O
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THE TRIAL CHAMBER

DISSENTING OPINION OF JUDGE BANKOLE THOMPSON, PRESIDING JUDGE OF THE TRIAL CHAMBER ON PROSECUTION’S MOTION FOR LEAVE TO AMEND INDICTMENT AGAINST ACCUSED ISSA HASSAN SESAY, MORRIS KALLON AND AUGUSTINE GBAO

DISSENTING OPINION OF JUDGE BANKOLE THOMPSON:

INTRODUCTION

1. My learned brothers, his Honour Judge Benjamin Mutanga Itoe, and his Honour Judge Pierre Boutet have, by a majority, decided to grant leave to the Prosecution to amend the Consolidated Indictment against the Accused Issa Hassan Sesay, Morris Kallon, and Augustine Gbao. Unquestionably, this Decision was reached after very careful and constructive deliberations on their part. Despite their learned and erudite analyses of the issues germane to such an application, I respectfully disagree with their Decision, from four key perspectives, to wit, the philosophical, jurisprudential, pragmatic and interests of justice, to the extent to which they form part of the doctrinal foundations of judicial reasoning as the major tool available to judges in the judicial process. Hence, this Dissenting Opinion.
2. Let me begin by observing that this Motion confronts the Special Court with the delicate task faced by all International Criminal Tribunals of balancing “the prosecutor’s obligations to prosecute the most serious international crimes which might require accommodating changes in prosecutorial strategy as well as amendments to indictments as a result of discovering new evidence, while guaranteeing the fairness of the trial proceedings and upholding the rights of the accused”.[1] Predicated upon this premise as to the nature of the Court’s task as presented by this Motion, it cannot be denied that in determining whether to grant an amendment of an indictment that has been approved, the right of the accused person to a fair and expeditious trial, and the overall interests of justice become issues of paramount consideration in the equation.
3. With this key observation, let me respectfully indicate that the majority Decision fails to pay due regard or attach primacy to the right of the Accused persons herein to a fair and expeditious trial, for reasons I will articulate in the following paragraphs of this Opinion. But before doing so, let me say that I agree with and adopt in extenso, the characterisation of the parties’ written and oral submissions in respect of this Motion as recorded and reflected in the majority Decision of my learned brothers Judge Boutet and Judge Itoe.

PHILOSOPHICAL AND JURISPRUDENTIAL PERSPECTIVES

4. I have just asserted that my disagreement with the majority Decision is from four perspectives: philosophical, jurisprudential, pragmatic and the interests of justice. Let me now address the philosophical and jurisprudential together and say straightaway that from this dual perspective, it seems to me that the major issue to be addressed, preliminarily, is that of the relevant body of jurisprudence to be applied to applications of this nature. Where it is determined that such applicable body of jurisprudence is an issue free from doubt, then there can be no judicial disputation as to its applicability to the matter in hand. However, where the issue of the relevant body of jurisprudence is one fraught with controversy, then nothing must be judicially taken for granted.
5. The issue must then become one of very careful judicial inquiry as to what sources of law should provide guidance. It cannot be asserted with any degree of accuracy that there is, as at yet at the level of international criminal adjudication, a settled and authoritative corpus of jurisprudence applicable in granting amendments to indictments. To seek to apply whatever disparate, incoherent and inconclusive general principles that exist in the form of an evolving body of jurisprudence without constructive adaptation is a logical mistake that may well make us as Judges, victims of the fallacy of slippery precedents.
6. It does not take much legal research effort to discover that there are only a few general, principles of law deducible, at this point in time, from the existing evolving international criminal jurisprudence on the subject of amendment of indictments. Understandably, case-law authorities are sparse. For the purpose of this Opinion, a few key samples of such propositions will suffice. These include:
   • (i) The question as to whether an amendment of an indictment shall be granted is within the discretion of the tribunals;
   • (ii) “no doubt, size can be taken into account in considering whether any injustice would be caused to the accused: but provided other relevant requirements are met, a court would be slow to deny the prosecution a right to amend on that ground only”[2];
   • (iii) “In general, an amendment to a confirmed existing indictment is sought for the following reasons: to add new charges to a confirmed Indictment, to expand and elaborate upon factual allegations adduced in support of existing confirmed counts or to make minor changes to the indictment”[3];
   • (iv) “The fundamental issue in relation to granting leave to amend an indictment is whether the amendment will prejudice the Accused unfairly.”[4]
7. Suffice it further to say that all we have, at this stage, as working jurisprudential tools to determine the merits or otherwise of applications for amendment of indictments in the international criminal law sphere are the respective Rules of ICTY, ICTR, and this Court. Under the ICTY and ICTR systems, the relevant guide is Rule 50(C); under our system, it is Rule 50(A). In their present state, these rules are still untested, and undoubtedly since the ink is hardly dry on them, they have not yet been the subject of a consistent, coherent, and settled body of principles. However, the Court must still proceed to a determination of the merits of applications of this nature. One plausible approach is for this Court, through the technique of judicial development of the law, to interpret Rule 50(A) in the light of the autochthonous and unique juridical features and other related factors of this tribunal in the peculiar context of its own specific needs, mandates and realities as an adjudicating body of alleged offences of not only grave international import but also of crimes of equally grave dimensions under certain laws of Sierra Leone. Such an approach seems justified by the consideration that in an era of international criminal adversarial litigation dominated by a tremendous accretion of prosecutorial discretion, judicial guarantees and safeguards of the rights of the accused must be given paramountcy by judges sworn to administer justice faithfully, conscientiously and impartially.
8. Predicated on this analysis, it seems to me that there is no judicial warrant for any evolving international jurisprudence on the subject of the amendment of indictments to be strictly patterned after general principles imported from the national law systems (where such principles as adumbrated by the courts lean heavily in favorem procuratorem), without very careful and constructive adaptation to the different prevailing legal culture in the international criminal law domain. I emphasize this point because to my mind the almost unregulated flexible approach to the question of amendment of the indictments implicit in the evolving international jurisprudence is more akin to, for example, the English and Sierra Leone national law approach to the issue. In those two jurisdictions, the general principle is as follows:

“Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice”.[5]

9. What kind of constructive adaptation is, therefore, necessary in respect of imported general principles from national law systems on the subject of amendment of indictments? Such a process should begin with the recognition, by way of methodology, of the variance in socio-legal norms and realities prevailing in the two legal domains. It may be predicated upon the doctrine that where an indictment alleging the commission of grave crimes against international law has been approved, there should be a presumption against amendment unless the circumstances of the case so dictate. In a less complex sense, it may be contended that such methodology is dictated, as this Chamber noted in a different context, by “logical necessity, common sense and due regard to the practical realities”.[6] In essence, the Special Court must design its own special principles to reflect its own special juridical character. This is the rationale behind its founding instruments. This reasoning therefore, becomes a useful starting-point, for the purposes of this Opinion, for a discussion of the factors based on judicial pragmatism compelling my divergence from the judicial pathway taken by my learned brothers Judges Itoe and Boutet.

PRAGMATIC PERSPECTIVES

10. To my mind, the question whether to grant an amendment to an indictment or not within the peculiar context of the seemingly overarching restricted mandate of the Special Court for Sierra Leone, as an international criminal tribunal and the general principles relating thereto cannot, objectively, be considered in isolation from certain pragmatic influences, (which I prefer to characterise as secondary factors) ideally not in consonance with judicial orthodoxy, dictated by the peculiarities and specifications of the Court, namely: its history, its uniqueness, its statutory mandate, its heavily constricted judicial life-span, the regime of budgetary and fiscal constraints to which it is subjected, its completion strategy, its recognition of the pressures for institutional accountability on its part vis-à-vis the international community and the population of Sierra Leone, and its functional legitimacy and credibility. These are imponderable variables that cannot be completely ignored, or discounted in working out the final judicial equation of whether to grant the amendments sought. Cumulatively, they seem to militate against any further delay in starting the trials.

INTERESTS OF JUSTICE PERSPECTIVES

11. I also dissent from my learned colleagues’ Decision for these additional reasons. First, that of the protracted interval of eight (8) months between the Prosecutor’s discovery of the evidence alleged to be in support of the proposed new count 8 of Other Inhumane Acts (forced marriage) and the filing of the Motion for amendment. On this issue, it is worth noting, by way of persuasive value, the observation of the English Court of Appeal in R. v. Johal and Ram[7], to the effect that:

“The longer the interval between arraignment and amendment, the more likely it is that injustice will be caused and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.”

12. This evidence was available to the Prosecution in June 2003; it did not apply to have the new charge incorporated in the Indictment until February 2004. In my view, this shows the following:
    • (i) lack of due professional diligence on the part of the Prosecution despite attempts to explain this away by claims of time-consumption in evaluating the evidence;
    • (ii) a lapse in professional sensitivity to the rights of the Accused;
    • (iii) that granting the amendment is very likely to occasion undue delay in giving effect to the right of the Accused persons, which concept is always a key function of the efficaciousness or otherwise of the right of the Accused to a fair and expeditious trial statutorily guaranteed under Article 17(2)(c) of the Court’s Statute;

(iv) granting the amendment sought, in the face of the eight (8) months intervening period of time between the discovery or availability of the evidence and the filing of the application for amendment of the indictment, amounts to a clear infringement of Article 17(4)(a) of the Court’s Statute which enshrines the right of an accused to be informed promptly and in detail of the charges against him.

13. It is also of significance that apart from the prejudicial effect of granting the amendments sought on the right of the Accused to a fair and expeditious trial as articulated in paragraph 12 above, there is a great likelihood of some adverse effects on, for example, victims and witnesses for both prosecution and defence. One such effect is the agony and trauma of having to wait much longer to testify and to see this allegedly unhappy episode in their lives given a closure.
14. For the foregoing several considerations and reasons, I am convinced that if there were a deserving contemporary instance to which I would unhesitatingly apply the maxim – Justice Delayed is Justice Denied – this would be it. Hence, my respectful dissent from the majority position.
15. Of course, I have no judicial reservations about amendments of an editorial nature. My dissent relates only to amendments of substance. I therefore deny and dismiss the Motion to the extent that it seeks the incorporation of a new count in the Consolidated Indictment ordered pursuant to the Joinder Decision of this Chamber.

[1] See Archbold International Criminal Courts Practice, Procedure and Evidence, London: Sweet and Maxwell, 2003 para 6 – 66
[2] Prosecutor v. Kovacevic, Case No: IT-97-24-AR73, ICTY Decision Stating Reasons for Appeals Chamber Order of May 29, 1998, July 2 1998, paras. 20-37; also noted in Archbold, supra note 1.
[3] Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, ICTR Decision on Prosecutor’s Request for Leave to file an Amended Indictment, June 21, 2000, para. 33.
[4] Prosecutor v. Mile Mrksic, Miroslav Radic, Veselin Sljivancanin, Case No. IT-95-13/1-PT, ICTY Decision On Form of Consolidated Amended Indictment And On Prosecution Application to Amend, 23 January, 2004, para. 61.
[5] See Archbold. Criminal Pleading, Evidence and Practice, London: Sweet & Maxwell, 2003 para 1-149. See also the Sierra Leone Criminal Procedure Act No. 32 of 1965, Section 148(1).
[6] The Prosecution v. Issa Hassan Sesay (Case No. SCSL-2003-05-PT), Decision and Order on Defence Preliminary Motion for Defects In the Form of the Indictment, 13 October 2003 at para. 9.
[7] 56 Cr. App. R. 348.