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PROSECUTOR v SAM HINGA NORMAN & ORS - DISSENTING OPINION OF HON. JUSTICE BANKOLE THOMPSON ON DECISION ON MOTIONS BY MOININA FOFANA AND SAM HINGA NORMAN FOR THE ISSUANCE OF A SUBPOENA AD TESTIFICATION TO H.E. ALHAJI DR. AHMAD TEJAN KABBAH, PRESIDENT OF THE REPUBLIC OF SIERRA LEONE - Case No.SCSL-04-14-T [2006] SCSL 71 (13 June 2006)

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SPECIAL COURT FOR SIERRA LEONE
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TRIAL CHAMBER I

Public Document

DISSENTING OPINION OF HON. JUSTICE BANKOLE THOMPSON ON DECISION ON MOTIONS BY MOININA FOFANA AND SAM HINGA NORMAN FOR THE ISSUANCE OF A SUBPOENA AD TESTIFICANDUM TO H.E. ALHAJI DR. AHMAD TEJAN KABBAH,
PRESIDENT OF THE REPUBLIC OF SIERRA LEONE

I. INTRODUCTION

1. I most respectfully dissent from the Majority Decision of my learned and distinguished colleagues, Hon. Justice Pierre Boutet, Presiding Judge and Hon. Justice Benjamin Mutanga Itoe denying the respective Motions filed on behalf of the Second and First Accused for the issue of a subpoena ad testificandum to President Alhaji Dr. Ahmad Tejan Kabbah to testify as a Defence witness in the CDF trial. I recognise that there are valid legal reasons for the Court's Majority Decision and that it was a product of much careful deliberation. My disagreement with it stems essentially from reasons anchored in the nature, scope, meaning and application of the Rule facilitating, implementing or executing the mandate of the Special Court specifically in respect of investigations or the preparation or conduct of a trial, and on the existing state of international law regarding the grant of presidential immunity from criminal process. In dissenting, I feel compelled to observe that a subject of such legal delicacy and complexity requires a comprehensive judicial exposition of the various facets of the law involved. Accordingly, I take my cue in wrestling with the issues involved from Judge Sir Hersch Lauterpacht when he wrote:

“there are compelling considerations of international justice and of the development of international law which favour a full measure of exhaustiveness of judicial pronouncements.”[1]

2. For the purposes of this Opinion, I do recall here, and place much emphasis on, the importance of the Court’s mandate in the context of the absolute necessity of ascertaining the truth as to the events, incidents and episodes forming the factual bases of the charges as laid in the Indictment brought against the Accused persons herein. In this quest for the truth, I am guided by the principle that it is of paramount importance for the Chamber to continue to be flexible in the process of receptivity of evidence, as it had been in the case for the Prosecution, so as to ensure that no relevant evidence vital to the discovery of the truth is foreclosed by reason of legal technicalities, novel artificial judicial conceptual distinctions, or outmoded juridical doctrines not contemplated by the plain and ordinary meaning of the applicable statutory provisions and rules.

3. Let me, further, emphasize that such a flexible judicial approach is dictated, if not rendered imperative, by the doctrine of equality of arms and the principle of fundamental fairness, both of which are the conceptual underpinning of Article 17 (4) of the Court's Statute which guarantees that in the determination of any charge against an accused person he shall be entitled "to obtain the attendance and examination of witnesses on his behalf.... under the same conditions as witnesses against him, " and also of Rule 89 (C) which pre- eminently governs the question of admissibility of evidence.
   

II. THE ISSUES FOR DETERMINATION

4. Having established the analytical foundation for my Dissenting Opinion, I now proceed to identify the issues for resolution. In my considered view, two logically interrelated issues arise for determination from these Motions. The first is whether the Special Court for Sierra Leone, an international criminal tribunal, has jurisdiction to issue a subpoena to any person in Sierra Leone, irrespective of status, in connection with the fulfillment of the Court's mandate. The second is, assuming the answer to (i) is in the affirmative, whether the orders sought are necessary for the purposes of an investigation or for the preparation or conduct of the trial. It is not whether the issue of a subpoena to the person sought to be compelled to testify will serve "a legitimate forensic purpose"[2] or will be "a last resort."[3] To approach the issue from this perspective is too formalistic and deviates from the settled principle of law that Rule 89 does not authorize an assessment of the reliability of evidence at the stage of admission of the evidence but after the trial when the totality of the evidence has been presented.
   
5. Framing the issue as one of the legitimacy of the “forensic purpose” of the evidence or subpoena or that of an inquiry as to whether or not it will be “a last resort”, is, I opine, logically flawed. It clearly inhibits the quest for the truth in so far as the impartial adjudication of the case is concerned, an unquestionably key imperative of the judicial process. The crux of the matter is whether the Special Court has jurisdiction to issue subpoenas directed to any person in Sierra Leone. In resolving this issue, recourse must be had to the constitutive instruments of the Court and the relevant rule governing applications of this type, and any applicable régime of international law principles.
   

III. RULE 54: ITS NATURE, MEANING, AND SCOPE.

6. I take it to be rudimentary that in addressing a judicial task of such complexity, it is necessary to begin with a citation of the specific applicable rule. In this regard, suffice it to say that it is Rule 54 of the Rules of Evidence and Procedure of the Court. The aforesaid Rule provides as follows:

"At the request of either party or of its own motion, a judge or a Trial Chamber may issue orders, summons, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial"

7. Expounding on the nature, meaning and scope of Rule 54 as the statutory basis for the Orders sought, it is my considered view that the said Rule, given its plain and ordinary meaning (gathered from its precise and unambiguous language)[4], is sufficiently broad to encompass the authority of this Court, an international criminal tribunal (an issue that is now settled law)[5], to issue a subpoena directed to any person in Sierra Leone, whether natural, corporate, governmental or otherwise, for the purpose of the fulfillment of the mandate of the Special Court.
   
8. There is nothing, I reckon, problematic about statutory powers to issue subpoenas, nationally or internationally. They do not ordinarily raise issues of constitutionality or illegality. My judicial comprehension of the context and purpose of the Rule leads me to conclude that it would seem fatuous to suggest that Rule 54, by its terms, was intended to be restrictive and limited in scope as to the persons amenable to the Court's jurisdiction for the purpose of the issuing of the orders contemplated by the provision. It would, likewise, appear anomalous if the Court's constitutive instruments, not expressly or impliedly exempting from international criminal process state actors or agents, implicitly, were to be interpreted as requiring a distinction between the individual and official capacities of such persons as a function of whether or not the Court should exercise its discretionary authority to issue subpoenas to such persons. I hold that Rule 54 contemplates no such distinction or limiting condition. Hence, it is clear from the said Rule that, as a matter of law, the Special Court can issue process in the form of any of the orders contemplated by its plain and ordinary meaning against any person amenable to its jurisdiction in Sierra Leone.
   
9. To interpret Rule 54 other than in accordance with its plain and ordinary meaning is to blur the distinction between the process of statutory interpretation and that of statutory construction. It is settled law that where the language of a rule is plain and unambiguous, it only requires interpretation, and that only where the language is ambiguous and uncertain is construction required. Not to apply the plain and ordinary meaning of an enactment when the language is precise and unambiguous is to give the enactment a strained construction. Without sounding pedantic, I take it to be an elementary principle of legislative interpretation that words have their plain and ordinary meaning within the context and purpose of the enactment of which they form part, except where giving effect to such meaning produces extraordinary results.[6]
   
10. I am fortified in the view of the law that no such exemption is contemplated by the said Rule by the provisions of Article 6 (2) of the Statute of the Court which foreclose any claim of relief from criminal responsibility or mitigation of punishment by a Head of State or government or a responsible government official as an accused in international criminal prosecution. As to the primacy of Article 6 (2) in this regard, I draw authoritative support from the Appeals Chamber's observation in the case of Prosecutor against Charles Ghankay Taylor[7], that:

"The path of enquiry into the merit of the claim made by the Applicant essentially starts from the constitutive instruments of the Special Court, and particularly, the Statute. The Special Court cannot ignore whatever the Statute directs or permits or empowers it to do unless such provisions are void as being in conflict with a peremptory norm of general international law."

By parity of reasoning, it is evident that Rule 54 directs the Court to issue, inter alia, subpoenas. In this regard, I subscribe to the view that the Court should not impose on itself any inhibiting factors, internal or external, on its authority to do what the Rule permits or empowers it to do merely to be strictly in conformity with the jurisprudence of sister international criminal tribunals that, in the context of their mandates and sometimes contextually different formulations of their own specific rules, in their judicial wisdom, determine their own normative preferences and methodologies in performing the complex and delicate task of judicial interpretation.

IV. EXTENT OF CONSTRUCTIVE RELIANCE ON JURISPRUDENCE OF OTHER TRIBUNALS

11. But this is not to detract from the value to be gained from reliance upon the jurisprudence of other international criminal tribunals in developing one's own jurisprudence when necessary and appropriate. Such reliance is desirable and justified. It must be constructive. However, a key question arises in this context as to the extent to which there should be such reliance. This is pre-eminent, but it is also problematic.
12. In my Separate and Concurring Opinion on the Decision on Motions For Judgment of Acquittal Pursuant to Rule 98[8], I articulated a three-dimensional perspective on this issue, to wit, i) that "it may sometimes be judicially prudent to look elsewhere for jurisprudential support for the plain and unambiguous meaning once that meaning has been determined and applied," ii) that "this was a judicial option not a mandate," and iii) that "it is not necessary to have recourse to case-law authorities far afield......to seek guidance to interpret and apply the plain and ordinary meaning." In effect, it is my judicial conviction that indiscriminate reliance on the jurisprudence of other tribunals can inhibit the constructive growth of one's own jurisprudence. There is no incompatibility in advocating for the application of a doctrine of constructive reliance upon the jurisprudence of other criminal tribunals while at the same time reserving the judicial option of adhering to a principle recognizing the need for the constructive development of one’s own jurisprudence. Indiscriminate reliance has the potential of making us “judges, victims of the fallacy of slippery precedents."[9]
13. Recognising, as I do, in the context of the present Motions, that legal consistency in the exposition and application of the law justifies recourse to the ICTY Decision On Assigned Counsel Application For Interview And Testimony Of Tony Blair and Gerhard Schroeder for some judicial guidance, it is my considered view that such a choice requires a rigorous analysis of the respective factual contexts of the Milosevic applications (the base-point situation) and the instant Motions (the problem situation) so as to ascertain the factual similarities and differences between the two situations for the purpose of deciding whether the familiar analogical form of legal reasoning, to which we are accustomed, warrants the application of the ratio decidendi of the Milosevic Decision to the present Motions. A close examination of the two sets of factual features and the plausible relationships of similarity and difference between the congeries of those factual features leads to no other conclusion than that there is a major and decisive factual difference between the two situations, namely, that it was not alleged in the Milosevic situation that Tony Blair and Gerhard Schroeder, as State actors, played a leadership role in mobilising military and logistical resources for any of the warring factions in the Balkan hostilities.[10] This difference, in my view, is critical in the context of the resolution of the problem situation.[11] Given, therefore, that the two situations are legally distinguishable, where does this leave the immunity argument strenuously canvassed by the learned Attorney-General and Minister of Justice of Sierra Leone?
    

IV. THE IMMUNITY ARGUMENT

14. Predicated upon the plain and ordinary interpretation of Rule 54, the immunity argument put forward by the learned Attorney-General and Minister of Justice is legally unsupportable and therefore meretricious, both at the international level and in the context of the domestic jurisprudence of Sierra Leone. The principle that no Head of State or Government or responsible government official enjoys immunity from criminal process under international law was recently restated by the Supreme Court of Sierra Leone in the case, SC No.1/2003. Consistent with Rule 72 bis (iii), I take the liberty of quoting the relevant passage from that judgment. In that case, delivering the unanimous judgment of the Court, Renner-Thomas, CJ had this to say:
    

"A serving Head of State is entitled to absolute immunity from process brought before national courts as well as before the national courts of third states except it has been waived by the state concerned. The principle was applied by the House of Lords in the Pinochet proceedings ( see R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) at (2002), AC 119 and R. v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.3) at (2002), AC. 147 and the Case concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium before the International Court of Justice) (2002 ICJ Reports). In contrast, where the immunity is claimed by a Head of State before an international Court the position to be inferred from decisions of various national courts and international tribunals, and the writings of international jurists is that there exists no a priori entitlement to claim immunity particularly from criminal process involving international crimes.[12]

15. Endorsing the above statement of the law, I take for granted that, if a priori there is no entitlement to immunity from international criminal prosecution reserved to a Head of State or government or any responsible government official under international law as regards the perpetration of international crimes, a fortiori international law does not confer any like immunity on such officials from testifying as witnesses in international criminal trials. The validity of this proposition will become apparent in the further exposition of the law in the succeeding paragraphs of this Opinion. Specifically, therefore,in the context of the Special Court, no such immunity is expressly or impliedly provided for in the constitutive instruments or subordinate legislation of the tribunal. To suggest or imply the contrary flies in the face of Rule 54 interpreted in conjunction with Sections 21 (2) and 29 of the Special Court Agreement, 2002, Ratification, Act 2002. Accordingly, it is pertinent to note that Section 21 (2) enacts thus:
    

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

Significantly too, it is noteworthy that Section 29 provides that;

"The existence of an immunity or special procedural rule attaching to the official capacity of any person shall not be a bar to the arrest and delivery of that person into the custody of the Special Court."

16. To my mind, the cumulative effect of these provisions is that presidential immunity from prosecution has been waived by the State of Sierra Leone. On this view, the President cannot claim immunity from subpoena as a logical derivative from his explicit immunity from prosecution since it is waived vis-à-vis the Special Court for Sierra Leone. Therefore, while the President enjoys immunity under the domestic law of Sierra Leone from prosecution by reason of Section 48(4) of the Sierra Leone Constitution Act No. 6 of 1991, no immunity to appear as a witness before the domestic courts is granted to the President. No immunity to appear as a witness before international criminal tribunals, likewise, exists. One is fortified in this reasoning by the exposition of the law in the Prosecutor vs. Krstic[13], a Decision of the ICTY Appeals Chamber, which I find persuasive, and accordingly adopt. On the immunity issue, the Appeals Chamber had this to say:
    

"The [Blaskic] Appeals Chamber did not say that the functional immunity enjoyed by state officials includes an immunity against being compelled to give evidence of what the officials saw or heard in the course of exercising his official functions. Nothing which was said by the Appeals Chamber in Blaskic Subpoena Decision should be interpreted as giving such an immunity to officials of the nature whose testimony is sought in the present case. No authority for such a proposition has been produced by the Prosecution, and none has been found. Such an immunity does not exist.”

17. Underlining the persuasiveness of this view of the law, it seems to follow that in the present era of civilization, and given the existing state of international law, a court would be laying itself open to the criticism of undermining the very principle of legality which is the bedrock of the judicial process, if it were to permit characterization of the aggregation of the functions of a Head of State or Government or a responsible government official as 'public' to obfuscate the issue of whether a person holding public office should, by reason of such characterization, be deemed immune from testifying on matters concerning allegations as to the commission of crimes against humanity in the sphere of international law where such testimony may be relevant to the issues in controversy between the parties.
18. For the purposes of this analysis, it is absolutely necessary to make a pertinent legal distinction here. It is that a purported claim of functional immunity on the part of State actors from compulsion to testify before international criminal courts is certainly not on all fours with that of a claim of immunity by a Head of State or Government to testify before the courts of a foreign state. In this regard, different legal considerations may apply. It may be claimed that in such circumstances the key legal consideration is the need to preserve the sovereign equality of states on a practical as well as theoretical level. In this context, it may be necessary to have recourse to first principles of international law, and to contend that a foreign Head of State, the embodiment of the sovereignty of his State, is entitled to the same immunity as the State itself. Lord Millet in R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening (No. 3)[14] summed up the law in these terms:
    

“The immunity of a serving Head of State is enjoyed by reason of his special status as the holder of his State’s highest office. He is regarded as the personal embodiment of the State itself. It would be an affront to the dignity and sovereignty of the State which he personifies and a denial of the equality of sovereign States to subject him to the jurisdiction of the municipal courts of another State, whether in respect of his public acts or private affairs.”[15]

However, it must be emphasized that the immunity which is the subject of Lord Millet’s analysis is not in issue in the context of the present Motions. The Special Court for Sierra Leone is neither a municipal court of Sierra Leone nor a municipal court of a foreign state. It is an international criminal tribunal authorised to apply international law.

19. Furthermore, a court would not, in my view, be acting with due regard for the principle of legality if it were to base its determination of the merits of the applications of this type on whether or not there will be compliance with the orders sought, if granted.[16] Such an approach is both unorthodox and unprincipled. The Court's function is to declare the law without fear, favour or prejudice, thereby reinforcing the principle of legality. Hence, it cannot be right, that where judges are confronted with a situation where they might think the enforceability of their decision may be problematical in the sense that declaring the law will be characterized as an exercise in futility, or in familiar judicial vocabulary, as 'acting in vain', for them to wring their hands and say 'there is nothing we can do about it'. Adopting this kind of reasoning is tantamount to an abdication of the principle of legality. In addition, to submit that the subpoena should not be issued because if it is disobeyed, the court will be 'acting in vain', in my view, savours of executive high-handedness of which courts usually take a dim view. It is also, in my view, a dangerous policy for the rule of law to assert that subpoenas in the international law domain must not issue against state actors because of the possibility of disobedience.
    
20. Moreover, I do not doubt that it is clear from the opinion of highly-recognized publicists, that any governmental or state immunity from legal process in the domain of crimes against humanity or war crimes, formerly recognized by traditional international law, no longer holds sway in modern international law. Professor Cassese sums up the position in the context of criminal liability for international crimes in these terms:
    

"The rationale behind the forfeiture of a right to immunity by state officials who have perpetrated international crimes is simple: in the present international community respect for human rights and the demand that justice be done wherever human rights have been seriously and massively put in jeopardy, override the traditional principle of respect for state sovereignty. The new thrust towards protection of dignity has shattered the shield that traditionally protected state agents acting in their official capacity."[17]

21. Pursuing the analysis further, it is worth noting that before the promulgation of the Nuremberg Principles, the theoretical position in traditional international law was to recognize the existence of such immunity because of the entrenched and hegemonic character of the doctrine of state sovereignty. Contrastingly, the undisputed position in contemporary international law is that this theoretical position has changed, evidencing the dynamic nature of international law and its capability of adapting itself to new circumstances, impelled variously by common sense, logic and experience. Indeed, it is this quality of adaptability that has rendered the erstwhile immunity, once impregnable, now devoid of doctrinal content. Hence, it is presently a mere legal fiction. Accordingly, there is now no rule of international law depriving international criminal tribunals of authority to issue orders to State actors and agents to testify before them in cases where “human rights have been seriously and massively put in jeopardy.” It is evident that the contemporary law on the subject of state immunity reflects a sharp legal distinction between the post-internationalisation of human rights’ era of accountability and respect for human rights and the pre-internationalisation of human rights’ era with its accent on the absolute sovereignty of states over their nationals.

V. THE COMPETING VALUES CRUCIALLY AT STAKE

22. Jurisprudentially speaking, crucially at stake here are two competing values, namely, the overriding need to ascertain in matters of such grave humanitarian law dimensions the absolute truth, on the one hand, and the need to protect State actors or agents, acting in their official capacity, from forensic scrutiny as to the role, if any, they might have played during the course or sequence of events, incidents or episodes forming the factual bases of the charges laid in the Indictment, on the other hand. Viewed from a related perspective, it may plausibly be claimed that at issue here is whether upholding the value or principle of ascertaining the absolute truth should be subject to some carefully-crafted exemption from testifying in favour of State actors or agents even where their evidence may be relevant in assisting the Court in arriving at the truth. Whichever perspective is tenable, resolving the issue implies the exercise of judgment in interpreting and applying Rule 54, the relevant statutory provisions and the applicable régime of international law principles. It calls for a judicial effort to do what is right and not what is expedient, consistent with the freedom of judges in democratic societies "to perform their judicial duties dispassionately, impartially and objectively",[18] a clear manifestation of the primacy accorded to the authority of judgment in the adjudicatory process. In reinforcing this position, I can do no better than adopt the observation of Professor Palley underscoring the power of judicial judgment. The learned author noted:

"The Court has neither sword nor purse to enforce its views and there are certainly United States precedents for the executive to ignore judicial decisions. In the end the judiciary depends on willingness of those in power to accept disabilities."[19]

VI. HAVE THE DEFENCE SHOWN THE ‘NECESSITY’ FOR THE ISSUE OF THE SUBPOENA?

23. The various facets of the analysis thus far shift the focus back to the issue of the application of Rule 54 as the controlling principle in determining the merits of these Motions. The relevant inquiry now is whether the orders sought are necessary for the purposes of an investigation or for the preparation or conduct of the trial. In effect, the crucial question is whether the Defence have made a prima facie showing that the issue of the subpoena is necessary for the purposes of an investigation or for the preparation or conduct of the trial. The answer lies in the application of Rule 54. The Rule does not require the Defence to show by clear and convincing evidence or on a preponderance of evidence that the issuing of the subpoena is necessary for the purposes of investigation or for the preparation or conduct of the trial. Any such requirement would be unduly burdensome and exacting.

(A) THE FACTUAL CONTEXT OF THE MOTIONS

24. In my view, the Indictment, cumulatively, alleges that human rights were seriously and massively put in jeopardy and that certain persons, now facing trial before the Court, are alleged to have been involved in a leadership capacity in those activities. Two of these accused persons aver that at times relevant to the indictment, “Mr. Kabbah was commanding, materially supporting and communicating with various members of the CDF leadership, both from his exile in Conakry and later from his presidential offices in Freetown.”[20] They further aver that "the Kamajors claimed to be fighting in part, on behalf of Mr. Kabbah with a view to affecting his restoration as the democratically-elected President of the nation."
    
25. Furthermore, Second and First Accused point out that some Prosecution witnesses have mentioned the President in their oral testimonies. A few examples will suffice for the purpose of this Opinion. Firstly, reference is made to TF2-140 as “having testified that he travelled to Guinea with Mr. Norman where he met Mr. Kabbah, the then Vice-President Albert Joe Demby, the then British High Commissioner Peter Penfold.” They also say that according to the witness, Mr. Demby “indicated that it was Mr. Norman's responsibility to handle security in Sierra Leone during the President's absence, and Mr. Kabbah gave Mr. Norman a sum of money to support the war effort.” [21] Secondly, reference is made to Witness TF2-096 as “having testified that Mr. Norman arrived at Talia in 1997 along with Maxwell Khobe.” They say further that according to the witness, “Mr. Norman said that "Papa Kabbah" told him and General Khobe to fight the war together.[22] Third, reference is made to Witness TF2-190 as having testified that he travelled to Freetown to receive Mr. Kabbah from exile at the request of Mr. Norman.[23] The records confirm the existence of such evidence. These are, in my judgment, quite significant pieces of evidence calling for either rebuttal, explanation, or confirmation by the person alleged to have been at the helm of affairs of the Civil Defence Forces. They do not call for argumentation or speculation by way of legal submissions but for resolution on a factual plane as to what actually transpired at the highest level of the CDF hierarchy. In effect, the resolution of these issues is indeed necessary for an investigation or for the preparation or conduct of the trial. Who best can rebut, explain, confirm, or in any other way shed some light on these pieces of evidence than the President himself? To my mind, philosophically and practically, the answer lies in the dispensation of even-handed justice.
26. I have also carefully reviewed the summary of President Kabbah’s evidence as filed by the Defence. Recognising the possibility of expansion or modification of the said evidence, being merely a summary at this point and the permissible flexibility of expanding or modifying such evidence within the context of the principle of orality, to evaluate the weight of the evidence for the purpose of determining whether the subpoena should issue or not is not only premature but amounts also to blurring the legal distinction between admissibility of evidence and its probative value.
27. In this connection, I deem it inappropriate, at this point, to determine whether the evidence that may be given by the witness against whom the subpoena is sought will be favourable or adverse to the Defence, or to decide, as a matter of law whether such a consideration should be a conclusive factor in the equation whether the issue of the said subpoena is necessary for the purposes of an investigation or for the preparation or conduct of the trial. It would be improper for the Chamber to embark upon such an exercise, at this stage, as it would amount to a predetermination of the probative value of such evidence.

(B) SIGNIFICANT FINDING

28. Some of the foregoing matters remain contentious and are germane to the alleged massive violations of human rights and international humanitarian law. Given these specific pieces of evidence, and having regard to the fact that there was no judicial restriction on the Prosecution's ability to call witnesses of their choice, regardless of their alleged role in the alleged hostilities and however classified, I say without the least hesitation that the Defence should not be precluded from calling President Kabbah to assist the Court with evidence on these matters. I find significantly that the very nature of the charges, the gravity of the allegations, the state of the evidence, and the state of the Defence to the charges, as it is emerging and the overall interests of justice do override all considerations not to afford President Kabbah the opportunity of assisting the Court with the resolution of these matters.

VII. CONCLUSION

29. Predicated upon the several considerations, analyses undertaken thus far, and finding in this Opinion, I conclude that whenever there is a normative conflict of the nature articulated in Part V of this Opinion, the need for discovering the absolute truth, through the judicial process, becomes the paramount consideration and no legal technicalities must encumber such an objective or shield from process anyone who may assist the court in realizing this objective. [24] In this regard, my strong judicial inclination is to err on the side of Dicey's juristic conception that no one is above the law. Any other view would detract from the sacrosanctity of the doctrine of the rule of law which, if I may add, the Government of the Republic of Sierra Leone is on record as having consistently defended and unreservedly committed itself to uphold. I, therefore, rule that there is merit in both Motions, in so far as they relate to the issue of a subpoena ad testificandum to President Alhaji Dr. Ahmad Tejan Kabbah. In effect, I am satisfied that the Defence have demonstrated by prima facie evidence that the issue of the said subpoena is necessary for the purposes of an investigation or for the preparation or conduct of the trial from the Defence perspective. In short, the explicit test of necessity prescribed by Rule 54 has, in my considered view, been met by the Applicants. Hence, my dissent from the Majority Decision.
    

VIII. DISPOSITION

30. I, accordingly, grant the said Motions, and order that a subpoena ad testificandum as prayed for, be issued to President Alhaji Dr. Ahmad Tejan Kabbah to testify as a witness for the Defence in the CDF trial, with the option being granted to the President to give such testimony through the medium of closed-circuit television as provided for by Rule 85(D) of the Court’s Rules of Procedure and Evidence.
    

Done in Freetown, Sierra Leone, this 13th day of June, 2006.

[Seal of the Special Court for Sierra Leone]

[1] Sir Hersch Lauterpacht, The Development of International Law by the International Court, reprinted edition, Cambridge: Grotious Publications, 1982, page 37.
[2] See Prosecution's Response, para. 5.
[3] Id.
[4] We have it on high authority in jurisprudence common to the major legal systems of the world, notably, the common law tradition that “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.” (per Lord Tindal in the Sussex Peerage Case, (1844), 8.E.R. 1034 at 1057).
[5] The authority for this proposition is the Appeal Chamber's Decision on Immunity from Jurisdiction in Prosecutor against Charles Ghankay Taylor, Case Number SCSL-2003-01-1, 31 May 2004 at para. 42 where the Chamber stated:

"We come to the conclusion that the Special Court is an international criminal court. The constitutive instruments of the Court contain indicia too numerous to enumerate to justify that conclusion. To enumerate these indicia will involve virtually quoting of the entire provisions of those instruments. It suffices that having adverted to those provisions, the conclusion we have arrived at is inescapable."

See also the Decision of the Supreme Court of Sierra Leone, delivered on the 14th of October 2005 in the case of Issa Hassan Sesay et al. v. President of the Special Court et al., where Renner-Thomas CJ stated:

"In my opinion any other Court in Sierra Leone exercising jurisdiction apart from those listed as constituting the Judicature cannot be considered as part of the Judiciary of Sierra Leone... It is in the same manner that section 11 (2) of the Ratification Act expressly provides that the Special Court shall not form part of the Judiciary of Sierra Leone. I therefore hold that the Special Court is not part of the Judiciary of Sierra Leone as established by the by the Constitution. " (p.10)
[6] See Terence Ingman. The Legal Process, 9th ed. Oxford: Oxford University Press 2002 page 49, See also Richard Ward, Walker & Walker's English Legal System, 8th ed. London: Butterworths, 1998, page 34; see also the English case of Franklin v. A-G (1974) QB 185 where this distinction was emphasized by Justice Lawson. For an analysis of the complexity of the judicial task of statutory interpretation, see Separate and Concurring Opinion of Hon. Justice Bankole Thompson on Decision on Motions for Judgment of Acquittal Pursuant to Rule 98 in Prosecution Against Sam Hinga Norman, Moinina Fofana, Allieu Kondewa (Case No. SCSL-04-14-T), 21st of October, 2005 at page 3, footnote 1. For some recent rationalizations in respect of the notion of ‘rectifying construction’ as a legitimate judicial technique justifying a departure from the plain and ordinary meaning approach to statutory interpretation, see Francis Bennison, Threading the Legislative Maze-4, Website: www.FrancisBennison.com. Documents List: 1998. 009 pages 1-5. He sets out four reasons warranting the application of the method of strained construction: (1) where the consequences of a liberal construction are so undesirable that the legislature cannot have intended, (2) where there is an error in the text, (3) where there exists a repugnance between the words of the enactment and those of another enactment, and (4) where there has been a passage of time since the enactment was originally drafted.
[7] (Case No. SCSL-04016T), 21st of October, 2005 para. 9.
[8] Id. Prosecutor Against Sam Hinga Norman. Moinina Fofanah, Allieu Kondewa (Case No. SCSL-04-14-T), 21st of October, 2005 at para. 9
[9] See Dissenting Opinion of Hon. Justice Bankole Thompson on Prosecutor's Motion for Leave to Amend Indictment Against Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Case No-SCSL-04-16-PT), 6th May 2004 at para. 5
[10] Prosecutor v. Slobodan Milosevic, Case No. TT-02-54-T, 9 December 2005.
[11] See Steven J. Burton, Introduction to Law and Legal Reasoning, Boston: Little, Brown and Company, 1985, pages 25-40 for the various steps in the analogical form of legal reasoning.
[12] Issa Hassan Sesay et al. v President of the Special Court et. al. Judgement dated 14th October 2005, at page 13 para. 2.
[13] IT-98-33-A, Appeals Chamber 'Decision on Application for Subpoena', 1 July 2003.
[14] (1999) 2 AII ER 97, House of Lords. See also Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, Oxford: Oxford University Press, 2003 at pages 310-315 and generally Hazel Fox, The Law of State Immunity, Oxford: Oxford University Press, 2002.
[15] Id.
[16] See Response of the Attorney-General and Minister of Justice to the Applications Made by Moinina Fofana and Samuel Hinga Norman for the Issuance of Subpoena Ad Testificandum to President Alhaji Dr. Ahmad Tejan Kabbah, para. 15 for this argument.
[17] Antonio Cassese, International Criminal Law, Oxford: Oxford University Press, 2003.
[18] See Bankole Thompson, The Constitutional History and Law of Sierra Leone (1961-1995), Maryland: University Press of America Inc, 1997 page 64.
[19] See article by Claire Palley entitled "Rethinking the Judicial Role: The Judiciary and Good Government" in the Zambian Law Journal (1969) 1-35. To a similar effect is the view of Thomas Hobbes that "in the matter of government when nothing else is turned up clubs are trump" in Dialogue between a Philosopher and a Student of the Common Law of England, of Punishment (1681).
[20] Second Accused’s Motion, para. 13.
[21] Second Accused's Reply to Prosecution's Response, para. 7 (a).
[22] Id. para. 7 (b).
[23] Id. para 7 (c).
[24] For this view of the law, I draw constructive support from the principle enunciated by the International Criminal Tribunal for Yugoslavia (ICTY) in Brdanin and Talic Admission of Evidence Order (15 February 2002) at paragraph 10 that a Trial Chamber “should not be hindered by technical rules in its search for the truth.”