IN THE APPEALS CHAMBER

DECISION ON PRELIMINARY MOTION ON LACK OF JURISDICTION: ESTABLISHMENT OF SPECIAL COURT VIOLATES CONSTITUTION OF SIERRA LEONE

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

1. 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.
   
2. 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.
   
3. 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

4. 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.