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 Second (

Law report citations
Media neutral citation
[2004] SCSL 228


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
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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:
13th Day of December, 2004.
PROSECUTOR
Against
Sam Hinga Norman
Moinina Fofana
Allieu
Kondewa

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


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 THIRD ACCUSED, ALLIEU KONDEWA FOR SERVICE OF
CONSOLIDATED INDICTMENT AND A
FURTHER APPEARANCE


Office of the Prosecutor:

Defence Counsel for Sam Hinga
Norman
:
Luc Côté
James Johnson

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


Defence Counsel for Moinina
Fofana
:


Michiel Pestman
Arrow Bockarie
Victor Koppe


Defence Counsel for Allieu Kondewa
Charles
Margai
Yada Williams
Ansu Lansana


I, HON. JUDGE BENJAMIN MUTANGA ITOE, Judge of the Trial Chamber of
the Special Court for Sierra Leone, Presiding Judge of the said Chamber;


MINDFUL of the Motion for Service of Consolidated Indictment and a
Further Appearance, filed on the 4th of November, 2004,
for the 3rd Accused, Allieu Kondewa
(“Applicant”);
MINDFUL of the Prosecution Response to
Motion for Service of Consolidated Indictment and a Further Appearance, filed on
the 10th of November, 2004;


MINDFUL of the Trial Chamber’s Decision and Order on Prosecution
Motions for Joinder, including Separate Opinion of Hon. Judge Benjamin
Mutanga Itoe, dated the 27th of January, 2004;


MINDFUL of the Trial Chamber’s Decision on the First
Accused’s Motion for Service and Arraignment on the Consolidated
Indictment,
including Separate Concurring Opinion of Hon. Judge Bankole Thompson
and Dissenting Opinion of Hon. Judge Benjamin Mutanga Itoe,
dated the
29th of November, 2004;


MINDFUL of my Separate Opinion dated the 27th
day of January, 2004 on the “NATURE AND LEGAL CONSEQUENCES OF THE RULING
IN FAVOUR OF THE FILING OF CONSOLIDATED INDICTMENTS”
which is annexed to
the Chamber’s Decision also dated the 27th day of
January, 2004, granting the Prosecution’s Motion for Joinder;


CONSIDERING the provisions of the Statute of the Special Court
(“The Statute”) and particularly those of Articles 9(1), 17(2),
17(4)(a),
17(4)(b) and 17(4)(d);


CONSIDERING the provisions of Rules 26(bis), 40(bis)(J), 47, 48, 50,
51, 52, 61 and 82 of the Rules of Procedure and Evidence of the Special Court
(“The Rules”);


MINDFUL of the International Convention on Civil and Political Rights,
particularly the provisions of its Articles 9(2) and 14(3)(a);


ISSUE THE FOLLOWING DISSENTING OPINION ON THE CHAMBER MAJORITY DECISION
SUPPORTED BY HON. JUDGE BANKOLE THOMPSON’S SEPARATE
BUT CONCURRING
OPINION, RELATING TO THE MOTION FILED BY THE THIRD ACCUSED, ALLIEU KONDEWA, FOR
SERVICE AND ARRAIGNMENT ON THE CONSOLIDATED
INDICTMENT AND A SECOND
APPEARANCE.


(A) HISTORICAL BACKGROUND


  1. The
    3rd Accused, Allieu Kondewa, was arrested on the
    29th of May, 2003, on an 8 Count Individual Indictment,
    dated the 26th of June, 2003, approved by His Lordship,
    Hon. Judge Pierre Boutet, with virtually the same offences as those in the
    indictments of
    both the 1st and the
    2nd Accused. He made his initial appearance before Hon.
    Judge Pierre Boutet in accordance with the provisions of Rules 61(ii) and
    61(iii)
    of the Rules. He pleaded ‘Not Guilty’ to all the counts of
    the Indictment. The number of this Indictment is SCSL-2003-12.
  2. On
    the 7th of November, 2003, the
    3rd Accused, filed a motion alleging defects in the
    form of the
    Indictment.[1] The Trial
    Chamber delivered its Decision on the 27th of November,
    2003, on the said motion and ordered the Prosecution to elect either to delete
    in every count and wherever they appear
    in the Indictment the phrases “but
    not limited to those events”, and “including but not limited
    to”, or provide
    in a Bill of Particulars specific additional events
    alleged against the Accused in each count. Additionally, the Trial Chamber
    ordered
    that the Amended Indictment or Bill of Particulars be filed within 7
    days of the date of service of its decision and be served on
    the Accused
    according to Rule 52 of the
    Rules.[2]
  3. The
    introduction to the Bill of Particulars, filed on the
    5th of December,
    2003,[3] states that the
    Prosecution stated that the Bill of Particulars contains “additional
    events in support of the Counts charged
    in the [Initial] Indictment.” The
    Prosecution submitted that these additional events, were “an expansion of
    previously
    mentioned events referred to at Paragraphs 20-24 of the
    Indictment” and included districts and towns within the territory of
    Sierra Leone, and one reference to “road ambushes” at various
    locations.
  4. For
    the purposes of this Dissenting Opinion, I adopt mutatis mutandis my
    review of the historical background in my Dissenting Opinion on the Motion Filed
    by the First Accused, Samuel Hinga Norman for
    Service and Arraignment on the
    Second Indictment, set forth in pages 3 to 6 of the same Opinion. Furthermore,
    I adopt the outline
    of the submissions of the parties and the applicable law as
    set forth in the Decision of the Majority on this current Motion, at
    pages 2 to
    8 of its Decision.
  5. For
    purposes of this Dissenting Opinion, I am adopting in its entirety, the contents
    of my Separate Opinion dated the 27th of January, 2004,
    appended to the Chamber Joinder Decision also dated the
    27th of January 2004.

(B) SERVICE OF THE CONSOLIDATED
INDICTMENT.

INTERPRETATION AND APPLICATION OF RULES 52(A) AND 52(B) OF
THE RULES

  1. On
    arguments relating to this issue that are raised by the Applicant, it is
    contended that the provisions of Rule 52 of the Rules
    have been violated in that
    he has not been personally served with the Consolidated Indictment as ordered by
    the Chamber in its Joinder
    Decision of the 27th of
    January, 2004. The Chamber in this regard, it would be recalled, ordered that
    “The said Indictment be served on each of
    the Accused in accordance with
    the provisions of Rule 52 of the Rules.” It is on record that service of
    the said Indictment
    was, contrary to that Order, effected instead on the
    Applicant’s Counsel.
  2. Rule
    52 of Rules provides as follows:

Rule 52(A):

Service of the Indictment shall be effected personally
on the accused at the time the accused is taken into the custody
of the Special Court or as soon as possible thereafter.

Rule 52(A):

Personal service of an indictment on the accused is
effected by giving the accused a copy of the indictment
approved
in accordance with Rule 47.

  1. The
    question to be answered at this stage is whether the provisions of Rule 52 of
    the Rules and the Order of the Court to this effect
    were or have been complied
    with.
  2. The
    Prosecution in answer to this question, clearly admits that service on Counsel
    instead of on the Accused personally “was
    an administrative anomaly”
    which, according to them, “has caused no identifiable prejudice to
    him” because, again
    according to the Prosecution, the Third Accused has
    demonstrated knowledge of the charges contained in the Consolidated Indictment,
    as he has defended himself against these charges in the first trial session and
    at the beginning of the second trial session.
  3. These
    arguments, to my mind, are neither convincing, acceptable, nor are they
    sustainable, particularly in this case, and upholding
    them would have the effect
    of empowering one party to the proceedings, in this case, the Prosecution, to
    flout the law to the detriment
    of the interests of the other party, the Accused,
    and his statutory right to a fair and public trial as well as to be promptly
    informed
    of the charges against him as guaranteed by the provisions of Articles
    17(2) and 17(4)(a) of the Statute, by Rule 26(bis) of the
    Rules, by Article 9(2)
    of the ICCPR, and more pertinently still, by the necessary intendment,
    interpretation, and the combined effects
    of the application of both Rules 52(A)
    and 52(B) of the Rules.
  4. In
    resolving issues of this nature, it is my opinion that a fidelity, not only to
    strictly interpreting but also, strictly applying
    the provisions of the Statute
    or of the Rule that is alleged to have been violated, is of primary importance.
    Both arms of Rule 52
    of the Rules are not only clear but mandatory. They should
    therefore be interpreted and applied as mandatorily as they are enacted.
  5. It
    is my considered opinion, and I do so hold, that what law and justice is all
    about, for us Judges, is to uphold and to prevent
    a breach of the law and to
    provide a remedy for such a breach if any, and in so doing, to boldly tick right
    what is right, and when
    it comes to it, to equally and boldly tick wrong, what
    is really wrong and in the process, to disabuse our minds of any influence
    that
    could misdirect us to tick right, what is ostensibly wrong, or wrong, what is
    ostensibly right because it would indeed be unfortunate
    for justice and the
    due process if, by whatever enticing or justifying rhetoric, or by any means
    whatsoever, however ostensibly
    credible or plausible it may seem, we reverse
    this age-long legal norm and philosophy as this would amount to rocking the very
    foundation
    on which our Law and our Justice stand and have, indeed, held on to,
    and so firmly stood the test of times.
  6. The questions to be asked and to be answered directly without any justifying
    rhetoric are indeed twofold; firstly, whether the said
    Consolidated Indictment
    was served in accordance with the provisions of Rule 52 of the Rules and
    secondly, whether in execution of
    the Order of the Court, the said Indictment
    was served in accordance with the prescriptions of the said Order. The answer to
    one
    which holds good for the other, is in the negative.
  7. It
    must in this regard, be conceded that “an administrative anomaly” as
    the Prosecution has rightly described the failure
    to effect personal service on
    the Applicant in accordance with the provisions of Rule 52(A) and 52(B) of the
    Rules, was an administrative
    muddle which should be put right since it is, in
    itself, a violation of the law for which there must be no other judicial remedy
    than declaring it illegal, annulling it accordingly, and ordering that service
    of the Consolidated Indictment be effected in conformity
    with the provisions of
    Rules 50(A) and 50(B) of the Rules rather than resorting to advancing
    interpretations or arguments of convenience which were clearly deplored in the
    International Criminal
    Tribunal For The Former Yugoslavia (ICTY) case of THE
    PROSECUTOR V DELALIC
    , all in order to justify and redeem a
    manifest violation of the mandatory provisions of Laws or Rules that leave no
    room for the exercise of a judicial
    discretion and which, in their context, are
    as clear and as unambiguous as these twin Rules in question
    .
  8. Our
    Chamber has always taken these principles and factors into consideration and has
    opted for the Literal Rule in the sphere of Statutory
    Interpretation in
    interpreting texts by giving them their ordinary and everyday meaning and
    applying them exactly as they are written.
  9. For
    instance, in The Chamber’s Decision of the 6th of
    May, 2004, on The Applicant’s Motion Against Denial By The Acting
    Principal Defender To Enter A Legal Services Contract
    For The Assignment Of
    Counsel, Case No. SCSL-04-16-PT, commonly known as Brima - Principal Defender
    Case, we refused to accept importing
    extraneous interpretations to statutory
    provisions or regulations which are as clear, I would say, as those of Rule 52
    of the Rules,
    and took the view that ‘holding otherwise would be
    attributing to a very clear regulatory instrument, a strange and extraneous
    interpretation and meaning
    which was never envisaged’
    . The Chamber
    in so holding, relied on the dictum of LORD HERSCHEL in the case of THE BANK OF
    ENGLAND V VAGLIANO BROTHERS [1891]
    AC 107 at page 144 where His Lordship had
    this to say:

“I think the proper cause is in the first
instance, to examine the language of the Statute and to ask what its natural
meaning
is.”

  1. It
    would certainly amount to attributing to a very clear regulatory instrument, a
    strange and extraneous interpretation, meaning,
    and application which was never
    intended by the Legislator, the Regulatory Body or Authority that enacted it,
    if it were ever decided
    that serving a judicial process on the Accused’s
    Counsel is good and justifiable when it statutorily and mandatorily should
    be
    served on the Accused personally.
  2. In
    our Decision on the Kondewa Motion To Compel The Production of Exculpatory
    Witness Statements, Witness Summaries And Materials
    Pursuant To Rule 68 of the
    8th of July, 2004, a decision rendered soon after the
    BRIMA PRINCIPAL DEFENDER DECISION, This Chamber had this to say on an issue that
    involved the interpretation to be given to the provisions of Rule 68 of the
    Rules, and I quote:

“In addressing this aspect, the Chamber
wishes to observe, by way of first principles, that no rule, however
formulated, should be applied in a way that contradicts its
purpose
. A kindred notion here is that a statute or rule must not be
interpreted so as to produce an absurdity. In effect, it is rudimentary
law
that a statute or rule must be interpreted in the light of its
purpose
. Another basic canon of statutory interpretation is that
a statute is to be interpreted in accordance with the legislative
intent
.” Restating the law on statutory interpretation,
the Trial Chamber of the ICTY in the case of THE PROSECUTOR V. DELALIC had this
to say:

“...The rationale is that the law maker should be taken to mean
what is plainly expressed
. The underlying principle which is also
consistent with common sense is that the meaning and intention of a statutory
provision shall be discerned from the plain and unambiguous expression
used therein
rather than from any notions which may be entertained
as
just and expedient...”

  1. The
    absurdity in issue in this case, and what ‘may be entertained as just and
    expedient’ as stated in the foregoing dicta
    will be to hold that service
    on his Counsel should substitute personal service on the Accused himself as
    mandated by Rule 52.
  1. Certainly,
    seeking like the Prosecution is, to justify, a flagrant violation of a mandatory
    provision by submitting that the breach
    has caused no “identifiable
    prejudice” to the Applicant, is a cover up argument of convenience which,
    in the context
    of the dictum in the DELALIC CASE, is proferred only to be
    accepted just for the purposes of convenience and expediency, and not
    because it
    is, nor is it convincing to argue, that it is in conformity with the law.
  2. The
    issue at stake here, to my mind, is not only one of interpretation but also and
    equally, one of the application of the provisions
    of the Regulatory Instrument
    in issue. In this regard, I am of the opinion that to give effect to the
    necessary intendment of the
    Regulatory Body that enacted the provisions of Rule
    52 as they appear in the Regulatory Instrument, they must not only be
    strictly interpreted but also and equally, strictly applied.
  3. In
    this regard, LORD DENNING had this to say in the case of ROYAL COLLEGE OF
    NURSING VS DEPARTMENT OF HEALTH AND SOCIAL SECURITY
    [1980] AC
    800:

“...Emotions run so high on both sides that I feel we as
Judges must go by the very words of the Statute without stretching
in one way or
the other and writing nothing in which is not there...”

LORD ESHER M. R., in the case of R. V JUDGE OF THE CITY OF LONDON COURT
[1892] 1 QB 273 9 CA stated that “if the words of the Act are clear,
you must follow them even though they lead to a manifest
absurdity
...

  1. In
    the case of DUPORT STEEL VS SIRS [1980] 1AER 529 LORD DIPLOCK said
    that:

“...where the meaning of the statutory words is plain
and unambiguous, it is not for the Judges to invent fancied ambiguities
as an
excuse for failing to give effect to its plain meaning because they themselves
consider that the consequences of doing so would
be inexpedient or even unjust
or immoral...”

and JERVIS CJ in the case of ABLEY VS DALE (1851) N.S. pt. 2, ol. 20,
233,235, had this to say:

...if the precise words used are plain and unambiguous, in our
judgment we are bound to construe them in their ordinary sense, even though
it
does lead to an absurdity or manifest injustice
...

  1. Still
    on this trend of reasoning, BLANEY J in the case of BYRNE V IRELAND [1972] IR
    241, reproduced the treatise in Maxwell on the
    Interpretation of Statutes
    (12th Ed.) 1969 at p.29 and I
    quote:

“Where by the use of clear and unequivocal language
capable of only one meaning, anything is enacted by the Legislature, it
must be
enforced however harsh or absurd or contrary to common sense the result may be.
The interpretation of a Statute is not to
be collected from any notions which
may be entertained by the Court as to what is just and expedient; words are not
to be construed,
contrary to their meaning, as embracing or excluding cases
merely because no good reason appears why they should not be embraced
or
excluded. The duty of the Court is to expound the law as it stands...”

I would say here, that our duty as Judges of this Chamber, is to expound the
law and in addition, to apply it as it is or as it is
written.

  1. In
    light of the above, it is my considered opinion, that Rule 52 of the Rules which
    mandatorily provides for the personal service
    on the Accused as soon as
    “the accused is taken into the custody of the Special Court”
    reiterates and gives effect to
    the statutory provisions of Article 17(4)(a) and
    17(4)(b) which require respectively that the Accused:

“ be
informed promptly and in detail in a language which he or she understands, of
the nature and cause of the charge against
him or her” and

“have adequate time and facilities for the preparation of his or her
defence and to communicate with Counsel of his or her
own choosing.”

  1. It
    would appear apparent therefore, as it is clear, that the Plenary of Judges of
    the Special Court for Sierra Leone, the Regulatory
    Authority of this Court, in
    conceiving, drafting, adopting and promulgating the two arms of Rule 52 as they
    are worded, was conscious
    of and wanted to give effect to the preponderance of
    the personal involvement of the Accused in the process as well as of the
    statutorily
    recognised predominance of his personal implication and that of his
    choices in that process and particularity in the conduct of his
    defence as
    provided for in Article 17 of the Statute.
  2. It can therefore be deduced, that what the Plenary meant and intended in
    achieving, by giving the provisions of Rules 52(A) and 52(B)
    the insistent and
    mandatory coloration of a personal service of the Indictment on the Accused,
    which should in fact be the case,
    is that a service of the Consolidated
    Indictment which is the subject matter of this contention, should personally be
    effected on
    the Accused himself, and not on any other person, albeit, his
    Counsel, and that proceeding otherwise or doing it the way it was done
    in this
    case, violates this clearly written Rule.
  3. Besides,
    and in addition, the directive that the service be effected personally on the
    Applicant was an Order of the Court. Its execution
    therefore, in the manner that
    was contrary to what the Court had directed in that Order, is, in itself, a
    breach of the law which
    the Prosecution has implicitly acknowledged but is, at
    the same time, seeking to circumvent through convenient interpretational,
    procedural or administrative mechanisms and arguments which, to my mind, neither
    justify nor do they redeem this fundamental breach
    of the law.

(C) DIFFERENCES BETWEEN THE 3 INITIAL INDICTMENTS
AND THE CONSOLIDATED INDICTMENT AND THE ISSUE OF A REARRAIGNMENT

  1. The
    issue that has given rise to the controversy here relates to the differences in
    the contents of the 3 Initial Individual Indictments
    and the Consolidated
    Indictment and whether or not, depending on the nature of the differences or
    changes reflected or appearing
    in the Consolidated Indictment, rearraignment on
    this new Indictment against the 3 accused, is an imperative.
  2. I
    would like to observe here preliminarily, that even though the Rules, in their
    Rule 50, contain provisions for amending an Indictment,
    there is no Rule that
    institutes or regulates the phenomenon of what we are now referring to as a
    Consolidated Indictment. The Rules
    provide for an Indictment under Rule 47,
    which should be served personally on the Accused in accordance with the
    provisions of Rule
    52 of the Rules.
  3. If the Prosecution, for any legal reason such as provided for in Rule 48 and
    after the initial appearance of the Accused, seeks to
    modify the already
    approved Indictment, it is my opinion that it has the option of either applying
    to the Trial Chamber, under the
    provisions of Rule 50(A) of the Rules, or filing
    a New Indictment which should necessarily involve going through the Rule 47
    procedures,
    particularly if it turns out that the amendments sought by the
    Prosecution are substantial and in fact, contain new particulars and
    new
    charges. Should the Prosecution opt to apply for an amendment which contains new
    charges, the provisions of Rule 50(B)(i) of
    the Rules should ordinarily apply
    without a further recourse to the Rule 47 procedures.
  4. It
    is necessary to recall here again that when the Prosecution presented its
    Joinder Motion under Rule 48(B), it did not annex the
    Consolidated Indictment to
    it so as to enable the Trial Chamber to appreciate the nature and the extent of
    its contents. Notwithstanding
    this flaw which I highlighted as significant and
    substantial in my Separate Opinion dated the 27th of
    January, 2004, The Trial Chamber, without the benefit of having seen or verified
    the proposed Consolidated Indictment before ruling
    on this Motion, granted it
    and ordered that a Consolidated Indictment be filed merely on the assurances
    furnished by the Prosecution
    and which they did not live up to. In these
    circumstances, I was, and am still of the opinion that this Consolidated
    Indictment should
    have been subjected to the Rule 47 procedures since I consider
    it to be a New Indictment.
  5. The
    Majority Decision of the Court overruled my point of view on this particular
    issue and the Prosecution thereafter proceeded to
    file directly in the Registry,
    the Consolidated Indictment after the Order granting the Joinder Motion. It is
    on this Consolidated
    Indictment that the Trial of the Applicant, First Accused,
    Samuel Hinga Norman, Moinina Fofana, the 2nd Accused,
    and Allieu Kondewa, the 3rd Accused, is now
    proceeding.
  6. In
    the course of examining the instant Motion for Service of Consolidated
    Indictment and a Further Appearance, filed by the 3rd
    Accused, the Trial Chamber, after putting the 3 Initial Individual Indictments
    and the New Consolidated Indictment under scrutiny,
    has come to realise that
    this Indictment has made the following significant amendments and additions to
    the Individual Indictment
    of the 3rd Accused, Allieu
    Kondewa (see underlined portions):

a). Paragraph 25(a) (CI) –
and at or near the towns of Lalahun, Kamboma, Konia, Talama, Panguma and
Sembehun;


b.) Paragraph 25(b) (CI) – and Blama;


c.) Paragraph 25(d) (CI) – in locations in Bo District including
the District Headquarters town of Bo, Kebi Town, Kpeyama, Fengehun and
Mongere;


d.) Paragraph 25(e) (CI) – in Moyamba District including Sembehun,
Taiama, Bylagao, Ribbi and Gbangbatoke;


e.) Paragraph 25(f) (CI) – in Bonthe District, including Talia (Base
Zero), Mobayeh, Makose and Bonthe Town;


f.) Paragraph 25(g) (CI) – in road ambushes at Gumahun, Gerihun,
Jembeh and the Bo-Matotoka Highway;


g.) Paragraph 26(a) (CI) – Blama, Kamboma;


h.) Paragraph 27(a) (CI) – Kenema District, the towns of Kenema,
Tongo Field and surrounding areas.


  1. An
    analysis of the contents of the Consolidated Indictment and those of the Initial
    Indictment of the Applicant, the 3rd Accused, reveals
    that factual allegations have been added to the Counts of the Indictment that
    are material. It is noted, however,
    that the Bill of Particulars, in support of
    this Indictment was filed on the 5th of December, 2003,
    provides additional events in support of the Counts charged in the Initial
    Indictment, and that the Initial Indictment
    of the 3rd
    Accused together with the Bill of Particulars contains the exact charges as the
    Consolidated Indictment.
  2. In
    my Separate Opinion dated the 27th of January, 2004, in
    expressing my concerns which today are very and even more legitimate, for our
    failure to subject the Consolidated
    Indictment to the Rule 47 judicial scrutiny
    procedures, I had this to say:

“During our examination of and
deliberation on the final draft on the 23rd of January,
2004, I raised certain issues with the Learned and Honourable Brothers and
Colleagues, which I thought should be set
out as the fourth, in addition to the
three Orders we made at the tail end of our unanimous Judgement just after the
mention of
‘FURTHER CONSEQUENTIAL ORDERS.’ It was to read as
follows:

‘That the said Indictment be submitted to a designated Judge for
verification and approval in accordance with the provisions
of Rule 47 of the
Rules within 10 days of the delivery of this Decision.’

I further added that the Accused Persons had to be called upon to plead
afresh to the Consolidated Indictments. What ran through my
reasoning in making
this proposal was that the Consolidated Indictment we are ordering the
Prosecution to prepare was in fact, to
all intents and purposes, a new
indictment which needed to be subjected to the procedures outlined in Rule 47
and 61 of the Rules
of the Special Court and this, notwithstanding the fact that
all of the Accused persons already earlier made their initial appearances
and
had already been arraigned individually on the individual indictments,
which might not necessarily contain the same particulars as those in the
consolidated indictment that are yet to be served on the
Accused persons for
subsequent procedures and proceedings before the Trial Chamber
.

  1. In
    addition, I had this to say on Page 4, Paras 13-15 of my Separate
    Opinion:

“The other issue which I consider important in the
present context is the submission by the Defence Counsel for Mr. Samuel
Hinga
Norman, Mr Jenkins Johnston, who argued that the anticipated consolidated
indictment should have been exhibited as part of
the Motion and that a failure
by the Prosecution to do this in order to ensure judicial scrutiny amounted to
non-compliance with
a condition precedent for the granting or even the examining
of the application for joinder. Defence Counsel for Mr. Moinina Fofana,
Mr.
Bockarie, agreed with this submission by his colleague.”

On this submission, the Prosecution replied that the Rules do not provide
for this procedure and that the Defence contention must
not be considered as a
condition precedent for the filing or granting of the application for joinder.
Our finding on this argument
in the circumstances, is, and I quote:

"...the Chamber is of the opinion that, due to the need for expeditiousness
and flexibility in its processes and proceedings...recourse
to procedural
technicalities of this nature will unquestionably impede the Special Court in
the expeditious dispatch of its judicial
business...The Chamber, therefore, does
not think that it is necessary for the Prosecution to exhibit an anticipated
consolidated
indictment...to establish a basis for
joinder."[4]

I share these views expressed in our judgment but even though we have
unanimously upheld the argument of the Prosecution in this regard,
and although
we know that the consolidated indictment is still undisclosed, I think that we
should remain resolved in our determination
and quest to steadily build up some
jurisprudence from certain shortcomings or lacunae in our Rules, which case law
will enhance,
advance, and not necessarily prejudice a proper and equitable
application or interpretation of our Rules. This will in fact encourage
the
application of the ‘Best Practices Rule’ which is neither contrary
to nor inconsistent with the general principles
of international criminal law
and procedure.”

  1. I
    took this stand largely because I felt that the Consolidated Indictment that was
    to be filed, considered only on the basis that
    it was a merger of 3 Individual
    Indictments involving 3 Individual Accused Persons, who in fact, had already
    been arraigned individually,
    was New, and particularly in the context of
    apprehensions of uncertainty as to the expected content of the Consolidated
    Indictment
    which the Chamber neither had the privilege nor was it given the
    opportunity to examine before it was filed by the Prosecution.
  2. It
    is indeed my considered opinion, even putting aside the extensive and
    significant changes that the Prosecution has introduced in
    the Consolidated
    Indictment, that this Indictment, a product of a merger of 3 Indictments,
    coupled with its altered form, is New,
    and this, even if those additional
    particulars or charges, which we now know of, did not feature in it. This
    position is supported
    by the various dictionary meanings of the word New
    contained in Paragraph 23 of my Separate Opinion already referred to.
  3. If
    We as a Chamber in our Joinder Decision dated the 27th
    of January, 2004, ordered that the Consolidated Indictment be assigned a new
    case number and that the said Indictment be filed in
    the Registry within 10 days
    of the date of the delivery of our Decision, coupled with a further order for
    fresh service of the said
    Indictment under the provisions of Rule 52 of the
    Rules, it is in my opinion, and in a sense, a recognition by the Chamber of the
    novelty of this Indictment which I again say, merges and replaces the 3
    Individual Indictments that had earlier been filed and given
    3 different case
    numbers.
  4. In
    a situation such as this, the provisions of Article 17(2), 17(4)(a) and 17(4)(b)
    of the Statute including those of Rule 26 (bis)
    of the Rules which guarantee to
    an Accused, the right to a fair, public, and expeditious trial as well as the
    right to be promptly
    informed of the nature and cause of the charge against him
    or her, would, in my opinion, be violated if this trial proceeds without
    a
    fulfilment of the legal formality of a regular personal service of the
    Consolidated Indictment, on the Applicant.
  5. In
    addition, a rearraignment of the Accused on the entirety of that extensively
    amended Indictment is necessary because it has now
    unveiled itself and confirmed
    its real designation and characterisation as a New
    Indictment.

(D) WHY THEREFORE IS REARRAIGNMENT IN
THIS CASE NECESSARY?

  1. In
    the case of R V JOHAL AND RAM, [1972] CAR, 348, The Court of Appeal of England
    observed that the longer the interval there is between
    arraignment and an
    amendment, the more likely it is that injustice will be caused, and in every
    case in which an amendment is sought,
    it is essential to consider with great
    care whether the accused person will be prejudiced thereby.
  2. In
    this regard, I had this to say in my RULING ON THE MOTION FOR A STAY OF
    PROCEEDING IN THE FODAY SANKOH CASE, CASE
    NO.SCSL-03-02-PT

In taking this stand, I was and still
am guided by a reverence to the importance a plea occupies in a criminal trial
because it marks,
after the filing of the indictment, the actual commencement of
criminal proceedings which, in any event
, cannot get underway
without a plea having been entered
.”

See Page 5 line 14-17 of my Ruling dated the 27th
of July, 2003.

  1. In
    fact, BLACKSTONE’S CRIMINAL PRACTICE, OXFORD UNIVERSITY PRESS, 2003
    Edition, Page 1303 Paragraph D11.1 directs as follows:

“If
there is a joint indictment against several accused, normal practice is to
arraign them together. Separate pleas must be
taken from each of those named in
any joint Count”

  1. This
    longstanding and respected practice directive, should, in my opinion, be adopted
    and applied to this situation where the Trial
    Chamber did, under Rule 48(A) of
    the Rules, rightfully grant the joinder of the 3 persons who initially were
    individually indicted,
    but are today being jointly charged and tried. The
    necessity for a rearraignment here is dictated by the fact that even though they
    are charged jointly, they have to be tried as if they were, as provided for
    under Rule 82 of the Rules, being tried separately, so
    as to forestall a
    violation of their individual statutory rights spelt out in Article 17 of the
    Statute and particularly, their right
    to a fair trial.
  2. It
    is my opinion that rearraignment, as the 3rd Accused is
    soliciting in this case, is necessary since the Consolidated Indictment which I
    hold is New. Furthermore, since arraignment
    which involves reading the charges
    to the Accused and explaining them to him or her should need arise, so as to
    promptly acquaint
    him with the charge or charges against him or her before
    obtaining his or her plea is an important and vital triggering element in
    any
    criminal trial, it is further and also my opinion, and I do so hold, that a plea
    is an equally important component of the provisions
    of Article 17(4)(a) of the
    Statute, when considering and determining whether the provisions of this
    Article, have been respected
    or have been violated.
  3. It
    was stated in the Canadian Decision of the Ontario Court of Appeal in the case
    of H. M. THE QUEEN V JEFFREY MITCHELL, (1997), 121
    C.C.C. (3d) 139 (ONT. C.A.),
    that arraignment is intended to ensure that an accused person is aware of the
    exact charges when he
    or she elects and pleads and further that all parties to
    the proceedings have a common understanding of the charges which are to
    be the
    subject matter of the proceedings which follow.
  4. As
    a follow up and to give effect to this statutory provision, Rule 47(C) of the
    Rules provides as follows:

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.

  1. Furthermore,
    Rule 61 of the Rules provides as follows:

Upon his transfer to the
Special Court, the accused shall be brought before the
designated Judge as soon as practicable
and shall be formally charged. The
Designated Judge shall:

(ii) Read or have the indictment read to the accused in a language he speaks
and understands, and satisfy himself
that the accused
understands the indictment;

(iii) Call upon the accused to enter a plea of guilty or not guilty on each
count; should the accused fail to do so,
enter a plea of not guilty
on his behalf.

  1. Rule
    50 of the Rule provides as follows:

50(B)

If the amended indictment includes new charges and the accused has already
made his initial appearance in accordance with Rule 61.

50(B)(i)

A further appearance shall be held as soon as practicable to enable the
accused to enter a plea on the new charges.

  1. BLACK’S
    LAW DICTIONARY, 7TH ED. Page 81 defines an
    ‘AMENDMENT OF INDICTMENT’ as:

“The alternative of
changing terms of an indictment either literally or in effect after the grand
jury has made a decision on
it. The indictment usually cannot legally be amended
at trial in any way that would prejudice the defendant by having a trial on
matters that were not contained in that Indictment”.

  1. In
    the case of THE PROSECUTOR V KUPRESKIC, the Appeals Chamber of the ICTY held as
    follows:

“the question whether an indictment is pleaded with
sufficient particularity is dependent upon whether it sets out the material
facts of the Prosecution’s case with enough detail to inform the defendant
clearly of the charges against him so that he may
prepare his
defence.”

  1. I
    would add here that if this trial proceeds without a rearraignment and
    individual pleas taken on each count of the Consolidated
    Indictment and the
    Accused is convicted, this trial could, on appeal, be declared a nullity by Our
    Appellate Jurisdiction, The Appeals
    Chamber, which could, depending on the
    circumstances, quash the conviction, and enter either a verdict of acquittal, of
    discharge,
    or of a retrial.
  2. In
    these circumstances, I have no hesitation in concluding that the Prosecution in
    introducing a Consolidated Indictment, has indeed
    filed, with the leave of the
    Trial Chamber, a New Indictment. Under normal circumstances, it should have been
    subjected to the scrutiny
    of a Designated Judge under the provisions of Rule 47.
    In the alternative, the Prosecution has, in accordance with the provisions
    of
    Rule 50 of the Rules, and with the tacit leave of the Trial Chamber, amended
    the 3 Initial Individual Indictments of the 3 Accused
    persons and has merged
    them into this one Consolidated Indictment.
  3. In
    either case, a combined reading of the provisions of Articles 17(2) and 17(4)(a)
    of the Statute and of Rules 47(C),48(A), 50(A)
    and 50(B)(i), 52(A), 52(B),
    61(ii), 61(iii), and 82(A) of the Rules, clearly demonstrates and confirms the
    necessity for a rearraignment
    of the 3 Accused persons on the Consolidated
    Indictment which, notwithstanding views to the contrary expressed in the
    Majority Decision
    is, and indeed, has all the characteristics of what it takes
    to be a New Indictment.
  4. I would like to add that in law, a plea on an old Indictment is not, and should
    no longer be valid, nor does it hold good any longer,
    in respect of a New
    Indictment. It is therefore my opinion that the pleas recorded during all the
    initial appearances of the 3 Accused
    Persons, are not transferable for them to
    constitute a basis for proceeding on the new Indictment without going through
    the obligatory
    stage and formality of arraigning these same persons on the New
    Indictment or which they are now being, not only jointly indicted
    but also
    jointly tried.
  5. The
    International Criminal Tribunal for former Yugoslavia has held the view that
    where an indictment is amended or where a consolidated
    indictment is prepared
    and either the amended or the consolidated indictment contains new charges, it
    will, as decided by the Trial
    Chamber in the case of THE PROSECUTOR V
    BLAGOJEVIC, (where a consolidated indictment was the document in issue), be
    termed a New
    Indictment. The Chamber noted as follows:

“the
Amended Indictment included new charges and the accused has already appeared
before the Trial Chamber, a further appearance
shall be held as soon as
practicable to enable the accused to enter a plea on the new charges”

  1. In
    yet another case of THE PROSECUTOR V MARTIC, The Trial Chamber of the ICTY
    arraigned the Accused on the amended indictment which
    it declared to be a new
    indictment. His Lordship, Hon Judge Liu had this to say in this
    case:

“I will ask Madam Registrar to read out the new charges
brought against you. Then I will ask you whether you plead guilty
or not guilty
to the specific charge. Since the initial indictment has been replaced by the
amended indictment, I will ask you to
enter pleas with regard to all charges
contained in the new indictment.”

  1. It
    has been argued that the Consolidated Indictment is not a new Indictment and
    that accordingly, there should be no rearraignment
    since the Accused Persons had
    already been arraigned on their Initial Individual Indictments. In effect, the
    Prosecution takes the
    view that the Initial Individual Indictments are still
    valid notwithstanding the existence of the Consolidated Indictment dated the
    4th of February, 2004, on which the trial is now
    proceeding.
  2. I
    of course do not subscribe to this view at all because if, as the Prosecution
    contends, the 3 Individual Indictments are the same
    in content as the
    Consolidated Indictment, one wonders why it felt obliged to go through the
    procedures of applying to replace them
    with the single Consolidated Indictment,
    into which the 3 Initial Individual Indictments are now all merged. In any
    event, the question
    should be put as to why the Prosecution is seeking to hang
    on to the 4 Indictments in one proceeding involving 3 Accused Persons
    who today
    are jointly indicted and are being jointly tried.
  3. In
    my opinion, the Consolidated Indictment introduced after the Joinder Decision,
    as an indictment which has superseded the 3 Initial
    Individual Indictments
    against the Accused persons, is a New Indictment. Indeed, in my Separate Opinion
    on the Joinder Motion, I
    expressed the view that the trimming down of the 3
    indictments to form one Consolidated Indictment constituted a fundamental
    amendment
    to the 3 Initial Individual Indictments and that it would require
    compliance with the provisions of Rule 47 followed by a rearraignment
    of the
    Accused Persons on the New Consolidated Indictment under the provisions of Rule
    61(ii) and 61(iii) of the Rules.

THE CASE OF R. V
FYFFE AND OTHERS [1992] CLR 442

  1. I
    have taken cognizance of the dictum in Fyffe’s Case where Their Lordships,
    Russel, Douglas Brown and Wright J. J., recognised
    that the general rule is that
    arraignment is unnecessary where the amended indictment merely reproduces the
    original allegations
    in a different form, albeit including a number of new
    Counts.
  2. A
    closer analytical examination of this case reveals however, that the facts and
    the raison d’être of Fyffe’s decision are
    distinguishable from those in the present motion. In the Fyffe case which was
    decided in the Criminal
    Division of the Court of Appeal, the 5 Accused
    Persons/Appellants faced but a single 11 Count Indictment for drug offences.
    This
    Indictment was substituted by a 27 Count indictment alleging basically the
    same facts as the 11 count indictment did against the
    same accused persons who
    had been arraigned together and jointly tried all along. Learned Counsel, Mr.
    Wright, submitted that there
    should have been a rearraignment on the substituted
    27 Count indictment and that failure by His Lordship, The Learned Trial Judge,
    to call a rearraignment, rendered the proceedings, null and void. This
    submission was overruled. The Lord Justices of the Court of
    Appeal had this to
    say:

“In the circumstances that we have described, we are
satisfied that no more than one indictment was ever before the Court in
this Case
and that what happened was an amendment of the
indictment as originally granted
” and in addition, that this was
done for the convenience of Defending Counsel.

  1. Comparing
    and distinguishing this decision with our case in hand, and very much unlike the
    situation in the Fyffe Case with only one
    Indictment in issue, the Norman case
    has four Indictments – three individual and one consolidated in which they
    are all jointly
    charged and are now being jointly tried.
  2. Let
    me however observe and say here, that if in Fyffe’s case, Their Lordships
    found, with only 2 exceptions which the Law Lords
    considered immaterial, that
    the 27 counts later preferred, reproduced what had appeared in the initial 11
    count Indictment, The Allieu
    Kondewa situation is clearly distinguishable from
    Fyffe’s. In the latter case, it was one 11 count Indictment charging the
    5
    Appellants only for drug offences that was replaced by the 27 count Indictment
    charging the same five indictees with the same drug
    offences.
  3. In the Kondewa situation, 3 indictees, originally indicted on 3 Individual
    Indictments, are now standing jointly charged and tried
    on a Consolidated
    Indictment that has replaced, stayed, and in my opinion, extinguished the 3
    Initial Individual Indictments. In
    addition, the records now clearly show, that
    this Consolidated Indictment, unlike Fyffe’s, has introduced new
    locations that
    did not feature in the Initial Individual Indictment against the
    Accused. In my Judgment, and as the facts have indeed established, these,
    unlike in Fyffe’s case, are amendments in substance
    .
  4. Their
    Lordships in Fyffe’s case further had this to say:

“With
two immaterial exceptions the 27 counts reproduced what had appeared in
the 11 counts
. They added no new allegations and charged no new
offences
. In our judgment, there were no amendments of substance; there
were amendments of form. We are satisfied that this being the proper
interpretation of what happened the Judge gave leave to amend and it was
unnecessary to re-arraign the defendants. They had pleaded
to precisely the same
charges as were laid in the 27 counts, albeit when they were encapsulated in the
11 counts. There was no indictment to be stayed and no new indictment to
be preferred
. In our view the judge was right to reject the motion to
arrest judgment.

We are fortified, Their Lordships continued, in the views we have formed by
some observations of LORD WIDGERY CJ in the case of R
V RADLEY, 58 Cr App Rep
394, 404 when His Lordship said:

It is perfectly permissible, if an amendment is made of a
substantial character after the trial has begun and after arraignment, for
the
arraignment to be repeated
, and we think that it is a highly desirable
practice that this should be done wherever amendments of any real significance
are made.
It may be that in cases like Harden (supra) where amendments are very
slight and cannot really be regarded as in any way introducing
a new element
into the trial, a second arraignment is not required, but judges in doubt on
this point will be well advised to direct
a second arraignment.”

  1. It
    is pertinent to observe here that in Fyffe’s case, drug offences which
    were the core issue. Certainly these are less significant
    and indeed minor
    offences, when compared to the grave charges of murders and killings for which
    Fofana and his Co-Accused Persons
    are indicted, and for which the due process
    dictates the exercise of even more caution than the ordinary and a reinforced
    posture
    of scrupulousness and scrutiny in the conduct of the proceedings.
  2. On
    this issue and having regard to the nature and the gravity of the offences for
    which the 3 Accused Persons stand indicted, the
    necessity to strictly respect
    and apply the procedural rules, and in the exercise of this judicial caution, to
    order a rearraignment,
    is even a more imperative obligation in order to avoid
    being perceived or seen to have violated any of the fundamental rights
    guaranteed
    to the Accused Persons by either the Statute or the Rules of
    Procedure and Evidence and particularly, their right to a fair trial
    as
    guaranteed under the provisions of Article 17(2) of the Statute and Rule 26(bis)
    of the Rules.

(E) EFFECTS OF LACK OF ARRAINGMENT
ON THE VALIDITY OF THE PROCEEDINGS

  1. In
    the case of R. V WILLIAMS, [1978] QB 373, it was held that a failure by the
    Court to have the accused arraigned does not necessarily
    render invalid,
    subsequent proceedings on the indictment where the defence, as in the
    Williams’s case, waives the right of
    the accused to be arraigned, either
    expressly or impliedly, by simply remaining silent while the trial proceeded
    without arraignment.
    Williams’s conviction was upheld despite a lack of
    arraignment because he, being the only person in court who knew he had not
    been
    arraigned, raised no objection at the time. Had he objected but the court
    nonetheless refused to arraign him, it is submitted
    that any conviction would
    have been quashed. Fofana, the Applicant in this case however, clearly objected
    to his trial going underway
    without his having entered a plea on the
    Consolidated Indictment.

THE AMERICAN PERSPECTIVE
ON REARRAIGNMENT

  1. In
    the PEOPLE V WALKER, [338 . 2d, 6 Cal App. 19], the California Court of Appeal
    held that where an indictment is amended, regular and orderly procedure
    requires that the defendant be rearraigned and be required to plead
    thereon
    before trial
    , but if the defendant makes no demand or objection
    and is convicted on trial without having entered a plea, an objection that there
    was no plea is waived and is unavailable to him
    . This case was decided
    on the same rationale as the English case of R V WILLAMS (ante)
  2. In
    HANLEY V ZENOFF [398 p.2d 241 Nevada 1965], a Neveda Court held that when
    an amended indictment is filed which changes materially the information to which
    the defendant has entered a plea, he must be
    arraigned on such amended
    indictmen
    t. In McGILL V STATE, [348 f.2d 791 (1965)], it was held
    that if rearraignment is necessary to avoid the possibility of prejudice,
    the defendant should be arraigned
    . I consider, as I have already
    indictated, that there is a possibility of a prejudice of an unfair trial to the
    3 Accused Persons
    if they are not served with and rearraigned on the
    Consolidated Indictment as early as possible so as to avoid an aggravation of
    the said prejudice.
  3. In
    SHIEVER V STATE [234 P.2d 921 Okla Crim. App 1951], it was held that where an
    amendment to an information charges a new crime or
    where the effect is to charge
    a crime when the information prior to the amendment/information did not, the
    defendant should be rearraigned.

(F)
ANALYSIS

  1. The
    Applicant, 3rd Accused, Allieu Kondewa, is no
    longer being charged individually but jointly in one indictment with two other
    accused persons.
    This, in my opinion, subjects him to either a New
    Indictment which, indeed, it is.

(G)
CONCLUSION

  1. In
    the light of the above, and considering the predominantly consistent pattern of
    the law and the jurisprudence relating to the issues
    raised, I do find as
    follows:

1) ON RULE 26(bis) OF THE RULES OF
PROCEDURE AND EVIDENCE

  1. Having
    regard to the foregoing factual and legal analysis of the issues that have been
    raised by the Applicant in this Motion, and
    the provisions of Rule 26(bis) which
    reads as follows:

The Trial Chamber and the Appeals Chamber shall
ensure that a trial is fair and expeditious and that proceedings before the
Special
Court are conducted in accordance with the Agreement, the Statute and
the Rules with full respect for the rights of the accused and
due regard for
protection of victims and witnesses,

I find that the following points contravene, not only the provisions of
Articles 9(1), 17(2), 17(4)(a), and 17(4)(b) of the Statute
of the Special Court
as well as those of Articles 9(2) and 14(3)(a) and 14(7) of the International
Covenant on Civil and Political
Rights, but also those of Rules 26(bis), 50, 52,
and 61 of the Rules.

(2) SERVICE OF THE INDICTMENT

  1. Having
    granted the Joinder Motion and ordered service of the Consolidated Indictment
    (which bears a new number) in accordance with
    Rule 52 of the Rules, the Trial
    Chamber should give effect to its own Order, consistent with the provisions of
    the said Rule and
    those of Rule 26(bis), as it would again, to my mind, violate
    the statutory rights of the Accused, if service of the Consolidated
    Indictment
    were effected in a manner other than that provided for under Rule 52 on which
    the Order of the Chamber was based and made.
  2. I
    say here that any action taken in violation of a mandatory provision of the law
    should, of necessity, be declared null and void
    even if that provision, as could
    possibly be argued to justify a toleration of that violation, fails to prescribe
    that remedy. This
    is even the more so in criminal matters where the liberty of
    the individual which is universally considered sacred, is at stake and
    where, as
    I have said, the necessary intendment of the enacting body of these
    provisions of the Statute and of the Rules in relation thereto, is to effect
    a
    personal service on the Accused and on no other person in his stead.
    I
    accordingly therefore, declare the service of the Consolidated Indictment on the
    Accused’s Counsel, null and void.

(3)
DIFFERENCES BETWEEN THE INITIAL INDICTMENTS AND THE CONSOLIDATED INDICTMENT AND
THE NECESSITY FOR A REARRAIGNMENT

  1. In
    further justifying its stand on the Consolidated Indictment, the Prosecution
    argues that since the Consolidated Indictment contains
    ‘no new
    charge’, no further arraignment is required and further,
    that as held by the Joinder Decision and referred to in the
    Norman Motion, the Indictments against the Three Accused contain exactly
    the
    same charges(Counts
    ).”
  2. This
    argument to me is as curious as it is misleading because we indeed could not, as
    a Trial Chamber, at the time we were rendering
    the Joinder Decision, arrive at
    such a finding and conclusion when it is clear from the records, that we did not
    have the opportunity
    of seeing the Consolidated Indictment which, in my opinion,
    ought to have been annexed to the Motion so as to enable Their Lordships
    to
    ascertain the real content of that “yet-to-be-disclosed Consolidated
    Indictment”.
  3. In
    fact, we could not have arrived at such a finding because we overruled the
    submission to have it annexed to the Joinder Motion
    on the grounds that
    it will impede the Special Court in the expeditious dispatch of its
    judicial business
    .”
  4. It
    would, to my mind, occasion a breach, not only of the provisions of Article
    17(4)(a) of the Statute, of Articles 9(2) and 14(3)(a)
    of the International
    Convention on Civil and Political Rights, but also, those of the provisions of
    Rules 26(bis), 47, 50, 61, 82
    of the Rules, if the Accused Persons were not
    individually rearraigned and a plea entered by each of them on each of the
    counts in
    the Consolidated Indictment, particularly within the context of, and
    the necessary intendment of the promulgators of the provisions
    of Rule 82(A) of
    the Rules.
  5. It
    is my opinion, that the service of the indictment on the accused as well as his
    arraignment on that indictment, are very important
    components in the mechanism
    that is, and should in fact always serve as an instrument to convey to the
    accused, a clear picture of,
    and a message regarding “the nature and
    cause of the charge against him or her
    ” as required by Article
    17(4)(a) of the Statute. This, to my mind, is cardinal to the issues in this
    case.
  6. Consistent
    with this legal position that I am stating, it cannot be said, as far as this
    matter is concerned, that these statutory
    provisions have been complied with
    having regard to the uncertainty created in the minds of the accused persons as
    to the status
    of and the facts in the Initial Individual Indictments,
    vis-à-vis the status of and facts contained in the ongoing Collective
    Consolidated Indictment.
  7. In
    the absence therefore of a message to this effect, which is clear, certain, and
    unambiguous, on the nature and content of the Consolidated
    Indictment as well as
    of its effective service on the Accused as stipulated in Rule 52(A) and 52(B) of
    the Rules and by Our Court
    Order, it is my considered opinion, that the
    provisions of Article 17(4)(a) would not have been complied with. I would add
    and say,
    that they would indeed have been violated.
  8. Having
    regard to the above, I rule in favour of granting the
    3rd Accused’s Motion on all grounds that are
    canvassed in his arguments and do hold that that the Consolidated Indictment
    filed
    with the Unanimous Leave of The Chamber and on which the trial is now
    proceeding is not only a valid, but also is a New Indictment.
  9. In
    my opinion, it is not too late for the Accused to be rearraigned on the amended
    Indictment.
  10. This
    I would say, is an inherent power exercised by the Court either on its motion or
    at the request of the Prosecution, since an
    amendment of any kind, including the
    addition or subtraction of a count, may be made at any stage of the trial,
    provided that having
    regard to the circumstances of the case and the power of
    the Court to postpone the trial and if, as we held in the Majority Decision
    dated the 2nd of August, 2004, on the
    Prosecution’s Request For Leave To Amend The Indictment Against Samuel
    Hinga Norman, Moinina Fofana,
    and Allieu Kondewa, Case No. SCSL-04-14-T, the
    amendment can be made without injustice. See also R V JOHAL AND RAM
    (ante).
  11. Accordingly,
    I do make the following Orders:
    1. That
      the Prosecution immediately and forthwith, and by a written Motion, applies to
      amend the said indictment under the provisions
      of Rule 50 of the Rules so as to
      have lawfully incorporated in the said indictment, the particulars and facts
      featuring in the said
      Consolidated Indictment and which are new.

OR IN THE ALTERNATIVE

That the Prosecution submits the said Indictment to the verification process
provided for in Rule 47 of the Rules with a view to a
new initial appearances
for the Accused for purposes of their rearraignment on the approved and
confirmed Consolidated Indictment
under the provisions of Rules 61(ii) and
(61(iii) of the Rules.

2. That the Accused should, after the amendment is granted, be rearraigned on
the amended Consolidated Indictment before the trial
proceeds further and this,
only after some procedural formalities required or permitted by the law,
including, but not limited
to, those provided for under Rule 66 and 72 of the
Rules, as well as those related to recalling certain witnesses who have so far
already testified, if the defence so desires and makes an application to this
effect by way of a Written Motion.

3. That a personal service of the Consolidated Indictment dated the
5th of February, 2004, be immediately and personally
effected on each of the Accused Persons.

4. THAT THESE ORDERS BE CARRIED OUT.

Done at Freetown this 13th Day of December,
2004.

Hon. Judge Benjamin Mutanga Itoe


Presiding Judge
Trial Chamber


[Seal of the Special Court for Sierra Leone]





[1] Prosecutor v.
Allieu Kondewa
, Case No. SCSL-03-12-PT, Preliminary Motion Based on Defects
on the Indictment against Allieu Kondewa, dated the 7th
of November,
2003.
[2]
Prosecutor v. Allieu Kondewa, Case No. SCSL-03-12-PT, Decision and Order
on Defence Preliminary Motion for Defects in the Form of the Indictment, dated
the 27th of November, 2003, para. 11; Annexure, paras
(ii), (iii).
[3]
Prosecutor v. Allieu Kondewa, Case No. SCSL-03-12-PT, Bill of
Particulars, dated the 5th of December,
2003.
[4] Decision of
27 January 2004, Supra note 1 at paragraph 11.