1. What is the Special Court Act?
The Special Court Agreement 2002 (Ratification) Act, 2002 (Sierra Leone) is the ratification and implementation legislation for the international treaty between Sierra Leone and the United Nations called the Agreement on the Establishment of a Special Court for Sierra Leone.  The Agreement sets out the respective obligations of Sierra Leone and of the United Nations to ensure the Special Court can work effectively as an independent international judicial institution.  For Sierra Leone, these obligations include aiding in the establishment of the Special Court, assisting the Court when it makes requests and complying with any orders the Court issues.

2. Why do we need the Special Court Act?
In Sierra Leone, international treaties are ratified by Parliament.  In addition, Sierra Leone is a “dualist” system, which means that international treaty obligations cannot be enforced in Sierra Leone law without implementing legislation.  The Special Court Act fulfils both the functions of a ratification bill and of implementing legislation.
The Special Court Act:

1. Completes the internal ratification procedures required by the Sierra Leone Constitution in order for the Agreement for the Special Court to enter into force; and
2. Implements the obligations incurred by Sierra Leone as a result of signing the Agreement, including providing a legal basis in Sierra Leone law for Sierra Leone authorities to work with the Special Court.

3. What are Sierra Leone’s obligations under the Agreement?
Sierra Leone has a number of obligations under the Agreement, which can be grouped in three categories:

1. Sierra Leone authorities have to assist the Special Court upon a “request” from the Special Court;
2. “Orders” of the Court have to be enforced in Sierra Leone; and
3. The Court’s legal personality and its privileges and immunities have to be recognised in Sierra Leone, so that the Court can function on a practical level.

4. What is the difference between a request for assistance and an order of the Special Court?
Sierra Leone can work with the Special Court in two ways, either by fulfilling a request from the Special Court for assistance or by complying with an order issued by the Court.

The Special Court Act foresees that in many cases Sierra Leone will be in a position to cooperate with requests for assistance even in the absence of an order or warrant from the Judges of the Special Court.  For example, whenever the Prosecutor (or the defence) requires assistance in the location of a witness, or in the securing of a site, they can issue a request for assistance, without asking for the Special Court Judges to issue an order.

Part 3 of the Special Court Act provides for the possibility of a request for assistance being made to the Attorney-General and Minister of Justice.  Upon receiving such a request, if the Attorney-General and Minister of Justice decides that he is in a position to comply with such a request, then the implementing legislation empowers him to do so.

If the Attorney-General and Minister of Justice decides it is not possible to comply with the request, for example, if the request is such that it falls outside the discretionary power of the executive in the absence of a Court order, the party seeking assistance would need to ask the Judges of the Special Court to issue an order.

If the Special Court judges issue an order, there is no discretion as to compliance.  The Special Court Act, in part 5, provides for orders issued by the Special Court to be directly enforceable in Sierra Leone, as if they had been issued by a Sierra Leone court.

The self-executing nature of Special Court orders empowers the Sierra Leone police or anybody else authorised by a Special Court order (for example, the Special Court investigators) to execute that order.  This helps to guarantee the Court’s independence.  Failure to comply with an order of the Special Court is an offence, punishable either by the Special Court itself or by the Sierra Leone courts pursuant to the Special Court Act.

5. To whom does the implementing legislation apply?
The Special Court Act applies to all individuals and all institutions and bodies established under Sierra Leone law, whether that is pursuant to the Constitution, an Act of Parliament or otherwise, including the Government.  Therefore, for example, section 21(2) of the Special Court Act reads as follows:

Notwithstanding any other law, every natural person, corporation, or any other body created by or under Sierra Leonean law shall comply with any direction specified in an order of the Special Court.

This is something about which the Sierra Leone Government or Parliament do not have a choice, if they are to stand by the international obligation entered into by signing and ratifying the Agreement on the Special Court.
 

6. How does the implementing legislation affect the relationship between the TRC and the Special Court?
It does not.  The Agreement on the Special Court provides no exceptions on who has to comply with requests and orders from the Court.

Every Sierra Leone person and institution has to comply with orders issued by the Special Court, irrespective of who or what they may be or what type of issues or material they may be dealing with.  This is an international legal obligation that cannot be changed or avoided by any domestic law.

The Special Court Act, therefore, implements the international obligation and does not in itself affect the relationship between the TRC and the Special Court.

It is possible for the TRC and the Special Court to enter an agreement whereby the institutions agree on how they will relate to each other, including how and in what circumstances the Special Court can issue requests for assistance or information directly to the TRC.

However, the Special Court’s ability to issue an order can only be limited by the Court itself and is not something the Special Court Act regulates, since it only gives effect to what is already contained in the Agreement.
For more information on this issue see the “Briefing Paper on Relationship between the Special Court and the Truth and Reconciliation Commission”, prepared by the Office of the Attorney-General and Minister of Justice of Sierra Leone for the Special Court Planning Mission.
 

7. What are deferral and discontinuance?
The Special Court has primacy over all courts in Sierra Leone, pursuant to article 8 of its Statute.  This applies only in respect of Sierra Leonean courts, not the TRC or other national commissions created by Parliament that are subject to the general obligation to comply with orders of the Special Court.

Primacy refers solely to the question of which court has jurisdiction over a particular case or individual.  As such, it only applies where one body either is or could be seized of jurisdiction in a particular matter.  If this situation occurs, the Special Court can request the Sierra Leone court to defer consideration of the matter.

Similarly, article 9 of the Statute sets out the non bis in idem principle, namely that if a person has already been tried by the Special Court, Sierra Leone courts may not try that person again for the same criminal acts, whether or not they were convicted or acquitted.  In that situation, the Special Court may request that the Sierra Leone court concerned discontinue the case against the accused person.

In both cases, the Special Court Act sets the Attorney-General and Minister of Justice as the person to whom such a request should be made, following the practice in Sierra Leone concerning the deferral or discontinuance of criminal cases.  While the Special Court Act gives the Attorney-General and Minister of Justice some discretion in deciding whether or not to carry out the request, should he decide not to comply, the Special Court will be able to order compliance, eliminating any discretion on the part of the Government.  Such an order would fall under the general provisions of the Special Court Act in respect of orders (part 5) and, as such, the order would be self-executing.
 

8. What is a forfeiture order and what happens if the Special Court issues a forfeiture order?
A forfeiture order is an order the Special Court can make requiring a convicted person to give to the Court any property (in Sierra Leone or abroad), including money from the sale of property that has been obtained as a result of criminal activity.

In issuing a forfeiture order, the Court can either require that the property go to its rightful owner or, if the rightful owner cannot be identified or found, that the property go to the State of Sierra Leone.

The Special Court Act requires the State to use any property forfeited to it either for the purposes specified in the forfeiture order or, if no purpose is specified, the forfeited property should be used to address the consequences of the conflict.  This can be done directly, for example, through designating a building to be used for some public purpose such as a school or hospital, or indirectly, through selling property and depositing the money made from the sale into the War Victims Fund established pursuant to the Lomé Peace Agreement.
 

9. Does the implementing legislation affect the amnesty granted under the Lomé Peace Agreement?
It does not.  While the Lomé Agreement bars the government from prosecuting crimes committed in furtherance of the parties’ objectives from 1991 to 7 July 1999, when the representative of the United Nations Secretary-General signed, he stated expressly that the amnesty provisions could not be applicable to genocide, crimes against humanity, war crimes or other serious violations of international humanitarian law.

Hence, while the amnesty provisions still apply for crimes under Sierra Leone law committed until 7 July 1999, they do not prevent people from being prosecuted for violations of international law before the Special Court, which is an international judicial body.

Therefore, the amnesty continues to apply in the Sierra Leone courts and even the Special Court’s Prosecutor can only prosecute for crimes under Sierra Leonean law committed after 7 July 1999.

10.    How can I learn more about the Special Court?
The Statute and Agreement of the Special Court are available on the internet on http://www.specialcourt.org/.  This website is maintained by No Peace Without Justice for the purpose of providing information on the negotiations leading up to the establishment of the Special Court, on its constitutive instruments and on its operations.

The website also contains this document, as well as other fact sheets and leaflets relating to the Special Court.

These documents are also available through the Special Court Working Group, a coalition of Sierra Leonean NGOs working for accountability in Sierra Leone.  The Special Court Working Group has Regional Coordinators in each of the four regions and has planned sensitisation seminars and Training the Trainer sessions throughout the country in cooperation with No Peace Without Justice.

Please feel free to reproduce and distribute this leaflet, ensuring that copies are made available in full, and credit is given to the Special Court Working Group and No Peace Without Justice.