Sierra Leone

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Legal Resources for Sierra Leone The Constitution of Sierra Leone, 1991 E-Learning Resources eLearning Courses for Criminal Defense lawyers

Background

Sierra Leone is a West African country that sits on the coast of the Atlantic Ocean. It has an estimated population of over 6,000,000. As a republic, Sierra Leone had a directly elected unicameral Parliament, and a directly elected President.
Despite a recent civil war, and the restoration of the democratic government, the 1991 Constitution of Sierra Leone remains intact, with the Criminal Procedures Act of 1965, handling criminal matters.
There are four major provinces known as the Northern Province, Eastern Province, Southern Province, and the Western Area. Sierra Leone is a democratic country, and representatives are elected onto the district council to represent the people residing in that particular province. The three provinces are divided into twelve districts, and the districts are then divided into 149 chiefdoms. The Western Area rural district is not broken up into twelve separate districts. Six municipalities also have councils.
Freetown is the largest city, and the capital of Sierra Leone.

The Legal system

The type of legal system in Sierra Leone is hybrid of both common law (developed from the British system), statutory law, and customary law (tribal).
The Supreme Court is highest court in Sierra Leone, with a Chief Justice as its head. There are inferior courts for each jurisdiction in Sierra Leone that handle criminal procedures, and constitutional matter. Also, there is a High Court, and Appeals Court.
Law enforcement in Sierra Leone is carried out by the Sierra Leone Police, whose head is appointed by the President of Sierra Leone.

Legal Aid

State Sponsored legal aid
Although the law provides for attorneys at public expense if defendants cannot afford their own, the government has instituted legal aid in Freetown only, and has been able to serve only a few clients due to problems with establishing eligibility for legal aid. Fewer than 10 state counsels served the entire country, and they were often overburdened and poorly paid and thus available only for more serious criminal cases. Many indigent detainees did not receive legal advice prior to trial. Only defendants in the military justice system had automatic access to attorneys, whose fees were paid by the Ministry of Defense.

NGOs providing pro bono legal aid
The Legal Aid Act of 2012 is committed toward state-funding legal aid providers and university clinics, however, many legal aids are still provided by NGOs.
Existing NGOs providing pro bono legal aid:

National Forum for Human Rights

The Lawyers Centre for Legal Assistance

Timap for Justice

Access to Justice Law Centre

AdvocAid

BRAC’s Human Rights and Legal Aid Services Programme

Justice and Peace Commission

Methodist Church Sierra Leone Development and Relief Agency

Number of lawyers
298 lawyers (as of 2012).

Sources of defendant's rights

National sources
The Constitution of Sierra Leone, 1991:

Under Sec. 17 (2)(b), the Constitution promises all defendants “access to a legal practitioner or any person of his choice”.

Under Sec. 8(2)(c), the government is to play no role in the courts, and therefore justice should be based on the equal opportunity to all citizens. Justice should not be denied based upon economic situation or disability.

Under Sec. 20, a defendant is protected against “inhuman treatment” and torture.

Under 23(6), if a fee is associated with a criminal convicted citizen, it is not be administered more than 3 months after trial.

The Criminal Procedures Acts of 1965:

Sec. 52(1) “… if the trial is with a jury, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies.”

Sec. 111(2) “The accused shall be entitled to cross-examine the witnesses for the prosecution and shall be information of such right if not represented by a legal practitioner.”

Sec. 112 The defence has the right to recall any of the witnessed called by the persecution.

In a trial by jury Under Sec.192. (1), “At the close of the evidence for the prosecution and after the statement of the accused person before the committing Court has been put in evidence the Court shall in cases where the accused is not defended by counsel inform him of his right to address the Court, to give evidence on his own behalf of to make an unsworn statement and to call witnesses in his defence and in all cases shall require him or his counsel to state whether it is intended to call any witness as to fact other than the accused person himself.”

International sources:

International Covenant on Civil and Political Rights
Article 14:
(d) "To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) "To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

Sierra Leone is also a party to the International Convention Against Torture

Rights of the Accused

Legality Principle Sec. 106 of the Constitution, Parliament may make laws with retroactive effect, however, according to the OECD, Sierra Leone’s rising democratic governance strengthen its rule of law.

Right Not to be Tortured or Ill-Treated Under Sec. 20 of the Constitution, a defendant is protected against “inhuman treatment” and torture

Right to Medical Care Under Section 8 (3)(d) of the Constitution, the state must provide “there are adequate medical and health facilities for all persons, having due regard to the resources of the State…”

Right to be Informed of Charges Criminal Procedure Acts 1965, Sec. 140 (b): a person should be given notice of the trial either three or seven days of the indictment before the trial, depending on the case.

Right to be Presumption of Innocence Sec. 23 (4) of the Constitution clearly states that every person shall be presumed innocent until proven guilty, or pleaded guilty.

Right Against Self-Incrimination Sierra Leone does not have a right non self-incrimination.

Right to Counsel and Effective Assistance and the Right to Present a Defense Under Sec. 17 (2)(b), the Constitution entitles all defendants “access to a legal practitioner or any person of his choice”. However, with only ~300 attorneys is Sierra Leone, legal aid is scarce for those with low economic situations. Many now really on paralegals to seek legal advice.

Right to a Fair Trial and Due Process

• Right to a fair trial
  Article 17(4)(c) of the 2002 Statute of the Special Court for Sierra Leone states: “In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: … to be tried without undue delay.”
  
  
• Right to a speedy trial
  Article 17(4)(c) of the 2002 Statute of the Special Court for Sierra Leone states: “In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: … to be tried without undue delay.”
  
  
• Right to an impartial judge
  Under 23(1) of the Constitution, “Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
  
  
• Right to a trial by Jury
  “Trials are public, and the accused have a limited right to a trial by jury in the magistrate courts.” Under Section 145 of the Criminal Procedures Acts of 1965, a person can elect to a trial by jury, if the offence does not merit the death penalty, with a clear two-day notice to the court.
  

Right to Bail Under Sec. 80 of The Criminal Procedure Acts of 1965 a police officer may admit bail only to those who have been arrested without a warrant, or if the warrant permits. Furthermore, once the suspected person is released, they will be recorded by their name, address, and occupation.

Right Against Ex Post Facto Prosecution The Constitution protects citizens from double jeopardy, but Parliament has the power to enforce law retroactively, but only as they are being implemented under Section 106 (5). However, the Criminal Procedure Act of 1965 in Sections 47-49 states that a person may be convicted of a crime they were previously acquitted from if the facts are different, and more evidence comes to light. Generally though, a person in Sierra Leone is protected from Ex Post Facto criminal law.

Right against Double Jeopardy Section 23 (9) of the Constitution prevents double jeopardy from occurring in Sierra Leone, if the convicted was tried in a competent court.

Right to Habeas Corpus Under Section 8 (3)(d) of the Constitution, the state must provide “there are adequate medical and health facilities for all persons, having due regard to the resources of the State…”

Capital Punishment Criminal Procedure Acts of 1965, Sec. 213 (1) (a-b): Capital punishment may only be administered after the convicted has had the opportunity to appeal, or the time to petition for an appeal has elapsed.

Right to Appeal
Under Section 183 of the Constitution: “Any proceedings pending immediately before the entry into force of this Constitution before the existing High Court or any proceedings on appeal from that Court so pending before the existing Court of Appeal before the Supreme Court may be continued after the entry into force of this Constitution before the High Court or the Court of Appeal or the Supreme Court established by this Constitution as the case may be.”
Criminal Procedure Acts of 1965, under Section 212: “The Court shall inform every person condemned to death of the period within which, if he desires to appeal, his notice of appeal or of his application for leave to appeal must be given.”

Rights of Counsel

Under Sec. 17 (2)(b), the Constitution entitles all defendants “access to a legal practitioner or any person of his choice”. However, with only ~300 attorneys in Sierra Leone, legal aid is scarce for those with low economic situations. Many now really on paralegals to seek legal advice.

Means of Protecting and Enforcing Rights

Exclusionary Rule or Nullity of Procedure
There is no explicit statute in Sierra Leone pertaining to evidence abridging constitutional rights. Under the Criminal Procedure Acts of 1965, evidence is typically left to the jurisdiction of the magistrate judge.

Civil Action
Under Section 133 (1) of the Constitution: “Where a person has a claim against the Government, that claim may be enforced as of right by proceedings taken against the Government for that purpose, without the grant of a fiat or the use of the process known as Petition of Right.

Motions
No explicit statue protecting the right to motions.

Pre-Trial Procedure

POLICE PROCEDURES

Complaint/Information
The Police Complaints Commission is in charge of handling complaints from citizens against police action or corruption. In 2010, 35 officers were dismissed by the commission with, 81 warning letters, and 187 ordered for correctional training.

Arrest, Search and Seizures Laws
As stated under The Criminal Procedure Acts of 1965 unless otherwise noted under a different source of law.)

Stops and frisks
Under Sec. 31 of The Criminal Procedure Acts of 1965, a constable has the authority to stop and search anyone in a public place if they are carrying something that is believed to be unlawfully obtained, or if they are in the process, or suspected of being in the process of committing a crime. The constable has the authority to examine any “examine any box, parcel, basket, bundle, or other package carried,” and a person can be arrested if they fail to comply.

Arrests
- Under Sec 9(2), when a person is arrested, if a constable or other person harms the suspected person, that suspect may still be examined by a medical practitioner.

- Under Sec. 12 “When a private person arrests any person under section 11 he shall deliver the person arrested, and the property, if any, taken into possession by him, as soon as may be to a constable.”

- Under Sec. 13 (1), Any constable may, without a warrant, arrest-
a. Any person who commits any offence involving violence or dishonesty in his presence;
b. any person whom any other person positively accuses of having committed any felony or any larceny, embezzlement, false pretences or receiving;
c. any person whom any other person suspects of having committed any felony or any misdemeanour mentioned in paragraph (b), if the suspicion of such other person appears to the constable to be well founded and he shall declare his name and place of residence to the constable and accompany the latter to the nearest police station or lock up, if required to do so;
d. any person whom he has reasonable cause to suspect of having committed or being about to commit any felony;
e. any person whom he finds between the hours of six in the evening and six in the morning lying or loitering in any street, highway, yard, compound or other place, and not giving a satisfactory account of himself;
f. any loose, idle or disorderly person whom he finds in any way disturbing the peace, whether in a public or private place, or causing annoyance to any person.

- Under Sec. 15, a person is always to be informed of the reasoning behind their arrest.

- Under Sec. 24 (1) “Every warrant of arrest shall be under the hand of the Judge, Magistrate or Justice of the Peace issuing it.”

Pre-trial detention
- Under Sec. 14 (3), the police are given the ability to ask for the citizens name and address, if the person fails to give the name and address within 24 hours of detention, the citizen is brought before the nearest Court having jurisdiction.

- Under Sec. 80, a police officer may admit bail only to those who have been arrested without a warrant, or if the warrant permits. Furthermore, once the suspected person is released, they will be recorded by their name, address, and occupation.

- Freedom from prolonged pre-trial detention: average detention is five days, but under the Criminal Procedures Act of 1965, it is up to the Court’s discretion for the duration of a convict’s pre-trial detention.

Searches
- Under Sec. 30, A search based on suspicion must first be issued a warrant by a Judge, Magistrate, or Justice of Peace, after being presented evidence that there is a crime currently being committed, or about to be committed inside of a “building, vessel, vehicle, receptacle or other place.” If the premises cannot be entered without force, the constable has the authority to use force to enter the premises with a valid warrant.

- Under Sec. 33, in a Diamond Protection Area, a constable has the authority to enter by a force “for the purpose of searching for any person whom he has reasonable grounds to believe is a stranger.” The constable must then submit in writing why he entered the premises.

Enforcing the Rules (procedures to protect against illegal police procedures)
- Under Sec. 46, only the Director of Public Prosecutions, not any other law enforcing official (except when the Director has not yet been appointed, then the Attorney-General would assume the power), may undertake criminal proceedings, or may halt criminal proceedings at any time.

- There is not only the newly established an Independent Police Complaints Commission that citizens can now file complaints, but also the slightly older Anti Corruption Commission where citizens can also file complaints beyond police corruption.

Lineups and other identification procedures
Lineups
Police lineups, and home invasions, without a warrant, are rare in Sierra Leone. These are typically done by well-armed bandits.

Other identification procedures
Under Sec. 14, any person who is liable to be arrested without a warrant, if they are believed to have given a false name or place or residence. The person can be held for 24 hours if they chose not to disclose their identification; they are then brought before the nearest court.

Interrogation
Before formal charge in court
Under, Secs. 66 and 67, an accused person may be asked anything during preliminary investigation, and those statements may be used as evidence in court. This is typically done through means of depositions. The defence and prosecution can also call a medical practitioner to be disposed, and use the depositions as evidence in court.

After Defendant is formally charged
Enforcing the Rules (procedures to protect against illegal interrogation).

Court Procedures

It is under the court’s discretion as to what is probative evidence to enter the courtroom. Under the Criminal Procedures Acts of 1965, testimonies, statements, doctor’s notes, and confessions can all enter the courtroom with court approval. Witnesses are allowed to enter the courtroom for both defence and prosecution. However, it is widely known that trials are public in Sierra Leone, so there may be a deterrent of individuals will to serve as witnesses. Sentencing under the legislation also under the court discretion, although the Constitution does protect against torture and inhuman treatment, citizens are not likely to be given the death penalty for minor offences. As stated in the Constitution, every person has a right to counsel, however, with there being such a low number of attorneys and paralegals in Sierra Leone, the quality of representation is hindered at times.

Rights in prison

Conditions of confinement
Sierra Leone is not known for their conditions to be will suited during confinement. The UN recently criticized Sierra Leone in a recent report by the UN Integrated Peace Building Mission in Sierra Leone (UNIPSIL) and the Office of the High Commissioner for Human Rights in Geneva. Beatings do happen, and women are often the target of further brutalization. A report on prison condition can be analyzed by viewing a Prison Watch 2008/2009 report.

Immigrant detention
It is presumed that all immigrants are subject to the same criminal procedures as Sierra Leonean citizens.

Right to medical care in prison
There is no explicit right to medical care in prison.

Mental health care
There is no explicit right to mental health in prison.

Restriction of rights
Restriction of personal rights are presumed to be at the discretion of the court, and of the law enforcement official at the detention canter.

Women’s rights in prison
Women's rights are not mentioned in the Criminal Procedure Acts of 1965.

Resources

Legislation

The Criminal Procedures Acts, 1965 of Sierra Leone

The Constitution of Sierra Leone, 1991

Reports/Websites

“The World Factbook: Sierra Leone.” U.S. Central Intelligence Agency. 2013. <https://www.cia.gov/library/publications/the-world-factbook/geos/sl.html>.

“2010 Human Rights Report: Sierra Leone.” U.S. Department of State. 8 April 2011. <http://www.state.gov/j/drl/rls/hrrpt/2010/af/154368.htm>.

“Legal Aid Act, 2012.” Sierra Leone Legal Information Institute. 2012. <http://www.sierralii.org/sl/legislation/act/2012/6>.

“Countries at the Crossroads- Sierra Leone.” Freedom House. 2013. <http://www.freedomhouse.org/report/countries-crossroads/2012/sierra-leone>.

“United Nations Treaty Collection.” United Nations. 2 September 2013. <http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9&chapter=4&lang=en>.

“Sierra Leone County Specific Information.” U.S. Department of State, Bureau of Consular Affairs. 2013. <http://www.travel.state.gov/travel/cis_pa_tw/cis/cis_1016.html>.

“Monitoring the Principles for Good International Engagement in Fragile States and Situations, Country Report 5: Sierra Leone.” OECD. 2010. <http://www.oecd.org/dacfragilestates/44653693.pdf>.

Koroma, Allieu Vandi. “Some Reflections on Ex Post Facto Legislation.” Centre for Accountability and Rule of Law.” 2 September 2008. <http://www.carlsl.org/home/articles/149-some-reflections-on-ex-post-factolegislation>.

“The Socioeconomic Impact of Pretrial Detention in Sierra Leone.” Slide 39. Timap for Justice and Prison Watch Sierra Leone. 2013. <http://www.opensocietyfoundations.org/sites/default/files/ptd-snapshotsierraleone05232013.pdf>.

“Practice Relating to Rule 100. Fair Trial Guarantees, Section F. Trial without undue delay.” International Committee of the Red Cross. 2013. <http://www.icrc.org/customaryihl/eng/docs/v2_rul_rule100_sectionf>.

“Sierra Leone Slammed by UN Report for Bad Detention Conditions.” Awareness Times. 18 December 2012. <http://news.sl/drwebsite/publish/article_200521763.shtml>.

“2008/2009 Prison Watch Report on Prisons and Detention Conditions in Sierra Leone.” Prison Watch Sierra Leone. 2010. <http://www.prisonwatch.westhostsite.com/wpcontent/uploads/2010/05/2008-09-PW-SLReport.pdf>.