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NEWS : Local News  

In Sierra Leone, J.B. Jenkins-Johnston kicks against ďTrial by Judge AloneĒ
By Momoja Lappia
Jun 17, 2010, 17:16
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In an opinion issued in Freetown past 14th June 2010 J.B. Jenkins-Johnston Esq. of the Ayotunde Chambers protested against the trial of accused persons in the courts of Sierra Leone by judges alone in the absence of jury. He was very scathing of the continuous application for trials by Judge-Alone in corruption cases brought before the courts.

The Fire brand human rights legal luminary maintained that since the constitution of Sierra Leone Act No.6 of 1991 provides in Section 23(1) for a fair trial, criminal offences are ought to be tried with a jury always present.

"Trial by jury is being slowly but surely abandoned in Sierra Leone in favour of trial by judge alone", he stressed, furthering, "In my humble opinion, this seriously erodes the inherent and valuable rights of every citizen charged with a criminal offence to be tried by his peers, which in itself embodies the notion of a fair trail as Section 23(1) of our constitution stipulates."

"It is pointless for us to continuously pay lip-service to the rule of Law and the pursuit of justice, when we are consciously and deliberately perpetuating injustice and tyranny," Blyden Jenkins-Johnston strongly posited.

The Full Opinion is being published below.


I SAY "NO!!" TO "TRIAL BY JUDGE ALONE!!!"
[ TRIAL BY JUDGE and JURY IS A RIGHT! ]

An Opinion by J.B. Jenkins-Johnston Esq. (Legal Practitioner)

The Constitution of Sierra Leone Act No.6 of 1991 provides at Section 23(1) thereof as follows:-

"Whenever any person is charged with a Criminal Offence, he shall unless the charge is withdrawn, be afforded A FAIR HEARING within a reasonable time by an Independent and Impartial Court established by Law.

Unfortunately the Constitution does not tell us what it means by "A FAIR HEARING", which it seems has been interpreted to mean different things to different people in each given circumstance.

In Blackstoneís Commentaries IV, 350, he notes that the Settlers in the American Colonies in their first Congress in 1765 included in their Declaration of Rights the following;

"Ö..That Trial by Jury is the inherent and invaluable right of every British Subject in these Colonies."

And on attaining Independence, the American Colonies enshrined in their Constitution in 1791 these provisions:

"Art. VI - In All Criminal Prosecutions the Accused shall enjoy the right to a Speedy and Public Trial, by an impartial Jury of the State and District wherein the Crime shall have been committed.

Art. VII - In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved."

Thus Trial by Jury which was taken from England, has become embodied forever as a part of the Constitution of the United States.

Lord Devlin, one of the greatest Judges to have graced the Bench in Britain, in his book TRIAL BY JURY [London 1956] at Page 64 thereof, said,

"So that trial by Jury is more than an instrument of Justice and more than one wheel of The Constitution; it is the lamp that shows that freedom lives."

I make the above references as a starting-point in this my short opinion, because it seems to me that "TRIAL BY JURY" is being slowly but surely abandoned in Sierra Leone, in favour of "TRIAL BY JUDGE ALONE" which in my humble opinion seriously erodes the "inherent and invaluable" right of every citizen charged with a criminal offence to be tried by his peers, which in itself embodies the notion of a "fair trial" as Section 23(1) of our Constitution stipulates.

Section 143 of the Criminal Procedure Act No.32 of 1965 at Section 143 thereof provides as follows:

"Any Person charged with a Criminal Offence at any session of the Supreme Court shall

(a) if such Criminal Offence is punishable by death be tried by the Court with a jury consisting of twelve(12) men;

OR

If such Criminal Offence is not punishable by death be tried by the Court with a Jury consisting of twelve (12) men;

UNLESS

(i) Such Person shall have elected to be tried, or shall have been ordered to be tried by the Court with the aid of Assessors in accordance with the provisions of Section 144;

OR

(ii) Such Person shall have elected or shall have been ordered to be tried by a Judge alone in accordance with the provisions of Sections 145 and 144 respectively."

In my submission from the foregoing, it is the right of every person charged with a criminal offence punishable by death to be tried with a JURY Ė ALWAYS! And if a person is charged with a Criminal Offence not punishable by death he still has the right to be tried by a Judge and Jury except if he elects to be tried by A Judge and Assessors, or if he elects to be tried by Judge alone; OR if he is ordered to be tried by a Judge and Assessors, or is ordered to be tried by Judge alone.

Section 144(2) of The Act provides as follows:

Notwithstanding anything contained in Section 143, in any case where a person is charged at any sessions of The Supreme Court with a Criminal offence not punishable by death, The Attorney-General, if he is of the opinion that the general interest of justice would be served thereby, may make an application to the Court for an order, which shall be made as of course, that any such person or persons shall be tried by the Court with the aid of Assessors, OR BY A JUDGE ALONE, instead of by Judge and Jury."

In my opinion, Section 144 (2) serves to promptly and unilaterally take away what Section 143 has freely given, which the American Settlers described in 1765 as "the inherent and invaluable right of every citizen."

In my opinion Section 144(2) is abhorrent and objectionable in every conceivable way and ought to be removed from the Statute Books forthwith. I say this because the Attorney-General being the Principal Legal Adviser to the Government and the Chief Prosecutor of Offences against the State ought not to be in the position to unilaterally determine the mode of trial of an Accused person, he [The Attorney-General] being a party to those very proceedings, this in my view being in violation of the basic principle of Natural Justice encapsulated in the maxim, "Nemo Judex in sua Causa." - "No man ought to be a Judge in his own Cause."

Further it seems to me that the practice of The Attorney-General over several years, which has always been sanctioned by the High Court is to file a piece of paper which merely states:

"In Exercise of the Powers conferred on me by Section 144(2) of The Criminal Procedure Act No.32 of 1965 as repealed and replaced by Section 3 of The Criminal Procedure Amendment Act No.11 of 1981, I hereby apply for an Order that XY who stands charged with ÖÖÖÖ.offence contrary to theÖÖÖ.ActÖÖ. be tried by Judge alone instead of by Judge and Jury.

I certify that the interests of Justice would thereby be served"
Dated this day of 2010
Signed: Attorney-General and Minister of Justice."

Sadly and unfortunately, the Courts have repeatedly granted such Orders without question, without enquiry, without seeking the views of The Accused or his Counsel, and without seeking to find out why and how the Attorney-General came to be of the opinion that the "general interest of Justice would be served" by the making of such an Order, depriving an Accused Person of his "inherent and invaluable right."

Infact, on reflection, I think Section 144(2) also violates the other cardinal principle of Natural Justice Ė "Audi Alteram Partem" Ė [Let the other side be heard], as these orders are usually made "as of course", without reference to The Accused or his Counsel.

It is interesting to note that since the Anti-Corruption Commission received their Prosecutorial Powers under and by virtue of Act No.12 of 2008 Ė which describes itself as "being an act to provide for the continuance of an INDEPENDENT Anti-Corruption Commission for the Prevention, Investigation, Prosecution and Punishment of CorruptionÖ." - They have always had to ask the Attorney-General and Minister of Justice to do them the little favour of sending in his usual piece of paper applying for Trial by Judge alone, without which there would have to be trial by Judge and Jury. - Some Independent Anti-Corruption Commission INDEED!!! In any case why do they always want trial by Judge alone instead of Trial by Judge & Jury?

It is my further submission that if an Accused Person charged with a criminal offence is going to lose his "inherent and invaluable right" to be tried by his peers, then the Attorney-General or Anti-Corruption Commission, or anyone else wishing to deprive him of such a right, ought at the very least to file a proper Motion supported by affidavit giving good and sufficient reasons for wanting to depart from the norm, the norm being the provisions in Section 143 by virtue of which a person charged with a criminal offence whether punishable by death or not SHALL BE TRIED BY THE COURT WITH A JURY.

It is my submission that allowing or encouraging The Attorney-General or The Anti-Corruption Commission to derogate from a manís constitutional right to a fair trial as enshrined in the Constitution or as set out in Section 143 of the Criminal Procedure Act without filing proper papers, without giving any valid and cogent reasons therefor, and without even hearing from the person who is going to stand trial as to the mode of his trial, is undermining the rule of Law itself, violating both principles of Natural justice, and is NOTHING SHORT OF TYRANNY!!!

If we were all asleep, then it is time for us to wake up and realize that Section 144(2) is part of a number of abhorrent Laws passed in 1965 which are now due to be removed from our Statute Books. The persistent and relentless use of Section 144(2) of the Criminal Procedure Act by the Anti-Corruption Commission [by kind permission of the Attorney-General] to force Trial by Judge Alone on Accused Persons who are presumed innocent until proven guilty, whether they like it or not, does not speak well of their avowed intention to do justice in accordance with the rule of Law bearing in mind that the Constitution is the Supreme Law.

In my considered opinion, and I so submit, NO PERSON can have a fair trial as guaranteed by the Constitution of Sierra Leone at Section 23 thereof, if his Accuser and/or Prosecutor is allowed to dictate the mode of his trial without reference to the views of the said Accused or his Counsel, that is to say, by forcing him to be tried by Judge alone when he would prefer to be tried by a Judge and Jury of "12 good men and true" which is his "inherent and invaluable right", especially when no reasons are given for such a choice.

I therefore urge and appeal to all concerned that Section 144(2) should be removed from our Statute Book soonest, as being unconstitutional abhorrent, objectionable, tyrannical, and contrary to both rules of Natural justice, to wit, "Nemo Judex in sua Causa", and "Audi Alteram Partem.".

It is pointless for us to continuously pay lip-service to the rule of Law and the pursuit of justice, when we are consciously and deliberately perpetuating injustice and tyranny.

IN CONCLUSION, let me repeat a famous quote from Blackstoneís Commentaries, III 379, when he said,

"Ö..Trial by Jury ever has been, and I trust will ever be, looked upon as the glory of The English LawÖÖ It is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals."

EPILOGUE

Lord DEVLIN [in his Book - Trial by Jury - 1956]

"Trial by Jury is more than an Instrument of Justice and more than one wheel of the Constitution: It is the lamp that shows that freedom lives."

Section 144(2) of the Criminal Procedure Act No.32 of 1965 must go - all Accused must have the right to be tried by his Peers, unless he elects otherwise. It is time for us to start treating OURSELVES PROPERLY, FAIRLY And JUSTLY.

THANK YOU ALL FOR YOUR ATTENTION!


© Copyright by Awareness Times Newspaper in Freetown, Sierra Leone.

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