UNSHACKLING THE JUDICIARY

UNSHACKLING THE JUDICIARY: THE FAILED PROMISE OF JUDICIAL INDEPENDENCE!

Public Lecture delivered by Augustine S. Marrah, Esq. on the invitation of the University of Makeni Judiciary and the Law Society—14^th August 2021

1. Good afternoon students of UNIMAK and ladies and gentlemen!
2. It is quite an honour to be invited by the judiciary of the University of Makeni in partnership with the Law Society who, to my mind, constitute the intelligentsia of the north. I have been asked to deliver a public lecture on the concept of judicial independence. Unfortunately, I am not going to deliver that lecture, rather I am going to share perspectives on judicial independence drawn from my almost twenty years of activism for accountability, good governance and human rights and my over eleven years of practice as a lawyer. Additionally, I am not here to embark on an academic excursion of what judicial independence is. I will leave that with the scholars. As an activist and legal practitioner, I am going to show you what is not judicial independence.
3. Ladies and Gentlemen let’s start from the beginning, why is judicial independence significant in our democracy? It is because the Truth and Reconciliation Commission (TRC) which was set up as one of the twin transitional justice mechanisms found as one of the primary casus belli that “Government accountability was non-existent. Institutions meant to uphold human rights, such as the courts and civil society, were thoroughly co-opted by the executive”.[1]
4. The civil war of Sierra Leone claimed more than 100,000 lives apart from hundreds of our compatriots whose limbs were chopped off and the millions of destinies, including our nation’s future, which were negatively impacted forever. All of these took place because the judiciary was a lackey of the executive lever of government. Therefore, when we talk about judicial independence, we are not invited to theorize or to imagine what the catastrophe would be like on the whole fabric of governance. We are given an opportunity to recount the ordeal and to summon our collective will and determination not to allow the precipitants of the conflict to linger and fester.
5. There are broadly speaking two forms of judicial independence—institutional and personal independence. Institutional independence refers to the independence of the judiciary from the two other arms of government. Personal independence is the freedom of a judge to hear and determine a matter impartially, without fear, favour or influence. The judiciary exists as a check on the other branches of government. Therefore, whenever it is conscripted by any of the other branches, it abandons its role and does their bidding.
6. The TRC records how late President Siaka Stevens used the courts to eliminate political opponents. For instance, Mohamed Sorie Fornah and Ibrahim Bash-Taqi who stood up to him were arraigned before the Court on treason charges, hurriedly tried, convicted on discordant evidence, and mercilessly executed. When the judiciary is not independent, it becomes the hitman of the executive. In that instance, the judiciary is not concerned about the law. Its mission is to attain the expected political result.
7. In 2015, the former president removed the vice president from office, an action which was met with all round condemnation from governance activists in and out of Sierra Leone. I am humbled to inform this audience that the Bar Association protest against the removal of the then vice-president which was foiled by the Sierra Leone Police was machinated by yours truly. The then sacked vice-president filed an action in the Supreme Court and when the matter was being heard by the court, the judges were all allocated brand new Land Cruiser SUVs, which by then would each cost over fifty thousand US dollars. We all know what the outcome of that case was. All five judges wrote separate concurring judgments, justifying the action of the former president on the basis of supreme executive authority—a judicial addendum to the nation’s constitution which now exists to launder constitutional overreach of the presidency.
8. In 2017, the Renaissance Movement, which I co-founded, requested clearance from the Inspector General of Police for a nationwide protest against police brutality, economic hardship especially hikes in fuel prices etc. After a refusal to grant the approval, we filed an action in the Supreme Court. That matter is yet to be heard by the Supreme Court.
9. In 2018, following a ban of vehicular movement on elections day in March 2018 by the Inspector General of Police, I instituted an action in the Supreme Court challenging the said decision and requesting a holding that the said ban was unconstitutional and violates my right of freedom of movement. Arguments were concluded in that matter, and it was reserved for judgment in December 2018. Till date, there has been no judgment.   
10. In 2019, because the current ruling party had a minority in Parliament which would have made it impossible for them to pass partisan legislations or control the Parliament, the High court by judicial decisions annulled the election of ten elected members of parliament of the opposition party and replaced them with the petitioners of the ruling party who had lost in the polls, instead of ordering fresh elections. The ruling party now has a majority in Parliament, courtesy of the perfect delivery of the judiciary.
11. In January 2019, acting as solicitor for the Sierra Leone Bar Association, I filed an action in the Supreme Court in order for the rules of procedure for the now concluded Commissions of Inquiry to be formulated by the Rules of Court Committee. After waiting for months for the action to be listed for hearing without success, I was instructed by the Bar Association to file a mandamus action against the Chief Justice—which to my knowledge, is the very first mandamus proceedings brought against a serving Chief Justice in Sierra Leone. Neither the substantive action nor the mandamus application has to this day, more than two years on, seen the light of day before a panel of judges.
12. Ladies and gentlemen, you know what all of these actions have in common? They are all seeking to challenge the actions of the executive branch of government in court, as would obtain in an efficiently working democracy. However, the response of the judiciary has consistently been the same—either to rule in favour of the government or not to hear the matter at all. This is not how an independent judiciary works!
13. These instances cited are perhaps the reason why, year in, year out, both domestic and international surveys and reports conclude that the judiciary of Sierra Leone is not independent and overwhelming evidence exist to support such characterization.
14. Ladies and gentlemen, now more than ever, most matters have political slants—from the party councillor who wants his recovery matter to be heard by a certain judge; to the brother of a minister who does not want an accused to be put on bail; to the women’s leader who wants her rival behind bars for hissing at her; to a young generation leader who wants an action delayed unendingly. Just about every Jack and Jill, comes to the corridors, brandishing their political credentials and they get what they want and even more.
15. Aside the rampant political interferences in the judiciary to a magnitude almost reminiscent of the pre-war era, there are other shortfalls within the administration of justice which cast huge doubt on the personal independence of the judges.
16. Ladies and gentlemen, let me share a few examples. I have two matters which I commenced no sooner I started practising law upon return from my master’s studies in 2011. One is an action I filed on behalf of more than fifty ex-employees of a big state institution for their end of service benefits. The matter was reserved for judgment in May 2015. Till date, there has been no justice for these people. More than two dozen of those affected people have died, including the very two leaders of the group, who gave me instructions as a young lawyer over a decade ago.
17. The other action concerns a land dispute which was instituted in 2011. The matter dragged on before the courts until last year when the parties disappointed with the slow spinning of the wheels of justice, decided to be their own judge and resolved the matter between them by a consent judgment.
18. In 2017, I filed an action for a client who was in her late fifties against a bank to recover about fifty thousand US dollars which was unlawfully withdrawn from her account by one of the bank’s personnel. The monies were sent by her son to erect a house for her. The matter which is now on appeal was reserved for judgment in May 2019, yet more than two years on—no judgment. This woman passed away last year without getting justice from our courts and certainly without enjoying the fruits of her labour. The son, who is beyond devastated is grappling with trauma especially because till this day, there has been no judgment.
19. About a month ago, a former client of mine—a Korean, committed suicide alleging unjust treatment by one of the ministries. I mentioned his case because I filed an action on his behalf against the Bank of Sierra Leone when they froze his business account in early 2020. That matter is still pending for judgment. Sadly, another client of mine who has been waiting for judgment since October 2018 has sent me several text messages contemplating suicide. I have had to counsel him in the hope that judgment may come soon enough but I know it might not happen anytime soon.
20. Ladies and gentlemen, I use these examples to show how the administration of justice does not embody the institutional and personal independence that we have been taught. Sadly, examples like these and more continue to chip away at the once high held honour of being called a member of the judiciary, even for those who display high standards of personal independence.
21. More regrettable for me is that the more the number of lawyers there are now, the greater the complicity with the status quo. Lawyers and judges were accused by the TRC of being silent during the dark days leading up to the war. Lawyers were not many then, but even with our numbers now, the silence is more deafening. It seems to me that nowadays most people are only interested in the title and the flamboyance that come with being a lawyer, they are not interested in the sacred duty to always defend justice at all costs and at all times.
22. In the United Kingdom, lawyers protested budget cuts to legal aid; in Pakistan, judges refused appointment by their president after he illegally removed the sitting chief justice; in both Kenya and Malawi, their courts ruled against the incumbent on election petitions. And very recently in South Africa, ex-president Zuma was put behind bars for contempt of court. In all these jurisdictions, whilst they may not be perfect, it is evident that the judiciary is striving to uphold its independence and defend it against the manipulations of the other arms of government.
23. The past and present regimes both promised to make the judiciary independent. Their leaders have decried the state of the judiciary in equal measure and have made similar commitments to its reform. But alas, it appears as though they have only reformed their tactics in keeping the judiciary as their stooge. They have not failed in keeping their promise because they are unable to cause reforms in the judiciary, they have failed to keep it because to do so, would encroach on their appetite to exercise powers not granted them by the constitution and would also make them accountable to the people through the courts. Our leaders want the power but not its accountability which an independent judiciary would engender.
24. Ladies and gentlemen, I agree with those scholars who say that the judiciary needs a fixed constitutional budgetary allocation, and appointment of judges to be done by a body rather than the President to ensure its independence. In addition to that, judicial personnel must realise that they have a dual role to play—as judicial officers and as social engineers in building the edifice of good governance.
25. Ladies and gentlemen, there is no gainsaying that a nation can’t attain good governance, economic development, peace and stability, without an independent judiciary. The court’s sanctity is not in its scale of justice, or the monstrosity of its edifice or the frightful wigs donned by judges and lawyers. Its sanctity lies in its pure administration of justice. Its role in hewing out good governance is to ensure that the executive and legislative arms of government act within their constitutional limits, are accountable to the people, and respect, promote and fulfil the human rights of all.
26. Judicial independence is the soul of every democracy. Without it, democracy would only be an ideal or an ink on a constitutional parchment. To neglect it in pursuit of economic development, is to grow a massive business without insurance. Within a shake of an eyelash, everything would crumble without restoration.
27. To conclude, someone asked me the other day why I am an activist lawyer? Why I jeopardize my practice as a lawyer? Why I risk going to jail when I can make fantastic money as a brilliant lawyer? Why I remain an activist despite not being funded by anyone or any project? The simple answer is that I believe in justice, fairness, good conscience, and equity. I believe that we can’t attain sustainable development unless we do so equitably and accountably through an independent judiciary. I believe that it is only by doing so that we can achieve a thriving cohesive society and protect it against recurrence of the hallmarked barbarities of our civil conflict.
28. And so, ladies and gentlemen especially the law students, I charge you all to resolve this day to pursue justice and fairness, even at the risk of being sent to Pademba Road Prison. And if justice and fairness were not the driving principles in your decision to join the legal profession, I urge a thorough soul-searching. One person cannot unshackle the judiciary from the chains of political interference. Few activists cannot redeem the judiciary from the grips of executive intermeddlers. It can only be done by a coalition of lawyers and governance activists who decide to stand together and make this their mission. The words of Nelson Mandela hold true: “We expect you to stand on guard not only against direct assault on the principles of the Constitution, but against insidious corrosion.”
29. Ladies and gentlemen, I leave you with these final words: Judicial independence is not a gift, it is a deliberate action by each generation to uphold the truth, defend their grundnorm and to dispense justice swiftly and justly. If you make this pursuit, you will not only be making a nation, you will also be saving generations.
30. I thank you all for your attention!

[1] Paragraph 15 of Chapter 2 on page 27 of the Truth and Reconciliation Report Vol.2