Contempt at the Special Court for Sierra Leone

On Friday, the Special Court for Sierra Leone began contempt of court proceedings against five individuals accused of threatening witnesses.

There are actually two separate proceedings. In the first, two former members of the

Armed Forces Revolutionary Council (AFRC), Hassan Papa Bangura (aka: “Bomblast”) and Samuel Kargbo (aka: “Sammy Ragga”) appeared before Justice Teresa Doherty in the Freetown courtroom. Two others, also former AFRC leaders, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (aka: “Five-Five”), appeared via video link from Rwanda, where they  are serving lengthy prison sentences.

The charges involve offering bribes to a witness to recant testimony. Kamara is also charged with disclosing the name of a protected witness.

Kargbo apparently pleaded guilty and offered to testify as a prosecution witness. The others pleaded not guilty.

In the second proceeding, former Revolutionary United Front (RUF) member Eric Koi Senessie pleaded not guilty to nine counts alleging he attempted to bribe or otherwise interfere with prosecution witnesses who testified in the trial of former Liberian President Charles Taylor.

I have never been a great fan of contempt of court proceedings at the international criminal tribunals. On a technical reading of the Statutes, the ad hoc tribunals don’t even have jurisdiction over such matters. For example, article 1 of the Statute of the Special Court for Sierra Leone says it is ‘to prosecute persons who bear 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’. I don’t think that contempt of court falls into that category.

When the ad hoc tribunals started dealing with these cases, they argued that the authority was implied. Addressing contempt of court (and perjury) was said to be ancillary to their functions, and necessary to ensure the proper administration of justice.

Perhaps. It is true that the Rome Statute provides for this explicitly. But the tribunals could easily have left the matter of contempt to some other jurisdiction. For example, could not the ordinary courts of Sierra Leone deal with attempts to bribe witnesses and otherwise pervert judicial proceedings? When the International Law Commission prepared the draft statute of the International Criminal Court, in the early 1990s, there were suggestions that contempt of court and similar matters be left to domestic courts.

If international courts are going to insist on prosecuting contempt, perjury and attempts to bribe witnesses, in the name of the administration of justice, why not take it a step further and prosecute someone who steals a judge’s bicycle?

It is probably a general principle of law that courts have some kind of inherent authority to deal with contempt that is committed in the courtroom, when the judges are present. But I don’t think that courts generally have any inherent jurisdiction to punish matters like bribing witnesses. Civil courts certainly don’t. If such corrupt practices take place with respect to a civil trial, the local prosecutor gets called in and there is a trial for the matter before some other court.

At the international level, the International Court of Justice and the European Court of Human Rights may hear witnesses but I am not aware of them ever indulging in a prosecution for contempt, or ever feeling the need for such a possibility to exist. Anyway, where would they send someone convicted of such a crime?

Why is this a problem at the Special Court for Sierra Leone? Think of the cost. It involves a number of highly-paid international judicial officials, expensive legal aid lawyers, and above all precious time for an institution that has more important things to do. If the Special Court still has some money to do trials and time on its hands, why not prosecute another war criminal instead of worrying about such matters.

Earlier, it might have been argued that such prosecutions are necessary in order to deter others. But the Special Court for Sierra Leone has concluded its final trial. The deterrence argument can’t be very compelling.