SEPARATE AND PARTIAL DISSENTING OPINION OF JUSTICE GEORGE GELAGA KING

A. Introduction

1. I append a separate and partial dissenting opinion because I am unable to agree with the reasoning and part of the outcome of the majority decision that the appeal brought by counsel Kevin Metzger, the legally constituted representative of Brima Samura a defence investigator, be struck out on the ground, inter alia, that he has no locus standi to prosecute the appeal. I agree, for reasons of my own that will follow, that the appeals brought on behalf of the three accused, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu be struck out on the ground that they have no locus standi.
2. I intend to emphasize the fact that it is unjust and wrong for an appellate tribunal (in this instance the majority of the three Appeals Chamber Judges assigned to deal with this appeal) to base its decision on a ground – Rule 75 of the Rules of Procedure and Evidence – not set forth in the Notice of Appeal and where the parties have had no opportunity of contesting the appeal on such ground and particularly where it had been ordered by the Special Court’s President under Rule 117(A) that there will be no oral hearing. The basic tenet of natural justice – audi alteram partem (Hear the other side) – ought also to have been adhered to in this instance.
3. Furthermore, there are three substantial issues in relation to which I take a view different from that of the majority. The first relates to the interpretation of rule 77(J): “Any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal.” I am unable to agree with Justice Robertson that “any decision” means “any final decision.”
4. The second issue pertains to the audi alteram partem rule. One of the majority of the Appeals Chamber, Justice Robertson is of the opinion that in the Contempt of Court proceedings in Trial Chamber II there was no breach of that rule and say that the other side was heard. I disagree. The other side was the defence Investigator Brima Samura and he certainly was not heard or called upon to explain, refute or answer the allegations of contempt made against him.
5. The third issue arises from the finding of the majority that this Appeal “is brought without leave of this court or of the court below, and which relates to an interlocutory action rather than a final decision.” Even if leave to appeal was necessary, it cannot reasonably be said that the appeal is brought without leave as can quite clearly be seen from a perusal of the transcript:

“Mr Metzger: I am asking for leave to appeal this decision.

Presiding Judge: Rather than.....I see.

Judge Lussick: You don’t really need leave, do you, Mr Metzger, it says ‘shall be subject to appeal.’ You can appeal.”[1]

B. Background

6. Messrs Kevin Metzger, Wilbert Harris and Knoops are named in this appeal as Defence Counsel for the First Accused Alex Tamba Brima, Second Accused Brima Bazzy Kamara and Third Accused Santigie Borbor Kanu, respectively.[2] These accused persons are three of those charged on indictment as bearing the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. They are not and have not been charged with Contempt of Court. Their trial on indictment is currently before Trial Chamber II.
7. Contempt of Court proceedings arose in the course of that trial on indictment, against persons other than the three accused, none of whom is alleged or suspected to be a contemnor. The persons alleged and suspected to be contemnors are one Brima Samura a defence investigator and four women, namely, Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara.[3]
8. On 10 March 2005 at the continuation of the trial of the three accused, Ms Taylor for the Prosecution informed Trial Chamber II that the Office of the Prosecutor had that morning received two written reports in relation to two separate security incidents that occurred the day before concerning a protected witness, TF1-023, who had been giving evidence.
9. After the Presiding Judge had announced that the court will continue in closed session because of the serious nature of the allegations, Ms Taylor went on: “The Prosecution’s submission is that the reports of Mr Saleem Vahidy and Mr Jospeh Poraj-Wilcznski indicate that there is a prima facie case of contempt against five people: the defence investigator Brima Samura pursuant to Rule 77(A)(ii) and the women Margaret Fomba, Neneh Binta, Anifa Kamara and Ester Kamara...”[4]
10. Rule 77(A)(ii) states:

“The Special Court, in the exercise of its inherent power, may punish for contempt any person who knowingly and wilfully interferes with its administration of justice, including any person who:..

(ii) discloses information relating to proceedings in knowing violation of an order of a Chamber.”

11. Ms Taylor referred the Trial Chamber to the Court’s powers under rule 77(C), the various options open to the Court “including dealing with the matter summarily itself...”[5] She submitted that the matters raised were sufficiently serious and that some action should be taken by the Chamber pursuant to Rule 54 and pointed out that Rule 54 is simply a general provision.[6] Emphasis mine.
12. Rule 54 provides:

“At the request of either party or of its own motion a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” Emphasis mine.

13. Prosecution Counsel Ms Taylor continued her submissions as follows:

“In the circumstances, the Prosecution would submit that it is appropriate that pursuant to that section that certain interim orders be issued by this Chamber in relation to the named persons, including that the investigator Brima Samura should be suspended as a Defence Investigator and hand back all documents in his possession concerning the identity of witnesses before this court; that he should be asked to give a solemn undertaking to this Chamber that he will not discuss witness identity with any person; that the four women named should be banned from the public gallery of Trial Chamber II; and that they also be asked to give a solemn undertaking to refrain from contacting any Prosecution witness. Those orders, Your Honours, would be sought as interim orders until appropriate action is taken pursuant to Rule 77, and they are simply to maintain the status quo and to give adequate protection to Prosecution witnesses whose identities have already been disclosed to the Defence and, therefore, to the Defence Investigator in question, if Your Honours please.”[7]

14. Immediately thereafter the Trial Chamber conferred. Without calling on any of the Defence Counsel, or Brima Samura the Defence Investigator, or any of the four named women to respond, the Presiding Judge had this to say:

“Thank you, Ms Taylor. This is the unanimous ruling of the Court.”[8] My emphasis.

15. At that crucial and decisive juncture, Defence Counsel Mr Kevin Metzger quite rightly I opine, intervened and complained:

“May it please, Your Honour, it appears that an allegation has been made concerning a member of my team and members of other or certainly relatives of other teams, and the Defence have not been called upon to either meet the allegation that has been made or deal with anything. Now, in a court of law, in my humble, but limited experience, it is always the case that the Defence is called upon. I was sitting here waiting, and expecting that we would only not be called upon if the Bench decided that it didn’t want to do anything about this....”[9] Emphasis mine.

16. What then followed I find instructive and helpful so I shall reproduce for record purposes, and so that there can be no uncertainty as to what actually was said in court, the ensuing relevant dialogue between the Presiding Judge and Mr Metzger:

“Presiding Judge: Mr Metzger, we are going to direct a full investigation and then a hearing, in which case the Defence will, of course, be fully heard and, as in any hearing, the Defence is entitled to be heard, but until there is an investigation, I think it is premature to invite the Defence to lay out their case.

Mr Metzger: Is your Honour going to deal with the interim measures that are sought by the Prosecution?

Presiding Judge: I intend to make interim measures in line with certain submissions by the Prosecution.

Mr Metzger: Then we would respectfully submit that we ought to be heard on any interim measures that the Court decides to rule on.

Presiding Judge: I will hear you only the question of Brima Samura and that alone. Emphasis mine.

Mr Metzger: Yes, and I’m content to address you only on the question of Brima Samura. Brima Samura is the investigator for the Brima Defence team....”[10]

17. Defence Counsel Mr Harris pleaded for a moment of reflection and research and Mr Knoops for the 3rd defendant Kanu made submissions in regard to Kanu’s right to have his wife (one of the ladies named) to visit him in detention and also asked for an adjournment of the trial. The application for an adjournment was refused.[11]
18. The Presiding Judge duly ruled as follows:

“I consider that there are prima facie grounds that the following persons should be brought before the Court to show cause why they are not in breach of Rule 77(A)(ii) and (iv). Accordingly this Court directs an order that the Registrar appoint an independent counsel to investigate and prosecute the following persons: Margaret Fomba, Neneh Binta Bah, Anifa Kamara, Ester Kamara, Brima Samura pursuant to Rule 77(C)(iii) of the Rules of Procedure. The Court directs that the investigation and appropriate appointment be done expeditiously. The Court further directs that they be brought before this Court or an alternate Court that may have to be appointed if counsel are involved to be dealt with in accordance with Rule 77(C)(i). The Court further orders that Brima Samura be suspended from this Court and return all Court documents and information pending investigation and hearing. I accept prima facie it is an interim measure. Further, the Court orders and directs that Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara may not enter the public gallery pending the investigation and hearing of this matter. We direct that an independent counsel prosecute this matter pursuant to Rule 77(C)(iii). That is the Ruling of the Court.”[12] Emphasis mine.

C. NOTICE AND GROUNDS OF APPEAL

SUMMARY OF DEFENCE AND PROSECUTION SUBMISSIONS

19. One day after the Ruling, on the 11 march 2005 Defence Counsel for the three accused filed what they describe as a Joint Notice of Appeal. They also filed on the same date an Appeal Motion “pursuant to Rule 77(J) on both the imposition of Interim Measures and an Order pursuant to Rule 77(C)(iii).[13]
20. The first ground of appeal is in these terms:

“Error in law and/or fact due to violation of the right to have a fair hearing (principle of audi alteram partem) in the context of Rule 77(C)(iii) in conjunction with Rule 54 and Rule 77(E) of the Rules.”

Second ground: “Error in law and/or fact due to an erroneous acceptance of a prima facie case of contempt.”

Third ground: “The Trial Chamber erred in law and/or fact due to the principle of proportionality.”

The relief sought is that this Appeals Chamber should find the appeal admissible; grant the appeal and reverse the Trial Chamber Decision both as to the interim measures and the order pursuant to Rule 77(C)(iii), and/or any other decision the Appeals Chamber deem appropriate.

21. The main complaint of the Defence is that the Trial Chamber II prior to imposing such severe interim measures, should have maintained the principle of a fair hearing in that both parties should have an equal opportunity to put forward their arguments. Accordingly, they argue, the Trial Chamber “should have heard at least the Defence Investigator, who is now implicated in the current investigation.”[14] They complain that the Trial Chamber arrived at its unanimous decision before hearing the Defence and violated the principle of audi alteram partem. Further, the Defence claim, the Trial Chamber erroneously accepted the existence of a prima facie case of contempt of court. The Defence submit that having regard to the principle of proportionality and subsidiarity the Trial Chamber, reasonably, should have opted to proceed under Rule 77(C)(i) – i.e. deal with the matter summarily itself.
22. The Prosecution submit that there is no legal basis for the interlocutory appeal. That the words “decision rendered...under this Rule” in Rule 77(J) refer to a decision under Rule 77(A), (B) or (G), that is, the final decision of a Chamber finding a person to be or not to be, in contempt of the Special Court, and imposing a penalty on that person.[15] They submit that an interlocutory appeal against a decision of a Trial Chamber in contempt proceedings requires leave of the Trial Chamber pursuant to Rule 73(B). “Accordingly, in the absence of leave to appeal pursuant to Rule 73(B) the appeal must be rejected as lacking any basis in the Rules, to the extent that it relates to the interim measures ordered by the Trial Chamber.”[16]
23. The Prosecution further submit that the three Accused lack standing to challenge alleged violation of the rights of other persons. That “the right to be heard of all three Accused (the principle of audi alteram partem) has been respected.”[17]

D. THE MAIN ISSUES AND THEIR DETERMINATION

24. In my judgement the main issues to be determined by the Appeals Chamber arising from the grounds of appeal are the following:

(i) Whether the three Defence Counsel for the three Accused have a locus standi in this contempt of court appeal and whether Mr Kevin Metzger has a locus standi to represent Brima Samura the Defence Investigator in this appeal.

2. Does the Appeal Chamber have jurisdiction to entertain the Appeal?
3. Are the grounds of appeal meritorious?

1. Locus Standi

25. As far as the three Accused, Alex Tamba Brima, Brima Bazzy Kamara and Santigie 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, Nenh Binta Bah, Anifa Kamara and Ester Kamara. It is obvious, therefore, that the three Accused lack standing in the contempt of court proceedings 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.
26. The next question for determination is the locus standi of the Defence Counsel vis-à-vis the five alleged and suspected contemnors. I take, first, the four women suspected to be contemnors. There is no evidence that any of the three counsel was instructed by those women or anybody else to represent them. Nor is there any evidence that the Trial Chamber had requested them to speak on the women’s behalf or represent them. Furthermore, there is no evidence that the three 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 four women suspects as required by the Rules.[18] In the circumstances it is quite clear to me, and I so find, that the three Defence Counsel have no locus standi to represent the four suspected women contemnors in this appeal.
27. I now turn to Defence Counsel Kevin Metzger and the suspected contemnor Brima Samura who is the investigator for the First Accused Alex Tamba Brima. I have already quoted the dialogue between the Presiding Judge and Mr Metzger relating to Brima Samura.[19] The Presiding Judge had ruled that she would hear Mr Kevin Metzger “only on the question of Brima Samura and that alone.”
28. Defence Counsel Mr Metzger with some alacrity expressed his contentment to address the Chamber only on the question of Brima Samura. Making full use of the opportunity he proceeded to address the Chamber at some length. He pointed out, inter alia, the following: That Brima Samura was the investigator for the Alex Tamba Brima defence team. That there had been one prior incident in which Brima Samura had been assaulted by security staff as he was entering the court building. That Samura’s identity card was removed from him, his file knocked out of his hand and that Samura was ejected from the Special Court. That a witness statement in the possession of Samura had gone missing and that a complaint had been made about these matters using the Registry’s internal complaints procedure, etc. etc. Mr Metzger finally asked “that the trial do not proceed until we have had the opportunity to have had discussions together about our future roles in this case.”[20]
29. From the foregoing, it cannot be denied that Mr Kevin Metzger having acceded to the Trial Chamber’s invitation that he address them “only on the question of Brima Samura and that alone” had in the circumstances represented, as Counsel, the suspected contemnor, Brima Samura in the Contempt of Court proceedings before that Chamber and continues to do so before this Appeals Chamber. In my judgement, it is incontestable that Mr Metzger has a locus standi as the legal representative of Brima Samura in the Contempt of Court proceedings. It follows, therefore, that Mr Kevin Metzger brings this appeal also as the legally constituted representative of Brima Samura the Defence Investigator, in whom the right personally inheres.[21] I, therefore, hold that Mr Kevin Metzger in his capacity as the legally constituted representative of Brima Samura has a place of standing in this appeal.
30. The decision of Justice Robertson on this question of locus standi seems to me to be rather ambivalent. He opines, on the one hand, that the three Accused Appellants and their Counsel have no standing to prosecute this appeal in relation to what he refers to as two decisions taken by the Trial Chamber in relation to (1) its reason to believe that a contempt had been committed or to (2) its direction for an independent investigation of the alleged contempt. But, on the other hand, he then goes on to say that those same Appellants have standing in relation to the decision to impose interim orders. I am unable to appreciate or accept this rather strange and novel dichotomy of locus standi which seems to me to be reprobating and approbating at the same time. This idea of the severability of locus standi seemingly for the purpose of fitting the halves into a like severance of the Trial Chamber’s Ruling is to my mind palpably anomalous and without legal basis. Either a party has a standing to prosecute the appeal or he has not. One cannot have it both ways. If a party does not have a locus standi in the appeal then that is the end of the matter as far as that party is concerned. The Court ought not then to go further to adjudicate on the substance of the appeal of that party who has no standing.

2. Right to Appeal

31. I have already held that the three Accused and their Counsel have no locus standi in this appeal. They, therefore, have no right to appeal and consequently I shall not adjudicate on the substance of their appeal which must necessarily be struck out. The only appeal I will entertain is that of Brima Samura whose appeal has been prosecuted by Mr Kevin Metzger, his legally constituted representative. I shall now deal with the substance of that appeal.

(a) Rule 77(J)

32. Brima Samura’s interlocutory appeal is brought under Rule 77(J) of the Rules of Procedure and Evidence. Rule 77(J) provides:

“Any decision rendered by a Single Judge or Trial Chamber under this Rule shall be subject to appeal.”

Mr Kevin Metzger argues that this Rule specifically embraces the term “any decision” and this includes also a decision pursuant to Rule 77(C)(iii). He further submits that such interpretation is also supported by the reference in Rule 77(J) to the phrase “under this Rule” which refers also to a decision as imposed by the Trial Chamber to direct the Registrar to appoint an independent counsel to investigate the matter by virtue of Rule 77(C)(iii).[22] The Prosecution deny this and submit that the words “any decision” in Rule 77(J) refer to a decision of a Chamber finding a person to be, or not to be, in contempt of the Special Court, and imposing a penalty on that person. They further argue that interlocutory decisions and orders made in contempt proceedings are made under Rule 54, or Rule 73, or “under some other relevant provision of the Rule”, rather than under Rule 77 itself and submit that the practice of the ICTY is consistent with this interpretation.[23]

33. Justice Robertson is of the opinion that “any decision” means in context “any final decision”: He posits that a literal interpretation would cause unjustifiable expense and intolerable delay to a process which demands speedy resolution and a literal interpretation which leads to such absurdity should if possible be avoided. For reasons that will follow I do not agree with his interpretation.
34. In my judgement the words “any decision” are clear, precise, unequivocal and unambiguous and, therefore, applying the elementary and golden rule of interpretation, those words must be given their ordinary and natural meaning. The words mean simply that any decision given by a Judge or Chamber under Rule 77 – Contempt of the Special Court – shall be subject to appeal. And this includes interlocutory decisions. If Rule 77(J) was restricting appeals to final decisions only it could quite easily have been drafted to read: “Any final decision...under this Rule shall be subject to appeal.” (Emphasis mine).
35. Furthermore, a peculiarity of contempt of court proceedings is that the Judge or Court is invariably judge and prosecutor. For this reason and also the fact that the liberty of a person suspected to be a contemnor is affected, the courts have always regarded such contempt matters as not only strictissimi juris, but the Rules have afforded the alleged contemnor the opportunity to test the decision of the judge or court at all stages. Otherwise it might be too late to repair a potential or actual injustice suffered by a party. In the words of the ICTY Appeals Chamber in the case of Prosecutor v. Aleksovski, the peculiarity to which I have referred, “underlines the danger of a Chamber being both the Prosecutor and Judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked.”[24]
36. Quite apart from the literal interpretation of “any decision” even when the purposive or schematic and teleological method of interpretation is applied, the meaning of “any decision” is the same. The intention is to make any decision of the Judge or Court in Contempt of Court proceedings of the Special Court appealable and to that end the mechanism for a speedy adjudication is readily available as can be seen from the following:-

(i) Appeals pursuant to Rule 77 shall be heard by three Judges of the Appeals Chamber,[25] and not the panel of five.
(ii) The appeals may be determined entirely on the basis of written submissions.[26]
(iii) Rules 109 to 114 which provide for Pre-Hearing Judge, Record on Appeal and relatively long time scale for filing submissions are dispensed with.[27]
(iv) Procedure is expedited just as in the case of interlocutory appeals under Rule 72(E) (serious issue of jurisdiction); Rule 72(F) (issue significantly affecting the fair and expeditious conduct of proceedings, or the outcome of a trial).

All the procedural steps to which I have just referred are steps taken in interlocutory appeals, as in the present case, as distinct from final decisions appeals where the procedure is lengthy, elaborate and time consuming, under Rule 109 to 114.

37. Finally on Rule 77(J) let me point out that to hold, as Justice Robertson does, that ‘any decision’ means ‘any final decision’ is not only doing violence to plain language, but he is in fact tacitly saying that the draftsman made a mistake by omitting the word ‘final’. In that instance, the mistake (and I do not think it is mistake) can only be cured by amendment and not by judicial interpretation. This Appeals Chamber has no such power. Power of Amendment of the Rules is primarily given to the Plenary of the Special Court comprising the five Judges of the Appeals Chamber and the six Judges of the Trial Chambers.[28] This Appeals Chamber as the highest appellate authority of the Special Court for Sierra Leone ought not to usurp the role of Plenary or put ourselves in a position where it can be said, perhaps with some justification, that we disregard, infringe or circumvent the Rules of the Special Court with impunity.
38. It is most instructive to note that at a meeting of the Plenary of the Special Court on 14th May 2005, that body amended Rule 77(J) as follows:

Rule 77(J):

“Any conviction rendered under this Rule shall be subject to appeal.”[29] (Emphasis mine)

The inference to be drawn from the amendment, and its timing, is too blatantly obvious to any reasonable and right-thinking person and it is unnecessary for me to adumbrate further on Rule 77(J).

(b) Rules 54 and 73 and Leave to Appeal

39. The Prosecution have, with some force, contended that interlocutory decisions and orders in contempt proceedings are made under Rule 54, or Rule 73, or under some relevant (but unspecified) provision of the Rules rather than Rule 77 itself. They base their claim on Rule 77(E), which provides:

Rule 77(E):

“The rules of procedure and evidence in Parts IV to VIII shall apply, as appropriate to proceedings under this Rule.” (My emphasis)

It is on that ground that they submit that interlocutory decisions in contempt proceedings are made under Rule 54, or Rule 73, rather than Rule 77 itself, citing practice of the ICTY and referring to the case of Prosecutor v. Brdanin and Talic[30] on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal.

40. The application before the Trial Chamber II was not to amend an indictment pursuant to Rule 72, but to impose interim measures for alleged contempt of the Special Court under Rule 77. With regard to the case of Prosecutor v Brdanin, Judgement[31] a prosecution for contempt under Rule 77, the alleged contemnors brought a motion for acquittal under Rule 98 bis of the ICTY Rules, which was dismissed. He then chose to seek certification to appeal the decision pursuant to Rule 73(B) of the Rules of that tribunal. In Brima Samura’s case there has been no application under Rule73(A) and, therefore, Rule 73(B) is inapplicable.
41. In Prosecutor v Brdanin[32], Corrigendum to Order Instigating Proceedings against Milka Magalov, an ICTY Trial Chamber found it appropriate to rely on Rule 54 as its authority to make a corrigendum to an interlocutory decision in a contempt case. The Prosecution submitted that they made their application to the Trial Chamber for the imposition of interim measures under Rule 54. That Rule comes under Part V of the Rules – Pre-Trial proceedings under the heading ‘General Provision’. It states:

“At the request of the either party or of its own motion, a Judge or Trial Chamber may issue such orders, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.”

It seems hardly appropriate for Rule 54 to be called in aid for the type of interim measures ordered by the Trial Chamber. Even if Rule 54 applies it could only have applied if the Trial Chamber was dealing summarily with the matter itself under Rule 77(C)(i) which it ought not to have done as it was purporting to act under Rule 77(C)(iii) – Rule 77(C)(i), (ii) and (iii) is disjunctive.

42. The majority of the Appeals Chamber are of the view that the Trial Chamber did not in fact act under Rule 54 in imposing interim measures but had acted under Rule 75: Measures for the Protection of Victims and Witnesses. I am unable to agree with this finding for several reasons. But let me repeat, as a preliminary matter, what I said in limine.[33] It is contrary to accepted practice, it is not justifiable and it is wrong for this Appeals Chamber, the final appellant authority, to ground its decision on interim measures on Rule 75 when the parties to this appeal had not been given an opportunity to contest the appeal on that ground, which was not a ground of appeal.

3. Rule 75: Protective Measures?

43. Witness TF1-023, a protected witness, was giving evidence in Trial Chamber II in the trial, on indictment, of the three Accused persons when allegations of contempt of the Special Court were made against a defence investigator, Brima Samura and others. Witness TF1-023 became a protected witness by virtue of Protective Measures ordered by the first Trial Chamber, Trial Chamber I, comprising Judges Itoe, Bankole Thompson and Boutet. Having regard to the relevant provisions of Rule 75 it cannot be said that the interim measures imposed by Trial Chamber II were ordered pursuant to Rule 75.
44. The relevant sub-rules of Rule 75 are the following:-

“(F) Once protective measures have been ordered in respect of a witness or victim in any proceedings before the Special Court (the “first proceedings”), such protective measures:

(i) shall continue to have effect mutatis mutandis in any other proceedings before the Special Court (the “second proceedings”) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; (my emphasis)

(ii) shall not prevent the Prosecutor from discharging any disclosure obligation...

(G) A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply:

i. to any Chamber, however constituted, remaining seized of the first proceedings; or

ii. if no Chamber remains seized of the first proceedings, to the Chamber seized of the second proceedings.

(H) Before determining an application under Sub-Rule (G)(ii) above, the Chambers seized of the second proceedings shall obtain all relevant information from the first proceedings, and shall consult with any Judge who ordered the protective measures in the first proceedings, if that Judge remains a Judge of the Special Court. (My emphasis)

45. In the instant case the mandatory provisions of Rule 75(H) were not followed. Under that sub-rule it was mandatory for the Trial Chamber II, if indeed it was imposing the interim orders pursuant to Rule 75, (and it never said it was), to obtain all relevant information from the first proceedings AND consult with any Judge who ordered the protective measures in the first proceedings before determining the application under Sub-Rule (G)(ii). (My emphasis) That was not done. There is, therefore, no legal basis whatsoever, for what in the circumstances is an arbitrary finding by the majority, that the interim measures were imposed pursuant to Rule 75. I, therefore, disagree with the majority on that issue. It is only fair to record here, that neither the Prosecution, nor the Defence, nor the Trial Chamber II, had claimed at anytime that the interim measures were to be or were imposed pursuant to Rule 75.
46. Leave to Appeal: In my interpretation of Rule 77(J) I said that any decision under Rule 77, Contempt of the Special Court is appealable. I have also said, for the reason I gave, that Rule 73(B) is inapplicable.[34] Both of my colleagues are, however, of the opinion that leave to appeal the interim measures had not been obtained. This view most certainly does not accord with the facts as can be seen from the following excerpt from the transcript:

“Mr Metzger: I am asking for leave to appeal this decision

Presiding Judge: Rather than...I see.

Judge Lussick: You don’t really need leave do you Mr Metzger, it says ‘shall be subject to appeal’. You can appeal” (My emphasis)

The facts speak for themselves.

4. Audi Alteram Partem (Hear the Other Side)

47. There is no dispute that the allegations against Brima Samura contained in the written reports of James Konormanyi[35] and Samuel Davies[36] were not made in the presence and within the hearing of the Trial Chamber Judges. There can be no doubt that if those reports are true then the Trial Chamber will be in a position, in the words of Rule 77(C) to say it “has reason to believe that a person may be in Contempt of the Special Court.”
48. Were the reports true, or shown to be true, or likely to be true? To answer this question it seems to me that the Trial Chamber ought to have confronted Brima Samura with the very serious allegations made against him and given him an opportunity to state his case as it were, or of answering (if he can) the allegations made against him. It is only then, in the circumstances, that the Trial Chamber will be in a position to properly say it had reason to believe those reports. At no time was Brima Samura given that opportunity.
49. I must stress that it is a fundamental principle of natural justice that one ought not to be condemned unheard, which principle is enshrined in the maxim, “audi alteram partem”, or “hear the other side”. As was said rather quaintly in Dr Bentley’s case, “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.”[37] The allegations against Brima Samura are quite serious. It was, therefore incumbent on the Trial Chamber, in the pursuit of even-handed justice, to fairly listen to both sides, for that is the duty lying upon everyone who decides anything. I reiterate that the Chamber should have given the opportunity to Brima Samura for correcting or contradicting (if he can) the opprobrious allegations of contempt made against him. This they failed to do and it cannot, therefore be said they had reason to believe.
50. It is said that the other side was heard. Which other side? The other side was certainly not the three Accused because no allegations of contempt were made against them. The other side was Brima Samura and the four women against whom the allegations were made and not one of them was called upon, not one of them was heard – that was contrary to natural justice.
51. In my judgement, the Trial Chamber by imposing the interim measures and by the very nature and content of those measures, seems to have been acting summarily pursuant to Rule 77(C)(i) and not, for the reasons I have already given, under Rule 75. In their Ruling the Trial Chamber ordered that the Registrar appoint an independent counsel to investigate and prosecute Brima Samura and the four females, “pursuant to Rule 77(C)(iii)” and, at the same time, directed that they be brought before the Court or an alternative court[38] “to be dealt with in accordance with Rule 77(C)(i)”. This is not permissible. Sub-rules (i), (ii) and (iii) of Rule 77 are disjunctive. If the Chamber decides to act under sub-rule (i) it cannot then purport to act under sub-rules (ii) and (iii) and vice versa.

5. Initiation of Contempt Proceedings

52. Justice Ayoola is of the opinion that the decision of the Judge or Trial Chamber to exercise any of the powers under Rule 77(C)(i), (ii) or (iii) may or may not eventually lead to initiation of contempt proceedings. I find it difficult to accept such proposition. If by ‘initiate’ is meant ‘to cause a process to begin’, then it seems to me that proceedings for contempt may be initiated by the Prosecution, the Defence, or by the Chamber suo motu. I agree with the view expressed by the President in the “Celebici Camp” case when he said that “the Prosecutor may investigate and bring to the Chamber’s attention such interference of a witness as may come within the terms of Sub-Rule 77(A), but, equally, so may the Defence or the Chamber, proprio motu, and it remains the prerogative of the Chambers whether or not to convict someone of contempt.”[39]
53. In the instant case proceedings for contempt of the Special Court were initiated from the moment when Ms Taylor for the Prosecution, after investigation, brought to the Chamber’s attention reports that Brima Samura had disclosed information relating to proceedings in knowing violation of an order of a Chamber and contrary to Rule 77(A)(ii). The decision of the Trial Chamber to exercise its powers under Rule 77(C)(i),(ii) or (iii) was consequently, a continuation of contempt proceedings initiated by the Prosecutor. As soon as contempt proceedings are initiated, that instigates the adjudicatory function of the Chamber. I do not accept, as Justice Ayoola posits, that a decision by the Chamber under Rule 77(C) is not a judicial decision, but a decision in the nature of “executive decision.” The Chamber does not, in exercising jurisdiction in contempt proceedings under Rule 77(C), act in an administrative or executive capacity. This would be a negation of the Special Court’s Statute and the Rules of Procedure and Evidence.
54. Underscoring the importance of the overriding need for procedural scrupulosity and meticulousness is the universal judicial recognition that contempt is “by far the most powerful device in the legal conceptual armoury of the courts designed to preserve the dignity and integrity of the judicial process.”[40]
55. Since the natural justice rule of audi alteram partem was not adhered to and applied by the Trial Chamber, the Appeal of Brima Samura succeeds on that ground. It is consequently unnecessary for me to consider the other grounds.

Disposition

56. For the reasons I have given I would ALLOW the appeal in respect of the Defence Investigator Brima Samura and SET ASIDE the interim measures and orders against Brima Samura whose appeal is competent.

Done at Freetown this 23 day of June 2005

Hon. Justice George Gelaga King

[Seal of the Special Court for Sierra Leone]

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[1] Transcript p.21, lines 20-23.

[2] Notice of Appeal, Front Page.
[3] Transcript p.6, lines 23-25.
[4] Ibid p.6, lines 21-25.
[5] Ibid p.7, lines 13 and 14.
[6] Ibid lines 21-22.
[7] Ibid p.7 lines 27-29; p.8 lines 1-13.
[8] Ibid p.8 lines 15 and 16.
[9] Ibid p.8 lines 17-24.
[10] Ibid p.8 lines 25-29; p.9 lines 1-11.
[11] Ibid p.20 line 18.
[12] Ibid p.15 lines 24-29, p.16 lines 1-13.

[13] Appeal Motion 6944.
[14] Ibid para 13.
[15] Pros. Response para 6.
[16] Ibid para 9.
[17] Ibid para 18.

[18] Rule 44(A).
[19] Supra para. 16.
[20] Transcript pages 8-11.
[21] Vide Locus Satndi and Judicial Review by S.M. Thio 1971, p.1.
[22] Appeal Motion 6944 para 5.
[23] Prosecution Response, para 7.
[24] Pros v. Aleksovski IT-95-14/I, Judgement on Appeal by Anto Nobilo against finding of contempt 9AC) 30 May, 2001 para 56.
[25] Rule 77K
[26] Ibid.
[27] Rule 117(C)
[28] Rules 6 and 24 (i)
[29] The amendment became effective on 14 May 2005
[30] Case No. IT-99-36-R77 6 Feb 2004
[31] Case No. IT-99-36-T Trial Chamber 1 September 2004, ICTY
[32] Case No. IT-99-36-R77 Trial Chamber 14 May 2003 ICTY
[33] Ibid para 2.
[34] Ibid para 40

[35] Exhibit 1 p. 6972
[36] Exhibit 1 p. 6975
[37] (1723) 1 Stra. 557
[38] See para 18 supra

[39] Case No. IT-96-21 “Celebici Camp” Mucic et al. Decision of the President on the Prosecution’s Motion for the Production of Notes Exchanged between Zejnul Delalic and Ndravko Mucic, 11 November 1996 at para 34
[40] Bankole Thompson, The Criminal Law of Sierra Leone, Maryland: University Press of America Inc. 1999 at p. 219