Universal Jurisdiction: The Sierra Leone Profile—Problematic Features

Abstract

The present state of the law governing universal jurisdiction in Sierra Leone is beset with much uncertainty and imprecision. There are also some aspects of it that seem incompatible with international legal norms and standards. Apart from definitional problems, there are also conceptual, institutional and other major gaps in the law. This chapter articulates comprehensively the problematical features of the law from three related perspectives: statutory, jurisprudential, and practical.

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9.1 Preliminary Observation

In exploring the diverse aspects of the theme of this chapter, it is important to reiterate the assertion in the abstract as a preliminary observation—that the law governing universal jurisdiction in Sierra Leone is beset with legal and related problems. These may be classified as (1) definitional, (2) conceptual, (3) institutional, and (4) quasi-institutional.

9.1.1 Definitional Problems

Definitional issues arise in two main contexts: First, and more generally, in the context of international crimes, but specifically in regard to war crimes, crimes against humanity and other serious violations of international humanitarian law. Second, they appear in relation to one major dimension of the universality principle: the incorporation and application of universal jurisdiction within the municipal law system of the country.

9.1.1.1 War Crimes

Now for a consideration of war crimes. What are the definitional problems? The answer is that they are legion. First, Sierra Leone has not defined within its municipal law system the “new grave breaches” enumerated in Articles 11 and 85 (3) to (5) of Protocol 1 to the Geneva Conventions despite the fact that the country is a party to said Protocol.¹ Second, there are no definitions within the country’s municipal law system of most of the war crimes listed in the Rome Statute despite the fact that the State of Sierra Leone is a party to the aforesaid Statute. For example, Article 8(2)(b)(xxvi) of the Rome Statute defines conscripting or enlisting children under the age of 15 years into the national armed forces as a war crime. The same goes for such crimes as sexual slavery and enforced prostitution. However, under Sierra Leone municipal law, these acts are not expressly designated as war crimes despite their proscription as “trafficking in persons” under section 2 of the country’s Anti-Human Trafficking Act No. 44 of 2005.² As the present author explains elsewhere, in Sierra Leone the rape of a female adult is a crime under common law, while the rape of a girl under the age of 14 years is a statutory offence.³ Nonetheless, these acts have not been defined as war crimes within the municipal law system of Sierra Leone even though they are so designated under the Rome Statute.⁴

A third problem relates to the definitions of war crimes in other international humanitarian law treaties applicable during international armed conflict and also under customary international law. Here, even though Sierra Leone has defined a few of these violations in its municipal law system, specifically the recruitment of child soldiers into the armed forces and the use of weapons particularly harmful to children, they have not been designated as war crimes consistent with their customary international law categorization.⁵ It is noteworthy that though the recruitment of children under the age of 15 years into the armed forces is criminalized under section 28 of the Sierra Leone Child Rights Act of 2007 (incorporating Article 38 of the United Nations Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989), the provision does not expressly proscribe the recruitment of children under the age of 15 years by armed groups other than the national armed forces.⁶

By way of an instructive digression, and as a matter of comparative interest, it may be noted that the United Nations-backed Special Court for Sierra Leone, an international war crimes tribunal, addressed this aspect of the proscription of the recruitment of child soldiers and expounded the law with much clarity and precision. The Court held that conscripting, enlisting, and using children under the age 15 years to participate⁷ actively in hostilities contrary to Article 4(c) of the Court’s Statute is indeed a violation of international humanitarian law. The Court’s jurisprudence on the subject is quite authoritative and precedent-setting, establishing certain key propositions of law. First, the Court determined that the general ingredients needed to sustain a conviction for any of the three offences are: (1) that an armed conflict existed at the time of the alleged violation and (2) that there existed a nexus between the alleged offence and the armed conflict.⁸ Second, the constitutive elements of the offences of conscripting and enlisting children under the age of 15 years are (1) that one or more persons were conscripted or enlisted by the accused into the armed force or group, (2) that such person or persons were under the age of 15 years, (3) that the accused knew or had reason to know that such person or persons were under the age of 15 years and that they may be trained for or used in combat, and (4) that the accused intended to conscript or enlist said persons into the armed force or group.⁹ The third proposition is that, with respect to the offence of using children under the age of 15 years to participate actively in hostilities, the constitutive elements are: (1) that one or more were used by the accused to actively participate in hostilities, (2) that such person or persons were under the age of 15 years, and (3) that accused intended to use said person or persons to actively participate in hostilities.¹⁰ A fourth proposition is that child recruitment was criminalized under customary international law before it was explicitly set out in treaty law and certainly by November 1998, the date indicating the extent of the Court’s temporal jurisdiction.¹¹

Another problematical aspect of definitions reflected in the law governing universal jurisdiction in Sierra Leone is that certain kinds of conduct constituting various forms of enslavement in the course of an armed conflict are defined within Sierra Leone’s municipal law system as ordinary crimes but not as war crimes.¹² Another problem identifiable in the existing Sierra Leone law relates to inconsistencies between definitions of war crimes under the country’s municipal law system and international law definitions of such crimes. Briefly, these are the profiles: First, common law rape and statutory rape are considered criminal acts under Sierra Leone law, but amount to war crimes under international law. The country’s definitions, especially for that of statutory rape, fall short of international law definitions and standards.¹³ The second is that slavery and deportation to slave labour, though proscribed by section 2 of the country’s Anti-Human Trafficking Act No. 44 of 2005 as exploitation, are not specified as war crimes in a manner consistent with customary international law.¹⁴ Third, the municipal law definitions of, for example, murder, sexual slavery, and enforced prostitution are not consistent with their corresponding international law definitions.¹⁵ The fourth issue is that acts which amount to war crimes under rules of customary international law and international humanitarian law (for example, the prohibition of slavery) are not defined in a manner consistent with customary international law.¹⁶

9.1.1.2 Crimes Against Humanity

As regards crimes against humanity, the key point of interest is that although Sierra Leone is a contracting party to the Rome Statute, it has failed to define many of the crimes enumerated in Article 7 of said Statute—for example, extermination, deportation or forcible transfer, forced pregnancy, forced sterilization, persecution, enforced disappearance, and other inhumane acts—in its municipal law system. Furthermore, where some of the crimes are defined within the municipal law system, their definitions fall short of international law definitions—for example, murder, enslavement, imprisonment, or other severe deprivation of physical liberty, torture, and rape.¹⁷

The anomaly is that the municipal law does not define any of these crimes as a crime against humanity when committed as part of a widespread or systematic attack against civilians.¹⁸ Thus the argument has been advanced that “the inclusion of only women and girls as potential victims of rape renders Sierra Leone’s statutory and common law definitions of rape discriminatory and inconsistent with international human rights standards.”¹⁹ It is further contended that “the current definitions fail to take account of potential instances of rape where men and boys are victims, including the realities of rape committed during armed conflict and as part of widespread and systematic attacks against civilians, when men and boys are targeted.”²⁰ A related criticism is that the lack of recognition of marital rape under Sierra Leone’s municipal law system is contrary to international human rights law standards.²¹

The main issue with regard to genocide as a crime against humanity is one of incorporation. Sierra Leone has neither signed nor ratified the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. The definition of genocide in Article II of said Convention is identical to its definition as embodied in Article 6 of the Rome Statute, to which Sierra Leone is a contracting party. However, there is no definition of the crime of genocide in the municipal law of Sierra Leone. Nor are there any Sierra Leone law definitions relating to the ancillary or inchoate forms of genocide as set out in Article III of the Genocide Convention, namely, (1) conspiracy to commit genocide, (2) direct and public incitement to commit genocide, (3) attempt to commit genocide, (4) complicity in genocide.²²

In the case of extrajudicial executions as a crime against humanity, it is not expressly punishable as murder.²³ The crime of enforced disappearances has, likewise, not been defined as a crime within the country’s municipal law system notwithstanding the fact that Sierra Leone is a signatory to the 2006 International Convention for the Protection of All Persons from Enforced Disappearance and also a contracting party to the Rome Statute, which defines in Article 7(1)(i) in these terms:

The arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.²⁴

The definition of aggression as an international crime, hitherto an acutely controversial issue for the international community, has evidently been settled for the purposes of the Rome Statute: It is listed as a crime in Article 5 of said Statute. Sierra Leone, a contracting party to the Statute, has not yet defined the planning, preparation, initiation, or waging of an aggressive war as a crime under its municipal law system.²⁵

9.2 Conceptual Problems

The second category of problematical features reflected in Sierra Leone’s legal profile as regards the incorporation and application of universal jurisdiction within the country’s municipal law system can best be described as conceptual. They are either of a substantive or procedural nature. They include mainly issues such as (1) principles of criminal liability, (2) defences, (3) double jeopardy, (4) statutes of limitation, (5) immunity from criminal liability, and (6) double criminality for the purposes of extradition.

9.2.1 Principles of Criminal Liability

The problem here relates to the presumed inconsistency between the fundamental principles of criminal liability as embodied in the country’s municipal law system and those recognized in the domain of international criminal law.²⁶ For the sake of completeness and further clarity, it is necessary to summarize the law governing the principles of criminal liability in the Sierra Leone jurisdiction.

In Sierra Leone, the fundamental principle governing criminal liability, like other common law jurisdictions, is depicted by the Latin maxim, actus non facit reum nisi mens rea sit—meaning that to constitute a crime, there must be both a guilty act and a guilty mind. Another formulation is that the intent and the act must be present to constitute a crime.²⁷ Within the Sierra Leone jurisdiction, both in theory and in practice, this principle of liability is inviolable as illustrated by Lord Goddard’s restatement of the law in Harding v. Price²⁸ in these terms:

It is of utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as the constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind. ²⁹

A close comparison between the basic principles of criminal liability applicable within the municipal law system of Sierra Leone and those governing international criminal responsibility, now codified in the Rome Statute, reveals a substantial degree of conformity between the former and the latter. The only variance or lack of complementarity is the absence in the Sierra Leone jurisdiction of a fully developed doctrine of command or superior responsibility, a core element of the Nuremberg Principles and also embodied in Articles 86(2) and 87 of Additional Protocol I to the Geneva Conventions of 12 August 1949.³⁰ It is, however, a plausible view that though not expressly provided for in exactly the same terms as in the aforementioned international legal instruments and also recently in the Rome Statute, a veiled version of the doctrine of command or superior responsibility is deducible from the country’s existing common law principles governing multiple participation in crime. To this effect is the present author’s own exposition of the law as it obtains in Sierra Leone:

There are occasions when the commission of a crime involves multiple offenders. The law takes care of this eventuality by recognizing various legally-defined ways in which several persons can become involved in crime. Based on English common law antecedents, multiple participants in crime in Sierra Leone have always been designated ‘accomplices’ - participes criminis. The phrase participes criminis is Latin in origin and means partners in crime. In specific terms, the orthodox common law classification is into: principals and accessories after the fact.³¹

Articulating the law at the international level, Cassese observes that “persons who occupy a supervisory or commanding position in relation to war criminals and in their capacity as such have not fulfilled their duty to prevent crimes from being committed by their subordinates shall be treated as the accomplices of such war criminals.”³²

9.2.2 Defences

The main criticism levelled against the law governing defences to criminal liability in Sierra Leone in the context of the application of the universality principle is that some of the defences recognized by the country’s municipal law system are formulated more broadly than the identical defences under international law.³³ It has also been observed that some of the municipal law defences are not appropriate for crimes proscribed by international law—for example, compulsion and duress, self-defence, and defence of property. It is suggested that these could lead to impunity for the worst imaginable crimes.³⁴ The merits or otherwise of this viewpoint is not an issue for determination here.

Admittedly, due to the dearth of an authoritative body of modern principles governing the application of defences to criminal liability in the Sierra Leone jurisdiction, recourse can only be found in the inherited common law principles derived from English case-law authorities and statutes of general application in force on January 1, 1880 and subsequent imperial statutes incorporated into the country’s municipal law system prior to and at the date of independence. Relying on the present author’s articulation of the law in his treatise on the criminal law of the country, the position as to the applicable defences may be summed up as follows: Based on its English common law antecedents, eleven possible defences are applicable within the national law system of Sierra Leone, namely, (1) self-defence, (2) defence of property, (3) necessity, (4) execution of public duty, (5) consent, (6) mistake, (7) infancy, (8) duress or compulsion, (9) intoxication, (10) insanity, and (11) entrapment.³⁵

9.2.2.1 Self-defence

From a definitional perspective, the gist of the defence of self-defence under Sierra Leone law revolves around five legal requirements which the defendant must satisfy. They are: (1) that the defendant did not initiate the attack, (2) that he was threatened with either death or grievous bodily harm, (3) that the threat was immediate and not future, (4) that he honestly and reasonably believed he was in danger of death or grievous bodily harm, (5) that the force used in repelling the attack was reasonable and necessary in the circumstances.³⁶ It is conceded that the defence of self-defence under Sierra Leone is broader than the international law version and that the retreat doctrine is not part of Sierra Leone law. Whether or not these are material inconsistencies is a matter of perspective.

On the issue of the non-applicability of the “retreat doctrine” as an ingredient of the defence of self-defence under Sierra Leone law, the present author has argued elsewhere that the doctrine has always been highly contentious from the earliest development of the law. The old English common law rule can be traced back to Hale. The gist of the rule is that for the defence to avail the defendant or for the defence to succeed, “it must appear that the party killing had retreated either as far as he could, by reason of some wall, ditch or other impediment, or as far as the fierceness of the assault would permit him.”³⁷ The modern law in England (also applicable in Sierra Leone) is that retreat is “now simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force was reasonable.”³⁸

From a comparative law perspective, it is significant to note that the predominant judicial view in the United States as to the applicability of the “retreat doctrine” is that a person attacked or threatened with force may stand his ground and use any force reasonably necessary to prevent harm. There is, however, a minority judicial viewpoint that where a person is attacked or threatened with force, he must try to safely retreat if the possibility exists before using deadly force.³⁹ Admittedly, in the three common law jurisdictions of Sierra Leone, England, and the United States, the old and so-called ‘castle doctrine,’ which delineates no obligation to retreat if one is attacked in one’s own home, still applies.

9.2.2.2 Defence of Property

Similarly, from a definitional perspective, the essence of the defence of property is that an individual has a right to protect his property but, on a normative scale of values given that property is not as valuable as life, only reasonable force must be used to defend it.⁴⁰ It has been observed that it is not clear how the defence would be limited for crimes under international law. The valid position, as suggested by Amnesty International, is that the sustainability of the defence would depend on the reasonableness and proportionality of the response.⁴¹

9.2.2.3 Necessity

The defence of necessity under Sierra Leone law remains as acutely controversial as its common law progenitor. Hence, the observation that “the evolution of the defence of necessity bristles with conceptual and doctrinal difficulties.”⁴² Conceptually and jurisprudentially, the most that can be said as to the nature and scope of necessity as a defence is that a person accused of crime in Sierra Leone can avail himself of the defence of necessity, in a proper case, if it can be shown that the choice of the option to contravene the criminal law was a result of the choice not to inflict harm on himself or another.⁴³ In effect, that he chose the lesser of two evils. Admittedly, there is presently no statutory or case-law definition of necessity as a defence to criminal liability in Sierra Leone.

The present author concurs in the view that “it is unclear how this defence would be limited in cases of crimes under international law.”⁴⁴ This underscores the fact that the defence remains extremely controversial in both municipal law and international law. Cassese holds that “it would seem that international law admits this defence albeit with strict conditions.”⁴⁵ According to Werle, “necessity and duress have also become an element of customary international law as grounds for excluding responsibility” and that “Article 31(1)(d) of the ICC Statute reflects the state of customary law.”⁴⁶ The author further asserts that “in comparison to other grounds for excluding responsibility, this defence plays a prominent role in international case law, as is illustrated by the large amount of relevant court decisions.”⁴⁷ The irresistible inference is that the necessity doctrine, as a ground for excluding criminal responsibility, remains acutely contentious. This is illustrated by the following extract from a recent academic analysis of its application in a dissenting opinion by the present author in the case of Prosecutor v. Fofana and Kondewa (a decision of the Special Court for Sierra Leone). In a commentary on the legal and pragmatic dimensions of the principle of necessity in the context of the Sierra Leone conflict, Gberie observed as follows:

Justice Thompson, the only Sierra Leonean on the bench, disagreed with the Trial Chamber judgment, writing in his dissenting opinion the following: The safety of the State of Sierra Leone, as the supreme law, became for the CDF and the Kamajors the categorical imperative and paramount obligation in their military efforts to restore democracy to the country. I entertain more than serious doubts whether in the context… a tribunal should hold liable persons who volunteered to take up arms and risk their lives and those of their families to prevent anarchy and tyranny from taking a firm hold in their society.

Continuing, the author proceeded thus:

As noted above, Thompson’s colleagues had no apparent issue with this viewpoint. In their judgment they readily admitted that there is nothing in the evidence which demonstrates that either Fofana or Kondewa joined the conflict in Sierra Leone for selfish reasons. In fact, we have found that both Fofana and Kondewa were among those who stepped forward in the efforts to restore democracy in Sierra Leone, and, for the main part, they acted from a sense of civic duty rather than for personal aggrandizement or gain.

The author then concluded his analysis with the observation that the majority decision was “an attempt to criminalize legitimate and necessary civilian defence against armed and highly predatory and criminal elements,” endorsing Hoffman’s argument that “the Court’s approach to the CDF leaves no room to envision an acceptable mode of civilian defensive mobilization.”⁴⁸

9.2.2.4 Consent

The gist of consent as a defence to criminal liability in Sierra Leone is that it operates as a defence in certain circumstances, especially where it negates the mens rea of the particular offence—for example, as regards the offences of larceny and common law rape where, if the actus reus was committed with the consent of the victim, neither offence is committed.⁴⁹

9.2.2.5 Execution of Public Duty

The rationale behind the defence of execution of public duty to criminal liability under Sierra Leone law derives from the doctrine of sovereign immunity from lawsuit, which attaches to every government or state. Simply stated, the defence implies that persons in the employment of the government or state of Sierra Leone accused of a crime are immune from criminal liability if the act was done in the course of employment and in good faith. The defence bears some affinity with the Petitions of Right Act, Cap 23 of the Laws of Sierra Leone (an imperial statute) now superseded by the State Proceedings Act of 2000. The latter enactment makes the state of Sierra Leone liable in tort or contract as a private person. It does not relate to criminal liability.⁵⁰

9.2.2.6 Mistake

In the case of mistake, the orthodox legal position is that, as a general rule, it provides no defence to criminal liability under the law of Sierra Leone. Exceptionally, however, it can operate as a defence where it has the effect of negating the mens rea for the particular offence.⁵¹ This is only where the mistake is one of law since, as a general rule, a mistake of fact does not excuse crime except if it renders the actus reus inadvertent and the defendant acted honestly.⁵²

9.2.2.7 Infancy

Under the municipal law of Sierra Leone, infancy refers to the state of a person who is under the age of legal majority. Majority in Sierra Leone today is attained at 18 years. This is in conformity with section 2 of the Child Rights Act No. 7 of 2007, incorporating Article 1 of the Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989.⁵³ Consistent with the English common law, the general operative principles in Sierra Leone law may be summed up as follows: (1) children under the age of 7 years are conclusively presumed to be doli incapax, that is, incapable of criminal disposition, (2) children between the ages of 7 and 14 years are inconclusively presumed to be incapable of crime, and (3) children between the ages of 14 and 18 years are presumed to be fully responsible and subject to the ordinary principles of criminal liability.⁵⁴

9.2.2.8 Duress (or Compulsion)

Generally, in the municipal law domain of Sierra Leone and derived from English common law principles, duress can be said to bear some affinity with necessity and self-defence, namely, that each involves making a choice between two evils: whether to contravene the criminal law or to subject oneself or another to the infliction of some evil or great harm.⁵⁵ Specifically, as a common law defence, duress will excuse criminal liability in Sierra Leone for these offences: manslaughter, malicious damage to property, arson, larceny, receiving stolen property, perjury, and conspiracy. It cannot excuse murder as a principal in the first degree and treason.⁵⁶ The contention with regard to the defence of duress, in terms of its nature and scope, within the municipal law system of Sierra Leone is that of incompatibility with the defence as formulated in Article 3(1)(d) of the Rome Statute in the sense that the Sierra Leone version is much broader than the international law version.

The pith and substance of the international law version of the defence is that a person shall not be criminally responsible if “the conduct alleged to constitute a crime within the court’s jurisdiction has been caused by duress resulting from a threat of imminent death or continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that person does not intend to cause a greater harm than the one sought to be avoided.”⁵⁷ By comparison, the defence will excuse criminal liability under Sierra Leone law only if the accused proves (1) that the threat was made, (2) that he honestly and reasonably believed the threat, (3) that the threat created in him a fear of immediate or imminent serious bodily harm or death, and (4) that the only way of avoiding serious bodily harm or death to himself or another was to commit the crime.⁵⁸ Admittedly, the Sierra Leone version of the defence is more liberal in not requiring proof, on the part of the accused, that he did not intend to inflict a greater harm than the one sought to be avoided, which is a key ingredient of necessity (a kindred defence).

9.2.2.9 Intoxication

Historically in common law, intoxication was an aggravating factor rather than a defence to criminal liability. The position has changed in modern times. The law is quite complex because it is partially eclipsed by another important defence to criminal liability, namely, insanity. The law applicable to intoxication as a defence to crime in the common law jurisdiction of Sierra Leone approaches the issue from a twofold perspective: (1) sometimes intoxication excuses criminal liability and (2) sometimes it does not. Hence, the law may be summed up thus: as a general rule, intoxication caused by the accused’s own voluntary act does not in itself excuse him from criminal liability; but where the primary cause of the intoxication is involuntary conduct, he may be excused from criminal liability. However, where insanity results from intoxication, the supervening insanity, even though temporary, operates as a defence in common law.⁵⁹ Significantly, there is authoritative Sierra Leone jurisprudence illustrating the law on the defence, namely, the decision in Wreh (or Dee) v. Regem.⁶⁰ In that case, the appellant was charged in the Supreme (now High) Court with murder. He relied on the defence of intoxication at his trial. He was convicted of murder, but appealed his conviction.

Relying on settled common law principles, the learned Chief Justice Bairamian (who delivered the judgment of a unanimous Court of Appeal) expounded the law in the form of three propositions. First, that insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no note of the cause of insanity. If actual insanity in fact supervenes as a result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. Second, that in cases under this category, the McNaughten Rule should be applied and the jury directed that if they found that the accused was in a state in which he did not know the nature and quality of the act or that his act was wrongful, his act would be excusable on the ground of insanity. Third, that the evidence of drunkenness that renders the accused incapable of forming a specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent. In conclusion, Chief Justice Bairamian indicated that the foregoing propositions revolved around the pivotal presumption that a man intends the natural consequences of his action, importing the notion of foreseeability.⁶¹ It has quite rightly been observed that the defence of intoxication as prevailing under the existing law of Sierra Leone, in terms of its nature and scope, is co-extensive with the defence as applicable in international law, specifically Article 31(1)(b) of the Rome Statute.⁶²

9.2.3 Insanity

Consistent with the English common law, the defence of insanity applies within the municipal law system of Sierra Leone. The essence of the defence is that “a person cannot be convicted of a crime if, at the time of the commission of the act, such a person was labouring under such a defect of reason (from a disease of the mind) as not to know the nature and quality of his act, or if he did know it, as not to know that it was wrong.”⁶³ This is known as the McNaughten Rule. It emanated from the old English case of the Queen v. Daniel McNaughten.⁶⁴ It has been observed that despite the similarity between the McNaughten Rule and the insanity defence as provided for in Article 31(1)(a) of the Rome Statute, the Statute extends the rule to cover a situation where the defendant at the time of the commission of the crime was, as a result of mental disease or defect, unable to control his conduct or conform said conduct to the requirements of the law.⁶⁵ As a matter of comparative law interest, it is noteworthy that the second part of the Rome Statute’s formulation of the defence is an exact reproduction of one of the tests of insanity applicable in the United States of America, namely, the Substantial Capacity Test. It states that “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.”⁶⁶ Evidently, the Sierra Leone version of the defence falls short of the international law standard reflected in Article 31(1)(a) of the Rome Statute, even though Sierra Leone is a state party to the Rome Statute.

9.2.3.1 Procedural Defects

A close analysis of Sierra Leone’s municipal law reveals certain major procedural shortcomings in the context of the exercise of the universality principle. According to recent researches, they relate to (1) the lack of statutes of limitation on crimes generally; (2) the double criminality requirement for the purposes of extradition and mutual legal assistance in combating crime; (3) the issue of immunity from prosecution for international crimes; (4) the issue of retroactive criminal laws; (5) the safeguard against double jeopardy; and (6) the due process guarantee of the right to fair trial.⁶⁷

9.2.3.2 Statutes of Limitation

The issue here is that, in contrast to civil law, there is no statute of limitation under Sierra Leone law relating to crimes generally, and specifically to crimes under international law.⁶⁸ The inadequacy lies in the failure, up to the time of this writing, on the part of the state of Sierra Leone to incorporate within its municipal law system the non-applicability provision embodied in Article 29 of the Rome Statute. This defect could also be remedied by the incorporation within the country’s municipal law system of the relevant provision of the 1968 Convention on the Non-Applicability of Statutory Limitations for War Crimes and Crimes Against Humanity. Sierra Leone has neither signed nor ratified that Convention.

9.2.3.3 Double Criminality

The anomaly here is that under the municipal law of Sierra Leone there is no legal requirement of double criminality for either prosecution or extradition where it is alleged that a person has committed a crime abroad and that he should be amenable either to prosecution in Sierra Leone or extradition for trial in the place of the commission of the crime. By parity of reasoning, there is no such requirement for the purposes of mutual legal assistance.⁶⁹ It can plausibly be argued that by virtue of the jus cogens and the obligatio erga omnes doctrines, there should normatively be no requirement of double criminality for the prosecution or extradition of crimes under international law.⁷⁰ The issue of double criminality will be further explored in this chapter under the rubric of extradition.

9.2.3.4 Immunities

Part of Chap. 3 was devoted to explaining at length the four main types of immunities recognized under the constitutional scheme of Sierra Leone. For the sake of emphasis and to contextualize the subject for this chapter, it is necessary to reiterate the municipal law and international law dimensions of the most important of these immunities due to their problematic aspects, legally and pragmatically, in a complex global culture. For the purposes of the Sierra Leone Constitution, it is section 48(4) of the aforesaid Constitution which confers absolute immunity on the President of the Republic in these terms:

While any person holds or performs the functions of the office of President, no civil or criminal proceedings shall be instituted against him in respect of anything done or omitted to be done by him either in his official or private capacity.

It is trite law that the concept of immunity continues to be both a dominant, but also extremely controversial feature of municipal law systems and the international law system. The most contentious aspect of the concept is that of immunity from prosecution attributed, in legal theory, to state actors with respect to acts that are in violation of national criminal laws or international criminal law. This immunity has both functional and personal dimensions. Cassese articulates the distinction between them in these terms:

The former immunities apply, on the strength of the so-called Act of State doctrine, to all state agents discharging their official duties. In principle, an individual performing acts on behalf of a sovereign state may not be called to account for any violations of international law he may have committed while acting in an official function. Only the state may be held responsible at the international level. The latter category of immunities (personal immunities) are granted by international customary or treaty rules to some categories of individuals on account of their functions and are intended to protect both their private and their public life, or in other words to render them inviolable while in office.⁷¹

The present author opines strongly that the presidential immunity does not apply to prosecution for international crimes, the fact that it is formulated in broad and unqualified terms notwithstanding. As already noted, there is now an established and well-settled principle of law traceable back to Principle III of the Nuremberg Principles,⁷² repudiating any Head of State or responsible government official’s immunity from prosecution for international crimes. It is significant that despite the immunity granted by section 48(4), there are persuasive municipal law and international law authorities providing strong judicial endorsement of Principle III. At the municipal law level, the Sierra Leone Supreme Court opined in a landmark ruling that:

where the immunity is claimed by a State before an international court the position to be inferred from the decisions of various national courts and international tribunals, and the writings of international jurists is that there exists no a priori entitlement to claim immunity from criminal process involving international crimes.⁷³

The above ruling is in consonance with the international law principle as restated by the Appeals Chamber of the Special Court for Sierra Leone in a leading interlocutory ruling on the issue.⁷⁴ The Chamber, in dismissing a preliminary objection by Charles Gbankay Taylor (former Liberian Head of State) to the jurisdiction of the court to try him for crimes against humanity, stated emphatically that:

[…] the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international tribunal or court.

One major feature of Sierra Leone’s municipal law on the subject of immunity is that “it does not appear that Sierra Leone recognizes in statute or jurisprudence diplomatic and foreign Heads of State, or other state or official immunities, even if crimes under international law are in issue.”⁷⁵ The criticism derives force from the fact that Sierra Leone is a state party to the Vienna Convention on Diplomatic Relations.

9.2.3.5 Restrictions on Retroactivity in Criminal Law

The doctrine of non-retroactivity of criminal laws is now fully recognized in municipal law systems and the international law system. Its conceptual foundation in English law can be traced back to Hobbes, who expressed the present philosophy in his Leviathan (1651) Chapters 27 and 28, when he declared that: “No law, made after a fact done, can make it a crime…For before the law, there is no transgression of the law.”⁷⁶ Under the municipal law system of Sierra Leone, section 23(7) of the Constitution enacts that “no person shall be held guilty of an offence on account of any act or omission which did not, at the time it took place, constitute such an offence.” Evidently, this provision is consistent with Article 11 (2) of the 1948 Universal Declaration of Human Rights, which states that:

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Section 23(7) of the Constitution of Sierra Leone is also compatible with Article 15 of the International Covenant on Civil and Political Rights (ICCPR). Sierra Leone is a state party to both the Declaration and the Convention. On the existing state of the law on this issue in the Sierra Leone context, two recent observations of Amnesty International are in point. The first is that there is nothing in the aforementioned Declaration and Convention or other international law precluding the State of Sierra Leone from enacting legislation incorporating crimes under international law into its law and permitting prosecutions for those crimes committed prior to the time the legislation entered into force, but after they were recognized as crimes under international law.⁷⁷ The second is that it is not clear whether national legislation defining crimes under international law as crimes under Sierra Leone law is retrospective; however, it is doubtful that such legislation is retrospective, given the constitutional prohibition of retroactive criminal law.⁷⁸

The issue of retroactive legislation has generally been acutely controversial in Sierra Leone since the country attained independence. The case of Akar v. Attorney-General⁷⁹ is quite instructive on the subject. In that case, one of the issues before the Judicial Committee of the Privy Council (then the final appellate tribunal for Sierra Leone) was whether the Sierra Leone legislature has authority to enact retrospective legislation.⁸⁰ In answering the question, their Lordships’ response was that:

[…] the principle seems to be that it is open to the legislature to enact such legislation as long as this is expressly stated in the particular legislation. Where such intentions are expressed in clear and definite words they must be applied by the Courts regardless of the wisdom or desirability of exercising such powers.⁸¹

As regards retroactivity in the specific context of criminal laws, a recent application of section 7(6) of the Sierra Leone National Drugs Control Act No. 10 of 2008 is instructive. It culminated in a trial before the Sierra Leone High Court. The case in point was the State v. George Aritstizabel Archilla and 17 others.⁸² The case involved cocaine trafficking in Sierra Leone in 2008. Briefly, the facts were that in the early morning of 13 July 2008, a small aircraft bearing fake Red Cross insignia landed at Sierra Leone’s only international airport at Lungi without authorization. Through the singular efforts of a junior air traffic controller—who, perhaps because of his low rank, was not brought into the plot by the agents and collaborators of the traffickers at the airport—the aircraft was seized by the Airport Authority. On inspection, officials discovered over 600 kg of cocaine along with arms and ammunition. Seven foreign nationals—three Columbians, two Mexicans, one Venezuelan, and one American—were arrested in connection with the seizure, along with 11 Sierra Leoneans. The Sierra Leoneans arrested included Mohamed Bashil Sesay, alias Ahmed Sesay, a cousin and close protégé of the Minister of Transport and Civil Aviation, Kemoh Sesay. Mohamed Bashil Sesay, along with 17 others, were charged retroactively with various counts of the offence of importation of cocaine, a prohibited drug without lawful authority contrary to section 7(b) of the National Drugs Control Act No. 10 of 2008 (as amended). They were detained at the prison at Pademba Road, Freetown. They were subsequently tried in the High Court; sixteen were found guilty and two were acquitted.

The case is illuminating from the standpoint of retroactivity in that it was contended before the court that, at the time when the acts constituting the offences were committed, there was no proscriptive penal provision in the drug legislation of Sierra Leone criminalizing drug trafficking of cocaine. Presumably, the Attorney-General and Minister of Justice must have relied on the principle enunciated in the Akar case, that it is not within the competence of judges to question the wisdom or desirability of the exercise of legislative authority in respect of the enactment of retroactive penal legislation. However, the Judge ruled on the issue in these terms:

The charges in the Indictment relating to the unlawful importation and possession of Cocaine were offences long before the passing of the National Drugs Control Act, 2008 (hereafter NDC Act 2008). The Act was made retroactive in a lawful manner by virtue of Statutory Instrument No. 12 of 2008 promulgated by the President pursuant to the power delegated to him by Parliament in the National Drugs Control (Amendment) Act, 2008 – Act No. 13 of 2008. I called in aid, in arriving at that Decision sections 73 (1), 106 (5), and 170 (7) of the Constitution of Sierra Leone, 1991 and sections 3 (1 and 2), 13 (1) and 23 respectively of the Interpretation Act, 1971.

Ideally, the principle of non-retroactivity is designed as a safeguard against arbitrariness in the domain of criminal justice. The prevailing international law policy and practice on the application of the principle is summed up by Cassese in these terms:

[…] as a logical consequence of the emergence of the nullum crimen sine lege principle a general rule prohibiting the retroactive application of criminal law gradually evolved in the international community. Thus, the principle of non-retroactivity of criminal rules is now solidly embedded in ICL. It follows that courts may only apply substantive criminal rules that existed at the time of the commission of the alleged crime.⁸³

Werle’s perspective of the international law position is premised on Article 22 of the Rome Statute in the sense that:

Article 22 of the ICC Statute anchors the principle nullum crimen sine lege. This states that the conduct is criminal only if, at the time of commission, the conduct in question fits the definition of a crime under Article 5 of the ICC Statute.⁸⁴

The issue of non-retroactivity will be further explored in this chapter under the extradition rubric.

9.2.3.6 Double Jeopardy

As a fundamental feature of procedural due process in criminal justice, double jeopardy—ne bis in idem—is now entrenched in human rights justice, nationally and globally. As a principle, it is rooted in the law. Today in the United States, it is a constitutional right guaranteed by the Fifth Amendment to the United States Constitution, and enforceable against states through the Fourteenth Amendment. It protects a defendant against a second prosecution for the same offence after acquittal or conviction, and against multiple punishments for the same offence. By parity of reasoning, it is also a right secured by section 23(9) of the Sierra Leone Constitution. The provision enacts that:

No person who shows that he has been tried by any competent court for a criminal offence and convicted or acquitted shall again be tried for that offence or any other offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal; and no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.

Evidently, this municipal law provision is compatible with the international law provision embodied in Article 9 of the Statute of the Special Court for Sierra Leone. The present author shares the reservation expressed by Amnesty International as to whether the courts of Sierra Leone would recognize the principle of double jeopardy “as a bar to prosecution in Sierra Leone if the person had been tried in a foreign proceeding that was a sham or unfair.”⁸⁵ The issue has not yet been litigated. It is also significant to note that section 15 of the Sierra Leone Extradition Act of 1974 expressly empowers the Attorney-General not to grant extradition with respect to a person who has been convicted or acquitted for the offence for which extradition is sought, whether within or outside the Commonwealth.⁸⁶ This provision is consistent with the London Scheme. The issue of double jeopardy will be further explored in this chapter under the rubric of extradition.

9.2.3.7 Restrictions on Victims’ Rights

The municipal law system of Sierra Leone is lacking in adequate and effective statutory provisions for the protection of victims’ rights in both civil and criminal proceedings. This was alluded to in Chap. 8. Also, there is currently no recognizable and authoritative body of case-law on the subject. Equally and quite significantly, at the international level there is no legal framework for victim-initiated civil claims based on universal jurisdiction.⁸⁷

9.3 Institutional Problems

Now for a consideration of institutional problems. Recent research has revealed no fewer than four institutional inadequacies or deficiencies in the existing law of Sierra Leone. They relate to: (1) political control over the legal process, (2) the effect of amnesties, (3) problems associated with the mechanism of extradition, and (4) problems arising out of the obligation to provide mutual assistance in criminal matters.

9.3.1 Political Control

In Sierra Leone, political control over the legal process finds its most visible expression in the exercise of the prosecutorial function, which is (as noted in Chap. 4) constitutionally vested in the Office of Attorney-General and Minister of Justice. It is perceived as a negative feature. Because this single office can fuse its professional legal expertise with its political allegiance or ideology, it maintains a very high potential for political influence or interference in the exercise of the prosecutorial function. It is trite law that political or other extraneous influence on the exercise of the prosecutorial mandate is contrary to both municipal law and international law norms and values.

At the international level, Guideline 13 of the United Nations’ Guidelines on the Role of Prosecutors stipulates that prosecutors are required to carry “out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination.”⁸⁸ In Sierra Leone, a major institutional deficiency in the municipal law system is the lack of any institutional mechanism or set of procedures for the prosecution of crimes under international law consistent with the exercise of the universality principle with the potential of the exercise of enormous political discretion in such a matter of extreme global importance.⁸⁹ This is a serious gap in the law.

9.3.2 Amnesties

Black defines amnesty as follows:

A sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offenses, - treason, sedition, rebellion, draft evasion, - and often conditioned upon their return to obedience and duty within a prescribed time.⁹⁰

It is now settled law consistent with the letter and spirit of the Nuremberg Principles that amnesties for international crimes are prohibited under international law. Robertson observes that crimes against humanity “are not only unforgettable; what Nuremberg established in international law is that they are unforgiveable” and they “cannot be the subject of amnesty or of time limits on prosecution.”⁹¹ Werle reinforces this view of the law with the observation that:

It is certain, at least, that an across-the-board exemption from criminal responsibility is unacceptable, to the extent that international law imposes a duty to prosecute and punish. This means that general amnesties for crimes under international law are impermissible under customary international law.⁹²

Despite the foregoing observations, it remains true that there exists a continuing tension between the municipal law perspective of the effect of amnesties and the international law perspective. In this regard, the Sierra Leone experience with the amnesty provision embodied in the Lome Peace Agreement is instructive. In its decision on two consolidated preliminary motions filed in Prosecutor v. Kallon and Kamara,⁹³ the Appeals Chamber of the Special Court for Sierra Leone ruled that the Lome Agreement, which contained an amnesty provision, did not qualify as an international treaty; hence the amnesty could not take effect at the international level. The Court expounded the law in these terms:

The grant of amnesty or pardon is undoubtedly an exercise of sovereign power which, essentially, is closely linked, as far as crime is concerned, to a criminal jurisdiction of the State exercising such sovereign power. Where jurisdiction is universal, a state cannot deprive another State of its jurisdiction to prosecute the offender by grant of amnesty. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.⁹⁴

The jurisprudence of the Court notwithstanding, it is undeniable that the issue of the legal effect of amnesties as bars to prosecutions for international crimes remains controversial. Cassese alludes to this fact with the observation that:

There is not yet any general obligation for States to refrain from amnesty laws on these crimes. Consequently, if a State passes any such law, it does not breach a customary rule. Nonetheless if a court of another State having in custody persons accused of international crimes decide to prosecute them although in their national State they would benefit from an amnesty law, such court would not thereby act contrary to general international law, in particular to the principle of respect for the sovereignty of other States.⁹⁵

In a similar allusion to the controversial state of the law, the Appeals Chamber of the Special Court in the aforementioned decision had this to say:

Even if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligation in certain treaties and conventions the purpose of which is to protect humanity.⁹⁶

The difficulty with Sierra Leone’s municipal law regarding the legal status or effect of amnesties is that “Sierra Leone has recognized amnesties barring prosecution for crimes, including crimes under international law, committed in Sierra Leone, but there appears to be no provision in national legislation or jurisprudence recognizing amnesties granted by foreign states.”⁹⁷

9.3.3 Extradition and Mutual Legal Assistance

9.3.3.1 Extradition

The main criticism about extradition in the context of Sierra Leone’s municipal law and its interaction with international law is that the existing state of the law leaves open the possibility of certain legal impediments that limit the State’s ability “to obtain and to provide effective cooperation with other states in the investigation and prosecution of crimes under international law.”⁹⁸ It is also specifically contended that “there are a number of inadequate human rights safeguards governing extradition and mutual legal assistance”⁹⁹ under the country’s municipal law. It is, therefore, no exaggeration to state that the law abounds in legal complexities and technicalities, substantively and procedurally. To put the issue in perspective, it is necessary to begin with an overview of the nature and scope of extradition, as an internationally recognized mechanism for combating the widespread and persistent problem of impunity manifested in gross and massive violations of human rights.

In its technical legal sense, extradition means “the surrender by one state or country to another of an individual accused or convicted of an offence outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.”¹⁰⁰ In practical terms, extradition is “a recourse of two or more countries to resolve crime problems in a situation where a person commits a crime in his own native country and runs to another country for refuge, or where the offender commits a crime in a country where he is an alien and goes back to his country of origin.”¹⁰¹ It is conventional to classify extradition arrangements on two levels: The first is active extradition and passive extradition; the second is bilateral extradition and multilateral extradition. Active extradition relates to requests by one state for extradition from other states regulated by bilateral or multilateral treaties. Passive extradition refers to extradition from a particular state to other states, again regulated by bilateral or multilateral treaties.

Regardless of the legal characterizations, the particular extradition treaty will generally specify that the government of the country in which the accused is taking refuge should surrender him to the country where he allegedly committed the crime. Another key feature of extradition treaties is that they may be either enumerative, diminutive, or eliminative in scope. An enumerative treaty usually lists only the specific offences for which extradition will be granted. Any crimes other than those specified are not extraditable. A diminutive treaty usually lists a small number of extraditable crimes. An eliminative treaty usually does not exclude any offence as being non-extraditable.¹⁰²

With that overview of the general legal features of the machinery of extradition, the profile of the existing law governing extradition in Sierra Leone will now be exhaustively examined from the main perspective of the deficiencies in the municipal law in its interactions with international law. Recent research has disclosed glaring inadequacies in the municipal law system of Sierra Leone in relation to active extradition and passive extradition.¹⁰³ The existing legal framework regulating extradition in Sierra Leone is the Extradition Act No. 11 of 1974. As regards active extradition—that is, requests by Sierra Leone addressed to other states seeking extradition of persons suspected of having committed crimes under international law or who have been convicted of such crimes but have not completed their sentences—the process is generally regulated by either a bilateral or multilateral treaty. However, the Act does not expressly prescribe or stipulate a comprehensive procedure for extradition.

Under sections 24 and 25 of the Act, only two issues germane to active extradition are covered. The first is that a person extradited to Sierra Leone may not, generally, be tried for any previous crime, but only the crime upon which extradition is granted consistent with section 24 of the Act. This statutory provision received judicial endorsement in the landmark case of Lansana and Eleven Others v. Reginam,¹⁰⁴ a decision of the Sierra Leone Court of Appeal. One of the issues before the Court, on appeal, was whether it was legally proper to try the first accused/appellant for treason when he was extradited from Liberia for false imprisonment. The Court ruled that a fugitive who had been extradited to Sierra Leone from Liberia may, by the terms of section 18 of the Extradition Act, 1962, as read with Article VII of the Extradition Treaty, only be tried for the offence for which he had been extradited or for a cognate offence provable by or arising out of the same facts on the basis of which the extradition order was made and a fugitive who has been extradited for false imprisonment may not therefore be tried for treason or treason felony.¹⁰⁵ It is important to note that section 18 of the Extradition Act of 1962 is in exactly the same terms as section 24 of the 1974 Act. The second provision relating to active extradition is section 24 of the 1974 Act, which stipulates that a person extradited to Sierra Leone may be released at the discretion of the Attorney-General if that person is not tried within 6 months. The difficulty with this provision is that of the desirability or justification for political control over the process.

Contrastingly, the Act stipulates more elaborate requirements with respect to passive extradition. There are two sets of such requirements: (1) general requirements for extradition, and (2) specific stipulations for Commonwealth states,¹⁰⁶ the Republic of Guinea,¹⁰⁷ and other states with which Sierra has extradition treaties.¹⁰⁸ The country’s legal framework for the implementation of passive extradition may be deduced from these propositions and procedures:¹⁰⁹

• 1. Where extradition is sought by a non-treaty state, extradition may not be granted;¹¹⁰

• 2. Extradition may be granted from Sierra Leone to any state listed in the Schedules except the Republic of Guinea in respect of offences in the enumerated list including murder, rape, and abduction;

• 3. The enumerated extraditable offences include mainly murder,¹¹¹ manslaughter, larceny, rape,¹¹² abduction,¹¹³ child stealing, burglary, housebreaking, arson, robbery with violence, bribery, sinking or destroying a vessel at sea, assault on board a ship on the high seas with intent to destroy life or do grievous bodily harm, offences in connection with the Slave Trade committed on the high seas or on land, kidnapping, false imprisonment, malicious or wilful damage to property, offences against legislation relating to dangerous drugs, offences against the person, and any offence of a nature or category similar to any of the aforementioned offences which is for the time being punishable in Sierra Leone. This includes any conspiracy or attempt to commit any of the aforementioned offences and the counselling, procuring, commanding, aiding or abetting of any such offence or being an accessory before or after the commission of the offence;¹¹⁴

• 4. Extradition may be granted from Sierra Leone to the Republic of Guinea for any crime which is also a crime under Sierra Leone law, subject to certain restrictions, to wit, political control over the extradition process, the dual criminality principle, or where the offence is “of a political character”;

• 5. Extradition requests shall be made through the usual diplomatic channels and addressed to the Attorney-General and Minister of Justice;

• 6. On receipt of the request, the Attorney-General and Minister of Justice shall direct a written order to the Inspector-General of Police for the apprehension of the desired suspect or convicted person;¹¹⁵

• 7. In the alternative, a magistrate may issue a provisional warrant for the apprehension of the suspect or convicted person; where this alternative procedure is adopted, the magistrate shall submit a report embodying the provisional warrant and the supporting evidence to the Attorney-General and Minister of Justice for further action;¹¹⁶

• 8. The suspect or convicted person shall then appear before a Judge of the High Court to show cause for why he should not be extradited.¹¹⁷ The Attorney-General and Minister of Justice has authority to specify a class of crimes in respect of which this function may be performed by a Magistrate and not a High Court Judge;¹¹⁸

• 9. Where there is sufficient evidence warranting extradition, the Judge shall then notify the fugitive criminal or accused that he will be held for a period of time determined by the Attorney-General and Minister of Justice during which time he may apply to the Chief Justice as Presiding Judge of the Supreme Court for the issue of a writ of habeas corpus;¹¹⁹

• 10. Where the Chief Justice determines to return the writ of habeas corpus, the Attorney-General and Minister of Justice may, subject to his discretion on public policy and similar considerations, order the suspect or convicted to be delivered to a representative of the requesting state;¹²⁰

• 11. A fugitive criminal not conveyed out of Sierra Leone within two months may be discharged.¹²¹

What, then, are the problematical features of the law? The first is that, despite the fact that the law extensively covers passive extradition, it is seriously deficient in effective principles and procedural requirements in respect of both forms of extradition. In this regard, Amnesty International has highlighted three main categories of impediments to both forms of extradition: They are (1) political control over the making or granting of requests, (2) double criminality requirements, and (3) the Attorney-General’s discretion to prevent extradition based on his assessment that the underlying crime for which extradition is sought is of a political character.¹²² Evidently, the Act does not stipulate or specify which official has the authority to apply for extradition on behalf of the state of Sierra Leone to a foreign state. This can impede the facilitation and implementation of the process of active extradition. It is, likewise, contended that as regards passive extradition, it is highly improper for decisions concerning the granting of requests by foreign states to Sierra Leone to be conclusively determined by the Attorney-General and Minister of Justice, the fact of the possibility of judicial review of the initial order for extradition notwithstanding. The force of this argument is that the ultimate political discretion of the Attorney-General and Minster of Justice in the process carries with it a high potential of political or extra-legal considerations being factored into a complex and delicate process that demands application of relevant legal criteria and strict compliance with the rule of law.

Another issue of legal concern relates to Commonwealth extradition requests. According to the Act, the law is that extradition will not be granted where the Attorney-General and Minister of Justice determines that certain factors in a particular case weigh against extradition. These factors include: (1) that the case is of a trivial nature, (2) that the underlying accusation was not made in good faith or in the interests of justice, or (3) that having regard to all the circumstances, it would be unjust, oppressive, or too severe a punishment to return the convicted or accused person. In addition, a request may be refused by the Attorney-General and Minster of Justice on these grounds: (1) that the offence is of a political character, (2) that the request for surrender was in fact made for discriminatory purposes, (3) that the person returned may face an unfair trial or other improper treatment, (4) that the person to be returned has already been convicted or acquitted of the offence.¹²³ The recurrent criticism is that it is, as a matter of principle, objectionable to vest such authority in the Attorney-General and Minister of Justice with the very high probability of political influence or pressure as against the preference of recourse to an independent and impartial tribunal for such a determination.¹²⁴

The present author strongly endorses the foregoing observation. Politicization of the justice process gravely undermines the rule of law. The same reasoning goes for the process of extraditing a suspect or convicted person to the Republic of Guinea in respect of which the Attorney-General and Minister of Justice can refuse extradition if, in exercise of his discretion, if it appears to him “that it would be contrary to the public policy of Sierra Leone.”¹²⁵ It likewise holds for extradition to countries outside the Commonwealth with respect to which the Attorney-General and Minister of Justice enjoys a broad discretionary latitude of factoring into his determination such undefined notions as “the interests of security, public order, and good morals.”¹²⁶ A related defect is the lack of any provision in the Act authorizing extradition for all other countries besides those covered by the First, Second, and Third Schedules.

There are also some ancillary aspects of the law that seem opaque. One relates to the concept of nationality. In this regard, the Attorney-General and Minister of Justice may, in exercise of his discretionary authority, refuse to extradite a citizen or a permanent resident of Sierra Leone who is also not a national of a requesting Commonwealth state to that state. Additionally, there is no Sierra Leone statutory provision applicable to extradition of nationals to West African states in conformity with the ECOWAS Extradition Convention and to states outside the Commonwealth.¹²⁷

Next, as to double criminality, the law in Sierra Leone is thus: for the purposes of extradition to Commonwealth countries, where the offence which is the subject of the extradition request does not constitute a crime under Sierra Leone law, extradition is impermissible without the fiat of the Attorney-General and Minister of Justice. This is compatible with the London Scheme for Extradition within the Commonwealth (London Scheme) of November 2002. The Scheme further provides that said offence must be punishable by at least two years’ imprisonment in both the requesting and requested states.¹²⁸

The double criminality principle also specifically requires, for the purposes of Sierra Leone law, that no extradition will be granted to the Republic of Guinea except under these conditions: (1) that the crime which is the subject of the request is one punishable under Sierra Leone law, (2) that said crime was committed in the Republic of Guinea, and (3) that the accused or convicted person has not been, and is not liable to be, punished in Sierra Leone.¹²⁹ Further, for countries outside the Commonwealth listed in the Third Schedule, section 23 of the Act precludes extradition if the crime in question is not also punishable in Sierra Leone with a term of imprisonment for at least twelve months. The Act makes no provision for extradition to countries not listed in any of its Schedules.

There are two other complexities and uncertainties surrounding the requirement of double criminality. They are: (1) the application and enforceability within the legal system of Sierra Leone of the stipulation in the ECOWAS Extradition Convention that extradition to and from other West African States will not be granted for offences punishable by less than two years’ imprisonment both in the requesting state and the requested state, and (2) the lack of clarity in the Sierra Leone Extradition Statute as to the permissibility or impermissibility of extradition where the requesting state is seeking to exercise extra-territorial jurisdiction over the crime in question.¹³⁰ With regard to the first issue, the position is that Sierra Leone is a signatory to the ECOWAS Extradition Convention. However, as a state that adheres to the Dualist doctrine with regard to the relationship between municipal law and international law, the relevant provision of the ECOWAS Convention has no legally binding effect in Sierra Leone by reason of non-incorporation within the country’s municipal law system. The second issue is that the Extradition Act lacks clarity or certainty as to whether it is a double criminality requirement that Sierra Leone must also have extraterritorial jurisdiction over the act or omission constituting the crime if the applicant state for extradition is basing its request on extraterritorial jurisdiction. By virtue of Article 11 of the ECOWAS Convention, a requested state may refuse to grant extradition where the offence was committed on its territory. Said state may only refuse extradition on grounds of extraterritorial jurisdiction where the offence was committed outside its territory and where its laws bar prosecution for the same category of offence when committed outside its territory or make extradition of the said offence impermissible.¹³¹

Contrastingly, under the London Scheme, an otherwise extraditable offence continues to be so even though it was committed outside the territory of the applicant state whose law permits extradition of such offences. It is permissible under the terms of the Scheme for a competent authority to refuse extradition where the offence which is the subject to the request was committed outside the territory of either the requesting or requested state and the law of the former precludes that authority from exercising jurisdiction over said offence in a similar situation.¹³² A further uncertainty in Sierra Leone law is that the double criminality requirements fail to indicate whether the act would have to be criminal under Sierra Leone law at the time of the commission of the crime, or at the time of the extradition request, or when the extradition is to be effected.¹³³ The present author concurs with the view postulated by Amnesty International, that there seems to be no justification in international law principle or policy regarding the application of the principle of double criminality where the act which is the subject of the extradition request is a crime under international law.¹³⁴

Furthermore, based on sections 15 and 23 of the Extradition Act of 1974, the Attorney-General and Minister of Justice of Sierra Leone may refuse to grant an extradition request where he determines that the offence in respect of which extradition is sought is “of a political character.” The provision applies to Commonwealth countries, the Republic of Guinea, and countries outside the Commonwealth.¹³⁵ Commenting on this issue, Amnesty International makes three pertinent points, namely: (1) that Sierra Leone law lacks clarity as to the definition of “a political offence,” (2) that states define such crimes in a manner that expressly excludes crimes under international law, and (3) that there is no internationally agreed-upon definition of a political offence. To this effect is the illuminating analysis of Bassiouni:

Even though widely recognized, the very term “political offence” is seldom defined in treaties or national legislation, and judicial interpretations have been the principle source for its meaning and its application. This may be due to the fact that whether or not a particular type of conduct falls within that category depends essentially on the facts and the circumstances of the occurrence. Thus, by its very nature it eludes a precise definition, which could constrict the flexibility needed to assess the facts and circumstances of each case.¹³⁶

Despite the degree of political sensitivity engendered by intrusions on state sovereignty, it seems right to contend that, as a matter of international law principle and policy, there should be no legal characterization of international crimes as political offences. Such an approach is incompatible with the rationale behind international law as a global mechanism for combating impunity.

Finally, there are these other uncertainties in the law: (1) a lack of any statutory provision rendering extradition impermissible for crimes that are of a purely military nature; (2) a lack of statutory provisions precluding extradition on grounds of double jeopardy; (3) a lack of statutory provisions prohibiting extradition on grounds of non-retroactivity; (4) a lack of statutory provisions prohibiting extradition on the basis of statutory limitation; (5) a lack of statutory provisions precluding extradition on grounds of the grant of amnesty, a pardon, or other measure of impunity; (6) a prohibition of extradition where the accused or convicted person has been tried by an ad hoc court or tribunal; (7) as regards active extradition, a lack of statutory provisions requiring that an accused must have been present at some point in Sierra Leone as one condition prerequisite for granting the request; (8) a lack of statutory provisions prohibiting extradition on the grounds that the suspect or convicted person is at risk of torture or other ill-treatment; (9) a lack of statutory provisions rendering extradition impermissible on the grounds that the suspect or convicted person might face the death penalty; (10) a lack of statutory provisions precluding extradition on humanitarian grounds; (11) as regards passive extradition, a lack of statutory provisions restricting the scope of crimes for which a foreign state may exercise jurisdiction only to the enumerated ones.¹³⁷

9.3.3.2 Mutual Legal Assistance

The procedural framework for mutual legal assistance is also beset with legal inadequacies comparable to those highlighted in relation to extradition per se. Generally, the law on the subject is embodied in three disparate statutes, namely, the National Drugs Control Act No. 10 of 2008, the Anti-Corruption Act No. 12 of 2008, and the Anti-Money Laundering Act No. 6 of 2005. The main features of the present law may be summed up in four propositions: The first is that the law does not expressly outline mutual assistance procedures for crimes under international law or for other crimes under national law, such as murder and rape, which could amount to crimes under international law.¹³⁸ The second is that, due to the lack of any legislation or treaty providing a legal basis for mutual assistance for international crimes and other crimes under national law (apart from some limited assistance in extradition cases), Sierra Leone may not be able to provide mutual legal assistance.¹³⁹ The third is that “the existing law of crime in Sierra Leone in its present form is intolerably inaccessible, complex, uncertain, ill-arranged and bewildering,” scattered in a wilderness of legislation imported from England.¹⁴⁰

The inaccessibility factor is also manifest on the international plane in that researchers have complained of difficulties in locating, for example, a complete list of the bilateral mutual legal assistance treaties to which Sierra Leone is a party except the old bilateral treaty with the United Kingdom.¹⁴¹ Sierra Leone has not fulfilled its obligation to incorporate within its municipal law system such multilateral treaties as the ECOWAS Mutual Assistance Convention and the Scheme Relating to Mutual Assistance in Criminal Matters in the Commonwealth (Harare Scheme).¹⁴² Thus, the fourth proposition is that, due to the lack of statutory provisions, it seems that the law enforcement officials in Sierra Leone may not formally be able to provide mutual legal assistance, exceptionally, they may have recourse to the procedure in respect of the other crimes under national law and international law as those enumerated in the aforementioned pieces of legislation.¹⁴³

What, then, are the major deficiencies with respect to mutual legal assistance as reflected in the country’s laws? According to Amnesty International, the answer is that they relate to certain procedural and logistical matters, which are: (1) the conduct of investigations, (2) tracing, freezing, seizing, and forfeiting of assets, (3) video conferencing and other special measures for the presentation of evidence, (4) the acceptance of foreign official documents, and (5) recognition and enforcement of awards of reparation.¹⁴⁴ As regards the conduct of investigations, the legal position at present is that even though Sierra Leone may be able to request assistance in criminal investigations from foreign states or seek evidence from them through letters rogatory for certain crimes, including drug trafficking, corruption and money-laundering, there is no such option with respect to crimes under international law.

On the issue of tracing, freezing, seizing and forfeiting of assets, the present state of the law is that Sierra Leone may request foreign authorities for assistance in tracing, freezing, seizing and forfeiting the assets or property of a suspect or convicted person in a foreign state for drug trafficking, corruption, and money-laundering.¹⁴⁵ However, no such option exists concerning crimes under international law. Reciprocally, Sierra Leone can assist a foreign state in tracing, freezing, seizing, or forfeiting the assets or property of a suspect or convicted person in Sierra Leone for the aforesaid crimes.¹⁴⁶ However, the scope of such assistance available under section 6 of the Extradition Act No. 11 of 1974 is limited to seizure of any property found in the possession of the fugitive criminal at the time of his arrest that may be material evidence of the offence of which he is accused. In the case of video conferencing and other special measures for the presentation of evidence, the law makes no provision at all for this form of legal assistance. As to the acceptance of foreign official documents, there is reciprocity in obtaining and providing evidence or documents or other articles produced in evidence where these are requested either by either the state of Sierra Leone or foreign states. The assistance is limited only to certain crimes, including drug trafficking, corruption, and money-laundering. However, it does not extend to international crimes.

With respect to recognition and enforcement of awards of reparation, Sierra Leone does not appear to have a legal framework for mutual assistance where the awards are made in a foreign state. But it does have a bilateral arrangement for reciprocal recognition of judgments with the United Kingdom, which is a colonial legacy.¹⁴⁷ There is, however, no legislation in Sierra Leone providing for the domestic recognition and enforcement of awards of reparation decreed in foreign states.¹⁴⁸

9.4 Other Institutional Defects

The municipal law system does reveal some additional defects, but of a quasi-institutional character, which may militate against the application of the universality principle. Recent research has highlighted three main defects.¹⁴⁹ The first is the lack of a special immigration unit with responsibility for screening persons suspected of having committed crimes under international law. According to Amnesty International, such an institution serves two main purposes: (1) the exclusion of criminal suspects from travel either when seeking a visa abroad or when arriving at the border, and (2) referring the files of such persons to the police or prosecuting authorities for investigation and prosecution where the evidence justifies pursuing charges. The second is the lack of a special police unit or joint police and prosecution unit with responsibility for investigating and prosecuting international crimes as distinct from domestic and gender-based crimes. The third deficiency is that there is no specialized prosecutorial unit within the prosecution agency of the Sierra Leone criminal justice system with responsibility for prosecuting crimes of an international nature. Cumulatively, these deficiencies in the municipal law system constitute an impediment to the implementation of the complementarity principle embodied in Article 1 of the Rome Statute on the strength of which national courts are mandated to investigate and prosecute international crimes in exercise of universal jurisdiction.

9.5 Conclusion

The various levels of analyses in this chapter lead irresistibly to one conclusion: It is that the law governing universal jurisdiction and related matters, in their diverse aspects and dimensions exemplifying the interrelationship and interactions between Sierra Leone’s municipal law system and the international law system, is extremely problematic in numerous major respects.

9.6 Summary

The law governing universal jurisdiction in Sierra Leone is beset with definitional, conceptual, procedural, institutional, and related defects and inadequacies. Definitional problems arise in the context of war crimes and crimes against humanity. Conceptual issues are diverse and varied. Specifically, they relate substantively and procedurally to such matters as: (1) principles of criminal liability, (2) defences to criminal liability, (3) double jeopardy, (4) statutes of limitations on crimes generally, (5) immunity from criminal liability, and (6) double criminality in the context of extradition. Additional procedural issues include: (1) non-retroactivity of criminal laws, (2) right to fair trial, and (3) restrictions on victims’ rights. Institutional problems revolve around: (1) political control of legal processes, (2) the legal effect of amnesties, (3) statutory problems associated with existing extradition law, from the municipal law and international law perspectives, and (4) the lack of an express statutory framework for mutual legal assistance in criminal matters. As far as war crimes are concerned, Sierra Leone has not yet defined in its municipal law the “new grave breaches” listed in Articles 11 and 85(3) to (5) of Protocol 1 to the Geneva Conventions; also, there are no definitions of most of the war crimes listed in the Rome Statute. In the case of crimes against humanity, Sierra Leone has still not yet incorporated within its municipal law system most of the crimes against humanity listed in Article 7 of the Rome Statute.

As regards conceptual problems, there are some discrepancies between the municipal law versions of, for example, defences to criminal liability and the international law versions, some material, others not. As to procedural issues, such as that of statutory limitations on crimes, Sierra Leone has not yet incorporated within its municipal law Article 29 of the Rome Statute on the non-applicability of limitations with respect to international crimes. On the issue of double criminality, there is no such legal requirement under Sierra Leone law for either prosecution or extradition where it is alleged that a person has committed a crime abroad and that he should be either amenable to prosecution in Sierra Leone or extradition for trial in the place of commission of the crime. With respect to the issue of immunity of Heads of State or other responsible government officials from prosecution for crimes under international law, the principle, municipally and internationally, is that no such immunity exists, whether as an a priori entitlement or otherwise.

On the issue of non-retroactivity of criminal laws, the law in Sierra Leone, as expounded in the Akar case, is that the legislature has authority to enact retroactive penal laws where such a power is expressly conferred on that body and that it is not within the competence of the judiciary to question the wisdom of the exercise of such authority. The law of Sierra Leone recognizes the principle of double jeopardy; it is guaranteed by the Constitution. Institutional concerns in the context of the exercise of universal jurisdiction pose some other difficulties for the State of Sierra Leone, namely, (1) the extent of political control over the legal process, (2) factors which militate against the facilitation and implementation of the mechanism of extradition as provided for under the country’s municipal law and in conformity with relevant treaty law, and (3) the lack of statutory procedures for mutual legal assistance in criminal matters consistent with regional schemes or conventions. There also some quasi-institutional deficiencies reflected in the system.