Court name
Special Court for Sierra Leone
Case number
SCSL 14 of 2004

Prosecutor v Sam Hinga Norman & Ors - Dissenting Opinion of Hon. Judge Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision Supported by Hon. Judge Bankole Thompson's Separate But Concurring Opinion, on the Motion Filed by the First a

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Media neutral citation
[2004] SCSL 215


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THE TRIAL CHAMBER


Before:
Hon. Judge Benjamin Mutanga Itoe, Presiding Judge
Hon. Judge Bankole
Thompson
Hon. Judge Pierre Boutet
Registrar:
Robin Vincent
Date:
29th November, 2004
PROSECUTOR
Against
SAM HINGA NORMAN
MOININA FOFANA
ALLIEU
KONDEWA

(Case No.SCSL-04-14-T)


SEPARATE CONCURRING OPINION OF JUDGE BANKOLE THOMPSON ON
DECISION ON FIRST ACCUSED’S MOTION FOR SERVICE AND ARRAIGNMENT ON THE
CONSOLIDATED INDICTMENT


Office of the Prosecutor:

Court Appointed Counsel for Sam Hinga Norman
Luc Côté
James Johnson

Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr.
Tim Owen, Q.C.


Court Appointed Counsel for Moinina
Fofana
:


Michiel Pestman
Arrow Bockarie
Victor Koppe


Court Appointed Counsel for Allieu
Kondewa:

Charles Margai
Yadda Williams
Ansu Lansana

I. Introduction


1. As regards the merits of the instant Motion, I entirely agree with and
endorse the conclusion and Order as set out in the majority
Decision of the
Chamber written by my learned brother, the Hon. Judge Pierre Boutet on the
specific issues raised by the First Accused
in his application to the Court. I
have, however, found it judicially compelling and necessary to adopt my own
reasoning and put
forward my own reasons in support in a Separate Concurring
Opinion because this is an area where the law, in some respects, remains
intolerably unclear, if not confusing. In addition, it seems to me that the
specific issues raised by this Motion are extremely
complex and controversial
both in terms of legal theory and practice. Hence, my considered position that
while it is of utmost importance
for the Chamber to pronounce its authoritative
position on them, yet is equally necessary to recognise the diverse legal
perspectives
from which the issues can be approached. I have also articulated
in paragraphs 7-10 my own considered appreciation of the evolving
jurisprudence
of the Special Court governing pleadings in an indictment as expounded in a
series of seminal Decisions of the Court
in the year 2003, under two main heads:
(i) the régime of rules generally governing the framing of indictments,
and (ii) the
specific issue of defects in the form of the indictment especially
as regards particularity and specificity in the context of international
criminality. This would seem to be an opportune time for the Chamber to restate
this Court’s adaptations of the key principles
on this aspect of the law.
In supporting the majority Decision, let me indicate that I adopt in their
entirety the reproduction
of (1) the Submissions of the Accused, (2) The
Prosecution’s Response, and (3) The First Accused’s Reply as
detailed
in that Decision.


II. Non-Service of the Consolidated Indictment


2. Let me, now address the first specific issue for determination. It is
that of the alleged omission to serve the Consolidated Indictment.
The
contention of the First Accused on this issue is that he was not served the said
document in the manner stipulated by law.
Clearly, the law of this tribunal
makes it mandatory for an accused person to be served a copy of the indictment
personally at the
time the accused is taken into the custody of the Court or as
soon as possible thereafter. To this effect is Rule 52(A) of this
Court’s
Rules of Procedure and Evidence. In the context of Rule 52, “personal
service” is effected by giving the
accused a copy of the indictment
approved in accordance with Rule 52(B) of the aforesaid Rules of Procedure and
Evidence.

3. In my considered view, as a matter of statutory interpretation, Rule 52(B)
governing the service of indictments within the jurisdiction
of the Special
Court for Sierra Leone departs from the acknowledged and recognized body of
jurisprudence on the subject, both nationally
and internationally. Under some
national criminal law systems and in international criminal law practice, the
notion of “personal
service” of legal process bears the extended
legal meaning of service of the process in question on Counsel for the accused
as the duly authorised legal representative, on record, for the said accused.
In effect, based on the foregoing reasoning, it would
be sufficient in law, for
the purposes of “personal service”, if the Consolidated Indictment
in question were served
upon Counsel for the First Accused. By contrast,
however, the legislative intent behind our Rule 52(B) was to adopt a restrictive
rather than an extended legal connotation of “personal service” of
indictments within the Special Court adversarial scheme.
It does not fall
within the judicial domain of the Trial Chamber to question the legislative
wisdom behind the formulation of Rule
52(B) in its present form. Therefore,
applying the golden rule of statutory interpretation, Rule 52(B) must be given
its plain and
literal meaning.

4. Having thus articulated the law on this specific issue, it remains for me
to ascertain from the records whether the First Accused
was personally served
with the Consolidated Indictment. Based on a
Memorandum[1] from Court
Management that the First Accused was not personally served with the
Consolidated Indictment, and that service was effected
upon his counsel, I find
that there has been a breach of Rule 52(B) in relation to the First
Accused’s entitlement to be personally
served with a copy of the
Consolidated Indictment in conformity with the Order of the Trial Chamber made
pursuant to its Joinder
Decision in this case of the
22nd day of January
2004.[2] Conceding the
finding of non-compliance with Rule 52(B), it is my considered opinion that such
non-compliance is not fatal for the
reason that it has not in any way derogated
from the right of the First Accused to a fair trial or caused any prejudice to
him, taking
into account all the procedural steps taken by him subsequent to the
making of his opening statement in court and his decision to
represent himself
and having participated actively in the cross-examination of some prosecution
witnesses against him as noted in
the majority Decision.


III. Alleged Differences Between the Original Indictment and the
Consolidated Indictment


5. The second key issue raised by the Motion that needs to be addressed is
whether there are major differences between the First Accused’s
Original Indictment and the Consolidated Indictment.
After a meticulous comparison of both accusatory instruments, the inference
seems irresistible that the latter accusatory
instrument, to wit, the
Consolidated Indictment, embodies certain new material factual
allegations within existing counts as highlighted in the majority Decision of
the
Chamber. There is, therefore, merit in the First Accused’s contention
that the Consolidated Indictment confronts him with “a
considerably extended indictment period of an additional 20 months, until
December 1999, and
additional geographic
locations.”[3]
For an avoidance of doubt, I stress that it is not my view that the
Consolidated Indictment contains new offences or crimes against the First
Accused.
Nor is it my hypothesis that because the Consolidated
Indictment incorporates new expanded factual allegations, it is therefore a
new
accusatory instrument.
Consistent with accepted national criminal law
and international criminal law approaches, I adhere to the view that a
consolidated indictment that does not incorporate additional
crimes or offences authorised pursuant to a joinder decision is simply a
consolidating
and superseding accusatory instrument taking the place of the
original indictments.


6. It is, however, equally important to determine whether these new material
expanded factual allegations within existing counts are
of such a nature as to
prejudice the right of the First Accused to a fair trial on the
Consolidated Indictment? To answer this key question, it seems
necessary, first to recapitulate the principles governing pleadings in an
indictment
designed to reflect the peculiar and special juridical features of
the Special Court for Sierra Leone, and crafted out of the evolving
jurisprudence of our contemporary predecessor international criminal tribunals,
the International Criminal Tribunal for Yugoslavia
(ICTY) and the International
Criminal Tribunal for Rwanda (ICTR).


Principles Governing the Pleading of an
Indictment


7. In its seminal Decision entitled Decision and Order on Defence
Preliminary Motion for Defects in the Form of the
Indictment[4]
, this
Chamber opined as follows:

“The fundamental requirement of an indictment in international law as a
basis for criminal responsibility underscores its importance
and nexus with the
principle of nullum crimen sine lege as a sine qua non of
international criminal responsibility. Therefore, as the foundational
instrument of criminal adjudication, the requirements of
due process demand
adherence, within the limits of reasonable practicability, to the régime
of rules governing the framing
of indictments. The Chamber notes that the rules
governing the framing of indictments within the jurisdiction of the Special
Court
are embodied in the Founding Instruments of the Court.”

8. Highlighting the specific relevant governing statutory provisions, the
Chamber noted thus:

“Firstly, according to Article 17(4)(a) of the Court’s Statute,
the accused is entitled to be informed “promptly”
and “in
detail” of the nature of the charges against him. Secondly, Rule 47(C) of
the Rules of Procedure and Evidence
of the Special Court expressly provides
that:

The indictment shall contain, and be sufficient if it contains, the name and
particulars of the suspect, a statement of each specific
offence of which the
named suspect is charged and a short description of the particulars of the
offence. It shall be accompanied
by a Prosecutor’s case summary briefly
setting out the allegations he proposes to prove in making his
case.”[5]

9. Furthermore, by a process of logical deduction from existing authorities
of a persuasive nature, the Chamber proceeded to infer
from the evolving
jurisprudence of ICTY and ICTR, thirteen specific principles governing the
framing of
indictments,[6] and
reasoned that:

“Based generally on the evolving jurisprudence of sister international
tribunals, and having particular regard to the object
and purpose of Rule 47(C)
of the Special Court Rules of Procedure and Evidence which, in its plain and
ordinary meaning
, does not require an unduly burdensome or exacting degree
of specificity in pleading an indictment, but is logically consistent with
the
foregoing propositions of law, the Chamber considers it necessary to state that
in framing an indictment, the degree of specificity
required must necessarily
depend upon such variables as (i) the nature of the allegations, (ii) the nature
of the specific crimes
charged, (iii) the scale or magnitude on which the acts
or events allegedly took place, (iv) the circumstances under which the crimes
were allegedly committed, (v) the duration of time over which the said acts or
events constituting the crimes occurred, (vi) the
time span between the
occurrence of the events and the filing of the indictment, (vii) the totality of
the circumstances surrounding
the commission of the alleged
crimes.”[7]

10. In adapting those principles to the unique and peculiar features of the
Court, as a war crimes tribunal, the Chamber had this
to say:

“In this regard, it must be emphasized that where the allegations
relate to ordinary or conventional crimes within the setting
of domestic or
national criminality, the degree of specificity required for pleading the
indictment may be much greater than it would
be where the allegations relate to
unconventional or extraordinary crimes for example, mass killings, mass rapes
and wanton and widespread
destruction of property (in the context of crimes
against humanity) and grave violations of international humanitarian law within
the setting of international
criminality.”[8]


11. Evidently, the foregoing principles constitute the foundational elements
of our evolving jurisprudence on the subject of the régime
of rules
governing the framing of indictments charging crimes falling within the
jurisdiction of the Special Court for Sierra Leone.
It is of interest to note
that the principles as developed in the seminal Decision of the Court were
applied in two subsequent Decisions
of this Chamber, to wit, The Prosecutor
against Santigie Borbor
Kanu,[9]
and The
Prosecutor against Allieu
Kondewa[10].
In
Kanu, the Chamber reiterated the specificity doctrine as to the framing
of indictments in exercise of the Special Court’s jurisdiction
as not
being unduly exacting and burdensome, as to amount to a requirement to adduce
evidence in an accusatory document.

12. From the key perspective of the imperative of specificity in framing
indictments the thrust of the distinction sought to be made
by the Trial Chamber
in Sesay and the subsequent Decisions referred to here is that
specificity in cases of extraordinary crimes that occur within the setting of
international criminality
is not an absolute concept. It is a quality of
necessarily variable content depending upon the peculiar facts and
circumstances,
as alleged, and in so far as the context for the pleading of the
factual allegations of such extraordinary crimes admit. This distinction
as to
the régime of rules governing the framing of indictments has not hitherto
been sufficiently or clearly articulated by
the authorities on the subject.


13. Instructively, the foregoing principles were adapted, modified and, as it
were, tailored to the needs of the Special Court for
two key reasons. First, to
differentiate between the rules governing the framing of indictments in the
context of domestic or national
criminality and the régime of rules
designed to govern the framing of indictments in the sphere of international
criminality.
Second, to reflect the unique specificities and peculiarities of
the Special Court in the fulfilment of its mandate.


14. Guided by the above restatement of the law, and having regard
specifically to the proposition enunciated in Sesay that the degree of
specificity required in framing an indictment must necessarily depend upon the
variables articulated at paragraph
8 of that Decision, it follows, as the
Chamber stated in Kanu, that it would not be realistic to expect the
offences charged in an indictment, in the sphere of international criminality
whether
in its original or consolidated form, to be
pleaded with “pin-point
particularity”.[11]


15. Contrastingly and significantly, the pith of the First Accused’s
complaint here is not that the crimes charged in the Consolidated
Indictment have not been pleaded with “pin-point particularity” but
that the said Indictment is, as it were, overloaded
with particulars and details
in relation to the First Accused that were not embodied in the
Original Indictment and in respect of which, inferentially, he had
not been, in the language of Article 17(4)(a) of the Court’s Statute,
“informed promptly and in detail”, a
conjunctive concept (I must add). In this context, therefore, one critical
question is whether exceeding the degree of particularity
required by law,
albeit later, is, ipso facto, prejudicial to the Accused and impacts
adversely on his right to a fair trial even where such specificity does not
result in the
charging of new offences. And so, the issue for ultimate
resolution here is whether the Chamber is foreclosed from examining whether
the
discovered new material expanded factual allegations as to geographical
locations and time frames within existing counts are
consistent with the
doctrine of fundamental fairness and the overall interests of justice thereby
disentitling the First Accused
from some appropriate remedy in law, attaching
normative primacy to Article 17(4)(a) of the Statute which mandates that every
person
accused of crime be informed “promptly and in
detail”
of the charges against him/her.

IV. Issue of Re-Arraignment


16. It is in this regard, that I perceive some legal nexus between the issue
of the discovery of the new material expanded factual
allegations found in the
Consolidated Indictment herein and the issue of the legal
necessity, if any, for a re-arraignment.


17. As to the issue of arraignment on a consolidated indictment
authorised pursuant to a joinder decision, there is no specific governing rule
of procedure directly on the point in international
criminal tribunals. The
only analogous situation is that of arraignment on an amended
indictment.
On this latter aspect, the prevailing position in ICTY, ICTR
and the Special Court is that where the amended indictment
incorporates new charges and the accused has already
appeared before a Trial Chamber consistent with the procedure for initial
appearance, a further appearance
shall be held as soon as practicable to afford
the accused the opportunity to plead to the new
charges.[12]


18. It is my considered view that there is a clear legal distinction between
a consolidated indictment and an amended indictment,
though, logically there may be some overlapping of the concept of
consolidation
and the concept of amendment in the context
of an indictment, and justifiably so, given the dynamics of prosecutorial
strategies and the investigatory process.
In effect, they may be mutually
inclusive depending on the circumstances, but not necessarily mutually
exclusive. This reasoning
is partly based on an appreciation of the etymology
of each word. According to The Oxford Dictionary of Word Histories
‘consolidate’ means to “combine into a single whole”.
It derives from the latin word ‘consolidare’ meaning
“to make firm
together”[13]
The word ‘amend’ which comes from the French
emend’ however means to improve or make
corrections.[14] In
Black’s Law Dictionary, ‘consolidate’ means
“to combine or unify into one mass or
body”.[15] The
word ‘amend’ means to “correct or rectify”.
Guided by the foregoing definitions, I am fortified in my analysis that a
consolidated indictment is not necessarily, without more, an
amended indictment by reason of its consolidated nature or being
the product of the merger of, at least, two separate original indictments.

Legally, a Consolidated Indictment which is amended,
with leave of the Court or not, becomes an Amended Consolidated
Indictment.
Given the validity of my analysis, it would follow that
there is a lacuna in our régime of rules as to the requirement of
re-arraignment on a consolidated indictment simpliciter as
distinct from re-arraignment on an amended indictment.


19. The law is that where the Rules of Procedure and Evidence applicable in
the Special Court “do not, or adequately provide
for a specific
situation”, the Court “may be guided, as appropriate, by the
Criminal Procedure Act, 1965 of Sierra
Leone”[16] In
effect, the Court’s Statute provides for some jurisprudential resource to
which recourse may be had whenever there is a
lacuna in our Rules. It is
to the Sierra Leone legal system, specifically the Criminal Procedure Act,
1965.
The only guidance that can be derived from the aforesaid Sierra Leone
statute though not directly on the point but on a kindred and
relevant
procedural issue, is as to the effect of a plea of “not guilty”.
It is that where an accused person has pleaded “not guilty” to
a charge or charges in an indictment, he shall, “without
further form, be
deemed to have put himself upon his trial, and after such a plea, it shall not
be open to the accused, except with
leave of the Court, to object that he is not
properly upon his trial by reason of some defect, omission or irregularity
relating
to the depositions, or preliminary investigation, or any other matter
arising out of the preliminary
investigation.”[17]
Adopting this approach it would seem, therefore, that ordinarily the
First Accused is, at this stage of the proceedings, estopped
from objecting that
he is not properly upon his trial by reason of any defect in the
Consolidated Indictment, having pleaded on the
15th, 17th and
21st of March 2003 “not guilty” to each of
the eight counts charged in the Original Indictment, all of which
said counts are subsumed and replicated in the Consolidated
Indictment with no incorporation of new counts or offences. But should the
estoppel be applied to bar the recovery by the First
Accused of some appropriate
remedy considering the material nature of the expanded factual allegations and
having been granted leave
of the Court to object? I now address this issue.


20. My first observation on this issue is that the First Accused is not, by
way of a procedural due process right, entitled to a re-arraignment
on the
Consolidated Indictment by reason simply of its being
consolidated. What I understand the Defence to be saying is that the
Consolidated Indictment has confronted the First Accused with
a considerably extended indictment period of an additional 20 months,
until December 1999 and additional geographic locations
.” (my
emphasis)[18]
Also, the Defence complaint is not that the Consolidated Indictment
confronts the First Accused with new offences or crimes.
But does this
first observation dispose of the issue in the face of the findings that the
Consolidated Indictment, though not a New
Indictment, per se, does incorporate new material factual allegations of
an expanded nature within existing counts? I think not. In the circumstances,
as I noted earlier, there is nothing which precludes the tribunal from examining
whether such material additions and elaborations
are consistent with the
doctrine of fundamental fairness and the overall interests of justice according
primacy to Article 17(4)(a)
of the Court’s Statute entitling the First
Accused to some appropriate remedy.


21. My second observation is that what we are confronted with here, as a
Consolidated Indictment, is an accusatory instrument whose
complexion and character has been transformed in some material respects (though
not
out of recognition) during the process of consolidation from the complexion
and character of the separate, individual, Original Indictment to
that of an Amended Indictment incorporating new and expanded
factual allegations within existing counts for which there exists no Order of
this Court
authorising incorporation of the same, but falling short of a
New Indictment (which phraseology I apply only and
restrictively to an accusatory instrument charging new offences or new crimes
using the terms “offences”,
“crimes” and
“charges” synonymously in this
context).
[19]
It goes against both legal orthodoxy and the preponderant weight of the
jurisprudence, national and international, to characterise
the Consolidated
Indictment as new.


22. Based on these two observations, I opine from all the circumstances of
the case and according primacy to Article 17(4)(a) of the
Court’s Statute,
that the doctrine of fundamental fairness and the overall interests of justice
demand granting the First Accused
some remedy in respect of the objectionable
portions of the Consolidated Indictment by requiring the
Prosecution to elect either to expunge them completely from the aforesaid
Consolidated Indictment or seek an amendment in respect
thereof.


V. Issue of Double Jeopardy


23. I need not dwell on the issue of double jeopardy raised by the First
Accused since it does not arise for determination based on
my finding that the
Consolidated Indictment is not a New Indictment and,
that it consolidated and superseded the Original individual
separate indictments including that of the First Accused thus, as it were,
extinguishing and relegating them into a state
of legal oblivion. There is only
one Indictment legally in existence at this point in time. It is the
Consolidated Indictment.


VI. Conclusion


24. In conclusion, I concur in the Conclusion and the Order as set out in the
majority Decision.


Done in Freetown, Sierra Leone, this 29th day of
November 2004



Hon. Judge Bankole Thompson



[Seal of the Special Court for Sierra Leone]



[1] NG/CMS/LO/045/04
– Service of Consolidated Indictment, 9 November,
2004.
[2] See
Prosecutor against Sam Hinga Norman, Moinina Fofana, Allieu Kondewa,
Decision and Order on Prosecution Motion for Joinder, para
35(3).
[3] Motion
para 8.
[4] The
Prosecutor against Issa Hassan Sesay
(Case No. SCSL-2003-05-PT)
13th day of October, 2003. para
5.
[5] Id. para
5.
[6] Id., See
especially paragraph 7 where the said propositions are set out in
detail.
[7] Id., para
8.
[8] Id., para
9.
[9] Decision and
Order on Defence Preliminary Motion for Defects in the Form of the Indictment,
(Case No. SCSL-2003-13-PT) 19th day of November,
2003.
[10]
Decision and Order on Defence Preliminary Motion for Defects in the Form of the
Indictment (Case No. SCSL-2003-12-PT) 27th day of
November,
2003.
[11] Id.,
para 21.
[12] See
Rule 50 of ICTY Rules as amended on 28 July 2004; see also Rule 50 of ICTR Rules
and Rule 50 of SCSL Rules as amended on 14
March
2004.
[13] Glynnis
Chantrell (ed.) Oxford: Oxford University Press, 2002,
p115.
[14] Id.,
pp20 and 175.
[15]
Bryan A, Garner (ed.), St. Paul: West Publishing Inc. 1990 at
p303.
[16] Article
14(2) of the Statute of the Special Court for Sierra
Leone.
[17]
Sections 133(1) and
(2)
[18] Motion,
para 8.
[19] In the
context of legal requirements for indictments in both municipal law systems, and
for the purposes of international criminal
trials, the “nature” of
the charge is a full description of the legal characterization of the charge,
that is the specific
provision of the Statute alleged to have been violated.
For this proposition, see an instructive article by Michael J. Keegan and
Daryl
A. Mundis reflecting the complexities of the legal requirements of indictments
in the international criminal law sphere, entitled
“Legal Requirements for
Indictments” in Essays on ICTY Procedure and Evidence in Honour of
Gabrielle Kirk Macdonald
edited by Richard May et al., published by Kluwer
International Law, The Hague 2001 page 125 note 1. I am indeed grateful to
Judge
Boutet for making this article available to me.