[Home] [Databases] [WorldLII] [Search] [Feedback] Special Court for Sierra Leone

PROSECUTOR v SAM HINGA NORMAN & ORS - SEPARATE CONCURRING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE ON THE CHAMBER MAJORITY 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 RE - Case No.SCSL-04-14-T [2006] SCSL 72 (13 June 2006)

TRIA L CHAMBER I

SEPARATE CONCURRING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE ON THE CHAMBER MAJORITY 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, HON. JUSTICE BENJAMIN MUTANGA ITOE, Judge in Trial Chamber I of the Special Court for Sierra Leone;

SEIZED of Two Motions filed by the 2nd and 1st Accused respectively, urging The Chamber to issue a Subpoena Ad Testificandum against H.E. Alhaji Dr. Ahmad Tejan Kabbah, President of the Republic of Sierra Leone and Head of State;

MINDFUL of the Majority Chamber Decision dated this day, the 13th of June, 2006, denying the said Motions;

Having subscribed to and being in full agreement with the Conclusions of the said Chamber Majority Decision on the said Motions;

MINDFUL of the fact that these Motions are filed in order to compel President Kabbah to appear as a witness on their behalf in the criminal proceedings now on-going against them in Trial Chamber 1;

MINDFUL of the written submissions of The Applicants, of The Prosecution and of the Hon. Learned Attorney General Minister of Justice;

MINDFUL of the oral submissions in Court of The Applicants, of The Prosecution, and of the Hon. Learned Attorney General Minister of Justice on the 14th of February, 2006;

MINDFUL of the provisions of Article 17 of the Agreement between the United Nations and the Government of Sierra Leone, dated the 16th of January, 2002, setting up the Special Court for Sierra Leone;

NOTING of the provisions of Article 6(2) of the Statute of the Special Court;

MINDFUL of the provisions of Article 17 of the said Statute and in particular, its Article 17(4)(e) on the right of the accused to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

MINDFUL of the provisions of the Special Court Agreement, 2002, (Ratification) Act, 2002, and in particular, those of Sections 21(1), 21(2), of Part VI of the said Act and noting in particular, the provisions its Section 29;

MINDFUL as well of the provisions of the Rules 8(A) and 8(B) of the Rules of Procedure and Evidence of the Special Court;

MINDFUL of the written and oral submissions of the Parties as are highlighted and reproduced in The Chamber Majority Decision;

TAKING COGNIZANCE of the provisions of the Sections 40, 48(4), 157(1) and 165 of the 1991 Constitution of the Republic of Sierra Leone and in particular, those of Section 48(4);

MINDFUL of the provisions of Rule 54 of the Rules of Procedure and Evidence of the Special Court;

DO HEREBY ISSUE THE FOLLOWING SEPARATE CONCURRING OPINION TO THE CHAMBER MAJORITY DECISION.

I. FACTS BRIEFLY STATED

1. The 2 Applicants to this Motion, Moinina Fofana and Samuel Hinga Norman, are 2 of the 3 Persons charged by The Prosecutor of the Special Court on an 8 Count Indictment for having allegedly committed crimes against humanity and other offences relating to International Humanitarian Law and in violation of Articles 2, 3, and 4 of the Statute of the Special Court for Sierra Leone.
   
2. On the 14th of July 2005, The Prosecution closed its case. Thereafter, The Defence Counsel for the 3 Accused Persons filed Motions for Judgements of Acquittal in accordance with Rule 98 of the Rules of Procedure and Evidence. Even though these Motions were partly upheld, The Chamber, in its Judgement on the Motions for Judgements of Acquittal, delivered on the 21st of October, 2005, found, and came to the conclusion, that the evidence so far adduced by The Prosecution was, within the context of Rule 98 of the Rules of Procedure and Evidence, capable of supporting a conviction on what was left of all the 8 Counts of the Indictment. Accordingly, the 3 Accused Persons were put to their Defence. The Chamber, amongst other things, ordered the Accused Persons to file a list of their witnesses they intended to call to testify on their behalf.
   
3. Amongst the names of witnesses featuring in both the witness lists of the 2nd and 1st Accused, The Applicants in this Motion, is that of H.E. Alhaji Dr Ahmad Tejan Kabbah who is the subject matter of the Motions for the issuance of the Subpoena in question.
   
4. The Applicants and The Prosecution have made written submissions. In view of the persistent reference in these submissions to the alleged implication and participation of H.E. President Kabbah in the execution of the war, The Chamber, by an Order made on the 19th of January, 2006, directed that the said submissions, including those of The Prosecution, be served on the Hon. Learned Attorney General Minister of Justice of the Republic of Sierra Leone who normally, in litigation, would represent the interests of Government or of The President whenever its or his acts or activities are called to question or are legally challenged before a Court of Law.
   
5. In view of the undeniable importance and intricacy of the issues raised in the motions and in the submissions of the Parties, The Chamber decided to grant to all the Parties, a right to make oral submissions on issues which they may not have addressed in their written submissions and further, to make some clarifications on certain issues raised in the written submissions.
   
6. On the 14th of February, 2006, The Chamber heard the oral submissions of Counsel on behalf of the 2 Applicants, of The Prosecution, and of the Learned Attorney General Minister of Justice who was given the option to appear or to be represented in Court for purposes of providing a legal representation for H.E. The President in particular, and the Government of Sierra Leone in general, particularly in relation to the issues raised against The President as well as the contextual application of the Agreement, the Statute, and the Special Court Agreement, 2002 (Ratification) Act, 2002, are concerned.
   
7. These Motions are premised, inter alia, on the provisions of Article 54 of the Rules of Procedure and Evidence of the Special Court.
   

APPLICABLE LAW

8. Section 54 of the Rules of Procedure and Evidence which provides as follows:
   

‘At the request of either party or of its own Motion, a Judge or a Trial Chamber may issue such Orders, Summonses, Subpoenas, Warrants and Transfer Orders as may be necessary for purposes of an investigation or for the preparation or conduct of a trial.’

9. Article 17 of the Agreement between the Untied Nations and the Government of Sierra Leone (‘The Agreement’) which provides, inter alia:
   

Section 17 (1) The Government shall cooperate with the Organs of the Special Court at all stages of the Proceedings;

Section 17 (2) The Government shall comply without undue delay with any request for assistance by the Special Court or an Order issued by The Chambers;

10. Section 6(2) of the Statute of the Special Court provides as follows:
    

‘The official position of any Accused Persons, whether as Head of State or Government or as a responsible Government Official shall not relieve such persons of criminal responsibility nor mitigate punishment.’

11. Section 48(4) of the 1991 Constitution of Sierra Leone provides as follows:
    

‘While any person holds or performs the functions of the Office of President, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his office or private capacity.’

12. The provisions of the Special Court Agreement, 2002 (Ratification) Act, 2002, particularly the following:
    

PART V – ORDERS OF SPECIAL COURT

Section 20 For the purposes of execution, an order of the Special Court shall have the same force or effect as if it had been issued by a Judge, Magistrate or Justice of the Peace of Sierra Leone Court.

Section 21(1) Any person executing an order of the Special Court shall comply with any direction specified in that order.

Section 21(2) 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.

PART VI – ARREST AND DELIVERY OF PERSONS

Section 23 For the purposes of execution, a warrant of arrest issued by the Special Court shall have the same force or effect as if it had been issued by a Judge, Magistrate or Justice of the Peace of a Sierra Leone Court.

Section 25 Where a warrant of arrest is executed, the person arrested shall be delivered forthwith into the custody of the Special Court.

Section 29 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.

13. In addition, Rule 8(A) of the Rules of Procedure and Evidence provides as follows:
    

‘The Government of Sierra Leone shall cooperate with all Organs of the Special Court at all stages of the proceedings. Requests by any Organ of the Special Court shall be complied with in accordance with Article 17 of the Agreement. An Order issued by a Chamber or by a Judge shall have the same force or effect as if issued by a Judge, Magistrate, or Justice of the Peace of a Sierra Leone Court.’

14. Rule 8(B) of these same Rules provides as follows:
    

‘Except in cases to which Rule 11, 13, 56 or 60 applies, where a Chamber or a Judge is satisfied that the Government of Sierra Leone has failed to comply with a request made in relation to any proceedings before that Chamber or Judge, The Chamber or Judge may refer the matter to The President to take appropriate action.’

II. SUBMISSIONS OF THE PARTIES

The submissions and arguments for the Parties are as follows:

FOR THE FOFANA MOTION

Written Submissions

15. The Fofana Defence Team has this to say in support of their Motion.
    
    • - This Motion is brought under the provisions of Rule 54 of the Rules of Procedure and Evidence.
      
    • - President Kabbah has refused to testify voluntarily hence, the resort to the Subpoena procedure to compel him to appear before the Court. That President Kabbah made mention of an informal agreement between himself and the United Nations not to involve himself in Special Court affairs and ended up by expressing his sympathy for the CDF defendants and wished them well, hoping ‘that they would be acquitted’.
      
    • - The Fofana Defence submits that President Kabbah is in possession of information highly relevant to the charges contained in The Prosecutions Indictment against Fofana.
      
    • - That The President’s failure to testify in these proceedings would deprive The Chamber of evidence necessary to arrive at a comprehensive and considered Decision in the instant case.
      

That The President Has Been Mentioned by Several Prosecution Witnesses

16. At least seven Prosecution witnesses have mentioned The President in their viva voce testimony at the CDF trial:
    
    1. Witness TF2-140 testified that he travelled to Guinea with Mr Norman where he met Mr Kabbah, then Vice-President Albert Joe Demby, and then British High Commissioner Peter Penfold. 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[1].
       
    2. Witness TF2-096 testified that Mr Norman arrived at Talia in 1997 along with Maxwell Khobe. According to the Witness, Mr Norman said that “Papa Kabbah” had told him and General Khobe to fight the war together[2].
       
    3. Witness TF2-190 testified that he travelled to Freetown to receive Mr Kabbah from exile at the invitation of Mr Norman[3].
       
    4. Witness TF2-001 testified that the Kamajors entered Bo as a group after the coup to restore Mr Kabbah’s government[4].
       
    5. Witness TF2-005 testified that he went to Conakry in September, 1997, to inform Mr Kabbah that the Kamajors lacked proper logistics to support their operations. Further, according to the Witness, (i) Mr Kabbah instructed him to contact Mr Norman in Monrovia[5]; (ii) Mr Kabbah sent an envoy to investigate activity of the Death Squad at Sierra Rutile[6]; (iii) Mr Norman had a direct link to Mr Kabbah in Guinea[7]; (iv) Mr Kabbah was the Minister of Defence when Mr Norman was serving as the Deputy Minister of Defence[8]; (v) the CDF , the Sierra Leone Army, and the Sierra Leone Police were under the unified command of Mr Kabbah[9]; and (vi) even though The President had been overthrown, the CDF still regarded him as their commander-in-chief[10].
       
    6. Witness TF2-014 testified that the aim of the CDF was to restore Mr Kabbah’s presidency[11].
       
    7. Finally, The Prosecution’s military expert, Witness TF2-EW1, testified that he believed the SLPP government in exile played a role, at the strategic level, in CDF activities in Sierra Leone, based on reports that Mr Norman communicated with Mr Kabbah by satellite telephone[12].
       
17. Both Mr Fofana and, upon information and belief, Mr Norman have instructed their respective Counsel that they wish to have questions put to Mr Kabbah concerning the allegations contained in The Prosecution’s indictment and the viva voce testimony given thus far in the case, as is expressly their right under the Statute[13].

Rule 54

18. As regards the provisions of Rule 54, the Fofana Defence submits that, ‘the proposed injunction must be necessary in order for the requesting party to obtain the material sought’ and further, that ‘the requested material must be relevant to the proceedings’.
    
19. That with respect to Subpoenas directed at individuals, The Defence must demonstrate that it has made reasonable attempts to obtain the voluntary cooperation of the Parties involved and has been unsuccessful and that The Defence must have a reasonable belief that the prospective witness can materially assist in the preparation of its case.
    

The President Possesses Relevant Information

20. The Fofana Defence submits that Mr Kabbah is in a position to provide evidence relevant to the charges contained in The Prosecution’s indictment against Mr Fofana and his co-defendants. It is submitted that, at times relevant to the indictment, Mr Kabbah was commanding, materially supporting, and communicating with various members of the alleged CDF leadership, both from his exile in Conakry and later from presidential offices in Freetown. As further indicated by The Prosecution’s evidence, the Kamajors claimed to be fighting, in part, on behalf of Mr Kabbah with a view to effecting his restoration as the democratically-elected President of the Nation. With respect to the question of who bears the greatest responsibility[14] for the alleged violations of the CDF during the conflict, The Defence submits that Mr Kabbah may himself be among such a group or, at the very least, that he is in a position to give evidence regarding the relative culpability of the three Accused Persons.
    

The President Enjoys no Immunity from Process Under Sierra Leone Law

21. The National Constitution of Sierra Leone (the “Constitution”) provides:

‘While any person holds or performs the functions of the Office of President, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official or private capacity[15].’

22. Learned Counsel states that the Constitution is however, silent as to immunity from process. The Fofana Defence Team in its Submissions, continues.
    

‘For the reasons discussed above, Mr Kabbah is not subject to the so-called “functional immunity” discussed by the ICTY Appeals Chamber[16], nor does he enjoy any statutory immunity under the laws of Sierra Leone or the constitutive instruments of the Special Court. Indeed, it would be inconsistent to acknowledge that a Head of State enjoys no immunity from prosecution – as set forth in Article 6(2) of the Statute and upheld by the Appeals Chamber[17] – but that as to the far lesser assertion of Subpoena power, he is somehow beyond the reach of the law. What is more, to allow Mr Kabbah to hide behind a veil of immunity would be patently at odds with the right of Mr Fofana to call him as a witness in his case[18].’

23. It is not necessary for me to dwell here any longer, either on the written response to The Prosecutions’ reply to this Motion or on the oral Submissions of The Fofana Defence, since there are no significant shifts or changes from what is contained in the written Submissions which have been reproduced here. This is an unedited version of the Fofana Submissions.
    

WRITTEN SUBMISSIONS BY THE HINGA NORMAN DEFENCE TEAM

24. It is legitimate to consider the written Submissions of the Fofana Team as constituting the Submissions in support of the Hinga Norman Motion which was filed after Fofana’s.
    
25. I say this because in their very brief written Submissions of the 15th of December, 2005, the Norman Defence Team had this to say:
    
    1. Considering the request by Fofana Defence Team, “FOFANA MOTION FOR ISSUANCE OF A SUBPOENA AD TESTIFICANDUM TO PRESIDENT AHMED TEJAN KABBAH”, filed on the 15th of December, 2005, Counsel for Norman hereby associates with The Fofana Motion for the Issuance of a Subpoena Ad Testificandum against H.E. Alhaji Dr. Ahmad Tejan Kabbah, as a witness for Sam Hinga Norman.
       
    2. The Norman Defence respectfully requests The Trial Chamber to invoke the powers provided for under Rule 54 which provides that: “At the request of either party or its own motion, a Judge or Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for preparation or conduct of the trial”, and to compel President Kabbah to appear before the Honourable Court to give evidence on behalf of Sam Hinga Norman, and to further order that he should meet with the Norman Defence Team in advance before his proposed testimony.
       
26. However, in their reply to The Prosecution’s response to the Norman Motion for issuance of the Subpoena, The Norman Defence Team, inter alia, objected to the intervention of The Prosecutor in the matter because according to them, The Prosecutor had no legal stands to object to a Subpoena to a third party over which it has no control. The second reason for their objection to this intervention is that if it were upheld, it will violate the rights of The Accused as provided for in Article 17(4) of the Statute.
    
27. Surprisingly however, Counsel for Fofana did not reiterate or follow up the objection to The Prosecution’s intervention in these proceedings and equally surprisingly, Counsel for Norman expressly withdrew this objection.
    
28. In their replies to The Prosecution’s Response to their Motions as well as to the Learned Attorney General’s written and oral Submission, The Fofana and Norman Defence Teams, besides reinforcing their common grounds outlined in the Fofana Motion and touching on some other issues, did not substantially depart from the general focus and thrust of their fundamental arguments and submissions.
    

SUBMISSIONS BY THE PROSECUTION

29. I would like to observe here that the contents and focus of the submission made by The Prosecution and dated the 13th of January, 2006, in response to the Fofana Motion are the same as that filed by The Prosecution, still on the 13th of January, 2006, in response to the Norman Motion for the issuance of the Subpoena.
    
30. It is The Prosecution’s submission that the 2 Motions, which are premised on the same grounds, should be dismissed for, as it contends, ‘There is no evidence provided in the Fofana Motion that the information sought from President Kabbah affects any issue relevant to the determination of the guilt or the innocence of the Accused Persons in relation to any of the charges in the indictment.’. The Prosecution cites the ICTY case of the PROSECUTION VS. KRISTIĆ, DECISION ON APPLICATION FOR SUBPOENAS, where the following were laid:
    
    1. Whether the information in the possession of the prospective witness is necessary for the resolution of specific issues in the trail (the legitimate forensic purpose requirement) and;
       
    2. Whether the information in the possession of the prospective witness is obtainable by other means, which is the ‘last resort’ requirement.
       

The Legitimate Forensic Purpose Requirement

31. The Fofana Motion argues that President Kabbah possesses “certain information highly relevant to the charges contained in the Prosecution’s indictment against Mr Fofana.”[19] However, in order to satisfy the “legitimate forensic purpose” requirement, it is not sufficient for an applicant for a Subpoena to show merely that the addressee of the Subpoena has information or knowledge that is relevant to the case. Rather, the applicant for the Subpoena must make an evidentiary showing of “a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial”.[20] It is not enough that the information requested may be “helpful or convenient” for one of the parties: it must be of substantial or considerable assistance to the Accused in relation to a clearly identified issue that is relevant to the trial.[21] It is only where these requirements have been demonstrated that it can be said that the Subpoena is “necessary” within the meaning of Rule 54 of the rules of Procedure and Evidence (“Rules”).[22]
    
32. The Prosecution submits that the Motions do not in any way seek to identify how the guilt or innocence of the Accused could be affected by whether or not the testimony of President Kabbah, on the lines it is solicited by the Accused, is true, and further that even if it were established that the CDF may have come to the assistance of the Lawful Government, the issue remains whether the crimes charged in the indictment were committed by the Accused or not.
    

The Last Resort Requirement

33. In determining whether an applicant for a Subpoena has satisfied the ‘Last Resort’ requirement, The Trial Chamber must consider whether the information the applicant seeks to elicit through the use of Subpoena is obtainable through other means.[23] Furthermore, The Trial Chamber must consider not only the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.[24] The Trial Chamber must take into account not only the interests of the litigants but the overarching interest of justice and other public considerations.[25]
    
34. In the absence of any clear indication in the Fofana Motion of the specific issues on which the testimony of President Kabbah is sought, it is impossible for The Trial Chamber to assess whether or not evidence of those issues would be obtainable from another source. As the onus is on the applicant to establish that the ‘last resort’ requirement is met, the Fofana Motion should be refused on the ground that the Defence has not established this.
    

SUBMISSIONS BY THE HON. LEARNED ATTORNEY GENERAL
MINISTER OF JUSTICE

35. The Learned Attorney General, who says he has had the opportunity of reading the Prosecution’s Response to the Motion, indicates that he respectfully adopts the arguments, submissions and authorities contained therein. The Learned Attorney General submits as follows:
    
    • - That the Subpoena requested in this case is irrelevant, fishing, speculative and oppressive and should be refused by this Honourable Trial Chamber.
      
    • - That whatever evidence The President may give if the requested Subpoena is issued, it is unlikely that such evidence would have a direct and important place in the determination of the issues before the Trial Chamber.
      
36. Citing R.V. Agwuna 12 WACA, 456, the Learned Attorney General submits:
    
    • - That a person served with a Subpoena has a right to apply to the Court to set it aside on the ground that such a Subpoena is not bona fide required for the purpose of any evidence that can be relevant and the Court upon such an application, will interfere when it is satisfied the process is being used for indirect or improper objects.
      
    • - That the application for the issuance of a Subpoena to The President is not bona fide but meant to embarrass the President and cause mischief and therefore an abuse of process of The Trial Chamber.
      
    • - That The President is not compellable, as President and Head of State, by reason of the fact that a Subpoena requires a Judicial penalty to enforce it if it were to be disobeyed.
      
37. The Learned Attorney General cites Section 48(4) of the 1991 Constitution of Sierra Leone which grants to President Kabbah, immunity from any prosecution for offences committed whilst in office. The Learned Attorney General contends and submits that The President is the embodiment of the State of Sierra Leone and that a Subpoena cannot issue against him in that a penalty cannot be ordered or enforced against him were he, as Head of State, to disobey it.
    
38. In the light of these arguments, the Learned Attorney General, Minister of Justice submits and urges The Chamber to deny the Motion.
    
39. Let me say here, that for purposes of this Separate Concurring Opinion, I adopt the submissions of the Parties as reproduced in The Chamber Majority Decision with which I concur in its conclusions.
    
40. In order to place these two Motions in their proper context and perspective for an informed judicial appraisal, it is necessary to examine the historical background, the reasons and the motivations that led to the creation of the Special Court for Sierra Leone after the gruesome civil war that preceded it. This creation was achieved by virtue of a Security Council Resolution Number 1315 (2000) of the 14th of August, 2000. The reasons and motivations, I would recall here, are stipulated in the Preamble and in Article 1 of the Agreement between the United Nations and the Government of Sierra Leone creating the Special Court. It reads as follows:
    

Article 1
Establishment of the Special Court

1. There is hereby established a Special Court for Sierra Leone to prosecute Persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.
   
41. These same reasons and motivations are reiterated and reproduced in the Preamble and in Article 1 of the Statute of the Special Court that is annexed to the said Agreement which provide as follows:
    

Article 1
Competence of the Special Court

1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute Persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.
   
42. From these provisions, it is not in any doubt at all, that the category of Persons who compulsorily fall within the jurisdiction of the Special Court for prosecution are those ‘Persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since the 30th of November, 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’. The offences for which those who are considered to bear the greatest responsibility for their commission are defined in Articles 2, 3, 4, and 5 of the Statute.
    
43. Article 6(2) of the Statute stipulates as follows:
    

‘The official position of any accused Persons, whether as Head of State or Government or as a responsible Government Official, shall not relieve such person of criminal responsibility nor mitigate punishment.’

44. This provision, in my opinion, is intended to be applicable, and should only be applicable to the category of persons envisaged respectively in Articles 1 of the Agreement and of the Statute, that is, those who bear the greatest responsibility and are to be indicted, or are already indicted, for committing the crimes defined in Articles 2, 3, 4 and 5 of the Statute, and to no one else.
    
45. In this regard, The Defence, in their submissions, has alleged amongst other things, that The President enjoys no immunity at all from prosecution having regard, not only to the provisions of Article 6(2) of the Statute referred to above, but also, to the provisions of Section 29 of the Special Court Agreement, 2002 (Ratification) Act, 2002, which provides as follows:
    

‘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 in the custody of the Special Court.’

46. This stand and submission, in my opinion, is erroneous, misleading and unfounded because, as I have already indicated, Article 6(2) of the Statute and all the provisions of the Special Court Agreement, 2002 (Ratification) Act, 2002, particularly those of Section 29, apply only, and should only apply, to those who have been indicted under Articles 2, 3, 4 and 5 of the Statute and also to those witnesses or individuals who are called up in the conduct of the investigations and the trials of this category of indictees who, like the 2 Accused Persons in this Motion, are charged and are being prosecuted for offences under the International Criminal Law regime as defined in the Statute. It is therefore clear, that the provisions of Article 6(2) of the Statute do not concern nor do they relate to or affect the status of President Kabbah who, unlike Milosević and Charles Taylor, is, so far, not an indictee charged with any offence at all, and least still, of any that is defined in Articles 2, 3, 4 and 5 of the Statute of the Special Court.
    
47. In fact, I would like to say, that the offence of Contempt under Rule 77(A)(iii) of the Rules of Procedure and Evidence to which President Kabbah may be liable for a prosecution in the event of his refusal to respond to the Subpoena if any were to be issued by The Chamber, is not one of those that is prosecutable either under the provisions of the Agreement or of the Statute because it was not, nor could it, by any stretch of the imagination, have been contemplated by the Security Council, the United Nations and the Government of Sierra Leone when drawing up the Agreement and the Statute. It indeed was not, nor could it have been contemplated either, or even envisioned by the Legislature of the Republic of Sierra Leone in enacting the Special Court Agreement, 2002 (Ratification) Act, 2002, and particularly, in relation to the provisions which the Applicants to this Motion are relying on to seek the issuance, and of course, the enforcement of a Subpoena by This Chamber, if at all it were ever issued against President Kabbah.
    
48. It should be emphasised here that the Special Court of Sierra Leone, very much unlike other International Criminal Tribunals which are not, in any way, twinned to the Municipal jurisdictions or the laws in the Countries where they operate, is a hybrid Tribunal. It has jurisdiction, not only to draw up its indictments based, not only on International Criminal Law offences and those which are recognised by International Instruments, but also, on those that relate to Sierra Leonean Law or practice should this become necessary in the overall interests of ensuring a fair determination of an issue before a Chamber of the Special Court for Sierra Leone.
    
49. Certainly, a resort to the purposeful interpretational approach of the provisions in this regard, favours the thesis that the provisions of the Agreement, of the Statute, and of the Special Court Agreement, 2002 (Ratification) Act, 2002, in their ordinary meaning, intend to include and to target only those who, in the judgement of The Prosecutor, were to be or are now indicted and are being tried for bearing the greatest responsibility for offences defined in Articles 2, 3, 4 and 5 of the Statute. It is also clear and should be understood, that the provisions for compelling any witnesses in relation thereto in accordance with the relevant provisions of the Ratification Act 2002, and charging them for Contempt under Rule 77 (A)(iii) of the Rules of Procedure and Evidence if it became necessary, only concerns the normal, routine, and ordinary witnesses, who are called upon to testify in cases concerning the Accused Persons who are International Criminal Law Indictees. It is important to say here, that Mr. Kabbah, President and Head of State of the Republic of Sierra Leone, does not fall under this category.
    
50. It is therefore pertinent and important, in order to dissipate all expressed misunderstandings and misinterpretations of the provisions of the Agreement, of Article 6(2) of the Statute and of Section 29 of the Special Court Agreement, 2002 (Ratification) Act, 2002, and finally, of Section 48(4) of the Constitution of Sierra Leone, particularly on the hotly contested subject of President Kabbah’s immunity, to note here that the offence of contempt under Rule 77(A)(iii) of the Rules is not classified as a serious violation of international humanitarian law, nor is it a crime against humanity as defined by the Agreement and by the Statute of this Court.
    
51. I, however, for reasons which I have provided in this Separate Concurring Opinion, would like to emphasise the legal impossibility and impermissibility for this Chamber to issue the Subpoena solicited by the Accused Persons against H.E. The President of the Republic of Sierra.
    

DELIBERATION

52. For these motions to succeed, the Applicants must of course fulfil the criteria defined in Rule 54 of the Rules of Procedure and Evidence for the issuance of a Subpoena. It is my considered opinion, that in addition, particularly in view of the Presidential status of the person sought to be summoned by virtue of this Subpoena, to also address some other issues with a view to satisfying some concerns which, for purposes of this Separate Concurring Opinion and for a proper determination of these Motions, I consider crucial, challenging, and strategic. These include:
    
    1. Whether the Subpoena can be issued against the Head of State, President Kabbah, notwithstanding notwithstanding the immunity he enjoys by virtue of Section 48(4) of the Constitution, and this, vis-a-vis the legal definition, implications and consequences of issuing this judicial process.
    2. Whether the application for the issuance of the Subpoena, far and beyond the Rule 54 considerations advanced by the Applicants to support their Motions, is not, in the light of the written and oral submissions they have advanced, remotely intended to ridicule or to embarrass The President and Head of State as well as his exalted office, and, whether in this regard,
       
    3. These motions, again, given the written and oral submissions of The Defence Teams, do not, as the Learned Attorney General Minister of Justice contends, amount to an abuse of process.
       

A) Can These Motions be Granted Under the Provisions of Rule 54 of
The Rules of Procedure and Evidence?

53. It is necessary in this regard, to first of all examine and determine whether the legal criteria for the issuance of a Rule 54 Subpoena are satisfied.
    

Rule 54 provides as follows:

‘At the request of either Party or of its own motion, a Judge or Trial Chamber may issue such Orders, Summonses, Subpoenas, Warrants and Transfer Orders as may be necessary for purposes of an investigation or for the preparation or conduct of a trial.’

54. From the submissions of the Parties, it is clear that these applications are made, not only to secure the appearance of President Kabbah in Court to testify on their behalf, but also for The President preliminarily, and before his proposed testimony, to submit himself to a prior interview with The Defence Teams. The records in this regard, show that even though President Kabbah granted an audience to the Fofana Defence Team, he turned down the invitation to come and appear in Court because, as alleged in the submissions of the 2nd Accused, he, The President, had an informal agreement with the United Nations not to involve himself in the Special Court matters.
    
55. As far as the 1st Accused, Samuel Hinga Norman is concerned, the records reveal that the President has not responded favourably to receiving The Norman Defence Team in audience notwithstanding persistent requests. If, up to this moment, President Kabbah has not received the Norman Defence Team in audience, and the purport of these Motions is to secure his attendance in Court to testify for the 2 Accused Persons, it is difficult to imagine the posturing of The President in this situation that has been rendered as complex as in now appears, and where it is alleged by the 2 Accused Persons, that The President may also bear the greatest responsibility for the offences that feature in the indictment on which they are charged and on which he, President Kabbah, should also have been indicted.
    
56. Besides the reason which he has so far revealed in relation to the informal agreement with the United Nations not to meddle in Special Court affairs, President Kabbah has given no other reason as to why he has turned down the requests made to him by Moinina Fofana and Samuel Hinga Norman, to come to This Chamber and testify on their behalf.
    

Should or Can The Chamber Therefore Proceed to Issue The Subpoena Under Rule 54 and Compel Him to Appear Before it to Testify?

57. It is my opinion in this regard, that for the application to be granted, the Applicants must demonstrate that they have fulfilled the legal criteria and standard set up in Rule 54. It is only after examining these criteria that I will proceed to determine whether or not they have been met before proceeding finally to exercising the discretionary powers conferred under that Rule, to grant or to refuse the application for the issuance of the Subpoena that is solicited by the 2 Accused Persons.
    

58. It is necessary, for a logical follow up of and an understanding of this Separate Concurring Opinion and the intricacies that accompany the determination of these Motions, to indicate a known fact, which is, that H.E. Alhaji Dr. Ahmad Tejan Kabbah is not just an ordinary Sierra Leonean but also, by a rare coincidence of destiny and history, the current, sitting in, and incumbent President and Sovereign Head of State of the Republic of Sierra Leone who, I would like to add, for this same purpose, was in office at the time, not only when these Motions for the issue of the Subpoena Ad Testificandum against him were filed and argued, but also continues to be The President and Sovereign Head of State of this Country today, and indeed, at this time that the Decision on these Motions is being rendered.

59. Since this Judicial instrument is sought to be issued and used against him, the President, who occupies a special Constitutional and Legal status, it is necessary, as a preliminary step, and for purposes of this Opinion, to provide the definition of a Subpoena and to examine the consequences that accompany it once it is issued.
    
60. A Subpoena is defined as:
    

‘Latin – UNDER PENALTY – A writ commanding a person to appear before a Court or other Tribunal subject to a penalty for failing to comply’ – BLACK’S LAW DICTIONARY, 7TH EDITION, PAGE 1440.

61. In the light of this definition, a Subpoena is, in fact and in law, an instrument of judicial compulsion which is backed by the threat of sanctions for non-compliance. In assessing the stand to be taken in a matter of this nature, I would like to refer to the Decision of The Appeals Chamber of the ICTY in the case of THE PROSECUTOR VS. HALILOVIĆ where that Chamber had this to say about the issuance of Subpoenas, and I quote:
    

‘Subpoenas should not be issued lightly, for they involve the use of coercive powers. The Subpoena is a weapon which must be used sparingly. While The Trial Chamber should not hesitate to resort to this instrument where it is necessary to elicit information of importance to the case and to ensure that the defendant has sufficient means to collect information necessary for the preservation of an effective defence, it should guard against the Subpoena becoming a mechanism used routinely as part of trial tactics.

A Subpoena involves the use of judicial power to compel, and as such , it must be used where it would serve the overall interests of the criminal process.’

62. I would like to add here, that it should not be issued at all where its issuance will put the interests of peace, law and order and the stability of the Country and of its Institutions at peril or in jeopardy, and threats which are disruptive of this process which may be created by the issuance of this Subpoena against The President of the Country. In fact, in granting it, the context of the Country such as Sierra Leone, where there is a general will and mobilisation to consolidate the peace after the war, should be recognised and considered.
    
63. In fact, as Hon. Judge Weinberg de Roca of the ICTY stated in her Opinion, particular caution is needed where the party is seeking to interview a witness who has declined to be interviewed. This is what is so far known from the records, to be President Kabbah’s posturing in this matter.
    

The Legal Standard For The Issuance Of A Subpoena Under Rule 54

64. According to The Defence, the test for relief under Rule 54 is twofold. First, the proposed injunction must be necessary in order for the requesting party to obtain the material sought. Further, the requested material must be relevant to the proceedings and when Subpoenas are directed to individuals, The Defence must demonstrate that it has made reasonable attempts to obtain voluntary cooperation of the Parties involved and has been unsuccessful. Furthermore, The Defence must have a reasonable belief that the prospective witness can materially assist in the preparation of its case. The question to be put here is whether President Kabbah, given the facts before me at this point in time, is prepared to or can materially assist the 2 Accused Persons in the preparation of their case.
    
65. For the Prosecution, the standard is that defined by the ICTY in the case of THE PROSECUTOR V. KRISTIĆ, which consists in The Trial Chamber considering the following:
    
    1. Whether the information in possession of the prospective witness is necessary for the resolution of specific issues in the trial (the ‘legitimate forensic purpose’ requirement) and;
       
    2. whether the information in possession of the prospective witness is obtainable by other means (the ‘Last Resort’) requirement.
       
66. These 2 tests were applied by The Trial Chamber of the ICTY in the case of THE PROSECUTION VS. SLOBODAN MILOŠEVIĆ, where a Motion by the Accused to issue a Subpoena to Mr Tony Blair, the British Prime Minister, and Mr Gerhard Schroeder, the former German Chancellor, to appear and testify on issues that had no direct reference to specific issues that could materially assist the Accused in relation to the indictment preferred against him, was denied.
    

‘The Legitimate Forensic Purpose’ Requirement

67. This is intended to limit the issue of the Subpoena for the witness to give evidence that will materially assist the applicant with respect to a clearly identified issue or issues.
    

The ‘Last Resort’ Requirement

68. This entails considering whether the information solicited by the Applicant could be or is obtainable through other means.
    
69. In Our Trial Chamber I Decision dated the 2nd of May, 2006, on SESSAY – MOTION SEEKING DISCLOSURE OF THE RELATIONSHIP BETWEEN GOVERNMENTAL AGENCIES OF THE UNITED STATES OF AMERICA AND THE OFFICE OF THE PROSECUTOR, the doctrine and requirement of specificity was applied. In this case, Counsel for the applicant sought the disclosure to him of exculpatory material under Rule 68 of the Rules of Procedure and Evidence. Counsel particularly wanted to have disclosed to The Defence, the assistance that was offered and given to a witness, General Tarnue, by Dr White, the Special Court Investigator, and or any other investigator. The Chamber held that the request made by The Defence was too broad, too vague, and indeed unspecific. In dismissing the Motion, we had this to say:
    

‘Furthermore in resolving this important question, The Chamber must be satisfied that the quest by The Defence has been specific as to the targeted material alleged to be in The Prosecutor’s possession, control or custody.’

70. In the case of THE PROSECUTOR VS. ALLIEU KONDEWA, which came up before Trial Chamber I, we took the same view. In this case, The Defence, under Rule 68 of the Rules, sought an order to compel The Prosecutor to disclose such exculpatory material in its possession. In that decision dated the 8th of July, 2004, we had this to say:
    

‘The Chamber adopts this reasoning and takes the view that any request by The Defence for exculpatory material alleged to be in The Prosecution’s possession, custody or control must be specific as to such material.....The Chamber must be satisfied that the request by The Defence has been specific as to the targeted material alleged to be in The Prosecutor’s possession, control or custody.’

71. I have no cause today to renege on Our Chamber’s stand on the principle we have enunciated and adopted it on issues of this nature that feature in the instant case and where the criterion of specificity of a request is in issue in this Rule 54 Subpoena application has surfaced in another form, this time, on specific facts which a Party must provide and demonstrate, are important to justify the issuance of a Subpoena under Rule 54.
    
72. The reasons why the Applicants are seeking that a Subpoena be issued against President Kabbah have been amply stated in their submissions. However, for the Motions to be granted, The Defence admits and pertinently submits that it must be shown not only that the requested material is relevant to the proceedings, but also that the prospective witness can materially assist in the preparation of the case.
    
73. If the crux of the success of the applications is that the requested material should not only be relevant to the proceedings but also, that the prospective witness should be such as can materially assist in the preparation of the case against the Accused Persons, it stands to reason that such requested material should be specifically identified and canvassed with a showing that if made available, it would indeed contribute to determining the innocence or the guilt of the Accused in relation to the offences for which they stand indicted.
    
74. The specific issues canvassed by The Defence are that The President has been mentioned by 7 witnesses who have testified on how President Kabbah was involved in the war effort. The other issue which The Defence has raised concerns the question of who bears the greatest responsibility for the alleged violations of the CDF during the conflict. In this regard The Defence , to justify why President Kabbah should be called, submits that:
    

‘With respect to the question of who bears the greatest responsibility for the alleged violations of the CDF during the conflict, The Defence submits that Mr Kabbah may himself be among such a group or at the very least, that he is in a position ‘to give evidence regarding the relative culpability of the 3 Accused Persons’.’

75. I would like to observe here that even if some of the issues that The Defence has canvassed were true, in the light of the Admissions that were made by the Learned Prosecutor of the Special Court during the proceedings on the 8th of May, 2006, those now advanced, to my mind, are irrelevant in making a determination on either the innocence or the guilt of the Accused Persons. For this reason, the arguments by the 2 Accused Persons do not warrant my exercising the discretion conferred under Rule 54 of the Rules, in their favour.
    
76. The element that is lacking in the submissions of the Accused Person, is one of specificity and furthermore, how it is material to the case against them, and how this material, including the testimony of President Kabbah, will be material in contributing to establishing the case for the Accused Persons.
    
77. In the absence of such specificity, as was the case in the ICTY case of THE PROSECUTOR VS. SLOBODAN MILOŠEVIĆ, the application for the issuance of the Subpoena must fail.
    
78. In the double faceted legal standard for the issuance of a Subpoena under Rule 54 that was adopted by the Trial Chamber of the ICTR in the SIMBA CASE, it was held that the requesting party must first demonstrate that it has made reasonable attempts to obtain the voluntary cooperation of the parties involved and has been unsuccessful and that additionally, the party must have a reasonable belief that the witness can materially assist its case.
    
79. In this regard as well, I do recall that Trial Chamber II of the Special Court, in its Decision in the case of THE PROSECUTION VS. ALEX TAMBA BRIMA had this to say:
    

‘The rule is a general rule in unambiguous language. Clearly, the test for whether the Trial Chamber ought to issue orders sought by The Defence, is whether to do so is necessary (not simply useful or helpful) for purposes of an investigation or, for the preparation or conduct of the Trial.’

80. It is required that the Applicant for the issuance of a Subpoena must fulfil these requirements before a Subpoena can be issued under Rule 54. Here again, I am constrained by the factual realities of this Motion, that the Accused Persons have not demonstrated a showing that the threshold of the 2nd arm of the legal standard so set, has been attained, because it is not clearly and positively established by the Accused, that the ‘so-far’ unwilling President Kabbah, even as their witness and called at their behest, can or is willing to materially assist their case. The contrary at this stage, from the facts available on the records, indeed appears to be the case.
    

Application of the Provisions of Article 17 of the Statute in
Relation to The Application of Rule 54

81. One of the arguments advanced by The Defence for the success of their Motions is that issuing of the Subpoena is consistent with the rights of the Accused as enshrined in Article 17 of the Statute.
    
82. Even though The Defence has not expressly submitted this thesis this way, they inferentially are submitting that refusing the application to issue the Subpoena would amount to a violation of the Rights of the Accused under Article 17 and particularly, those of Articles 17(4)(b) and 17(4)(c), and that it is not the business of The Prosecution to raise any objections to their calling their Defence witnesses, like President Kabbah, who they have so decided to call as their witness. They buttress this stand by stating that they never objected to The Prosecution calling any of their Prosecution witnesses who appeared to testify with a view to proving their case against the Accused Persons.
    
83. I neither share this view nor do I share the insinuation to this effect. It is my understanding of the provisions of Article 17(4)(e) of the Statute that they only apply to those witnesses who are at the beckon and call of the Accused and can voluntarily and at any time, without any constraints, turn up to be interviewed by him or his Counsel or to testify for him depending of course on his availability. It does not, in my understanding, apply to those unwilling, reluctant, or reticent witnesses like President Kabbah, who are not prepared to voluntarily testify and could therefore, depending on the circumstances, become the subject matter of the issuance of a Subpoena.
    
84. It is my considered opinion, and I do so hold, that once there is a recourse to the Rule 54 Subpoena process against an unwilling, recalcitrant, reluctant or reticent witness, it ceases to be the exclusive legal right of the Accused to have this witness to be obligatorily called on his behalf under Rule 17(4)(e) of the Statute. The attendance and appearance of such witnesses, from the moment Subpoena proceedings are engaged under Rule 54, becomes a matter solely for the determination of The Judge or The Trial Chamber as to whether or not they should, under the discretionary powers conferred on it by Rule 54 of the Rules, appear to testify. Should The Chamber, in the exercise of that discretion, reject the application for the issuance of the Subpoena, this to my mind, does not amount to a violation of the rights of the Accused defined under Article 17(4)(e) of the Statute.
    

‘Bearing the Greatest Responsibility’

85. One of the reasons canvassed by the Accused for the issuance of a Subpoena to The President is related to the phrase, those ‘who bear the greatest responsibility’ for the atrocities. They want President Kabbah, as their CDF Commander, to come and testify to the degree of their responsibility in the crimes alleged.
    
86. I would like to state here, that the phrase, ‘who bear the greatest responsibility’, as appears in the Agreement and the Statute, is in no way an ingredient of any of the offences that features in the indictment and which is required to be proved by The Prosecution to secure a guilty verdict. More importantly, and in this regard, it does not have the potential, whether established or not, to contribute in determining the guilt or the innocence of the Accused Persons. In fact, the expression ‘bearing the greatest responsibility’ is just an expression of art relating to the standard to be applied in the choice of the category of those to be indicted, albeit only some, but certainly, not all of them.
    
87. In this regard, it is necessary to indicate, and this a very well known principle, that there is prosecutorial discretion which determines who to prosecute and who not to, and that in the process, The Prosecutor, in the exercise of this discretion which is vested in him, may decide not to prosecute a culprit even if it is alleged or popularly known that he bears the greatest responsibility for the atrocities committed in this Country.
    
88. The legal position and message is clear in this regard. The fact that some other people who may also be said to bear the ‘greatest responsibility’ for the offences that were committed during the civil conflict are not indicted, does not in the least, exonerate or exculpate the 2 Applicants from the crimes for which they stand indicted, nor does it constitute a legal defence in their favour in relation thereto.
    
89. It stands to reason therefore that this ground fails to meet up with the Rule 54, standards for not being in consonance with the requirements of the ‘Legitimate Forensic Purpose’ or the ‘Last Resort’ principles even though it has been The Defence position that such assessments by President Kabbah of their comparative responsibility are absolutely crucial.
    
90. On this analysis, it is clear that the notion of the unwilling President Kabbah appearing to explain their degree of responsibility as a test to fulfil under Rule 54, does not assist their Motions which accordingly, should fail.
    
91. These 2 applications however fail on the grounds of lack of the element of specificity and further, that even if the allegations were true or correct, it would have no bearing on the questions of the Accuseds’ guilt or innocence of the charges for which they are indicted.
    
92. Further beyond, and in addition to the ‘Legitimate Forensic Purpose’ and the ‘Last Resort’ requirements that have been enunciated in the ICTY KRISTIĆ DECISION and adopted in the MILOŠEVIĆ CASE and in the ICTR Case of THE PROSECUTION VS. SIMBA, I consider that other relevant issues should be addressed in the course of considering Rule 54 Subpoena Motions. I have taken them into consideration in writing this opinion and they have, including the ICTY Judicial precedents, influenced my reasoning in this Separate Concurring Opinion. They include:
    
    1. That the evidence sought to be adduced is relevant to disproving the allegations in a Count or Counts in the Indictment.
       
    2. That the evidence cannot or has not been obtained by other means including the testimony of witnesses who have or are yet to testify at the trial.
       
    3. That such evidence has not already been adduced in the course of the trial so far.
       
    4. That in the absence of such evidence, the case for the Accused will suffer a prejudice and that the overall interests of justice will be compromised.
       
    5. That without such evidence, the Court cannot arrive at a verdict which will be seen to have fully protected the rights of the Accused whilst at the same time, remaining in harmony with the standards of the overall interests of justice.
       
    6. That the prospective witness will be cooperative, useful, and understanding and not hostile to their case.
       
    7. That it should not be issued at all where its issuance will put the interests of peace, law, and order and the stability of the Country and of its Institutions in peril or in jeopardy, particularly where the Subpoena is directed against The President and the Head of State, and within the context and environment of a general mobilisation and a committed will, of the people in the Country, to consolidate the hard-earned peace.
       
93. In the light of the above analysis and considering all the facts and the law that have been canvassed by the Accused Persons to obtain the issuance of the Subpoena against President Kabbah under Rule 54 of the Rules, I am of the opinion that the standard and threshold set by the Rule, for such Applications to succeed, have not been reached and that the said Motions must therefore fail.
    

B) Does President Kabbah Enjoy Any Immunity At All?

94. In my opinion, a consideration and an analysis of the questions raised and relating to President Kabbah’s immunity is very crucial and capital in the determination as to whether these Motions should be granted or not. This issue is on the table for examination because of the submissions by The Defence Teams which contend that he enjoys no immunity from the service of processes and also because of the very nature and legal definition and the consequences of a Court issue a Subpoena.
    
95. To answer this question, I have taken cognizance of what the situation would be on a strict construction of the provisions of the Constitution of Sierra Leone and the necessity, as part of the duties of The President of the Republic, to ensure respect for international treaties. However, giving a strict interpretation in this regard, as The Defence seems to suggest, of the provisions of Section 48(4) of the Constitution which makes no mention of immunity from the issuance or the service of processes like a Subpoena and The President’s appearance as a witness of fact, would not only be unrealistic but would also be counter productive and indeed not in harmony with the principles of statutory interpretation in that it would produce absurd results.
    
96. In this regard it is argued that Section 29 of the Ratification Act, which virtually re-enacts the provisions of Article 6(2) of the Statute of the Special Court, strips the President of any immunity. This view, to my mind, is totally erroneous and misconceived in that both Section 29 and Article 6(2) were enacted to be applicable, as I have mentioned in paragraphs 44, 45, and 46 of this Opinion, only to persons or indictees charged, or yet to be charged, and tried under the offences defined only and exclusively in Articles 2, 3, 4 and also 5 of the Statute, and not for Persons like President Kabbah, who is not an indictee of this category or any at all.
    
97. The second contention is that President Kabbah enjoys immunity from prosecution and civil actions but enjoys no immunity from service of processes like a Subpoena even though those lower in his hierarchy, namely, the Speaker, Members of Parliament and the Clerk of Parliament, under Section 101(1) of the Sierra Leone Constitution, are explicitly granted an immunity from appearing as witnesses. But this immunity, it should be understood, is only valid when they are in Parliamentary Sessions.
    
98. It should be said here that The President belongs to a different category and regime of immunities. The submission by The Defence that he is not immune from the issuance and the service of processes is superficial, ill conceived, and misdirected, because if Members of Parliament can be said to enjoy temporal immunity from appearing as witnesses whilst they are in Parliament, there is no reason, nor is there an logic for excluding The President from enjoying immunities enjoyed by his inferiors. This interpretation gives rise to an absurdity. In fact, his immunity under Section 48(4) of the Constitution should ordinarily include, not only immunity against criminal and civil actions, but also against Subpoenas, other Court processes, or even being compelled to appear in Court as a factual witness.

A Recourse to The Rules and Principles of Statutory Interpretation
in Order to Resolve this Issue

99. One of the cardinal principles of statutory interpretation is that a statute should not be construed in a manner that would give rise to an absurdity.
    
100. The President, is as well the Head of State and finds himself at the top of the State machinery. Article 48(4) gives The President immunity from criminal and civil action but not for service of processes such as a Subpoena, nor does it grant him immunity to appear as a witness of fact.
     
101. In that same Constitution, Section 102(1) grants to the Speaker, the Parliamentarians and the Clerk of the House, immunity against the services of processes and their appearing as witnesses, ‘but only when they are in session’.
     
102. The Defence Teams, in their submissions, contended that President Kabbah is:
     
     1. Not above the Law;
     2. That Section 48(4) of the Constitution does not grant him immunity against the issuance and service of processes like the Subpoena;
     3. That Section 48(4) of the Constitution does not grant him immunity from appearing in Court as a factual witness of fact.
        
103. The absurdity in these constitutional provisions is that The President enjoys immunity from prosecution for a more grave and serious situation like the commission of an offence, even if he committed murder, but enjoys no such immunity for the issuance and service of processes on him, for which his inferiors in hierarchy enjoy under Section 101(1) of the Constitution and even though the Speaker, the Parliamentarians and the Clerk, do not enjoy the more important, and broadly based and more encompassing immunity guaranteed to The President under Section 48(4) of the Constitution.
     
104. In order to avoid an absurd result in the interpretation of Sections 48(4) and 101(1) of the Constitution, it is my view, that it is perfectly legal and permissible, under the Absurdity Rule principle, to integrate by analogy and read the provisions of Section 101(1) into those of Section 48(4) so as to avail The President of an immunity from the issuance and service of processes and compelling him to give evidence as a factual witness.
     
105. Furthermore, it has been contended that The President enjoys no immunity in so far as the International Instrument, the Statute, in its Article 6(2) and Article 29 of the Special Court Agreement, 2002 (Ratification) Act, 2002, prohibits him, as a Head of State, to lay a claim to immunity.
     
106. Here again, The Defence appears to have opted for the application of the ‘Golden Rule’ in the interpretation of those Statutes which, even given their ordinary meaning in the context in which they were adopted, do not support the position of The Defence. In fact, I would say here that it is when you interpret the Statute and the Ratification Act, 2002, the way The Defence conceives it, that one runs into an absurdity, which law, and particularly in matters of statutory interpretation, must be avoided in all circumstances and at all costs, because it has the potential of creating a dangerous mischief that could produce a disaster which was not intended by the legislator.
     
107. In this regard, it is pertinent to reiterate here, the ‘Golden Rule’ in matters of statutory interpretation. It is that the Courts must adhere to the ordinary sense or ‘plain meaning’ of words in a Statute unless it leads to an absurdity, repugnance or inconsistency. In this domain, a Court which is placed in such a dilemma, has to seek recourse to an established technique in statutory interpretation that seeks to avoid absurd and unjust consequences that result from the application of legislation to particular facts and circumstances. This approach is governed by the ‘Consequential Analysis Rule’ or the ‘Absurdity Rule’. This allows a Court or Tribunal to take into consideration the consequences of applying legislation in a particular case and to seek to avoid the consequences that may be deemed to be absurd.
     
108. The justification for this, as was enunciated by R. SULLIVAN in his Treatise, STATUTORY INTERPRETATION (Ottawa: Irwin Law 1997), is that an interpretation of a particular Statute that leads to consequences that are absurd or otherwise unacceptable, is presumed not to have been intended by the author of the Statute.
     
109. In fact in the case of GREY V. PEARSON (1857), 29 L.T.O.S. 67, it was said that where absurd consequences result according to the Rule, Courts are permitted to modify the ordinary sense of the words in the Statute to resolve or avoid the absurdity.
     
110. Indeed, where there is ambiguity in a Statutes’ text, and where one interpretation is more plausible, it is appropriate for the Court to avoid the interpretation leading to absurdity in favour of one that both avoids absurdity and is more plausible.
     
111. In their submissions to back up these Motions, The Defence Teams have only proposed the application of the ‘Golden Rule’ in the interpretation of Statutes which I have had to examine in order enable me to arrive at certain findings. They include for instance.

1. That since Article 48(4) of the 1991 Sierra Leonean Constitution only grants immunity to President Kabbah for criminal and civil suits, The President cannot claim immunity from service of ordinary process like the Subpoena.
   
2. That Article 6(2) of the Statute of the Special Court, a product of an international legislation or agreement, and Section 29 of the Special Court Agreement, 2002 (Ratification) Act, 2002, a Sierra Leonean legislation which gives effect to that international legislation, must be interpreted strictly.
   

112. If this were accepted, it would mean that The President cannot enjoy the immunity which he otherwise enjoys, and should in fact enjoy, under the provisions of Section 48(4) of the Constitution, and further, that an interpretation in this sense would, as I have pointed our in Para 95, give rise to an absurdity, given the real intentions of the authors of those 2 statutory instruments.
     
113. Indeed, the main basis for justifying the claim for Presidential immunity even in respect of processes, particularly from the issuance of a Subpoena, is that the State is the source of any immunity attaching to its Head of State and that the State has an interest in avoiding the disclosure of information that would be detrimental to the national security or some domestic or foreign policy interests of the State.
     
114. The creation of the Special Court for Sierra Leone, I would imagine, certainly involved delicate and protracted diplomatic and political negotiations in which President Kabbah, as the Head of this Country’s diplomacy, must certainly have been involved. I imagine that his replies to some of the questions which would be put to him in this regard, and which might require a revelation of some classified foreign policy issues, particularly those relating to the creation of the Special Court, would be met with a plea of privilege if at all he ever were to appear to testify.
     
115. If it could be conceded, as The Defence contends, that the President is not above the law and that he enjoys no immunity from processes, it is my opinion that this submission, even though it finds grace in the universally accepted doctrine of equality of all before the Law, has its limitations in terms of its practical application. The reality is that not all Sierra Leoneans enjoy the immunity that is conferred on The President under Section 48(4) of the Constitution which provides as follows:
     

‘While a person holds or performs the functions of the Office of the President, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official or private capacity.’

116. The Norman Defence, I note, in his reply dated 30th January, 2006, to the Learned Attorney General’s written Submissions, contends in this regard and submits that a Subpoena is not a civil or criminal proceeding instituted or continued against him and that Section 48(4) of the Constitution has no application because The President does not have any immunity under the Constitution of Sierra Leone from appearing as a factual witness before the Special Court.
     
117. In making these submissions, the Norman Defence Team has not addressed the issue of the nature and the consequences that are contingent to the issue of a Subpoena. In the light however, of the definition of a Subpoena, which I have already provided in an earlier analysis, it is my opinion, and I do so hold, that the Presidential immunity from a Prosecution that is guaranteed by Article 48(4) of the Constitution, clearly forbids and precludes the issuance of a Subpoena against The President since it is an order that is backed up with a criminal sanction.
     
118. In this connection, I do say that the issuance of the Subpoena solicited against President Kabbah becomes illegal and irrelevant and cannot, for reasons of its illegality, be enforceable in view of the fact that the President, under Section 48(4) of the Constitution, enjoys immunity from any criminal prosecution or sanction. In fact, a decision by This Chamber that grants the issuance of a Subpoena, a penal judicial instrument, against President Kabbah, immediately activates the immunity protection mechanism that is defined under Section 48(4) of the Constitution, to shield him from any criminal action.
     

What Is the Position In International Customary Law?

119. This issue was raised in the Kristić case where The Appeals Chamber of the ICTY held that:
     

‘there is, in principle, no functional immunity enjoyed by State Officials against being compelled by the ICTY to give evidence of what the Official saw or heard in the course of exercising his or her official functions, but added that no issue arises for determination in this case as to whether there are different categories of State Officials to whom such immunity may apply.’

120. The Prosecution in this regard, in its submissions dated the 13th of January, 2006, in reply to the Norman Motion, had this to say:
     

‘....in other words, The Appeals Chamber of the ICTY has left open, the possibility that there may be some categories of Government Officials (such as The Head of State) who do enjoy such an immunity.’

121. I agree entirely with this submission and would, for a clear understanding of the conclusions I will be making on this subject, like to refer to the Rules of Procedure and Evidence which govern the principles of law that are applicable in the Special Court.
     
122. Under Rule 72bis the applicable laws of the Special Court include:
     
     1. the Statute, the Agreement and the Rules;
        
     2. where appropriate, other applicable treaties and the principles and rules of International Customary Law;
        
     3. general principles of law derived from national laws of legal systems of the world including, as appropriate, the national laws of the Republic of Sierra Leone, provided that those principles are not inconsistent with the Statue, the Agreement and with International Customary Law and internationally recognised norms and standards.
        
123. Furthermore, Rule 89(B) of the same Rules provides as follows, but only in relation to the admissibility of evidence:
     

‘In cases not otherwise provided for in this Section the Chamber shall apply rules of evidence which best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.’

124. This important subject that concerns an unsettled but very important legal issue , has not received the attention of Our Appeals Chamber because it has not had the opportunity addressing it as yet. The International Court of Justice has not as yet, either. The Appeals Chamber of the ICTY, has not, even though it came close to it in the KRISTIC CASE, but could not, understandably, go further into the theme because there was no Kabbah Head of State, scenario before them for adjudication.
     
125. In the light of the above, I would, as I indeed can, under the provisions of Rule 72bis(ii) and 72bis(iii) of the Rules, resort to adopting the best practices that are obtainable on this subject in other legal systems and Countries in the world, with a view to arriving at a fair determination of the issues raised by the Applicants in this case, that is, that President Kabbah, Head of State, is not, under Section 48(4) of the Constitution, entitled to immunity for service of processes like Subpoenas and from appearing as a factual witness before the Special Court.
     
126. As far as the application of Rule 72bis(iii) is concerned the position is not clear here in Sierra Leone because it has never arisen for a determination before now. Furthermore, on a plain strict interpretation of Section 48(4) of the Constitution, or on its ordinary reading, The President does not, ex facie, appear to enjoy or to have been granted any immunity from the Subpoena process although this immunity has been granted, albeit on a temporary basis, to the Speaker, the Parliamentarians and the Clerk of the House under Section 101(1) of the Constitution. These Motions therefore, offer us the first opportunity for a legal stand to be taken on this matter of extreme legal, domestic, and international importance.
     
127. On the stand of International Customary Law on this issue, it is pertinent to say that even though the International Court of Justice, in its Judgement dated the 14th of February, 2002, in the case of WARRANT OF ARREST OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF CONGO VS. BELGIUM), sustained that this immunity protects any Head of State from prosecution, it is still not resolved if the immunity also extends to the impossibility of compelling Heads of State to appear as witnesses.
     
128. I would like however, to observe here, that in France, and precisely in the case of REPUBLIC OF CONGO VS. FRANCE the International Court of Justice is considering the possibility that a French request to Congo’s President to testify violates Customary International Law on the grounds of Head of State immunity. The situation remains quite preoccupying because the solution, in view of our case in hand, is still not clear as we wait for a decision of the International Court of Justice in the case of REPUBLIC OF CONGO V. FRANCE.
     
129. What is known is that in the domestic laws of some Latin American States such as Argentina, Bolivia, Chile, Panama and Uruguay, the Head of State cannot be compelled to testify but could testify if he or she voluntarily decides to do so.
     
130. I would like, in these circumstances, to refer to a case in France where President Jacques Chirac was summoned as a witness at the pre-trial stage. The ‘Cour de Cassation’, which is the equivalent of the Supreme Court of Sierra Leone, on the 10th of October, 2001, held that The President is not under any obligation to appear as a witness since such an obligation is subject to a constraint and where failure to appear attracts a criminal penalty. The text of this Decision of ‘La Cour de Cassation’ reads as follows in French:
     

‘Le President de la Republique n’est pas soumis a L’obligation de comparaitre en qualité de temoin, dès lors que cette obligation est assortie d’une mesure de contrainte par l’article 109 du CPP et qu’elle est penalement sanctionee.’

I would like to suppose that the abbreviation ‘CPP’ stands for, ‘Code de Procedure Penale’.

Translated into English, and to give it the meaning and effect it portrays in the French version, it would read as follows:

‘The President of the Republic is not subjected to the obligation of appearing as a witness granted that this obligation is accompanied by a measure of constraint defined in Article 109 of the Criminal Procedure Code and is punished by a criminal penalty.’

131. The immunity of The President occupies, in varied degrees and provisions, depending on the Sovereign option of its People, a prominent place in the Constitutions of all independent and Sovereign Nations of the World. The justification for this is that those who rise up to and occupy these privileged positions which are the highest in the rungs of the ladder of State hierarchy, have been democratically elected after the organisation of a universal suffrage. In view of the fact that these Presidents are the offsprings of those elections, they are looked upon and regarded as the symbols and an embodiment of their States. They ensure the continuity of life in their States and ensure its perenity and that of peace, order and good government.
     
132. Commonly referred to as ‘The Princes’ who govern us, Heads of States are granted these immunities, not for their personal aggrandisement, comfort, needs, or aspirations, but because of the seat and position they occupy as the highest ranking Officials and Citizens their Countries. This emphasises the necessity for the dignity, respect and honour that go with it to be conserved and to remain inviolable in order to preserve the integrity and honour that, in this regard, is due primarily and firstly to the Sovereign Nations concerned and subsidiarily, to their Heads of State who are their sovereign representatives. In this process and within this context, Heads of States need to be guaranteed an environment, an atmosphere, and an institutional framework for them to perform their duties in all tranquillity and without any unnecessary interferences which could result from the issuance of a Subpoena.
     
133. In fact, the issuance of a Subpoenas against President Kabbah, a Head of State, is not of a nature to guarantee this tranquillity and continuity in the exercise of his State functions because it, albeit temporarily, like in a Coup d’Etat scenario, involves unseating the Head of State, arresting him and constraining him, not only to be brought to This Chamber virtually forcibly, but also putting an end to his mandate or suspending him, although on a temporary basis, from the high office which he occupies by virtue of his election and under the Constitution.
     
134. The temporary arrest or sequestration of the Commander-In-chief of the Armed Forces, not only has the potential of occasioning a disconnect in governance and a breakdown of law and order, but also, a Constitutional crisis and the upsetting of the long-standing Constitutional doctrine of Separation of Powers with the Judiciary interfering with and violating executive powers and privileges. In fact, I would like to observe here that the reasons which may have influenced and motivated ‘La Cour de Cassation’ in its very practical and wisdom-driven solution in its Decision, which I consider a landmark, finds their justification and expression here. This is particularly so because the constitutional powers under which Senior Government Officials, including of course, those of the Law Enforcement Agencies like the Inspector-General of Police of the Republic of Sierra Leone who is charged with enforcing criminal and other sanctions that accompany the issuance of processes like the Subpoena are appointed, are vested on the Head of State by virtue of Articles 155(1) and 157(1) of the 1991 Constitution of the Republic of Sierra Leone which provides as follows:
     

Section 155(1)

‘There shall be a Police Force of Sierra Leone, the Head of which shall be Inspector-General of Police.’

Section 157(1) of this same Constitution stipulates:

‘The Inspector-General shall be appointed by the President acting on the advice of the Police Council subject to the approval of parliament.’

135. Although Section 157(1) of the Constitution provides some safeguards, in practice it is indeed The President who fishes around and chooses his nominee for this post before presenting it to the Police Council, whose role is merely advisory, and thereafter to Parliament for vetting.
     
136. The everyday reality however, is that the Head of the Law Enforcement Agency of Sierra Leone, the Inspector-General of Police, as is the case elsewhere in Nations around the world, is in fact, an appointee of The President, and in this case, and the situation as it is now, of President Kabbah. This is why it would be very interesting to watch this Inspector General, if at all he would ever, and particularly where he knows and sees himself violating the provisions of Section 48(4) of the Constitution, proceed, on the Orders of This Chamber, to arrest President Kabbah who, in addition to his very high status and profile as President of the Republic, appointed him to that office as the Principal Law Enforcement Agent of the Country, dislodge him from his Constitutional Presidential Offices, and escort him to This Trial Chamber stand a charge of contempt under Rule 77(A)(iii) of the Rules of Procedure and Evidence, for failing to respond to the Subpoena so issued.
     
137. It is indeed my understanding, conviction and finding that Heads of States are, and should in fact enjoy immunity, not only for criminal and civil suits, but also against the issuance and service of processes like a Subpoena because of the penal component that goes with it and that Courts should refrain from issuing such processes against Heads of States who in fact enjoy quite an extensive regime of immunity including that involving the issuance of a Subpoena and appearing to testify as a factual witness, unless he does so voluntarily.
     
138. In the light of the foregoing analysis, I am of the opinion, and I do so hold, relying on the historic Judicial Decision and precedent of, ‘La Cour de Cassation’ of France of the 10th of October, 2001, which confirmed President Jacques Chirac’s immunity in this regard, and which I approve of, adopt, and rely on, for me to convincingly hold, that H.E. President Kabbah, President of the Republic of Sierra Leone and Head of State, should also enjoy immunity, not only against criminal or civil action as enshrined in Section 48(4) of the Constitution, which I interpret charitably in the sense of the ‘Absurdity Rule’, but also against the issuance or the service on him, of any processes like Subpoenas and any other which may have criminal and penal consequences if not complied with.
     
139. It is also my opinion in the light of the above analysis, that The Chamber cannot, and should not, issue any Subpoena to President Kabbah at all because it is not only unconstitutional and illegal to do so, but would be an exercise in futility, since the said Subpoena, even if issued, can neither be served on him nor executed against him in terms of imposing or meting out a penal sanction against him since, as I have found, he enjoys the protection and immunity granted him by Section 48(4) of the Constitution.
     
140. If these national practices and decisions like that of ‘La Cour de Cassation’ could gain the deserved notoriety and jurisprudential consistency in most legal systems of the world, as they should and are indeed already, and it happens that they some day crystallise into a rule of International Customary Law, and eventually, into the Treaty, a major long-standing municipal and internationally based problem would have received a welcome and laudable solution from France. In the meantime, it is my opinion and I so do hold, that the solution to be adopted at this point in time, and pending the decision of the International Court of Justice in the case of CONGO V. FRANCE, is that provided by ‘La Cour de Cassation’ of the Republic of France.
     
141. Accordingly, and in the light of the above, I rule that no Subpoena can be issued against President Kabbah, and that none can be served on him either, even if issued, because of the immunity he enjoys under Section 48(4) of the Constitution of the Republic of Sierra Leone. Accordingly, the Motions of the 2 Accused Persons on this ground also fail.
     
142. This said however, I still hold that Heads of States who wish to voluntarily testify, should be encouraged to do so as this will certainly contribute to disentangling certain complex issues and problems, and situations which they master better, and which plague social order and the judicial process, where their testimony is more convincing, authentic and reassuring.
     

ALTERNATIVE MECHANISM

143. The enforcement mechanism of the Subpoena having failed because of the immunity status of The President, a recourse to the alternative approach to that of imposing a penalty for a refusal to comply with the Subpoena so issued by the Court could be necessary so as to bring President Kabbah to accept to voluntarily testify.
     
144. This consists in the disarmed Chamber referring the matter to The President of the Special Court in accordance with the provisions of Rule 8(B) of the Rules of Procedure and Evidence, for him to take ‘appropriate action’ which I note, is not defined in the Rules. Is The President of the Special Court then required, thereafter, to raise the matter with H.E. President Kabbah or to negotiate his appearance before The Chamber with him? This would be unacceptable and indeed, a violation of the Constitutional Principle of Separation of Powers.
     
145. The second option will be for The President of the Special Court to refer the matter to the United Nations and to the Management Committee and to draw their attention to the breach of Article 17 of the Agreement and of Articles 20, 21, 23 and 25 of the Special Court Agreement, 2002 (Ratification) Act, 2002, and a possible application of Article 20 of the said Agreement between the United Nations and the Government of Sierra Leone.
     
146. Thirdly, The President of the Special Court could just do nothing and wait for the matter to be referred to it on appeal in accordance with the provisions of Rule 73 of the Rules of Procedure and Evidence.
     
147. The only comment I have to make here is that time is not on our side given the limited life-span of this Court and the completion strategy that is on our desks.
     
148. Consequently, I consider that the 3rd solution, which is more expeditious, and more in conformity with the judicial process, should be preferred to the second which entails the application of Article 20 of the Agreement which could be protracted by diplomatic exchanges and lengthy negotiations.
     

Should The Court Act in Vain?

149. I am of the opinion that granting these Motions and issuing a Subpoena against President Kabbah, President of the Republic, who is not only the Commander-In-Chief of the Armed Forces but also the Constitutional Authority that appoints the Head of the Law Enforcement Agency, the Inspector-General of Police, who is supposed, if it came to that level at all, to be charged with executing the instructions of The Chamber including the constraints and coercive procedures and measures that go with issuing the said Subpoena, would be, and is indeed, an exercise in futility.
     
150. I say this because it is indeed difficult to imagine a scenario, and it is dangerous and imprudent for this Court to create such a precedent, where the Inspector-General of Police, an Appointee of President Kabbah, will, and knowing that he is compromising or breaching the public peace which he is employed and appointed to keep, ensure, and protect at all times, and knowing that he is violating the provisions of Section 48(4) of the Constitution of his Country, to proceed to arrest President Kabbah, on authority of a warrant issued by This Chamber.
     
151. Indeed, if an order were made by This Chamber to issue the Subpoena which implies and is coupled with an order for his arrest should he not comply with the Subpoena, it is my opinion, and I so do hold, that the Inspector-General of Police will not, and should not execute such an order which, because it flagrantly violates the provisions of Section 48(4) of the Constitution, is manifestly illegal.
     
152. The Presidency of the Republic is a sacred national Institution created by the Constitution in all Countries that have opted for the Presidential Regime of Government. In this Country, it is the creation of Section 40 of the 1991 Constitution of the Republic of Sierra Leone.
     
153. The President of the Republic, as the first citizen of the Land, is the most protected person in this or any other Country. He is bestowed and endowed with entrenched and inviolable Constitutional powers, protections and privileges which Judges, as custodians of the Law, are bound to and must respect and protect at all times as we do in our professional application of other principles of law, in the execution of our duties. In doing this, we are contributing, as we should, to the process of fully re-establishing and consolidating the peace, security, and the Rule of Law in this Country into which so much has been invested to achieve after a long, bitter, and brutal struggle. It would be unfortunate if the contrary were to be our contribution as this would indeed amount to a dereliction of our duty as a Trial Chamber.
     
154. In fact, ordering the Inspector-General of Police to proceed to arrest President Kabbah for the offence of Contempt and to displace him from his Presidential Office, prevents and prohibits him from performing the functions and duties of the Office of the President under Section 40 of the Constitution for which he took the Constitutional oath to assume and to perform. To say the least, this would create a destabilising situation that could generate anarchy and disorder which the law is supposed to combat in order to ensure the prevalence of peace.
     
155. The next issue I would like to address is the legal basis and the necessity in the circumstances, to issue a Subpoena at all against President Kabbah.
     
156. In my considered opinion, it stands to reason and is indeed logical to so hold, that in Law, and given the very nature and legal definition of a Subpoena, it should not be issued unless the Court issuing it is capable of having the person in question arrested and delivered to it with a view to trying him lawfully, and equally lawfully imposing on him, a penalty for defying the Subpoena.
     
157. In this regard, I would like to say, that where a Court, as in this case, cannot, for reasons of Sovereign or Constitutional immunity, enjoyed by a person like President Kabbah, against whom the issuance is sought, assume jurisdiction either to order the arrest or the trial of that person, The Court so seized of the application for its issuance should not issue it at all because adopting such a cause of action would amount, not only to an exercise in futility, but also a flagrant violation of the Constitution of this Country, the principles of the law on immunities, and the Constitutional Doctrine of Separation of Powers.
     

EXERCISE IN FUTILITY

158. In fact, since President Kabbah, as I have held, is protected by the immunity granted to him under Section 48(4) of the Constitution, Why in law, should a Subpoena be issued by The Chamber against him at all if the inseparable penal component of the Subpoena cannot be enforced in the event of its being disregarded or flouted by him? The following analysis will indeed demonstrate the futility of such an exercise.
     
159. In the case of the PROSECUTION VS. DELALIĆ, The Defence sought the issuance of Subpoenas Ad Testificandum to certain proposed witnesses in circumstances where there were supervening logistical obstacles. The Chamber, in rejecting the application, concluded that this effort of compelling the witness by means of Subpoena was not one intended to succeed and added that ‘it does not, and should not, do anything in vain’. This to my mind, certainly suggests that the Courts should refrain from making any orders or decisions unless they are capable of being enforced, particularly in a situation where the Special Court, like all other International Criminal Tribunals, does not have its own Police Force to enforce its Orders and in fact has, in this regard, to count on the goodwill of the Inspector General of Police, appointed by President Kabbah, to do this for it.
     
160. This Decision echoes the application of the Common Law doctrine of ‘Equity does not act in vain’ which has been developed in various aspects of English case law.
     
161. The House of Lords in the Case of MALLOCH VS. ABERDEEN CORPORATION [1971] All E.R. 1278 enunciated a principle requiring that Courts should not act where the outcome of such action would be ‘futile’ or ‘fruitless’. In fact, the English Court of Appeal elaborated on this principle in WOOKEY V. WOOKEY, [1991] 3 All E.R. 365 and RE S. (A MINOR), [1991] FAM 121. In WOOKEY, a non-molestation order was granted against a mentally incapacitated man who had illustrated violent tendencies towards his wife. On appeal, the court held that the injunction issued would not serve the purpose for which it was intended, namely to deter the husband or regulate his conduct, because he was mentally incapable of understanding the nature of the injunction and would be unfit to plead if charged with a violation of the order. The court held that therefore “any breach of the order could not be the subject of any effective enforcement proceedings,” and it would be inappropriate to grant the injunction.
     
162. In RE S., civil proceedings for assault and battery were instituted against a 15 year old boy by his sister, who sought an injunction to restrain him. A lower court judge refused to grant the injunction on the ground that it could not be enforced by any of the available penalties, namely committal to prison, sequestration of property or fine. The court had no power to commit a minor to prison, and it was unrealistic to order sequestration or a fine, because S had neither property nor money. The injunction was therefore practically unenforceable making recourse to the civil courts an “inappropriate procedure.” Both cases cited the principle that “equity does not act in vain,” and that the courts should refrain from granting an injunction unless it is capable of being enforced i.e. unless there is a reasonable chance that the order, if made, will be enforceable. Unenforceable orders, the court indicated, would only add to costs and yet serve no useful purpose.[26] In determining whether to grant an injunction the courts must consider whether in practical terms such an order is going to be enforceable, and whether, if it is granted and then becomes unenforceable, this will not merely expose the law to ridicule and contempt.
     
163. In Attorney General v. Guardian Newspapers Ltd. And Others, [1990] 1 A.C. 109, the English Court of Appeal again referred to the “old maxim that equity does not act in vain,” meaning that the court should not make orders which would be ineffective in achieving their purpose. The court indicated that if courts were to make orders “manifestly incapable of achieving their avowed purpose,” the law would be making itself “an ass.” In this case, injunctions were issued against the Observer and Guardian newspapers to restrain their editors from disclosing or publishing any information obtained by a particular member of the British Security Service. The papers sought discharge of the injunctions because the information had already been made public by other publications and television programs. The court granted the appeal of the injunctions, agreeing with the argument that they were, given the circumstances, futile and irrelevant.
     
164. In the light of the futility in issuing this Subpoena against H.E. Kabbah, The President and Head of State, it is my view, because I am of the opinion that it should not be issued at all because, by virtue of Section 48(4) of the Constitution, he is immune, and as I have held, not only from criminal and civil action but also to service of the Subpoena process for him to appear as a witness. In these circumstances, I hold, that the Subpoena, cannot and should not be issued for him to testify for Moinina Fofana and for Samuel Hinga Norman and that the Motions are denied and accordingly dismissed.
     

Are These Motions Calculated To Embarrass Or To Ridicule The President?
Should They Also Be Dismissed On Thes Grounds In That They Amount To
An Abuse Of Process?

165. In his response to the submissions of the Fofana Defence Team, urging The Chamber to dismiss the Motions, the Learned Attorney General Minister of Justice argues that the requested Subpoena is irrelevant, fishing, speculative and oppressive, and ‘is not bona fide but meant to embarrass President Kabbah and cause mischief and that it is an abuse of the process of Trial Chamber I’.
     
166. The Fofana Defence Team, in reply to this specific allegation which it denies, submits that the Attorney General has failed to make a specific showing as to how the issuance of the requested Subpoena would oppress President Kabbah and that the Learned Attorney General has failed to substantiate the allegation that the Application is an abuse of process.
     
167. In this regard, I would like to make reference to some specific submissions made by the 2 Applicants which would appear to lend some support to the allegations of alleged ulterior extra judicial motives that appear to accompany these Motions, which, it is not denied, are ostensibly and primarily based on the legal grounds provided that are defined by Rule 54 of the Rules of Procedure and Evidence:
     
     1. It is the submission of the Fofana Defence Team, which has been endorsed and adopted by the Defence Team of the First Accused, and I quote:
        

“that at all times relevant to the indictment, Mr Kabbah was commanding, materially supporting, and communicating with various members of the alleged CDF Leadership both from his exile in Conakry and later from his Presidential Offices in Freetown in.”

2. In page 8 of the, FIRST ACCUSED Reply to The Prosecutions Response to Norman Motion for the Issuance of a Subpoena to The President, filed on the 16th of January, 2006, The Defence Team had this to say and I quote:
   

‘The Prosecution tendered the CDF Calendar which was admitted as an Exhibit which shows the President occupying the topmost position in the hierarchical structure of the CDF where the 1st Accused occupies the 5th position.’

The submission continues:

‘If for one reason or the other, The Prosecution failed to indict The President, then it is not their business for them to question the First Accused why The President’s evidence is necessary for the proper execution of his defence.’

3. It is also the submission of the 2nd Accused adopted by the 1st Accused, and I quote:
   

‘With respect to the question of who bears the greatest responsibility for the alleged violations of the CDF during the conflict, The Defence submits that Mr. Kabbah may himself be among such a group.’

4. Furthermore, it is the submission of the first Accused in his response to the prosecutions reply to the Motion and I quote:
   

‘...that President Kabbah was in constant contact with Norman for input on how the war should be conducted and that Kabbah helped raise money to pay for it. Kabbah knew what Norman was doing at all times because Norman was in contact with Kabbah by satellite phone. Norman was in the field, but Kabbah was either at State House or in Conakry....’

168. In addition to this, Mr Arrow Bockarie, Learned Counsel for Moinina Fofana, submits that President Kabbah could be arrested, forcibly brought before The Trial Chamber, and prosecuted for the offence of contempt if he decides to ignore the Subpoena issued by This Chamber. Learned Counsel, Mr Bockarie, after citing Section 20 of the Special Court Agreement, 2002 (Ratification) Act, 2002, stoutly stood his grounds on this issue during his oral arguments and submissions on the 14th of February, 2006 when he had this to say and I quote him:
     

‘Accordingly Your Honours, as a general matter, This Chamber is empowered to enforce its orders through the very mechanism available to officials of our National Courts namely by directing the Inspector General of Police to issue a warrant for the arrest of any individual who fails to comply with The Chambers, order pursuant to Rule 54.’

169. If this submission were to be upheld, Learned Counsel is saying that, in the event of H.E. President Kabbah ignoring the Subpoena, This Chamber could order the Inspector-General of Police, the Head of the Law Enforcement Agency in this Country, a Kabbah Appointee, armed with a warrant, to proceed to arrest The President and bring him before The Chamber, to stand charged and prosecuted for the offence of Contempt as defined in Rule 77(A)(iii) of the Rules of Procedure and Evidence.
     
170. This is exactly the situation that relates to the Dictum of the WEST AFRICA COURT OF APPEAL before Their Lordships, The Learned Justices P. Wilson (CJ), Blackall and Abott J. in the case of
     

R v. 1. Osita Chukwigbo Agwuna

2. Habib Raji Abdallah
3. Fred Anyiam

and 4. Oged Macaulay,

to which the attention of The Chamber was drawn by the Learned Attorney General Minister of Justice in his written submissions

171. Their Lordships in their Decision in this case, very pertinently, had this to say on this subject, and I quote:
     

‘A person served with a Subpoena has the right to apply to the Court to set it aside on the ground that the Subpoena is not bona fide required for the purpose of obtaining any evidence that can be relevant and the Court upon such an application will interfere where it is satisfied that its process is being used for indirect or improper objects.’

172. In this regard, ABUSE OF PROCESS is defined as:
     

‘The improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope.’ BLACK’S LAW DICTIONARY 7TH EDITION, PAGE 10.

173. I acknowledge with deference and satisfaction, the AGWUNA CASE that was decided by the Monumental, Revered and Respected West African Court of Appeal, and the definition of Abuse of Process by the Learned Author, BLACK, but note that although these Submissions are very emotional and cautiously belligerent, it is not unusual to expect such exchanges in matters of such grave importance and concern to the Accused Persons, as it is in this case, and which in litigation, I consider to be a normal human phenomenon and sentiment.
     
174. In fact, these expressions emanate from Accused Persons who are facing, and understandably so, with a lot of apprehensions, anxiety, uneasiness, uncertainty, and to some extent, personal frustrations, the outcome of the trial on the 8 Count indictment that has been preferred against them by The Prosecution. In addition to this, it cannot be said that in the circumstances, their Motions for the issuance of a Subpoena Ad Testificandum against The President, given the background of this matter, is unfounded, even though the grounds exploited by The Defence, as I have found in this Opinion, and as Our Chamber Majority Decision has also found, do not meet the standards set in Rule 54 of the Rules of Procedure and Evidence for the issuance of this Subpoena.
     
175. In any event, I cannot, at this stage, make a finding of fact on this submission by the Learned Attorney General, to the effect that this Motion is intended to embarrass and ridicule President Kabbah, because it is, at this point in time, speculative, since I so far, have no clear, convincing, and conclusive proof, that this would indeed happen.
     
176. However, if President Kabbah were to appear before us at all and questions intended to ridicule or to embarrass him were put to him, the Learned Prosecutor, who no doubt, will be flanked by the Learned Attorney General Minister of Justice, will give H.E. The President, the protection he deserves by objecting to those objectionable questions and leaving the rest to The Chamber to fulfil its role as The Arbiter.
     
177. Consequently, considering the foregoing analysis on this issue and mindful of the definition of Abuse of Process, it is my finding that these Motions, notwithstanding some expression of passion that can be perceived in the submissions, do not, in my opinion, neither constitute nor do they amount to an Abuse of Process as contended by the Learned Attorney General Minister of Justice.
     

SUMMARY OF FINDINGS

178. Having examined and analysed so far, the issues and the arguments that have been raised and articulated by Counsel for the 2 Applicants in these Motions, by The Prosecution, and by the Learned Attorney General Minister of Justice on behalf of H.E. Alhaji Dr. Ahmad Tejan Kabbah, President of the Republic and Head of State, I now make the following findings.
     
     1. That the submissions and arguments presented to sustain these Motions fail to satisfy the standards stipulated in Article 54 of the Rules of Procedure and Evidence.
        
     2. That a Subpoena is a judicial process that has a penal component and consequences, in that non-compliance with it after its issuance, has the potential of triggering a prosecution under Rule 77(A)(iii) of the Rules of Procedure and Evidence that could possibly give rise to a conviction or to an acquittal.
        
     3. That President Kabbah, by virtue of the provisions of Section 48(4) of the Constitution of Sierra Leone, enjoys an immunity, not only against criminal or civil action, but also against the issuance against him or service on him, of legal processes such as a Subpoena whose issuance, in the context, amounts to a violation of Section 48(4) of the Constitution since a Subpoena, from its definition, has the potential of having the President prosecuted and convicted under the provisions of Rule 77(A)(iii) of the Rules of Procedure and Evidence.
        
     4. That it is legal and permissible, under the ‘Absurdity Rule’ Principle in matters relating to statutory interpretation, to integrate by analogy, the immunities provided for in Section 101(1) of the Constitution to those provided for in Section 48(4) of this same Constitution.
        
     5. That the issuance of a Subpoena will violate the provisions of Section 48(4) of the Constitution of this Country.
        
     6. That if granting an application for the issuance of a Subpoena has the potential of compromising the interest of peace and stability, of Law and of Order, and as well, violate the Law and the Constitution of this Country, This Chamber should not grant such an application.
        

III. CONCLUSION

179. For these reasons, and pursuant to the provisions of Rule 54, The Chamber hereby DENIES the Motions by Court Appointed Counsel for the Second Accused and Court Appointed Counsel for the First Accused, for the issuance of a Subpoena to H.E. Alhaji Dr. Ahmad Tejan Kabbah, The President of the Republic of Sierra Leone, for a pre-testimony interview and for testimony at this trial.
     
180. FURTHERMORE, and in the light of the foregoing analysis, findings and conclusions that appear in the said analysis, I do make the following Orders:
     
     1. THAT President Kabbah enjoys immunity under Section 48(4) of the Constitution, not only against criminal or civil action, but also against the issuance against him or service on him of legal processes such as a Subpoena.
        
     2. THAT the Subpoena solicited against him cannot, and should not, be issued because he enjoys this immunity not only under the provisions of Section 48(4) but also under International practice in Legal systems of other Countries in the World.
        
     3. THAT President Kabbah cannot be compelled or Subpoenaed to appear in Court to testify as a witness of fact, as requested by the Applicants, unless he, President Kabbah on his own volition, voluntarily accepts and decides to so testify in these proceedings.
        
     4. THAT the Motions filed by the 2 Accused Persons, do not amount to, nor do they constitute, an Abuse of Process.
        
     5. THAT THESE ORDERS AND DIRECTIVES BE CARRIED OUT.
        

[1] Prosecutor v. Norman et al., SCSL-2004-14-T, Trial Transcript, 14 September 2004 at 92-96.
[2] Ibid., 8 November 2004 at 17-18.
[3] Ibid., 10 February 2005 at 60.
[4] Ibid., 15 February 2005 at 16-17.
[5] Ibid., 15 February 2005 at 85-86.
[6] Ibid. at 96-97.
[7] Ibid., 16 February 2005 at 10.
[8] Ibid. at 21.
[9] Ibid., 17 February 2005 at 31.
[10] Ibid. at 34.
[11] Ibid., 14 March 2005 at 60.
[12] Ibid., 14 June 2005 at 70.
[13] See Statue of the Special Court for Sierra Leone (the “Statute”), Article 17(4)(e), which states that \n accused person shall have the right to, inter alia, “examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her”.

[14] See Statute, Article 1(1).
[15] See (Act No. 6 of 1991), Chapter V (The Executive), Part I (The President), Section 48(4) (emphasis added).
[16] See Blaskic Judgement, 25, 38.
[17] See Taylor Decision, 53; see also Blaskic Judgement, 40 (“... in modern democracies ... nobody, not even the Head of State, is above the law”.)
[18] See n. 16, supra.

[19] Fofana Motion, para. 3. See also Fofana Motion, para. 13, arguing the “Mr Kabbah is in a position to provide evidence relevant to the charges”.
[20] Halilović Appeal Decision, para. 6 (emphasis added). See also Kristić Appeal Decision, para. 10; Milošević Trial Decision, para. 39; Prosecutor v. Simba, Decision on the Defence Request for a Subpoena for Witness SHB, Case No. ICTR-01-76-T, Trial Chamber 7 February 2005, para. 3 (an applicant for a Subpoena “must have a reasonable belief that the prospective witness can materially assist its case”).
[21] Milošević Trial Decision, para. 39 (emphasis added).
[22] Ibid.

[23] Halilović Appeal Decision, para. 7; Kristić Appeal Decision, paras 10-12; Prosecutor v. Brđanin and Talić, “Decision on Interlocutory Appeal”, Case No. IT-99-36-AR73.9, Appeals Chamber, 11 December 2002, paras 48-50.
[24] Halilović Appeal Decision, para. 7.
[25] Brđanin and Talić Appeal Decision, para. 46.

[26] See also Pride of Derby and Derbyshire Angling Association Ltd. And Earl of Harrington v. British Celanese Ltd. [1953] 1 All E.R. 179 and Cammell v. Cammell [1969] 3 All E.R. 929.