O
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
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IN THE APPEALS CHAMBER

SEPARATE AND CONCURRING OPINION OF JUSTICE GEORGE GELAGA KING ON JOINT DEFENCE APPEAL AGAINST THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL, PURSUANT TO RULE 77(C)(iii) and 77(D)

1. I have had the privilege of reading the draft Decision of Justice Renate Winter and I agree that the Appeal should be dismissed in its entirety. However, I am appending this separate opinion because my reason for the dismissal is only on one ground and that alone, that is, that the three Accused, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu have no locus standi to bring this appeal.
2. This present appeal dealing primarily with Contempt of Court is an offshoot of a preceding Contempt of Court Appeal brought by the same three Accused[1] and in which this Appeals Chamber delivered its Decision on 23 June 2005. In that Decision although I wrote a separate and partial dissenting Opinion, this Chamber held unanimously that the three Accused had no standing to prosecute that appeal.
3. As this Appeal arises out of the same circumstances as its predecessor, it is for the same reasons I gave earlier that I find that the three Accused in this instant Appeal have no locus standi. I shall, therefore, repeat what I said:

‘As far as the three Accused, Alex Tamba Brima, Brima Bazzy Kamara and Sanitigie Borbor Kanu are concerned, as I have already premised, they are not and have not been charged with Contempt of Court. They are neither alleged nor suspected to be contemnors. The Contempt of Court proceedings which arose in the course of their trial on indictment were in respect of the five persons I have already named: Brima Samura (not to be mistaken for 1st Accused Alex Tamba Brima), Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara. It is obvious, therefore, that the three Accused lack standing in the contempt of court proceeding and I so hold. It is equally obvious that since those Accused persons have no standing in those proceedings it automatically follows that their respective counsel cannot have a standing on their behalf and I so hold.’[2]

4. On 10 March 2005 Trial Chamber II gave an oral ruling in which, inter alia, it ordered the Registrar to appoint an independent counsel to investigate and prosecute the five alleged contemnors hereinbefore referred to.[3]
5. Consequent upon that oral ruling the Registrar on 11 March 2005 appointed Mr Louis Tumwesige as Independent Counsel[4] and on the 16 March 2005, Mr Tumwesige submitted the report of his findings to the Trial Chamber which issued its Impugned Decision on 29 April 2005, ordering the Independent Counsel to prosecute the five alleged contemnors. It is against this Impugned Decision that the three Accused have appealed to this Appeals Chamber.
6. The crucial question to be determined in this instance is whether the Defence Counsel in this appeal have a standing vis-à-vis the five alleged and suspected contemnors. There is no evidence that any of the Defence Counsel was instructed by those alleged contemnors or anybody else to represent them. There is no evidence that the Defence Counsel or any of them has filed any power of attorney with the Registrar to show that they had been engaged by any of the suspected contemnors to represent them as required by the Rules of Procedure and Evidence.[5] It is also quite clear to me that there is no evidence to show that any of the Defence Counsel has any private, substantive or legally protected interest that is being harmed or threatened as a result of the Independent Counsel’s Report. The Defence Counsel do not come within the ambit of “aggrieved person”[6] even when that test is applied. In all these circumstances, therefore, the inescapable conclusion is that the Defence Counsel have no locus standi to represent the five alleged contemnors in whom the legal right to appeal inheres.
7. As I have held that the three appellants, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, have no locus standi, it follows that I cannot thereafter deal with the substance of the grounds of appeal. To adjudicate on the merits will be a futile exercise as whatever conclusions are reached will be merely obiter dicta and therefore not binding as precedent.
8. I hereby authorise Court Management to serve this Separate and Concurring Opinion during the official recess period of the Special Court.

[Seal of the Special Court for Sierra Leone]

[1] See Case No. SCSL-04-16-AR77
[2] Ibid, para 25.
[3] Transcript 10 March 2005 p.15 lines 24-29, p.16 lines 1-13.
[4] See Impugned Decision – Preamble.
[5] Rule 44(A).
[6] See R. v. Russell ex parte Beaverbrook Newspapers Ltd [1969] IQB 342.