PROSECUTOR v SAM HINGA NORMAN & ORS - DECISION ON PROSECUTION REQUEST FOR LEAVE TO AMEND THE INCIDENT (SCSL-04-14-PT ) [2004] SCSL 106 (20 May 2004);
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
PHONE: +1 212 963 9915 Extension: 178 7000 or +39 0831 257000 or +232 22 295995
FAX: Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22 295996
IN THE APPEALS CHAMBER
Before:
|
Justice Renate Winter, Presiding
Justice George Gelaga King Justice Emmanuel Ayoola Justice Geoffrey Robertson Justice Raja Fernando |
|
Registrar:
|
Robin Vincent
|
|
Date:
|
25 May 2004
|
|
PROSECUTOR
|
Against
|
ALLIEU KONDEWA
(Case No. SCSL-2004-14-AR72(E)) |
DECISION ON PRELIMINARY MOTION ON LACK OF JURISDICTION: ESTABLISHMENT OF SPECIAL COURT VIOLATES CONSTITUTION OF SIERRA LEONE
Office of the Prosecutor:
|
|
Defence Counsel:
|
Desmond de Silva QC
|
|
James MacGuill
|
Luc Côté
|
|
James Evans
|
Walter Marcus-Jones
|
|
Charles Margai
|
Abdul Tejan-Cole
|
|
|
|
|
|
|
|
|
|
|
|
THE APPEALS CHAMBER of the Special Court for Sierra Leone (“Special Court”);
SEIZED of the Preliminary Motion based on Lack of Jurisdiction: Establishment of Special Court Violates Constitution of Sierra Leone filed on behalf of Allieu Kondewa on 7 November 2003 (“Preliminary Motion”);
NOTING that the Prosecution Response was filed on 14 November 2003;
NOTING that the Preliminary Motion was referred to the Appeals Chamber under Rule 72(E) of the Rules of Procedure and Evidence (“Rules”) on 4 December 2003;
NOTING the Decision of the Appeals Chamber (composed of Justice Winter, Justice King and Justice Ayoola) on Constitutionality and Lack of Jurisdiction in the Kallon, Norman and Kamara cases of 13 March 2004 (“Decision on Constitutionality”);
HAVING CONSIDERED THE SUBMISSIONS OF THE PARTIES;
HEREBY DECIDES:
I. DISCUSSION
- The
Defence argues in its Preliminary Motion that the establishment of the Special
Court was unlawful because it violated the Constitution
of Sierra Leone. The
arguments are similar to the ones raised in preliminary motions brought on
behalf of Morris Kallon, Sam Hinga
Norman and Brima Bazzy Kamara which were the
subject of an oral hearing on 5 November 2003. On 13 March 2004, the Appeals
Chamber,
constituted by Justice Winter, Justice Ayoola and Justice King,
rendered its Decision on Constitutionality in respect of those preliminary
motions.
- In
its Decision on Constitutionality, the Chamber held that the Special Court was
competent to determine the legality of its own creation.
On the question of
constitutionality itself, the Chamber found that the Special Court was
established by the Agreement between the
UN and the Government of Sierra Leone
(“Agreement”), that it is a treaty-based court and that the
implementation of the
Agreement at the national level required incorporation
into the national law of Sierra Leone in accordance with constitutional
requirements.
The Chamber held that this incorporation occurred through the
Special Court Agreement Ratification Act of March 2002 (“Ratification
Act”). In addition, the Chamber held that the Special Court does not form
part of the judiciary of Sierra Leone as stated
in section 11(2) of the
Ratification Act and is established outside the national court system. The
Chamber quoted the UN Secretary-General’s
Report, according to which the
Special Court “is not anchored in any existing
system”.[1] In
conclusion, it was held that the relevant constitutional requirements had been
fulfilled and that the Special Court acts only
in an international sphere.
- It
is therefore unnecessary to say any more on the merits of the Preliminary Motion
as all relevant arguments are dealt with and dismissed
in the Decision on
Constitutionality.
II. DISPOSITION
- For
the reasons set out in the Decision on Constitutionality and in consequence of
it, this Preliminary Motion is dismissed.
Done at Freetown this twenty-fifth day of May 2004
Justice Winter Justice King Justice Ayoola Justice Fernando
Presiding
[Seal of the Special Court for Sierra Leone]
Justice Robertson appends a Separate Opinion to this Decision.
[1] Decision on Constitutionality, para. 51, quoting Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915, para. 9.