My experiences at the Special Court

By Kevin Metzger

Saturday December 10, 2005

I have harboured a desire to write about my experiences at the special Court for over 5 months now.  Some may say that this desire is borne out of a selfish anger at the way in which I perceive I have been treated but I believe any such instincts have been tempered by time and quiet consideration.

 

Let me start by first explaining my reasons for taking on the Defence of Alex Tamba Brima, first accused in the AFRC case. The reader can rest assured that, as a Sierra Leonean with family still living in the country, I thought long and hard about being involved in the Special Court. The world needs no reminder of the 11 years or so of conflict that decimated the country and ended in loss of life, limbs and property for many, many Sierra Leoneans. The Conflict was a bitter one in which the civilian population, on the whole, were brutally targeted and made to live in utmost fear of all they held dear.

Initially when the possibility of becoming part of the justice process embodied by the SCSL came up I pondered long and hard. I felt that as an advocate of relatively long standing, with significant experience in Criminal Defence work, I could use my experience in participating in a process that could be seen to be patently fair.  Nevertheless, despite becoming participating in a training program for advocates and being involved in the planning stages of a seminar on tribunal procedure in 2002 I did not make any positive effort to become involved as an advocate. When therefore, I was contacted in July 2004 after the death of Mr. Brima’s then Lead Counsel, Mr. Terence Terry (RIP), I now felt that I should play a part in the SCSL process. I travelled toSierra Leone to meet Mr. Brima in order for us both to consider whether we would be able to work together. Subsequent to the meeting I agreed to take on the role of Lead Counsel in the Brima case and commenced working on the Accused’s Defence case shortly thereafter.  My first objective was to build a team that would use its best endeavours to act in accordance in the law while putting Mr. Brima’s case forward in its most tenable light. In any event, we have to remember that he, and the others charged with him, were being accused of being among those who bore the greatest responsibility for the atrocities that had been committed in Sierra Leone as per the Indictment against the AFRC.

 

I chose a team that consisted entirely of West Africans, two counsel, myself included, were Sierra Leonean and one was Ghanaian, with the Legal Assistant being also Sierra Leonean.

 

Let me pause for a minute here and speak about the supposed financial benefits of taking on this case.  When I was finally instructed by the Principal Defender, it became clear that there was a budget with a pre-determined figure for the Defence of Mr. Brima. As it were this budget was set in stone and would not change until certain criteria had been met and not until a certain amount of trial time had elapsed. The reader will forgive me if I do not state the amounts herein. This is not for any secretive purposes on my part, but because I would not want to embarrass others. In short, the Defence team I had constituted would only be able to bill for what was left of the budget at the time of my agreeing to come on board as Lead Counsel; what had already been paid out to the previous team was deducted from the aforementioned budget. 

 

All who know the inner workings of the financial aspect of the Defence teams at the SCSL will know that I acted scrupulously in order to obtain fair remuneration for my team within the remaining part of the budget. In terms, it would have meant that some of the work we would be doing was not likely to be paid for as there was a small forest of documentation that had been served by the prosecution which needed to be perused in preparation for a lengthy trial. Indeed, in my team we had worked out that we had insufficient time to peruse all the material and prepare cross referencing material in its entirety prior to the commencement of the trial. We therefore resolved to divide up tasks and section material in what we considered to be the best manner to prepare for the start of the trial and then to schedule further preparation as we went on. At this stage, those involved with the AFRC trial were under the impression that it was likely that the second Trial Chamber would sit in the same way as the first, i.e. for a maximum of six weeks followed by a six week, or month break on an alternating basis. Again, This was not the format eventually adopted by Trial Chamber 2. The first confirmation we got that there would be a continuous session was in January 2005 after the initial scheduling order made by this Trial Chamber. Nevertheless our team adjusted its strategy in the face of the changing terrain and prepared for trial.

 

May I pause here briefly, to try to state my position in relation to financial considerations.  I had agreed to do this case on the understanding that I could build a team that would provide good representation for Mr. Brima even when I was unable to be inFreetown.  Although I had made plans to be in Sierra Leoneattending to my duties as Lead Counsel for the maximum amount of time, I still had some professional commitments in theUK, pared to the minimum, which I had to conclude.  I had planned to conclude my outstanding work without taking on any new work, but this would nevertheless have meant that I would not be present at all times at the SCSL in the first 3 months of what was now to be a continuous session. In any event, the budgetary considerations were such that were I to be present at all sessions, and paid at the accepted rate for Lead Counsel, there would have been insufficient funds within the budget to remunerate me for the work I had done and keep on the other Counsel in the team.  As far as I was concerned this could be equitably dealt with by short absences on my part, enabling me keep a hand in my practice in the UK, supplementing my income thereby, and reducing my percentage of the budget to an extent that would allow my other team members to receive reasonable remuneration for the work they were doing.

 

The trial commenced, after a status hearing at the end of February, in March 2005. I do not propose to recount what happened in any detail, I am content for those who attended sessions and history to be the judges of whether the Defence Team for Mr. Brima proved its calibre or otherwise.  The real crux of this article is about my withdrawing from my role as Lead Counsel for Mr. Brima and what happened thereafter. It will now be common knowledge that my role at the SCSL as well as that of Mr. Wilbert Harris (Lead Counsel for Brima ?Bazzy’ Kamara) came to an end in May 2005 although not all will know why this was the case.  I believe it is a matter of public record that we, Harris and I, made first oral, then written submissions to withdraw from the case which were at first orally granted on 12^th May 2005and then confirmed by a written majority decision of the Trial Chamber on 20^th May 2005[1]. Justice Sebutinde dissented from the majority decision and gave a detailed reasoned opinion for so doing on 11^th July 2005[2]. 

 

The subject matter of our submissions may well still be confidential, although the Decision of the Trial Chamber was given in open court and its rulings thereon are public documents. In the circumstances of our application to withdraw I will simply say that, at the time of making it, both Harris and myself felt that we were under a professional obligation to make the application[3].  Circumstances changed somewhat a little later and when asked by the Defence office whether we would return, if asked, both Harris and I agreed that we would.  Let me explain this as best I can without divulging any confidential information or breaching any privilege.  We both felt that we had taken on the case and that we were professionally bound to continue with it provided we were professionally able to do so.  The circumstances which had caused us to make the application to withdraw were now mitigated by other subsequent events and some assistance by the SCSL could have dealt with other concerns that had been raised.  At this time, it became clear, and this is a matter of public record, that there was some “positive involvement” by the Registry of the SCSL to prevent our returning to our previous roles in the AFRC case.  There were aspersions cast against us in a forum that we not longer were involved in and therefore were ill placed to answer.  It is of course here, that my burning desire to utilise one of the principles of natural justice, “audi alteram partem“, was born. 

 

I shall deal only briefly with some of the matters raised here. Firstly, the Trial Chamber was sent a note by the Registrar, a matter I believe is now in the public domain due to the dissenting opinion of Justice Sebutinde, that suggested that the “conduct and demeanour” of Counsel (Harris and Metzger) was somehow questionable and urged the trial chamber to opine that we ought not to return. When it became clear that there was a problem, the Defence teams served a motion to re-instate Counsel (Harris and Metzger) and asked the Trial Chamber to recuse itself from deliberating on this motion due to the apparent communication from the Registry. The rulings sought by the Defence were refused on both grounds, although, in due course the Trial Chamber did accede to a Defence application for leave to appeal to the Appeals Chamber.  That appeal is still pending and I shall therefore not comment any further on those matters.

 

Secondly,  it should be noted, and again this is a matter that is in the public domain[4], that the Registrar then unilaterally, and before the application to re-instate Counsel was considered, decided to remove Counsel (Harris and Metzger) from the list of approved Counsel for the Defence. I comment on this action in very brief terms; there was no reason given as far as I am aware and certainly that removal was, in my humble opinion, without any justification or any opportunity given to Counsel concerned to deal with any allegations that were made against them.

 

Thirdly, I wish to say for the record that I have received information from very reliable sources that the then Registrar, Mr Robin Vincent, in a meeting with the Attorney General which, to the best of my knowledge, had nothing to do with either myself or Mr. Harris, stated that I had shown disrespect for the court by attending in sandals and had taken cans of Coca-Cola into the courtroom during trial sessions.  I wish to publicly refute these allegations here and now.

 

Finally it may interest the public to know that when I visited Sierra Leone in June 2005, for family reasons, I sought to return to the SCSL premises and retrieve the personal possessions I had left in the office of the Defence team for Mr. Brima. I was challenged by security upon my attendance, where I had sought to enter as a visitor, having obtained clearance from the Defence Office. I had to wait by the gate until an armed senior security supervisor came to meet me and then I was escorted into the area where visitors normally wait to be processed. From there I was asked to attend the Chief of Security’s office where my bona fides was questioned and enquiries were made of the Defence Office before I was allowed to enter the premises on a visitor’s pass, having left a photo identification document (My driver’s licence) at the security office. I simply recount this incident to give the public a taste of the manner in which I was treated and to assist in the formulation of a fuller picture of my experience.

 

I wish to condemn publicly the unfair manner in which I perceive that Mr. Harris and I have been treated in this affair and the interference of the Registry in a manner that, I would submit, far exceeds any authority it purports to have. May I also respectfully submit, subject to the opinion of the general public, that such actions may well have the benefit of denigrating the great deal of effort put in by a large number of people to try and make the SCSL a model for International Justice in general and fairness in this type of  legal proceedings particularly.

 

It is my fervent view that the proceedings at the SCSL be viewed contemporaneously and by posterity as a good attempt to investigate the causes of the conflict in Sierra Leone and those who bore the greatest responsibility for the atrocities committed within the timeframe of its remit in a fair and legitimate manner, rather than as an attempt to justify its creation by producing “satisfactory” convictions.  I sincerely hope and pray for the sake of Sierra Leone and her people that those who have the possibility of making the legitimacy and fairness transparent for all are steadfast in their integrity despite any attempt by whomsoever or whatsoever it may be to compromise the same.

 

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