Sierra Leone

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Legal Resources for Cape Verde

Cape Verde Constitution 1980 (rev. 1992) ^[1]

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

Right Against Unlawful Arrests, Searches and Seizures or Detentions

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 Language Interpretation

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

Means of Protecting and Enforcing Rights

Pre-Trial Procedure

Court Procedures

Pre-Trial

Following arrest, one must appear before a judge within 48 hours of detention. The judge will decide whether there is a case to answer to and if so, whether you should be released on restrictive conditions or kept in custody pending further enquiries. Note that any time spent on remand counts as served prison time and is deducted from any future sentence that may be handed down.

Meanwhile, an inquiry is launched. This is the first stage of the criminal investigation carried out by the Judiciary Police in collaboration with the Public Prosecutor. The police investigation can last for several months and depends on the complexity of the case. At the end of this phase, the Public Prosecutor will either file the case (arquivamento) due to insufficient evidence or inability to identify the perpetrator, or formally press charges (acusação).

The victim who constitutes an assistant or the defendant can request a preliminary hearing if they disagree with the decision of the Public Prosecutor at the end of the inquiry stage. The aim of the preliminary hearing is to determine whether the case should go to trial or be dismissed.

Trial

On the day of the trial, the parties are taken to the court where the case is being heard. This will normally be the court closest to where the crime allegedly took place. Trials can be heard by a single judge or a panel of 3 judges. Crimes of a sexual nature are tried in private before a judge, or, at the request of the accused or the assistant, a collective court may be held for offenses punishable by a sentence of more than eight years). There are normally no jury trials in Cape Verde.

The state prosecutor will be present, together with the lawyers and an interpreter if the parties do not speak Portuguese. A court clerk will also be there. Hearings are public unless otherwise decided by the presiding judge.

Witnesses for both the prosecution and the defense will be called one by one. They will not be allowed in the courtroom until they are required to give evidence.

If the trial cannot be concluded in one day, it will continue the next working day.

Sentencing

On the last day of the trial, the judge will either read the verdict or set a date for the court to reconvene for the verdict to be read. The defendant will be present when the sentence is read.

Sentencing is codified in law and varies according to the type of crime and the circumstances in which it was committed. The attorney is best placed to advise the defendant on the minimum and maximum sentences.

For example, if found guilty of rape or sexual assault with penetration, the defendant can be punished with a prison sentence of 4 to 10 years. The prison sentence will be 7 to 14 years if the victim is a minor or under 16. The prison sentence can be further increased if the crime results in pregnancy, serious damages to your physical and emotional integrity, the transmission of a contagious, serious or incurable disease, the incapacity to reproduce, or the suicide, attempted suicide or death of the victim.

Appeals

The defendant may appeal through their lawyer against any conviction within 15 days of sentencing. If the appeal is admissible, the court will pass it up to the Court of Second Instance or Appeal. In certain circumstances, a sentence that has become final can be reviewed by the Supreme Court of Justice. The state prosecutor may also appeal if they consider that the conviction is too lenient.

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.