By Amin Kef Sesay
In a Press Statement, one of the prominent rights based organizations that have been constructively advocating for the advancement and protection of fundamental human rights in the country, Legal Link, with Lawyer Rashid Dumbuya Esq as its Executive Director, has stated that since charged to court for sexual related offences, Mohamed Kamarainba Mansaray has taken almost 16 months in detention at the Pa Demba Road Prisons.
The institution continued by stating that even though bail had been granted to him lately by the presiding Judge on the 7th September,2021, the Master and Registrar has however incessantly refused to approve his bail despite all reasonable efforts by Kamarainba and his legal team to meet the conditions.
As an organization that defends the rights of vulnerable groups and advocate for fair trial rights of accused persons, the rule of law and democratic good governance in Sierra Leone, Legal Link says it feels enthused on the 25th day of October 2021, the birthday of Mohamed Kamarainba, to hold a Press Conference and openly communicate to the Judiciary and the wider public 15 REASONS as to why the actions of the Master and Registrar and by extension the Chief Justice in refusing to approve the bail of Kamarainba is wrong, unjust and dangerous.
Lawyer Rashid argued that while it is true that approval of bail in the High court is the exclusive function of the Master Registrar, it is important to however emphasize that the Chief Justice directly supervises the Master and Registrar within the administrative hierarchy of the Judiciary.
According to Legal Link, in that direction the Chief Justice can be held vicariously liable for the sins and / or omissions of his subordinate (Master and Registrar) where she errs in the performance of her duties within the Judiciary of Sierra Leone.
Legal Link furthered that it is within such a context that they have extended culpability on the part of the Chief Justice for being complicit over the errors of the Master and Registrar in the matter.
The 15 REASONS stated begins with the argument that the presiding Judge that granted bail to Kamarainba was not definitive, compulsive and insistent on submission of international traveling documents at all cost but was rather flexible and conditional.
A cursory look at the bail conditions as set out by the presiding Judge in the Kamarainba trial, according to Legal Link, would reveal that the Judge himself was not firm, mandatory and compulsory for the production of international traveling documents but was rather flexible and conditional upon their availability.
The question that the organization demands an answer for therefore remains: why is the Master and Registrar becoming so insistent that the accused produce his international passport even when the accused has stated in an affidavit that it has been burnt down in a fire accident? Based on the estimation of the organization such is certainly an overstretch and a travesty on the part of the Master and Registrar.
The second reason given is that Kamarainba’s sworn affidavit indicating that his international passport is missing is enough and compelling evidence to have the Master & Registrar makes a positive decision.
It was furthered that without any gainsaying, the sworn affidavit given to the Master and Registrar by the accused regarding the missing international passport certainly meets the legal threshold regarding confirming or denying whether a document is available or not.
Legal Link stated that a sworn affidavit can be admissible in court and used against the deponent where he deposed to things that are untrue in the affidavit adding how he could in fact be charged with perjury.So why the fuss? Why can’t the Master and Registrar approve bail on the facts as deposed on the affidavit and where her investigation later reveals otherwise, bring criminal charges against Kamarainba?
The organization also stated that the obligation to investigate the veracity or otherwise of the issues deposed to in the affidavit rests on the Judiciary (Master & Registrar) and not on Kamarainba or his legal counsel.
“It is disheartening and unfathomable to hear from the lawyers defending Kamarainba that they were required by the Master and Registrar to bring a Police report showcasing that the claim made by Kamarainba that he lost his passport in a fire accident was indeed true,” Legal Link lamented furthering how it is certainly an abdication on the duty of the Master and Registrar.
Encompassed in the Press Statement is that they at Legal Link holds the view that the obligation to investigate the veracity or otherwise of the facts as deposed in the affidavit rests on the Master and Registrar and not the other way round.
Giving an example, the organization stated that it is the Master and Registrar that should have requested from the Police the fire accident report as claimed by Kamarainba and not the Counsels of Kamarainba. It also furthered that if the Master and Registrar wants to know about whether the accused holds a dual citizenship, she could have simply written to the US Embassy to ascertain that fact.
“That the Master and Registrar is refusing to request the report from the Police shows outright complicity on her part and a violation of the rights of an accused person that has been granted bail,” the organization lambasted.
Legal Link postulated that it is not Kamarainba’s duty or his counsel to secure from the Police the fire report maintaining that the Judiciary has subpoena powers to compel same from the Police where challenges exist.
The organization maintains that it is important to also emphasize that where there is resistance or un-cooperation regarding access to evidence or documents, the Judiciary, through the Master and Registrar can subpoena any person or institution to come to it with any document that is of interest to the court. Such should have been done for the Police report by the Master and Registrar which is currently been held on by the Police.
Legal Link is of the view that not facilitating a speedy approval process especially where an accused has been granted bail puts the Judiciary in a bad light in the face of the public.
Certainly, this incessant delay by the Master and Registrar to approve bail to Kamarainba over trivial issues that could be resolved undermine public trust and confidence and further puts the Judiciary in a bad light in the eyes of the wider public, according to the rights based organization.
After refusing bail to Kamarainba for about 14 months over a bailable offense, Legal Link said it is certainly unfair and unjust to now see the Master and Registrar refusing to approve bail when bail has been granted by the Judge.
“The length of time that the accused has spent in detention over a bailable offense coupled with the fact that he is currently unwell makes the action of the Master and Registrar not only unjust but also a travesty,” Legal Link maintained.
It continued that Kamarainba’s sworn affidavit over his missing international passport could be used against him to proffer criminal (perjury) charges should it turn out that he did in fact lie under oath about the international passport.
Legal Link said the sworn affidavit provided by the accused should have actually excited the Master and Registrar to approve bail.
It argues such is the case because if it turns out that Kamarainba lied in his sworn affidavit, such could warrant further criminal charges levied against him by the State.
Apparently, for the Master and Registrar to show outright disregard for the efficacy of a sworn affidavit, based on Legal Link, shows disrespect for due process and compelling evidence tendered in a Judicial process.
Legal Link says it believes that the two sureties standing in Kamarainba’s recognisance as well as the house property tendered; coupled with the reporting conditions imposed are enough securities to incentivize approval from the Master & Registrar.
As a matter of fact, Legal Link says it expects the Judiciary to show the highest level of independence and impartiality in the trial in a bid to dissuade the bias already held by the public that such political leader will never get a fair trial.
The prolonged trial of the Kamarainba’s case, the entity stated, coupled with the incessant refusal by the Judiciary (Master & Registrar) to ensure his temporal release violates several international human rights treaties to which Sierra Leone is a party.
It says no doubt, the prolonged detention and incessant refusal by the Judiciary to approve the bail of Kamarainba violates a plethora of international treaties and conventions that Sierra Leone has signed and ratified such as the Universal Declaration of Human Rights, the International Convenant on Civil and Political Rights, the International Convenant on Economic, Social and Cultural Rights, the African Charter on Human and People’s Rights etc to name but a few. This ongoing infraction, says Legal Link, will certainly continue to undermine the human rights credentials of the country at the international level.
The overt complicity displayed by the Judiciary in the face of such inhumane treatment meted on Kamarainba sets a dangerous precedent that may be referenced tomorrow by politicians to justify assault on critics,opposition members and dissenting voices. according to Legal Link
No doubt, this overt complicity that has been displayed by the Judiciary over this trial, the organization stated, provides a dangerous precedent that will come back to hunt many in the political landscape in the future if not speedily addressed.
The rights based organization maintains that keeping Kamarainba, a leader of a whole political party behind bars even when he had been granted bail, imputes political interference in the justice system and further undermines the fight against sexual penetration, rape and gender based violence in the country.
Legal Link stated that while they commend the Government over its stance to address the scourge of rape and sexual violence and penetration on young children in the country, it is equally important that the fight against SGBV is fought within the due process of the law and never politicized.
It says by all indication, and from all the injustices that have been meted out against the accused during the trial, it may be difficult to divorce political interference from the Kamarainba case before the courts. The organization maintains that it is certainly not a good state of affairs for the fight against rape and sexual violence in the country.
Legal Link added that the prolonged detention and incessant refusal to approve bail to Kamarainba will make it harder for not only the accused but also the public to see the trial as just or accept an indictable outcome.
According to the organization, given the evidences of unfair trial and bias already perceived against Kamarainba in the trial, many Sierra Leoneans have opined that it would be surprising if the Judiciary were to acquit Kamarainba at the end of the trial.
That is the case because, in their view, Kamarainba has already been found guilty by the courts even before the conclusion of the trial.
The organization concluded by stating that while they continue to complement the efforts of Government in its fight against rape and sexual violence in the country, they at LEGAL LINK are deeply and equally concerned about upholding the fair trial rights of accused persons that are charged before the Sexual Offences Model Court.
Legal Link stated that it is against such a backdrop that they are humbly appealing that the bail granted to Kamarainba by the presiding Judge be approved forthwith by the Master and Registrar as well as the Chief Justice of the Republic of Sierra Leone.
