16 March 2004
SUMMARY OF DECISION ON PRELIMINARY MOTIONS BASED ON LACK OF JURISDICTION (VIOLATES THE CONSTITUTION OF SIERRA LEONE)

Prosecutor against Morris Kallon
(Case No.SCSL-2004-15-AR72(E))
Prosecutor against Sam Hinga Norman
(Case No.SCSL-2004-14-AR72(E))
Prosecutor against Brima Bazzy Kamara
((Case No.SCSL-2004-16-AR72(E))

On 13 March 2004 the Appeals Chamber of the Special Court for Sierra Leone dismissed three preliminary motions brought by Counsel for Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara. All Accused had brought similar motions arguing that the Special Court lacked jurisdiction to try them on various issues relating to the constitutionality of the Court under Sierra Leone law. Counsel for all three Accused made oral submissions before the Appeals Chamber in November 2003.

The Defence submitted that the Agreement between the Government of Sierra Leone and the United Nations establishing the Special Court was void, as the Government of Sierra Leone effectively made amendments to the Constitution without calling a referendum of the people of Sierra Leone, as required by the Constitution. Counsel for Sam Hinga Norman further argued that when the Special Court Agreement was concluded, the Government of Sierra Leone controlled only one-third of the country's territory and therefore lacked "effective control" of the majority of the population and was not in a position to negotiate an agreement. Counsel for Norman further argued that granting the Special Court concurrent jurisdiction with Sierra Leonean Courts and primacy over the Supreme Court further violated the Constitution. Counsel for Brima Bazzy Kamara argued specifically that the Special Court Ratification Act must be interpreted according to the Sierra Leone Constitution, and that the Special Court is not an international court, but a domestic court. Since the Statute of the Court creates crimes which were unknown under Sierra Leone law at the time of the alleged offences, those laws violate the prohibition on retro-active criminal liability (nullum crimen sine lege), and as such violate the Constitution which prohibits punishment for acts which were not criminal at the time of commission.

In response, the Prosecution submitted that the Ratification Act made clear that the Special Court was acting exclusively in an international jurisdiction, and was not subject to the Constitution of Sierra Leone. According to the Prosecution, although the Special Court has been described as a 'hybrid tribunal' the Special Court does not exist or operate at all within the sphere of the domestic law of Sierra Leone and when the Secretary-General of the UN described the Special Court as of "mixed…composition" he meant only that the staff of the Court would be composed of international and Sierra Leonean individuals. The Special Court Agreement was an international treaty and its entry into force was in no way dependent upon the enactment of valid implementing legislation by Sierra Leone. The Prosecution argued that a legitimate government does not need to be in 'effective control' of its territory to enter a treaty. Because the Special Court only functions in international law, the principle of nullum crimen sine lege requires only that the relevant acts were lawful at the time of their commission in international law.

In its Decision, the Appeals Chamber first held that the Special Court was competent to determine the legality of its own creation, since its Rules of Procedure and Evidence provide that preliminary motions relating to jurisdiction should be determined as soon as practicable.
Next, the Chamber considered the issue of constitutionality itself. Citing the Report of the UN Secretary-General on the establishment of the Special Court, the Chamber confirmed that the Special Court is established by the Agreement between the UN and the Government of Sierra Leone, that it is a 'treaty-based sui generis court of mixed jurisdiction and composition' and that its implementation at the national level would require incorporation into the national law of Sierra Leone in accordance with constitutional requirements. The Chamber held that this incorporation occurred through the Special Court Agreement Ratification Act of March 2002. In any case, the Chamber found that the Special Court does not form part of the Judiciary of Sierra Leone as stated in section 11(2) of the Ratification Act and thus cannot violate the Constitution. As stated in the UN Secretary-General's Report, the Special Court is not anchored in any existing system and is therefore outside the national court system. The Chamber held that the relevant constitutional requirements had been fulfilled and confirmed that the Special Court acts only in an international sphere and is outside the structure of national courts.

On the issue of 'effective control', the Chamber observed that it is a fundamental principle of International Law that the occupation and acquisition of territory through the use of force is illegal and territory gained in this manner does not belong to the conqueror. So long as the democratically elected Government exists and is capable of controlling the affairs of the State in the international community, it shall do so. Accordingly, the Government of Sierra Leone had authority to enter the Agreement.

In relation to the argument on the nullum crimen principle, since the Special Court acts only in an international sphere it is sufficient that the crimes existed under international law at the time of their alleged commission. All the crimes with which the Accused are charged were criminalised under international law at the time of their alleged commission, and according to the Chamber, it is no bar to prosecution that no court exists at the time of the alleged offence with jurisdiction to adjudicate those crimes, hence the nullum crimen principle was not violated.

With this reasoning, the Chamber dismissed all motions in their entirety.