion with the Complaints Registrar17 of the HRCSL brought to light that most of the cases reported are related to the deprivation of right to property, domestic violence and torture, cruel, inhuman and degrading treatment, deprivation of right to life, right to education and unlawful detention by police officers. The Commission effectively collaborates with the FSU and the MSWGCA on cases of domestic violence and child neglect. It should be noted, however, that the financial dependence of the HRCSL on external donors threatens the sustainability of the institution and potential beneficiaries (HRCSL 2007).

Another major stride in the promotion of justice was the establishment of the Sierra Leone Law Reform Commission (SLLRC) in 2007 to review the Constitution. This body recommended amendments to bring the Constitution in line with national and international economic, social and political developments, coupled with the recognition of human rights and the freedom of the individuals. Proposed amendments include the provision of adequate mental and health facilities, and structures and financial support for the expansion of the education sector, including the provision of free senior secondary school education.

In 2008 the SLLRC observed that guarantees for the protection of freedom and deprivation of property, and freedom of expression and the press had also been strengthened. However, it should be noted that in spite of Sierra Leone’s obligations under international law and the recommendations of the REC, the death penalty is still also maintained for serious offences such as treason and crimes of a political nature that do not directly lead to loss of life. Its general application continues to be in force, but is subject to review every two years with a view to its eventual abolition (Sierra Leone Law Reform Commission 2008).

Provisions in the constitution that discriminate against women, such as the sections on marriage, divorce, burial, adoption and devolution of property, have been reviewed to address women’s access to justice. Article 4 of CEDAW, to which Sierra Leone is a party, empowers all governments to take temporary special measures to remedy the adverse effects of discrimination against women. This facilitated the application of CEDAW to Sierra Leone in 2007. The MSWGCA, the Human Rights Committee of Parliament, the HRCSL and women’s organisations worked assiduously to ensure the passage in Parliament of the ’Gender Justice Laws’ in 2007, which include the Domestic Violence Act No. 2018, the Devolution of Estate Act No. 2119 and the Registration of Customary Marriage and Divorce Act No. 2220. These three pieces of legislation now provide equal protection and treatment for women before the law.

Regardless of the above, however, latent violence against women persists, especially in rural areas. Previous research conducted by Amnesty International21 highlighted women’s lack of access to justice, particularly in the customary law system, where male monopoly of judicial office and discriminatory customs and tradition tipped the scale against women. They continue to face grave human rights abuses at the hands of local chiefs who act illegally and impose fines.

Practices that take place in the name of tradition or customary law also violate women’s rights to live free from violence, coercion and discrimination. Consultations in Mayakah Lane, Shebora chiefdom in the Bombali District, revealed that a woman was seriously beaten by an old man for refusing his love proposal. When the matter was reported to the chief, the woman was molested by the chief and blamed for not heeding the man’s love advances. A woman in the same chiefdom revealed that another woman was beaten by a young man because she refused to fall in love with him. The chief supported the young man and stated that the woman must have made some sexual advances to the young man to be treated in that manner.

 

Despite the recent institutional changes aimed at ensuring access to justice, people’s perceptions about the integrity and impartiality of lawyers and local court officials remain a problem amongst litigants. Respondents in the three targeted regions, namely Bombali, Kailahun and the Western Area, and those in rural areas, revealed that partial justice, the levying of heavy fines and lack of resources to access the courts are major constraints. For instance, a respondent in Kailahun district revealed that:

A friend of mine was summoned to a court for refusing to pay someone he borrowed money from. The actual money he was supposed to pay was Le 150 000 (US$50). The man who summoned the debtor to court informed the chiefs that a sum of Le 500 000 ($167) must be paid to him. Despite the plea from the debtor that the information provided by the complainant was wrong, neither the chief nor the court clerks listened to him.

He was forced to pay the money. Other respondents noted that the rights of the poor are not respected and, because they do not have the money for litigation in local courts, their cases are dropped, thus denying them access to timely justice.22

Other efforts to make justice accessible

Section 23 of the Constitution guarantees the right of access by all to the courts, yet the vast majority of Sierra Leoneans specifically do not have access to the English law courts, thus making the constitutional provision meaningless. For people to be able to enforce their rights, legal representation is extremely important. Section 28(5) of the Constitution mandates Parliament to make provision for the rendering of financial assistance to indigent citizens whose rights have been infringed. Parliament has not yet made any such provision (Justice Sector Survey Report 2008). However, consultation is currently taking place aimed at setting up a Public Defenders Office (PDO) that would address cases at no cost.23

As Sierra Leone’s formal justice system is typified by low access to legal services, and then only in urban areas, alternative justice mechanism projects, e.g. legal aid services, have emerged. In 2001, the National Forum for Human Rights (NFHR)24 and the Open Society Justice Initiative (OSJI) decided to improve access to justice through the training of paralegals. Once trained, the paralegals are to offer legal education and advice to people in rural areas. This led to a study of the customary law conflict resolution mechanisms and general perceptions of the justice system in selected districts in the country (National Forum for Human Rights 2001).

Survey results have revealed that regardless of the law system in place, i.e. customary or common, justice is not accessible to most people as a result of weak delivery institutions, corruption and inadequate human resources. This resulted in a recommendation that human right groups should promote the accessibility of justice to all through various forms of intervention.

Between February and May 2004, LAWCLA in collaboration with Global Rights25 trained 120 paralegals from community-based groups in three districts in the East and the North, namely Kono, Kailahun and Kabala, in a range of legal issues faced by communities on a daily basis. Training centred on the role of a paralegal, the powers of the police and the rights of the accused, women’s rights, family law and domestic violence, property rights, succession and inheritance, children’s rights, sources of law, the court system and the legal process, local governance and the powers of local councils. The curriculum is found in A handbook for paralegals,26 which serves as a reference point for all paralegals.

According to the Juvenile Research Consultant27 of LAWCLA, the paralegals training programme was born out of the fact that lawyers are not able to provide adequate legal services to the rural and urban poor as there are too few in relation to the country’s population. From another perspective, the geographical distribution of lawyers is skewed, with the vast majority found in the bigger towns. Problems of language and distance make lawyers in Sierra Leone quite inaccessible to the ordinary person.

The United States Aid Agency (USAID) has also been working to stimulate citizen’s collective awareness of human rights issues through local civil society organisations. In 2006, USAID in collaboration with local communities and the NFHR launched a campaign to secure legal rights for citizens to access key information about government processes and decision-making. This led to the training of 117 paralegals that targeted women, youth groups and human rights associations. Training was geared towards monitoring, reporting and addressing human rights issues in the various communities.

Timap for Justice is an independent NGO that makes justice a priority. It evolved out of the 2003 rural paralegal project initiated by the OSJI and the NFHR. Currently Timap deploys 25 paralegals in 13 offices in the North, South and West of the country. Their main focus includes human rights education, negotiation and mediation. The programme is directed by two lawyers who train, supervise and support the paralegals in their work. The lawyers only intervene in cases where a paralegal is not able to achieve resolution, or where the harm or injustice is severe. Today, the Timap’s justice project has succeeded in achieving over 1 000 solutions to cases in various areas of intervention.

Faith-based organisations like the Methodist Church Sierra Leone (MCSL) in collaboration with the NMJD currently operates a partnership called ’Partners in Conflict Transformation’ (PICOT). Since 2006 PICOT has been supported by Irish Aid through Christian Aid Sierra Leone. The two partners have paralegals trained by the Centre for Public Interest Lawyers (CEPIL) of Ghana and currently retain the services of a lawyer that handles cases above the remits of paralegals. The main idea behind PICOT is to train paralegals who in turn would provide legal education in their communities and assist those who are in conflict with the law. The specific aim of PICOT is to ensure the delivery of justice to minors through mediation and human rights education. Currently MCSL operates in 60 communities in three chiefdoms in Kailahun District, namely Peje West, Peje Bongre and Njaluahum, whilst NMJD operates in 60 communities in the Bo and Kenema districts.

Discussions with the project officer28 in Segbwema, Kailahun District brought to light that between April 2007 and March 2008 a total of 298 women and 294 men successfully accessed the services of paralegals with satisfying mediation results at Kangaroo courts.29 Originally, chiefs felt threatened by paralegals in their communities, fearing that they would strip them of their responsibilities and other forms of coping mechanisms. However, this has not been the case and there are now instances of chiefs themselves sending cases to paralegals for redress.

Since 1996, Conciliation Resources, a UK-based organisation, has been working in partnership with the Bo Peace and Reconciliation Movement (BPRM) in its Community Peace and Empowerment in Southern Sierra Leone Project. Targeted districts are Bo and Pujehun and the project specifically addresses the needs of people hardest hit during the war. The main area of focus is the training of community-based peace monitors, who play a vital third-party dispute resolution and mediation role. BPRM regularly monitors the work of the peace monitors to identify their problems and to get background information about ongoing conflicts. Field reports are used to develop effective interventions.

In February 2008, the JSDP collected data on people’s access to justice specifically in rural areas with the aim of designing a plan to introduce the Community Mediation Scheme (CMS), which aims at empowering rural people to resolve minor disputes without undue cost.

The JSDP intends to implement the CMS in Bo and Bombali Districts as a pilot project, which reflects government’s commitment to making justice accessible to rural people. On another note, one of the recommendations in the report of the SLTRC was the establishment of the Alternative Dispute Resolution Scheme to address minor cases at community level – government intends to address this.

Recommendations

• The government should provide an effective national legal aid service in various districts to promote justice specifically for the poor in rural areas
  
  

• The JSDP, in collaboration with the judiciary, should embark on the training of more paralegals to address cases of injustice at the wider district level
  
  

• Measures to protect women must be strengthened. Despite the passage of laws to protect women, most village chiefs and court clerks who administer justice are not aware of these laws.
  
  

• Fines for various offences should be standardised to avoid the exploitation of litigants by chiefs and court clerks.