If judges don’t tell the truth . . .
Baffour’s Beefs with Baffour
AnkomahAS I write this week, Charles Ghankay Taylor, the former Liberian president serving 50 years in jail for allegedly “aiding and abetting” rebels in Sierra Leone, is still awaiting a decision on his application for transfer from a British jail to the UN Detention Facility in Rwanda.
Last week, we ended where Justice El Hajj Malik Sow, the Senegalese alternate judge of Trial Chamber II of the Special Court of Sierra Leone (SCSL) that tried Taylor, was explaining why the ex-Liberian president should have walked free based on the evidence before the Court as at April 26, 2012, and what motivated him [Sow] to put on the record a dissenting opinion against the decision of the three main judges that earned Taylor 50 years in jail.
On the day the judgement was pronounced (April 26, 2012), and the drama by the three main judges to silence Justice Sow unfolded (when they ostentatiously walked out of court when Sow started to read his dissenting opinion), the Senegalese said he was no longer in the position of an alternate judge.
“I was a full judge, sitting there as a full judge. The one who shouldn’t have been there wasn’t me,” Justice Sow said in his December 2012 interview with the London-based New African magazine.
“One of the judges of the Trial Chamber was elected as a judge of the International Court of Justice, that judge took the solemn declaration and was sitting as a judge in that jurisdiction, in the International Court of Justice.”
Here, Sow was referring to the Ugandan judge, Julia Sebutinde, who, before Taylor’s trial concluded, had taken up a new position as a judge of the higher, International Court of Justice (ICJ), and ended up bizarrely sitting in two jurisdictions at the same time, something which is not normally allowed in the legal profession.
Thus, in fairness to Taylor and the statutes of the SCSL, this should not have been allowed, but it was allowed because the other judges and the Court itself did not want Alternate Judge Sow to be used as a substitute for Justice Sebutinde, who was now sharing her professional time as a judge for both the SCSL and the ICJ.
The judges of Trial Chamber II and the Court itself knew that Justice Sow was not impressed with the dubious evidence presented by the prosecution over the five years the Taylor trial lasted.
They knew that, if given the chance, Sow would find Taylor not guilty based on the questionable evidence before the Court, and the powers that be who were driving the trial behind the scenes – the Americans notably, but also the British – did not want a not-guilty verdict or even a dissenting opinion.
But as Justice Sow explained in the New African interview: “I couldn’t be indulgent in the face of the countless contradictions, lies, deceptions, and manipulations in this trial, and conclude that the accused was guilty beyond reasonable doubt of the crimes he was charged with.
“You cannot conclude that there was no doubt in your mind when you see all this money spent on witnesses, and part of the money you didn’t know the origin of. I didn’t know where it came from …”
Knowing Justice Sow’s views, the Court and the three main judges of Trial Chamber II contrived to prevent him from sitting as a main judge in place of Justice Sebutinde, who had now become a judge of the International Court of Justice and yet was still sitting as a judge of the Special Court of Sierra Leone.
But Justice Sebutinde was allowed to continue in this invidious position (sitting in two jurisdictions at the same time) for very special reasons – reasons that were not publicly expressed, but which everybody knew – or should I say those who closely followed the trial knew!
During four of the five years that the trial lasted, Justice Sebutinde had been a conscientious and hard-hitting judge who, when she presided over the Court in rotation, brought a certain quality and clarity to the proceedings that the two other main judges (from Samoa and Ireland) could never bring.
In fact, towards the end of the trial, Justice Sebutinde publicly disagreed with her two fellow main judges in two decisions against Taylor in which she felt obliged to file on the record written dissenting opinions.
Sebutinde’s high-quality performance during the trial frightened the Americans who felt the need, four years into the trial, to mount a propaganda campaign in the Western media to undermine her.
The Ugandan judge was simply too good at unpicking the prosecution’s dodgy evidence and the Americans did not like it! So they sought to destroy her reputation through slander and aspersions liberally spread through a psychological warfare mounted against her.
The Americans even came up with the ludicrous claim that Sebutinde wanted to be the presiding judge on Judgment Day, the one to bring the final gavel down on Charles Taylor, implying that, because of the sympathy of skin colour, she would set the former Liberian president free. Of course, Sebutinde denied all this, but the psychological warfare worked!
International Court of Justice
The Americans, as usual, have a lot of say, as they do on most things in our unfortunate era, on who becomes a judge of the International Court of Justice. So they can use their vote and power to block candidates they don’t like.
How Sebutinde became a judge of the International Court of Justice in the last year of Taylor’s trial may need a PhD course to unpack, but let me just say for now that she lost the high regard that I had for her professional integrity by the time Taylor’s trial ended. I felt she crumbled so easily to the pressure exacted by the Americans in the psychological warfare mounted against her.
What is more, after securing the International Court of Justice’s higher job, Sebutinde would still not relinquish her SCSL lower job to be filled by the alternate judge, Justice Sow, who had been sitting on the same Bench for five years with her and the other judges, warming it up and ready to fill any such vacation.
Sebutinde claimed she applied for leave to sit in the two jurisdictions at the same time, and the leave was granted because she had to finish the Taylor trial.
A new judge replacing her in the fifth year of the trial might not be able to capture all the intricacies and nuances of the previous four years. But that was a most spurious excuse not befitting the tongue and mind of the excellent Learned Lady from Uganda.
For, from its very inception, the Special Court of Sierra Leone had made an allowance for just such an eventuality in its Statutes and Rules by appointing an alternate judge to sit throughout the trial with the three main judges, so that if one of them was unable to continue with the trial for any reason, the alternate judge would come in as a ready substitute.
Why Justice Malick Sow was prevented to step into the shoes of Justice Sebutinde when she became a judge of the International Court of Justice, is a disgrace that will forever blot the reputation not only of the Court but also of the judges who became bit players in the charade.
As Justice Sow explained in the New African interview: “As if nothing had happened, and concomitant to her sitting in the ICJ, she [Sebutinde] was kept in her former position as a judge of the SCSL. I don’t believe that these two positions are compatible. If being elected in a different court doesn’t render a judge unable to continue sitting in the SCSL, it must be explained when an alternate judge is eligible to sit as a full judge.”
Article 18 of the Statute of the SCSL and Rule 88 of the Rules of Procedure and Evidence of the Court, both allow for the presence of an alternate judge on the Bench and for “dissenting opinions” to be appended to the judgement.
In fact, Rule 16Bis(c) of the Court expressly states that: “An alternate judge shall be present during the deliberations of the Trial Chamber or the Appeals Chamber to which he or she has been designated, but shall not be entitled to vote thereat.”
This gave Justice Sow the power to ask: “How can one then say that during ‘deliberations’ an alternate judge does not have the right to make an opinion and thus cannot express his opinion? Here it’s not about voting at deliberations. It’s about my opinion about the trial, and there is no limitation or ban or exclusion …”
To me, the most damning charge levelled by Justice Sow against his fellow judges concerned his statement that “no serious deliberations were done before judgment was pronounced” on Charles Taylor.
In any court system, the “deliberations” stage arrives after the close of a trial, when the totality of the evidence had been gathered and closing statements had been presented.
The judges then declare solemnly that the trial has been closed, and they retire to meet in secrecy and confidentiality to weigh the evidence and determine the guilt or innocence of the accused.
Thus the “deliberations stage” is the most solemn and significant aspect of the decision-making process of a court where guilt or innocence is finally discussed and determined in light of the relevant evidence and law.
The importance of “deliberations” therefore is not only a requirement of law and procedure, but also a fundamental aspect of a fair trial.
But according to Justice Sow: “There was no serious deliberations” held by the judges in the Taylor trial, a trial so controversial that it lasted for five unholy years!
Says Sow: “The president of the Court came to The Hague and had a meeting with the judges. He knew about this issue.
“I did mention during that meeting, in the presence of the other judges and the president of the Court, that I did not know when, where, and how it was decided that the drafting of the different parts of the judgment would be divided between the three other judges. I was told then that other meetings would be organised later to discuss the drafts, but that never happened.”
Sow continues: “All the judges of the Court knew about this problem. It is when we reached the most important part of the deliberations – which was the criminal responsibility of the accused – that the other judges started to hold meetings, but not in the deliberation rooms, but in their offices. And I wasn’t called to those meetings.
“But I knew of those meetings because the legal officers told me about them. That’s how I discovered that they were hiding to meet, and I did complain in writing.”
Hiding to meet! And this being done by judges! People who have taken solemn oaths to be fair to all and sundry without fear or favour based on the evidence before them!
In all his years as a seasoned judge, Justice Sow says he has never participated in a case like Taylor’s, where “no serious deliberations” are held before Judgement is passed.
“No, this is the first time. But before I joined the SCSL, I was presiding over the criminal chamber of the Court of Appeals of Dakar [Senegal]. We had specific dates for deliberations and a room for deliberations. And every single judge would say what he thought about any case submitted to the Chamber.”
Asked why there were “no serious deliberations” done by the judges before passing judgment on Taylor, Sow said: “I don’t know. Those who were hiding to meet and hiding drafts of the judgment should answer that question.
“At the pre-trial stage, the first lawyer of [Taylor] said very clearly that the critical question in the case was not so much whether the crimes in Sierra Leone were indeed committed, but whether Mr Taylor was criminally responsible for them.
“Most importantly, the accused came with very official papers, with witnesses who were at the frontline, witnesses who were main actors of this whole conflict. How can you compare these witnesses with those people who didn’t even get close to the scene?
“The prosecution’s case by itself is so insufficient, so unreliable. It’s about people contradicting themselves, people denying what they had said in previous statements.”
Why did the legal officers leave?
For readers who did not closely follow the trial, please pay particular attention to what Justice Sow has to say next. It concerns the “legal officers” (who were all experienced lawyers) hired by the Court to assist the judges during the trial and who had the onerous task of drafting the judgment for the judges.
But surprise, surprise, all the legal officers, except one, resigned en bloc before the trial ended. They had seen, in the words of Justice Sow, enough “contradictions, lies, deceptions and manipulations” in the trial, and could not bring themselves to pronounce Taylor guilty based on the evidence, as the Americans and the British wanted.
As respectable lawyers, they felt they could not compromise their hard-earned reputations by succumbing to the pressure by the powers that be to find Taylor guilty when the evidence before the Court was not sufficient for a guilty verdict. So they all resigned before what turned out to be a world record 2,500-page Judgement was written.
As Justice Sow puts it: “I did not hear much about why all the legal officers who attended the trial, except one, left before the [Judgement] was written. Why did all these people go?
“It was true that I was forwarded drafts of the Judgement but not all of them. I received different versions about the same issues, and in the end it was impossible to know who gave the instructions to draft one way or the other, and which draft was the final one.”
Asked why the “legal officers” left en mass, Justice Sow said: “Maybe you should go and ask them if they are available. Maybe they will talk. I’m not the only one who found that the charges against the accused were not proved beyond reasonable doubt by the Prosecution.
“From the drafts they [the legal officers] prepared, it appeared that they didn’t have the same opinion as the judges … These hard-working people [the legal officers] are lawyers too. They knew everything. They had seen all the evidence produced by the parties. I don’t think that they were convinced by the evidence produced by the Prosecution.”
Principles trampled upon
Justice Sow then talks about the “principles” that underpin the justice system everywhere, whether domestic or international. “They are like a triangle sustaining the whole system,” he says. “It starts with the presumption of innocence. When the accused is not presumed innocent at the beginning, there is a problem because the trial is already biased.
“From this presumption of innocence, you move on to find guilt has been proved beyond reasonable doubt. It goes to the quality, quantity, and the pertinence of the evidence to establish guilt or innocence.
“It’s like a scale. The evidence produced by the parties should reach this level of quasi-certainty leading the judge to be firmly convinced of the accused’s guilt.
“But failure to prove guilt beyond reasonable doubt, the only conclusion is to declare the accused not guilty. ‘In dubio pro reo’ [doubt will benefit the accused]. These are the basic and intangible principles of any criminal trial.”
Sow goes on: “Now let people see for themselves from the Judgement if these principles were respected in this trial. When comments like: ‘Why is Issa Sessay [the last leader of the Sierra Leonean rebels] coming to testify? Why is this man coming to testify? To let the accused [Taylor] off the hook?’ You may ask what the presumption of innocence means for those who asked these questions.”
Asked about the feelings in some quarters that Taylor’s arrest, indictment, trial, and conviction were the work of certain powerful Western governments, and whether he felt there was a conspiracy in the whole affair, Justice Sow said:
“Judges don’t get into these considerations. Judges are bound by the evidence. People can say whatever they want. If the guilt of the accused were proved beyond reasonable doubt, I would have been the first one to say it. I did not see the proof of guilt. I am not getting into this conspiracy theory issue because I have no proof of it.”
So should Taylor have walked out a free man, Sow was asked. His answer was profound: “He should have been a free man at this stage [when Judgement was pronounced on April 26, 2012, pending any appeals] because I haven’t seen the proof of guilt of the accused. This is what I have said. I’m a professional judge and I’m bound by the evidence.
“I have serious doubts about the evidence. The Prosecution case is altogether very unsatisfactory, inherently disharmonious, and filled with too many confusions and inaccuracies; and this, to my opinion, is fatal to the Prosecution case.
“If you don’t see the truth, at least you must see the lies. I have seen too many lies, too many deceptions, and I haven’t seen any proof of the guilt of the accused.”
If that is not shocking enough, coming from a judge who sat on the case for five years, then brace yourself for the next revelations by Sow.
Money, money, money
The composer who wrote the hit song of yore, “Money, money, money, it’s a rich man’s world” for Alba had a very good reason. According to Justice Sow, good justice is worth any sacrifice, and he urges people to read the Taylor Judgement to know how the matter was settled by the three main judges.
“We know that money can be spent on witnesses but for acceptable reasons,” Justice Sow says. “We understand protection of witnesses. We understand that justice is about means: money.
“But it was not only about the role money played in this trial, because we also saw offers of grace, we saw witnesses being taken from prison to come and testify, people being promised to be relocated. We have seen all that. Were the witnesses testifying truthfully or were they influenced by the money?
“I saw, in the evidence presented, too many contradictions and lies, and many witnesses denied what was attributed to them. Were they influenced by the payments they received?”
Here Sow was restraining himself from naming the names of those who “donated” the money to pay the witnesses. But we all knew, or know, the usual culprits!
In fact, Taylor’s defence lawyers brought up the issue of the origin of some of the money spent during the trial, and produced documents to show that in many instances there were no explanations for the money spent on witnesses, which brought at least a suspicion of doubt.
“And when you see such things,” Justice Sow says, “you must ask yourself what role did money play in this trial? And this is a very critical issue in this trial. We do have a management committee that can see how and when the money came in, because I think it was a problem in this trial. How did we get the money from donors and from other countries just to finish the trial?
“As a judge, I am not concerned about this issue. I’m concerned with the evidence, what is the evidence, what is the truth? And when you see it, you must say it. This is the oath you take as a judge, and you must do it without any fear.”
How to silence a judge
Asked to comment about the attempt by his co-judges to silence him, Justice Sow said: “Let’s call this whole thing pure wickedness. You see, I prefer to let them live with their own conscience. It was pure wickedness. My name was removed from the cover of the Judgement, and my Dissenting Statement was removed from the transcript. Their claim that I wanted to discredit the Court is just part of the same enterprise of annihilation.
“Yes, it was a perversion of justice … It is to hide behind confidentiality or secrecy to slander me, to insult me. It’s about my integrity. It’s about my honour, and I shall respond.
“When the system is not functioning, we must say it. It is the duty of judges to do so. If the judges don’t say it, who will say it? If judges don’t tell the truth, who will tell the truth?”
Well, Charles Taylor may rot in prison, but the judges who sat on his trial and sentenced him to 50 years in jail on very dodgy evidence will live with their conscience for the rest of their natural lives. And may we never see them suffering a pang of conscience!