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Liberia's Legal System Vs. Sierra Leone
Special Court The UN Security Council Resolution 1315 (2000) paved the way for instituting the Special Court for Sierra Leone. The jurisdiction of said court over Liberia is focus of this paper. Our perceptions about the work of the Special Court for Sierra Leone, especially as it relates to the indictment against a former sitting President of Liberia have not only divided us as a nation but confused us as we struggle to accommodate such indictment in our Legal System. Whenever Liberians meet, any discussion that concerns the Special Court for Sierra Leone is in the context of Taylor’s fate. In most cases, our positions are purely based on guesses and misinformation. It is my view that a variety of issues that are core to informed decision making have not featured in these conversations. Therefore, it is my goal to help raise these issues from the vantage-point of a trained legal expert whose focus is on Liberian Law. Here are some of the questions that are seemingly ignored when dialogue about the Special Court is held. Has the indictment of Taylor done us any good? Does it actually served the interest of Liberia? Most importantly, what legal precedent does it set for the future of our country? To answer these questions and many more, it is import to understand the process leading to the institution of this court, its composition, and jurisdiction. Following UN Resolution 1315, the UN Secretary-General (2000) made his report to the UN on the progress of negotiation with the Sierra Leonean government to establish the Special Court for Sierra Leone. Subsequently, the United Nations and the Government of Sierra Leone (2002) signed an agreement that instituted the Special Court for Sierra Leone. According to Article one of the agreement signed between the UN and the Government of Sierra Leone, the court was established to prosecute persons who bear "the greatest responsibility" for serious violations of international humanitarian and national law during the country's decade-long civil war. The former President of Liberia, Charles Taylor, became one of the first group of people to be indicted by this court. As of the date it was announced that Taylor has been indicted by the Special Court for Sierra Leone, Liberians have been pre-occupied with the question as to what to be done about him. Moreover, the timing and appropriateness of this action has also been our concern. Astonishing enough was the attempt made to have Taylor arrested while attending a peace conference on Liberia in Ghana to end the blood bath that everyone was witnessing in our country. This made more people to believe that the international community and those responsible for that action careless about peace in Liberia. Every reasonable person will conclude that, had Taylor been arrested on that day, Liberia would have had more blood bath and less chance for peace. My interactions with many Liberians and other nationals have made me to understand that they have little knowledge about the Special Court for Sierra Leone. To do away with this ambiguity and formulate appropriate relation with the Special Court for Sierra Leone, it is important to examine what distinguishes this court from other UN established war crime tribunals (compositions and jurisdictions). To do this, two courts attract our attention. They are the International Criminal Tribunals in the former Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR). According to Article Two of the “Agreement for and Statute of the Special Court for Sierra Leone” ( 2002 ), the court is composed of two Trial Chambers with three judges for each chamber, two of which are appointed by the UN Secretary-General and one by the Government of Sierra Leone . The court also has an Appeals Chamber that consists of five judges, three appointed by the Secretary-General and the rest appointed by the Government of Sierra Leone. All judges appointed by the Secretary-General are International Judges while those appointed by the Sierra Leonean counterpart are Local Judges from Sierra Leone. The Secretary-General appoints the Prosecutor while the Government of Sierra Leone appoints a Deputy Prosecutor from Sierra Leone (Article 3). The Secretary-General also appoints the Registrar of the court (Article 4). The Special Court for Sierra Leone has authority over action committed in Sierra Leone and can issue binding orders for the Government of Sierra Leone, but lacks primacy over third states. The Special Court for Sierra Leone jurisdiction extends to domestic (Sierra Leonean Laws) and international humanitarian laws, while the ICTY and the ICTR jurisdictions constitute only action relating to international humanitarian law and genocide. In contrast to the Special Court for Sierra Leone, Chapter VII Resolution of the UN Security Council constituted the ICTY and the ICTR. The judges of the ICTY and ICTR are International Judges elected by the UN General Assembly and a Prosecutor selected by the UN Security Council. By virtue of the fact that these two courts (ICTY and ICTR) have Chapter VII mandate, gives the UN jurisdiction over their activities. These courts operate independent of the Yugoslav and Rwandan governments, whereas; the court in Sierra Leone is semi international. Because a treaty between the UN and the Government of Sierra Leone created the court in Sierra Leone, the UN and the host nation jointly control its activities. It does not have the primacy to compel third states to comply with it decisions but the ICTY and the ICTR have such authority. Legally, can Liberia suffer any consequence for not complying with the Special Court for Sierra Leone? The answer is no. The Government of Liberia has no legal obligation to subject it citizens to the jurisdiction of the Special Court for Sierra Leone nor is it compelled to comply with the mandate of that court. Furthermore, it will be counter productive for the Government of Liberia to support such a process, like the one in question in Sierra Leone, that has no accommodation within her legal system. The ongoing persistent violations of the Constitution of the Republic of Liberia by the Special Court for Sierra Leone and those seeking the enforcement of the pending indictment against Taylor by Liberia explain two things: First, that Liberia is in a very chaotic state of affairs, so people are taking advantage of that reality to manipulate the system with the help of people whose past and present activities will be reviewed when the appropriate time comes. The Ministry of Justice does not work for the Special Court for Sierra Leone. Those at that ministry are paid from the taxes of Liberians to protect them and to ensure that the laws of that country are respected and enforced. They understand very well that, based on the prevailing 1986 Constitution of the Republic of Liberia, an immunity clause does exist. It reads as follows: the president of Liberia is “immune from any suits, actions or proceedings, judicial or otherwise, and from arrest, detention or other actions on account of any act committed by him while president of Liberia” (Article 61 ). Paragraph two of Article Two of the same Constitution further states: “Any laws, treaties, statues, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect.” According to the constitutional provisions cited above, the search warrant being enforced in Liberia against Taylor is illegal. The illegality of this search warrant is that, it derived it authority from an indictment which under the constitution of Liberia is illegal. The explanation is that, the indictment in question was issued while Mr. Taylor was still President of Liberia. If the Special Court for Sierra Leone feels that evidence in Liberia will be essential for the prosecution of Taylor, the best thing to do is to dismiss the original indictment against him, have him re-indicted so that, if the Government of Liberia selects to corporate with the Special Court for Sierra Leone, the laws of that sovereign nation will not be violated. To support this argument, one draws from the same Article 61 of the 1986 Constitution Mr. Taylor is relying on. This Article further states: “The president shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while president”. This means that, when the President leaves office, he/she can be indicted for crime committed while president. Therefore, it will be illegal under our legal system for any nation to indict a sitting President of Liberia and expect us to comply. No one is comfortable with the impression that actions being taken by the Special Court for Sierra Leone against Taylor are for political expediency, or it is taken because he is a vulnerable target. The issue of Taylor and the Special Court for Sierra Leone has more to do with our dignity as nation and an inimitable legal precedent we will confront for the rest of our life. Second, presently, Liberia does not have a constituted government; Those people who are taking care of Liberia are just not the right people to decide on such serious issue like the one under discussion. They lack the mandate for that from the Accra Accords . This is a caretaker government that has a minimum mandate. Most of these people are perfect candidate for our future tribunal (if there will ever be one). They may think that by collaborating with the Special Court for Sierra Leone, in violation of the laws of Liberia, they are doing the court a favor so in return the atrocities committed by them against the Liberian people will be ignored by the international community. It is very sad that our dislike for one man can cause us to destroy the future of a whole nation. The problems this nation is going through today are a direct result of so many years of total disregard for the rule of law. Since the former Taylor regime was seated and until now, the international community continues to spend money on good governance, yet, the same community is deliberately encouraging us to violate the rule of law that they want us to observe. No one in his or her rightful mind will defend Taylor for what he did against the people of Liberia, but if Taylor can not have equal protection under our legal system, how do we expect to get one tomorrow? Do not take it lightly when the Nigerian government said that, if Liberians request for Taylor to be turned over to the Special Court for Sierra Leone, that government will turn him in through the Government of Liberian. By that, that government is simply trying to protect our legal system that we ourselves careless. For so many years we have respected others to the detrimental of ourselves. It is about time we learn to demand similar respect for the good of our nation.
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