The Constitution grants customary law statutory recognition and the Local Courts Act itself defines its mandate. But over the years, the dispensation of justice by local courts throughout the country has been subjected to intense debate by human rights activists. Many have raised concerns ranging from acting outside their jurisdiction, levying of exorbitant fines, to their poor handling of matters involving particularly women and juveniles. Some of these practices fall below international best practices for protecting human rights. All these undermine the effectiveness of the institution legally mandated to adjudicate upon a body of law that is applicable to a majority of the country’s population.
As a result, Parliament in July 2011 passed a new local court law. The Centre for Accountability and Rule of Law (CARL) is especially pleased by the amendments as it had been advocating in the last five years for some portions of the Act to either be amended or wholly repealed. The revised law effectively repeals the Local Courts Act 1963. Like the old one, the revised Act by and large deals with customary law - rules of law which by custom are designed to meet the needs of people residing in different communities, with varying customs across the country. Unlike the old law, the recently amended law has introduced significant provisions in the history of local court administration throughout the country. And, the principal focus of this article is to articulate the fundamental provisions in the legislation.
Hon. Justice Umu Hawa Tejan Jalloh, Chief Justice of the Republic of Sierra Leone
The transfer of oversight functions of local courts from the Ministry of Local Government to the office of the Chief Justice is arguably the most important provision of the new law. This transfer means that local courts are no longer under the supervision of the Ministry of Local Government but rather under the judiciary; an arm of government responsible for the administration of justice. The old law statutorily mandated the Minister of Local Government, on the recommendation of the Paramount Chief, to hire and fire local court officers. The problem with such arrangement was that, the Minister, being a politician, was susceptible to succumb to undue influence from members of his party and appoint people loyal to such party as court officers. Such provision had negative implications as members of the public saw local courts as lacking integrity, independence and impartiality. Unlike the old law, the new law now bestows on the Chief Justice, instead of the Minister of Local Government, authority to appoint, promote, transfer, suspend and dismiss any local court officer. The Chief Justice does this after consultation with the Judicial and Legal Service Commission and the Local Court Service Committee. This provision is consistent with one of the recommendations of the country’s Truth and Reconciliation Commission.
Another positive development is that the new law also makes provision for the establishment of Local Court Service Committee in each province. These Committees will comprise of people with integrity who have contributed to the development of the community. Members of the Committee will include, among others, a paramount chief and district council official with experience in the administration of local courts, representing the Council of Chiefs in that province and the District Council, respectively. This Committee will be consulted in appointing, promoting, transferring, suspending and dismissing any local court officer, thus helping to restore integrity in the process. Also, the recruitment process of local court officers will no longer be seen as a job creation opportunity on the basis of their allegiance to the party in power, hence being political stooges.
Moreover, the previous law was silent on the criteria for eligibility for persons to be appointed as chairmen of local courts. There were hardly any set standards regarding who gets appointed. For instance, there was no requirement relating to academic qualification. Anybody could be appointed at the pleasure of the Minister of Local Government. However, the new legislation lays down some criteria as a reference point for those responsible for appointing Local Court chairpersons. One criterion is that such persons should speak the dominant ethnic language of the chiefdom with ease. Perhaps the most important requirement is the one which provides that Chairmen of Courts must be literate in the English language. This will help them better understand provisions in international human rights treaties to which the country has acceded and implement them accordingly. Other requirements are that such persons must have been resident in the chiefdom for a continuous period of not less than five years, and should have in-depth knowledge of the customs and traditions of the locality.
Furthermore, the levying of exorbitant fines on litigants by local court authorities nation-wide has been one of the foremost challenges inhibiting access to justice by the rural poor. Local Court officers have been notorious for imposing indiscriminate fines without recourse to jurisdictional limitation. According to the country’s Truth and Reconciliation Commission Report, this norm led to large exodus from rural localities by especially the youth. This enforced rural-urban migration did not only undermine development aspirations of rural communities, but later provided fertile ground for conscription by the warring factions in the civil strife that ensued. The amended Act limits the jurisdiction of local courts, and stipulates punishment for officials who impose fines above fifty thousand Leones (approximately $12) Any official who levies a fine above that stipulated by the Act will be liable to either a fine of two hundred thousand Leones (approximately $40) or to a term of imprisonment not exceeding one year, or to both.
It can be argued that a principal factor responsible for the imposition of excessive fines on litigants is that local court officers hardly give account of the dues they collect. This is reinforced by assertions that their salaries are either not paid in a timely manner or not paid all, thus using it as a justification to illegally enrich themselves at the detriment of the unsuspecting public. With the revised Act, however, it is expected that it will no longer be business as usual. Local Court officers are prohibited from pocketing such monies as the Act provides for all fees, fines and other monies collected by the Local Court to be deposited in the Consolidated Fund. Another good radiance about this Act is that Local Court officers will now be paid from the national Consolidated Fund. It is believed that this arrangement will help reduce corruption in local courts as local court officers will be less inclined to levy huge fines to amass ill-gotten wealth.
The usurpation of the mandate of Local Courts by especially Paramount Chiefs had been disturbing to human rights institutions across the country, including the Centre for Accountability and Rule of Law (CARL). A good number of customary law cases were presided over by chiefs, despite the fact that the Local Courts Act of 1963 prohibited them from adjudicating customary law matters. This was manifestly illegal and violated fundamental human rights provisions, particularly those of women and children. The current Act not only prohibits chiefs from presiding over court proceedings, it also goes further to impose penalties on those who will contravene the law. It provides that defaulters must either pay a fine of two hundred thousand Leones (approximately $40) or face a term of one year imprisonment or both.
Sierra Leone is not deficient in laws. In fact, in Sierra Leone, laws abound. Unfortunately, these laws do not always determine the modus operandi of those charged with the responsibility of interpreting them. Value of laws are measured by both the protection that it affords law abiding citizens and the assurance that those who choose to violate the laws do not go without sanctions.
It is, therefore, imperative for all stakeholders within the justice system to ensure that the amended Local Courts Act 2011 goes beyond mere enactment. This is because even where the courts are constitutionally protected, the judiciary independent, and the laws drafted in fairness to the poor, the legal system will be of little benefit to the poor unless they are able to use the legal levers that it makes available. To this end, CARL is planning to simplify the Act, conduct trainings for officials in the informal justice system, and carryout massive public education programmes relating to the revised law.
