Wednesday, September 10, 2008

No drug charges in cocaine case?

By Mohamed Massaquoi and Kevin Hill

The case of The Inspector General of Police vs. Harvey Steven Perez & Others, known around Sierra Leone as the cocaine case, represents the biggest drug bust in the country’s history and the biggest challenge so far to President Ernest Bai Koroma’s government.

But in the haste to bring to justice those responsible for trafficking an estimated 700 kilograms of cocaine into the country, a scandal that has seen a minister sacked and 19 people charged with crimes, is the government about to bring about an injustice instead?

According to Vandie Nabie, Director of Complaints, Investigation and Legal Services at the Human Rights Commission of Sierra Leone, if the new Dangerous Drugs law is used to charge the accused with drug offenses it may contravene the Sierra Leone Constitution of 1991 and the Universal Declaration of Human Rights.

“To contemplate legislation (of a new law) while holding the accused, it could be considered retroactive – that is the gray area. The charges must be prospective, not retroactive”, said Mr. Nabie.

The case of Inspector General of Police vs. Harvey Steven Perez & Others commenced on August 1st, 2008 before Principal Magistrate Deen Tarawallie. The accused are charged with a range of offenses including unlawful possession of small arms, unlawful entry, malicious damage to the perimeter fence valued at Le20 million, unlawful landing, conspiracy for unlawful landing, conspiracy to pervert the cause of justice and conspiracy to aid the escape of fugitive offenders with the aim of perverting justice.

The defendants are in court on what Mr. Nabie called “holding charges”, or lesser charges meant to hold the accused in police custody until further charges can be brought against them. The indictments are based on the existing law when the crimes were committed.

At the time of the commission of the crimes, there was no law in Sierra Leone that covered the specific offense of possession or trafficking of cocaine. To retroactively charge the accused with the new law might violate their rights guaranteed under national and international law.

Article 23, subsection 7 of the Constitution states “No person shall be held to be guilty of a criminal offense on account of any act or omission which did not, at the time it took place, constitute such an offense”.

Article 11 of the UDHR states that “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed”.

“There are limits to human rights which are outlined in the constitution. In cases where public safety or public morality is in danger, the government can intervene. But is this exception outdated?” Mr. Nabie asked.

According to him, if the government retroactively charges these defendants it would be “inconsistent with good governance”.

The new Dangerous Drugs law was drafted in 2006 to strengthen existing law, but was not tabled in parliament until after the plane containing the cocaine was intercepted and the accused arrested under a certificate of emergency by the President.

For a law to be brought in under a certificate of emergency the situation or issue at hand must lead to public emergency or imminent danger, only then can a certificate be issued.

According to Mr. Nabie filing charges retroactively under the new law is “not conducive to rights protection. At the moment charges are laid, (the defense will) file an indictment to the Supreme Court.” If the someone claims that their human rights are being violated in Sierra Leone, they must appeal to the Supreme Court to have their case heard.

Defense lawyer and President of the Sierra Leone Bar Association, C.F. Edwards, said that if charges are laid under the new Dangerous Drugs law, “we intend taking it up to the Supreme Court. They may (file charges), according to the wording of the law, but according to good sense and international conventions, you don’t.”

According to Principal Magistrate Deen Tarawallie, “it is up to the prosecutors to file charges, but it is my understanding that you cannot charge someone retroactively. I was made to understand that a bill must be passed into law that would make provision to be able to charge retroactively.”

It would be up to the attorney general to approve the use of the law in this case, and the inspector general of police to levy the charges.

According to a high ranking official involved in reforming Sierra Leone’s legal system, who requested anonymity for this story, the new law was drafted in 2006 during the reign of Ahmed Tejan Kabbah and the SLPP. That government, heeding warnings on the increasing use of West Africa by international drug cartels as a transit point for drug trafficking, held consultative meetings nation-wide to better understand what cocaine could do to the country.

The Dangerous Drugs Act was then drafted to help change the image of the country as a player in the international drug trade and to act to save the Sierra Leone’s youth from the dangers involved in using and trafficking narcotics.

The act was subsequently presented to the SLPP government, but no action was taken. The act was also presented to the current APC government, but it was not tabled in Parliament until after the largest narcotics bust in the country’s history.

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