TRC Response to Hinga Norman’s objections

IN THE SPECIAL COURT FOR SIERRA LEONE

Before:
Date: 24 October 2003

Case No. SCSL 2003 – 09 – 1

In the matter of:

CHIEF SAMUEL HINGA NORMAN JP
Re Application by the Truth and Reconciliation Commission for Sierra Leone

RESPONSE BY THE TRUTH AND RECONCILIATION COMMISSION FOR
SIERRA LEONE (“TRC” OR “THE COMMISSION”) TO THE OBJECTIONS
FROM THE PROSECUTION TO THE TRC’S REQUEST TO HOLD A PUBLIC
HEARING WITH CHIEF SAMUEL HINGA NORMAN JP

Presented by:

Mr. Howard Varney
Mr. Ozonnia Ojielo

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1. INTRODUCTION

1.1. The TRC received a copy of the objections from the Prosecution and notification
of the need for submissions before the Presiding Judge late on 22 October 2003.
In the normal course of events the Commission would have sought a
postponement but we have opted to proceed with our submissions today in order
to reach finality on this matter as soon as possible. The TRC is approaching the
end of its lifespan in December 2003 and time is accordingly of the essence. In
this regard we refer you respectfully to paragraph 12 of our written request to the
Registrar (Request SHN 001 of 07 October 2003) in which we set out grounds to
have this matter treated with special urgency.

1.2. The TRC and the detainee’s legal team have adopted a unified position as to the
present proceedings in order to facilitate the holding of a public hearing for Chief
Hinga Norman without prejudicing his rights or the integrity of the proceedings
of the Special Court. Accordingly the representations contained herein are
reflective of our joint position with the detainee’s legal representatives.

1.3. The Prosecution, in its memorandum of 21 October 2003 from the Deputy
Prosecutor on behalf of the Prosecutor, has outlined its objections to a public
hearing with Chief Hinga Norman under three headings, namely:

1.3.1. The interests of justice;

1.3.2. The integrity of the proceedings; and

1.3.3. Other concern.

1.4. The Commission will begin by dealing with each of the Prosecution’s objections
in turn. We will then outline our views on the alternative measures suggested by
the Prosecution. Finally we will present some emergent norms in national and
international law which appear to support the TRC’s request to hold a public
hearing. 3

2. THE INTERESTS OF JUSTICE

2.1. The concerns raised by the Prosecution under this heading can be summarised in
three parts:

2.1.1. The impending hearings before the TRC could be considered sub judice.

2.1.2. The impending hearings could be contrary to public policy and/ or would
defeat the interests of justice to allow an accused to litigate or plead his
case in the public when he will be entitled to a fair and public trial in due
course.

2.1.3. The institution of justice as guaranteed by the Statute of the Special Court
could be weakened by such a public hearing before the TRC by a
defendant exploiting the occasion.

We will deal with each of these parts in turn.

2.2. The impending hearings before the TRC could be considered sub judice

2.2.1. The sub judice rule (“the rule”) is designed to prevent publication of
matters that would directly affect the outcome of a pending trial. The rule
cannot however be invoked to prohibit publication of discussion or debate
about the case. In order to be considered sub judice, publication must
create a real and substantial risk of prejudice to the administration of
justice and it must be made with the specific intent of prejudicing a fair
trial. The Prosecution implies that the mere holding of a TRC hearing in
advance of a trial would in itself violate the rule; such an insinuation has
no basis in law.
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2.2.2. Moreover the Prosecution has not supplied a single factual ground to
support a contention that there is any danger of the rule being violated.

2.2.3. In the circumstances, mention of the sub judice rule amounts to little more
than conjecture. There is accordingly no case for Your Lordship to
consider in respect of the sub judice argument.

2.2.4. Notwithstanding the bald assertion by the Prosecution we note that
proceedings before the Special Court are conducted by professional
judges, whose insusceptibility to extraneous influences and considerations
is well recognised in law. Unlike under the jury system in some common
law jurisdictions, professional judges are deemed able to exclude from
their minds information they may not rely upon for purposes of
determining guilt or innocence. By the same token paragraph 4(d) of the
Practice Direction specifically prevents the Special Court from being
influenced by any conclusion or comment made by the TRC arising from a
hearing with a detainee.

2.2.5. The sub judice assertion is in any event moot as the TRC has already
agreed with the defence team not to canvass Chief Hinga Norman on the
specific elements of the charges against him.

2.3. It is not in the interests of justice and/ or it would be against public policy for an
accused to plead or litigate his case in public when he will be entitled to a fair
and public trial

2.3.1. This contention is largely academic in the light of the agreement between
Defence Counsel and the TRC referred to above in paragraph 2.2.5.
Nonetheless we wish to address certain issues of principle.
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2.3.2. The Prosecution seems to make the assumption that simply because the
Accused will appear before the TRC the interests of justice will be
jeopardised. This assumption is purely speculative, since nothing has been
provided by the Prosecution to support it. There is accordingly no case for
Your Lordship to consider in respect of this “interests of justice” claim.

2.3.3. Furthermore, in our respectful view, the Court is obliged when assessing
the “interests of justice” to take into account a range of factors across a
broad spectrum of interests. The Special Court for Sierra Leone does not
operate in a vacuum, but rather as one integral part of the post-conflict
landscape in this country and as the standard bearer for wider principles of
justice on a national and international level. Our justifications for this
position are explained later under the section entitled ‘Emergent Norms in
National and International Law…” at section 6.

2.3.4. With regard to public policy, the Commission submits that the courts
ought to be guardians not only of the right to a fair trial, but also of other
human rights, including freedom of expression. All these rights must be
given the most serious consideration. In the current context of Sierra
Leone there is an additional factor to consider, namely the right of Chief
Hinga Norman, a prominent Sierra Leonean, to speak in a public forum
before the TRC to present his version of and perspectives on a critical
period of the country’s history.

2.3.5. The Prosecution makes no reference to the right of the Accused to
freedom of expression. Apart from a declaration that the Prosecution
supports efforts by the TRC to fulfil its mandate, it makes no reference to
the additional right of the Accused to testify publicly before the TRC. It is
submitted that any objection to the TRC’s request would have to balance
the effects of banning Chief Hinga Norman from speaking against the
damaging effects to his freedom of expression and his right to appear 6
publicly before the TRC. No such proportional assessment has been
undertaken by the Prosecution.

2.3.6. The Commission submits that it would be a grave and irreparable injustice
to deny Chief Hinga Norman of his right to testify publicly before the
TRC. There will be only one Truth and Reconciliation Commission in
Sierra Leone and the window of opportunity for Chief Hinga Norman to
testify is slowly closing. It is likely that a central role-player in the
conflict such as Chief Hinga Norman will feature in the TRC Report.
Fairness demands that he be given an opportunity to provide his version of
the conflict, and to do so publicly.

2.3.7. Numerous other key role players in the conflict, including at least one
prisoner currently awaiting trial before the criminal courts,1
have been
afforded their rights of testifying publicly before the TRC. No individual
or body has ever before presented an obstruction to the Commission in
facilitating the appearance of any person before a public hearing of the
TRC. Since there are examples of individuals in ‘comparable situations’
to that of Chief Hinga Norman who have been granted the opportunity of a
public hearing, the denial of an equal opportunity to Chief Hinga Norman
in the absence of clear, substantial and reasonable grounds would
constitute discrimination against the detainee in question.

2.3.8. The harmful effects of a ban on Chief Hinga Norman from exercising his
statutory and human rights thus far outweigh the speculative concerns
raised by the Prosecution.

1
Reference to TRC Public Hearing with Colonel (RUF) Vandy Kosia, YWCA New Hall, Freetown, 24
May 2003 7
2.4. The institution of justice as guaranteed by the Statute of the Special Court could
be weakened by such a public hearing before the TRC by a defendant exploiting
the occasion

2.4.1. This constitutes an imprecise and vague claim by the Prosecution. No
attempt is made to explain how the “institution of justice as guaranteed by
the Statute of the Special Court” could be “weakened” by a public hearing
before the TRC.

2.4.2. The TRC has already conducted a very high-profile public hearing with an
Accused before the criminal courts of Sierra Leone [reference to TRC
Public Hearing with Colonel (RUF) Vandy Kosia, YWCA New Hall,
Freetown, 24 May 2003]. No claim has been made by any party that his
appearance weakened the institution of justice.

2.4.3. We note that the Prosecution does not even allege that Chief Hinga
Norman himself would exploit the situation, but rather asserts in the
abstract that “a defendant” may exploit the situation. The suggestion
therein is that it is too dangerous for any defendant publicly to appear
before the TRC. If this is the stated position of the Prosecution then it
really ought to have objected on principle at the time of the issuance of the
Registrar’s first Practice Direction.

2.4.4. Your Lordship cannot be expected to entertain bald claims of this type.

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3. THE INTEGRITY OF THE PROCEEDINGS

3.1. This objection can be summarised as follows:

3.1.1. The mere act of Chief Hinga Norman testifying before the TRC could stir
up public feelings and frighten victims and potential witnesses from the
proceedings.

3.1.1.1. The public nature of the hearing would enable Chief Hinga
Norman to intimidate victims and potential witnesses, probably
through subtle means, which would irreparably damage the
integrity of the proceedings.

3.1.2. Such a forum would provide Chief Hinga Norman with the opportunity to
incite violence or threaten the security of the Special Court.

3.1.3. As some of the evidence to be used in the prosecution has been formally
disclosed, any intimidation may have a direct impact on victims and
witnesses.

3.1.3.1. The Presiding Judge has ordered protective measures against Chief
Hinga Norman to ensure that victims and witnesses are sufficiently
protected.

3.2. These concerns will be dealt with collectively as they are so closely related to
one another.

3.3. Recent reports and comments expressed in the local media indicate that
preventing Chief Hinga Norman from speaking to the TRC in an open and
transparent manner may in itself stir up public feelings and pose a threat to the
security of the Special Court. On the one hand, such a move would be likely to 9
be construed by his supporters as an attempt to “silence” him; on the other hand,
Chief Hinga Norman’s alleged victims and accusers, particularly those whose
cases will not be addressed in proceedings before the Special Court, will perceive
a lack of public accountability, a sense of injustice and embitterment. A neutral
but vocal public constituency also appears to be growing in Freetown and
motivating for Chief Hinga Norman’s appearance in a public hearing before the
TRC.

3.4. On the protection of witnesses, it is the duty of the Prosecutor to protect
witnesses against risk, perceived or actual, in the course of criminal proceedings.
The fundamental premise of witness protection lies in ensuring that the location
of protected persons is kept secret. It pertains to the security of information that
ought to remain within the exclusive knowledge of the protection staff.
Endeavouring to keep secret the actual identities of witnesses is advisable but not
always possible, especially in close-knit communities. Even newspapers in this
country have speculated on the identities of Special Court witnesses in the
present case.

3.4.1. We understand that the Court has ordered certain protective measures
related to the case against Chief Hinga Norman, apparently to safeguard
the identity of witnesses. We are advised by legal counsel that the
Accused has not contravened the order against him even though he has
had reasonably unrestrained access to the outside world through
communications with visitors and, until recently, on his mobile phone.

3.4.2. We would submit in the circumstances that there is no basis for the
Prosecution to allege that Chief Hinga Norman has gained knowledge of
any of their protected witnesses. Equally there is no reason to suggest that
he would identify any protected witnesses as such in an open public
hearing.
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3.5. There are many factors that cause victims to fear participation in criminal
proceedings in a post-conflict society. We would submit that Chief Hinga
Norman’s public testimony is not prominent among those factors and cannot
warrant suppression on such grounds. It is not clear what the Prosecution means
when it suggests that a public hearing would enable Chief Hinga Norman to
intimidate victims “through more subtle means.” Without concrete clarification
of what the Prosecution has in mind this claim constitutes pure conjecture.

3.6. In any case we note that the Prosecution does not suggest that Chief Hinga
Norman is likely to intimidate victims or potential witnesses. In the absence of
any such allegation, based upon reasonable grounds, there is little for Your
Lordship to consider under this objection.

3.7. While the Prosecution raises the spectre of violence or threats to the security of
the Special Court, there is no allegation that Chief Hinga Norman is himself
likely to incite such violence or threats. Accordingly we ask Your Lordship to
reach the same conclusion as in the preceding paragraph with regard to this
speculative concern.

4. OTHER CONCERN

4.1. There is a degree of merit in the assertion by the Prosecution that the peace
which exists today in Sierra Leone rests upon a fragile equilibrium. However the
Prosecution’s assertion that a public hearing for Hinga Norman could put in peril
that equilibrium is without foundation.

4.2. The Commission takes the view that the most viable means of securing a
sustainable peace lies in the establishment of an impartial historical record of the
conflict in this country and of a public understanding that draws upon broad
based participation. There are potentially grave implications in preventing Chief
Hinga Norman from contributing to the process of truth telling in a transparent 11
manner that allows for public accountability. One such potential implication is
the prospect that a ban on his testimony in public will give rise to sentiments of
grievance and marginalisation, which might ultimately manifest themselves in
threats to the security situation in Sierra Leone.

4.3. The Prosecution is most imprecise in surmising that “one cannot exclude the
possibility that the public hearing of Mr. Norman might result in groups or
factions in some part of the country causing trouble.” The TRC has conducted
many public hearings with key faction leaders and the process has never
precipitated an adverse reaction from any group among the Sierra Leonean
population. In the absence of any concrete threat from a party to these TRC
proceedings, there is no determination for Your Lordship to make in the terms of
the Practice Direction.

5. ALTERNATIVE MEASURES SUGGESTED BY THE PROSECUTION

5.1. The Prosecution has suggested that if Chief Hinga Norman is permitted to speak
to the TRC then the press should be denied access. It has further envisioned that
public transmissions of the testimony should be delayed for the purposes of
censoring. In the alternative, a written transcript could be released and also
censored for public consumption.

5.2. The TRC would strenuously resist the imposition of any or all of these
conditions, in effect because they pose challenges to the essential spirit and
purpose of our operations.

5.3. First, with regard to the presence of the press, the Commission points out that
journalists provide the independent media through which we are able to record,
transmit and convey the content of a public hearing to a larger group among the
population of Sierra Leone. The press must be present in order to ensure that a 12
clear message of transparency in the administration of justice – both by the TRC
and, importantly, by the Special Court – is sent out to the public. In that regard,
justice, and the process of truth and reconciliation must not only be done in its
various forms; it must be seen to be done.

5.4. The integrity of the proceedings before the Special Court, in the short and long
term, demands that all processes to which the institution is party should be fair,
transparent and open. If the period before trials begin is shrouded in secrecy and
rumours about suppression of the rights of detainees then public perceptions of
the Special Court will suffer unnecessarily. In the context of this request to
conduct a public hearing for Chief Hinga Norman, any attempt to bar the
presence, or indeed to censor the output, of the press would merely act as a
catalyst for further discontent and opposition in the longer term.

5.5. The Commission wishes further to insist that radio and/ or television broadcasts
of Chief Hinga Norman’s testimony to the public hearing ought to be carried to
the people of Sierra Leone by live, direct, simultaneous transmission. The
Prosecution’s position that public transmission would have to be delayed until it
could be ‘reviewed’ in the light of the Court’s other concerns actually seems to
raise more questions than it answers. Who, for example, would be intended to
take responsibility for the reviewing process? What would be the criteria for
removing, or censoring, certain items of testimony? What would be the overall
standards and principles against which this review process would be conducted?
In our view the proposal is wholly unworkable and would be a recipe for conflict
between the public and the Special Court.

5.6. Direct broadcast is imperative to the TRC in its public hearings because of the
wider coverage and resonance that it lends to our proceedings. Since the type of
testimony delivered to the TRC at public hearings can quite often be powerful
and poignant, the hearings are defined by the meaning and impact they bear at
the moment when the words are spoken – they can become quite literally ‘history 13
in the making’. Thus there are important issues of ownership at play: Sierra
Leoneans in as wide a public audience as possible must be able to have access to
the hearing as and when it happens. Especially since the courtroom for use in
this hearing has been earmarked to accommodate only 30 persons, (which is
about one tenth of the capacity of our normal venue, we are relying upon a live
broadcast to promote the hearing into the ‘public’ domain.

6. EMERGENT NORMS IN NATIONAL AND INTERNATIONAL LAW THAT
SUPPORT THE TRC’S REQUEST TO HOLD A PUBLIC HEARING WITH
CHIEF SAMUEL HINGA NORMAN JP

6.1. The Commission has chosen to conclude its representations with reference to two
factors that we feel combine in this instance to create an overwhelming
presumption in favour of granting our request for a public hearing with Chief
Samuel Hinga Norman JP. These two factors are as follows:

6.1.1. The established practice of the Truth and Reconciliation Commission for
Sierra Leone has led to the recognition in national law of a de facto right
to testify before the TRC;

6.1.2. In the light of developments in post-conflict societies in the late 20th and
early 21st
centuries in dealing with past human rights violations, there
exists on the part of victims a right to know the truth. Truth
Commissions have been created in several countries around the world to
meet that recognised obligation. There is considerable weight to the
argument that establishing the “truth” is an essential component of the
universally recognised “right to an effective remedy.” The Special Court
is duly bound to consider such a right in respect of the Sierra Leone
population in its determination of the parameters of this request ‘in the
interests of justice’.
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6.2. Sierra Leone finds itself at a special moment in its history. Indeed Sierra Leone
has the potential to offer the world a unique framework in the difficult process of
moving from conflict to peace. We have two complementary institutions,
namely the Special Court and the TRC, that are central to this process. Indeed
the President and the Prosecutor of the Special Court are on record stating that
the two institutions will work together to uncover the truth and provide the most
comprehensive benefits to a post-conflict state. The outcome of this proceeding
will in large measure determine whether two such institutions can in fact be
complementary. The consequences for the people of Sierra Leone – and ind

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