KEYNOTE ADDRESS DELIVERED AT THE OPENING
CEREMONY OF THE ANNUAL CONFERENCE OF THE SIERRA
LEONE BAR ASSOCIATION ON FRIDAY 15 TH JULY 2005
ON THE THEME:
“THE JUDICIARY, YESTERDAY, TODAY AND TOMORROW”
BY
ADE RENNER-THOMAS
CHIEF JUSTICE OF THE REPUBLIC OF SIERRA LEONE
Mr. Chairman, My Lords, Your Worships, Honourable Attorney, Your
Excellencies, Mr. President of the Sierra Leone Bar Association, members of the Bar Association, distinguished ladies and gentlemen it is a singular honour for me to stand before you this morning to deliver the keynote address at this Annual Conference of the Sierra Leone Bar Association with a theme: “The Judiciary-Yesterday, Today and Tomorrow”. Mr. President, let me take this opportunity to congratulate your executive and yourself on the choice of this theme.
My association with your Association, if you will excuse the pun, spans the length of my professional career which ended only on the 30 th day of
November 2004 after thirty years at the Bar.
During those thirty years I served first as an ordinary member of your association, then as an executive member, and finally rising up to become its
President in 1987. You can therefore say that, in so many respects, I am product or off-shoot of the Bar.
This puts me in a rather invidious position this morning as I have been requested by the Bar Association to speak on my vision of the Judiciary, and this, after only seven months as member of the Judiciary. On the other hand, one can say that I am in a unique and rather privileged position as I am not just any member of the Judiciary but, as the Chief Justice, I am head of the
Judiciary and so my vision of the Judiciary for the next few years must be of immense significance to interested observers.
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The vision or perception of the Judiciary that I am going to share with you this morning could therefore in many ways be considered as my mission statement for the period of my tenure as head of the Judiciary, which tenure, ceteris paribus, should last for another five years. Indeed, it is fortuitous and timely that I should be seen to be setting out my mission statement in this address being my first public pronouncement since I took up office.
It is also fortuitous that I should be making this statement to an audience of predominantly legal practitioners because, as I shall demonstrate later in this expose, the role of members of the profession, whether in private practice or employed at the Law Officers Department or elsewhere, is crucial to the proper functioning of the Judiciary.
Before going on to outline my vision of the Judiciary for the next five years and beyond I think it would help if I gave a brief overview of the constitutional status of the Judiciary as well as of its functions and place in the legal system of Sierra Leone.
So the first question I shall seek to answer is: how is it established and what is its composition? The answer to this and other questions about the
Judiciary is to be found in section 120 of the Constitution, Act No. 6 of
1991.
Section 120 (1) establishes the Judiciary and declares that judicial power in
Sierra Leone is vested in the Judiciary of which the Chief Justice is the head.
The exercice of judicial power basically involves the administration of justice, that is to say, the hearing and determining all matters criminal and civil, including those relating to the enforcement and interpretation of the
Constitution itself and any other matter for which Parliament confers jurisdiction on the Judiciary.
But the role of the Judiciary as set out in the Constitution only tells half of the story for quite apart from its judicial functions the Judiciary also has important administrative functions the most significant being that of the management of the court system in Sierra Leone. Indeed, the courts are the focal point of the justice delivery system. The level of public confidence in the Judiciary could best be judged by the willingness or otherwise of members of the public to submit their disputes to the courts for resolution rather than making use of alternative mechanisms for conflict resolution.
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However, let me make it clear that in this all important function of conflict resolution through the courts the Judiciary does not and cannot act alone.
The Judiciary does not go out canvassing for matters to adjudicate upon. So in the sphere of criminal justice it is the Police, the Attorney-General, acting by himself or through the Director of Public Prosecutions or individual Law
Officers, who decide what criminal matters should be brought before the courts. Alternatively, a private prosecution may be instituted by a complainant in person or acting through a legal representative. Quite often, and to a large extent, whether such prosecutions are concluded successfully and with reasonable despatch is out of the hands of the Judiciary and may depend on such factors as how well the alleged offence was investigated, the quality of the evidence placed before the courts, the availability of prosecution witnesses to attend court as and when needed and the diligence of defence Counsel.
The same is also true of civil proceedings. If litigants and/or their legal representatives come to court with their witnesses ready, willing and able to go on with their matters there would me much less delay in concluding matters.
This brings me to the next question: that of the composition of the Judiciary.
As far as its judicial functions are concerned members of the Judiciary are those who together constitute the Judicature. The Judicature in turn consists of three Superior Courts i.e. the Supreme Court, the Court of Appeal, and the
High Court on the one hand, and such other inferior and traditional courts as
Parliament may by law establish. Contrary to popular misconception membership of the Judicature, and therefore of the Judiciary, is not limited only to Judges and Magistrates but is extended by definition to include any person exercising judicial power in Sierra Leone such as Registrars, Justices of the Peace etc. Strictly speaking, Local Courts established under the Local
Courts Act, No.20 of 1963, should be part of the judiciary but though Local
Courts exercise jurisdiction over matters governed both by customary law and the general law, under the present dispensation, Local Courts are not considered part of the Judiciary but are rather administered by the Ministry of Local Government and Community Development. For this reason, and for the purpose of this paper, the Local Courts shall not treated as part of the
Judiciary. If and when they come to be treated as part of the Judiciary then all of what I am about to say today should apply to them pari passu.
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Another factor I would like to highlight about the composition of the
Judiciary is the distinction made between Judges of the Superior Courts of
Judicature and other officials of the Judiciary such as Magistrates,
Registrars, Bailiffs, Court Clerks etc.
The fundamental distinction is that the offices of Judges are established by the Constitution which also governs their appointment, tenure and removal.
Whereas Section 139 provides that before a Judge of the Superior Court of
Judicature assumes the function of his office he shall take and subscribe to the judicial oath of office set out in the Third Schedule of the Constitution other judicial officials, such as the Master and Registrar and Magistrates, are not required to take or subscribe to any oath or to even a make a declaration of any kind.
Having thus described the constitutional status of the Judiciary and having identified its key functionaries, as it were, I shall now turn to the theme of the Conference and use it as the basis for my expose on the future of the
Judiciary. Indeed, one cannot properly prepare for the future unless one is able to ascertain the successes and/or shortcomings of both the past and the present. The purpose of such an exercise in this case will be to ascertain to what extent the Judiciary until now has been successful in performing its principal constitutional role of upholding the rule of law, enforcing and protecting the fundamental rights of all persons subject to its jurisdiction, and in generally administering justice in an independent, diligent, efficient, competent, impartial and fair manner.
Who then shall be the judge in this cause to determine whether or not the
Judiciary had passed the test in the past and continues to do so presently? It is my humble submission that that the only competent judge is not the executive, not the representatives of the people in Parliament, not the representatives of civil society, the so-called voice of the voiceless, not the disgruntled editor of a local newspaper with an axe to grind, not the foreign consultant who has not had enough time to conduct any in depth study of the workings of the Judiciary, but rather the average man out there, shall I say in the man in “the Wellington or Lumley poda poda” or in “the Bo Okada”, that silent majority, who daily yearn for justice to be done.
What then has been the verdict? In most cases, the perception of the
Judiciary held by certain persons or entities could be gleaned from oral or written statements expressing direct views on the state of the Judiciary. In
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other cases, one is left with the task of making deductions from actions taken by the interested party which might indicate confidence or lack of confidence in the Judiciary. An example of the latter situation is the recent decision of the Government of Sierra Leone to request the United Nations to assist it in setting up the Special Court for Sierra Leone. Some commentators have observed that the inference to be drawn from that fact is that the executive did not believe that the Sierra Leone Judiciary had the capacity to handle the task of trying the perpetrators of the atrocities of the recent civil war. In contrast to the position taken by our executive, one can cite that taken by the Rwandan authorities, and more recently, by the Government in
Sudan which has been advocating, though without much success so far, that its Judiciary is capable of handling the trials in respect of municipal and international law crimes arising out of the atrocities being committed in the
Dafur region of Sudan.
Making a comparison between the situation in Rwanda after the genocide and that in Sierra Leone after the war and leading to the setting up of their respective tribunals one commentator had this to say:
“
Unlike the case of Rwanda, where the government wanted the local courts to be strengthened to deal with the challenges of the genocide trials there was no effort under way in Sierra Leone to strengthen the local judiciary and a number of commentators have already criticized the emphasis on international judicial structures over existing local structure”.
It has also been observed that if our Parliament had much confidence in the
Judiciary and placed reliance on it to protect the fundamental rights of the people they claim to represent then they should be doing more to ensure that the Judiciary is provided with adequate resources to meet with the challenges it faces. The reticence of our executive and our legislature to openly criticize our Judiciary could be understood as, after all, our Judges are appointed by the executive with the approval of the legislature who also have the last say on matters touching on their removal.
In contrast, foreign consultants funded by the international communities and local civil society organizations who also rely to a large extent on foreign donors for their funding have no such qualms about expressing, in most cases, very critical viewing about our Judiciary. The examples are myriad, whether from Amnesty International or one of the hundreds of local NGOs, such as “Legal Access Through Women Yearning For Equal Rights and
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Social Justice”. For my first example, I shall cite the report by Niobe
Thompson headed “In Pursuit of Justice-A Report on the Judiciary of Sierra
Leone”. This report was apparently co-sponsored by the Commonwealth
Human Rights Initiative and the Sierra Leone Bar Association and was published in 2002 thanks, it says on its cover, to “the generous support of the
Canadian International Development Agency (CIDA) and the Ford
Foundation. In a chapter headed “Judicial Capacity: Erosion of the
Machinery of Justice in Sierra Leone” the author had this to say:
“Despite the presence of an elaborate judicial structure, Sierra
Leone’s judicial system can barely function-even in Freetown-rendering justice inaccessible for the average citizen. Three decades of patrimonial politics starved the judicial system of the resources necessary for its independence and led to the politicisation of justice. A decade of civil war and military coups d’etat rendered the already compromised edifice a hollow shell.”
Thompson continued in the next paragraph that, as at 2002, much of the reason why the rights of those in need of justice were violated was because the system simply could not afford to protect them.
With the greatest respect to our local journalists, I would not bother to cite any examples from the media because it is common knowledge to all who listen to the local 96.2 FM or 98.1 F.M. or read our local tabloids that the media perceive the Judiciary as generally inept and corrupt.
The next view I am going to cite is as authoritative as they come. In his recent Report to the Security Council which led that body to pass a resolution on the 30 th June 2005 extending the mandate on the United
Nations Peace Keeping Mission to Sierra Leone (UNAMSIL) till 31 st
December 2005 the Secretary-General of the United Nations, after dealing with the security situation generally in the country, continued in the following terms:
“ The Government also needs to restore the rule of law, reform the penal and judicial systems and build the capacity for an independent
Judiciary”.
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The next account of the state of our judiciary is local and is contained in the
National Anti-Corruption Strategy Document, the abridged version published by the National Anti-corruption Strategy Secretariat in February
2005, together with the statistics contained therein based on a Corruption
Perception Survey conducted in the year 2000. It states as follows:
“The judiciary is the cornerstone of any system of governance and the basis of a modern State. The judicial system in Sierra Leone is a battered institution that has gone from being a model in West Africa at the time of independence to an institution that is seen as unable to dispense justice to the perpetrators of the civil war (hence the need for the Special court). The
2000 Corruption Perception Survey placed the judiciary as the second most corrupt institution (alongside Agriculture and Marine Resources) with
15.3% stating that it was the most corrupted [sic] organ of Government. The
Corruption and Governance study supports this: Households and managers overwhelmingly reported that the judicial system did not function effectively and fairly because of high costs, the lack of credibility and professionalism of judges, and overly complicated legal procedures”.
Statistics contained in this publication also indicate that 67% of households surveyed and 52% of managers prefer to use alternative mechanisms for conflict resolution than going to court. I shall refrain from commenting on the accuracy and/or reliability of the statements and statistics contained in this report. However, it could not be ignored because it purportedly contains the voice of the voiceless, the silent majority, the people that the Judiciary is meant to serve.
If one were to rely on the reports from which I have just quoted then the conclusion one is inclined to draw is that if the Judiciary of the past was worthy of emulation by sister jurisdictions in the sub-region then the
Judiciary today has totally failed the people it is meant to serve.
How then can the Judiciary redeem itself? In my humble opinion it would not suffice for the Judiciary to merely regain its pristine glory. It will have to do much more than this to meet the challenges of the future. For one thing times have changed. The new democracy that Sierra Leone is building today needs a modernized, strong, well-funded, adequately resourced and independent Judiciary manned by competent, diligent, efficient and impartial
Judges, Magistrates, other judicial officers and support staff.
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How then does one approach this Herculean task of reforming the Sierra
Leone Judiciary to meet the tasks ahead. It is my submission that if one could persuade the Government to ensure that the Judiciary was manned by an adequate number of personnel, personnel who were sufficiently motivated to perform the duties of their judicial office in accordance with the letter and sprit of the judicial oath as set out in the Third Schedule of the
Constitution, Act No. 6 of 1991, one would have gone a long way towards attaining one’s objective of reforming the Judiciary.
Permit me therefore to dwell for a moment on the commitments of the judicial oath. In taking the judicial oath High Court Judges, Justice of the
Court of Appeal and the Supreme Court undertake:
1) to faithfully and truly discharge the duties of their particular office;
2) to support and uphold the Constitution of Sierra Leone as by Law established; and
3) to do right to all manner of people after the laws and usages of Sierra
Leone without fear or favour, affection or ill-well.
Indeed, the whole essence of the judicial oath is that, not only must Judges of the Superior Courts of Judicature act as guardians of the fundamental rights of the people under the Constitution but, they must also do so free from any bias, prejudice or partiality and so conduct themselves, in court and out of court, as to give no ground for doubting their ability and willingness to decide cases coming before them solely on the legal and factual merits as appears to them in the exercise of an objective, independent and impartial judgment.
To appreciate the importance of the judicial oath for the performance of the functions of the judicial office we need to elaborate on the several commitments contained in the judicial oath.
First, the commitment relating to the faithful and true discharge of the duties of the particular judicial office means that the appointee undertakes to carry out his judicial duties, as well as his administrative functions, diligently, competently and efficiently.
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Diligence and competence are more germaine to the judicial officer’s adjudicative duties whereas efficiency points more to his or her administrative duties. No doubt, there are certain areas where these principles do over-lap.
A diligent judicial officer is one who by attending regularly and punctually for work, devoting adequate time to his duties and who is expeditious in bringing to a conclusion matters assigned to him for determination. Absence of diligence is marked by irregular attendance in court, tardiness, frequent adjournments and inordinate delays in completing cases and delivering judgment. It is not only incumbent on a judicial officer to be to diligent but he should require his staff and other court officials under his direction to observe the standards of fidelity and diligence that apply to him.
Competence like diligence is a prerequisite for the due performance of the judicial office. In the past in our jurisdiction, as indeed in many other common law jurisdictions, not only did Magistrates and Judges assume office without any prior training designed to equip them for their assignment but no provision was made for their continuing legal education during their tenure. This myth that Judges and Magistrates do not require training because the law is said to repose in their breast has now been debunked with the emergence in virtually all jurisdictions, both civil and common law, of a trained judiciary. Such training should enable a judicial officer maintain and enhance the legal knowledge, skills and personal qualities necessary for the competent performance of both his judicial and administrative functions.
According Justice Ang’awa of the High Court of Kenya:
“Continuing legal education is of great importance to a Judge or
Magistrate. It is meant to facilitate on-going professional development of judicial officers and to ensure that they keep abreast of changes in the field of law and related fields. Throughout his tenure the judicial officer will need to focus on skills development. Currently the focus is on IT skills, case management strategies and social context issues.
With the proliferation of international conventions, especially in the areas of human rights in general and women and children’s rights in particular,
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Judges and Magistrates need to keep themselves informed about relevant developments in international law. No doubt, it was with this in mind that the International Association of Women Judges (IAWJ) began a project known as the Jurisprudence of Equality Program (JEP) designed to prepare judges to apply international, regional and national human rights norms to cases coming before them in their national and local courts involving gender based discrimination and violence.
I shall not dwell too much on the need for efficiency because it follows that a judicial officer who is well-trained and is diligent will perforce be efficient.
The next undertaking made by a judicial officer in taking the judicial oath is to uphold and support of the Constitution as by law established. Unlike
Britain, Sierra Leone has always had a written Constitution which serves as the Supreme Law. Thus, every single provision of the Constitution is sacrosanct but there are some that are of utmost significance as far as the constitutional role of the Judiciary is concerned. I have in mind those provisions enshrined in Chapters II and III of our Constitution dealing with fundamental principles and rights of the individual. Chapter II deals basically with the fundamental principles of State policy the most important of which are the principles of freedom, democracy and justice. There are also listed in Chapter II various political, economic and social objectives of the State among which one can cite the objective to protect and defend the liberty of the individual and to enforce the rule of law.
However, it is worth noting that, though in accordance with section 4 of the
Constitution all organs of Government and all authorities and persons exercising legislative, executive and judicial powers are enjoined to conform to, observe and apply the fundamental provisions of Chapter II of the
Constitution, section 14 thereof makes its perfectly clear that these fundamental principles are not justiciable i.e. they do not confer any legal rights in the individual that are capable of enforcement in any court of law.
So, by way of example, though one of the declared objectives of the State is to ensure the efficient functioning of Government services the citizen cannot sue the Government if NPA fails to provide regular power supply.
In contrast, the fundamental rights and freedoms of the individual enshrined in Chapter III of the Constitution are fully protected by law pursuant to section 28 of the Constitution. These include the right of the individual,
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irrespective of race, tribe, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedom of others and for the public interest, to the following: a) life, liberty, security of person, the enjoyment of property, and the protection of law; b) freedom of conscience, of expression and of assembly and association; c) respect for private and family life; and d) protection from deprivation of property without compensation.
Without a competent, independent and impartial judiciary these fundamental rights could not be effectively protected. Indeed, the enforcement of these fundamental rights and of all other rights under the law depends upon the due observance of the rule of law. Public confidence in the judicial system and in the moral authority and integrity of the Judiciary is of the utmost importance in a fledging democracy such as ours.
The next commitment contained in the judicial oath is that the appointee will do right to all manner of people after the laws and usages of Sierra Leone and do so without fear or favour, affection or ill-will.
Here we encounter three cardinal guiding principles for the performance of judicial functions namely:
independence;
equality of treatment for all before the law; and
impartiality.
These principles are most essential to the judicial officer if he is to fulfil his role of upholding the Constitution and enforcing the rule of law. For this reason, if no other, they do need further elaboration.
We shall first consider the concept of judicial independence which is a prerequisite for the existence of the rule of law and a fundamental guarantee of a free trial. There are two facets to judicial independence: viz the independence of the individual judge in his day to day work of adjudicating upon matters assigned to him and the independence of the judiciary both as an institution and as an arm of government separate from the executive and the legislature.
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As far as the independence of individual judges and magistrates is concerned, in keeping with the commitment of the judicial oath Judges, and equally so other judicial officers, should exercise their judicial function solely on the basis of their assessment of the facts of the particular case before them and in accordance with a conscientious understanding of the law, free from any extraneous influence, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. In particular, Judges should endeavour to be free from inappropriate connections with, and influence by the executive and legislative branches of government.
From a wider perspective, every judge should encourage and uphold safe- guards for the discharge of his judicial duties in order to maintain and enhance the institutional and operational independence of the Judiciary as a whole. Apart from the judicial oath, the Constitution itself in section 120(3) enjoins the Judiciary, in the exercise of its judicial functions, to be subject only to the Constitution itself or any other law. Most importantly, it should not be subject to the control or direction of any other person or authority.
To further enhance the independence of the Judiciary the Constitution guarantees that Judges enjoy office during good behaviour and are removable only by Parliament. If one were to rest one’s assumption on the fact that this constitutional provision has never been invoked since the enactment of the present Constitution in 1991 then one can safely say that this guarantee is sufficient to ensure the independence of the Judiciary.
However, there are several factors which in practice prevent the Judiciary from enjoying the complete independence envisaged by the drafters of our
Constitution. Indeed, there are so many other subtle ways in which the executive could, if it is so minded, seek to undermine the independence of individual judges.
Though Judges of the Superior Courts of Judicature have their security of tenure guaranteed by the Constitution the possibility always exists that a
Judge may be forced to leave office prematurely against his will. In the not too distant history of the Judiciary Chief Justices have been made to retire prematurely. Just as with the appointment of Judges, the power to promote
Judges from the High Court to the Court of Appeal and from the Court of
Appeal remains vested in the executive subject to the approval of the
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legislature. Again, in the recent past, Parliament has refused to sanction the promotion of a Justice of the Court of Appeal to the Supreme Court without assigning any reason for the refusal. In these circumstances, one can only pray that the hope of promotion, or the fear of non-promotion will not in the future affect judicial decision-making. Alas, according to Professor Anthony
Allott, writing in the Commonweath Law Bulletin in October 1994:
“One can hardly, if ambitious, avoid looking over one’s shoulder at the consequence of adopting a particular style or trend of decisions on one’s future career as a judge.”
Another factor likely to undermine the independence of the Judiciary is that the Judiciary presently has very little or no control over the funding necessary for the performance of its basic functions. Not too long ago, the
Judiciary was self-accounting and was allowed to retain monies earned by way of filing fees and fines to pay for its running costs. But under the present Constitution all fines and fees must be paid into the consolidated fund. With the setting up of the National Revenue Authority even the function of collecting fees and fines has been taken away from the Judiciary so the possibility of retaining such monies is now out of the question.
The Judiciary is now obliged, like other departments of government, to depend on annual budgetary allocations the disbursement of which in the case of the Judiciary, is under the watchful eyes of the Ministry of Justice and is often subject to all kinds of vagaries. This is crucial for the independence of the Judiciary for, according to Sir Francis Purchas writing in the New Law Journal in September 1994:
“Constitutional independence [of the Judiciary] will not be achieved if the funding of the administration of justice remains subject to the influences of the political market place. Subject to the ultimate supervision of parliament, the judiciary should be allowed to advise what is and what is not a necessary expense to ensure that adequate justice is available to the citizen and to protect him from unwarranted intrusion into his liberty by the executive”
It is my humble submission that, without seeking to detract from another important constitutional principle, possibly equal in importance to that of judicial independence, viz, that it is the right of the legislature to decide how public money is to be spent, the Judiciary should be accorded some degree
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of financial independence and be well resourced. This is essential both at the general institutional level and at the level of personal remuneration and conditions of service of judicial officers.
Indeed the UN Basic Principles on the Independence of the Judiciary
(endorsed by the General Assembly in 1985) has as its seventh principle that:
“ It is the duty of each member State to provide adequate resources to enable the judiciary to properly perform its functions”
It is also my considered view that there is a close connection between judicial salaries and judicial independence. This has been widely recognized in many jurisdictions and by different commentators. The following submission by the Law Society of New South Wales, Australia, is to be found in the Commonwealth Law Bulletin of July 1992:
“The question of salaries constitutes one of the Society’s major concerns so far as judicial independence is concerned. The opening up of a “dispiriting chasm” between the relatively low salaries of those seated on the nation’s benches and the much more remunerative incomes of the leading practitioners on Court floors below them has been the chief subject of apprehension . The disparity of the incomes of those whose arguments are judged by them has become shameful, the Society submits”
Indeed, Judges and other members of the Judiciary should receive salaries and benefits appropriate for their respective offices “otherwise the essential independence of judicial officers would be undermined.” Some jurisdictions have gone to great lengths to ensure this independence. So in India the level of judicial remuneration is specified in the Constitution and according to
Article 125 of that Constitution the level of allowances cannot be reduced to the disadvantage of the judge after appointment.
And I cannot resist the urge to quote the following reflection by Lord
Bingham of Cornhill to be found in the English Judicial Studies Board
Annual Lecture that he gave on 5 th November 1996:
“In most societies and subject to obvious exceptions, there is some perceived relationship between what someone earns and the status or
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prestige which he enjoys. Financial rewards are not, of course, everything, but nor are they nothing. Unless, therefore, the rewards of judicial office (with or without other benefits) are sufficient to attract the ablest candidates to accept appointment, albeit with some financial sacrifice, the ranks of the judiciary must be filled by the second best, those who (under our system) have failed to make it in private practice, and there would be an inevitable lowering in the standing and reputation of the judiciary and a sea change in the relationship between advocate and judge. There would also, I suggest, be a loss of those qualities of confidence and courage on which the assertion of true independence not infrequently depends, because these qualities tend to be the product of professional success, not the hallmark of professional mediocrity. This is not mere speculation: one need only look at some other countries with a career judiciary in which those opting for a judicial career are by and large the weaker candidates, to see that the judiciary which results lacks the authority and standing which we largely take for granted”.
Another key aspect of the independence of the Judiciary is the need for
Judges and other judicial officers to observe political neutrality. The ideal situation is what is described by J.T.Waltman in his book “The Courts of
England in the Political Role of the Law Courts in Modern Democracies” where he states:
“the British Judiciary prides itself on its independence. ….But this independence has been part of a tacit agreement between judges and politicians. Politicians normally do not meddle with the judiciary even when they could……..For their part the judges restrict their scope of authority to private law matters, avoiding the ‘political thicket’”.
Next, we turn to the principle of equality before the law. This is one of the fundamental principles enshrined in the Constitution. As part of the social objectives of the State, section 8(2) of the constitution provides that, in furtherance of the social order, every citizen shall have equality of rights and obligations and opportunities before the law. This fundamental principle is also part of the Universal Declaration of Human Rights which recognizes that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations and of any criminal charge. The International Covenant on Civil and Political Rights also guarantees that all persons shall be equal before the
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courts. Therefore, in keeping with the judicial oath Judges and other judicial officers are expected to accord equal treatment to all persons who appear before them, without distinction or unjust discrimination based on the grounds of sex, colour, race, ethnicity, religion, age, social or economic status, political opinion or disability.
The commitment made by a judge in the judicial oath to perform his duties without fear or favour, affection or ill-will is best epitomized by the need to be impartial in every respect. Impartiality is indeed the essence of the judicial function and applies not only to the making of a fair and unbiased decision but also to the process by which the decision is made. Hence, it commonly said that justice must not only be done but must be seen to be done. In this regard, a Judge, or any judicial officer for that matter, must strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the Judge and of the Judiciary.
This brings me to the position of a judicial officer in society at large, particularly out of court and the perception of the moral standing of a judicial officer. The real effectiveness of judicial authority lies in the respect and acceptance which the public accords to the exercise of such authority.
Public confidence, I submit, will not be engendered merely by judicial officers performing their judicial duties in accordance with the judicial oath.
Apart from the principles of independence, impartiality, equality, competence and diligence to be deduced from the judicial oath the public expects judicial officers to observe and maintain the principles of integrity and propriety at all times.
The observance of the principle of propriety means that a judicial officer should at all times and in every respect be of upright conduct and ensure that his or her conduct is above reproach in the view of a reasonable fair-minded and informed person. Equally so, a judicial officer should avoid impropriety and the appearance of impropriety in all judicial and personal activities. As a judicial officer, one should conduct oneself in a manner consistent with the dignity of the judicial office, and for that purpose one must freely and willingly accept appropriate personal restrictions. The justification and necessity for the observance of these principles could partly be found in the following statement by Mr. Justice Thomas, a Judge of the Supreme Court of Queensland in his book “Judicial Ethics in Australia” (2 nd ed. (1997) p.9):
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“
[Judges, he said] form a group in the community. We comprise a select part of an honourable profession. We are entrusted day after day,with the exercise of considerable power. Its exercise has dramatic effects on the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not some day depend upon our judgment. They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable.
It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations”
In the past, our Judiciary, like all other commonwealth Judiciaries, had always prided itself in maintaining the values of integrity and propriety as part and parcel of a well-established judicial tradition. Our Judges had always actively participated in establishing, maintaining, enforcing, and themselves observing a very high standard of conduct so that the integrity and respect for the independence of the Judiciary may be preserved. There was always an ideal to be attained. There were certain things a judge would not do, certain things he would not say in public, and certain places and people he would not be associated with. However, over the years as values in our society have declined generally, so to our Judges, being human beings have been subject to the same pressures and vulnerabilities as their fellow citizens. In a society where absence of accountability and impunity have become the norm Judges have also dropped their guard. As they have done so they have also lost the respect and confidence of the public they formerly enjoyed. It is quite possible that there had always being the odd Judge or other judicial officer who was corrupt but because the Judiciary as a whole would readily take steps to protect the respect and dignity of the judicial office members of the media, for example, were always mindful of the power of judges to deal with them summarily for contempt. Once that respect disappeared it soon become common place for newspaper headlines to accuse judges by name of being corrupt, and recently of even being liars, in the handling of a matter still sub judice and even to dare the judge to take any form of legal action against the editor and/or the publisher. Indeed, one of the main features of present day journalism in Sierra Leone is the unprecedented, scurrilous, often unsubstantiated and relentless attack of the
Judiciary by the print media in particular.
However, having said that, it cannot be denied that in recent times the
Judiciary has come under very intense scrutiny from members of the public
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at large as they cry out for justice in our new democratic dispensation. As i said earlier in this talk, the general perception of the Judiciary at present is that it is one the most corrupt institutions in the country unable to perform its constitutional role as identified earlier in this paper because of lack of credibility and professionalism.
The challenge facing the Judiciary of tomorrow therefore is to devise measures that will ensure that public confidence is restored and the Judiciary becomes more accountable to the citizenry it is has taken an oath to serve without fear or favour affection or ill-will, and if I may add, with integrity and propriety both in and out of court. If this is any consolation to members of our Judiciary it must be stated that this crisis of confidence is not peculiar to the Sierra Leone Judiciary. In the past ten to twenty years many jurisdictions, including those of so-called developed countries, have come to recognise the social and economic pressures and other problems which judicial officers face nowadays. As a result, these jurisdictions have put in place mechanisms to remind judicial officers of what is required of them in the exercise of their judicial functions so as to uphold public confidence in the administration of justice, enhance public respect for the institution of the judiciary and also to protect the reputation of individual judicial officers who may not be corrupt and who may be performing their judicial functions with integrity and propriety often under very difficult conditions. Different jurisdictions have adopted peculiar methods, in addition to the constitutional provisions for the removal of judges, to assist in ensuring that the principles we have highlighted above are applied by judicial officers.
Most jurisdictions have adopted codes of conduct and have even gone further to provide complaints and disciplinary processes as a means of ensuring the accountability of judges. Others, such as England, Canada and
Australia, have developed guidelines rather than codes as they are of the view that they lack any authority to impose prescriptive standards upon judges. The statements, principles and commentaries contained in such guidelines are purely advisory in nature. They are not meant to be used as a code or a list of prohibited behaviours. In yet other jurisdictions, such as
Zambia, the expected standard of judicial conduct has been set out in an act of parliament. The Zambian Judicial Code of Conduct Act 1999 deals with issues relating to adjudicative responsibilities, extra-judicial activities, financial, political and employment matters as well as setting out a detailed procedure for complaints against the judiciary.
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Coming back home, our Judiciary has opted for a self-regulatory process. I am pleased to announce, for the benefit of those of you who do not already know, that our Judiciary has voluntarily and unanimously adopted a Code of
Conduct that makes provision for the observance by all judicial officers of the principles we have been examining this morning as well as the setting up, for the first time, of a procedure for complaints against individual judicial officers. In this regard, a Judicial Ethics Committee has been set up established whose prime function will be to investigate such complaints and make recommendations for sanctions and other forms of disciplinary action where appropriate. The Code is due to come into force the 1 st day of
September 2005. Before that date it will be published and become freely available to members of the public. This is a unique opportunity for all of us to assist in restoring public confidence in the Judiciary by coming forward with genuine and substantiated complaints regarding misconduct by any member of the Judiciary without exception.
However, we have not stopped at the Code of Conduct for judicial officers, that is Judges, Magistrates and all who exercise judicial power in Sierra
Leone. We are going further to pay heed to the exhortation and advice of Dr.
S.K Date-Bah, a Justice of the Supreme Court of Ghana who speaking on the topic of “Judicial Accountability and Confidence Building” had this to say:
“Attention need to be paid to the other elements in the justice delivery system to ensure that their performance is engendering public trust, not diminishing it. However good or accountable may be the conduct of a judge, if the conduct of the registrars and court clerks is impeding access to justice, then measures need to be taken to remove such impediment. Also, if the practising bar is engaging in irresponsible applications for adjournments leading to delay in the disposition of cases, then measures need to be taken to thwart such practices. In other words, in the interest of the promotion and sustaining of public confidence in judicial accountability, there is need to adopt a systemic approach to assessing and managing the delivery of justice. Remedial measures will then have to be applied to any weak link in the system”
To curb some of the nefarious practices currently engaged in by certain registrars, court clerks, bailiffs and other court staff on their own behalf and sometimes purportedly on behalf of the Judge or Magistrate with whom they work we are in the process of drafting a code of conduct for support staff in
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the Judiciary with a complaints procedure similar to that being established for judicial officers.
Now turning to the legal profession, it is my firm belief that in the same way that it has become necessary to introduce ethical guidelines for judicial officers in Sierra Leone, the legal profession needs to be regulated and be accountable. This is so because lawyers are such a vital cog in the machinery of justice and must be prepared at all times to maintain the honour and dignity of their profession and abstain from conduct which may tend to discredit their profession. It is said that a strong legal profession makes a strong bench. It is only a legal profession that behaves with honour and dignity that will be able to support the Judiciary in dispensing justice in a fair and independent way.
In this regard, it is gratifying to note that, in addition to the provisions contained in the Legal Practitioners Act 2000 for disciplinary action to be taken against erring members of the profession, the Bar is in the process of drafting a code of conduct for lawyers that should soon come into force. I welcome that development and I trust that as you reach the end of your deliberations on the Judiciary, past, present and future, you will recognize the important role you play in the administration of justice and you will resolve henceforth to support the Judiciary as we strive together to regain public confidence in the justice delivery system as a whole in our beloved nation.
Mr. Chairman, my Lords, your Worships, Mr Attorney, Your Excellencies, members of the Sierra Leone Bar Association, distinguished ladies and gentlemen, I thank you for your attention.
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