Table of Contents
1. Introduction
2. Legal Issues
2.1 Legal framework of the two institutions
2.2 Obligations of Sierra Leone
2.3. Conclusion on the Legal Issues
3. Sharing of information
3.1 TRC information is not “evidence”
3.2 Investigators able to treat information confidentially
3.3 TRC statements can be provided to Judges “in camera”
3.4 Special Court and other National Commissions
3.5 Conclusions on information sharing
4. Referral system
5. Sharing of resources
6. Formulation of methods of cooperation
6.1 Not pitching the two institutions as “rivals”
6.2 Formulating guidelines without the institutions concerned
7. Conclusion

1. Introduction
Sierra Leone has suffered a decade-long conflict during which many atrocities were committed against its people. There is much residual distrust, suspicion and suffering among the people of Sierra Leone as a direct result of events that occurred during the conflict.  Sierra Leone must therefore address both the consequences and causes of the conflict in order to move forward to a sustainable and prosperous peace.
The Special Court and the Truth and Reconciliation Commission (TRC) are intended as a means to achieve these goals, by establishing accountability for the atrocities committed in Sierra Leone, assisting in reconciliation and preventing a recurrence of conflict.  In fact, the Truth and Reconciliation Commission Act specifically sets out the purposes of the TRC, which could equally be said to be the purposes of the Special Court, as follows:

• To create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone;
• To address impunity; respond to the needs of the victims;
• To promote healing and reconciliation; and
• To prevent a repetition of the violations and abuses suffered.¹

This paper is therefore intended to address some important considerations on both the substance of the relationship between the institutions as well as the method by which that relationship should be defined and resolved.

2. Legal Issues
2.1 Legal framework of the two institutions
The Truth and Reconciliation Commission is established by an Act of Parliament that implements one of the key provisions of the Lomé Agreement between the Government of Sierra Leone on the one hand and the Revolutionary United Front on the other hand.²    The legal basis of the Truth and Reconciliation Commission is therefore Sierra Leonean law,³   which makes the Truth and Reconciliation Commission a fully national institution, despite its international components.  Additionally, the Truth and Reconciliation Commission is a quasi-judicial institution, with powers to issue subpoenas and administer oaths and affirmations, but no power to enforce those provisions legally through trial for contempt of court, for which it must refer cases to the Sierra Leone High Court.⁴

This can be contrasted with the Special Court, which is being established by an international treaty: the Agreement between Sierra Leone on the one hand and the United Nations Organisation on the other hand.⁵   The implementing legislation for the Special Court will both ratify the Agreement (as required by Sierra Leone constitutional law) and enable the Sierra Leone institutions to comply with the Agreement, thus facilitating in practice the operations of the Special Court within the territory of Sierra Leone. Unlike the Truth and Reconciliation Commission Act, however, the implementing legislation will not be the legal basis for the Special Court: that legal basis will be the Agreement for the Special Court. Thus the Special Court will be an international institution, despite its national components.  Additionally, the Special Court will be a judicial institution with the power to prosecute and punish for abuse of its process, for example the commission of perjury.⁶

One thing that both institutions have in common is their independence from the body or bodies that established them.  Thus the TRC is fully independent from the Government of Sierra Leone and the Special Court is fully independent both from the Government of Sierra Leone and from the United Nations.  However, this does not mean that either body exists without restraints.  Rather, the nature, mandate and operations of each institution is governed by their constitutive instrument: the Truth and Reconciliation Act on the one hand and the Agreement for the Special Court on the other hand.⁷

2.2 Obligations of Sierra Leone
The Agreement for the Special Court sets out the relationship between the Special Court on the one hand and Sierra Leone on the other by imposing a legally binding obligation of cooperation on Sierra Leone.  According to article 17 of the Agreement:

“1. The Government shall cooperate with all organs of the Special Court at all stages of the proceedings.  It shall, in particular, facilitate access to the Prosecutor to sites, persons and relevant documents required for the investigation.
2. The Government shall comply without undue delay with any request for assistance by the Special Court or an order issued by the Chambers, including, but not limited to:
a. Identification and location of persons;
b. Service of documents;
c. Arrest or detention of persons;
d. Transfer of an indictee to the Court.”.

Thus Sierra Leone and all Sierra Leonean natural and legal persons, institutions and bodies, irrespective of whether they are constitutional, governmental or otherwise, must comply with all and any requests issued by any organ of the Special Court and with orders issued by the Chambers of the Court.⁸

The obligation to cooperate should not be confused with the concept of primacy under article 8 of the Statute, which reads as follows:

“2. The Special Court shall have primacy over the national courts of Sierra Leone.  At any stage of the procedure, the Special Court may formally request a national court to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence.”

It should also be remembered in this respect that the Agreement for the Special Court is a legally binding international agreement that cannot be circumvented by either pre-existing or subsequently enacted national law.  Rather, should there be a conflict, domestic law has to be altered in order to comply with Sierra Leone’s international obligations. Sierra Leone is therefore compelled to ensure that the necessary domestic legal conditions exist to enable it to fulfil this obligation as set out in the Agreement.  In fact, even remaining within the confines of the domestic legislation of Sierra Leone, the Act ratifying and implementing the Statute and Agreement, as subsequent legislation, has the effect of ensuring that any pre-existing national legislation is automatically brought into line with the obligations of the Agreement and the Statute.

2.3. Conclusion on the Legal Issues
In many ways it would be disingenuous to claim that the relationship between the Special Court on the one hand and any Sierra Leonean institution, including the Truth and Reconciliation Commission, on the other hand is not clear.

This relationship is in fact clearly spelt out in the Statute and Agreement: the Special Court will be a treaty-based international judicial institution with which all Sierra Leonean institutions must cooperate and with whose orders they must comply.⁹

The question thus becomes a policy issue on how to adopt operational guidelines that limit the necessity for the Court to exercise its coercive powers and instead allows it to operate with maximum cooperation from national institutions.
 

3. Sharing of information
3.1 TRC information is not “evidence”
One of the most apparent issues in respect of the relationship between the two institutions is the question of disclosure to the Special Court of information provided in confidence to the TRC. The Special Court is a judicial institution that will initially apply the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR Rules), modified by the Judges with an eye to the Criminal Procedure Act of Sierra Leone.  Under the ICTR Rules, and even more so under the Sierra Leone Criminal Procedure Act, information such as that received by the TRC would not be such that it may be admissible as evidence by the Special Court.  The information would be untested by cross-examination and there is little doubt that the Judges would not be satisfied with it as evidence of the facts recounted.  Such information, therefore, is not such that in itself would be tendered as evidence in open court.

3.2 Investigators able to treat information confidentially
Given that TRC information would not be “evidence” presented in open court, the issue can be narrowed down to whether investigators should or should not have access to it if they decide that it is needed for their investigations.  Even in this case, which may not in fact come about, given that the TRC will almost certainly be established after Special Court investigations have already commenced their operations, the concerns raised should be resolved by such information being received in confidence and treated as confidential by investigators.  Special Court investigators will deal routinely with confidential information and that, due to the inherent nature and especially due to the composition of the two institutions, the Special Court will necessarily have more effective methods for ensuring confidentiality than the TRC.  The burden of deciding how these matters should be resolved will necessarily fall on the Prosecutor, who is responsible for the investigation and prosecution of crimes within the jurisdiction of the court.¹⁰

3.3 TRC statements can be provided to Judges “in camera”
There are, in fact, occasions that immediately come to mind that might require the Judges to consider testimony deriving from TRC hearings.  The most obvious example is a challenge by the defence to the credibility of a prosecution witness by reference to a prior statement given by that witness to the TRC, which could result in preventing a miscarriage of justice.  An other example relates to evidence pertaining to patterns of conduct that can establish a plan or policy of a systematic attack against a civilian population to commit serious violations of international humanitarian law.
Whether it is exculpatory evidence, lead evidence or evidence of a pattern of conduct necessary to prove the existence of crimes against humanity, the provisions in the Statute and the Rules for evidence to be heard in camera and for the records to be kept confidential are sufficient to maintain the confidentiality of the TRC hearings without attaching the risk of a miscarriage of justice.
Again it seems most likely that the Judges of the Special Court will be well placed to treat information confidentially.

3.4 Special Court and other National Commissions
The TRC and the Special Court have the same objective of addressing the need for a stable peace through a process of accountability for violations of international humanitarian law.  The TRC also has a wider historical mandate of establishing the causes of the conflict and making recommendations on how to address those causes in order to prevent future conflict.  Neither of those institutions will work in isolation: there is a number of other national commissions and institutions in Sierra Leone that have an overlapping mandate and jurisdiction with both the Special Court and the TRC, including the CCP, the NCDHR, NCRRR and NCDDR. Each of those bodies is created by Act of Parliament that endows these bodies with independence from the Government and, in many cases, there are provisions for the confidentiality of the information in their possession.  Therefore an additional consideration is whether the discussion on the relationship of the Special Court and National Commissions should be limited to the TRC, or should encompass similar issues of sharing of confidential information with all Sierra Leone National Commissions.

3.5 Conclusions on information sharing
Within the Statute and Agreement, there is scope for the Prosecutor to conduct his or her investigations in such a way as to limit the need for the use of coercive powers.

There is also some discretion on the part of the Judges to determine how and when they will hear evidence presented in Court.

However, it is not within the powers of Sierra Leone or any other entity, to abolish the ability of the Prosecutor to conduct investigations as he or she sees fit nor the ability of judges to hear such evidence as they may deem necessary for the proper conduct of a case.

It is worth repeating here that the Special Court will be an independent institution whose primary actors are required to act independently and impartially, according to the powers and authority established by the Statute and Agreement.

Thus, while national institutions are required to comply with requests and orders of the Special Court, it will be up to the discretion of the Prosecutor and judges to determine when and how those requests and orders are made.

4. Referral system
According to article 15(5) of the Statute of the Special Court, the Prosecutor will be required to consider methods of dealing with juvenile offenders other than criminal prosecution, having particular regard to available truth and reconciliation measures.  It may also be possible that the Prosecutor, upon review of cases other than those involving juvenile offenders, may consider that the TRC would be a more appropriate mechanism for disposing of that particular case.

It would thus be useful to build into any relationship between the Special Court and the TRC a mechanism by which the Prosecutor or the Court may refer such cases for the consideration of the TRC or to other relevant national institution.  Consideration could also be given by the TRC to whether it will wish to bring specific cases to the attention of the Prosecutor of the Special Court. Specifically, if the TRC has grounds to believe that such cases would fall within the jurisdiction of the Special Court, then as a matter of policy those cases should be referred so that vital information is not withheld from the investigators.
 

5. Sharing of resources
While it is recognised that the TRC and the Special Court are independent institutions with separate budgets, it would be useful to consider ways in which they may share their resources. The two most obvious areas in which this may occur relate to the training of staff, in particular investigators and interviewers, and public information and education.

Investigators and interviewers will often be the first people from any accountability mechanism to have contact with a witness base.  They must be properly trained in interviewing victims of the particular types of crimes and human rights violations that the TRC and Special Court will be concerned with.  They must also be able to provide any necessary humanitarian and psycho-social support, either directly or through a referral system to organisations specialising in these areas.

Interviewers and investigators will frequently be the people who will be required to explain the mechanisms, answer questions and will often be the first people to whom witnesses tell their stories.  In light of this, it is important to ensure that interviewers are properly trained both to facilitate the gathering of information as well as to make the process as beneficial as possible for the witness.  It would be of great benefit to the effective functioning of the TRC, as well as other national institutions such as the Sierra Leone Police, the Bar and the Judiciary, if any training provided by and for Special Court personnel be designed for the long term capacity building of the culture of respect of the rule of law in Sierra Leone.

It is equally important that information presented to the public other than by interviewers or investigators about the TRC and the Special Court, particularly the relationship between them, is consistent. The easiest way to achieve this is for the two institutions to conduct a joint public information and education campaign, and even when this is not done, it is critical that different messages are not disseminated by the two institutions lest the public lose confidence in both.

Therefore the resources of the TRC and Special Court could be shared in these areas to ensure all interviewers and investigators are trained to the same standards and ensure consistent information about the accountability mechanisms for Sierra Leone is presented to the general public.

6. Formulation of methods of cooperation
6.1 Not pitching the two institutions as “rivals”
One concern that has been expressed is that unless the issue of the relationship between the TRC and the Special Court is addressed authoritatively and immediately, the two institutions will not be able to co-operate effectively. However, it is very important that the two institutions are not presented as “rivals”.

The Special Court and the TRC will have the same general mandate of truth and accountability, with substantially the same subject matter jurisdiction.  The primary difference will be that while the Special Court will prosecute only very few defendants who “bear the greatest responsibility”, the TRC will be able to reach a much larger section of the population.  This is how their relationship can and should be presented: they will be two institutions working for the same purpose and applying different methods to different people: the Special Court for the few who meet the personal jurisdiction requirements, the TRC for everybody else.

Trying to pre-ordain the methods of cooperation and information sharing in advance of the establishment of the two institutions, and presenting this as a “problem”, can only be detrimental to the process as it pitches the two institutions as rivals “competing” for the same information.

6.2 Formulating guidelines without the institutions concerned
It is essential that the TRC and the Special Court work out an effective method for the sharing of information, including issues of “chain of custody” and how to maintain the confidentiality of information.  However, the decisions need to be taken by those that will need to implement them, not in advance by parties who will not have to undertake that implementation. It is particularly important that this is done in such a way as to underscore the independence of each of the institutions not only from each other but also from the United Nations and Sierra Leone.  This discussion, therefore, should take place directly between the TRC and the Special Court, in consultation with other stakeholders, such as the Government, Civil Society, UNAMSIL, the Management Committee and the parties to the conflict.

7. Conclusion
The legal relationship between the Special Court and the Truth and Reconciliation Commission is clear.  The Special Court is an international judicial body whose requests and orders require no less than full compliance by the Truth and Reconciliation Commission, as by all Sierra Leonean national institutions, in accordance to the international obligations agreed to by Sierra Leone.

The mandate of each institution is also clear: to establish accountability for the atrocities committed during the conflict and thereby end the culture of impunity, restore the rule of law and allow Sierra Leone to put the past behind it and move forward to a peaceful future.

The only issue to resolve is whether the Prosecutor and the Court, as a matter of policy, should consider guidelines to protect, whenever it is necessary, the confidentiality of information originating from the Truth and Reconciliation Commission.

The most effective means by which such guidelines can be devised, both in terms of their content and their implementation, is if both institutions devise the guidelines themselves at such time as both institutions are operational.

Footnotes
1. Truth and Reconciliation Commission Act 2000, section 6(1). [Return to text]
2. See the Lomè Agreement, article XXVI, which states “1. A Truth and Reconciliation Commission shall be established to address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story, get a clear picture of the past in order to facilitate genuine healing and reconciliation.” [Return to text]
3. See the Truth and Reconciliation Commission Act 2000, section 2(1), which states “There is hereby established a body known as the Truth and Reconciliation Commission.” [Return to text]
4.  See the Truth and Reconciliation Commission Act 2000, section 8, which requires referral to the High Court of Sierra Leone for trial in these instances.  Additionally, although section 9 sets out the offence of obstruction of justice it does not endow the TRC with jurisdiction to hear these matters. [Return to text]
5. See the Agreement for the Special Court, article 1(1), which states “There is hereby established a Special Court for Sierra Leone …” and the Statute for the Special Court, preamble, which states “Having been established by an Agreement between the United Nations and the Government of Sierra Leone …”. [Return to text]
6. See, for example, the Rules of the ICTR, rule 77 on contempt, which will be applicable in the Special Court by virtue of article 14 of the Statute. [Return to text]
7. It should be noted in this respect that the Truth and Reconciliation Commission Act can be amended by subsequent Sierra Leone legislation, whereas the Agreement for the Special Court can only be amended by mutual agreement between Sierra Leone and the United Nations Organisation. [Return to text]
8. The fact that the obligation is imposed on the “Government” should not be misinterpreted to mean that the obligation is only imposed with respect to governmental institutions.  Rather, the obligation is imposed on the State of Sierra Leone, represented by Government, and subsists in respect of all institutions and bodies established under Sierra Leone law, whether that be by the Constitution, by Act of Parliament or otherwise. [Return to text]
9. In addition to that obligation is the statutory requirement that the Special Court have jurisdictional primacy, according to which Sierra Leone courts must defer to the jurisdiction of the Special Court.  However, as noted, this neither substitutes for nor limits the requirement of courts or any other body to cooperate with the Court in any way whatsoever. [Return to text]
10. See the Statute for the Special Court, article 15(1). [Return to text]
 

This report was prepared by the Office of the Attorney General and Ministry of Justice of Sierra Leone for the Special Court Task Force with the technical cooperation of No Peace Without Justice.